TUTTLE, Circuit Judge:
This Court entered its original opinion in this case on October 20, 1976. The Court thereafter granted defendants-cross-appellants' motion for rehearing, and the case was regularly set down for rehearing and oral argument. Although the principal basis for the rehearing motion was the Supreme Court's decision in Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), the parties were permitted to brief and argue all other issues as well.
We now withdraw the original opinion and decision, and this opinion and decision are announced in their stead.
This suit was brought on behalf of all present and future black and Mexican-American applicants for positions as firemen with the Los Angeles County Fire Department, alleging that the defendants Los Angeles County, the County Board of Supervisors and the County Civil Service Commission had been guilty of racial discrimination in hiring in violation of the Fourteenth Amendment, 42 U.S.C. § 1981, 1983 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
The plaintiff class also included all present and future black and Mexican-American employees of the Fire Department, who alleged racial discrimination in connection with defendants' promotion practices. These additional allegations, however, were abandoned prior to trial.
Jurisdiction was based on 28 U.S.C. § 1343.
The district court found that the Los Angeles County Fire Department employed blacks and Mexican-Americans grossly out of proportion to their number in the population of Los Angeles County. The court further found that the Fire Department, despite its admitted knowledge of its prior discriminatory practices and its bad reputation as an employer in the minority community, failed to undertake any effective positive steps to eradicate the effects of prior discrimination. Accordingly, the court ordered accelerated hiring of racial minorities in a ratio of one black and one Mexican-American applicant for each three white applicants until the effects of past discrimination had been erased.
Data introduced by the plaintiffs showed that this 1-1-3 ratio, given the present rate of hiring, would produce a work force of minority firemen in proportion to the number of minority persons in the community by 1979 for blacks and 1983 for Mexican-Americans.
Despite the fact that the Mexican-American population of Los Angeles County was approximately double the size of the black population, the district court ordered identical accelerated hiring for both groups due to its finding that the Fire Department's 5'7" height requirement for job applicants was a valid requirement for employment and that this height requirement had the effect of eliminating 41% of the otherwise eligible Mexican-American applicants from consideration.
The plaintiffs appeal the trial court's finding that the 5'7" height requirement is valid and could therefore be used in limiting the relief available to the Mexican-American members of the plaintiff class. The defendants cross-appeal the trial court's order of accelerated hiring. We affirm the district court's finding of a current violation of the rights of members of this class by the improper post-1971 use of an unvalidated written test as a selection device for entry level positions and its order of accelerated hiring to cure past racial discrimination; we disagree with the court's findings that plaintiffs have standing to challenge defendants' pre-1971 use of an unvalidated written test as a selection device and that the 5'7" height requirement has been sufficiently validated by the defendants. Accordingly, we reverse and remand for reconsideration of the proper ratio of accelerated racial hiring to be ordered.
I. Written Examination Procedures
Despite a minority population of approximately 29.1% in Los Angeles County, only 3.3% of the firemen employed by the defendants at the time of trial were black or Mexican-American. Plaintiffs alleged, and the trial court found, that this severe racial imbalance resulted in part from the defendants' utilization of unvalidated written examinations to rank applicants for positions as firemen. The defendants do not, and indeed cannot, dispute that these verbal aptitude tests, administered to applicants in August 1969 and in January 1972, had a discriminatory impact on minority applicants. Of the 244 blacks who took the 1969 examination, 5 were hired; of the 100 Mexican-Americans, 7 were hired, while of the 1080 whites taking the test, 175 were hired. Thus, while approximately 25% of the 1969 applicants were black or Mexican-American, based on the results of this test only 6.4% of the hires were minorities. Black and Mexican-American applicants fared no better on the 1972 examination. Specifically, while 25.8% of the white applicants were among the top 544 scorers on the test, only 5.1% of the black applicants were included in that group. Applying the now-familiar standards announced in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), the district court concluded that such statistical data alone established a prima facie case of racial discrimination in employment, thereby shifting the burden to the defendants to establish that the tests were job-related. We agree that defendants failed to satisfy their burden.
