Opinion

Vanguard Justice Society, Inc. v. Hughes

471 F. Supp. 670
19 Fair Empl. Prac. Cas. (BNA) 587
20 Empl. Prac. Dec. (CCH) 30,077
1979 U.S. Dist. LEXIS 13649

Court: District Court, D. Maryland
Filed: Mar 20, 1979
Status: Published
Author: Kaufman
On the bench: Frank A. Kaufman
Cited by: 72 cases
Authority: More cited than 93.7%

adopting Sibley rationale to find that City of Baltimore, while not the direct employer of Baltimore police officers, exercises sufficient control over budget and testing of applicants at Baltimore City Police Department to subject it to Title VII suit for alleged discrimination within Department

How later courts described this case

adopting Sibley rationale to find that City of Baltimore, while not the direct employer of Baltimore police officers, exercises sufficient control over budget and testing of applicants at Baltimore City Police Department to subject it to Title VII suit for alleged discrimination within Department
finding that plaintiffs’ Notice of Right to sue was premature because “There is nothing in the record . . . indicating that the EEOC either made a determination of reasonable cause or dismissed the charges filed by plaintiffs.”
“employer,” as it is used in Title VII, is sufficiently broad to encompass any party who significantly affects access of any individual to employment opportunities, regardless of whether that party may technically be described as an “employer” of an aggrieved individual as that term has generally been defined at common law
“Actual conciliation efforts by the Commission are not a prerequisite to a private suit.”

Written by the judges who cited it.

The opinion

FRANK A. KAUFMAN, District Judge.

These three cases (Vanguard,

Gumpman

and Bosworth) involve challenges to alleged sex and race discrimination within the Baltimore City Police Department (“Department”). The sex issues are of two kinds: (a) height-weight requirement; (b) other. The height-weight issues are present in all three cases; the other sex issues are stated only in

Vanguard.

The race issues are present in

Vanguard

but not in

Bosworth

and

Gumpman.

The cases have been consolidated pursuant to Federal Civil Rule 42(a).

Defendants include the State of Maryland, the Governor of Maryland, the Police Commissioner of Baltimore

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City (collectively referred to as “State Defendants”), the President of the Civil Service Commission of Baltimore City (“Commission”), two members of that Commission, the Mayor and City Council of Baltimore (collectively referred to as “City Defendants”).

Jurisdiction exists in these cases pursuant to 42 U.S.C. § 1983 and its jurisdictional counterpart, 28 U.S.C. § 1343 (3); the Fourteenth Amendment; 42 U.S.C. § 2000e

et seq.

(Title VII); and 28 U.S.C. § 1331 .

The named plaintiffs seek, on behalf of themselves and the members of the classes they represent, declaratory and injunctive relief, back pay and attorneys fees.

A number of witnesses testified at trial, and an avalanche of written statements, depositions and other documents have been filed. Counsel have agreed that all such documents and indeed the entire record shall be considered as evidence in these eases.

Initially, as suggested by counsel, the cases were divided both on the basis of sex and race, and also on the basis of liability and relief, and proceeded first to trial on the liability phase of the sex issues. Thereafter, however, because of possible overlap of the sex and race questions, this Court decided not to determine liability issues with regard to sex or race until it had received all liability evidence pertaining to both.

As of this date, trials on liability phases of both sex and race issues, have been completed. In this opinion, the merits of the sex and race liability issues are discussed, commencing

infra

697. Before those merit issues are reached, a number of threshold questions require careful analysis. Issues of relief may still require further trial.

Class Certifications

Six plaintiff classes have been certified in these cases, two re sex, and four re race. In each instance, one or more of those of the named plaintiffs who raised the issue were named as class representatives. As to the sex claims, one class is comprised “of all female applicants for the position of police officer with the Baltimore City Police Department” from June, 1973 to April 23,1974 “who were rejected because of their height * * *.”

As to that class, this Court hereby confirms its certification.

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The second sex class is comprised of all sworn female (uniformed) employees of the Department

on June 14, 1974. Shortly before final argument on the sex issues took place, all defendants sought to decertify that latter class, because thirty-six of the fifty class members had elected to “opt-out” pursuant to Federal Civil Rule 23(c)(2).

A class is not appropriate unless it “is so numerous that joinder of all members is impracticable.” Federal Civil Rule 23(a)(1). A numerosity determination in any given case depends upon the facts of that case and is largely committed to the discretion of the district judge.

Roman v. ESB, Inc.,

550 F.2d 1343, 1347-49 (4th Cir. 1976);

Barnett v. W. T. Grant Co.,

518 F.2d 543, 546-47 (4th Cir. 1975);

Cypress v. Newport News General Non-Sectarian Hospital Association,

375 F.2d 648, 653 (4th Cir. 1967). Defendants’ decertification approach, as aforesaid, stressed lack of numerosity. However, there is also a question of adequacy of class representation,

see

Federal Civil Rule 23(a)(4), a question which in final preparation of this opinion looms large since Ms. Blackston, one of the five original individual named plaintiffs in

Vanguard,

is the only named plaintiff in these three cases who is or was a sworn female employee of the Department on June 14, 1974 or, as far as this Court has been informed, at any time thereafter. Ms. Blackston has herself, opted-out as a member of the sworn female class.

When Ms. Blackston so opted out, she became at that time an inadequate class representative.

Cf. East Texas Motor Freight System, Inc. v. Rodriquez,

431 U.S. 395 , 97 S.Ct. 1891 , 52 L.Ed.2d 453 (1977);

Belcher v. Bassett Furniture Industries, Inc.,

588 F.2d 904 at 906 n.2 (4th Cir. 1978);

Goodman v. Schlesinger,

584 F.2d 1325 (4th Cir. 1978);

Shelton v. Pargo, Inc.,

582 F.2d 1298 , 1313 and n.53 (4th Cir. 1978);

Roman v. ESB, Inc., supra.

Because there never has been any other named plaintiff in these cases who qualifies as a representative of the non-height-weight sex class,

it is necessary, even as of this date, to decertify that class.

Otherwise, its members would be bound by an adverse decision herein without having been represented by an adequate representative. To permit that to occur would surely offend due process. “The binding effect of all class action decrees raises substantial due process questions that are directly relevant to Rule 23(a)(4). If the absent members are to be conclusively bound by the result of an action prosecuted or defended by a party alleged to represent their interests, basic notions of fairness and justice demand that the representation they receive be adequate

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*.” 7 Wright & Miller, Federal Practice & Procedure, § 1765, p. 617 (1972). However, in order not to deprive the members of the decertified non-height-weight sex class from having their day in court, the class action claims of that class will be retained as open claims in this case for a period of thirty days from the date hereof in order “to permit the presentation of any proper claims” for relief and for an adequate representative of that class to come forward.

See Goodman v. Schlesinger,

584 F.2d 1331 -33, and cases cited and discussed thereat;

Cox v. Babcock & Wilson Co.,

471 F.2d 13 , 15-16 (4th Cir. 1972).

The four classes certified as to race issues are the following:

(1) All blacks “who have at any time since November 12, 1970, been applicants for employment with the Baltimore City Police Department as sworn uniform employees and who have not been employed and who assert a claim under the provisions of 42 U.S.C. § 1983 .”

(2) All blacks “who have at any time since March 24, 1972, been applicants for employment with the Baltimore City Police Department as sworn uniform employees and who have not been employed and who assert a claim under Title VII of the Civil Rights Act of 1964, as amended March 24, 1972, 42 U.S.C. § 2000 -e [2000e].”

(3) All blacks “who are now employed as sworn uniform employees or who have at any time since November 12, 1970 been employed as sworn uniform employees or who will in the future be employed as sworn uniform employees with the Baltimore City Police Department and assert a claim under the provisions of 42 U.S.C. § 1983 .”

(4) All blacks “who are now employed as sworn uniform employees or who have at any time since March 24, 1972 been employed as sworn uniform employees or who will in the future be employed as sworn uniform employees with the Baltimore City Police Department and assert a claim under Title VII of the Civil Rights Act of 1964, as amended March 24,1972, 42 U.S.C. § 2000 -e [2000e].”

The certifications of those four race classes are hereby confirmed.

Title VII Exhaustion

Consideration of Title VII exhaustion questions necessitates a lengthy detour.

On August 13, 1973, the Vanguard Justice Society and Victor B. Dennis, Melvin P. Freeman and Earl I. Nesbit, all named plaintiffs in

Vanguard,

filed charges of

race

discrimination with the EEOC against the Baltimore City Police Department, Mayor and City Council of Baltimore, the Baltimore Civil Service Commission, and the Governor of Maryland. Thereafter, within the next several months, three persons who are individual plaintiffs in one or more of these cases filed charges with the EEOC of

sex

discrimination against only the Department based on the 5'7" height requirement: Paulette Nixon on September 4, 1973; Barbara Gumpman on September 13,1973; and Linda Barksdale on November 9, 1973.

On November 12, 1973, the Society, Paulette Nixon and others instituted in this Court the

Vanguard

case against the Governor, the Police Commissioner, the Civil Service Commission and the Mayor of Baltimore City, alleging both race and

sex

discrimination in the operation of the Police Department

and grounding their claims

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upon 42 U.S.C. §§ 1981 , 1983 and the Fourteenth Amendment but not upon Title VII. On that same date, i. e. November 12, 1973, Gumpman and Barksdale commenced the

Gumpman

case, naming the same defendants as were named in

Vanguard,

alleging height-weight sex discrimination, and relying on section 1983 and the Fourteenth Amendment but not Title VII.

Subsequently, on January 22, 1974, Bosworth, as a sole plaintiff, instituted her case in this Court, alleging sex discrimination based on the height-weight requirement and naming the Police Department’s Director of Personnel, the State of Maryland and the Mayor and City Council of Baltimore as defendants in addition to the defendants named in

Vanguard

and

Gumpman.

Bosworth based her complaint on section 1983 and the Fourteenth Amendment but not Title VII.

On January 31, 1974, Bosworth filed a charge with the EEOC and named the Department, the State, the City of Baltimore, and the Civil Service Commission as respondents. A week later, her attorney wrote to the EEOC and requested that it issue to Bosworth a “right-to-sue” letter.

The EEOC relayed that request to the United States Department of Justice and on April 3, 1974, that Department issued Bosworth a “right-to-sue” notice.

In the meantime, the Society, Nixon, Gumpman and Barksdale filed petitions on February 15, 1974 to intervene as plaintiffs in Bosworth’s civil action in this Court. A few days later, on February 19, 1974, Bosworth filed an amended complaint in her case in this Court, restating her previous allegations and adding claims under Title VII.

At that time, i. e., on February 19, 1974, neither Bosworth nor any of the intervening plaintiffs had received a “right-to-sue” notice. Only 19 days had elapsed since Bosworth had initiated EEOC proceedings. The time periods which elapsed between the dates the other plaintiffs filed sex discrimination charges with the EEOC and commenced Title VII claims in this Court were somewhat longer: Nixon, 169 days; Gumpman, 160 days; Barksdale, 103 days.

Bosworth and Nixon were issued right-to-sue letters by the Department of Justice on April 3, 1974. Seemingly, neither Gumpman nor Barksdale ever received such a letter.

The Society received a right-to-sue letter well afterwards on November 1, 1974, with respect to its

race

discrimination claim. Messrs. Dennis, Freeman and Nesbit, three of the original seven plaintiffs in

Vanguard

also received their respective right-to-sue letters, with regard to race, from the Justice Department on November 1, 1974.

On July 19, 1974, the EEOC referred

all charges filed by any of the named plaintiffs in these cases to the Maryland Commission on Human Relations. That latter Commis

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sion terminated its proceedings and referred the complaints back to the EEOC, during August, 1974.

