over a twenty-year period. The importance to the Court of this distinction between zero black representation and a mere disproportion between black population and black representation on a municipal force does not amount to a holding that a certain degree of racial discrimination in public employment is de minimis. The standards to be applied in arriving at a showing of prima facie de facto discrimination, and the significance of such a finding, have been clearly set out earlier in this Opinion. Rather, the differentiation between zero representation and a disparity in representation goes only to the remedy the Court must fashion in its discretion. A case of this sort inevitably involves the delicate balancing of the most sensitive individual and societal needs throughout. In the remedy phase of a case such as this, the differentiation set out above has an obvious bearing on the urgency and necessity for imposing quota hiring to more quickly remedy the effects of past discrimination.
The second factor which leads the Court to distinguish Sebastian in terms of remedy is the fact that Sebastian involved a municipal police force, whereas this case involves a municipal fire department. This factor, like the differentiation between zero representation and a disparity in representation, goes not to the substantive findings which are the first consideration in a public employment discrimination case, but only to the urgency and necessity for imposing the drastic remedy of a racial hiring quota.
This second factor is based upon the degree of public interaction inherent in the type of public employment under examination. In any racially integrated community, the importance of having at least some degree of minority representation on the police force cannot be underemphasized. Minority representation on the police force is vitally important, both in terms of the self-esteem of minority group members, and in terms of the manner and degree of compliance accorded the police in their peace-keeping duties. It might be said that in an integrated community, the visibility of blacks on the police force is one of the keys to the maintenance of social stability. The same cannot be said of a municipal fire department, for its employees do not perform in the public arena as frequently and do not attempt to impose the sanctions and controls of the state upon the public as frequently. Needless to say, however, the second factor must be taken in conjunction with the first, and a court faced with a total absence of black firefighters in a municipal fire department might well see fit to require a racial hiring quota to remedy the situation.
Most of the courts who have seen to impose quotas in employment discrimination cases have followed the reasoning employed in Carter v. Gallagher, supra, one of the first district court or appellate court decisions in the area of public employment discrimination. The cases which follow Carter in imposing a quota, for example, NAACP v. Civil Service Comm., S.F., supra, do so in reliance on Carter's basic assumption that the Supreme Court's language in Swann v. Charlotte-Mecklenburg School District, 402 U.S. 1, 91 S. Ct. 1267, 28 L. Ed. 2d 554 (1970),
wherein the Court approved a racial quota as a remedy for school segregation, renders by analogy the imposition of racial quotas in public employment cases constitutionally permissible.
The analogy is inapposite. The school integration cases are not precedent for compelling public employers to hire on a racial basis.
In the first place, such a conclusion is at odds with the meaning and intent of both the Fourteenth Amendment and the Civil Rights Act of 1964. Title VII of the Civil Rights Act clearly prohibits all hiring on the basis of race. 42 U.S.C. 2000e-2(j) (1964). Under the Act, no minority group member may be discriminated against or hired on the basis of race. Moreover, unless the Fourteenth Amendment is applicable only to blacks, a highly questionable proposition on its face, it too serves to mandate colorblindness in hiring.
Insofar as racial preference hiring quotas deny employment to qualified persons of other races, they compel reverse discrimination.
If any racial classification is constitutionally objectionable in and of itself, then no governmental purpose, even the eradication of racial discrimination and its effects, can justify the imposition of racially oriented hiring quotas.
The weighty and devilishly paradoxical considerations involved in the question of constitutionality need not be decided here. It is not necessary, indeed it would be presumptuous, for this Court to rule that employment quotas are unconstitutional in that they compel reverse discrimination. The question is not before the Court. But considerations of constitutionality, along with other troublesome considerations, lead this Court to reject the remedy of racially-oriented hiring preferences in this case.
Putting aside questions of constitutionality, two considerations provide a strong rationale for avoiding the imposition of a racial hiring quota. First, the Court is not unmindful of the possibility that what is begun as a minimum quota today can easily become a maximum quota in the near future. Historically, the numerus clausus has been a frequently used tool to effectuate discrimination. This Court will not contribute to that process.
