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May 26, 1972

Commonwealth Of Pennsylvania et al., Plaintiffs,
Joseph F. O'Neill et al., Defendants

Fullam, D. J.

The opinion of the court was delivered by: FULLAM


This action was brought by the Commonwealth of Pennsylvania and by certain black citizens of Philadelphia, on behalf of a class consisting of black police officers of the City of Philadelphia, and black citizens of Philadelphia who have unsuccessfully sought employment in the Police Department of the City, or who may wish to obtain such employment in the future, alleging that existing personnel policies within the Philadelphia Police Department have the effect of discriminating unfairly against blacks in both hiring and promotion. Plaintiffs have petitioned for preliminary injunctive relief. Extensive hearings on plaintiffs' application for a preliminary injunction have been held, concluding on May 25, 1972.

 At the conclusion of the hearing, the parties were directed to explore the possibility of agreement upon some form of interim relief pending final hearing (both sides having indicated that they would not be ready for final hearing for several months); however, the Court is now advised that the parties have been unable to reach agreement.

 During the interval between the first hearing, on April 20, 1972, and the present date, a temporary restraining order has been in effect. This Order merely requires the defendants to notify the Court and plaintiffs' counsel of any contemplated hirings or promotions, so as to afford plaintiffs an opportunity to object. This Order was based primarily upon the assertion by the defendants that no hirings or promotions were contemplated during this interval; and, apparently, no such action has occurred. However, it seems probable that, in order to fill vacancies as they arise, the Police Department may need to hire and/or promote in the very near future, before the parties have had an opportunity to brief or argue the merits of the preliminary injunction request, and before the Court can complete the required careful analysis of the voluminous statistical evidence which has been offered, and set forth the detailed findings of fact which will be required. It is therefore necessary that a more definitive interim order now be entered.

 Applicants for appointment to the Police Force are administered a written, civil service-like, examination. Those who pass are then subjected to physical and psychiatric examination. Those who pass are subjected to an extensive investigation of their backgrounds, by employees of the Police Department. Those who pass all of these steps are then certified as eligible for appointment to the Police Academy.

 The principal thrust of plaintiffs' evidence is to the effect that (a) the written examinations discriminate unfairly against blacks, and do not meet the criteria of the guidelines established by the Equal Employment Opportunity Commission (EEOC); (b) the background investigation process discriminates unfairly against blacks, both in the selection of the kinds of adverse factors which serve to disqualify, and in the application of the factors selected. The defendants, on the other hand, contend that some of plaintiffs' statistical data may be inaccurate, and that the data do not support the conclusions reached by plaintiffs' expert witnesses.

 The evidence which has been presented includes a mass of statistical exhibits, depositions, affidavits, and oral testimony, all of which must be carefully analyzed before deciding whether a preliminary injunction, effective until final hearing, should be entered. And, admittedly, the statistical evidence on both sides is subject to further amplification and refinement before final hearing. If plaintiffs' evaluation of the statistical data is found to be correct, several forms of relief would probably be appropriate: the written examinations would have to be validated in terms of job performance, a process that might take several months; depending upon the outcome of such validation studies, the tests might require revision or complete replacement; and the process of background screening would have to be revised. Apart from the question of damages in certain cases, it might ultimately prove necessary to require corrective action to bring about an appropriate racial balance. Contrary to some of the arguments expressed at the hearings, this does not, of course, imply any "lowering of standards," but rather the adoption of proper standards, consistent with maintenance of a qualified, competent police force.

 However, until the statistical evidence has been fully analyzed, and findings of fact made thereon, it would in my view be improper to assume the necessity of affirmative corrective action to achieve any greater degree of racial balance than is embodied in the existing applications.

 Accordingly, an order will be entered which will permit the Police Department to hire such additional policemen as are needed to fill vacancies as they arise, provided at least one-third of those hired are members of the black race. (This figure roughly corresponds to population ratios, and to a conservative estimate of the racial make-up of applicants to the force.) The defendants will be free to utilize existing selection procedures, thus insuring that those hired will meet current standards of eligibility. The defendants will, of course, be required to retain adequate and complete records of all applicants, whether or not they pass the written examination, and whether or not they pass the background screening.

 With respect to promotions, a correct solution is less clear, and involves many more intangibles. The need to make promotions in the near future may be less pressing. The probability that all persons on the certified lists are adequately qualified seems greater. Since all persons on promotional eligibility lists have successfully dealt with the original written examination for admission to the Police Academy, and with the various tests administered at the Academy, there is a greater likelihood that any existing disparity in number between blacks and whites would be attributable to the discriminatory impact of past hiring practices, rather than to the promotional examination itself (hence to be corrected, if at all, after final hearing). On the other hand, conflicting morale factors must be considered: departmental morale would be adversely affected if blacks who appear substantially less qualified were to be promoted in place of substantially better qualified whites; but departmental morale would also be adversely affected if promotions are made on a basis which ultimately may be found to be discriminatory against blacks. On balance, I have concluded that, during the relatively brief period during which the order about to be entered will remain in effect, it is unnecessary for the Court to impose restraints against promotions from existing eligibility lists. If it should develop that any such promotions are tainted, corrective measures can be taken at a later stage of these proceedings.

 It is assumed that, during the relatively brief period pending decision on plaintiffs' request for preliminary injunction, only those promotions which are deemed essential to the proper functioning of the Police Department will be made; and that, as among individuals of substantially equal standing on the eligibility lists, every effort will be made, consistent with maintenance of morale within the Department, to observe the one-third -- two-thirds minimum standard referred to above.

 It is also assumed that, in order to avoid any suspicion of partiality, the defendants will take appropriate steps to insure meaningful participation by black police personnel in decisions relating to acceptability of applicants on the basis of the results of the background investigations.


 And now, this 26th day of May, 1972, after hearing, ...

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