The opinion of the court was delivered by: Marshall, District Judge.
PRELIMINARY INJUNCTION ORDER
This case having come before the, court for a consolidated
hearing on plaintiffs' motions for preliminary injunction, and
the Court having heard the testimony of the witnesses of the
parties for approximately 17 days and having heard oral
arguments, and the court having considered the oral and
documentary evidence presented, the briefs, and arguments of
counsel; and having made findings of fact and conclusions of
law, and being of the opinion that this preliminary injunction
should be entered,
It is hereby ordered, adjudged and decreed:
1. The defendants City of Chicago, James M. Rochford,
Superintendent, Chicago Police Department, William E. Cahill,
Reginald Dubois, Quentin J. Goodwin, Commissioners, Chicago
Civil Service Commission, and Charles A. Pounian, Secretary,
Chicago Civil Service Commission, and their officials, agents,
employees, and all persons and organizations in active concert
or participation with them are enjoined until further order of
court from engaging in any act or practice which has the
purpose or effect of discriminating against any employee of,
or any applicant or potential applicant for employment with
the Chicago Police Department because of such individual's
race, sex, color, or national origin, and specifically from:
(a) Failing or refusing to recruit, hire,
assign and promote black and Spanish-surnamed
persons on an equal basis with whites of
non-Spanish origin,
(b) Failing or refusing to recruit, hire,
assign and promote women on an equal basis with
men,
2. No further certifications for appointment to the rank of
Patrolman for the Chicago Police Department will be made from
the current Patrolman's eligibility list based on the 1971
Patrolman's Examination, until further order of court.
Defendants shall not administer or utilize police entrance
examinations of the type administered in 1971.
3. No further use shall be made of a background
investigation or the results thereof as a standard of
appointment to the rank of Patrolman for the Chicago Police
Department unless objective criteria are established and
validated as job related or shown to have no adverse racial
impact.
4. No further certifications for promotion to the rank of
Sergeant for the Chicago Police Department will be made from
the current eligibility list based on the 1973 Sergeant's
Examination, until further order of court. Defendants shall
not administer or utilize sergeant promotion examinations of
the type administered in 1973.
5. No further use shall be made of the Chicago Police
Department efficiency ratings as a standard or factor for
promotion within the Chicago Police Department unless
objective criteria are established and validated as job
related or shown to have no adverse racial impact.
6. The classification Patrolman will be discontinued and the
classification Patrol Officer (or some similar term) will be
substituted therefor, and women shall henceforth be recruited,
hired and assigned to positions in the Chicago Police
Department in accordance with the same standards and
procedures and on an equal basis with men.
7. This preliminary injunction shall issue without bond and
remain in effect until further order of this court.
These consolidated civil rights actions challenge the hiring
and promotion practices of the Chicago Police Department
(hereafter the "Department"), which, it is said, impermissibly
discriminate against women, blacks and Spanish surname
Americans (hereafter "Hispanics"). The actions are here under
42 U.S.C. § 1981 and 1983 and their jurisdictional
counterparts, 28 U.S.C. § 1331, 1343(3) and 1343(4), and
42 U.S.C. § 2000e et seq., and 28 U.S.C. § 1345.
Other claims are and have been made by the various
plaintiffs. In 70 C 2220, Renault Robinson and the
Afro-American Patrolmen's League assert First Amendment
violations arising out of alleged discriminatory and chilling
disciplinary action taken by certain of the defendants against
Robinson and members of the League for which they seek money
damages as well as injunctive relief. In 73 C 1252 Tadeo
Camacho and his fellow plaintiffs alleged (and settled by
consent decree entered June 28, 1974) that certain of
defendants' height, weight and medical requirements for
patrolman recruits impermissibly discriminated against blacks
and Hispanics. In 73 C 2080 the Government complains that
defendants' police employment and promotion practices
contravene not only 42 U.S.C. § 2000e-2, but also the
regulations and guidelines of the Department of Justice and the
Law Enforcement Assistance Administration which provide for
equal employment opportunity in federally assisted programs and
activities, 28 C.F.R. § 42.201, et seq., and 42.-301, et seq. But
the claims which are peculiar to particular plaintiffs have not
detracted from the common questions of law and fact which
attend the allegations of discriminatory hiring and promotion
practices. Accordingly, the cases have heretofore been
consolidated pursuant to Rule 42(a) of the Federal Rules of
Civil Procedure.
