No. 56 March Term, 1978, Appeal from the Order of the Commonwealth Court of Pennsylvania at No. 1047 C.D. 1976, Reversing the Order and Decree of the Court of Common Pleas of Allegheny County, Pennsylvania, at No. GD 76-08187, In Equity.
Mead J. Mulvihill, Jr., City Sol., Robert B. Smith, Asst. City Sol., Pittsburgh, for appellants.
Sanford A. Segal, Christopher Lepore, Gatz, Cohen, Segal & Koerner, M. J. McCaney, Jr., Pittsburgh, for appellees.
Robert S. Mirin, Harrisburg, Marc Kranson, Washington, D.C., John E. Benjes, Harrisburg, for appellant-intervenor Pa. Human Relations Com.
Patricia G. Miller, Asst. Atty. Gen., Michael Louik, Deputy Atty. Gen., Pittsburgh, for appellant-intervenor Com. of Pa.
Myrna P. Field, Mid-Atlantic Legal Foundation, Philadelphia, for amicus curiae.
Roberts, Justice. Manderino, J., did not participate in the decision of this case. Larsen, J., files a dissenting opinion.
This case presents the question of whether a municipal employer which has been found guilty of racial discrimination by a federal court may institute temporary remedial race-conscious hiring. Plaintiffs, white applicants for jobs as firefighters in the City of Pittsburgh, challenge the Pittsburgh Civil Service Commission's proposed use of race-conscious hiring procedures to correct racial discrimination in the Pittsburgh Bureau of Fire. Claiming they would have been hired but for the challenged procedures, these plaintiffs took statutory appeals from the Commission's proposal and also sought injunctive relief. These actions were consolidated before the Court of Common Pleas of Allegheny County which, after a hearing, denied all claims. On appeal a divided Commonwealth Court reversed, holding that the Commission's action was not authorized by federal employment discrimination law and violated state employment discrimination law, state civil service law and the equal protection clause of the United States Constitution.
We granted allowance of appeal to consider these important issues. Given the predicate of a federal judicial finding of discrimination as well as the important interests of federal-state comity and voluntary compliance with federal and state employment standards, we hold the use of race-conscious hiring is permissible in this case. Accordingly, we reverse the order of the Commonwealth Court and reinstate the order and decree of the court of common pleas.
In an important sense this case began in the federal courts. In 1974 the United States District Court for the Western District of Pennsylvania found that the Pittsburgh Bureau of Fire and the Pittsburgh Civil Service Commission had been discriminating in hiring against blacks in violation of federal law. Commonwealth of Pennsylvania v. Glickman, 370 F.Supp. 724 (W.D.Pa.1974).*fn1 The lawsuit was brought by the Commonwealth of Pennsylvania and by the certified class of "all black persons who presently have applications pending for the position of firefighter with the City of Pittsburgh Bureau of Fire, as well as all black persons who may apply for said position at any time in the future." Among the named defendants were the members of the Pittsburgh Civil Service Commission. The Commission is charged by state law with the obligation to test and certify to the City all candidates for firefighter. See Act of June 27, 1939, P.L. 1207, § 1, as amended, 53 P.S. § 23491 (Supp.1979). The plaintiffs claimed that the City's hiring practices, based on the Commission's testing procedures, were illegally discriminatory and sought an injunction against future discrimination. Plaintiffs alleged a history of
minority under-representation in the Pittsburgh firefighting force, including a prior history of intentional limitation on the number of black firefighters. The plaintiffs also specifically attacked the Commission's 1972 testing procedures, claiming that the tests had an unjustifiable racially disproportionate impact.
Testimony in the federal district court reviewed in detail hiring practices in the Bureau of Fire from the 1930's onward. Undisputed evidence from Bureau officials, for example, described hiring practices from the 1930's through the 1950's when the City maintained two segregated black firehouses. This testimony acknowledged the existence of a patronage hiring system which, even long after the demise of the "separate but equal" doctrine continued to place a fixed limit on the number of jobs available to blacks. As a result of this and other practices the district court found that
"in 1950, when Pittsburgh's total population was approximately 675,000, 12% of its citizens and roughly 3% of its firefighters were black. In 1960, about 16% of the city's population and 3% of its firefighters were black. In 1973, the black percentage of the city's population had risen to 20%, and yet still only 3.9% of its firefighters were black."
