Appeal from a judgment of the United States District Court for the District of Connecticut, T. F. Gilroy Daly, Judge, finding City of Bridgeport liable for employment discrimination in violation of Titles VI and VII of the Civil Rights Act of 1964 and the Revenue Sharing Act, and ordering broad affirmative relief. Affirmed in part, vacated in part, and remanded for modification.
Before Lumbard, Van Graafeiland and Kearse, Circuit Judges.
This employment discrimination suit, now before this Court for the second time, was commenced in 1975 in the United States District Court for the District of Connecticut on behalf of black and hispanic residents of Bridgeport, Connecticut, against the City of Bridgeport and other individuals responsible for hiring firefighters for the City of Bridgeport (hereinafter collectively the "City"). The plaintiffs contend that the City unlawfully discriminated in entry-level hiring practices for the Bridgeport Fire Department, in violation of Titles VI and VII of the Civil Rights Act of 1964 (the "Act"), 42 U.S.C. §§ 2000d to 2000d-4, and 2000e to 2000e-17 (1976), and the antidiscrimination provision of the State and Local Fiscal Assistance Act ("Revenue Sharing Act"), 31 U.S.C. § 1242(a) (1976). After trial, the district court ruled that a 1975 examination administered by the City violated Title VII. 454 F. Supp. 751 (D.Conn.1978). The court enjoined further use of the exam, and ordered various remedial measures, including requirements that only minority*fn1 candidates be hired until their number equaled the number of white candidates hired since 1975 and that thereafter one-half of all vacancies be filled by minority candidates until there were 125 minority firefighters in the force. 454 F. Supp. 758 (D.Conn.1978).
On appeal, this Court concluded that the opinions below provided an insufficient basis for review of the sensitive questions raised by "sweeping affirmative relief, including hiring quotas." 594 F.2d 306, 309 (1979) ("ADE v. Bridgeport"). Accordingly, the district court's order was vacated and the case remanded for further consideration. Following a limited hearing on remand, the district court reaffirmed its original determination that the City was liable under Title VII, determined that the City was also liable under Title VI and the Revenue Sharing Act, and modified in several respects the relief ordered. 479 F. Supp. 101 (D.Conn.1979.)
On this appeal the City and the intervening current firefighters challenge the findings of liability under Title VI and liability under Title VII prior to 1975, and they attack most aspects of the remedial order. Plaintiffs have cross-appealed, challenging two limited aspects of the relief granted. For the reasons below, we generally affirm the decision of the district court, but vacate the finding of liability under Title VI and remand portions of the remedial order for modification.
I. FACTS AND PRIOR PROCEEDINGS
Since 1936, the City's process of selecting its firefighters has included the giving of a written examination. In 1972, having had only two minority firefighters since 1936, having recently been sued for employment discrimination in the police department, and perhaps recognizing the approaching applicability of Title VII to municipalities, Bridgeport joined ten other Connecticut cities in hiring a consulting firm to develop a new exam for firefighters. The resulting exam was administered by the City in 1975. In order to qualify for firefighter positions, candidates were required to achieve a score in or above the 75th percentile of those taking the exam; they were then ranked according to their scores. In addition, a 1975 candidate was required to pass medical and physical agility tests, be over the age of eighteen, be a high school graduate or have earned high school equivalency certification, have resided in the City for at least one year just prior to taking the written exam, and hold a valid Connecticut driver's license.
Of the 661 white candidates who took the 1975 exam, 184, or 27.8%, passed. Of the 110 minority candidates who took the exam, eight, or 7.3%, passed.
The initial complaint in this action was filed on September 2, 1975, by the Association Against Discrimination in Employment and ten individual plaintiffs who are black or hispanic residents of Bridgeport, on behalf of themselves and all others similarly situated. The plaintiffs alleged that the City had engaged in a "policy and practice of discriminating on the basis of race, color and/or national origin against minority group members" and that minority group members "are currently being denied initial employment and promotion in the Bridgeport Fire Department." The original complaint attacked the 1975 test as well as the City's prior practices, asserting claims under 42 U.S.C. §§ 1981 and 1983 (1976), and Title VII; the complaint was amended several times, as plaintiffs withdrew the claims under §§ 1981 and 1983 and added allegations of violation of Title VI and the Revenue Sharing Act, and alleged the filing of charges with the Equal Employment Opportunity Commission ("EEOC"). Unless otherwise noted, references hereafter to the "complaint" are to the third amended complaint in its final form.
