Appeal from an order entered in the United States District Court for the Southern District of New York, Robert L. Carter, Judge, granting preliminary injunctive relief in an employment discrimination suit brought by certain black and Hispanic members of the New York City Police Department. The Court of Appeals affirmed in part and reversed in part, holding that plaintiffs had made out a claim for relief under Title VII of the Civil Rights Act of 1964, and that the additional relief sought was unavailable under either Title VI of the Civil Rights Act of 1964 or 42 U.S.C. § 1981. Remanded.
Before Meskill, Circuit Judge, and Kelleher*fn* and Coffrin*fn** , District Judges.
This appeal raises a number of important questions in the area of employment discrimination law to which there are as yet no definitive answers. In order to determine the rights of the parties to this action we must explore such concepts as disproportionate impact and job-relatedness and must resolve such issues as when a particular discriminatory hiring practice ceases for purposes of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ; whether there exists an implied private cause of action for compensatory relief under Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d and whether 42 U.S.C. § 1981 prohibits conduct having a discriminatory impact absent proof of discriminatory purpose.
Unfortunately, the authorities do not speak with one voice. The only thing that has been clear, as we have considered this case, is that whichever way these issues are finally resolved, the impact on the future direction of employment discrimination litigation will be substantial. We are aware that because of the importance and complexity of these questions, today's decision will not put them to rest. Therefore, in order to facilitate the continued consideration of these issues in other forums, we have attempted to explain the factual setting and the reasoning underlying our determinations in some detail.
In 1972 a lawsuit was brought by black and Hispanic police officers challenging seven written examinations administered during the years 1968-1970 and used in making appointments to the New York City Police Department ("NYPD" or "department") until 1974. The complaint alleged that these entry-level examinations had a racially disproportionate impact and were not job-related and, therefore, that the use by the department of lists ranking eligibility for appointment on the basis of the results of these examinations was unlawful under various federal and state laws. In Guardians Association v. Civil Service Commission, 490 F.2d 400 (2d Cir. 1973) ("Guardians I"), this Court upheld the district court's denial of a preliminary injunction against the continued use of these eligibility lists, on the ground that the lists had been exhausted. Neither party took any further steps in regard to Guardians I until June of 1975 when, in response to a fiscal crisis, New York City laid off over 2,500 police officers. When plaintiffs' attempt to revive the case proved unsuccessful, they commenced the present action in the United States District Court for the Southern District of New York before Robert L. Carter, Judge, in April of 1976.*fn1
In the new action the June layoffs, which were carried out pursuant to the department's "last-hired, first-fired" policy, were alleged to be violative of the Fourteenth Amendment, 42 U.S.C. §§ 1981 and 1983, Title VII and Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. and 2000d et seq., as well as various other federal and state laws. Central to the attack on the system of layoff by seniority was the contention that the department's entry level examinations were discriminatory, and that but for this discrimination plaintiffs would have been hired earlier and thus would have accrued sufficient seniority to withstand being fired.*fn2 In Guardians Association v. Civil Service Commission, 431 F. Supp. 526 (S.D.N.Y.1977) ("Guardians II"), Judge Carter certified the proposed class, which consisted of "all black and Hispanic New York City policemen currently on layoff who would not have been furloughed but for defendants' allegedly discriminatory employment practices," and granted a preliminary injunction restraining the department from firing or recalling any officers until the seniority lists were reordered "to accord plaintiffs the seniority they would have had but for defendants' discriminatory practices." Id. at 531, 530. Judge Carter held that although plaintiffs had failed to make out a case under the federal Constitution, § 1981 or § 1983, they had demonstrated entitlement to relief under Title VII.*fn3 He found: (1) that under Title VII plaintiffs had established a prima facie case of discrimination in hiring*fn4 by demonstrating that the challenged entry examinations had a disproportionate impact, that is, that as a group black and Hispanic applicants achieved lower scores than white applicants, and (2) that defendants had failed to rebut plaintiffs' case by demonstrating the job-relatedness of these examinations. Further, rejecting defendants' argument that no post-Act discriminatory conduct had been alleged, the district court held that the 1975 layoff of police officers pursuant to a concededly neutral last-hired, first-fired system perpetuated the effects of the department's pre-1972 discriminatory practices and thus fell within the scope of Title VII.*fn5
On June 21, 1977, this Court vacated the preliminary injunction and remanded the case for reconsideration in light of International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (1977), which had been handed down after Judge Carter's decision in Guardians II but prior to argument of the appeal. Guardians II, on appeal, 562 F.2d 38 (2d Cir. 1977). In Teamsters the Supreme Court ruled that a bona fide seniority system which merely perpetuated the effects of pre-Title VII discrimination beyond the effective date of the Act was immunized from attack by § 703(h) of the statute.*fn6 Recognizing that Teamsters effectively overruled his earlier determination, Judge Carter reassessed plaintiffs' case in order to determine what claims, if any, survived:
Under Teamsters, a meritorious Title VII claim against a municipality requires an act of discrimination after March 24, 1972, rather than discrimination before that date whose effects are felt thereafter through a facially neutral seniority system. . . . If plaintiffs can now show that the results of (the discriminatory) entrance tests contributed to discriminatory acts committed after March 24, 1972, the Teamsters requirement will have been met.