Since under Illinois law defendants can appoint patrolmen
and promote sergeants only from the 1971 and 1973 rosters
respectively, Ill.Rev.Stat. 1973, ch. 24, ¶ 10-1-1 et seq., to
grant plaintiffs' motions will be to restrain defendants from
making any patrol appointments or sergeant promotions pending
decision of the case on the merits. In recognition of these
consequences as well as for the purpose, as they say, of
preliminarily remedying past discrimination, plaintiffs urge
that the preliminary injunction permit defendants to appoint
and promote from the challenged rosters pursuant to a suggested
formula which will result in the disproportionate appointment
and promotion of blacks and Hispanics. Most outspoken in their
opposition to and criticism of the formula or "quota" are the
intervening defendants who are a group of patrolmen in the
Department who took the 1973 sergeants' exam and who hold
positions on the 1973 sergeants' roster. They assert that any
decree which orders or approves promotion of a patrolman
because of his race will effectively deprive them of their
property without due process of law and deny them equal
protection of the laws in violation of the Fifth and Fourteenth
Amendments.
A motion for a preliminary injunction is always addressed to
the court's discretion. Plaintiffs must establish the
likelihood of ultimate success on the merits. They must show
that they or those whom they represent, will suffer
irreparable harm if preliminary relief is not granted. They
must also show that the consequences which will flow to the
defendants if preliminary relief is granted, do not outweigh
the harm to the plaintiffs if it is denied.
Plaintiffs have clearly met the first two of the standards.
For the reasons hereafter stated, they have established a
strong likelihood of ultimate success. And it cannot any
longer be questioned that practices which deny members of
minority groups an equal opportunity to compete for employment
inflict a terrible and irreparable injury upon them.
However, the potential consequences of the requested
preliminary restraint to defendants and those whom they
represent are great. The Department, in deference to this
action brought by the Government on August 13, 1973, has
refrained from appointing patrolmen or promoting sergeants for
over a year during which more than 700 patrolman and 50-100
sergeant vacancies have accrued. The vacancies will be frozen
by a preliminary decree and they will undoubtedly increase
through normal attrition during that same period. Eventually,
the shortage of patrol officers will become critical in a city
the size and complexity of Chicago.
Thus, were the issues which form the crux of the pending
motions a long time from final resolution, the scales might
tip against granting preliminary relief. The parties have,
however, indicated that they have pretty well exhausted their
proof on the question of the "validity" of the 1971
patrolman's exam and the 1973 sergeants' exam. Rule 65(a)(2),
F.R.Civ.P. If that be so, the findings and conclusions
rendered here on those questions of "validity" will become the
final findings and conclusions on those issues. In that
posture of the case, the injunctive relief plaintiffs now
seek would be required as the only effective remedy pending
development by defendants of valid testing procedures.
Furthermore, the evidence is that defendants are already
well along in the development of a new patrol officers'
examination which, hopefully, will meet the requirements of
law. Thus the further hiatus in patrol hiring occasioned by
the grant of preliminary relief should not be lengthy.
Finally, while this memorandum and the accompanying
preliminary injunction do not embrace plaintiffs' quota or
formula solution to the vacancy problem, it has been deferred,
not rejected. An application by the parties upon a showing of
necessity for interim relief will be entertained.
Compare, Vulcan Society, etc. v. Commission, 360 F. Supp. 1265,
1278 (S.D.N.Y. 1973).
Therefore, for the following reasons, which will stand as
written findings and conclusions under Rule 52(a), F.R.Civ.
P., a preliminary injunction will issue restraining defendants
from making patrolman appointments to the Chicago Police
Department from the 1971 patrolman eligible list, from
continued use of the present method of background
investigation regarding patrolman appointments and from making
any further promotions to the rank of sergeant from the 1973
sergeants' eligible list.
PLAINTIFFS' CASE IN CHIEF
Plaintiffs' case in chief developed along lines which have
become commonplace in litigation of this type. See, Griggs v.
Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158
(1971); Vulcan Society, etc. v. Commission, supra, aff'd
490 F.2d 387 (2d Cir. 1973); NAACP v. Beecher, 504 F.2d 1017 (1st
Cir. No. 74-1067, Sept. 18, 1974); Shield Club et al. v. City
of Cleveland, 370 F. Supp. 251 (N.D.Ohio, 1972). The following
was proved.