In July 1976, Bridgeport Firefighters for Merit Employment, Inc. ("BFME"), a non-profit organization, was permitted to intervene as a defendant and cross-claimant, representing "non-minority firefighters within the Bridgeport department of fire services." BFME's cross complaint sought relief from any injury which might be done to nonminority firefighters by the City as a result of any modification of the City's existing hiring or promotional practices.
B. Interim Hiring from the 1975 List
Shortly after the intervention of BFME, plaintiffs learned of the City's plans to make immediate appointments from the list of eligible candidates generated by the 1975 exam, and moved for a preliminary injunction against such appointments. The motion came before Judge Newman, who issued an order, on consent of all parties, permitting defendants to "make at any time appointments to the Bridgeport Fire Department of a number of firefighters equal to one-half the number for which the city warrants there is and will remain an immediate need and adequate funding." The order further stated that "in the event the Court should order a hiring plan, these appointments will be counted as part of such plan." Pursuant to this order 40 firefighters were hired commencing in October 1976.
In 1977 the City sought to hire additional firefighters from the 1975 list. On June 13, 1977, the parties agreed, before Judge Zampano, that the City could hire additional firefighters from that list under substantially the same conditions as those set forth in Judge Newman's order. Thereafter 44 additional firefighters were hired.
Of the 84 firefighters hired pursuant to the interim orders, 81 were white and three were minorities.
C. The Trial Court's Initial Decision
In 1978, following a substantial period of discovery, an eleven-day trial with respect to liability was held before Judge Daly. The court found that the City had violated Title VII. It observed that although minorities comprised 41% of Bridgeport's population the Bridgeport Fire Department, 428 members strong, had only one minority firefighter prior to the 1975 exam. The court found that the 1975 exam "did little to alter this imbalance": only eight of the 192 candidates who passed it were members of minority groups, and the pass rate for nonminority candidates was more than three times that for minority candidates. The court concluded that these statistics left "no doubt that the firefighters exam had a disparate impact on the named plaintiffs and the class of persons they represent." 454 F. Supp. at 754.
As to the merits of the test itself, the court found that it was doubly flawed. First, the exam had no rational relationship to the skills needed in firefighting. The test was developed, by the consulting firm retained for that purpose, without compiling any list of critical work behaviors and with no effort to rank the rated skills in terms of their importance to the job.*fn2 454 F. Supp. at 755-56. Indeed, in handing down his order on remedy, Judge Daly noted that the Bridgeport Fire Chief had testified at the remedy hearing "that there might be an inverse correlation between those who passed the exam and those who are most qualified to be firefighters." Id. at 759. For example, while the Fire Chief stated that superior physical ability and intelligence are the two most important attributes, the 1975 hiring process used simply a pass-fail physical agility test, and the 1975 written exam weighed negatively any high scores on comprehension questions, thus "penalizing those who indicated that they were "inquiring, curious, analytic, exploring, intellectual, reflective, incisive, investigative, probing, logical, scrutinizing, theoretical, astute, rational (and) inquisitive.' " Id.*fn3 Ironically, the court noted that the 1975 exam "represented a decided improvement over some of the earlier civil service exams employed by Bridgeport." 454 F. Supp. at 757.
The second flaw in the 1976 exam lay in the City's selection of 12 as the minimum passing score, a choice that the court found "bore no relation to "normal expectations of proficiency.' " Id.*fn4 (quoting 19 C.F.R. § 1607.6 (1977)). The court found that lowering the passing score from twelve to six would have significantly alleviated the discriminatory impact of the exam.
The court concluded that the use of the 1975 exam could not be continued, and it awarded a variety of relief to minority candidates for firefighter positions. Because it had found the 1975 exam not job related, the court began "with the premise that the firefighters exam administered in 1975 did not distinguish qualified from unqualified applicants." 454 F. Supp. at 759. Since testimony showed that the 84 firefighters hired while the case was pending were adequately performing their duties and since their scores on the non-job-related exam did not demonstrate that they were any better qualified than those who failed, the court found it "fair to assume that all of the applicants who are able to pass the same agility test and medical examination will be capable of performing at least as well as the eighty-four men already hired." Id.
With the goal of "remedying the disparate impact of the firefighters exam by placing those frustrated applicants on a parity with the eighty-four men who have been hired," 454 F. Supp. at 759-60, the court ordered the immediate hiring of "Blacks and Hispanics who filed applications with the civil service office for the 1975 firefighters exam and who pass both the agility test and the medical examination." These applicants were also awarded backpay and seniority retroactive to October 1976. Once the 1975 minority applicants were hired, the City would have been required to make all future selections from a pool of qualified minority candidates until the number of minority candidates hired since 1975 equaled the number of white candidates hired since that time, and then to hire one-half of all firefighters from the minority pool until the number of minority firefighters totaled 125.
