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BRONZE SHIELDS, INC. v. NEW JERSEY DEPT. OF CIV. S

April 8, 1980

BRONZE SHIELDS, INC., et al., Plaintiffs, v NEW JERSEY DEPARTMENT OF CIVIL SERVICE, et al., Defendants; VULCAN PIONEERS, INC., et al., Plaintiffs, v NEW JERSEY DEPARTMENT OF CIVIL SERVICE, et al., Defendants.


The opinion of the court was delivered by: SAROKIN

PROCEDURAL HISTORY

The actions before this Court challenge the legality of the hiring and promotional practices of the Newark Police Department ("Bronze Shields") and of the Newark Fire Department ("Vulcan Pioneers"). Plaintiffs in both actions allege in Count One of their Amended Complaint that defendants' policies violate the Thirteenth and Fourteenth Amendments, 42 U.S.C. §§ 1981 and 1983, and in Count Two, Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. *fn1" Defendants have moved for summary judgment to dismiss Count One in each action primarily on the basis that the constitutional claims and 42 U.S.C. §§ 1981, 1983 require proof of purposeful, intentional discrimination which plaintiffs have failed to allege. *fn2"

 STATEMENT OF THE CASE

 The Bronze Shield action alleges discriminatory hiring and promotional practices by the Newark Police Department. Plaintiffs are Black and Hispanic police officers, applicants for such positions, and a policemen's organization open to all members of the Newark Police Department. Defendants are the New Jersey Department of Civil Service, which develops and administers the civil service examinations, N.J.Stat.Ann. § 11:1-1 et seq. (West 1976), the Chief Examiner, the New Jersey Civil Service Commission, which prescribes rules for administering civil service laws, N.J.Stat.Ann. §§ 11:5-1, 6-1 (West 1976), the President and three commissioners thereof, the City of Newark, and the director of the Newark Police Department.

 Plaintiffs allege that the Newark Police Department's background investigation practices and use of civil service examinations discriminate against them in their employment in violation of 42 U.S.C. §§ 1981, 1983 and the Thirteenth and Fourteenth Amendments to the Constitution.

 The Vulcan Pioneers action challenges the legality of the hiring and promotional policies of the Newark Fire Department. Plaintiffs are a Black fireman, applicants for that position, and a firemen's organization open to all members of the Newark Fire Department. Defendants are the same as those named in Bronze Shields with the exception of the Director of the Newark Fire Department who was named in lieu of the Newark police director. The complaint alleges the same discriminatory practices as set forth in Bronze Shields.

 Jurisdiction herein is invoked pursuant to 28 U.S.C. §§ 1331 and 1343(3), (4). Venue is proper in this Court under 28 U.S.C. § 1391(b).

 The issue before this Court on this motion for summary judgment is whether the plaintiffs must prove that defendants intentionally discriminated against them because of their race in order to establish a violation of 42 U.S.C. § 1981. *fn3" The plaintiffs in this action have alleged racial discrimination in that a greater percentage of white persons than black or Hispanic have been hired and promoted by the Newark Police Department and Newark Fire Department.

 DISCUSSION

 Plaintiffs Bronze Shields and Vulcan Pioneers argue that the proper standard for proving a § 1981 discrimination action does not include an examination of the employer's intent. The plaintiffs urge this Court to adopt the holding of Davis v. County of Los Angeles, 566 F.2d 1334 (9th Cir. 1977), vacated as moot, 440 U.S. 625, 99 S. Ct. 1379, 59 L. Ed. 2d 642 (1979) that disparate impact is sufficient to establish a prima facie case of employment discrimination under § 1981. Defendants contend that although there is a conflict among the circuit and district courts, *fn4" constitutional standards should be applied in § 1981 cases; therefore intent must be a prerequisite to prove discrimination under § 1981. The defendants, therefore, urge that since plaintiffs have made no prima facie showing of intentional discrimination, the §§ 1981, 1983 and the Thirteenth and Fourteenth Amendment claims should be dismissed. This Court finds that intent is necessary to establish a claim of employment discrimination under § 1981. For the following reasons, defendants' motions for summary judgment are granted.

 Different standards of proof have evolved in employment discrimination cases depending upon the precise statutory or constitutional ground of the alleged violation. For example, in Griggs v. Duke Power Co., 401 U.S. 424, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971), *fn5" the Supreme Court held that Title VII *fn6" requires the elimination of artificial, arbitrary, and unnecessary barriers to employment that operate invidiously to discriminate on the basis of race or other impermissible classifications. Id. at 431, 91 S. Ct. at 853. "If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited," notwithstanding the employer's lack of discriminatory intent. Id. at 431-33, 91 S. Ct. at 853. The Supreme Court stated that

 
good intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as "built-in headwinds" for minority groups and are unrelated to measuring job capability . . . Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation.

 Id. at 432, 91 S. Ct. at 854. (emphasis in original). Therefore, in order to prove a claim of employment discrimination, a plaintiff need only show that the facially neutral employment practice has a "disparate impact" or effect on racial minorities. *fn7" The burden of proof then shifts to the defendant who must show business justification in order to preserve the practice. Id. at 432, 91 S. Ct. at 854. See generally B. Schlei & P. Grossman, Employment Discrimination Law at 1158 (1976 & Supp. 1979).

 More recently, in its landmark decisions, Washington v. Davis, 426 U.S. 229, 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976) and Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264-71, 97 S. Ct. 555, 562, 566, 50 L. Ed. 2d 450 (1977), the Supreme Court held that proof of both an invidious discriminatory purpose and a racially disproportionate ...


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