The cases holding that statistics alone may prove a prima facie case of employment discrimination, thereby shifting the burden to the defendants to justify the racial imbalance, are by this time legion. See, e. g., United States v. Masonry Contractors Ass'n of Memphis, Inc., 497 F.2d 871, 875 (6th Cir. 1974); Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 225 (5th Cir. 1974); United States v. N. L. Indus., Inc., 479 F.2d 354, 368 (8th Cir. 1973); United States v. Hayes Int'l Corp., 456 F.2d 112, 120 (5th Cir. 1972); United States v. Ironworkers Local 86, 443 F.2d 544, 550-51 (9th Cir.), cert. denied, 404 U.S. 984, 92 S.Ct. 447, 30 L.Ed.2d 367 (1971).
Defendants conceded that no studies establishing the validity of the written employment tests have been conducted in accordance with "professionally acceptable methods." See Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975).
Defendants have challenged the plaintiffs' standing to complain of the use of the unvalidated 1969 written test. In light of the fact that plaintiffs' class did not include any prior unsuccessful applicants, it follows that plaintiffs neither suffered nor were threatened with any injury in fact from the use of the 1969 examination. No firemen were hired on the basis of success on this test after plaintiffs became applicants in October 1971. The parties stipulated that approximately 100 vacancies occur in the ranks of firemen each year, and testimony at trial established that 187 applicants were placed on an eligibility list following the 1969 test. Based on these facts, we must conclude that the 1969 list was depleted before plaintiffs applied for employment as firemen.
In the absence of a statute expressly conferring standing, it is well settled that in order to have standing a plaintiff must suffer some actual or threatened injury as a result of the alleged unlawful conduct. See, e. g., Linda S. v. Richard D., 410 U.S. 614, 617, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 166-67, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972); Flast v. Cohen, 392 U.S. 83, 101, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968); Baker v. Carr, 369 U.S. 186, 204-208, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). It is thus clear that plaintiffs lacked standing to challenge defendants' prior use of the test in 1969.
Our holding on this point makes it unnecessary to discuss defendants' contention that the recent decision in East Texas Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977), precludes plaintiffs from attacking the defendants' pre-1971 hiring procedures.
It is equally clear that defendants' decision to employ the 1972 written test as a selection device was an unlawful employment practice which had adverse impact on the racial class of plaintiffs. The plaintiffs thus have standing to litigate the lawfulness of the 1972 test.
As previously indicated, the district court reached the conclusion that defendants' use of unvalidated written examinations was an illegal employment practice through application of the principles announced in Griggs, a Title VII case. Subsequent to trial on the merits in this case, the Supreme Court in Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), held that to establish a prima facie case of unconstitutional employment discrimination, discriminatory intent or purpose must be shown rather than or in addition to a statistical showing of disproportionate impact. Defendants interpret Washington to require similar proof in cases alleging employment discrimination under § 1981. Accordingly, defendants urge us to reverse the decision of the district court, since no showing was made that defendants administered the 1972 examination with any intent or purpose to discriminate against minority applicants. The issue presented is one of first impression in this Circuit. We have carefully reviewed the Court's opinion in Washington and the post- Washington cases brought to our attention by the parties. We must reject defendants' argument.
Only four other Courts of Appeals have had occasion to apply or construe the decision in Washington. The Court of Appeals for the D.C. Circuit has stated that a plaintiff proceeding under Title VII and § 1981 need not show the type of purposeful or intentional discrimination required to establish a violation of the Equal Protection Clause. Kinsey v. First Regional Securities, Inc., 557 F.2d 830 (D.C. Cir. 1977) (dictum).
In United States v. City of Chicago, 549 F.2d 415 (7th Cir. 1977), the court reversed the trial court's finding that the defendants' written examination violated the Fourteenth Amendment solely because the plaintiffs failed to satisfy the purposeful discrimination requirement of Washington. Id. at 435. The City of Chicago plaintiffs also had alleged that the examination violated § 1981, and defendants here contend that the appeals court equated § 1981 with the Fourteenth Amendment for purposes of determining the burden of proof applicable to non-Title VII actions. The City of Chicago court, however, made no mention of § 1981 in reversing the district court's ruling but specifically held that the defendants' hiring and promotion policies "did not violate the Constitution." Id. (emphasis added).