370 F.Supp. at 730 (footnote omitted).
The district court next considered the results of the Commission's 1972 eligibility test, which included a written examination. The court found that 70% of the white applicants taking the written examination passed, while only 45.2% of the black applicants passed. On the basis of these test results and the past and current disparity between the percentage of black firefighters and the percentage of blacks in the city, the court found a prima facie case of racial discrimination. 370 F.Supp. at 730.*fn2 The court then placed the burden on the Commission to establish that its
hiring practices were related to job performance. Because the Commission was unable to make such a showing, the district court found the Commission in violation of federal law.
As part of its remedial order, the district court directed the Civil Service Commission either to show the validity of its 1972 tests or to formulate a new job-related testing procedure. The court further ordered the Commission to take all necessary steps to recruit blacks to take whatever test the Commission ultimately devised. The court acknowledged the possibility of ordering racially-oriented hiring as a remedy for the found discrimination, but refrained from doing so. The court was obviously impressed by the good faith of the City officials and, in substantial part, refrained from ordering quota hiring because of its trust that the defendants would remedy the problem themselves. The court stated that "in the final analysis, responsibility for eradicating racial discrimination in the Pittsburgh Bureau of Fire rests upon the defendants alone." 370 F.Supp. at 736. Nevertheless, as a final note the court admonished: "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." Id. at 737.
As a result of the federal court's decision, the Commission abandoned its prior testing procedures. In June of 1974 the Commission administered a new hiring examination, comprised entirely of physical agility tests. The eligibility list based on the results of these tests remained in force through September 1975. Of the 163 firefighters hired during that time, 21 were members of minority groups. No challenge is made to that test or to any hiring based on it.
The present controversy concerns the examination subsequently administered by the Commission in August 1975. The 1975 examination, like that in 1974, tested only physical agility. It consisted of five or six separate events including a shuttle-run, hose-coupling and climbing. This examination
had been used in other cities, including San Francisco, where it had been shown reliable in predicting minimum qualifications for firefighters. And the Commission, likewise, had previously found the examination to be a reliable test of minimum job qualification. Record at 83a.
As usually administered, the passing score on the examination, indicating minimal qualification, is 75. The test does not, however, predict differences in ability or qualification between those who pass with a score of 75 and those whose scores are higher. Record at 84a, 93a.
As required by the district court, the Commission conducted an extensive campaign to notify minority groups about the up-coming test. Approximately 1500 applicants took the examination, 522 of whom were minorities. Over 1160 applicants passed, approximately 360 of whom were minorities.
Although minorities passed the 1975 test in roughly the same percentage as whites, minorities did not place in substantial numbers at the top of the list. Thus, in March 1976, when the City requested the Commission to certify twenty candidates for new openings for firefighters, only three of those among the first twenty on the testing list were minorities. At that time, however, still only 55 members or 5% of the 1047 person Fire Bureau were black. Thus, although the black population of Pittsburgh had risen to 22%, the increase in black representation in the Fire Bureau had increased only one percent since the federal court's decision in Commonwealth of Pennsylvania v. Glickman.
Mindful of its existing obligation to comply with the federal court order to remedy the found racial discrimination, aware of its failure, despite good faith efforts, to alleviate in any significant way the existing racial imbalances in the Fire Bureau, and concerned over possible challenges to the use of test scores which, over the passing score of 75, could not be shown to be job-related, the Commission unanimously voted to certify ten white applicants and ten
minority applicants.*fn3 Both groups were selected on the basis of their scores on the agility examination. The Commission took this action, in addition, in light of the mandatory racial hiring quotas that had then recently been imposed upon it by the federal court to correct proven discrimination in the Pittsburgh Police Department. See Commonwealth of Pennsylvania v. Flaherty, 404 F.Supp. 1022 (W.D.Pa.1975).
This dual certification procedure is the focus of the present controversy. Plaintiffs are the white applicants who ranked between 15 and 21 on the single test list derived from the 1975 examination. They claim they would have been certified but for the Commission's decision.*fn4 Plaintiffs contend that the Commission's action violates (1) Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.A. § 2000e et seq.; (2) the Pennsylvania Human Relations Act, Act of October 27, 1955, P.L. 744, § 1 et seq., as amended, 43 P.S. § 951 et seq. (1964 & Supp.1979); (3) the Second Class Cities Firemen's Civil Service Act, Act of June 27, 1939, P.L. 1207, § 1 et seq., as amended by the Act of July 3, 1963, P.L. 186, § 1 et seq., 53 P.S. § 23491 et seq. (1957 & Supp.1979); and (4) the equal protection clause of the fourteenth amendment to the United States Constitution.