On January 9, 1975, plaintiffs in

Vanguard

filed a proposed amended complaint in which Title VII issues were included for the first time in that case. Appended thereto were copies of “right-to-sue” letters issued to the Vanguard Justice Society and to the four individual plaintiffs in

Vanguard

on November 1, 1974.

By inadvertence, this Court did not, prior to trial, formally grant plaintiffs’ said motion to amend their complaint. However, the Court and all parties have, at all times since shortly after January 9, 1975, treated these cases, insofar as the race issues are concerned, as having been brought under Title VII as well as under 42 U.S.C. §§ 1981 , 1983 and the Fourteenth Amendment.

Accordingly, plaintiffs’ motion to amend the complaint is hereby granted, effective as of January 9, 1975.

During an early stage of these cases, counsel for the City defendants raised various questions pertaining to plaintiffs’ exhaustion of plaintiffs’ administrative remedies under Title VII. This Court asked whether plaintiffs desired to refile their charges with the EEOC to include all the defendants named in their civil complaints and to avail themselves of conciliation procedures. However, plaintiffs declined to reinstitute administrative proceedings.

The City defendants contend that plaintiffs prematurely stated their Title VII sex charges in these cases because plaintiffs failed to wait the requisite period of time after filing their administrative charges of sex discrimination with the EEOC before plaintiffs amended one or more of their complaints in these cases to include those allegations.

Title VII mandates that

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there be a 180-day “cooling-off” period between the filing of charges with the EEOC and the institution of a civil suit in court during which the EEOC may have an opportunity to pursue conciliation.

Bosworth

plaintiffs amended their complaint £o include the Title VII sex discrimination allegations prior to the expiration of that period. The issue is thus whether the premature inclusion of Title VII claims of sex discrimination in

Bosworth,

with its accompanying negative effect on the potential for conciliation, deprives this Court of jurisdiction under Title VII.

*681

There is nothing in the record in these cases indicating that the EEOC either made a determination of reasonable cause or dismissed the charges filed by plaintiffs. Thus, the named plaintiffs who alleged sex discrimination were not

entitled

to receive a right to sue letter under subsection (b) of the then existing regulation,

until the expiration of the conciliation period. Bosworth demanded, and received, apparently contrary to law, a right to sue letter prior to the expiration of 180 days. Although Nixon received her right to sue letter after the expiration of 180 days, her Title VII sex allegations were added to the complaint in

Bosworth

prior to the running of that period.

A plaintiff must exhaust his administrative remedies before filing suit under Title VII.

See, e. g., Stebbins v. Nationwide Mutual Insurance Co.,

382 F.2d 267 (4th Cir. 1967)

cert. denied,

390 U.S. 910 , 88 S.Ct. 836 , 19 L.Ed.2d 880 (1968);

Mickel v. South Carolina State Employment Service,

377 F.2d 239, 242 (4th Cir.),

cert. denied,

389 U.S. 877 , 88 S.Ct. 177 , 19 L.Ed.2d 166 (1967). The Supreme Court has held that the filing of charges with the EEOC and the receipt of a right-to-sue letter are jurisdictional prerequisites to the institution of a Title VII action.

However, the issuance of a right-to-sue letter by the EEOC subsequent to the filing of a Title VII complaint which complaint was not filed until after the expiration of the 180 day period cures the jurisdictional defect in the original complaint.

See Henderson v. Eastern Freight Ways, Inc.,

460 F.2d 258 , 260 n.2 (4th Cir. 1972) (per curiam),

cert. denied,

410 U.S. 912 , 93 S.Ct. 976 , 35 L.Ed.2d 275 (1973) and cases cited therein;

see also Berg v. Richmond Unified School District,

528 F.2d 1208, 1212 (9th Cir. 1975) vacated and remanded on other grounds, 434 U.S. 158 , 98 S.Ct. 623 , 54 L.Ed.2d 375 (1977) (per curiam);

Black Musicians v. American Federation of Musicians,

375 F.Supp. 902, 906-07 (W.D.Pa.1974)

aff’d. mem.,

544 F.2d 512 (3rd Cir. 1976). Nevertheless, the question remains as to whether filing suit

before

expiration of the 180-day conciliation period constitutes a jurisdictional defect which is

not

cured by the subsequent receipt of a right-to-sue letter even if such letter is issued

after

the 180 day period.

Occidental Life Insurance Co. v. EEOC,

432 U.S. 355 , 97 S.Ct. 2447 , 53

*682

L.Ed.2d 402 (1977), the Supreme Court held that the 180-day conciliation period of section 706(f)(1) was not a limitation on the EEOC’s power to institute a civil action based on an individual’s charge. In reaching that conclusion, Mr. Justice Stewart construed the 180-day provision as only a limitation on the private right of action provided by Title VII. He wrote (at 361, 97 S.Ct. at 2452):

* * * Rather than limiting action by the EEOC, [§ 706(f)(1)] seems clearly addressed to an alternative enforcement procedure: If a complainant is dissatisfied with the progress the EEOC is making on his or her charge of employment discrimination, he or she may elect to circumvent the EEOC procedures and seek relief through a private enforcement action in a district court.

The 180-day limitation provides only that this private right of action does not arise until 180 days after a charge has been filed.

Nothing in § 706(f)(1) indicates that EEOC enforcement powers cease if the complainant decides to leave the case in the hands of the EEOC rather than to pursue a private action.

[emphasis added]

See also Lewis v. FMC Corp.,

11 F.E.P. Cases 31, 34-35 (N.D.Cal.1975). In that case, since the EEOC had stated that there was no possibility of investigating plaintiff’s charge within 180 days, Judge Peckham concluded that there was no reason to require plaintiff to wait until the expiration of that period to file suit.

Jones v. Pacific Intermountain Express,

10 F.E.P. Cases 914 (N.D.Cal.1975), Judge Schnacke dismissed the complaint for failure to observe the 180-day period, despite the apparent futility of sending the plaintiff back to the EEOC. He reasoned (at 915):

(A)ll charges which are the basis of this action were filed with the EEOC less-than 180 days before this action was commenced * * *. Plaintiffs’ counsel requested issuance of the right to sue notices, some of which weren’t issued until

after

the present action was commenced and all were issued less than 180 days after the charges were filed with the EEOC, in violation not only of the statutory scheme but also of EEOC regulations * * *.

The purpose of requiring resort to EEOC machinery is to give that body an opportunity to settle disputes through conference, conciliation, and persuasion before the aggrieved party is permitted to file a lawsuit. * * * That over 180 days have elapsed since all the plaintiffs filed charges with the EEOC is thus irrelevant, since the EEOC had much less than 180 days to deal with the charges before the matter was effectively taken away from it by the commencement of this action. Therefore, the claims under 42 U.S.C. § 2000e-2 will be dismissed * * *. This result comports with this Court’s obligation, under the constitutional system of separation of powers, to interpret statutes as they are written, not as they might have been written. Plaintiffs argue that the 180-day deferral would serve no purpose here, but this argument should be addressed to Congress, not to this Court.

Budreck v. Crocker National Bank,

407 F.Supp. 635 (N.D.Cal.1976), two plaintiffs had failed to defer filing their actions until 180 days after the Commission assumed jurisdiction of their charges. They subsequently received right-to-sue letters. Judge Renfrew first construed Title VII to establish two conditions precedent to a civil action: (1) passage of 180 days from filing of charges with the EEOC; (2) issuance of a right-to-sue letter. He thus concluded, as did Judge Schnacke in

Jones,

that under a literal reading of the statute the 180-day provision was a jurisdictional requirement. However, Judge Renfrew then examined the legislative history of the 1972 amendments to Title VII, which added the 180-day provision. He found that the provision was the result of a congressional attempt to accommodate two policies: “On the one hand, Congress was concerned that the vindication of legitimate claims not be excessively delayed, and, on the other, it was concerned that the preferred process of conciliation of disputes have an ample opportunity to work.” 407 F.Supp. at 641 . Judge Renfrew noted that while certain language

*685

McDonnell Douglas

favor a restricted interpretation of the jurisdictional prerequisites of a Title VII action, statements by the Supreme Court in

Johnson v. REA, Inc., supra,

support the contrary approach. Judge Renfrew also rejected the reasoning of

Lewis

and

Howard

as inconsistent wit,h the legislative history of the Act, noting (at 642-44) the “sharp division” in the case law “illustrated by a consideration of two opinions from this District,” namely,

Jones v. Pacific Intermountain Express, supra,

and

Lewis v. FMC, supra.

As to

Lewis

and also as to

Howard v. Mercantile Commerce Trust Co., supra,

Judge Renfrew stated:

[T]he

Lewis

and

Howard

decisions also fail to take into account certain policy considerations which support a jurisdictional interpretation of the 180-day provision despite the inability of the Commission to take any action during that period. The 180-day provision gives the employer an opportunity to make an investigation of the charge and to attempt to resolve the matter before positions become hardened by the onset of litigation. Congress undoubtedly expected most conciliation agreements to result from the efforts of the Commission but, even without the intervention of the Commission, informal conciliation may be possible in some cases. * * *

[T]he filing of a law suit alters in a very significant way the posture of the parties and their ability to reach an informal settlement. It is not feasible for the courts to make a case-by-ease determination of whether informal conciliation might be possible; the rule must be enforced on an across-the-board basis. The possibility of informal conciliation during the 180-day period further supports the Court’s previous conclusion that a jurisdictional interpretation is appropriate.

Judge Renfrew subsequently qualified to some extent the views he expressed in

Budreck ,

in a later opinion he authored in

Eldredge v. Carpenters Joint Apprenticeship and Training Committee,

440 F.Supp. 506, 515-18 (N.D.Cal.1977) in which he again (at 515) noted “a sharp division in the authorities” illustrated on one side by

Budreck

and

Jones

and on the other side by

Lewis

and

Howard.

Eldredge ,

the EEOC, issued right-to-sue letters only 18 days after assuming jurisdiction over plaintiffs’ charges, stating that it would be unable “to investigate, conciliate or file suit within 180 days.” 440 F.Supp.

supra

at 513. Plaintiffs filed suit the following day. Citing

Budreck

Judge Renfrew wrote (at 515) that “the Court adheres to the view that compliance with the statutory waiting period is ordinarily a prerequisite to the assumption of jurisdiction.” However, given that the EEOC had stated that it would be unable to reach the case within 180 days, that no administrative disposition of the quest for permanent relief could be expected during the statutory period, and that plaintiffs were already properly before the court in their quest for preliminary relief, Judge Renfrew concluded that the premature filing of a complaint for permanent relief was unlikely to impair the prospects for conciliation. “To hold that the action was barred by an EEOC error having no effect on statutory policy [of conciliation] would indeed be pointless.”

Id.

at 517. Judge Renfrew also noted the lapse of 180 days between the EEOC’s assumption of jurisdiction and the hearing on defendant’s motion. Judge Renfrew viewed dismissal of the case, which he refused to grant, as a possible means of discouraging the EEOC from divesting itself of claims prematurely. “Where the backlog of cases prevents an administrative disposition in any case, however, this result has insufficient practical impact to justify the imposition of hardship in a particular case.”

Id.

at 517-18.

In two opinions of this Court,

Loney v. Carr Lowrey Glass Company,

458 F.Supp. 1080 (D.Md.1978) (Miller, J.) and

Scott v. Board of Education of Harford County, et

*686

al.,

Civil Action No. N-76-1513 (D.Md. 9/2/77) (Northrop, C. J.), the

Budreck

approach was adopted and Judge Renfrew’s opinion therein was cited and specifically relied upon by Judge Northrop in

Scott.