In Chicano Police Officer's Ass'n v. Stover, 526 F.2d 431 (10th Cir. 1975), an employment discrimination action alleging violations of the Equal Protection Clause, §§ 1981, 1983 and 1985, the court held that "the measure of a claim under the Civil Rights Act is in essence that applied in a suit under Title VII . . . ." Id. at 438. (citations omitted). Subsequently, the Supreme Court granted certiorari, vacated the judgment and remanded for reconsideration in light of Washington v. Davis, Stover v. Chicano Police Officer's Ass'n, 426 U.S. 944, 96 S.Ct. 3161, 49 L.Ed.2d 1181 (1976). Defendants here argue that had the Supreme Court intended the adverse impact rule of Title VII to apply to § 1981 actions after Washington, the Court simply would have denied certiorari in Stover and allowed the judgment to stand on the basis of a violation of § 1981 alone. However, neither the district court nor the court of appeals in Stover ever found that defendants had violated § 1981. Further, it is clear that the Supreme Court's action was necessitated by the court of appeal's failure to distinguish causes of action under §§ 1981 and 1983 in equating the "Civil Rights Act" and Title VII. And although the case was eventually remanded to the district court, Chicano Police Officer's Ass'n v. Stover, 552 F.2d 918 (10th Cir. 1977), the issue before this Court was not expressly decided.
Finally, in Arnold v. Ballard, 12 E.P.D. ¶ 11,224 (6th Cir. 1976) (per curiam), the court vacated an earlier decision and remanded for reconsideration in light of Washington. The per curiam opinion, however, did not discuss the issue now before us and did not explain the rationale underlying the court's decision.
The primary controversy in Washington involved the validity of a qualifying test — "Test 21" — administered to persons seeking employment with the D.C. Metropolitan Police Department. The plaintiffs alleged that Test 21 excluded a disproportionately high number of black applicants in violation of their rights under the Due Process Clause of the Fifth Amendment, 42 U.S.C. § 1981 and § 1-320 of the D.C. Code. 426 U.S. at 233, 96 S.Ct. 2040. Following various preliminary proceedings before the trial court, plaintiffs moved for partial summary judgment on their constitutional claim alone. Defendants also moved for summary judgment, asserting that plaintiffs were entitled to relief on neither constitutional nor statutory grounds. The district court, after finding that plaintiffs' statistical showing of disproportionate impact established a prima facie case of discrimination, concluded that Test 21 was "reasonably and directly related to the requirements of the police recruit training program." Davis v. Washington, 348 F. Supp. 15, 17 (D.D.C. 1972). Accordingly, the court granted defendants' and denied plaintiffs' motions. Id. at 18.
On appeal, plaintiffs argued that their summary judgment motion, which rested on purely constitutional grounds, should have been granted. The Court of Appeals for the D.C. Circuit agreed and reversed. Davis v. Washington, 168 U.S.App.D.C. 42, 512 F.2d 956 (1975). Announcing that it would be guided in its decision by the Title VII standards formulated in Griggs, the appeals court agreed that plaintiffs' statistical showing alone, without proof of a purpose on the employer's part to discriminate, made out a prima facie case, shifting the burden of proof to the defendants. 168 U.S.App.D.C. at 47, 512 F.2d at 961. In light of the district court's finding of a nexus between Test 21 and future success in police training school, the court then identified the "ultimate issue" to be "whether that kind of proof [was] an acceptable substitute" for the job-relatedness showing required by Griggs. Id., 168 U.S. App.D.C. at 48-49, 512 F.2d at 962-63. Concluding that it was not, the court directed that plaintiffs' motion for partial summary judgment be granted and the defendants' motions denied.
