Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 73-C-661 - Thomas R. McMillen, Judge.
Fairchild, Chief Judge, and Pell and Wood, Circuit Judges.
This is an appeal by appellant United States of America from a decision of the district court holding that certain practices of appellees City of Chicago, et al. are not in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended by the Equal Employment Opportunity Act of 1972. For the reasons hereinafter stated, we reverse and remand for further proceedings consistent with this opinion.
This action was brought by the United States to challenge certain promotion and transfer policies of the Chicago Fire Department, which allegedly discriminated against blacks and Hispanics.*fn1 Promotions in the Fire Department are based upon performance on written promotional examinations administered by the Chicago Civil Service Commission, efficiency ratings by supervisory personnel in the Fire Department, and seniority. After the written examinations are graded by the Civil Service Commission, the Commission publishes an eligibility list which ranks candidates on the basis of written test score (weighted 60%), efficiency rating test score (weighted 30%), and seniority (weighted 10%). Candidates with a composite score of 70 or above are placed on an eligibility list. It is undisputed that virtually all applicants receive the maximum points awardable for seniority. Variability in composite score is therefore attributable almost entirely to the written examinations and the efficiency rating tests.
After an eligibility list for a particular position has been published, it is used until there are no more names on the list or until a new examination has been developed. Individuals are promoted as vacancies occur according to their respective composite scores on the eligibility list, i.e., individuals with the highest composite scores are promoted first. The government contends that these promotion procedures discriminate against blacks and Hispanics and therefore violate Title VII.
Seventeen eligibility lists based on seventeen examinations have been prepared since 1960.*fn2 For the purposes of this appeal, however, the government is challenging eight tests administered during this period for selection of engineers, lieutenants, and captains. Of these eight tests, only three are presently posted: the examination for engineer given in 1969; the examination for lieutenant given in 1970; and the examination given for captain in 1973. Moreover, only one of these tests - the 1973 captain's exam, was given after Title VII became applicable to the City of Chicago on March 24, 1972. Although the 1969 engineer's exam and the 1970 lieutenant's exam were administered before the City became subject to Title VII, current promotions, of course, would occur after the effective date of the Act.
The government has also challenged the assignment and transfer policies of the Fire Department. These policies, the government asserts, operate to confine blacks to unit locations in black neighborhoods and exclude blacks from certain specialized function units of the department.
II. THE DECISION OF THE DISTRICT COURT
The district court found that appellant United States had met its burden of demonstrating that three written promotional examinations which are presently in effect had an adverse impact on blacks.*fn3 The district court further found, however, that appellees had demonstrated that the tests were job-related and therefore held that the tests did not violate Title VII. The efficiency ratings used by appellees were also found by the district court not to violate Title VII. Finally, the district court held that the transfer and assignment policy of appellees did not constitute a Title VII violation.
Having determined that none of the challenged practices was unlawful, the district court rejected various forms of relief requested by appellants such as a quota system for promotions, a ban on the use of any efficiency ratings until approved by appellants or the court, and involuntary assignments of certain Fire Department employees to redress the allegedly discriminatory assignment and transfer policies of appellees. The district court also refused to issue a permanent injunction prohibiting further promotions based on the results of current eligibility lists.
The district court did, however, order that appellees: (1) apply the E.E.O.C. Guidelines concerning the use of efficiency ratings;*fn4 (2) furnish to appellant a copy of the validation study of any written examination to be used for making promotions at least 30 days prior to its use and that any such validation study conform to relevant E.E.O.C. Guidelines; and (3) post all vacancies simultaneously in each firehouse for a period of at least 30 days before such vacancies are filled and post a transfer order in each fire station indicating relevant background information of each person transferred.
While this appeal was pending, the appellant filed a motion in this court for an injunction pending appeal enjoining appellees from making any permanent promotions based on the 1969 engineer's exam and the 1970 lieutenant's exam. This court concluded that appellant had established a probability of success on the merits and therefore temporarily enjoined permanent promotions based on the two examinations in question pending appeal. Temporary assignments of persons to the rank of engineer and lieutenant were permitted. Appellants did not seek to enjoin permanent promotions to captain pending appeal and therefore promotions to captain were excluded from the injunction.