The named plaintiff in

Bosworth

instituted that case on January 22, 1974, stating only non-Title VII claims. Thereafter, on January 31, 1974, Bosworth filed with the EEOC sex charges based on the height-weight requirement. On February 19,1974, the complaint in

Bosworth

was amended to include Title VII claims. On April 3, 1974, before the expiration of the 180-day period, right-to-sue letters were issued to Bosworth and to Nixon, who had intervened in

Bosworth.

Thus, at the time the complaint was amended in

Bosworth,

this Court did not have jurisdiction of plaintiffs’ Title VII sex claims. However, as was true in

Eldredge, supra,

plaintiffs in these cases originally sought both preliminary and permanent relief based on section 1983 and the Fourteenth Amendment. Plaintiff had a right to seek such relief without pursuing any of the administrative remedies provided by Title VII.

The injection of Title VII claims into these pending suits hardly retarded conciliation efforts more than the lawsuits themselves. Moreover, the EEOC had the full opportunity accorded by statute to attempt conciliation of Nixon’s charges and the Attorney General specifically stated that the EEOC would not be able to conciliate Bosworth’s claims within the requisite time period. Thus, no useful purpose would be served in these cases in forcing plaintiffs to return, insofar as their Title VII claims are concerned, to the administrative process, even if the approach espoused in

Budreck

and

Jones

rather than in

Howard

and in

Lewis

is adopted. Judge Renfrew’s analysis and holding in

Eldredge

would so indicate.

Accordingly, this Court concludes that in

Bosworth

it has jurisdiction over the individual claims of Bosworth and Nixon. That jurisdiction extends to the claims of other members of the sex class certified as to the height-weight requirement, whether or not other class members individually or otherwise exhausted their own EEOC remedies with regard to the height-weight requirement.

Albemarle Paper Co. v. Moody,

422 U.S. 405 , 414 n.8, 95 S.Ct. 2362 , 45 L.Ed.2d 280 (1975);

Boyd v. Ozark Air Lines,

568 F.2d 50 , 54 n.5 (8th Cir. 1977);

Troy v. Shell Oil Co.,

378 F.Supp. 1042, 1045 (E.D.Mich.1974),

appeal dismissed,

519 F.2d 403 (6th Cir. 1975), and cases cited thereat.

There remain, however, certain other exhaustion issues which require consideration. One of them is present in

Gumpman,

in which the only two named plaintiffs are Gumpman and Barksdale. Neither of them ever received a “right-to-sue” letter with regard to their sex claims stated in

Gumpman

under Title VII and based on the height-weight requirement. Thus, those Title VII sex claims, stated by them as individuals, must be and hereby are dismissed. But that dismissal is of little or no practical import because the claims of the members of the applicant class with regard to the height-weight sex issue are in any event before this Court.

See

the authorities cited

supra

on this page.

An additional exhaustion issue with regard to the non-height-weight sex issues is present in

Vanguard.

Only Blackston exhausted her administrative remedies with regard to those issues. Blackston opted out of the sworn female class in these cases. Thus, the class originally certified in these cases with regard to the non-height-weight issues is today being decertified because of a lack of adequate class representation.

However, since these cases were tried on the basis that there were in existence all

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classes certified prior to today’s decertification of the non-height-weight issue class, the merits of all

Claims

— race, height-weight, and non-height-weight sex alike— are discussed

infra

and findings with regard to the non-height-weight sex issues are made on a conditional basis so that if this Court’s within decertification of the non-height-weight sex class is determined, on appeal, to be erroneous, no further trial on remand will seemingly be required for that reason alone.

As to Blackston’s individual claims, she, on February 28,1975, requested exclusion from the sworn-employee female class and stated, using the form sent to her by the Clerk: “I understand that by this request, I will not be entitled to share in the benefits of the judgment if it is favorable to the Plaintiffs and that I will not be bound by the judgment rendered in this case if it is adverse to the Plaintiffs.” Accordingly, if Blackston hereafter desires to assert her individual non-height-weight sex claim, she must do so subject to whatever limitations and/or laches bars she may encounter.

Naming Proper Respondents in EEOC Charge

Mickel

South Carolina State Employment Service,

377 F.2d 239 (4th Cir.),

cert. denied,

389 U.S. 877 , 88 S.Ct. 177 , 19 L.Ed.2d 166 (1967), Judge Boreman wrote (at 241):

It seems clear from the language of the statute that a civil action could be brought against

the respondent named in the charge

filed with the Commission only after conciliation efforts had failed, or, in any event, after opportunity had been afforded the Commission to make such efforts. * * *

But in

Mickel

the defendant not named as respondent in the EEOC proceeding was the alleged offending employer and was not as herein, an important official of an entity named in the administrative charge. In

Mickel ,

the naming requirement was not substantially met

That is important because the failure of a plaintiff to name a defendant in an EEOC charge “does not bar the maintenance of a subsequent court action if the purposes of the naming requirement were substantially met.”

Langsner v. Morgan State College,

Civil No. HM-74-1359 (D.Md. 1/9/76) (Murray, J.), and cases cited at slip op. pp. 13-15;

see Van Gerrell v. Maryland State Highway Administration,

Civil No. B-74-121 (D.Md. 1/5/76) (Blair, J.), and cases cited at slip op. pp. 6-7.

Evans v. Sheraton Park Hotel,

164 U.S.App.D.C. 86 , 503 F.2d 177 (1974), the question arose as to whether an international union which had not been named as a respondent in plaintiff’s EEOC charge was properly joined by the District Court as a party to plaintiff’s subsequent federal suit. The Court’s answer ( 164 U.S.App.D.C. at 92 , 503 F.2d at 183 ) was “Yes”:

* * * Where, as here, the chartering International was an obscure party, requiring court action to determine whether or not its presence in the action was

*688

necessary for complete relief among those already parties, to deny joinder under 19(a) would cripple the rights of the charging party as well as those of the party charged. Further, dismissal of the action under 19(b) would frustrate the intent of Congress in this type of case. Surely the means devised cannot be more important than the end envisioned.

We do not believe that the procedures of Title VII were intended to serve as a stumbling block to the accomplishment of the statutory objective. To expect a complainant at the administrative stage, usually without aid of counsel, to foresee and handle intricate procedural problems which could arise in subsequent litigation, all at the risk of being cast out of court for procedural error, would place a burden on the complainant which Congress neither anticipated nor intended.

Appellant Evans filed a Charge of Discrimination with the EEOC against the Hotel which was her employer, Waitresses Local 507, and the Joint Board alleging violations of the Civil Rights Act of 1964.

She was timely advised by the Commission of its failure to obtain voluntary compliance and of her right to file suit. She then brought this action, naming the same parties as those charged before the EEOC in her complaint. It is our conclusion that appellant Evans exhausted her administrative remedies as anticipated by Congress.

Glus v. G. C. Murphy Co.,

562 F.2d 880, 888 (3d Cir. 1977), the Third Circuit suggested certain factors to be considered when a defendant has not been named in a plaintiff’s complaint to the EEOC. In so doing, Judge Biggs wrote:

Factors which we believe the district court should look to are 1) whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint; 2) whether, under the circumstances, the interests of a named are so similar as the unnamed party’s that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings; 3) whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party; 4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party. Consideration of these factors should be initially in the hands of the district court. The goal of conciliation without resort to the already overburdened federal courts is of great importance and should not be lost. However, equally important is the availability of complete redress of legitimate grievances without undue encumbrance by procedural requirements especially when demanding full and technical compliance would have no relation to the purposes for requiring those procedures in the first instance. In our view the district court should evaluate the failure to name the party before the EEOC by consulting the four factors discussed

supra.

In this case, plaintiff Bosworth named as respondents in her EEOC charge the State of Maryland, City of Baltimore, and the Civil Service Commission of Baltimore. Plaintiff Nixon named as respondent only the Baltimore City Police Department. Accordingly, in this consolidated proceeding, in which each of the individual defendants has been sued only in his or her official capacity, it would appear that the only defendants in this proceeding not specifically named in EEOC proceedings are defendants Pomerleau and Rowlett. It has not been asserted that either of those defendants lacked actual notice of plaintiffs’ charges filed with the EEOC, or that the

*689

EEOC’s actions with regard to conciliation of those charges were in any way affected by plaintiffs’ failure to have named such defendants. Indeed, it is rather clear that both Pomerleau and Rowlett knew of the EEOC proceedings.

Accordingly, plaintiffs’ failure to name each of defendants in their initial EEOC charges does not deprive this Court of jurisdiction over plaintiffs’ claims against those defendants.

Definition of Employer Under Title VII

Whether plaintiffs are entitled, in any event, to relief under Title VII against any of the defendants hinges upon whether the latter have allegedly committed an “unlawful employment practice for an

employer”

[emphasis added] as those words are used in 42 U.S.C. § 2000e-2(a) and 42 U.S.C. § 2000e(b).

None of the parties to this litigation have disputed that by all conventional indicia of control the State of Maryland is an “employer” of the employees of the Baltimore City Police Department, for purposes of Title VII. However, the City Defendants have raised the question of whether they have exercised, or should have exercised, sufficient control over the Department’s hiring and promotion practices to qualify any of the City Defendants as an “employer” under Title VII.

The Department, as established by section 16-2 of the Baltimore City Public Local Laws (the “Code”), is “an agency and instrumentality of the State of Maryland.” Supervising its “affairs and operations,” Code § 16-4, is a Police Commissioner. At the time these suits were instituted in 1973 and 1974, the Baltimore City Police Commissioner was, pursuant to Code § 16-5, “appointed by the Governor of Maryland for a term of six years” and could be removed for “official misconduct, malfeasance, inefficiency or incompetency, including prolonged illness . . . ” However, in 1976, the Maryland Legislature amended the Baltimore City Local Laws to transfer those appointive powers to the Mayor and City Council of Baltimore. 1976 Md.Laws Ch. 920. Under the amended version of Code § 16-5, the Mayor appoints the Police Commissioner subject to confirmation by a majority of the City Council. The amendment also transferred the Governor’s removal powers to the Mayor. The 1976 legislation specifically provided that the amendment was not to affect the term of the then current Commissioner which was to expire on July 1,1978.

Id.

Ch. 920, § 2.

Mayor & City Council of Baltimore v. Silver,

263 Md. 439 , 283 A.2d 788 (1971),

appeal dismissed,

409 U.S. 810 , 93 S.Ct. 38 ,

*690

34 L.Ed.2d 65 (1972), Judge Finan, quoting from

Upshur v. Baltimore,

94 Md. 743 , 51 A. 953 (1902), set forth (at 263 Md. 447 -48, 283 A.2d at 792-93 ) an historical explanation of the State’s control over the Baltimore City Police Department:

“* * * For some years prior to the adoption of the Act of 1860, ch. 7, and, therefore, during a period when the police force was wholly under the control of the municipality, the city authorities failed to suppress the disorder and lawlessness which prevailed to an alarming extent, and the riots and blood-shed which invariably accompanied a general or local election. The law was defied; the public peace was disturbed; the constabulary were powerless, if not in sympathy with the mob, and reputable citizens were driven by violence from the polls. Relief from the intolerable conditions which existed was finally sought by an appeal to the General Assembly, and the Act of 1860, ch. 7, completely separating the police department from the city government, was the result. The Police Board was created and its members and the force enrolled by them were made state officers and the city was denied, in the most positive manner, any right to interfere with or control the policemen. The underlying purpose was to deprive the city of all power over the police * * 94 Md. at 756 , 51 A. at 958 .

An informative and entertaining account amply documenting the reasons for “The Police Reform Bills” is found in an article by H. H. Walker Lewis, “The Baltimore Police Case of 1860,” 26 Md.L.Rev. 215 (1966). [Footnote omitted.]

Pursuant to Code § 16-7,

the Police Commissioner’s authority over the opera

*691

tions of the Department is plenary, with two exceptions, only one of which is relevant in this case.

