Association Against Discrimination in Employment v. City of Bridgeport

• Citation: 594 F.2d 306
• Decision Date: 23 February 1979
• Docket Number: 414 and 595,D,Nos. 413,s. 413
• Parties: 19 Fair Empl.Prac.Cas. 115, 19 Empl. Prac. Dec. P 8985 ASSOCIATION AGAINST DISCRIMINATION IN EMPLOYMENT et al., Plaintiffs- Appellees- Cross-Appellants, v. CITY OF BRIDGEPORT et al., Defendants-Appellants, and Bridgeport Firefighters for Merit Employment, et al., Intervening Defendants-Appellants. ockets 78-7400, 78-7406 and 78-7431.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 306

594 F.2d 306

19 Fair Empl.Prac.Cas. 115, 19 Empl. Prac.

Dec. P 8985

ASSOCIATION AGAINST DISCRIMINATION IN EMPLOYMENT et al Plaintiffs- Appellees- Cross-Appellants, v. CITY OF BRIDGEPORT et al., Defendants-Appellants and Bridgeport Firefighters for Merit Employment, et al Intervening Defendants-Appellants.

Nos. 413, 414 and 595, Dockets 78-7400, 78-7406 and 78-7431.

United States Court of Appeals Second Circuit.

Argued Dec. 18, 1978.

Decided Feb. 23, 1979.

Raymond B. Rubens, Bridgeport, Conn., for defendants-appellants City of Bridgeport, et al.

J. Daniel Sagarin, Bridgeport, Conn. (Sagarin & Rutkin, Bridgeport, Conn., of counsel), for intervening defendants-appellants Bridgeport Firefighters for Merit Employment, Inc., et al.

David N. Rosen, New Haven, Conn. (Michael P. Koskoff, Bridgeport, Conn., of counsel), for plaintiffs-appellees-cross-appellants Association Against Discrimination in Employment, et al.

Before FEINBERG, MULLIGAN and GURFEIN, Circuit Judges.

FEINBERG, Circuit Judge:

This appeal arises out of a Title VII class action in the United States District Court for the District of Connecticut, brought by 10 black and hispanic applicants to the Bridgeport Fire Department, and by an organization representing plaintiffs' interests, against various municipal officials and agencies and the City of Bridgeport. ¹ In the district court, several incumbent white firefighters and an organization they had formed in response to the action were allowed to intervene as defendants. Defendants and the intervenors appeal from an order of Judge T. F. Gilroy Daly that invalidated an examination for the job of firefighter, enjoined defendants from using that test, and directed them to hire minority applicants for that job in ratios and under conditions specified in the order. The judge's two opinions, one dealing with liability and the other with remedy, are reported at 454 F.Supp. 751, 758. Plaintiffs cross-appeal, complaining of the judge's order in various respects. For reasons set forth below, we remand the case to the district court for further consideration in accordance with this opinion.

I.

In February 1972, members of the Bridgeport Civil Service Commission, as is the case here, were sued in an action under 42 U.S.C. §§ 1981 and 1983 by black and Puerto Rican applicants for positions in the Bridgeport Police Department, who claimed that the Department's employment policies discriminated against them. ² In March 1972, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., became applicable for the first time to states and political subdivisions as employers. ³ Perhaps motivated by these two events at least in part, the City of Bridgeport joined in March 1972 with 10 other Connecticut municipalities to hire a supposedly expert firm to develop a racially unbiased examination for the position of firefighter. Such action was well advised in view of the lack of blacks and hispanics in the Fire Department. In 1975 when these groups comprised about 41 percent of Bridgeport's labor force, its Fire Department had 427 whites, one hispanic and no blacks. No manner of legal argument can justify this unpleasant fact. From 1972 to 1975, while the new test was being developed, defendants gave no tests and hired only 28 white firefighters from a 1971 list, apparently now discredited. In March 1975, the new test was administered to over 700 people, and defendants created a list of almost 200 successful applicants ranked in order. Only eight minority applicants were on the list.

In September 1975, plaintiffs filed the complaint in this case alleging that the discriminatory hiring and promotion practices of the Bridgeport Fire Department violated Title VII. ⁴ The intervening defendants were allowed in the litigation in July 1976. Shortly thereafter, when the City indicated that it wanted to begin hiring firefighters from the 1975 list, plaintiffs moved for a preliminary injunction, challenging the 1975 test as discriminatory. After a chambers conference before Judge Jon O. Newman, all the parties consented to an order which allowed defendants to fill one-half of the then current vacancies, and the City hired 40 firefighters from the list. In June 1977, the parties consented before Judge Robert C. Zampano to a similar order, which authorized the hiring of 44 more firefighters.