Guardians Association v. Civil Service Commission, 466 F. Supp. 1273, 1276-77 (S.D.N.Y.1979) ("Guardians III").
The district judge reasoned that "(s)tripped of the argument concerning the NYPD's seniority system, plaintiffs' allegations are reduced to claims of discriminatory refusals to hire." Id. at 1277. Noting that "(d) iscriminatory refusal to hire is a well established basis for awarding a discriminatee seniority retroactive to the date upon which he would have been hired but for the discrimination," finding that the last such refusal to hire ceased on October 7, 1974, two years after Title VII was made applicable to municipalities, and finding further that a timely charge had been filed with the Equal Employment Opportunity Commission ("EEOC"),*fn7 Judge Carter concluded that plaintiffs were entitled to relief under Title VII. Id. at 1277-78.
Judge Carter declined to limit relief to those plaintiffs who had been refused employment at some point within the 300 days preceding the filing of the EEOC charge. Relying on Acha v. Beame, 570 F.2d 57 (2d Cir. 1978), the district court held that the use of the eligibility lists to determine the order in which applicants were hired amounted to a continuing policy of discriminatory hiring and thus a continuing violation of Title VII.
The refusals to appoint minorities were not discrete acts; they were all made on the same basis, viz., scores on the defective tests. After the tests were administered and the results certified, the NYPD embarked on a discriminatory hiring program which terminated only when the last person was hired off the lists. Since E.E.O.C. charges were filed within 300 days of the last illegal appointment, all plaintiffs are deemed to have made timely challenge to the defendants' discriminatory actions.
Guardians III, 466 F. Supp. at 1280. Ruling that the rehiring of members of the original class had not mooted the case, Judge Carter revised the class definition to include all black and Hispanic policemen "previously on layoff who would not have been furloughed but for defendants' discriminatory practices." Id. at 1278.
Having determined that the types of relief sought under Title VII could not properly take into account any conduct occurring before March 24, 1972, Judge Carter considered plaintiffs' Title VI claim in order to determine whether additional relief was available. After reviewing the legislative history of the statute and the relevant cases, Judge Carter held first, that § 601 impliedly conferred a right of action on private individuals, and second, that Title VI banned both intentional discrimination and conduct which has a discriminatory impact. In light of the fact that unlike Title VII, Title VI has been applicable to municipalities since 1964, Judge Carter concluded that all members of the plaintiff class were entitled to compensatory seniority extending back to the date upon which they would have been hired but for defendants' discriminatory practices. The preliminary injunction which had been vacated by this Court was therefore reinstated by order dated May 15, 1979. This appeal followed.*fn8
As a preliminary matter, defendants dispute Judge Carter's finding that the challenged examinations were discriminatory, that is, that they had a disproportionate impact not justified by a showing of job-relatedness. Defendants also contend that even if the examinations were discriminatory, any discriminatory conduct on their part ceased before Title VII became applicable to municipalities and, further, was not the subject of a timely filing with the EEOC. Additionally, defendants take issue with Judge Carter's analysis of Title VI. They argue that the statute is addressed only to purposeful discrimination. Endorsing the district court's rejection of § 1981 as a basis for relief, defendants conclude that plaintiffs have failed to make out a case for the readjustment of their seniority. In response, plaintiffs urge the soundness of the district court's factfinding, the inevitability of its approach to the Title VII and Title VI issues, and the propriety of the relief granted. The EEOC, as amicus curiae, addresses solely the § 1981 issue, urging that this Court reject the intent standard announced below.