That exception appears in Article VI of the Charter of Baltimore City which establishes a Board of Estimates for Baltimore City and entrusts to that Board responsibility for formulating the fiscal policy of Baltimore City.

In accordance with § 16-8 of the Code,

the Police Commissioner is required to submit his anticipated budget requirements to the Board of Estimates, which thereafter is generally required to treat that proposal in the same way as any other budgetary request submitted by a municipal agency of Baltimore City and, upon final approval of the same, to incorporate it in a proposed ordinance known as the ordinance of estimates. The latter, in turn, is delivered to the President of the City Council for introduction before the City Council. Subsequent to approval by the City Council with appropriate changes, if any, and after approval by the Mayor, the proposed ordinance of estimates is known as the “Ordinance of Estimates for the fiscal year

*692

_____” Article VI, §§ 2(b), (g) of the Charter of Baltimore City, 1964 Revision.

Section 2(g) of Article VI of the Charter of Baltimore City empowers the City Council to make its budgetary allocations to the Department subject to certain contingencies. That provision states, in part:

* * * If the carrying out of a particular program, purpose, activity, or project depends upon action by some private or governmental body other than the City, the City Council may insert a specific provision in the proposed ordinance of estimates making the appropriation for the particular program, purpose, activity or project contingent upon such action.

Article II, § 27 of the Charter of Baltimore City delineates the authority of the Mayor and City Council as follows:

To have and exercise within the limits of Baltimore City all the power commonly known as the Police Power to the same extent as the State has or could exercise said power within said limits; provided, however, that no ordinance of the City or act of any municipal officer shall conflict, impede, obstruct, hinder or interfere with the powers of the Police Commissioner,

In the

Silver

case, Judge Finan ( 263 Md. at 450-51 , 283 A.2d at 794 ) described the effects of the City’s power over the police department’s budget:

However, an appreciation of the relationship between the City and the police department cannot be fully grasped unless it is understood that the City is the agency responsible for appropriating money for the operation of the police department and that the police commissioner must annually appear before the Board of Estimates of the City to defend his budgetary requests. * * * Certainly, although this in itself could not be construed as a method of indirect control over the police department by the City, nonetheless one would be overly naive not to think that such a situation would provide the occasion for the flow and exchange of communications, accommodations and cooperative action between the City and the police commissioner.

At the time these suits were instituted, the Police Commissioner was required under § 16-9 of the Code, to make annual reports, and such special reports as might be requested, to both the Governor and to the Mayor and City Council concerning the operations of the Department. That provision was amended in 1976 to eliminate the requirement that reports be made to the Governor. 1976 Md.Laws Ch. 920.

Section 16-10 of the Code describes the role of the Civil Service Commission of the City of Baltimore and the Police Commissioner in the establishment of entrance and promotional qualifications. That section reads in part:

16-10. Members; qualifications, appointments, promotion, probation.

(a)

Examinations.

The [Civil Service Commission] shall ascertain the relative qualifications for all candidates for appointment at the entrance level to the department and for promotional appointment within the department by competitive examinations and such other tests as in its judgment may be necessary. The examinations shall be public and of such character as to test fairly the relative capacity and fitness of the candidates to discharge the duties of the position for which they are seeking to qualify. In preparing said examinations the examining authority shall consult with and may be guided by a nationally recognized policy agency or testing group as designated by the police commissioner. The examining authority shall prepare graded lists of qualified candidates determined from the written examinations and other tests established by the examining authority.

*693

(b)

Appointments at the entrance level.

Those applicants for appointment to the department at the entrance level who possess the minimum qualifications and meet the other eligibility criteria established by the commissioner after consultation with examining authority, as determined by the tests and procedures administered pursuant to subsection (a) shall be included on an eligible list prepared by the examining authority setting forth the names of the successful applicants listed in order from the highest to lowest qualifying score. When making appointments to the department, the commissioner shall be required to make such appointment from those applicants who place within the top or highest five positions on the eligible list. When an applicant is so appointed, the commissioner shall be required to fill the next vacancy in the department, if any, from a list of applicants composed of the remaining and available four highest candidates on such list, plus the next or sixth highest scoring available applicant appearing on the eligible list. The procedure herein established for appointment to the department shall be known and designated as the “Rule of five” and all subsequent appointments shall be made only in accordance with this procedure until the eligible list is exhausted by such appointments. * * *

(c)

Promotional appointments.

Those applicants for promotional appointments within the department who possess the minimum qualifications and meet the other eligibility criteria established by the commissioner after consultation with the examining authority, as determined by the tests and procedures administered pursuant to subsection (a) shall be included on an eligible list prepared by the examining authority setting forth the names of the successful applicants listed in order from the highest to lowest qualifying score. When making a promotional appointment within the department, the commissioner shall be required to make such appointment from those applicants who place within the top or highest five positions on the eligible list. When an applicant is so appointed, the commissioner shall be required to fill the next vacancy in the department, if any, from a list of applicants composed of the remaining and available four highest candidates on such list, plus the next or sixth highest scoring available applicant appearing on the eligible list. The procedure herein established for promotional appointment within the department shall be known and designated as the “Rule of five” and all subsequent promotional appointments shall be made only in accordance with this procedure until the eligible list is exhausted by such appointments. * * *

(d)

Appointments without examination.

Notwithstanding any provisions of this section, or of this subtitle, the Commissioner may make any appointment to the Department above the rank of Captain, without examination, except that no such position shall be filled by a police officer within the Department of a rank less than Lieutenant, and where any such appointment is made the police officer so appointed shall, upon the termination of his service in such position, be returned to the rank from which he was elevated, or to such higher rank as he became eligible to serve in during his appointment.

Boire v. Greyhound Corp.,

376 U.S. 473 , 84 S.Ct. 894 , 11 L.Ed.2d 849 (1964), in reversing a determination by the Fifth Circuit that Greyhound Corporation was as a matter of law not an “employer” of certain porters, janitors and maids at four Florida bus terminals,

Mr. Justice Stewart stated (at 481, 84 S.Ct. at 898-899 ):

* * * The respondent points out that Congress has specifically excluded an independent contractor from the definition of “employee” in § 2(3) of the Act. It is said that the Board’s finding that Grey

*694

hound is an employer of employees who are hired, paid, transferred and promoted by an independent contractor is, therefore, plainly in excess of the statutory powers delegated to it by Congress. This argument, we think, misconceives both the import of the substantive federal law and the painstakingly delineated procedural boundaries of Kyne.

Whether Greyhound, as the Board held, possessed sufficient control over the work of the employees to qualify as a joint employer with Floors is a question which is unaffected by any possible determination as to Floors’ status as an independent contractor, since Greyhound has never suggested that the employees themselves occupy an independent contractor status. And whether Greyhound possessed sufficient indicia of control to be an “employer” is essentially a factual issue, unlike the question in Kyne, which depended solely upon construction of the statute. * * * [footnote omitted]

The reasoning of Mr. Justice Stewart, expressed in a National Labor Relation Act context, has subsequently been adopted by the EEOC,

see, e. g.,

Decision No. 72-0679, 4 F.E.P. Cases 441 (12/27/71); Decision No. 72-1301, F.E.P. Cases 715 (3/8/72), and seemingly by the few federal Courts which have had occasion to consider the meaning of the word “employer” under Title VII.

Puntolillo v. New Hampshire Racing Commission,

375 F.Supp. 1089 , (D.N.H. 1974), plaintiff, a driver-trainer of harness horses, sued “the New Hampshire • Racing Commission * * *, the regulatory agency which is responsible for horse racing activity in New Hampshire, and the New Hampshire Trotting and Breeding Association, Inc., * * * which conducts the harness racing activities at Rockingham Park, Salem, New Hampshire,” 375 F.Supp. at 1090, asserting that those defendants had deprived him of employment opportunities because of his Italian national origin. In rejecting defendants’ contention that the employment relationship between plaintiff and defendants required by Title VII was lacking, Judge Bownes, then a District Judge, wrote (at 1091-92):

The first issue for consideration is whether the relationship between driver-trainers and the defendants is one contemplated by Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Admittedly, the relationship here is not the traditional one. Nonetheless, the statutory language is broad.

* * * * * *

Throughout the Act and the applicable federal regulations, an intent to deal with more than the conventional employer-employee situation is indicated. This intent is demonstrated by the specific prohibition against discrimination by employment agencies and labor organizations, and by the prohibition of discrimination against

individuals

(as opposed to employees who are defined as “individuals] employed by an employer.”)

See generally Sibley Memorial Hospital v. Wilson,

160 U.S.App.D.C. 14, 17-18 , 488 F.2d 1338, 1341-1342 (1970); and

see

29 C.F.R. § 1600 et seq. Congress’ concern with the “prevalence of discriminatory employment practices” and its desire to deal with the problem in an effective and thorough manner is further supported by the legislative history surrounding the Civil Rights Act of 1964 and the Equal Employment Act of 1972. 1964 U.S.Code Cong, and Admin.News p. 2355; 1972 U.S.Code Cong, and Admin.News p. 2137.

More specifically, the Act is aimed at providing equal employment opportunities. Its purpose is to “achieve

equality of employment opportunities

and remove barriers that have operated in the past” in a discriminatory fashion.

Griggs v. Duke Power Co.,

401 U.S. 424, 429-430 , 91 S.Ct. 849 , 28 L.Ed.2d 158 (1971) [Emphasis added.] * * *

The courts have consistently recognized that “Title VII of the Civil Rights Act of 1964 should not be construed narrowly.” [citations omitted]

Like the court in

Sibley,

which considered the very question in issue here, I am impressed with the fact that

*695

the Act has addressed itself directly to the problems of interference with the direct employment relationship by labor unions and employment agencies— institutions which have not a remote but a highly visible nexus with the creation and continuance of direct employment relationships between third parties. 488 F.2d at 1342 .

Moreover, the 1972 amendments to Title VII clearly indicate an intent to “include State and local governments, governmental agencies and political subdivisions within the definition of an ‘employer’ under Title VII.” 1972 U.S.Code Cong, and Admin.News pp. 2137, 2152.

Defendants here are certainly employers within the meaning of 42 U.S.C. § 2000e(b); and they certainly “control . access to [plaintiff’s] job market.”

Sibley, supra,

[ 160 U.S.App.D.C. 14 ] 488 F.2d at 1341 . Plaintiff has alleged discriminatory actions which fall within the purview of 42 U.S.C. § 2000e-2(a), and I cannot say that these alleged actions fall completely without the scope of activities sought to be prohibited by Title VII.

Sibley, supra

[160 U.S.App. D.C. at 18], 488 F.2d at 1342 . [footnote omitted]

Sibley Memorial Hospital v. Wilson,

160 U.S.App.D.C. 14 , 488 F.2d 1338 (1973), faced with the question of whether a hospital, certain supervisory nurses of which had allegedly refused to refer a male private duty nurse’s name to female patients who had requested private nursing services, was an “employer” of that private duty nurse within the meaning of Title VII, Judge McGowan wrote (160 U.S.App.D.C at 16-17, at 1340-41):

Title VII of the Civil Rights Act of 1964 makes it an unlawful employment practice for an employer to engage in certain enumerated forms of discrimination on the basis,

inter alia,

of sex. For purposes of the Act, an “employer” is, with certain exceptions not here relevant, defined as a “person engaged in an industry affecting commerce who has twenty-five or more employees.” That appellant falls within this definition is not disputed. Appellant takes the position, however, that, since no direct employment relationship between itself and appellee was ever contemplated by either of them, it is not an employer under the Act with respect to him.

The Supreme Court has said that the Congressional objective in Title VII is “plain from the language of the statute,” and that it is “to achieve

equality of employment opportunities . .

.” (Emphasis supplied).