Plaintiffs presented their claims at a hearing before the Civil Service Commission, but were denied relief. Plaintiffs then took statutory appeals from that decision to the Court of Common Pleas of Allegheny County. See 53 P.S. § 23493.3. At the same time plaintiffs sought an injunction against the City of Pittsburgh and the Commission prohibiting
them from appointing candidates in the proposed manner and requiring the Commission either to maintain plaintiffs' eligibility during the determination of their statutory appeals or to certify them immediately to the City.*fn5
In the court of common pleas the State Conference N.A.A.C.P., the International Association of Black Professional Firefighters and a number of named individuals were permitted to intervene as defendants. The named individuals are apparently those minority members who would be certified or otherwise affected by the Commission's proposed action. The court of common pleas conducted a hearing at which the sole witness was the Secretary and Chief Examiner of the Pittsburgh Civil Service Commission. By written opinion, the trial court denied the statutory appeal and dismissed the request for injunctive relief.
Plaintiffs appealed to the Commonwealth Court which stayed the trial court's order and decree pending appellate review. The Commonwealth Court, two judges dissenting, reversed the court of common pleas, ruling that the Commission's action was not authorized by Title VII and was prohibited by the Pennsylvania Human Relations Act, the Firemen's Civil Service Act and the equal protection clause. 31 Pa. Commw. 98, 375 A.2d 841 (1977). The City and the Commission sought allowance of appeal to this Court. Both the Commonwealth of Pennsylvania and the Pennsylvania Human Relations Commission sought leave to intervene and allowance of appeal. This Court granted all petitions.*fn6
Appellees contend that the Commission's proposed certification plan violates Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C.A. § 2000e et seq.*fn7 Section 2000e-2(a)(1) of the Act provides:
"(a) It shall be an unlawful employment practice for an employer --
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual's race, color, religion, sex, or national origin."
Appellees do not challenge the validity of the federal court finding of discrimination in Commonwealth of Pennsylvania v. Glickman. Nor do appellees challenge the power of a federal court to order race-conscious relief as a remedy for a violation of Title VII or other federal fair employment laws. 42 U.S.C.A. § 2000e-5(g); Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976); see Regents of University of California v. Bakke, 438 U.S. 265, 300-301, 98 S.Ct. 2733, 2754-55, 57 L.Ed.2d 750 (1978) (Opinion of Powell, J.); id. at 290 n.28, 98 S.Ct. at 2781 (Opinion of Brennan, J., joined by White, Marshall and Blackmun, JJ.). As the Supreme Court has emphasized:
"[w]here racial discrimination is concerned, 'the [district] court has not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future.'"
Albermarle Paper Co. v. Moody, 422 U.S. 405, 418, 95 S.Ct. 2362, 2372, 45 L.Ed.2d 280 (1975) quoting Louisiana v. United States, 380 U.S. 145, 154, 85 S.Ct. 817, 822, 13 L.Ed.2d 709 (1965). Indeed, the federal courts of appeals have consistently upheld race-conscious hiring as a remedy for violations of Title VII. See e. g., United States v. City of Chicago, 549 F.2d 415, 436-37 (7th Cir. 1977), cert. denied sub nom. Isakson v. United States, 436 U.S. 932, 98 S.Ct. 2832, 56 L.Ed.2d 777 (1978); United States v. International Union of Elevator Constructors, 538 F.2d 1012 (3rd Cir. 1976); Boston Chapter N.A.A.C.P. Inc. v. Beecher, 504 F.2d 1017 (1st Cir. 1974); Rios v. Enterprise Ass'n Steamfitters, Local 638, 501 F.2d 622 (2d Cir. 1974); United States v. N. L. Industries, Inc., 479 F.2d 354 (8th Cir. 1973); 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); United States v. International Brotherhood of Electrical Workers, Local 38, 428 F.2d 144 (6th Cir.), cert. denied, 400 U.S. 943, 91 S.Ct. 245, 27 L.Ed.2d 248 (1970); Local 53, International Ass'n of Page 482} Heat & Frost Insulators & Asbestos Workers v. Volger, 407 F.2d 1047 (5th Cir. 1969); see Patterson v. American Tobacco Co., 535 F.2d 257, 274 (4th Cir. 1976). Several such orders have been directed at public employers in this Commonwealth, see e. g., Erie Human Relations Commission v. Tullio, 493 F.2d 371 (3rd Cir. 1974), including the Pittsburgh Civil Service Commission, Commonwealth of Pennsylvania v. Flaherty, 404 F.Supp. 1022 (W.D.Pa.1975) (Pittsburgh Police Department).*fn8 And, indeed, it has been held reversible error for a district court to withhold quota relief when other forms of relief failed to eliminate racially discriminatory practices or effects. See e. g., 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). Important to the question of voluntary compliance, the federal courts, including the Third Circuit ...