Defendants appealed to this Court, attacking both the finding of liability and the remedy. They contended, inter alia, that their selection of an employment test was an administrative decision that could not be overturned if supported by substantial evidence, and that the relief ordered amounted to the imposition of a quota that was unconstitutional, unlawful under § 703(j) of Title VII, and unwarranted by the facts. Plaintiffs cross-appealed, arguing that the district court had improperly limited backpay to those minority candidates who had taken the exam in 1975 and were to be appointed pursuant to the court's order, rather than including minority candidates who had taken the exam in 1975 but no longer desired appointment or no longer met the prerequisites and minority individuals who had been deterred from applying by defendants' past discriminatory practices.
This Court recognized that "no manner of legal argument can justify" the virtual absence of minorities on the force, 594 F.2d at 308, but found the district court's opinions trebly inadequate to permit resolution of the challenges to the relief ordered. First, it was not clear that the district court had considered any of this Court's recent opinions dealing with quotas. We offered the following guidance with respect to those opinions:
Looking to the decisions of our own court, it is reasonably clear that for some of its members quota relief can constitutionally be justified only if necessary to redress "a clear-cut pattern of long-continued and egregious racial discrimination,' and if the reverse discriminatory effects of the quota do not fall upon "a small number of readily identifiable' non-minority persons. Kirkland v. New York State Department of Correctional Services (520 F.2d 420, 429 (2d Cir.), rehearing denied, 531 F.2d 5 (2d Cir. 1975), cert. denied, 429 U.S. 823 (97 S. Ct. 73, 50 L. Ed. 2d 84) (1976)).
594 F.2d at 310. Thus we instructed the district court to consider the relevant authorities expressly and to make appropriate findings, answering such questions as (a) whether its ruling on liability was based on discrimination before or after 1972, and on what theories it relied, and (b) why the quota required the hiring of minorities in a ratio that exceeded their representation in the group of applicants who took the 1975 test.
Second, it was not apparent what effect the district court had given to the two pretrial orders that had permitted the City to hire 84 firefighters from the 1975 list. Various interpretations were possible. Plaintiffs contended, for example, that the parties had impliedly agreed that if the test were held invalid, the hiring of 84 blacks and hispanics could immediately be ordered. BFME, on the other hand, contended that plaintiffs had agreed to the interim orders in order "to avoid an early hearing and in exchange for guaranteed funding for positions which might, but not necessarily would, be assigned to minority group members." Id. at 312 (footnote omitted). The City contended that the interim orders immunized it from any backpay liability. Since the district court had not explicitly considered the implications of the interim orders, we instructed it to do so on remand.
Finally, we noted the district court's stated view that the disparate impact of the exam could have been significantly alleviated by lowering the passing score. While declining to express a view as to "whether an employer who selects a cut-off score and defends it until the test has been found not job-related can then avoid the implications of that finding by adjusting the passing score to a point where the disparate impact is arguably insignificant," 594 F.2d at 313 n.20, we directed the district court to explore, on remand, the possibility
that some plan which accepts the reduction of the passing mark to six and treats the list as a qualifying list without ranking, subject to passing physical and medical examinations, would, as an interim measure, afford substantial minority representation and be acceptable as part of an overall settlement that the parties may still discover to be the most sensible course of all.
II. PROCEEDINGS LEADING TO THE PRESENT APPEAL
A. Structuring of Issues for Consideration on Remand
On remand, the parties expressed varying views as to the proper scope of the new proceedings. BFME, apparently envisioning a completely new trial of all the issues in the case, served on plaintiffs requests for more than 180 admissions of "fact," ranging from the basic concept of civil service hiring, to the validation of the 1975 test,*fn5 to the state of employment discrimination law in this Circuit. Plaintiffs and the City set considerably narrower sights. The City stated that it wished to submit further evidence on three issues that it described as follows:
1. The effect on disparate impact if the passing score is reduced from 12 to 6 and differential adjustments are made.
2. Adopt a plan which accepts the score reduction and treats this list as a qualifying list without ranking, subject to passing physical and medical examinations, which would afford substantial minority representation on the Fire Department.
3. Whether the City has a long history of notorious discriminatory practices in its hiring policies?
Plaintiffs, expressly reserving their position that the City could not avoid liability "by manipulation of the passing score after having been found to have discriminated," stated that they had no objection to presentation of further evidence on the City's first and third issues, nor on the second to the extent that it simply reflected the City's position with respect to remedy. Plaintiffs proposed, in addition, to submit evidence with respect to the current manpower needs and vacancies within the fire department, and with respect to Title VI. As to the latter, plaintiffs stated as follows:
After the trial in this case the Supreme Court addressed issues relating to Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d, et seq., issues which are raised in the pleadings in this case. The record is not clear with respect to the relevance of Title VI to this case, in that there is no evidence relating to receipt of federal funds by the City other than Revenue Sharing funds. The record should be developed on this issue, by having the record reflect the City's receipt of funds, in order to avoid the necessity for a remand at some future time.