Although this is the second time this case has come before us, we have not previously reviewed either the factual findings or the legal conclusions reached by the district court.*fn9 We start with the contested issues of fact.
THE CHALLENGED EXAMINATIONS
In Guardians II, Judge Carter set forth accurately and succinctly the proper method of evaluating the challenged examinations under Title VII:*fn10
In Griggs v. Duke Power Co. (401 U.S. 424, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971)), the Supreme Court held that Title VII forbids the use of employment selection practices that have a racially discriminatory impact unless the employer meets "the burden of showing that (the selection practices have) . . . a manifest relationship to the employment in question." Id. at 432, (91 S. Ct. at 854). This burden arises only after the complaining party or class has made out a prima facie case of discrimination. The Court held in Albemarle Paper Company v. Moody, 422 U.S. 405, (95 S. Ct. 2362, 45 L. Ed. 2d 280) (1975) that a prima facie case is made out if the complainants can show "that the tests in question select applicants for hire or promotion in a racial pattern significantly different from that of the pool of applicants." Id. at 425, (95 S. Ct. at 2375). See also McDonnell Douglas Corp. v. Green, 411 U.S. 792, (93 S. Ct. 1817, 36 L. Ed. 2d 668) (1973). A showing of discriminatory purpose need not be made under Title VII. Griggs, supra; Albemarle, supra.
431 F. Supp. at 538. Under the "clearly erroneous" standard of review, we see no basis for overturning the factual findings which prompted Judge Carter to conclude that, judged by this standard, the examinations were discriminatory. *fn11 Fed.R.Civ.P. 52(a).
A. Disproportionate Impact
In 1973 the parties to the Guardians I suit authorized the Rand Institute to conduct an independent study of NYPD's entry level examinations to determine the passing rates of whites, blacks, and Hispanics.*fn12 The results of two examinations were analyzed; these tests, one administered in 1968 and one in 1970, were respectively the earliest and the most recent tests with eligibility lists still in use at the time of the study.
As the district court noted, because the department did not keep systematic records of the race or ethnic background of applicants, Rand relied on various indirect methods of racial and ethnic identification.
Five different sources of data were used: (1) (NYPD) records giving the race of about 30 percent of the applicants taking each examination; (2) results of a questionnaire inquiring into race which was mailed to nearly all persons who took the examinations; (3) a compilation of approximately 8,000 surnames compiled by the U.S. Bureau of Census with which the subjects' names were compared; (4) census tract data, evidencing racial residential concentration with which the subjects' addresses were matched; and (5) a telephone sample of the subjects whose race remained unknown after the (NYPD) data and the questionnaire data were on hand.
Guardians II, supra, 431 F. Supp. at 539 (footnote omitted). On the basis of the information thus gathered, Rand determined the racial or ethnic identity of those taking each examination. Rand then proceeded to estimate the distribution by group of the scores. In summarizing its findings, Rand stated:
"(w)e have found substantial and statistically significant differences by race in the distributions of exam scores for whites as compared to blacks and Hispanics . . . . Blacks and Hispanics scored lower than whites and failed at higher rates . . . . These findings were confirmed by three different methods of data analysis." Rand Report at 46.
Guardians II, 431 F. Supp. at 540 (footnote omitted). Furthermore, because of the similarity of the patterns observed for the two examinations analyzed, Rand concluded that it was "confident" that these patterns were " "most likely typical of the patterns for all recent civil service patrolmen's exams.' " Rand Report at 38, quoted in Guardians II, 431 F. Supp. at 540.
At the hearings held before the initial issuance of the preliminary injunction, each side presented expert testimony regarding the significance of the Rand Report. As Judge Carter noted, the methodological criticisms offered by defendants' witness were seriously undercut by the fact that Rand came up with similar figures using three different methods to estimate the distribution by group of the scores. Similarly, while only two of the challenged tests were studied by Rand, the similar distribution patterns made reasonable the inference that similarly drawn examinations would yield similarly skewed results. Although defendants attempted to cast doubt on the accuracy of the Rand finding of disproportionate impact, they offered no evidence tending to establish that white, black and Hispanic applicants performed equally well, or comparably, on any or all of the challenged examinations.*fn13 Finally, since the methodology was derived and the data compiled by independent professionals selected by agreement of the parties, we have no reason to question the objectivity of the research.
