South-Western Legal Studies in Business

City Cannot Justify Forced Racial Balancing of Employee Assignments

Appeals court held that a city violated the equal protection rights of employees who were forced to transfer so as to achieve racial balance at all fire stations in the city. The city failed to show a compelling interest that could justify such a policy.


Employment Discrimination

Key Words

Intentional Discrimination; Racial Balance; Compelling Interest

C A S E   S U M M A R Y

In 1977 the federal government sued the state of New Jersey and several cities, including Newark, for "a pattern or practice of discrimination" in the hiring and promotion of minority firefighters. A consent decree in 1980 ordered affirmative action to increase the proportion of black and Hispanic personnel in fire departments. By 1995, 30 percent of Newark firefighters were black or Hispanic. In 2002 the mayor of Newark, upset that some fire stations were single-race, ordered the reassignment of personnel to achieve racial balance in each fire station. Firefighters who were forced to transfer sued, contending the policy violated Title VII and equal protection. The trial court held for the mayor and city. Firefighters appealed.


Reversed and remanded. A policy that uses race as the basis for transfers and assignments is subject to strict scrutiny. Such policy must be narrowly tailored to achieve a compelling city interest so as to overcome injury to equal protection rights. Racial classifications may be used to cure racial imbalances, but only when it is shown that the employer engaged in prior intentional discrimination or was a passive participant in a third party's discrimination. That was not the case here; the mayor simply announced his decision. There was no finding that the consent decree had been violated. There was no "compelling interest" to justify the decision, so the Equal Protection Clause has been violated.


Lomack v. City of Newark, 463 F.3d 303 (3rd Cir., 2006)

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