Second is the fact that, in the final analysis, responsibility for eradicating racial discrimination in the Pittsburgh Bureau of Fire rests upon the defendants alone. The interference of a federal court in their hiring practices raises questions not only of comity, but of practicality, for this Court, like any other, is without the facilities or the personnel to oversee the operation of a hiring system, even if it were to maintain continuing jurisdiction, which it will not do. The defendants have made earnest, good faith efforts to recruit blacks for the Bureau of Fire. If, as we were told by one of plaintiffs' witnesses, the problem is essentially one of re-education so that blacks perceive the Bureau of Fire as an organization which will treat them fairly in its employment practices, then the defendants have already made significant strides toward the goal of equal treatment. The maintenance of continuing jurisdiction is unnecessary because the Court has every reason to believe that the defendants' bona fide efforts to recruit and train more blacks will not slacken.
Perhaps having taken into account some of the considerations discussed above, several courts since Carter v. Gallagher have refused to impose racial quotas, while at the same time approving and ordering other affirmative measures to eliminate the present effects of past discrimination. Harper v. Mayor, supra ; Castro v. Beecher, supra ; Chance v. Bd. of Examiners, 330 F. Supp. 203 (S.D.N.Y. 1971), aff'd 458 F.2d 1167 (2d Cir. 1971); Arrington v. Mass. Bay Transit Auth., 306 F. Supp. 1355 (D. Mass. 1969); Quarles v. Philip Morris, Inc., 279 F. Supp. 505 (E.D. Va. 1968) (private employment). It is that course which will be followed here.
It must, however, be made clear that the fact that at this stage of the proceedings the Court has rejected the option of imposing a racial hiring quota does not mean that it is foreclosed from instituting such a remedy in the future. A useful lesson in this regard is presented in the case of W.A.C.O. v. Alioto, supra, wherein the District Court on three separate occasions
refrained from imposing a quota, each time calling only for a non-discriminatory, job-related examination to be submitted to the court for approval. Three times the defendants failed to submit such an examination, until finally the district court in its most recent decision had no alternative but to impose a racial hiring preference. Should defendants in this case fail to comply with the Order which accompanies this Opinion, in other words, should we find ourselves faced with the stubborn and dilatory noncompliance which faced the court in W.A.C.O., this Court will not hesitate to reconsider its remedy and impose a racial hiring quota. As matters stand, however, this Court has confidence that the defendants will proceed with dispatch to implement the program the Order sets out for eliminating racial discrimination in the Pittsburgh Bureau of Fire.
And now, to wit, this 15th day of January, 1974, in accordance with the foregoing Opinion in the above-captioned case, it is hereby ordered as follows:
1. Defendants, their successors and all individuals acting in concert with them shall conduct further entrance level admission examinations for the position of firefighter with the City of Pittsburgh Bureau of Fire only if, within six months of the date of this Order, either:
(a) The defendants, their successors and all persons acting in concert with them take all necessary steps with all reasonable diligence to demonstrate that the 1972 examination is substantially related to job performance. That is, the defendants, their successors and all individuals acting in concert with them shall take necessary steps with all reasonable diligence to subject the 1972 examination to either content validation or predictive validation; or
(b) The defendants, their successors and all individuals acting in concert with them formulate a new and validated examination which is job-related and non-discriminatory in accord with the standards set out in 1(a) above.
(c) The defendants, their successors and all individuals acting in concert with them shall also take all necessary steps with all reasonable diligence to insure that the examination which has been validated in accord with 1(a) or 1(b) above be, insofar as it is possible, free of cultural bias towards blacks.
(d) Any showing that the defendants, their successors and all individuals acting in concert with them have failed to comply with 1(a) or 1(b) above may be made to this Court upon application of interested parties, with request for further relief as may be appropriate.
2. The defendants, their successors and all individuals acting in concert with them shall also take all necessary steps with all reasonable diligence to recruit eligible blacks to take the eligibility examination validated in accord with 1(a) and 1(b) above, such steps to be in accord with, but not limited by, those recruitment efforts taken with regard to the 1972 examination.
3. The defendants, their successors and all individuals acting in concert with them, while they are taking all steps necessary to the completion of a validated examination, may undertake further hiring from the 1972 eligibility list, except that such hiring shall not be conducted on a basis other than actual need.
4. Plaintiffs' motions for preliminary and permanent injunction are hereby denied as moot, in light of the relief ordered above.