Chmill v. City of Pittsburgh

Decision Date20 March 1980
Citation488 Pa. 470,412 A.2d 860
Parties, 22 Fair Empl.Prac.Cas. (BNA) 742, 22 Empl. Prac. Dec. P 30,783 John S. CHMILL, David Hirosky, John G. Holtz, Thomas Pflum, David J. Puciata, Lawrence T. Yakich and Paul R. Myers, v. CITY OF PITTSBURGH, Pittsburgh Civil Service Commission and Stephen A. Glickman, Appellants.
CourtPennsylvania Supreme Court
OPINION OF THE COURT

ROBERTS, Justice.

This case presents the question of whether a municipal employer which has been found guilty of racial discrimination by a federal court may institute temporary remedial race-conscious hiring. Plaintiffs, white applicants for jobs as firefighters in the City of Pittsburgh, challenge the Pittsburgh Civil Service Commission's proposed use of race-conscious hiring procedures to correct racial discrimination in the Pittsburgh Bureau of Fire. Claiming they would have been hired but for the challenged procedures, these plaintiffs took statutory appeals from the Commission's proposal and also sought injunctive relief. These actions were consolidated before the Court of Common Pleas of Allegheny County which, after a hearing, denied all claims. On appeal a divided Commonwealth Court reversed, holding that the Commission's action was not authorized by federal employment discrimination law and violated state employment discrimination law, state civil service law and the equal protection clause of the United States Constitution.

We granted allowance of appeal to consider these important issues. Given the predicate of a federal judicial finding of discrimination as well as the important interests of federal-state comity and voluntary compliance with federal and state employment standards, we hold the use of race-conscious hiring is permissible in this case. Accordingly, we reverse the order of the Commonwealth Court and reinstate the order and decree of the court of common pleas.

I

In an important sense this case began in the federal courts. In 1974 the United States District Court for the Western District of Pennsylvania found that the Pittsburgh Bureau of Fire and the Pittsburgh Civil Service Commission had been discriminating in hiring against blacks in violation of federal law. Commonwealth of Pennsylvania v. Glickman, 370 F.Supp. 724 (W.D.Pa.1974). 1 The lawsuit was brought by the Commonwealth of Pennsylvania and by the certified class of "all black persons who presently have applications pending for the position of firefighter with the City of Pittsburgh Bureau of Fire, as well as all black persons who may apply for said position at any time in the future." Among the named defendants were the members of the Pittsburgh Civil Service Commission. The Commission is charged by state law with the obligation to test and certify to the City all candidates for firefighter. See Act of June 27, 1939, P.L. 1207, § 1, as amended, 53 P.S. § 23491 (Supp.1979). The plaintiffs claimed that the City's hiring practices, based on the Commission's testing procedures, were illegally discriminatory and sought an injunction against future discrimination. Plaintiffs alleged a history of minority under-representation in the Pittsburgh firefighting force, including a prior history of intentional limitation on the number of black firefighters. The plaintiffs also specifically attacked the Commission's 1972 testing procedures, claiming that the tests had an unjustifiable racially disproportionate impact.

Testimony in the federal district court reviewed in detail hiring practices in the Bureau of Fire from the 1930's onward. Undisputed evidence from Bureau officials, for example, described hiring practices from the 1930's through the 1950's when the City maintained two segregated black firehouses. This testimony acknowledged the existence of a patronage hiring system which, even long after the demise of the "separate but equal" doctrine continued to place a fixed limit on the number of jobs available to blacks. As a result of this and other practices the district court found that

"in 1950, when Pittsburgh's total population was approximately 675,000, 12% of its citizens and roughly 3% of its firefighters were black. In 1960, about 16% of the city's population and 3% of its firefighters were black. In 1973, the black percentage of the city's population had risen to 20%, and yet still only 3.9% of its firefighters were black."

370 F.Supp. at 730 (footnote omitted).

The district court next considered the results of the Commission's 1972 eligibility test, which included a written examination. The court found that 70% of the white applicants taking the written examination passed, while only 45.2% of the black applicants passed. On the basis of these test results and the past and current disparity between the percentage of black firefighters and the percentage of blacks in the city, the court found a prima facie case of racial discrimination. 370 F.Supp. at 730. 2 The court then placed the burden on the Commission to establish that its hiring practices were related to job performance. Because the Commission was unable to make such a showing, the district court found the Commission in violation of federal law.

As part of its remedial order, the district court directed the Civil Service Commission either to show the validity of its 1972 tests or to formulate a new job-related testing procedure. The court further ordered the Commission to take all necessary steps to recruit blacks to take whatever test the Commission ultimately devised. The court acknowledged the possibility of ordering racially-oriented hiring as a remedy for the found discrimination, but refrained from doing so. The court was obviously impressed by the good faith of the City officials and, in substantial part, refrained from ordering quota hiring because of its trust that the defendants would remedy the problem themselves. The court stated that "in the final analysis, responsibility for eradicating racial discrimination in the Pittsburgh Bureau of Fire rests upon the defendants alone." 370 F.Supp. at 736. Nevertheless, as a final note the court admonished: "It must, however, be made clear that the fact that at this stage of the proceedings the Court has rejected the option of imposing a racial hiring quota does not mean that it is foreclosed from instituting such a remedy in the future." Id. at 737.

As a result of the federal court's decision, the Commission abandoned its prior testing procedures. In June of 1974 the Commission administered a new hiring examination, comprised entirely of physical agility tests. The eligibility list based on the results of these tests remained in force through September 1975. Of the 163 firefighters hired during that time, 21 were members of minority groups. No challenge is made to that test or to any hiring based on it.

The present controversy concerns the examination subsequently administered by the Commission in August 1975. The 1975 examination, like that in 1974, tested only physical agility. It consisted of five or six separate events including a shuttle-run, hose-coupling and climbing. This examination had been used in other cities, including San Francisco, where it had been shown reliable in predicting minimum qualifications for firefighters. And the Commission, likewise, had previously found the examination to be a reliable test of minimum job qualification. Record at 83a.

As usually administered, the passing score on the examination, indicating minimal qualification, is 75. The test does not, however, predict differences in ability or qualification between those who pass with a score of 75 and those whose scores are higher. Record at 84a, 93a.

As required by the district court, the Commission conducted an extensive campaign to notify minority groups about the up-coming test. Approximately 1500 applicants took the examination, 522 of whom were minorities. Over 1160 applicants passed, approximately 360 of whom were minorities.

Although minorities passed the 1975 test in roughly the same percentage as whites, minorities did not place in substantial numbers at the top of the list. Thus, in March 1976, when the City requested the Commission to certify twenty candidates for new openings for firefighters, only three of those among the first twenty on the testing list were minorities. At that time, however, still only 55 members or 5% of the 1047 person Fire Bureau were black. Thus, although the black population of Pittsburgh had risen to 22%, the increase in black representation in the Fire Bureau had increased only one percent since the federal court's decision in Commonwealth of Pennsylvania v. Glickman.

Mindful of its existing obligation to comply with the federal court order to remedy the found racial discrimination, aware of its failure, despite good faith efforts, to alleviate in any significant way the existing racial imbalances in the Fire Bureau, and concerned over possible challenges to the use of test scores which, over the passing score of 75, could not be shown to be job-related, the Commission unanimously voted to certify ten white applicants and ten minority applicants. 3 Both groups were selected on the basis of their scores on the agility examination. The Commission took this action, in addition, in light of the mandatory racial hiring quotas that had then recently been imposed upon it by the federal court to correct proven...

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