The Supreme Court reversed, concluding that plaintiffs "were entitled to relief on neither constitutional nor statutory grounds." Washington v. Davis, 426 U.S. 229, 248, 96 S.Ct. 2040, 2052, 48 L.Ed.2d 597 (1976). Mr. Justice White prefaced Part II of the majority opinion with this statement: "Because the Court of Appeals erroneously applied the legal standards applicable to Title VII cases in resolving the constitutional issue before it, we reverse . . . ." Id. at 238, 96 S.Ct. at 2046 (emphasis added). In holding that proof of racially discriminatory intent or purpose is required to show an equal protection violation, the Court disavowed ever having ruled that "a law or other official act . . . is unconstitutional solely because it has a racially disproportionate impact." Id. at 239, 96 S.Ct. at 2047. It is significant that throughout this discussion of "constitutional standards" and "Constitution-based claims." the Court mentioned neither § 1981 nor cases construing that statute. Nor can it be said that in resolving the equal protection question before it, the Court necessarily resolved the § 1981 claim on the same basis.
The language used by the Court clearly indicates that Part II of the opinion was directed solely toward claims of unconstitutional employment discrimination. The following passages are illustrative: (1) "We have never held that the constitutional standard for adjudicating claims of invidious racial discrimination is identical" to the Title VII standards. 426 U.S. at 239, 96 S.Ct. at 2047 (emphasis added); (2) "This is not to say . . . that a law's disproportionate impact is irrelevant in cases involving Constitution-based claims of racial discrimination." Id. at 241, 96 S.Ct. 2048 (emphasis added); (3) "Disproportionate impact . . . is not the sole touchstone of an invidious racial discrimination forbidden by the Constitution." Id. at 242, 96 S.Ct. at 2049 (emphasis added); (4) "We are not disposed to adopt [the] more rigorous [Title VII] standard for the purposes of applying the Fifth and the Fourteenth Amendments . . . ." Id. at 247-48, 96 S.Ct. at 2051 (emphasis added).
Defendants contend that the Washington majority "specifically refer[red] to several § 1981 cases and note[d] their disagreement with the appellate court's reliance upon the Title VII standards of proof." The Court did note its disapproval of several cases but explained that it was in disagreement only "to the extent that those cases rested on or expressed the views that proof of discriminatory racial purpose is unnecessary in making out an equal protection violation." 426 U.S. at 245, 96 S.Ct. at 2050 (emphasis added). Furthermore, each case cited in this context involved, in addition to a § 1981 claim, a claim under either the Equal Protection Clause or § 1983.
During recent history, every court which has considered the question has construed § 1981 to bar discrimination in employment. See Long v. Ford Motor Co., 496 F.2d 500 (6th Cir. 1974); Macklin v. Spector Freight Sys., Inc., 156 U.S.App.D.C. 69, 478 F.2d 979 (1973); Brady v. Bristol-Meyers, Inc., 459 F.2d 621 (8th Cir. 1972); Brown v. Gaston County Dyeing Mach. Co., 457 F.2d 1377 (4th Cir.), cert. denied, 409 U.S. 982, 93 S.Ct. 319, 34 L.Ed.2d 246 (1972); Young v. International Tel. Tel. Co., 438 F.2d 757 (3d Cir. 1971); Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (5th Cir. 1970), cert. denied, 401 U.S. 948, 91 S.Ct. 935, 28 L.Ed.2d 231 (1971); Waters v. Wisconsin Steel Works of Int'l Harvester Co., 427 F.2d 476 (7th Cir.), cert. denied, 400 U.S. 911, 91 S.Ct. 137, 27 L.Ed.2d 151 (1970). The courts consistently have employed Title VII principles as a benchmark not only in cases involving alleged discriminatory impact, see Wade v. Mississippi Coop. Extension