Harless v. Duck

Decision Date23 April 1980
Docket NumberNo. 77-3293,77-3293
Citation619 F.2d 611
Parties22 Fair Empl.Prac.Cas. 1073, 22 Empl. Prac. Dec. P 30,871 Joyce HARLESS et al., Plaintiffs-Appellants, v. Robert DUCK et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

Dorothy B. McCrory, Jeffrey Julius, Gallon, Kalniz & Iorio, Co., Toledo, Ohio, for plaintiffs-appellants.

Joseph P. Jordon, City of Toledo, Law Dept., Toledo, Ohio, for defendants-appellees.

Before LIVELY, BROWN and JONES, Circuit Judges.

NATHANIEL R. JONES, Circuit Judge.

In this class action against the City of Toledo, Toledo Police Department (TPD), Toledo Civil Service Commission (TCSC), and several individual city officials, the district court found intentional discrimination in employment on the basis of sex in violation of the Fourteenth Amendment and 42 U.S.C. § 1983. After a bifurcated trial on the issue of liability only, the district court denied all relief to the named plaintiffs and the class members by holding that they had not established any injury and that the discrimination had ceased as of March 24, 1972, when Title VII, 42 U.S.C. § 2000e, was amended to apply to municipalities. Because many of the district court's conclusions of law are inconsistent with its findings of fact, we reverse and remand for proceedings on the appropriate remedy.

The named plaintiffs are women who took the November, 1972 patrolman's examination, the 1974 policewoman's examination, and/or the 1975 patrol officer's examination. Harless took all three examinations, but was never within appointing rank. Plaintiffs Hyatt and Gilford were within appointing rank on the 1975 test, but were not hired because of the TPD's effort to hire minorities. 1 Plaintiff Vivian Butts was certified by TCSC for appointment on the basis of the 1972 test, but was not hired after an interview. She also took the 1975 examination. These named plaintiffs represent the certified class of all past and present female applicants to the TPD since 1965 and all past and present female employees of the TPD since 1965. Defendants do not contest the class certification.

From 1965 to 1975, only twelve women were employed by TPD in entry level classifications. In 1975, TPD employed 717 male police officers, one female police officer, and four policewomen. Until November 1974, TPD maintained separate entry level classifications for male and female officers: patrolman and policewoman. Before November, 1974, females were assigned only to the Crime Prevention Bureau/Juvenile Section and, before December, 1976, could not permanently transfer from this assignment. Consequently, because all promotions to divisions and supervisory ranks were made from uniform patrol, women were denied promotions, except within the Crime Prevention Bureau. At the time of trial in 1977, only one female police officer had achieved the rank of sergeant. Until the time of trial, no woman had ever been assigned to eleven bureaus, despite testimony by the then Chief of Police and the then Safety Director that women could perform those jobs. 2

TPD was unable to hire anyone from 1969 until 1972, because of financial limitations. Being seriously understaffed, TPD, through TCSC, announced on March 1, 1972, a recruitment examination for "able ambitious young men" who desired to be patrolmen. TCSC cancelled the test on July 26, 1972, because of the questionable validity of the selection procedures under the EEOC guidelines. In September, 1972, TCSC again announced the examination for "able ambitious young men." 3 Despite the advertising, eighteen women applied for and took the examination. Two hundred sixty-three men also took the test.

The 1972 patrolman's examination consisted of three parts: 1) two written, general intelligence tests; 2) a physical ability test; and 3) a structured oral interview. The first two parts were graded on a pass-fail basis. The ranking of applicants was based solely on scores from the structured oral interview. The physical ability test had four parts, of which the applicants were required to complete three parts in order to pass: 15 push-ups, 25 sit-ups, 6-foot standing broad jump and 25-second obstacle course. The structured oral interview had 30 questions, designed to test communication skills, decisionmaking and problem-solving skills, and reaction to stress. A team of two interviewers graded answers on their degree of correctness. There were four teams of interviewers. Both the physical ability test and structured oral interview had a statistically significant disparate impact on female applicants.

Two hundred three persons were placed on an eligibility list after the 1972 test: 199 men and 4 women. Ninety-five men and one woman were hired.

TPD, through TCSC, gave a policewoman test in January, 1974. Though ten women were interviewed, none was hired because of a financial squeeze.