In a prehearing order, the district court reviewed the directions given by this Court on the first appeal and determined that a broad-ranging evidentiary hearing was uncalled for. Directing that any additional evidence be limited to that suggested by this Court's opinion and that necessitated by the passage of time since the district court's original remedy order, Judge Daly ruled that the issues as to which supplementary evidence would be permitted were the effect of the interim hiring orders, the effect of lowering the passing score on the 1975 exam, and the present personnel needs of the fire department. Discovery on other issues was denied. The court stated that further findings with respect to the appropriateness of quota relief would be based on the prior record.
B. The Supplementary Presentations of Evidence
An evidentiary hearing was held, limited to the three issues specified by the district court. The defendants offered expert testimony as to various candidate selection methods by which the disparity in pass rates on the 1975 test could be eliminated, assuming the passing level were lowered from twelve to six.*fn6 Plaintiffs offered expert testimony to show that lowering the passing score from twelve to six would not eliminate the disparate impact of the exam because it would merely decrease the disparity in pass rates from 20.5 percentage points to 14.2 percentage points, still a highly significant statistical difference.*fn7 The defendants' expert conceded that merely lowering the test score, without also adopting one of the methods he espoused, would not eliminate the disparate impact of the exam.
Testimony on issues other than those specified in the court's prehearing order was rejected. Thus, when the defendants proffered the testimony of a statistician and a chart to show that the percentage of minorities in the Bridgeport labor market of persons over the age of 18 with a high school diploma would not exceed 18%, the court sustained plaintiffs' objections on the ground that this issue had been fully litigated at trial and the evidence was beyond the scope of the hearing. Similarly, when plaintiffs called the City's Comptroller to testify on the subject of the City's use of federal funds in the fire department, to support their Title VI claim, the court sustained the City's objection that such testimony would be outside the scope of the hearing. The court stated, after ascertaining that the City's budget was published, that judicial notice would be taken of the budget.
It does not appear that the entire published budget was ever presented to the court. Subsequent to the hearing, plaintiffs filed the affidavit of a paralegal employed by plaintiffs' counsel, annexing photocopies of four pages described as part of the City's "Public Employment Employee Roster." The affidavit stated that these pages showed that in 1971 and 1972, "some federal money," provided under the Emergency Employment Act, "was used by the City to hire personnel for the Fire Department."
C. The Decision on Liability
Following the submission of such supplementary evidence as was allowed, the district court made detailed findings of fact and set forth its conclusions of law.
The court found that, even had there been no additional evidence of discrimination, the statistical evidence alone would have established a prima facie case of discriminatory impact. In 1975, when black and hispanic persons comprised approximately 41% of the labor force, the City's fire department had 427 whites, one hispanic, and no blacks. In its entire history prior to 1975, the City had employed only two minority firefighters, one of them hired in 1938. Following the institution of the present suit, the City had, pursuant to the two orders permitting interim hiring, hired 84 firefighters; 81 of them were white. The court noted that the City's hiring of minorities approached the " "inexorable zero.' " 479 F. Supp. at 109 n.9, quoting International Brotherhood of Teamsters v. United States, 431 U.S. 324, 342 n.23, 97 S. Ct. 1843, 1858 n.23, 52 L. Ed. 2d 396 (1977).
"Not surprisingly," the court found, the City had a strong reputation for discrimination in employment. Indeed, its "reputation for employment discrimination against black and hispanic persons was "by far the worst' of all cities in Connecticut." 479 F. Supp. at 106. The court found that the City's reputation, as well as certain of its actions, described below, deterred minority persons from even applying for City employment: "This reputation created the attitude in the black community that "if you're black, just don't apply because you won't get the job.' " Id.
As to the merits of the 1975 test, the court found again that it was not job related and that it had a disparate impact on minority candidates. The court expressly incorporated its original findings with respect to the invalidity of the test, see Part I. C. supra. In addition the court found that certain parts of the exam were significantly discriminatory against blacks, and that certain of the test score data were improperly used. If adjustments were made for the improperly used data, using the 1975 test as a predictor of job performance would be " "about as good as tossing a coin.' " Id. at 110 n.10, quoting testimony of Dr. John Peck.