Serv., 528 F.2d 508, 516-17 (5th Cir. 1976); King v. Yellow Freight Sys., Inc., 523 F.2d 879, 882 (8th Cir. 1975); Kirkland v. New York State Dept. of Correctional Servs., 520 F.2d 420, 425 (2d Cir. 1975), cert. denied, 429 U.S. 823, 97 S.Ct. 73, 50 L.Ed.2d 84 (1976); Barnett v. W. T. Grant Co., 518 F.2d 543, 549 (4th Cir. 1975), but in other contexts as well. See, e. g., Flowers v. Crouch-Walker Corp., 552 F.2d 1277, 1281 n. 3 (7th Cir. 1977) (discriminatory discharge of employee); McCormick v. Attala County Bd. of Educ., 541 F.2d 1094, 1095 (5th Cir. 1976) (per curiam) (available remedies). Indeed, the Supreme Court has recognized that Title VII and § 1981 embrace "parallel or overlapping remedies against discrimination." Alexander v. Gardner-Denver Co., 415 U.S. 36, 47 n. 7, 94 S.Ct. 1011, 1019, 39 L.Ed.2d 147 (1973). In the absence of any express pronouncement from the Supreme Court — a pronouncement not delivered in Washington — we are unwilling to deviate from this established practice. Any unnecessary deviation not only could produce undesirable substantive law conflicts, see Waters v. Wisconsin Steel Works of Int. Harvester Co., 502 F.2d 1309, 1316 (7th Cir. 1974), cert. denied, 425 U.S. 997, 96 S.Ct. 2214, 48 L.Ed.2d 823 (1976), but also would dilute what has been a potent remedy for the ills of countless minority employees subjected to the unlawful discriminatory conduct of their employers. Thus, we cannot conclude that Washington embraced a ruling that a showing of disproportionate impact no longer will suffice to establish a prima facie case of employment discrimination under § 1981. In our view, there remains no operational distinction in this context between liability based upon Title VII and § 1981.
Accord, League of Latin American Citizens v. City of Santa Ana, 410 F. Supp. 873 (C.D.Cal. 1976). But see Ortiz v. Bach, 14 F.E.P. Cases 1019 (D.Colo. 1977); Johnson v. Hoffman, 424 F. Supp. 490 (E.D.Mo. 1977); Resident Advisory Bd. v. Rizzo, 425 F. Supp. 987 (E.D.Pa. 1976).
The defendants further argue that the district court lacked jurisdiction under either §§ 1981 or 1983 to decide these claims. As to § 1983, the defendants are clearly correct. A municipality is not a "person" suable under § 1983, and thus the three municipal defendants are not subject to suit under § 1983. See City of Kenosha v. Bruno, 412 U.S. 507, 511-13, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973); Monroe v. Pape, 365 U.S. 167, 187-92, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Since no individual defendants were named in this suit, the plaintiffs' § 1983 claim is barred. Section 1981, however, is not subject to the same jurisdictional limitations. See Sethy v. Alameda County Water Dist., 545 F.2d 1157 (9th Cir. 1976) (en banc).
42 U.S.C. § 1983 provides:
"Every person who, under color of any statute . . . of any State . . . subjects . . . any citizen of the United States . . to the deprivation of any rights . . . secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceedings for redress." (emphasis added)
Individuals may be sued in their official capacity. See Sterzing v. Fort Bend Independent School Dist., 496 F.2d 92, 93 n. 2 (5th Cir. 1972); United Farmworkers of Florida Housing Project, Inc. v. City of Del Ray Beach, 493 F.2d 799, 802 (5th Cir. 1974); Harper v. Kloster, 486 F.2d 1134, 1138 (4th Cir. 1973). As the plaintiffs did not allege federal question jurisdiction under 28 U.S.C. § 1331, their Fourteenth Amendment claim does not stand apart from their § 1983 claim. Although it should be clear, we also note that since no purposeful or intentional discrimination by the defendant was proved, plaintiffs' Fourteenth Amendment and § 1983 causes of action could not have been sustained under Washington.
