The opinion of the court was delivered by: SAROKIN
On December 19, 1985 this court issued an opinion declaring invalid the civil service exams used by the State of New Jersey for promoting fire fighters to the first level supervisory rank of fire lieutenant or captain.
It was this court's finding that the exams administered in the twelve defendant municipalities "exhibited a pattern of impact adverse to minority candidates" in violation of both Title VII and the Uniform Guidelines on Employee Selection Procedures, 28 C.F.R. Section 50.14. See 625 F.Supp 527, 534 (D.N.J. 1985). Moreover, this court found that the exam was not job-related in that it did not adequately measure the skills, abilities or knowledge necessary for the position of fire captain. Id., at 547.
As a result, the court questioned whether the promotion eligibility lists developed on the basis of exam performance could properly be used, even for the limited purpose of making interim appointments. The parties were requested to consult in an effort to arrive at an interim promotion plan pending the creation and administration of a new, valid exam. As has been typical throughout this matter, the parties cannot agree as to the form of interim relief and each proposal submitted to the court has been met with objection from one or more parties.
Each of the defendant municipalities differs both as to the number of existing and potential fire captain vacancies and as to the racial composition of its candidate pool. Yet, with minor variations, the proposals for interim relief fall into three categories:
2) requests to make permanent appointments in rank order from the existing promotion lists coupled with "make whole" relief -- backpay and retroactive seniority -- for minority applicants who pass the new exam and are subsequently appointed to future vacancies;
3) requests to make provisional (or permanent) race-concious appointments from existing promotion eligibility lists with the understanding that all provisional appointees must pass the new exam and rank high in order to retain their appointments.
In addition, Vulcan Pioneers, Inc. and Firefighters League Advocating Minority Equality, intervenors representing the interests of minority fire fighters, urge the court to implement a three step affirmative action remedy that would both eliminate the adverse impact of the exams and remove the disparity between the racial composition of the fire fighter and fire captain rank. Intervenors propose the following: immediate appointment of minority candidates until the ratio of minority captains to minority applicants equals the ratio of non-minority captains to non-minority applicants; implementation of a one-to-one minority to non-minority promotion ratio for all future permanent appointments; and, race-conscious interim promotions.
In essence, the proposals urge utilization of the existing lists and some form of affirmative relief for minorities. The court finds it inappropriate to utilize either of these concepts, or a combination thereof, for the purpose of granting even interim relief.
The Justice Department in initiating this action, sought to enjoin use of the existing promotion lists because they were the product of clearly unlawful exams. As contended by the federal government, and affirmed by this court's findings, the civil service tests had a discriminatory impact upon minorities and were not job related. It does not follow from these findings that those who passed the test and ranked high on the list are not qualified. Therefore, in rejecting the proposals submitted, it is not this court's concern that temporary appointments from the list would necessarily result in the appointment of unqualified persons.
Rather, it is this court's concern that to make appointments from those lists would undermine the very purpose of the litigation and defeat the rationale for declaring such tests invalid.
At issue in this case is both the minority group interest in overcoming the effects of historic hiring and promotion discrimination; and the individual interest of each fire fighter, minority and non-minority, in obtaining a fair promotion opportunity. Having concluded that the civil service exam unlawfully denied minorities fair promotion opportunities, to now permit appointments from lists generated by these invalid exams would totally vitiate the court's ruling and its purpose. That purpose was to require an examination which would truly and fairly test candidates for promotion and not discriminate against minorities in so doing.
Precisely because the promotion examinations administered were discriminatory and not job-related, they cannot be relied on to support the presumption that the minorities who failed are any less qualified than the non-minorities who passed. See Williams v. Vukovich, 720 F.2d 909 (6th Cir. 1983); See also Guardians Ass'n of New York v. Civil Service, 630 F.2d 79 (2nd Cir. 1980), cert. denied. 452 U.S. 940, 69 L. Ed. 2d 954, 101 S. Ct. 3083 (1981). If the test was not job related, minority persons who did not pass may have passed a valid test. Those who did pass may have ranked higher on the list. The same is true of ...