Griggs v. Duke Power Co.,

401 U.S. 424, 429 , 91 S.Ct. 849, 853 , 28 L.Ed.2d 158 (1969). In prohibiting discrimination in employment on the basis of sex, “one of Congress’ main goals was to provide equal access to the job market for both men and women.”

Diaz v. Pan American World Airways, Inc.,

442 F.2d 385, 386 (5th Cir.), cert. denied, 404 U.S. 950 , 92 S.Ct. 275 , 30 L.Ed.2d 267 (1971). Control over access to the job market may reside, depending upon the circumstances of the case, in a labor organization, an employment agency, or an employer as defined in Title VII; and it would appear that Congress has determined to prohibit each of these from exerting any power it may have to foreclose, on invidious grounds, access by any individual to employment opportunities otherwise available to him. To permit a covered employer to exploit circumstances peculiarly affording it the capability of discriminatorily interfering with an individual’s employment opportunities with another employer, while it could not do so with respect to employment in its own service, would be to condone continued use of the very criteria for employment that Congress has prohibited, [footnote omitted]

Smith v. Dutra Trucking Co.,

410 F.Supp. 513 (N.D.Cal.1976),

aff’d mem.,

580 F.2d 1054 (9th Cir. 1978), the plaintiff ran a trucking business with her husband. They entered into a “subhauling” agreement with the defendant trucking company to provide plaintiff’s customers with transportation service. The agreement specified that the subhauler was an “independent

*696

contractor.” Plaintiff alleged that the president of the defendant trucking company refused to let her drive on jobs for defendant solely on the basis of her sex. Judge Renfrew held that the plaintiff was not the trucking company’s “employee” within the meaning of Title VIL He distinguished

Sibley

and

Puntolillo

on the grounds that (1) both of those cases concerned interference with creation of direct employment relationships; (2) in each of those cases the defendant exercised greater control over the plaintiff’s job market than did the defendant in

Dutra.

Curran v. Portland Superintending School Committee,

435 F.Supp. 1063 (D.Me. 1977), a school teacher sued the City of Portland, the local school committee, and numerous city and school officials alleging sex discrimination in the recruitment, hiring, and promotion of school employees. Judge Gignoux (at 1073) held that the city exercised sufficient control to be deemed an “employer” under Title VII:

The City argues strenuously that it is not

plaintiff’s

“employer” under Title VII, since it has no connection with the actual employment of teachers and other school personnel. It is true that the School Committee and the Superintendent are given the responsibility and authority for the employment of teachers and other personnel, 20 M.R.S.A. §§ 161(5), 473, and the City is not permitted by its charter to become involved in the actual administration and management of the School System.

See

The Charter of the City of Portland, Art. I § 2 and Art. Ill § 4. The authority of the School Committee is limited, however, by the role of the City in appropriating funds for the support of the public school system, including salaries of personnel.

Sawin v. Town of Winslow,

253 A.2d 694, 699 (Me.1969); Charter, Art. Ill § 4. In such circumstances, it cannot seriously be doubted that the City is sufficiently involved, and, in fact, necessary to, the total employment process that it must be considered plaintiff’s employer for purposes of jurisdiction under Title VIL

Cf. Puntolillo v. New Hampshire Racing Commission,

375 F.Supp. 1089 (D.N.H. 1974);

Sibley Memorial Hospital v. Wilson,

160 U.S.App.D.C. 14 , 488 F.2d 1338 (1974),

But cf. Smith v. Dutra Trucking Co.,

410 F.Supp. 513, 517-18 (N.D.Cal. 1976).

Cf. United States v. South Carolina,

445 F.Supp. 1094, 1109-10 (D.S.C.1977) (three-judge court),

aff’d mem.,

434 U.S. 1026 , 98 S.Ct. 756 , 54 L.Ed.2d 775 (1978), raising, but not reaching, the question of whether a state and state agencies which “certify” but do not “select” teachers, are each an “employer” of teachers hired, paid, and discharged by local school boards;

Patterson v. Ramsey,

413 F.Supp. 523, 530 (D.Md.1976) (Young, J.),

aff’d,

552 F.2d 117 (4th Cir. 1977), holding in the context of an Eleventh Amendment issue, that the Baltimore City Board of School Commissioners, a “hybrid” creature of both the city and the state, was a city agency for Eleventh Amendment purposes.

The rationales of

Sibley, Puntolillo,

and

Curran

indicate that the term “employer,” as it is used in Title VII, is sufficiently broad to encompass any party who significantly affects access of any individual to employment opportunities, regardless of whether that party may technically be described as an “employer” of an aggrieved individual as that term has generally been defined at common law. Despite its concededly limited role in the hiring process, the Baltimore City Civil Service Commission exercised substantial authority and discretion in the area of testing of applicants for entry level positions with the Department.

The budgetary control over

*697

the Department has already been noted. Accordingly, the City defendants as well as the State defendants fall within Title VII’s use of the word “employer.”

Merit Issues

Plaintiffs’ substantive contentions relate to (1) sex; (2) race; and as to sex, (a) height-weight; (b) other; as to race, (a) entry level and promotion tests; (b) other. The legal bases are Title VII and § 1983

and also 42 U.S.C. § 2000d. But that last mentioned statutory provision proscribes only discrimination on the basis of race,

color, or national origin

in programs receiving federal financial assistance. Accordingly, it seemingly is not a basis for the grant of relief as to any of plaintiffs’ sex claims.

Plaintiffs also base their claims for relief, with regard to the height-weight requirements, under certain LEAA guidelines.

*698

LEAA Guidelines

The LEAA height guidelines are considered herein in connection with plaintiffs’ claims of invalidity of the Department’s height-weight requirements. Those LEAA guidelines may be binding upon the

federal

government as a self-imposed regulation.

Thus, those statutory and regulatory provisions may perhaps establish a basis for a suit by one or more of plaintiffs to force the LEAA to terminate its aid to the Department.

See, e. g., Handy v. Leonard,

7 F.E.P. Cases 1095 (N.D.Cal.1974). No discovered authority affirmatively indicates that those provisions were authorized by the Congress or intended by the LEAA as an independent basis for invalidation of a height-weight requirement. Nevertheless, there is no need to decide that issue herein, since together and/or separately, § 1983 and Title VII are available as platforms for all relief sought herein regardless of the additional availability of the LEAA regulations.

Title VII Standards

The standards under Title VII governing allegedly discriminatory but facially neutral employment qualifications have been formulated on a number of occasions by the Supreme Court.

See, e. g., Dothard v. Rawlinson,

433 U.S. 321 , 97 S.Ct. 2720 , 53 L.Ed.2d 786 (1977);

Albemarle Paper Co. v. Moody,

422 U.S. 405 , 95 S.Ct. 2362 , 45 L.Ed.2d 280 (1975);

Griggs v. Duke Power Co.,

401 U.S. 424 , 91 S.Ct. 849 , 28 L.Ed.2d 158 (1971). A Title VII plaintiff bears the initial burden of making out a prima facie case of discrimination. To establish such a prima facie case, a plaintiff need only show that facially neutral standards have a disproportionate impact on members of a protected group. A statistical showing of a significant discrepancy between the percentage of members of a protected group who qualify and their percentage in the relevant labor market is sufficient to establish a prima facie case of discrimination.

See Dothard v. Rawlinson, supra,

433 U.S. at 329-30 , 97 S.Ct. 2720 ;

Hazelwood School District, et a1. v. United States,

433 U.S. 299, 307-09 , 97 S.Ct. 2736 , 53 L.Ed.2d 768 (1977);

Patterson v. American Tobacco Co.,

586 F.2d 300, 304-05 (4th Cir. 1978). Once a plaintiff has made out a prima facie case, the burden shifts to the employer to show, by a preponderance of the evidence that the job requirement has a “manifest relationship” to the job.

Griggs v. Duke Power Co., supra

401 U.S. at 432 , 91 S.Ct. 849 . If the employer demonstrates that the requirement is job related, the plaintiff may overcome that demonstration of job relatedness by showing by a preponderance of the evidence that other selection criteria would serve the employer’s legitimate purposes without a similar discriminatory effect.

See Albemarle Paper Co. v. Moody, supra

at 425, 95 S.Ct. 2362 .

United States v. City of Chicago,

549 F.2d 415 (7th Cir. 1977),

cert. denied,

434 U.S. 875 , 98 S.Ct. 225 , 54 L.Ed.2d 155 (1978) the Seventh Circuit held that evidence of the disproportionate impact of a written entry level examination for police officers was sufficient to shift to the defendants in that case the burden of proof to show that

*699

the tests were job related under Title VII. Judge Swygert observed (at 428):

The district court first looked at comparative success on the 1971 patrolman’s examination and found that blacks and Hispanics failed at twice the rate of white applicants. Defendants contend that this evidence is insufficient to show discrimination because plaintiffs failed to show that the disproportionate failure rate resulted from racial factors. This argument misconceives the legal standard to be utilized in determining whether a prima facie case of discrimination exists within the meaning of Title VII. Plaintiffs did not need to show that the examination was devised with the intent to exclude racial minorities or that a direct causal relationship exists between an applicant’s race and his performance. Rather, plaintiffs needed only to show that the examination had an adverse impact on minority applicants as a group; at that point, the burden would be on the City to demonstrate that the examination in fact tested job-related qualifications.

See Griggs,

401 U.S. at 431-32 , 91 S.Ct. 849 , 28 L.Ed.2d 158 ;

Albemarle,

422 U.S. at 425 , 95 S.Ct. 2362 , 45 L.Ed.2d 280 ;

Stewart,

542 F.2d [445] at 450.

See also Washington

Davis,

426 U.S. 229 , 96 S.Ct. 2040 , 48 L.Ed.2d 597 (1976). [footnote omitted]

Similarly, in

Firefighters Institute for Racial Equality v. City of Saint Louis,

549 F.2d 506 (8th Cir. 1977),

cert. denied,

434 U.S. 819 , 98 S.Ct. 60 , 54 L.Ed.2d 76 (1978) the Eighth Circuit applied the

Griggs-Albemarle

standard and required the defendant city to prove the job relatedness of a written exam for fire captain after plaintiffs’ statistical evidence of the exam’s discriminatory impact had been introduced and had been found sufficient to establish a prima facie case under Title VII. Judge Ross noted (at 509-10):

It is not disputed here that the 1974 written

exam

for the fire captain’s position adversely affected black candidates as a whole. The district court concluded that the statistical evidence presented established that the test had a disparate impact on blacks.

It is a distinguishing feature of a Title VII cause of action that discriminatory impact suffices to establish a prima facie showing of discrimination. The recent case of

Washington v. Davis,

426 U.S. 229, 239 , 96 S.Ct. 2040 , 48 L.Ed.2d 597 (1976) establishes that a law or other official act is not unconstitutional solely because it has a racially disproportionate impact regardless of whether it reflects a racially discriminatory purpose. However, Congress’ statutory standard for Title VII, where discriminatory purpose need not be proved, is unshaken by the

Washington

decision.

Id.

at 246-47 , 96 S.Ct. 2040 .

* * * * * *

Once a racially adverse impact is demonstrated, the burden of proof shifts to the employer to prove the job relatedness of the exam he has utilized.