On the basis of the record before us we cannot conclude that Judge Carter's finding of disproportionate impact was clearly erroneous. Defendants attack the Rand study as guesswork. However, the fact that Rand was required to estimate the racial and ethnic composition of the applicant pools and the distribution by group of the scores does not invalidate Rand's conclusions. The science of statistical analysis encompasses more than the mere notation of directly observed phenomena. Necessity often dictates that the composition of a given population be estimated by projecting data gathered by less than optimal means from only a sample of that population. If the sample is adequate, the data gathering techniques reliable, and the conclusions drawn demonstrated to be statistically significant, such estimates and projections may properly be admitted into evidence.*fn14
Statistical evidence by its very nature deals with probabilities rather than certainties. All that can be required of methods employed in gathering such evidence is that they assure reasonably accurate findings. Absolute perfection usually is not attainable in this kind of endeavor.
Vulcan Society v. Civil Service Commission, 360 F. Supp. 1265, 1270 (S.D.N.Y.), aff'd, 490 F.2d 387 (2d Cir. 1973) (footnote omitted). Not being generally obtainable, "absolute perfection" is not required. See, e. g., Jones v. New York City Human Resources Administration, 528 F.2d 696, 698 (2d Cir.), cert. denied, 429 U.S. 825, 97 S. Ct. 80, 50 L. Ed. 2d 88 (1976). As Judge Friendly wrote, affirming the district court's decision in Vulcan Society and quoting Mr. Justice Holmes:
It may well be that the cited figures and other more peripheral data relied on by the district judge did not prove a racially disproportionate impact with complete mathematical certainty. But there is no requirement that they should. "Certainty generally is illusion, and repose is not the destiny of man." We must not forget the limited office of the finding that black and Hispanic candidates did significantly worse in the examination than others. That does not at all decide the case; it simply places on the defendants a burden of justification which they should not be unwilling to assume.
490 F.2d at 393 (footnote omitted).
Under the familiar Title VII formula, since plaintiffs established a prima facie case of discrimination,*fn15 the burden shifted to defendants to demonstrate that the challenged examinations were job-related. Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S. Ct. 2720, 2726, 53 L. Ed. 2d 786 (1977).
A job-related examination is one that accurately tests the capacity of the applicant to do the job for which he is applying, or is "reasonably constructed to measure what it purports to measure." Although this notion is a simple one, the task of determining whether an examination is in fact job-related involves issues and problems which are outside the experience of most laymen. Consequently, courts confronted with litigation of this kind have placed considerable reliance upon generally accepted principles of psychological testing which have been developed for the purpose of assuring that employment . . . tests measure what they purport to measure. Indeed, insistence upon the use of generally accepted professional standards of employment test validation would appear to be precisely the correct response to a prima facie showing of discriminatory impact upon racial minorities; for if an examination which disadvantages racial minorities does in fact conform to professional standards of job-relatedness, that provides at least some assurance that the white majority has not placed a burden upon racial minorities which it would have been unwilling to place upon others.
Vulcan Society, supra, 360 F. Supp. at 1272-73 (footnotes omitted). See also Blake v. City of Los Angeles, 595 F.2d 1367, 1377-79 (9th Cir. 1979).
Although defendants argued below that the validity of the entry-level examinations had been demonstrated by two different generally accepted methods,*fn16 after considering the testimony of experts called by both sides, Judge Carter determined that defendants had failed to carry their burden.*fn17 On the record before us we cannot characterize this finding as erroneous.
An examination has content validity if the content of the examination matches the content of the job. For a test to be content valid, the aptitudes and skills required for successful examination performance must be those aptitudes and skills required for successful job performance. It is essential that the examination test these attributes both in proportion to their relative importance on the job and at the level of difficulty demanded by the job.
