ranked higher on the list. The same is true of non-minority persons who did not pass. They too have been deprived of passing or of a higher ranking by reason of the invalidity of the tests administered.
It is this court's obligation to "eliminate the discriminatory effects of the past as well as bar like discrimination in the future". Albemarle Paper Co. v. Moody, 422 U.S. 405, 418, 45 L. Ed. 2d 280, 95 S. Ct. 2362 (1975) (quoting Louisiana v. United States, 380 U.S. 145, 13 L. Ed. 2d 709, 85 S. Ct. 817 (1965)). To use the existing eligibility lists, for any purpose, would impermissibly perpetuate the adverse impact of the invalid past exams in violation of this court's obligation.
The past exams were wholly inadequate for purposes of selecting who ought to serve as fire captain. Neither the job analyses conducted nor the test developed fairly measured the skills related to effective performance by a fire captain. See 625 F. Supp. 527, 547 (D.N.J. 1985). In effect, defendants' use of a testing mechanism, unrelated to job capability, operated "as a 'built-in headwind'" for the minority candidates. Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971).
The Supreme Court has unequivocally expressed its belief that Congress' objective in the enactment of Title VII was a prophylactic one: to achieve equality of employment "opportunities" and remove "barriers" to such equality. Id., at 429-30; See also Albemarle Paper, supra, at 417. "Title VII strives to achieve equality of opportunity by rooting out 'artificial, arbitrary, and unnecessary' employer-created barriers to professional development that have a discriminatory impact upon individuals." Connecticut v. Teal, 457 U.S. 440, 451 (1982). The invalid exams and the lists derived from them, constitute just such "artificial, arbitrary, and unnecessary" barriers to fire captain promotions. By declaring the past tests to be invalid and requiring the future ones to be non-discriminatory and job-related, the court hopefully has assured an equal opportunity for promotions to minority and non-minority fire fighters alike.
Nevertheless, those who propose minority hiring in this interim period do so with considerable justification. In many cities blacks are vastly underrepresented in the supervisory ranks. In some instances they are non-existent. Therefore there is a great temptation to right those wrongs by immediate appointment.
Such appointments have considerable drawbacks however. Provisional appointments run the risk of termination upon the publication of the new test results. Permanent appointments may carry a stigma and pose morale and resentment problems in circumstances which require unswerving loyalty and respect for one's superiors. Obtaining appointment as a result of success on a fair examination given to all, is the most satisfactory alternative.
Even if this court were inclined to authorize immediate appointments, no valid criteria have been set forth for discerning who of the minority candidates eligible for promotion, is qualified. Proposals for immediate race-concious appointments are fatally flawed by their failure to suggest valid selection standards. Many of the minority fire fighters who have now satisfied the three year minimum time-in-grade promotion prerequisite, were not eligible for, or failed, the earlier tests. Setting aside the invalid exams, no other objective criteria presently exist for determining appropriate qualification. Courts which have imposed race-concious interim remedies under circumstances similar to those presented by this case, have consistently required proof of "objective qualification" before allowing either permanent or provisional promotion. See Paradise v. Prescott, 767 F.2d 1514, 1533 (11th Cir. 1985) ("Moreover, only qualified black troopers may be promoted pursuant to the order . . ."); See also Vanguards of Cleveland v. City of Cleveland, 753 F.2d 479 (6th Cir. 1985), aff'd sub nom. Local Number 93 v. City of Cleveland, 478 U.S. 501, 106 S. Ct. 3063, 92 L. Ed. 2d 405 (1986); Firefighters Institute v. City of St. Louis, Mo., 588 F.2d 235 (8th Cir. 1978), cert. denied. 443 U.S. 904, 99 S. Ct. 3096, 61 L. Ed. 2d 872 (1979).
The makeshift remedies suggested by some of the cities, would permit appointment of non-minorities pursuant to the discriminatory lists, but would require minorities, not on the list, to take the civil service exam again. These suggestions bestow non-minorities with the benefits of discrimination, while placing the remedial burden, almost exclusively, on the minority group. This court cannot condone such proposals.