In summary, we believe the district court properly found defendants' use of the 1972 written examination as a selection device to be violation of § 1981. Plaintiffs produced overwhelming statistical data to establish the test's disproportionate impact upon minority applicants, and the defendants were unable to validate the test in terms of job-relatedness. Defendants' decision, prompted solely by the filing of this lawsuit, to abandon the written exam as a selection device does not moot the claim. United States v. W. T. Grant Co., 345 U.S. 629, 632-33, 73 S.Ct. 894, 97 L.Ed. 1303 (1953).
In Part III of the opinion in Washington v. Davis, the majority agreed with the district court's conclusion that Test 21 had been sufficiently validated by a validation study and other evidence showing a nexus between success on the test and success in police training school. 426 U.S. at 250-51 n. 17, 96 S.Ct. 2040. It is at least arguable that by not requiring the defendants to meet the job-relatedness standards of Title VII, the Court implicitly held that employers sued under § 1981 may escape liability by showing something less than job-relatedness. We need not address that question here, since defendants' proof not only is insufficient under Griggs, but also falls far short of the quality and quantity of proof offered in Washington.
Of course, this continued threat to use the 1972 test as part of the selection process right up to the filing of the complaint in this case is admittedly a violation of Title VII.
II. The 5 Foot, 7 Inch Height Requirement
Among the other of defendant's practices challenged by the plaintiffs was the 5'7" height requirement. In Dothard v. Rawlinson, ___ U.S. ___, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977), the Supreme Court held that Title VII forbids the use of height requirements which have discriminatory effect unless the employer meets "the burden of showing that [the] requirement [has] . . . a manifest relation to the employment in question." Id. at 2726, quoting Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971).
Here there can be no question that the 5'7" height requirement has discriminatory impact. The parties stipulated that 41% of the otherwise eligible Mexican-American applicants are excluded by the requirement. The defendants further conceded that no scientifically approved test has been utilized to determine whether the height requirement is in fact job-related. The only testimony in the record on point is that of Chief Stanley E. Barlow, himself only 5'8", who testified that he believed a small man might have difficulty working with taller men in removing long ladders and other equipment and might have a slower reaction time in climbing on and off equipment. Chief Barlow conceded that in the past firemen under 5'7" have been able to function without impairment due to their height.
We accordingly note that the continuing use of this height requirement constitutes a continuing violation of Title VII and provides a basis for relief in addition to § 1981.
These shorter firemen were employed during World War II when the standard was relaxed, and when firemen of other cities automatically joined the L.A. County Fire Department when their employing cities were annexed by L.A. County.
It seems clear to us that this testimony falls far short of validating a height requirement which has a serious impact in restricting Mexican-American employment in the County Fire Department. The district court did not have the benefit of Dothard, supra, and, therefore, did not apply the standard of proof required by that case. The evidence introduced was inadequate to meet the Dothard requirement that the height restriction was manifestly related to employment by the Fire Department. Accordingly, the district court's finding of job-relatedness must be reversed.
Our earlier comments with respect to validation of employment criterion challenged under § 1981 are equally applicable in this context. See note 15, supra.
III. Affirmative Relief
The defendants contest the affirmative relief ordered by the district court. However, as this Court has noted,
"[t]here can be little doubt that where a violation of Title VII is found, the court is vested with broad remedial power to remove the vestiges of past discrimination and eliminate present and assure the non-existence of future barriers to the full enjoyment of equal job opportunities by qualified black workers."