Vulcan Society, supra, 360 F. Supp. at 1274 (footnotes omitted). The logical first step in drafting a content valid test is a careful study of the job in question.*fn18 See Jones v. New York City Human Resources Administration, 391 F. Supp. 1064, 1077-83 (S.D.N.Y.1975), aff'd, 528 F.2d 696 (2d Cir.), cert. denied, 429 U.S. 825, 97 S. Ct. 80, 50 L. Ed. 2d 88 (1976); Kirkland v. New York State Department of Correctional Services, 374 F. Supp. 1361, 1373 (S.D.N.Y.1974), aff'd in pertinent part, 520 F.2d 420 (2d Cir. 1975), cert. denied, 429 U.S. 823, 97 S. Ct. 73, 50 L. Ed. 2d 84 (1976). Judge Weinfeld has defined a proper job analysis as:
a thorough survey of the relative importance of the various skills involved in the job in question and the degree of competency required in regard to each skill. It is conducted by interviewing workers, supervisors and administrators; consulting training manuals; and closely observing the actual performance of the job.
Vulcan Society, supra, 360 F. Supp. at 1274. Because of the unlikelihood that an examination prepared without benefit of a probing job analysis will be content valid, Judge Weinfeld has suggested that in the absence of such an analysis the proponent of the examination carries a greater burden of persuasion on the issue of job-relatedness. In affirming Vulcan Society, this Court enthusiastically adopted this sliding scale approach to content validity, explaining that taking the quality of test preparation into account in judging test validity would be useful in lessening "the risk that a court will fall into error in umpiring a battle of experts who speak a language it does not fully understand." Vulcan Society, supra, 490 F.2d at 396.
Although they never introduced a formal, written job analysis, defendants maintain that their method of preparation nevertheless ensured the content validity of the examinations.*fn19 Conspicuous by its absence from the preparation process, however, was a critical component of a proper job analysis as defined by Judge Weinfeld in Vulcan Society : observation of the actual performance of the typical officer's daily routine. The examination preparation process therefore fails to raise any inference that the content of the job was accurately reflected in the content of the examination.
At the hearing below the former director of examinations for the City's Department of Personnel testified that in his opinion the tests were content valid, but he offered no reasons in support of his position. In contrast, plaintiffs' expert, Dr. Richard S. Barrett, "was able to point with specificity to serious deficiencies in the content of the examinations." For example, Dr. Barrett viewed questions pertaining to "civic awareness," "space and figure relations," and "coding" as failing to test for the content of a police officer's job. Guardians II, 431 F. Supp. at 544. Most significantly, Dr. David Hall, called by defendants, agreed that questions in these same three areas did not test skills important to the job and did not warrant inclusion in the department's entry-level examinations.*fn20
Attempting to establish the content validity of the challenged examinations by indirect as well as direct means, defendants contend that they were successful in developing a valid examination in 1973*fn21 and that the challenged examinations test for content areas comparable to the later, valid examination. Finding the second assertion to be inaccurate, the district court did not consider the first. Judge Carter found that the content of the later test varied "substantially" from that of the earlier ones. Defendants' conclusory representation that the acknowledged differences in content between the later examination and the challenged examinations are of no moment are simply unsupported by the evidence. Furthermore, defendants' contention that substantial percentage differences in content areas-conceded to exist between the challenged tests and the purportedly valid examination-are insignificant flies in the face of both intuition and precedent. As noted above, a content valid examination must not only test required skills and aptitudes, it must test them "in proportion to their relative importance on the job . . . ." Vulcan Society, supra, 360 F. Supp. at 1274.
2. Criterion-Related Validity
Criterion-related validity studies correlate test scores with job performance. To establish the criterion-related validity of the challenged examinations, defendants introduced the testimony of Dr. William Weechun, a researcher at the New York City Board of Education, who had made a study demonstrating that the examinations employed between 1968 and 1970 were good predictors of success at the Police Academy for whites, blacks, and Hispanics. However, no attempt was made to correlate performance on the examinations or at the Academy with performance on the job.*fn22 Defendants contend that under Washington v. Davis, 426 U.S. 229, 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976), such a showing is unnecessary. Judge Carter properly rejected this contention.