On this appeal, appellant vigorously contends that the district court erred in holding that the tests were properly validated and that the assignment and transfer policies were nondiscriminatory. Appellant further urges this court to fashion appropriate remedies to correct the effects of the allegedly discriminatory promotion and assignment transfer policies. Appellees, on the other hand, argue primarily that the holding of the district court should be affirmed because there has been no showing of intentional discrimination and therefore no violation of Title VII is possible, an argument not passed upon by the district court. Appellees also argue that even if no showing of intentional discrimination is required, the district court correctly determined that no violations of Title VII had been proven.
III. WHETHER A SHOWING OF INTENTIONAL DISCRIMINATION IS REQUIRED
In Griggs v. Duke Power Co., 401 U.S. 424, 28 L. Ed. 2d 158, 91 S. Ct. 849 (1971), and Albemarle Paper Co. v. Moody, 422 U.S. 405, 45 L. Ed. 2d 280, 95 S. Ct. 2362 (1972), the Supreme Court articulated the governing principles for establishing a violation under Title VII. These cases make clear that to establish a prima facie case of discrimination, a plaintiff need only show that facially neutral standards have a disproportionate impact on minorities. If the plaintiff can demonstrate that employment standards are discriminatory in effect, the employer must meet "the burden of showing that any given requirement [has]... a manifest relation to the employment in question." Griggs, supra at 432. If the challenged job requirements are shown to be job related by the employer, the plaintiff may then establish that other selection devices without a similar discriminatory effect would also "serve the employer's legitimate interest...." Albemarle, supra at 425, quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801, 36 L. Ed. 2d 668, 93 S. Ct. 1817 . The legal standard of Griggs and Albemarle was followed by this court in Title VII suits in United States v. City of Chicago, 549 F.2d 415 (7th Cir. 1977).
Appellees contend, however, that later decisions of the Supreme Court - General Electric Co. v. Gilbert, 429 U.S. 125, 50 L. Ed. 2d 343, 97 S. Ct. 401 (1976) and Washington v. Davis, 426 U.S. 229, 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976) - mandate that no violation of Title VII can occur absent a showing of discriminatory purpose. Appellees also assert, relying on National League of Cities v. Usery, 426 U.S. 833, 49 L. Ed. 2d 245, 96 S. Ct. 2465 (1976), that the Tenth Amendment requires that Title VII be interpreted only to encompass purposeful discrimination by employers. Furthermore, appellees argue that if the constitutional basis for Title VII is the Fourteenth Amendment rather than the Commerce Clause, a finding of intentional discrimination is required. We find none of these contentions persuasive.
A. The Impact of Washington v. Davis and General Electric Co. v. Gilbert on Griggs and Albemarle
In Washington v. Davis, supra, the Supreme Court held that a showing of discriminatory purpose is necessary to establish a violation of the Fourteenth Amendment. However, the Court made clear that a showing of discriminatory purpose was not required in Title VII suits:
Under Title VII, Congress provided that when hiring and promotion practices disqualifying substantially disproportionate numbers of blacks are challenged, discriminatory purpose need not be proved... 426 U.S. at 246-47.
Thus Washington v. Davis expressly refutes the contention of appellees that discriminatory purpose or intent must be demonstrated in a Title VII case.
General Electric Co. v. Gilbert is no more helpful to appellees' argument. In Gilbert, the Court held that a plan which provided nonoccupational sickness and accident benefits to all employees but excluded disabilities arising from pregnancy did not violate Title VII. The touchstone of Gilbert was that there was no showing of discriminatory effect - no evidence was introduced to suggest that men received more benefits from the plan than did women:
As there is no proof that the package is in fact worth more to men than to women, it is impossible to find any gender-based discriminatory effect in this scheme simply because women disabled as a result of pregnancy do not receive benefits: that is to say, gender-based discrimination does not result simply because an employer's disability benefits plan is less than all-inclusive. For all that appears, pregnancy-related disabilities constitute an additional risk, unique to women, and the failure to compensate them for this risk does not destroy the presumed parity of the benefits, accruing to men and women alike, which results from the facially evenhanded inclusion of risks.429 U.S. at 138-140.
Moreover, the Court expressly reaffirmed the holding of Griggs:
... our cases recognize that a prima facie violation of Title VII can be established in some circumstances upon proof that the effect of an otherwise facially neutral plan or classification is to discriminate against members of one class or another. See Washington v. Davis, 426 U.S. 229, 48 L. Ed. 2d 597, 96 S. Ct. 2040, 2051 (1976). For example in the context of a challenge, under the provisions of § 703(a)(2), to a facially neutral employment test, this Court held that a prima facie case of discrimination would be established if, even absent proof of intent, the consequences of the test were 'invidiously to ...