After TPD abolished the separate entry level classifications and established the single category of patrol officer, TPD, through TCSC, administered a test in July, 1975, for patrol officer. This test did not have a statistically significant disparate impact on women. Two hundred seventy-three of 1244 applicants (22%) were female. Twenty-nine males and seven females (19.4%) were hired.

II

Pre-March, 1972 Discrimination

On the basis of the statistics and policies discussed above, the district court found intentional employment discrimination of the basis of sex from 1965 until March, 1972 and held that this conduct violated the Fourteenth Amendment and 42 U.S.C. § 1983. The statistical evidence of discrimination is glaring and alone suffices to support the district court's findings. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 399, 97 S.Ct. 1843, 1856, 52 L.Ed.2d 396 (1977); Detroit Police Officers Ass'n v. Young, 608 F.2d 671, 686 (6th Cir. 1979). TPD had not conducted any comparison studies of the job performances of male and female police officers. Therefore, it is abundantly clear that the discriminatory policies in hiring, classification, assignment, and promotion were grounded on impermissible and archaic traditional stereotypes. See City of Los Angeles, Dept. of Water v. Manhart, 435 U.S. 702, 98 S.Ct. 1370, 1375-76, 55 L.Ed.2d 657 (1978).

III

Post-March, 1972 Discrimination

The district court held that defendants did not violate Title VII, since all discrimination had ceased as of March 24, 1972. In making this determination, the district court focused on the validity of the 1972 examination. Because the test was found valid and job-related according to EEOC guidelines, 29 C.F.R. 1607.1, et seq., defendants were absolved of any Title VII violation.

The district court's ruling is erroneous as a matter of law, regardless of the validity of the 1972 examination. Though discriminatory acts occurring before March 24, 1972 do not contravene Title VII, Hazelwood School District v. United States, 433 U.S. 299, 309, 97 S.Ct. 2736, 2742, 53 L.Ed.2d 768 (1977), those acts are very probative evidence of the existence of post-March, 1972 discrimination, especially where the defendants' decisionmaking apparatus changes so little, as with TPD. Id. at 309 n.15, 97 S.Ct. at 2742; Detroit Police Officers Ass'n v. Young, 608 F.2d at 688. TPD continued the same discriminatory policies in hiring, classification, and promotion until November, 1974, in transfers until December, 1976, and in assignments until the time of trial. The facts as found by the district court compel the conclusion that the discrimination did not cease as of March 24, 1972. Because not all of defendants' employment decisions after March 24, 1972 were made in a wholly nondiscriminatory way, defendants did not present a legitimate defense to the Title VII claim. Detroit Police Officers Ass'n v. Young, 608 F.2d at 688. The discriminatory practices continued far too long after Title VII was amended to apply to municipalities. 4

Moreover, the district court erred in declaring the 1972 examination valid and job-related. TCSC developed the 1972 examination in conjunction with an industrial psychologist experienced in police selection. TCSC attempted to formulate a test that would be content and construct valid. 5 A job analysis was first prepared based on interviews with police officers and on personal observation. The job analysis defined the functions and demands placed on police officers.

The major flaw with the 1972 examination was the physical ability test. Defendants argued that the physical ability test was necessary because the height and weight requirements had been abolished. Undoubtedly, police officers must meet certain physical standards to be capable of performing their jobs safely and effectively. However, this obvious fact does not relieve defendants of their duty to formulate a nondiscriminatory test.

Defendants did not meet their burden of proving that the test was valid and job-related. 6 First, the job analysis discloses the need for some physical activity on the job, but does not specifically define the amount of physical strength or extent of physical exertion required. Dothard v. Rawlinson, 433 U.S. 321, 331-32, 97 S.Ct. 2720, 2727-28, 53 L.Ed.2d 786 (1977). As an official of TCSC stated, the test was developed through an "intuitive process." Hearing on Preliminary Injunction, p. 92. Second, the test was taken from the physical condition test in the manual on selection of public employees published by the Public Personnel Association. Tr. 107. The test had been used previously in other cities, but had never been validated. Defendants did not begin to attempt to validate the physical ability test until 1974, App. 28, Stipulation No. 127, and lacked any information before then on which to validate the test. 7 Third, there is no justification in the record for the types of exercises chosen or the passing marks for each exercise. Finally, after further study in 1974, the physical ability...

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