Refusing to enter a consent decree to remedy state hiring discrimination and advocating serious limits on discrimination law and deference to state “culture” in considering hiring discrimination claims.
United States v. North Carolina
One of Boyle’s most disturbing opinions was in United States v. North Carolina, 914 F.Supp. 1257 (E.D.N.C. 1996), rev’d 180 F.3d 574 (4th Cir. 1999), an employment discrimination case brought under Title VII by the United States against North Carolina. The United States charged that North Carolina had discriminated against women employed as correctional officers at men’s prisons and women who had sought such employment.30 The parties entered into a settlement agreement, subject to the court’s approval and entry of a consent decree, in which the state, while denying unlawful past discrimination, agreed to take certain remedial steps to increase the hiring and promotion of female correctional officers, as well as to provide compensation to women who were not hired or promoted due to their sex. Judge Boyle, who was harshly critical of the efforts by the United States to protect women from employment discrimination in this case, twice refused to approve the settlement agreement. The Fourth Circuit reversed, holding that Boyle’s refusal to enter the consent decree was an abuse of discretion.
In his first opinion refusing to approve the settlement, Judge Boyle was harshly critical of nearly every aspect of the proposed agreement, which he characterized as forcing the state to “submit to a wide array of expensive and intrusive mandates of unresolved value, necessity, and legality . . .” Id. at 1260. Boyle stated that “[w]ere this agreement properly before the Court, it would be flatly rejected.” Id. at 1263. However, Boyle concluded that he need not go this far since, in his opinion, the United States had failed to “establish a case or controversy sufficient to invoke the Court’s jurisdiction.” Id. Boyle found that the court did not have subject matter jurisdiction over the case because the United States did not have “reasonable cause” for bringing the action since there was “nothing to indicate in the claims of the identified alleged victims that the state has engaged in a pattern or practice of discrimination.” Id. at 1273.
Judge Boyle began by comparing Title VII cases to criminal prosecution:
Just as an accused is entitled to a prompt judicial hearing as to the existence of probable cause before being subjected to criminal prosecution, so too is a defendant facing the awesome power of the federal government in a Title VII context eventually entitled to a determination, as a preliminary matter, of whether reasonable cause might exist for prosecution of the claim.
Id. at 1264. Boyle then appeared to develop his own test for determining when the federal government can bring suit against a state in federal court, charging employment discrimination based on a disparate impact theory:
[I]n order to invoke the Court’s jurisdiction over an allegation of discrimination based upon disparate impact, there must be some case or controversy surrounding the government’s “reasonable belief” that the defendant has: 1) willfully and intentionally engaged in 2) an identifiable pattern or practice of resistance 3) intended to unlawfully discriminate, and 4) that this activity has actually caused an impact which is 5) visibly disparate from what must otherwise be the non-discriminatory norm.
Id. at 1267. According to Judge Boyle, “[n]one of the evidence . . . establishe[d] any of these elements.” Id. at 1267-68.
Boyle held that the first element “obviously missing” from the case was a “particular intentional discriminatory practice,” since the case was based on a statistical pattern of hiring discrepancies. Id. at 1268. According to Judge Boyle, because the government was unable to identify a specific employment practice that was harmful to women, there could be no claim of discrimination. Boyle held that “[w]ithout a specific demonstration of any particular practice, there can be no causation. Proceeding logically, there can be no effect without cause, no ‘impact’ absent ‘intentional practice.’” Id. at 1269.31
Boyle further concluded that the government had failed to establish what the “non-discriminatory norm” would be as it applied to the number of female prison guards in North Carolina. According to Judge Boyle, “the concept of disparity cannot exist without a reasonably established norm, and the norm cannot be simply some arbitrary quota or ideal.” Id. at 1272.
Finally, in explaining why the “non-discriminatory norm” with regard to North Carolina could not be determined, Boyle criticized the United States for attempting to force North Carolina to adhere to national standards of equal opportunity:
Our federal form of government prohibits finding any particular state to be guilty of having violated some federal law because its statistical abstract does not conform to what might be found in other states . . . Our form of government presumes that people in different states will act differently. Nothing is more offensive to the idea of federalism than the notion that the federal government will punish a state for having a non-conforming culture -–for being different from other states . . . Quite the contrary, federal law owes its existence to North Carolina’s absolute right to turn out differently than the other forty-nine states. The Constitution by which the original sovereigns, including North Carolina, created the federal government was ratified only on the understanding that a Bill of Rights would be adopted acknowledging the states’ and their peoples’ retention of sovereignty in all matters not explicitly ceded to the national government . . . It is most emphatically not the purpose of federal law to impose a uniformity of cultural outcome upon the individual states.
Id. at 1272-73.