In answer to one of the questions posed by this Court on the first appeal, Judge Daly found that merely reducing the passing level on the 1975 exam from twelve to six would not spare the City liability for unlawful discrimination. First, the court concluded, on the basis of testimony from experts on both sides, that such a reduction would decrease, but not eliminate, the disparity between the pass rates of whites and minorities; and the resulting disparity would still prove discriminatory impact. The court also concluded that it would be inappropriate for the court to order hiring on the basis of, and to undertake administration of, an employment test that had been proven to have no relation to job skills. Finally, the court found that even if the disparate effects of the 1975 test could be eliminated by lowering the passing level, the City could not avoid liability for employment discrimination, because it had "engaged in a policy and practice of discrimination extending well beyond the 1975 exam." Id. at 109-10 n.10.
The court found that the City had made little or no effort to recruit minority persons for the fire department. Noting that, despite its awareness of its discriminatory policies and reputation, the City had not adopted any affirmative action program until it was forced to do so in order not to lose some $7 million in federal funds, the court found that "no voluntary efforts have been made by the City to comply with its own affirmative action goals for the Fire Department." Id. at 113 n.12. The court found that "absolutely no attempts were made to recruit minority applicants" for fire department examinations prior to 1972, id. at 106, and that no significant recruiting efforts were made by the City thereafter. Id. at 107. The court found that the City's pre-1972 failure to recruit minority persons for the fire department was deliberate.
Indeed, the court found that the City had "engaged in a continuing pattern and practice of actively deterring minority persons who have sought to become firefighters." Id. at 104-05. For example, it found that, while a coalition of community minority groups, coordinated by a local official of the United States Labor Department, was attempting to recruit minority candidates for the fire department, the City probably impeded these efforts. The City Civil Service Commission's personnel director furnished the coalition with a notice of the 1975 examination, and stated that familiarity with fire department tools, knowledge of first aid and knowledge of the geography of Bridgeport would be covered on the test. The coalition then, in sessions open to anyone, regardless of race, gave applicants training in these subjects. But the subjects covered by the 1975 test bore no resemblance to these areas; there were no questions involving geography, or first aid, or the use of firefighting equipment. Id. at 107-08. The understandable reaction of the minority applicants who had studied these rather pertinent subjects, only to be confronted with a test that did not mention them, was, " "(t)he City has fooled us again.' " Id. at 108.
The court found that the City had also engaged in several acts of discrimination against individual minority candidates. Plaintiff Ismael Pomales, for example, took the 1975 exam and passed it. However, he did not receive any notification that he had passed until he was informed that his name was being removed from the eligible list because he had not appeared for the physical agility test that those who passed the written exam were required to take. Other candidates were prevented from even taking the written test. One such candidate, class member Elias Castro, an hispanic with four years' experience as a firefighter in the United States Air Force, attempted to file his application with the Civil Service Commission in the middle of the afternoon on the last day for filing applications. He was told that it was too late. He was not allowed to speak to the superior of the person who told him it was too late, and he was not informed of any means by which he could appeal or lodge an official complaint. He did not get to take the 1975 exam. Another candidate, plaintiff Harmin Linares, filed his application before the deadline and was told that a notice would be mailed to him stating the date and time of the exam. He never received such a notice, and he did not get to take the exam.
Finally, the court found that the City's discrimination against minorities was of long duration. It reviewed the written firefighter exams that the City had given in 1965, 1968, and 1971. It found that none of these tests was job related and that all had had a disparate impact on minority applicants. For all these pre-1975 tests combined, those identified as nonminority candidates*fn8 had passed at the rate of better than one out of every three; of eighteen identified minority applicants, only one had passed. Id. at 108 n.9.
Thus, the court concluded that the City had "engaged in a policy and practice of discrimination against black and hispanic persons relative to entry-level hiring in the Bridgeport Fire Department," id. at 111; see id. at 111-12; and that its pattern of discrimination was " "clear-cut (,) long-continued and egregious.' " Id. at 112.
On the basis of these findings the court concluded that the City had violated Title VII, which prohibits discrimination in employment on the basis of race. Noting that the Title VII had not become applicable to municipalities until March 24, 1972, the court found that the combination of the statistical evidence, the City's use after that date of the results of the discriminatory examination held in 1971, and the City's policy and history of discrimination, including its deliberate failure to recruit minority applicants, compelled the conclusion that the City's violation of Title VII dated back to March 24, 1972.
Relying on many of the above findings, the court concluded also that the City's discriminatory policies and practices violated Title VI, dating back to January 1, 1971. Stating that Title VI prohibits such discrimination in " "any program or activity receiving Federal financial assistance,' " id. at 111, quoting 42 U.S.C. § 2000d ...