Albemarle Paper Co. v. Moody,

422 U.S. 405, 425 , 95 S.Ct. 2362 , 45 L.Ed.2d 280 (1975). * * [footnotes omitted]

To be sure, attacks on the continuing vitality of the

Griggs-Albemarle

standards under Title VII, which do not require plaintiff to prove discriminatory intent, have been mounted in cases in which governmental employees are involved, and such attacks are repeated by defendants in the instant cases. Such challenges largely rest on the proposition that since the Supreme Court in

Washington v. Davis

limited the constitutional reach of equal protection to instances of intentional discrimination, the Congress, acting pursuant to the Fourteenth Amendment, could not by 1972 amendments to Title VII subject a govern

*700

mental entity such as the Department to Title VII liability unless intentional discrimination is proved. In

United States v. City of Chicago,

573 F.2d 416 (7th Cir. 1977), a suit instituted by the United States challenging certain employment practices of the Chicago Fire Department relating to blacks and Hispanics, the Seventh Circuit rejected the defendant-appellees’ contentions that the holdings of

General Electric Co. v. Gilbert,

429 U.S. 125 , 97 S.Ct. 401 , 50 L.Ed.2d 343 (1976) and

Washington v. Davis,

426 U.S. 229 , 96 S.Ct. 2040 , 48 L.Ed.2d 597 (1976) require a showing of discriminatory purpose in a suit under Title VII by state and local governmental employees as opposed to private sector employees and that, in addition, in any event, the Tenth Amendment so requires. Chief Judge Fairchild pointed out (at 421):

Washington v. Davis, . . .

the Supreme Court held that a showing of discriminatory purpose is necessary to establish a violation of the Fourteenth Amendment. However, the Court made clear that a showing of discriminatory purpose was not required in Title VII suits:

tic

* * * $ *

Thus

Washington v. Davis

expressly refutes the contention of appellees that discriminatory purpose or intent must be demonstrated in a Title VII case.

General Electric Co. v. Gilbert

is no more helpful to appellees’ argument. In

Gilbert ,

the Court held that a plan which provided nonoecupational sickness and accident benefits to all employees but excluded disabilities arising from pregnancy did not violate Title VII. The touchstone of

Gilbert

was that there was no showing of discriminatory effect — no evidence was introduced to suggest that men received more benefits from the plan than did women: * * *

And (at 423-24), Judge Fairchild added:

* * * It is undisputed that the 1972 Amendments to Title VII are an enactment to enforce the anti-discrimination prohibitions of the Equal Protection Clause and are “plainly adapted to that end.” Indeed, the whole purpose of the 1972 Amendments was to give public employees the same protections against discrimination as those enjoyed by employees in the private sector.

Cf. Chandler v. Roudebush,

425 U.S. 840 , 96 S.Ct. 1949 , 48 L.Ed.2d 416 (1976). It was well within congressional authority to weigh the competing policy considerations and determine that public employees required the safeguards against discrimination given to private employees by the

Griggs

standard.

Cf. Katzenbach v. Morgan, supra

at 653, 86 S.Ct. 1717 . Thus, since the 1972 Amendments are clearly rationally related to and consistent with “the letter and spirit” of the Fourteenth Amendment,' and the means chosen were not in themselves unconstitutional, we conclude that Congress could constitutionally incorporate the

Griggs

test into the 1972 Amendments.

Because Congress relied on § 5 of the Fourteenth Amendment, Judge Fairchild concluded (at 424) it was not apposite to argue that “as a matter of federalism under the Tenth Amendment, it is necessary for a plaintiff bringing a Title VII action against a governmental unit to prove intentional discrimination.”

*701

Friend v. Leidinger,

446 F.Supp. 361, 385-86 (E.D.Va.1977)

aff’d

588 F.2d 61 (4th Cir. 1978), Judge Warriner held that proof of discriminatory intent is required to establish a prima facie case of race discrimination in employment under Title VII where the defendant is either a State or a subdivision of a State.

Subsequently in

United States v. Virginia,

454 F.Supp. 1077, 1083-85 (E.D.Va.1978), upon consideration of

United States v. Chicago,

573 F.2d 416 (7th Cir. 1978), and

United States v. South Carolina,

445 F.Supp. 1094, 1111-12 (D.S.C.) (three-judge court composed of Chief Judge Haynsworth, Judge Russell and Judge Simons),

aff’d mem.

434 U.S. 1026 , 98 S.Ct. 756 , 54 L.Ed.2d 775 (1978), Judge Warriner wrote (at 1084):

These [two] cases lead the Court to believe that Congress has the power under § 5 of the Fourteenth Amendment to apply the impact standard of employment discrimination to the States in Title VII cases.

That conclusion would appear correct. In 1977, in

Dothard v. Rawlinson, supra

at n.14, Mr. Justice Stewart stated, though not in the specific context of disparate impact vs. intent, that in enacting “the 1972 amendments extending Title VII to the States as employers * * * Congress expressly indicated the intent that the same Title VII principles be applied to governmental and private employers alike *

Friend v. Leidinger,

588 F.2d

supra

at 67, the Fourth Circuit, in affirming Judge Warriner’s non-Title VII violations determinations, stated that it did not need to. reach, in

Friend,

“the question of whether a governmental employer is liable under Title VII without a showing of purposeful discrimination.” Herein, however, because this Court finds only non-intentional race discrimination on the part of defendants, it is necessary to reach that question. Accordingly, reaching it, this Court answers the question in the affirmative. That answer would appear required in order to effectuate what the Congress intended by its 1972 amendments to Title VII. Nor is such an interpretation constitutionally impermissible. The Supreme Court in

Washington v. Davis,

in the course of establishing the constitutional reach which it ascribed to equal protection, in no way suggested that the power of the Congress pursuant to the Fourteenth Amendment is so circumscribed that the Congress itself may not apply the same Title VII standards to all employers, private and governmental alike.

Constitutional Standards

Unlike Title VII, intentional discrimination must be shown in order to establish the

unconstitutionality

of employment practices. Although a number of federal courts, in cases brought directly under the Fourteenth Amendment and/or 42 U.S.C. §§ 1981 and 1983, once rejected that view,

the Supreme Court has since spoken to the contrary.

Washington v. Davis,

426 U.S. 229 , 96 S.Ct. 2040 , 48 L.Ed.2d 597 (1976). Therein, Mr. Justice White wrote (at 238-39, 96 S.Ct. at 2047):

As the Court of Appeals understood Title VII, employees or applicants proceeding under it need not concern themselves with the employer’s possibly discriminatory purpose but instead may focus only on the racially differential impact of the challenged hiring or promotion practices. This is not the constitutional rule. We have never held that the constitutional standard for adjudicating claims of invidious racial discrimination is

*702

identical to the standards applicable under Title VII, and we decline to do so today.

The central purpose of the Equal Protection Clause of the Fourteenth Amendment is the prevention of official conduct discriminating on the basis of race. It is also true that the Due Process Clause of the Fifth Amendment contains an equal protection component prohibiting the United States from invidiously discriminating between individuals or groups.

Bolling v. Sharpe,

347 U.S. 497 , 74 S.Ct. 693 , 98 L.Ed. 884 , 53 Ohio Ops. 331 (1954). But our cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional

solely

because it has a racially disproportionate impact.

* * * * * *

And (at 247-48, 96 S.Ct. at 2051, 2052), the Justice also stated:

Under Title VII, Congress provided that when hiring and promotion practices disqualifying substantially disproportionate numbers of blacks are challenged, discriminatory purpose need not be proved, and that it is an insufficient response to demonstrate some rational basis for the challenged practices. It is necessary, in addition, that they be “validated” in terms of job performance in any one of several ways, perhaps by ascertaining the minimum skill, ability or potential necessary for the position at issue and determining whether the qualifying tests are appropriate for the selection of qualified applicants for the job in question. However this process proceeds, it involves a more probing judicial review of, and less deference to, the seemingly reasonable act of administrators and executives than is appropriate under the Constitution where special racial impact, without discriminatory purpose, is claimed. We are not disposed to adopt this more rigorous standard for the purposes of applying the Fifth and the Fourteenth Amendments in cases such as this.

A rule that a statute designed to serve neutral ends is nevertheless invalid, absent compelling justification, if in practice it benefits or burdens one race more than another would be far-reaching and would raise serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than to the more affluent white.

Given that rule, such consequences would perhaps be likely to follow. However, in our view, extension of the rule beyond those areas where it is already applicable by reason of statute, such as in the

field of public employment,

should await legislative prescription. [Emphasis added; footnotes omitted.]

Mr. Justice White’s specific reference in

Washington v. Davis

to “public employ

*703

ment” in a public employment case would appear clearly to establish the applicability of the “rigorous” less-than-intent standard in a Title VII case against governmental employees, as contrasted with the intent standard applicable in a case in which constitutional principles are alone at stake in the absence of congressional enactment. Judged in the light of that latter standard, all of the 1983 race claims of plaintiffs fail. As to some of them, plaintiffs have shown no discrimination. As to others,

i. e.,

certain tests and examinations, the challenged practices are facially neutral. With regard to them, plaintiffs have shown discriminatory impact but not purposeful discrimination. Nor are any of the classifications established by defendants and challenged by plaintiffs on racial grounds lacking in rational bases. As to the non-height-weight § 1983 sex claims stated by plaintiffs, they also fail since with regard to them plaintiffs have not proven any discrimination and/or lack of rationality. The opposite is true of plaintiffs’ height-weight § 1983 sex claims. With regard to them, plaintiffs have shown intentional discrimination which, in this Court’s opinion, is gender based, fails to “serve important governmental objectives” and is not “substantially related to the achievement of * * * [such] objectives,”

Craig v. Boren,

429 U.S. 190, 197 , 97 S.Ct. 451, 457 , 50 L.Ed.2d 397 (1976). Thus, it is not necessary to reach the issue of whether the “strict scrutiny” test or the “mid-level scrutiny test” applies to the height-weight standards since, under either test, plaintiffs are entitled to section 1983 relief with regard thereto.

Departmental History re Females

The principal sex attack relates to applications for the position of police officer with the Department. Plaintiffs, however, also alleged other acts of discrimination against women.

Counsel have stipulated, in part, as follows:

*704

“The Baltimore Police Department was organized in 1784 when the unpaid citizen’s watch was replaced by a corps of paid watchmen established by act of the General Assembly [of Maryland]. Administration of the watch force was placed in the hands of Court of Oyer and Terminer in 1793 when the City-run force was unable to curb crime. The Department grew under the direction of the justices of Oyer and Terminer, but no major changes occurred until 1857 when the watch system was replaced with a force of policemen, directed by sergeants, lieutenants and captains, with the entire force under the direction of a marshal and a deputy marshal. At this time, control of the Police Department had again been vested in the City’s Mayor. In 1860, rioting became common in Baltimore and, with the Police Department apparently unable to control the situation, the State Legislature reasserted its control over the Department. At first the State-run City Police Department was headed by a Board of Police Commissioners elected by the General Assembly. In 1920, the General Assembly substituted a single commissioner to be appointed by the Governor.

“The Baltimore City Police Department’s sworn personnel were all male until 1912 when the General Assembly created a women’s division of the Department with full police powers. The number of policewomen in the Department did not rise above six, the original authorized strength, until 1946 when the General Assembly dropped the five-person limitation. The largest number of policewomen in the Department at one time prior to 1974 was 53 in 1969. In that year, the total authorized strength of the uniformed ranks of the Baltimore City Police Department was 3,483 and the actual strength was 3,438 individuals. As of April, 1974, there were 3,482 sworn males in the Baltimore City Police Department and 44 females, fifteen of the latter designated as “police officers” as opposed to policewomen.

“The police officer classification was established in 1973 for males and females in first level patrol positions. One policewoman applied for transfer to the position of police officer. She was not advised of any action taken on her application until her affidavit was introduced into these proceedings; she then declined the transfer.

“Recruiting by the Department is conducted by its Personnel Division and involves the circulation of printed brochures and flyers and appearances by recruiters at military bases, shopping centers, the State Employment Service, ballparks and other locations and organizations where large groups of potential applicants may be found. No women were recruited between 1967 and 1973. A recruiting brochure in use until mid-1973, although corrected to reflect new salary levels, was not altered to indicate that women could join the Department and pictured no women serving in the Department. The Department presently

uses only a one-page announcement to advertise the police officer position.