In October 1977, plaintiffs were certified as representatives of the class of all black and hispanic victims of defendants' alleged employment discrimination. Thereafter, Judge Daly conducted an 11-day nonjury trial on the issues of liability, at which a number of expert witnesses testified. In July 1978, the judge ruled in favor of plaintiffs. 454 F.Supp. 751. The judge noted that plaintiffs could prove a prima facie violation of Title VII by showing either that defendants had intentionally treated minorities differently or that the 1975 test had a disparate impact on them. See, e. g., Furnco Construction Corp. v. Waters, --- U.S. ----, 98 S.Ct. 2943, 2952-53, 57 L.Ed.2d 957 (1978) (Marshall, J., concurring and dissenting); International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335-36 n.15, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). The judge found for plaintiffs on the latter theory relying on the following data:

(A)t the time the firefighters exam was given, minorities constituted 41% Of Bridgeport's population, but only 0.2% Of its Fire Department.

The firefighters exam did little to alter this imbalance. . . . In terms of the pass rate, minority candidates passed with one-third the frequency of nonminority candidates; a 9% Minority pass rate as compared with a 27% Nonminority pass rate.

454 F.Supp. at 754. Since disparate impact was shown, the judge held that defendants had the burden of proving that the 1975 test was substantially job related. See Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977); Vulcan Society v. Civil Service Commission, 490 F.2d 387, 393 (2d Cir. 1973). Judge Daly found that defendants did not meet this burden, because of deficiencies in preparation of the test and in selection of the passing score. The judge also noted that defendants' efforts to recruit minorities to take the examination had been unsatisfactory, although he observed that

there appears to be no bad faith on the part of defendants in using the exam or in selecting (a) respected management consulting firm . . . to develop the exam. Defendants made a substantial effort to obtain an exam that would withstand judicial scrutiny.

454 F.Supp., at 757. Since the judge found for plaintiffs on the theory of disparate impact, he did not reach any claim of intentional discrimination.

After a one-day hearing devoted to remedy issues, the judge issued a "Remedy Order," which granted sweeping affirmative relief, including hiring quotas. 454 F.Supp. 758. In addition to declaring the 1975 test invalid and enjoining its use in the future, the judge ordered that the City immediately hire all blacks and hispanics who had filed applications to take the 1975 exam, if they met physical, residency and other objective requirements. Hiring of only minority applicants would continue until the number hired since 1975 equalled the number of whites hired since 1975. Thereafter, white and minority applicants would be hired on a 1:1 ratio until the number of minority firefighters in the Department totalled 125. ⁵ These provisions were incorporated into an order, dated August 4, 1978, which is the subject of the appeal and cross-appeal now before us. ⁶

II.

On the main appeal, defendants first strenuously urge that the district judge erred in finding the 1975 test discriminatory. ⁷ Defendants claim that the judge misconstrued the burden of persuasion that they had to meet, that the judge improperly adopted as a matter of law a theory of employment testing that had been justifiably rejected by the consulting firm, and that defendants' selection of an appropriate employment test was an administrative decision that cannot be overturned if there is substantial evidence to support it. With regard to the remedy provisions, defendants particularly attack the imposition of a quota, which they contend is unconstitutional, barred by section 703(j) of Title VII, 42 U.S.C. § 2000e-2(j), and unwarranted on the facts of this case. Plaintiffs rejoin in kind, arguing that the judge applied proper legal standards in determining the unlawfulness of the 1975 test, that his factual findings were not clearly erroneous, that the hiring quota was an appropriate, indeed moderate, exercise of discretion, and that the provision for monetary relief did not go far enough. ⁸

Included in these contending arguments are issues of the gravest kind, which have been the subject of intensive scrutiny in this and in other courts, and have not yet been definitively decided at the highest level. See, e. g., Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978); DeFunis v. Odegaard, 416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974). See also Davis v. County of Los Angeles, 566 F.2d 1334 (9th Cir. 1977), cert. granted, 437 U.S. 902, 98 S.Ct. 3087, 57 L.Ed.2d 1132 (June 19, 1978) (argued Dec. 5, 1978, see 47 U.S.L.W. 3406); Weber v. Kaiser Aluminum & Chemical Corp., 563 F.2d 216 (5th Cir. 1977), cert. granted, --- U.S. ----, 99 S.Ct. 608, 58 L.Ed.2d 676 (1978). We recognize, however, our obligation to resolve these questions as best we can, guided by the decisions to date in the Supreme Court and by our own precedents. However, the state of the record as it comes to us in this case gives us pause, for the following reasons:

1. In his brief memorandum "Remedy Order," issued after a short hearing on remedy issues, the district judge did not refer to any of this court's recent decisions dealing with quotas, e. g., EEOC v. Local 638, 565 F.2d 31 (1977); EEOC v. Local 14, International Union of Operating...