United States v. Ironworkers Local 86, 443 F.2d 544, 553 (9th Cir.), cert. denied, 404 U.S. 984, 92 S.Ct. 447, 30 L.Ed. 367 (1971) (citations omitted). We do not believe the court lacks equal power under § 1981 to order relief. Indeed, "[i]n fashioning an appropriate remedy for employment discrimination, Congress has granted courts plenary equitable power under both Title VII . . . and section 1981." Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 243 (5th Cir. 1974) (footnotes omitted). Although the decided cases have primarily involved either Title VII or § 1983, and not § 1981, we feel the extensive case law under both sections approving affirmative relief is directly applicable here. We see no reason to limit the relief available under § 1981 merely because in the past § 1981 and Title VII have been read in tandem. See. e. g., Boston Chapter, NAACP, Inc. v. Beecher, 504 F.2d 1017 (1st Cir. 1974), cert. denied, 421 U.S. 910, 95 S.Ct. 1561, 43 L.Ed.2d 775 (1975); Franks v. Bowman Transp. Co., 495 F.2d 398 (5th Cir. 1974) modified, 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976); Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 (5th Cir. 1974); Johnson v. Goodyear Tire Rubber Co., 491 F.2d 1364 (5th Cir. 1974). Similarly, we note that Title VII and § 1983 cases frequently have been cited as involving analogous principles in fashioning equitable relief, see Rios v. Enterprise Ass'n Steamfitters Local 638, 501 F.2d 622, 628 (2d Cir. 1974); Carter v. Gallagher, 452 F.2d 315, 329 (8th Cir. 1971) (en banc), cert. denied, 406 U.S. 950, 92 S.Ct. 2045, 32 L.Ed.2d 338 (1972), and cases involving one statute have been cited in support of the relief ordered in cases involving the other.
Eight Court of Appeals, including this one, have considered and approved the use of accelerated hiring goals or quotas to eradicate the effects of past discrimination. See Boston Chapter, NAACP, Inc. v. Beecher, 504 F.2d 1017 (1st Cir. 1974), cert. denied, 421 U.S. 910, 95 S.Ct. 1561, 43 L.Ed.2d 775 (1975) ( §§ 1981 1983, Title VII); Rios v. Enterprise Ass'n Steamfitters Local 638, 501 F.2d 622 (2d Cir. 1974) (Title VII); United States v. Masonry Contractors Ass'n of Memphis, Inc., 497 F.2d 871 (6th Cir. 1974), (Title VII); Franks v. Bowman Transp. Co., 495 F.2d 398 (5th Cir. 1974), modified, 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976) (Title VII); Morrow v. Crisler, 491 F.2d 1053 (5th Cir.) (en banc), cert. denied, 419 U.S. 895, 95 S.Ct. 173, 42 L.Ed.2d 139 (1974) ( § 1983); Vulcan Society v. Civil Serv. Comm'n, 490 F.2d 387 (2d Cir. 1973) ( § 1983); Associated Gen. Contractors of Mass., Inc. v. Altshuler, 490 F.2d 9 (1st Cir. 1973), cert. denied, 416 U.S. 957, 94 S.Ct. 1971, 40 L.Ed.2d 307 (1974) (Title VII); Bridgeport Guardians, Inc. v. Civil Serv. Comm'n, 482 F.2d 1333 (2d Cir. 1973) ( §§ 1981, 1983); United States v. N.L. Indus., Inc., 479 F.2d 354 (8th Cir. 1973) (en banc) ( § 1983); Pennsylvania v. O'Neill, 473 F.2d 1029 (3d Cir. 1973) (en banc) ( § 1983); United States v. Local 212, IBEW, 472 F.2d 634 (6th Cir. 1973) (Title VII); United States v. Wood Lathers Local 46, 471 F.2d 408 (2d Cir.), cert. denied, 412 U.S. 939, 93 S.Ct. 2773, 37 L.Ed.2d 398 (1973) (Title VII); Castro v. Beecher, 459 F.2d 725 (1st Cir. 1972) ( § 1983); United States v. Carpenters Local 169, 457 F.2d 211 (7th Cir.), cert. denied, 409 U.S. 851, 93 S.Ct. 63, 34 L.Ed.2d 94 (1972) (Title VII); Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1971) (en banc), cert. denied, 406 U.S. 950, 92 S.Ct. 2045, 32 L.Ed.2d 338 (1972) ( § 1983); United States v. Ironworkers Local 86, 443 F.2d 544 (9th Cir.), cert. denied, 404 U.S. 984, 92 S.Ct. 447, 30 L.Ed.2d 367 (1971) (Title VII); Contractors Ass'n of Eastern Pa. v. Secretary of Labor, 442 F.2d 159 (3d Cir.), cert. denied, 404 U.S. 854, 92 S.Ct. 98, 30 L.Ed.2d 95 (1971) (Title VII); United States v. Local 38, IBEW, 428 F.2d 144 (6th Cir.), cert. denied, 400 U.S. 943, 91 S.Ct. 245, 27 L.Ed.2d 248 (1970) (Title VII); Local 53, Asbestos Workers v. Vogler, 407 F.2d 1047 (5th Cir. 1969) (Title VII). While the defendants argue § 703(j) of Title VII forbids the imposition of racial quota hiring, even were this to be an order premised solely on Title VII, we note this view has been uniformly rejected by the many courts which have considered the question.