In Vulcan Society, a case decided before Washington v. Davis, this Court recognized that in the absence of a showing that examinations testing performance at training school are themselves job-related, evidence that qualifying examinations predict performance on training school exams is "barren." 490 F.2d at 396 and n.11. Accord, Pennsylvania v. O'Neill, 348 F. Supp. 1084, 1090 (E.D.Pa.1972), aff'd in pertinent part, 473 F.2d 1029 (3d Cir. 1973); United States v. City of Chicago, 385 F. Supp. 543, 556 (N.D.Ill.1974); Officers for Justice v. Civil Service Commission, 371 F. Supp. 1328, 1337 (N.D.Cal.1973). Judge Carter's analysis of the instant case makes clear why that is so:
Defendants' study demonstrates a high correlation between performance on the challenged examinations and performance at the Academy, but the task of correlating the examinations to actual performance as police officers remains unaccomplished. The respective positions of the parties would be unchanged if, for example, instead of giving these entry level examinations, the (NYPD) had enrolled the same group of individuals in the Academy. Because of the established correlation, standing on completion of training at the Academy would, presumably, approximate standing achieved at the entry level examinations. That is to say, a consistently higher proportion of whites than minorities would achieve passing grades, and a large majority of the highest achievers would be white. Accordingly, the greatest number of Academy graduates first hired would be white, and the greatest number of those first fired would be Academy graduates who are black and Hispanic. In a Title VII attack in that situation, plaintiffs' prima facie case would be established by showing, as here, the disproportionate impact of Academy procedures and testing on minorities. Defendants would be required to demonstrate that those testing practices are job-related, as they are required here to do in respect of the entry level examination. By introducing Academy performance as a correlate to the examinations, defendants cannot avoid their obligation to show job-relatedness.
To provide that missing ingredient defendants would have this court find job-relatedness on the basis of a high correlation between the results of two separate testing practices, neither of which by itself has been validated according to accepted methods. We cannot accept this flawed argument.
Guardians II, 431 F. Supp. at 546-47. Nor can we.*fn23 Nor do we regard Washington v. Davis, supra, as requiring us to ignore the degree to which adoption of defendants' position would undermine Title VII's goal of eliminating arbitrary barriers to the employment of minorities.
In Washington v. Davis, two unsuccessful applicants ("plaintiffs")*fn24 alleged that the recruiting procedures of the District of Columbia's metropolitan police force were racially discriminatory. Plaintiffs contended that these practices violated their rights under the due process clause of the Fifth Amendment, under § 1981, and under a section of the D.C.Code requiring that government jobs not be awarded or withheld on the basis of race or certain other specified factors. No violation of Title VII was alleged. One of the challenged practices was the use of "Test 21," a written examination developed by the Civil Service Commission and widely used throughout the federal service to test verbal, reading, and comprehension skills. To be accepted into the police training program an applicant was required to achieve a score of 40 out of 80 on Test 21 and to meet certain other physical and character standards. Plaintiffs made no claim of purposeful discrimination; they claimed only that Test 21 had a disproportionate impact and bore no relationship to job performance. The validity of Test 21 was the sole issue before the district court on cross motions for summary judgment.
The Supreme Court declined to hold "that the constitutional standard for adjudicating claims of invidious racial discrimination is identical to the standards applicable under Title VII . . . ." Id. 426 U.S. at 239, 96 S. Ct. at 2047. The Court ruled that unlike the more rigorous Title VII standard, the constitutional standard is concerned only with action reflecting a racially discriminatory purpose; disproportionate racial impact standing alone does not constitute a denial of equal protection.*fn25 Comparing the two approaches, the Court stated:
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, and that it is an insufficient response to demonstrate some rational basis for the challenged practices. It is necessary, in addition, that they be "validated" in terms of job performance in any one of several ways, perhaps by ascertaining the minimum skill, ability, or potential necessary for the position at issue and determining whether the qualifying tests are appropriate for the selection of qualified applicants for the job in question. However this process proceeds, it involves a more probing judicial review of, and less deference to, the seemingly reasonable acts of administrators and executives than is appropriate under the Constitution where special racial impact, without discriminatory purpose, is claimed.
Id. at 246-47, 96 S. Ct. at 2051 (footnote omitted).