“In the year 1965, the Baltimore City Police Department established the position of Police Cadet, a civilian position designed to ‘train potential patrolmen while the cadet performs certain departmental job duties which will offer a career opportunity in the police service upon the cadets reaching age 21.’ Until July 1,1973, the position of cadet was open to males only.

“Several factors go into the hiring of sworn Police Department personnel. The first hurdle an applicant must surpass is passage of a test selected several years ago and administered by the Department and the Baltimore City Civil Service Commission staff. The examination used is the so-called PPA test, prepared by the Public Personnel Association of Chicago, Illinois, a professional organization of Civil Service Directors.

“Those who pass the test file lengthy applications. Applicants are then given physical examinations by the Police Department. In addition to the medical qualifications listed on the back of the police officer announcement, the police physician must certify that an applicant is emotionally sta

*705

ble and free from abnormal physical conditions. Applicants are also subjected to full field background checks. Generally speaking, the Department will not hire a person convicted of a felony or a number of misdemeanors which indicate immaturity or irresponsible conduct. Neither is a person employed who has used hard drugs or who is using pep pills or marihuana. As a general rule, no one with a discharge from the Armed Forces under conditions other than honorable is employed. As of September 2, 1974, applicants must finally be recommended for appointment by Psychology Consultants Associated. Prior to admission to the Department, applicants are examined by a three-person interview board, consisting of officers within the Department. A female sergeant is always a member of this Board if a female applicant is being interviewed. The factors considered by the oral boards are appearance, manner and bearing, speech, alertness, judgment, attitude and suitability.

“Since Commissioner Pomerleau and Personnel Director Rowlett joined the Department, no individual who has passed all of the tests hereinabove described has been rejected from the Police Department. The Department maintains no sex-based records of applicants’ progress through the application process; the records have reflected race of applicants only since 1972.

“The women’s division of the Police Department established by the General Assembly in 1912 had full police powers. Early policewomen received the same training as policemen at the Police Academy, including pistol and judo training, with the exception of ‘the more rugged physical conditioning.’ Policewomen who joined the Department in the 1960’s received training identical to that given policemen, including self-defense and pistol training. Policewomen prior to 1973 were not assigned to routine patrol duties but were given specialized kinds of duty. As one policewoman recounted in 1944, ‘Our chief work is look over girls and try to keep them from going wrong.’ The female officers specializéd in work with juveniles and women and in limited detective duty and investigatory work in connection with ‘delicate’ crimes such as rape.

“Policewomen’s duties today include guarding female prisoners after arrest and prior to trial, investigating and processing cases involving sexual perversion and rape, juvenile cases, domestic disputes, child neglect and abuse cases, insanity cases and ‘crank’ complaints.

“Policewomen are not issued uniforms but wear their own clothes while on duty regardless of the nature of the duty but are given a uniform allowance. Police officers wear uniforms unless they are assigned to plainclothes detective work.

“Policewomen were not issued guns until 1970 and at that time received 32 caliber revolvers while male officers carry 38 caliber revolvers. Women received 38 caliber revolvers in 1973 or 1974. Policewomen were not issued handcuffs until 1969. They do not now have nightsticks.

“Policewomen are not assigned to patrol cars but must ask policemen or police officers for rides in motor pools or district cars if transportation is necessary for performance of their duties.

“The Baltimore City Police Department is organized into 16 divisions: Personnel, Community Relations, Education & Training, Internal Investigation, Fiscal Affairs, Traffic, Youth, Patrol, Criminal Investigation, Communications, Laboratory, Property, Central Records, Planning & Research, Public Information and Inspectional Services. Until 1973, women served only in the Inspectional Services, Personnel, Youth, Community Relations, Criminal Investigation and Patrol Divisions. As of this date, women are serving only in the Patrol, Youth, Personnel, Planning & Research, Inspectional Services, Internal Investigation, Community Relations, Criminal Investigation and Youth Divisions. Women in the Criminal Investigation Division do not have detectives’ badges while men do.

“The first sergeant of policewomen was appointed in 1945 and the second sergeant of policewomen was not named until ten years later. The first sergeants-policewom

*706

en were appointed to their posts whereas males who were promoted from patrolmen to sergeants were selected through promotional examinations. The first examination for promotion to sergeant-policewoman was administered in 1961. In 1966, the first woman was promoted to the rank of lieutenant-policewoman. Until 1973, no examination for captain was administered to a woman, and no women in the Department were permitted to rise above the rank of lieutenant. To date no woman has been promoted above the rank of lieutenant. Officers above the rank of captain and all deputy commissioners are appointed by the Police Commissioner without examination and serve at his pleasure during satisfactory performance. No woman has ever served in such appointed position above the rank of captain.

“Prior to September of 1973, identical examinations were given at different times of the year to candidates for promotion to the position of sergeant and sergeant-policewoman. On the 1968 sergeant-policewoman list, Joan Barnard and Bessie Norris scored higher than 13 male candidates on the sergeant list who were promoted and Mercedes Rawlings scored higher than 20 promoted males, but those women were not promoted on the basis of their 1968 scores. Similar comparisons can be made for the sergeant’s and sergeant-policewoman’s lists in 1969, 1970 and 1972, and the first sergeant-policewoman examination taken by women in ly73.”

Heigh t- Weigh t

At the time of Pomerleau’s appointment as Police Commissioner in September, 1966, non-civilian positions in the Department fell into two categories: “policemen” and “policewomen.” Policemen performed traditional law enforcement tasks, while policewomen performed such specialized activities as working with juveniles, serving as meter-maids and acting as detectives in areas in which there existed “no requirement for strength” or “for dignity of demeanor.”

In view of the fact that the position of “policewomen” involved activities requiring limited physical prowess, no physical qualifications were set for applicants for that position. Pomerleau phrased it in this way (Pomerleau Deposition, p. 30):

Now, they were hiring without any standards, height or weight standards, because those women were perfectly capable, and are capable today — a midget, female or male, can do many of these positions. There is no requirement for strength, there is no requirement for dignity of demeanor which, in and of itself, may get the individual to acquiesce to a lawful order. They were very successful and they are functioning very effectively today. So there weren’t any standards per se concerning height and weight.

By 1973, Pomerleau had decided to eliminate any job distinction between male and female employees and to create a single position designated “Police Officer,” to be filled without regard to the sex of an applicant and demanding equivalent duties of both males and females. (Pomerleau Deposition, p. 31). Thereafter, Pomerleau participated in a series of discussions concerning the institution of a height-weight requirement for Police Officers. Those discussions included communications between Pomerleau and the other Police Chiefs of the twenty-nine largest cities in the United

*707

States. Pomerleau’s discussions with those officials, who apparently met as a body entitled the “Major City Police Administrators,” came in the aftermath of one or more decisions of the LEAA regarding the invalidity of height requirements imposed upon female applicants by one or more police departments throughout the country. The Major City Police Administrators were in general accord that there existed a correlation between height proportioned to weight and effectiveness as a police officer, and believed it necessary for police departments to maintain minimum height-weight requirements. (Pomerleau Deposition, pp. 32-36). That shared belief stemmed from the Administrators’ “intuitive feeling,” (Pomerleau Deposition, pp. 33, 36) and in Pomerleau’s ease did not arise out of any scientific studies he or his staff conducted (Pomerleau Deposition, pp. 40-44), although Pomerleau, at that time, was apparently aware of one height study conducted in San Diego (Pomerleau Deposition, p. 42).

While final imposition of a height-weight requirement for applicants was under consideration, Pomerleau received from the Office of Civil Rights Compliance of the United States Department of Justice a letter containing several recommendations concerning Baltimore City Police Department administrative policies and suggesting,

inter alia,

that the Department open its ranks to women. (Pomerleau Deposition, pp. 45-50). Thereafter, Pomerleau engaged in discussions with one or more members of his staff to determine how best to comply with that latter recommendation. Involved in such discussions were Pomerleau’s legal counsel, Rowlett, the Deputy Commissioner of the Administrative Bureau, and also the Director of Personnel for Baltimore City. (Pomerleau Deposition, pp. 46-49). Thereafter, Pomerleau instructed Rowlett that no reference to any height-weight requirement should be made in the Police Department Brochure distributed to potential applicants. (Pomerleau Deposition, p. 50). Pomerleau further instructed Rowlett that no applicant under 5'7", whether male or female, should be employed until further notice, and instructed Rowlett so to inform his subordinates.

Subsequently, in an effort to reach a final decision as to the desirability and/or validity of a height-weight requirement, Pomerleau asked Rowlett to canvas the entrance requirements of several other cities’ police departments and obtain reports concerning the average heights of both males and females in the United States. Rowlett himself, at or about that time, suggested, on the basis of entrance requirements imposed by the women’s branch of the United States Marine Corps, that a 5'6" height requirement be established. (Rowlett Deposition, p. 31).

In September, 1973, Pomerleau reached a final decision to impose upon all applicants for the position of Police Officer the requirement that they be at least 5'7" in height, with weight in proportion to height. That requirement, while seemingly never inserted into any job specification, was apparently first advertised by means of a job flier on September 3, 1973. (Rowlett Deposition, p. 35).

On or about July 10, 1973 plaintiff Bosworth had applied for employment as a Police Officer with the Baltimore City Police Department. Bosworth passed the physical and mental tests required for applicants and was given a probationary appointment as a Police Officer on or about July 23, 1973.

Following her probationary appointment, Bosworth was informed by the Department that a background check was being done to determine whether she could be admitted to Baltimore City’s Police Academy. On or about September 5,1973 Bosworth received a letter from defendant Rowlett informing her that: “[a] determination has recently been made, after careful study of information available that a police officer who is

*708

not at least 5'7", with weight in proportion to height, may at times experience difficulties in carrying out certain street duties when a high level of physical strength is required. Therefore, it is with regret that I must inform you that you do not meet the physical requirements of the Department.” (Exhibit B to Plaintiff’s Complaint in

Bos

worth). Similar occurrences were experienced by other members of the applicant class.

Non-Height-Weight Sex Discrimination

One past female member and one present female member of the Department have presented evidence of alleged sex discrimination unrelated to height-weight requirement. One of them, Mary F. Stout is a policewoman employed by the Department since July 11, 1968. She claims that the Department discriminated against her and other female police officers solely because of her sex. Stout, in an affidavit, states that she has been “frequently on call to divisions other than my own on my free time and on weekends” while to her knowledge no “male officers had similar duty”; that female police officers are not issued standard equipment and do not have a car at their disposal; that when she was interviewed for the position of police sergeant, a three-man interview committee asked her “some pretty stupid questions,” including what she would do if she “saw a. partner doing a striptease on the block”; that she was required to take the written test for police sergeant twice in 1973; and that when she applied in August of 1973 for transfer to the position of police officer, her application was ignored by her superiors.

In response to Stout’s allegations, C. Jared Glauser, Deputy Commissioner of the Administrative Bureau of the Department, stated in an affidavit that “Officer Stout was assigned on the basis of need within the department and was not assigned on a discriminatory basis,” and that both male and female officers “are often called upon to perform duties in addition to those normally assigned within a work week” and are compensated for the same by the payment of overtime.

Stout has also asserted that no female employees are assigned police cars. Responding, Glauser has further stated:

While all policewomen are not assigned a car to have at their disposal at all times, such is similarly true of male officers assigned to various duties within the Baltimore City Police Department. From an operational standpoint, it is impossible to assign a car to every working member of the Baltimore City Police Department. Transportation is provided to perform duties operational requirements dictate. There exists no policy, plan or practice to systematically deprive policewomen of needed transportation; * * *.