Judge Boyle’s apparent suggestion that states can discriminate against a class of people whom Congress has protected under Title VII because of the state’s “culture” is a deeply troubling interpretation of states’ rights. The United States’ evidence in this case included not only proof that North Carolina had a smaller percentage of women employed as correctional officers than did any other state, but proof that stringent restrictions were placed on assignments that could be given to women, thereby limiting their opportunity for employment and promotion. Id. at 1268; United States v. North Carolina, 180 F.3d 574, 578 (4th Cir. 1999). It is disturbing for a federal judge to suggest that denying women employment opportunities is acceptable because the “culture” of a state discourages women from working in a given field.
In addition, Judge Boyle’s purported five-part test for federal discriminatory impact claims against state agencies clearly contradicts governing law and precedent and would seriously weaken federal protection against employment discrimination. As Congress and the courts have made clear, an employment practice that has a significant disparate impact on minorities that is not justified by business necessity is illegal under Title VII regardless of whether there is actual intent to discriminate.32 As the Supreme Court made clear in its unanimous holding in Griggs, Title VII forbids “not only overt discrimination but also practices that are fair in form, but discriminatory in operation” and that “absence of discriminatory intent does not redeem” such practices. 401 U.S. at 431, 432. Yet Boyle claimed in North Carolina that the federal government must have a “reasonable belief” that a state agency had “intended to unlawfully discriminate” before it can invoke federal court jurisdiction in a disparate impact claim. 914 F.Supp. at 1267. Boyle’s extreme view would eviscerate Title VII, contrary to Court precedent and the will of Congress.
Judge Boyle refused to enter the consent degree and ordered the United States to show cause why the court should exercise subject matter jurisdiction in the case. He also gave North Carolina notice that it could withdraw its consent to the agreement and “resume a position adversary to that of” the United States. Id. at 1275.
The United States filed a brief in support of subject matter jurisdiction and, more than a year later, Judge Boyle entered an order effectively reversing himself and holding that the plaintiff “had pled a proper basis for the Court’s exercise of subject matter jurisdiction.” Order 5:93-CV-763-BO(1), March 11, 1998, at 5. (Nevertheless, the 1996 decision remained on the books and the 1998 decision was not published.) Shortly therafter, North Carolina filed a motion for leave to withdraw from the consent decree.
After the United States convinced Boyle that jurisdiction was appropriate, Boyle once again refused to approve the settlement agreement, issuing an order stating three reasons for again rejecting the settlement. First, Judge Boyle stated that, because the court had not previously approved the settlement, it was “merely an executory contract” that neither party was obligated to act under until the court approved it. Order 5:93-CV-763-BO(1), March 11, 1998, at 6. He also cited the state’s new desire to withdraw from the agreement. Id. at 7. Finally, he found that circumstances had substantially changed since the agreement was drafted. Id. at 6 – 7.
In particular, Judge Boyle noted that, since the suit began, the state had “taken an aggressive posture in the hiring, assignment, and promotional practices within the Department of Corrections with respect to women as employees” making “remedies fashioned at an earlier time . . . no longer responsive and relevant. . .” Id. Boyle also referenced recent North Carolina legislative action requiring the legislature to approve of any settlements in Title VII lawsuits brought against the Department of Corrections and requiring the Attorney General to issue an opinion on the advisability of the state’s entering into any settlement that required payment greater than $75,000. Id. at 7.
Judge Boyle concluded that, given these factors, “it would be unreasonable and an abuse of discretion for the Court to enforce an agreement that is no longer relevant to the conditions now existing.” Id. at 7. Having refused to approve the settlement agreement, Judge Boyle found the state’s motion for leave to withdraw from the agreement to be moot. Id. at 8.
The United States appealed and the Fourth Circuit reversed, holding that Judge Boyle’s “refusal to enter the consent decree constituted an abuse of discretion.” 180 F.3d 574 at 577. The Court of Appeals remanded the case to Judge Boyle with instructions to enter the consent decree, noting that, after the consent decree was entered, the parties were free to seek to have it modified if they still believed changed circumstances justified doing so. Id. at 582.
In its decision, the Fourth Circuit summarized the three factors Boyle had considered and held that “[n]one of these circumstances is a proper basis for refusal to enter the consent decree.” Id. at 581. The court held that the fact that the consent decree remained an executory contract until approved by the district court “has no conceivable impact on the fairness or adequacy of the agreement.” Id. The court also held that “a party’s change of heart regarding a settlement is not a valid basis upon which to refuse approval.” Id. Finally, the court held that neither of the “changed circumstances” cited by Boyle were reasonable grounds for refusing to enter the consent decree. Id. The Fourth Circuit noted that the Department of Corrections’ newly aggressive hiring and promotion of women did not address past wrongs or make the settlement’s remedial provisions “unfair,” and that the recent actions of the North Carolina legislature constituted no more than “procedural hurdles.” Id.