After deciding the constitutional issue adversely to plaintiffs, the Court rejected plaintiffs' statutory arguments as well. Although the statutory section of the opinion, section III, is not free from ambiguity, we agree with Judge Carter that it does not govern the instant appeal. Viewing the "advisability" of a recruit training course as conceded, the Court termed it "apparent" that some minimal communicative skill would be "useful, if not essential, to satisfactory progress in the training regimen." Id. at 250, 96 S. Ct. at 2052. The Court concluded that it was a "sensible construction of the job-relatedness requirement" to hold "that a positive relationship between the test and training-course performance was sufficient to validate the former, wholly aside from its possible relationship to actual performance as a police officer." Id. at 250-51, 96 S. Ct. at 2052.
It is clear that although the parties and the lower courts had relied heavily on Title VII standards, Title VII was simply not applicable to the facts of Washington v. Davis. There is therefore good reason to think that the Court was not interpreting "job-relatedness" as defined by Title VII. Having stressed, in the paragraph quoted above, that the nature of a prima facie showing of discrimination under Title VII (e. g., disproportionate impact) was irrelevant to the appeal before it, there was simply no reason for the Court to analyze the nature of the rebuttal contemplated by Title VII (i. e., job-relatedness). The view that the Court was addressing solely the job-relatedness requirements of the Constitution, § 1981, and the D.C.Code rather than of Title VII is further supported by the lack of any discussion, in this portion of the opinion, of the language or legislative history of Title VII or of the testing guidelines promulgated by the EEOC. In our view it is most unlikely that the Court would have attempted to interpret a concept so central to the operation of Title VII without consulting the usual sources. Therefore we conclude, as Justice Stevens emphasized in his concurring opinion:
there is no Title VII question in this case. The actual statutory holdings are limited to 42 U.S.C. § 1981 and § 1-320 of the District of Columbia Code, to which regulations of the Equal Employment Opportunity Commission have no direct application.
Id. at 255, 96 S. Ct. at 2055 (Stevens, J., concurring). See Blake v. City of Los Angeles, 595 F.2d 1367, 1378-82 and n.17 (9th Cir. 1979), cert. denied, 446 U.S. 928, 100 S. Ct. 1865, 64 L. Ed. 2d 281 (1980). ("If employers were permitted to validate selection devices without reference to job performance, then non-job-related selection devices could always be validated through the simple expedient of employing them at both the pre-training and training stage.") See also the Uniform Guidelines, 29 C.F.R. § 1607.14B(3) (1979), quoted in the margin.*fn26
Even assuming that Washington v. Davis would govern the meaning of job-relatedness under Title VII, we think defendants misinterpret the intended scope of its holding. Dissenting from the Court's summary affirmance of National Education Association v. South Carolina, 434 U.S. 1026, 98 S. Ct. 756, 54 L. Ed. 2d 775 (1978), Justice White, the author of the majority opinion in Washington v. Davis, rejected precisely the interpretation defendants urge upon us today.
Washington v. Davis, 426 U.S. 229 (, 96 S. Ct. 2040, 48 L. Ed. 2d 597) (1976), was thought by the District Court to have warranted validating the test in terms of the applicant's training rather than against job requirements; but Washington v. Davis, in this respect, held only that the test there involved, which sought to ascertain whether the applicant had the minimum communication skills necessary to understand the offerings in a police training course, could be used to measure eligibility to enter that program. The case did not hold that a training course, the completion of which is required for employment, need not itself be validated in terms of job relatedness. Nor did it hold that a test that a job applicant must pass and that is designed to indicate his mastery of the materials or skills taught in the training course can be validated without reference to the job. Tests supposedly measuring an applicant's qualifications for employment, if they have differential racial impact, must bear some "manifest relationship to the employment in question," Griggs v. Duke Power Co., 401 U.S. 424, 432 (, 91 S. Ct. 849, 854, 28 L. Ed. 2d 158) (1971), and it is insufficient for the employer "to demonstrate some rational basis for the challenged practices." Washington v. Davis, supra, 426 U.S. at 247 (, 96 S. Ct. at 2051).
Id. at 1027-28, 98 S. Ct. at 757.