Harper v. Kloster, 486 F.2d 1134 (4th Cir. 1973) did not hold to the contrary, but upheld the district court's refusal to impose quotes within the facts of that case as not being an abuse of discretion.
We believe the district court properly exercised its discretion in ordering affirmative action to be undertaken to erase the effects of past discrimination. We do not believe that such relief may be limited to the identifiable persons denied employment in the past — for "the presence of identified persons who have been discriminated against is not a necessary prerequisite to ordering affirmative relief in order to eliminate the present effects of past discrimination." Carter v. Gallagher, 452 F.2d at 330.
Nor are remedial goals limited to any specific or prescribed form. The precise method of remedying past misconduct is left largely to the broad discretion of the district court. Goals have been expressed in terms of specific numbers or ratios . . . or percentages . . . .
Rios v. Steamfitters Local 638, 501 F.2d at 631 (citations omitted).
While we remand because the district court expressly stated that the reason it ordered identical accelerated hiring of blacks and Mexican-Americans in equal ratios was because of the validity of the 5'7" height requirement, we do not necessarily believe a 1-1-3 ratio was incorrect. The court, however, should reconsider its order in light of our decision that the 5'7" height requirement is invalid and that plaintiffs lacked standing to challenge defendants' use of the 1969 written examination.
The defendants finally argue that the imposition of an affirmative order to hire minority applicants is unnecessary. They argue in effect that they have already commenced and that they can be relied upon further to improve their hiring practices without the added impetus of a court order. The experience of the Court of Appeals for the Fifth Circuit is useful in this regard — "protestations or repentance and reform aimed to anticipate or blunt the force of a lawsuit offer insufficient assurance that the practices sought to be enjoined will not be repeated." Rowe v. General Motors Corp., 457 F.2d 348, 359 (5th Cir. 1972); accord, United States v. Oregon State Medical Soc'y, 343 U.S. 326, 333, 72 S.Ct. 690, 96 L.Ed. 978 (1952). Here the record shows that the defendants had decided to use an unvalidated verbal aptitude test to hire new candidates in 1973 and that the only reason the test was not used was notice of this suit. The personnel director of the defendants testified at length at the trial and acknowledged that he was aware of the discriminatory impact such a test would have. Further, the trial judge found that defendants had failed and refused to take necessary affirmative steps to overcome the department's bad reputation in black and Mexican-American communities. We emphasize that this was not a close case — in a community of 29.1% minority population, only 3.3% of the firemen employed by defendants were black or Mexican-American. These factors are hardly persuasive evidence of the defendants' good faith, even were such good faith relevant in fashioning relief. We agree with the district court that an accelerated hiring order is the only way "to overcome the presently existing effects of past discrimination within a reasonable period of time."
In Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), a Title VII case, the Supreme Court rejected good faith as a defense. "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. We believe good faith is equally inapplicable to § 1981.
In sum, we believe the district court was wholly justified in deciding to impose affirmative hiring orders upon the defendants.
We do not read United Air Lines v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977) to restrict in any way the affirmative relief ordered in this case.
While it should be obvious to all, we nevertheless repeat the admonition that nothing said by this Court is to be taken as a requirement that the defendants hire any unqualified applicant for the performance of these essential jobs.
AFFIRMED in part, REVERSED in part and REMANDED for further proceedings not inconsistent with this opinion.