The Supreme Court has ruled that "when effectuating a limited and properly tailored remedy to cure the effects of prior discrimination, . . . a 'sharing of the burden' by innocent parties is not impermissible." Fullilove v. Klutznick, 448 U.S. 448, 484 (1980) (quoting Franks v. Bowman Transportation, Co., 424 U.S. 747, 47 L. Ed. 2d 444, 96 S. Ct. 1251 (1976)). Enjoining the use of discriminatory promotion eligibility lists is a reasonable remedy, narrowly tailored to eliminate the adverse impact of the exams. Such injunctive relief neither requires the hiring of unqualified minority firefighters, nor the discharge of any non-minority fire fighters. In Wygant v. Jackson Board of Education, 476 U.S. 267, 106 S. Ct. 1842, 90 L. Ed. 2d 260 (1986), the Supreme Court held that denial of a future employment opportunity is a relatively non-intrusive remedial burden for innocent parties to bear. The intrusiveness here is so much less where non-minorities are not permanently denied their promotion opportunity, but only required to resubmit to a new, valid qualification exam.
Even, the non-minorities who ranked high, have no legally protected interest in promotions which can only be made pursuant to the discriminatory testing mechanism. Vanguards of Cleveland, supra, at 485. Consequently, their legal rights are not unduly trammeled by a reasonable injunctive remedy. Such injunction is necessary not only to vindicate the rights of minorities, but also to vindicate the rights of non-minorities denied a fair opportunity by the invalid testing procedure. While many of the relief proposals make provision for identifiable minority persons who may have been adversely affected by the earlier exam, they do not take into account the non-minorities who may have passed the test or fared better, if the test had been work related.
Eligible fire fighters, minority and non-minority alike, must share the responsibility for erasing a legacy of discrimination within the fire fighters ranks and strive collectively toward equal opportunity. See 625 F. Supp. 527, 531 (D.N.J. 1985) ("There can be little doubt that the failure to have minorities in responsible positions of supervision is a direct result of historic discriminatory practices."). As a result of the implementation of the consent decree, a greater number of minority persons will be eligible to take the new test. No action should be taken which will minimize the number of positions available to all applicants participating on an equal basis.
In the interim period the court is concerned with serving two additional purposes. First, that no action be taken which will confer any advantage or disadvantage on any persons pending the new test. Second, that no action be taken or prohibited which will jeopardize the safety of the citizens or of their property in any of the cities affected by this action.
The court is convinced that these goals are best served by continuing or permitting the cities to initiate a system of rotating acting captains. Therefore, the court will sustain the position of the Justice Department and deny the motions and proposals of the other parties inconsistent therewith. Each municipality will be enjoined from making any provisional or permanent appointments. Each municipality may rotate acting captains in any reasonable fashion which will maximize the efficiency, safety and morale of the department, so long as such system provides no advantage or causes no disadvantage to anyone who will be eligible for promotion.
The court recognizes that this does not represent the optimum solution for the fire departments so affected. The defendant municipalities have poignantly expressed their concern over the stress prolonged rotation brings to bear on the team effort and the disruptive influence it has on managerial continuity. Efficiency and morale are better served by permanent appointments.
But, to date, no objective evidence has been presented to the court demonstrating that public safety is imperiled as a result of the rotational system. Furthermore, as noted previously, even if the court were inclined to authorize such permanent appointments, there exist no valid standards or criteria upon which the appointments could be made.
The recent decisions of the Supreme Court, although vindicating the actions already taken by this and other courts in entering affirmative action decrees, have made it clear that employment and promotion preferences based upon race are only to be implemented "where an employer or labor union has engaged in persistent or egregious discrimination or where necessary to dissipate the lingering effects of pervasive discrimination". Sheet Metal Workers' v. EEOC, 106 S. Ct. 3019, 3034 (1986). It was the Court's unequivocal message that in the majority of Title VII cases, courts ". . . will not have to impose affirmative action as a remedy for past discrimination, but need only order the employer to cease engaging in discriminatory practices . . . " Id., at 3050. The Court's rulings mandate restraint. No affirmative action is to be invoked unless considered "necessary". Id., at 3050. Even where necessary, race-conscious relief should be narrowly tailored to avoid undue trammeling of the legitimate interests of third parties. Wygant v. Jackson Board of Education, 476 U.S. 267, 106 S. Ct. 1842, 1849-52, 90 L. Ed. 2d 260 (1986). Specifically, courts were instructed to exercise their discretion "with an eye toward Congress' concern that race-concious affirmative measures not be invoked simply to create a racially balanced work force". Sheet Metal Workers', supra, at 3050.
There is little question that this court has the discretion to order affirmative action here, even given the rigorous threshold these rulings establish. Justice Brennan clearly states in Sheet Metal Workers', supra, at 3037:
[A] district court may find it necessary to order interim hiring or promotional goals pending development of non-discriminatory hiring or promotion procedures. In these cases, the use of numerical goals provides a compromise between two unacceptable alternatives: an outright ban on hiring or promotions, or continued use of a discriminatory selection procedure.