and Hispanics in the population and work force of the City of Newark and their proportions among the work force of the Newark Fire Department, and among the persons hired as firefighters in the period 1972-79 clearly establishes a prima facie case of a pattern of discrimination. Teamsters, 431 U.S. at 339-342 and n.43, 97 S. Ct. at 1856-1858; Boston Chapter NAACP, 504 F.2d at 1020.
Where a pattern of discrimination has been established, a qualified minority applicant who is denied employment is entitled to a presumption that the denial was based on impermissible considerations, and it is the burden of the employer to establish that the person would not have been hired even absent discrimination. Teamsters, 431 U.S. at 361-62, 97 S. Ct. at 1867-1868; Association Against Discrimination, 647 F.2d at 289; Cohen v. West Haven Board of Police Commissioners, 638 F.2d 496, 503-04 (2d Cir. 1980). The fourteen minority persons hired by the City of Newark in 1974 as fire cadets were promised eventual employment as firefighters, and, as the City admits, established by their successful completion of the fire academy program and their subsequent on the job performance, that they were interested in and well qualified for the position of firefighter. Accordingly, they are entitled to a presumption that the City's failure to provide such employment was based on impermissible racial considerations. That presumption is not rebutted by general claims of nondiscrimination by the City.
It is unlawfully discriminatory to provide different and less favorable treatment to qualified minority applicants than to white applicants. 42 U.S.C. § 2000e-2. The fourteen persons, all black or Hispanic, hired as fire cadets by the City of Newark in 1974 were treated differently and less favorably than the virtually all white group of fire cadets hired by the City in 1972, in that the members of the latter group obtained permanent appointment as firefighters, without testing, while the members of the former group, although they were promised promotion to the higher paying rank of firefighter and, as the 1972 cadets, received the same training as entry firefighters, were not so promoted but rather were maintained by the City in a lower paying position. The virtually all-white composition of the Newark Fire Department, the virtually all-white group of fire cadets hired by the City in an ostensibly minority-oriented program in 1972, and the similar failure of the City in 1978 to employ firefighters from the virtually all minority bilingual eligibility list, support the inference that the treatment of the 1974 cadets by the City was racially motivated conduct in violation of Title VII and the Revenue Sharing Act.
The decision by the City of Newark to hire from the 1978 firefighter eligibility list, which was 80 percent white, rather than to seek to appoint the fourteen already trained minority fire cadets to permanent firefighter positions, had a disproportionate adverse impact upon minorities and was not required by business necessity. Regardless of the motivation for the decision, that act constituted unlawful discrimination under Title VII and the Revenue Sharing Act.
The fourteen 1974 fire cadets demonstrated by their performance in that program that they were qualified for the position of firefighter. Accordingly, those cadets who were denied or delayed in obtaining permanent firefighter appointments by virtue of their performance on the unvalidated written test for firefighter were victims of discrimination in violation of Title VII and the Revenue Sharing Act.
The same standards under Title VII for liability and relief apply to both public and private employers, including liability for back pay awards, Dothard, 433 U.S. at 331 n.14, 97 S. Ct. at 2727; Association Against Discrimination ; see Gurmankin v. Costanzo, 626 F.2d 1115, 1124 (3d Cir. 1980), cert. denied, 450 U.S. 923, 101 S. Ct. 1375, 67 L. Ed. 2d 352 (1981); and are therefore applicable to the City of Newark.
It is proper for a court, in apportioning liability for monetary compensation, to take into account the relative culpability of parties, where each party may be liable, but the discriminatory acts are more directly the responsibility of one party. EEOC v. Enterprise Ass'n Steamfitters, 542 F.2d 579, 587 (2d Cir. 1976), cert. denied, Rios v. Enterprise Ass'n Steamfitters, 430 U.S. 911, 97 S. Ct. 1186, 51 L. Ed. 2d 588 (1977); Guerra v. Manchester Terminal Corp., 498 F.2d 641, 655-56 (5th Cir. 1974).
The acts which resulted in the deprivation of the rights of the cadets were those of the City and not the State. In fact, the State is to be commended rather than condemned for its efforts, some of which were creative, to protect the cadets and permit them to achieve the goal promised to them and for which they had been trained.