It is important to keep in mind that in the instant appeal each plaintiff officer has been certified by the department to be both fully qualified to enter the police training program and fully qualified to join the force. Although the entry-level tests have in fact been demonstrated to disqualify disproportionate numbers of blacks and Hispanics, the black and Hispanic officers who brought this suit have all performed at or above the level set by the department itself. The Guardians plaintiffs do not challenge the establishment of a particular passing grade and indeed it is not clear that they would have standing to do so. They challenge only the use of their passing scores to determine the order in which they were offered employment.*fn27 Therefore, the Washington v. Davis argument-that the entry-level tests were justified by the need to weed out those applicants who lacked the minimal skills necessary to successful completion of the training program-is simply not available to the defendants on this appeal.
APPLICABILITY OF TITLE VII: THE DATE OF THE LAST DISCRIMINATORY ACT
Having established in the district court that the challenged examinations were indeed discriminatory within the meaning of Title VII, plaintiffs faced the task of demonstrating their entitlement to relief under the statute. This was no easy matter, for at every turn in the path between the injury and the remedy, defendants vigorously contested plaintiffs' right to proceed.
Two different questions of timing are crucial to plaintiffs' Title VII claim: to prevail thereon plaintiffs must demonstrate both that defendants violated the Act after its effective date and that plaintiffs filed a timely charge with the EEOC. Acha v. Beame, supra, 570 F.2d at 65. In order to establish each of these elements of their case, plaintiffs have attempted to show that defendants discriminated against them as late as October of 1974. Since Title VII was made applicable to municipalities in 1972, any discriminatory hiring practices engaged in by defendants as late as October of 1974 would clearly constitute post-Act conduct. Furthermore, the EEOC charge filed May 23, 1975, was timely filed under § 706(e) as to any Title VII violation occurring within the previous 300 days, that is, on or after July 27, 1974.*fn28 Predictably, defendants urge in response that their discriminatory conduct, if any, ceased prior to 1972 and, therefore, that plaintiffs have failed to prove that defendants engaged in any post-Act discriminatory practices which were made the subject of a timely EEOC charge. We cannot agree.
The district court held that the department's reliance on eligibility lists reflecting performance on discriminatory examinations constituted a program of discriminatory hiring which terminated only when the last person was hired off the lists-that is, in October of 1974. Only then, in the court's view, did the department cease its unjustified refusals to hire minorities.*fn29 Defendants concede, as they must, that as a general rule discriminatory refusals to hire are prohibited by Title VII.*fn30 See Weise v. Syracuse University, 522 F.2d 397, 409 (2d Cir. 1975). They contend however that the "operative" event in the hiring procedure under scrutiny, the relevant event for purposes of deciding when the unlawful discrimination occurred, was the promulgation of the eligibility lists reflecting the applicants' scores on the challenged exams. Defendants assert that since all the challenged examinations were administered and the corresponding lists were promulgated prior to the date Title VII became applicable to municipalities, the giving of the tests and the compilation of the eligibility lists are acts falling outside the scope of the statute. Defendants dismiss as a "fiction" the district court's view that the department's conceded utilization of these lists for purposes of making hiring decisions as late as 1974 in itself constituted a post-Act violation of Title VII. Defendants maintain that under Title VII the fact that, until they were exhausted, the lists determined the order in which all appointments were made constituted merely the non-actionable perpetuation of the effects of past, non-actionable discrimination.
A. Refusal to Hire as a Violation of Title VII
Defendants argue that "the claims of discriminatory refusal to hire presented here clearly depend upon "a past event which has no present legal significance.' " Reply brief at 5, quoting United Air Lines, Inc. v. Evans, 431 U.S. 553, 560, 97 S. Ct. 1885, 52 L. Ed. 2d 571 (1977). Defendants wish, understandably, to accentuate their pre-Act conduct and trivialize their post-Act conduct, but logic and precedent preclude acceptance of defendants' assessment of the legal significance of their actions. We need not decide whether the giving of the tests and the compilation of the lists in themselves constituted the infliction of an actionable injury,*fn31 for the results of the tests were in effect being "used to discriminate," in direct contravention of § 703(h) of Title VII,*fn32 each time a member of the plaintiff class was denied a chance to fill a vacancy. By utilizing the tainted test results for years after becoming subject to the commands of Title VII, defendants continued a course of discriminatory conduct that had indeed begun before the effective date of the Act but did not cease until defendants abandoned the practice of making hiring decisions in this manner.*fn33 Even if the unjustified refusals to hire did not comprise the core of defendants' discriminatory conduct, at the ...