As of August, 1973, there were approximately 115 women
employed in sworn (or officer) positions by the Department out
of 13,500 sworn personnel. Thus women, while comprising 50% or
more of the persons eligible by residence for employment with
the Department, constituted only .85% of the Department's
officer complement. At the time of trial, the number had risen
to approximately 160 or 1%.
It is undisputed that prior to the commencement of the
Government's action, women in the Department were employed,
assigned and promoted on a segregated basis. They were not
permitted to compete with men on entrance examinations. Their
eligibility was limited to a relatively few positions as
"police women" and "police matrons." They were given limited
responsibility, primarily for processing, searching and care
and custody of women prisoners, and a limited amount of youth
work. They were not used for patrol work.
At the time of the Government's action, there was one
sergeant of police women, and one lieutenant of police women.
Women were allowed to compete with men for promotions purposes
for the first time on August 18, 1973, after the Government's
action had been brought.
Defendants are presently in the process of developing what
they have denominated as a "unisex" entrance examination under
which women will be examined and compete with men for patrol
appointments.
Patrolmen must reside in the City of Chicago, the population
of which is approximately 60% white, 33% black and 7%
Hispanic. At the present, the Department's sworn (or officer)
personnel are approximately 83% white, 16% black and 1%
Hispanic. In the mid-1960's when the black population of the
City was approximately 25%, the black sworn personnel of the
Department fluctuated between 22 and 26%. In the late 60's it
began to decline, although the black population of the City
was increasing in gross as well as percentage. Today the
Department falls far short of
mirroring the community which it represents and from which its
membership must be recruited.
(a) The 1971 Patrolman's Exam
On December 4, 1971, the 1971 patrolman's exam was
administered by the Civil Service Commission (hereafter "the
Commission") for the purpose of selecting patrolmen for the
Department. The Commission prepared the exam, its answers and
scored it. The exam consisted of 120 multiple choice, machine
graded questions to be answered in two hours. There was one
"correct" answer to each question. Essentially it was an
aptitude test which covered vocabulary, verbal analogies,
grammar, number series, arithmetic problems and reasoning, and
word usage. While there were (and are) no educational
requirements for appointment as a patrolman (i. e., high
school diploma), the exam was such that the better an
applicant's education, the better he should perform on the
exam.
Those who answered correctly 75 out of the 120 questions (or
62.5%) "passed" and proceeded to the next screening step
— a physical and medical examination.*fn1 Those who passed
the physical and medical examination were posted on the
eligible list in the order of their scores on the written exam.
8,136 applicants wrote the 1971 exam. Of these, 66% were
white, 29% were black, and 4% were Hispanic, in comparison
to a City mix of 60-33-7.
Black applicants failed (i. e., scored less than 62.5%) the
1971 exam at a rate of 67%. Hispanic applicants failed at a
rate of 68%. White applicants failed at a rate of 33%. The
black and Hispanic applicants who passed tended to score lower
than the white applicants who passed. Thus, of the 1478
patrolmen who have been appointed in the order of their exam
scores from the 1971 roster, only 147 (or 10%) are black and
23 (1.5%) are Hispanic.
(b) The Background Investigation
As the Department needs patrolmen, the Commission furnishes
names of applicants from the top of the eligible list. The
Department then conducts an investigation to determine whether
the applicant's "background" disqualifies him from employment.
The background investigation is conducted without
regulations, standards or guidelines other than to determine
whether the applicant is of "bad character, dissolute habits
or [guilty of] immoral conduct," or whether he has made any
false statements to the Commission, violated any Commission
rule or been dismissed for cause from public employment. The
investigation includes arrests, convictions, traffic
citations, whether any family member has ever been arrested
for a serious crime, education, employment, military service,
driving history and financial condition. Based upon the
investigation, the Recruit Processing Section of the
Department makes a determination whether the applicant should
be disqualified for employment. No objective system of
evaluation is used in making this determination. If the
Section recommends disqualification, its recommendation is
approved by the Department in 90% of the cases. A disqualified
applicant is notified in writing of his disqualification, but
not the reasons therefor. The notice directs him to appear
before the Commission and show cause why he should not be
disqualified. If he appears, he is then advised of the reasons
for his disqualification. State court judicial review of a
contested adverse decision by the Commission is available.
Across the board, since 1968, 25.7% of the black as compared
to 15.2% of the white applicants who have undergone background
investigations have been disqualified. For certain reasons,
the rate of black to white disqualifications has been as high
as 2 ...