Where as here, the City was responsible for the failure to appoint the fire cadets to permanent firefighter positions, and where the City, although admitting the qualifications of the fire cadets, rejected for several years, the opportunity to remedy that failure despite the efforts of the fire cadets and the pendency of this suit, it is appropriate that the City bear the financial burden of relief.
Relief under Title VII serves two purposes: to prevent future discrimination and to eradicate the continuing effects of past discrimination, including make whole the victims of the unlawful practices. Teamsters, 431 U.S. at 364, 97 S. Ct. at 1869; Albemarle Paper Co., 422 U.S. at 417-18, 95 S. Ct. at 2371-2372; Franks v. Bowman Transportation Co., 424 U.S. 747, 764, 96 S. Ct. 1251, 1264, 47 L. Ed. 2d 444 (1976). See Gurmankin v. Costanzo, 626 F.2d 1115, 1120-21 (3d Cir. 1980), cert. denied, 450 U.S. 923, 101 S. Ct. 1375, 67 L. Ed. 2d 352 (1981).
Back pay and seniority relief are normally to be awarded to victims of discrimination, absent unusual and compelling circumstances. Albemarle Paper Co., 422 U.S. at 421, 95 S. Ct. at 2373; Franks, 424 U.S. at 765-66, 96 S. Ct. at 1265. Such relief should include interest and pension benefits. E.g., Association Against Discrimination at 288; United States v. Lee Way Motor Freight, Inc., 625 F.2d 918 (10th Cir. 1979); Rosen v. Public Service Electric and Gas Co., 477 F.2d 90 (3d Cir. 1973); Kyriazi v. Western Electric Co., 476 F. Supp. 335 (D.N.J.1979); EEOC v. Pacific Press Publishing Ass'n, 482 F. Supp. 1291, 1319-20 (N.D.Cal.1979). "Moonlighting" earnings of the victim may be used to offset back pay only to the extent that the employer can show that the claimant would not have been able to work the second job, if he had in fact been hired by the employer. Bing v. Roadway Express Inc., 485 F.2d 441, 454 (5th Cir. 1973).
It is the employer's burden to establish the existence of a disqualifying factor or other limitation on full back pay for a victim of discrimination. Cohen, 638 F.2d at 502. Uncertainties in the calculation of relief are to be resolved against the employer, not the innocent victim of his act. Association Against Discrimination, 645 F.2d at 289; Cohen, 638 F.2d at 502; United States v. United States Steel Corp., 520 F.2d 1043, 1050 (5th Cir. 1975),
cert. denied, 429 U.S. 817, 97 S. Ct. 61, 50 L. Ed. 2d 77 (1976).
The applicants received training as fire cadets and successfully completed the program. The officers in the Fire Department were impressed with the qualifications, abilities and dedication of these graduates. For reasons allegedly dependent upon the nature of the federal grant, the emphasis of the training was altered from firefighting to emergency medical services. However, no evidence was submitted by the City of Newark to support any such change in emphasis by the federal government. On the contrary, it appears that the nature of the training was changed unilaterally by the City, and it rejected all accommodations offered by Civil Service to implement the original intention of permitting the cadets to attain firefighter status. The City cannot avoid its legal obligation and assurances to the cadets by its own change in curriculum, in assignment or in department. All of the changes in status which the City urges to justify its actions followed its unilateral alteration of the basic nature of the training program. No evidence was submitted to satisfactorily explain why the first cadet group (substantially white) received different training from the second cadet group (all minority).
It is difficult for this court to comprehend why Newark, the largest city in the state, with such a vast minority population, seeks to justify rather than acknowledge and eliminate its discriminatory practices. It is particularly difficult to understand in view of the conceded qualifications and competence of the subject cadets. If the rights of minorities cannot be protected and advanced in the state's largest city, in which the minorities are in the majority, what then of the rest of the state?
There is a distant and echoing bugle now heard in the land sounding the call for retreat from the battle against discrimination. If we are to preserve our democracy, these are not the times to retreat, but to advance the cause of civil rights.
For the foregoing reasons, plaintiff's motion for relief is granted. Counsel for plaintiff shall submit an appropriate Order to the court.