Glauser has not sought to controvert Stout’s claim that she was required during 1973 to take two examinations. Glauser has however explained the circumstances surrounding the examination as follows:

“Prior to 1973, the Baltimore City Police Department maintained a dual promotional register, that is, one promotional register for male police officers and one promotional register for policewomen. Thus, prior to 1973, Officer Stout, in attempting to obtain promotion, competed against other policewomen alone for vacancies in a supervisory policewoman position. Thus, in 1972, when Officer Stout complains of her failure to obtain the rank of Sergeant, she was competing only against other policewomen and certainly was not discriminated against by virtue of her sex.

“In 1973, two (2) promotional exams were given for policewomen. The first such exam was given under the old existing practice as described above whereby policewomen competed only with policewomen for promotion to supervisory policewomen ranks. However, following said exam, the Baltimore City Police Department ceased maintaining a dual promotional register as

*709

described above. The policy then became to maintain a single promotional register. This change occurred simultaneously with the decision of the Baltimore City Police Department to discontinue the classification of policewoman at entrance level and to accept applications from all aspirants for police duties, both male and female, on an equal basis. Thus it was decided that any policewoman could either maintain her position as a policewoman or request transfer to patrol duties within the agency, thereby requesting permission to be treated exactly as their male counterparts. Any policewoman wishing promotion would compete against all males and females for supervisory positions in the agency. Thus, another exam was given where policewomen competed with their male counterparts for promotion. Officer Stout failed the second examination; * *

Finally, Glauser has stated that Stout’s requested transfer was not implemented “[s]trictly through an administrative oversight” as a result of which that request, despite approval by all necessary authorities, “remained in Officer Stout’s personnel file without implementation.” Glauser further has indicated that upon discovery of the above administrative oversight, Millard S. Rubenstein, counsel for the State defendants herein,

“advised your Affiant to immediately implement Officer Stout’s request. When contacted Officer Stout stated that she did not wish to transfer to the Patrol Division, and did not wish to take regular duties * * * *. Officer Stout was in no way pressured, coerced, or induced to execute this memorandum. Officer Stout was free to elect transfer to the Patrol Division. Every other policewoman was similarly free to transfer to the Patrol Division and assume regular police duties.”

Debra Hoblik, a former Baltimore City police officer, in an affidavit, contends that in the month following the beginning of her duties as a police officer after she had injured her leg and been sick with the flu, the latter for a total of eight days, she was urged to resign for “personal reasons” rather than be terminated for “physical reasons.” Hoblik has also stated that “other probationary officers have became [sic] sick and have not been fired because of it,” and that in her opinion the Department in fact had decided to terminate her because of a conflict between her and a male employee, one Floyd Robinson, and preferred to retain a male officer in the event of such a conflict between officers of two sexes. Hoblik has further written under oath that after her resignation the Department provided, to one or more employers from whom she sought employment, a report which stated that she was not “physically fit to be a police officer.”

In response to Ms. Hoblik’s allegations, Glauser has stated under oath as follows:

“Debra J. Hoblik was appointed a Probationary Police Officer with the Baltimore City Police Department on May 22, 1974, and was assigned to the Personnel Division pending commencement of an entrance level training class as is done with all new police officers. On June 13, 1974, Ms. Hoblik was unavailable for work due to a swollen right knee and a swollen left elbow, which incapacity continued until June 19, 1974. On June 26, 1974, she was unavailable for work due to an upper respiratory infection which continued until July 10, 1974. On June 27,1974, Dr. Daniel Wilfson, Chief Physician of the Baltimore City Police Department, advised the Director of the Personnel Division that Ms. Hoblik was not physically qualified to be a police officer.

“Based upon Dr. Wilfson’s determination, Lieutenant William Bowen of the Personnel Division, in company with Sergeant Albert Doda and Policewoman Mary Jean Knott, went to the home of Ms. Hoblik and advised her that the Chief Physician had determined that she did not meet the qualifications of the department. She was advised that she could resign if she wished, but that if she did not resign, her employment would be terminated due to her medical disqualifications. Ms. Hoblik stated that she wanted to discuss the matter with her attorney and

*710

would advise the department of her decision by telephone by 4:00 p. m. on July 9, 1974. Ms. Hoblik telephoned at 3:15 p. m. and stated that she would sign a resignation on July 10, 1974. * * *

“Ms. Hoblik, while a probationary member of the department, was requested to take a polygraph examination consistent with departmental policy. The reason for such a polygraph examination is as follows:

On June 4, 1974, Police Officer Floyd A. Robinson of the Southeastern District, came to see Lieutenant William Bowen at the recommendation of his Commanding Officer. Officer Robinson expressed concern that Ms. Robinson (his wife) was about to reveal certain information which she had received from Ms. Hoblik about Officer Robinson, which was of concern to Officer Robinson. Succinctly, Officer Robinson felt that Ms. Hoblik, while she was assigned to the Personnel Division, improperly and without permission or necessity reviewed Officer Robinson’s medical file in an attempt to obtain damaging information about a physical condition that Officer Robinson may have had. If the facts were as alleged by Officer Robinson, then Ms. Hoblik may well have violated the rules and regulations of the department. It is the policy of the Baltimore City Police Department in investigating internal complaints against police officers accused of violating departmental rules and regulations to utilize a polygraph examination in furthering an investigation. Accordingly, Ms. Hoblik was requested to take a polygraph examination. Ms. Hoblik initially agreed to take said examination. She later refused to take such polygraph examination. Thus, the examination was not conducted because of Ms. Hoblik’s resignation as indicated above;

“Ms. Hoblik was afforded the opportunity to resign because of the medical opinion of Dr. Wilfson that she was unqualified for police service. The opportunity to resign was not afforded in any way because of discriminatory practices. The opportunity to resign was not afforded Ms. Hoblik because of her sex. Any information to be given to prospective employers is furnished for male officers in the same manner as female officers. No difference in the manner or type of information provided is made because of the sex of the employee involved.”

Neither Stout nor Hoblik is a named plaintiff in any of these cases. Accordingly, since this Court has decertified the non-height-weight sex class,

their claims are not before this Court for decision. But if they were, they would not succeed. Noting the factual differences and assessing all of the evidence, this Court is not persuaded that either woman was discriminated against because of her sex in connection with her employment by the Department.

More re Height-Weight

Returning to the height-weight issue, the initial question is whether or not the height-weight requirements have a disproportionate impact upon female applicants. Those requirements exclude from consideration for employment 95 percent of the female population between the ages of 18 and 79 and only 32 percent of the male population of the same age; and in the age group 18-34 years, those requirements exclude 81.8 percent of the female population and only 25.1 percent of the male population.

Given the disparate effect of the height requirement on men and women, plaintiffs have demonstrated a prima facie case of sex discrimination under Title VII. Pomerleau’s own testimony indicates that his decision to promulgate the disputed height-weight requirement was primarily motivated by concern about having short

*711

women serve as police officers. The Commissioner’s own words disclose his intent.

In their light, even if plaintiffs’ claims are considered under the standards of § 1983 which require a showing of discriminatory purpose, plaintiffs have made the requisite showing of intent. Accordingly, the burden devolves upon defendants to show that the height-weight requirements are job-related. The parties have introduced various documents and adduced expert testimony upon the relationship of those physical requirements to the performance of a police officer’s duties, including the following description of the position of a Baltimore City Police Officer which was issued by the Department on July 11, 1973:

CLASS TITLE:

POLICE OFFICER

CHARACTERISTICS OF THE CLASS:

Under general supervision, is responsible for enforcing laws within Baltimore City in accordance with the rules and regulations of the Police Department; and does related work as required.

EXAMPLES OF DUTIES:

Patrols the city to prevent and discover the commission of crime and to enforce traffic and parking regulations; answers calls and complaints and takes necessary police action at scene of a crime or disturbance including maintaining order, gathering evidence, locating witnesses, and making arrests; investigates person suspected of engaging in criminal activity; interviews suspects, prisoners, complainants, and witnesses to obtain information about crimes; checks the operation of places of public accommodation for compliance with laws and ordinances; investigates juvenile crimes and discusses such crimes with juveniles, parents, and others; consults with parents, teachers, and others in an attempt to resolve juvenile problems and assists in the operation of boys’ clubs; appears in court to present evidence and testify against person accused of crimes; performs police related duties in the offices of the department.

MINIMUM QUALIFICATIONS:

Training and Experience:

Graduation from a recognized high school or certificate of high school equivalency.

Knowledge and Skills:

Ability to learn laws, ordinances, and police rules and reg

*712

ulations; ability to cope with situations firmly, courteously, tactfully, and with a respect for the rights of others; ability to analyze situations quickly and objectively to determine a proper course of action to be taken; ability to understand and carry out oral and written instructions; ability to write and speak effectively; ability to develop skill in the use and care of firearms; good general intelligence and emotional stability.

Plaintiffs’ Exhibit S-5.

Commissioner Pomerleau expects each Baltimore City Police Officer to be able to perform all police duties. Thus, no special standards are used to hire personnel to fill specialized jobs within the Baltimore City Police Department. (Tr. at 231-233).

Defendants contend that that height requirement survives constitutional and statutory scrutiny for the following reasons:

It is the position of these Defendants that inherent in urban police work exists an element of physical capability — one that must be recognized by any rational approach to the problem. Certainly, it is clear that police officers are, on a daily basis, called upon to use force in arresting suspects, in preserving the public peace, and in protecting the citizens they serve. Also obvious is the knowledge that police officers, in exercising their daily functions, are resisted by a significant proportion of arrested persons. Evidence will be presented to show the extent of assaults upon police personnel. The Defendants will argue that by the very nature of police work, and the dangers inherent • therein, the physical stature of police officers becomes significant. Even without empirical data, it will be urged that persons, small in stature, will have greater difficulty in exercising their sworn duties than persons of greater stature. Certain empirical data will be presented evidencing that assaults upon police officers and difficulty in effecting arrests increases as size of these police officers decreases. This argument will be buttressed by presentations by persons expert in the field of law enforcement that a general opinion exists within the law enforcement community that difficulty in properly exercising police functions increases as size of a police officer decreases.

Defendant’s position that physically capable personnel are vital to the functioning of an urban police force is, of course, sound. The fact that the use of force by policemen may be infrequent does not mean that selection criteria relevant to the capacity of a police officer to exert necessary force are invalid.

Nonetheless, it would not appear

*713

that the height-weight requirement challenged herein bears a “manifest relationship,” see

Griggs v. Duke Power Co., supra,

401 U.S. at 432 , 91 S.Ct. 849 , to the physical capabilities of a Police Officer or to other qualifications necessary for successful performance of that position.

In his deposition of April 10,1974, Pomerleau testified, in support of the challenged height-weight requirement, (at 35-36) that he and the other members of the Executive Committee of the International Association of Chiefs of Police “have that intuitive feeling that as height decreases, in what we represent there, in the uniform force, that the problems then of the community increase, meaning as the height of the officer decreases, the number of assaults on that individual increase. As I say, we can’t validate that, but we all feel that way and I’ll give you the names of all the chiefs that feel that way.”

See also

Pomerleau’s Affidavit dated February 14, 1974. Commissioner Pomerleau also stated (at 36): “We also feel that as the height of the officer decreases, so does the element of force used by the officer in effectuating lawful arrest, and that we have then internal investigative eases, or IID cases increasing, that we have to go out and get citizens’ complaints, the guy used a stick or used Mace or used a gun butt on me to effectuate this arrest.”

Defendants have maintained that Commissioner Pomerleau’s “intuitive feeling” regarding the necessity of a 5'7" height minimum is confirmed by a study of the San Diego Police Department.

See

R. Hoobler & J. McQueeney, “A Question of Height,”

The Police Chief,

p. 42, (Nov. 1973). (Defendant’s Exhibit 1) That study of a police force utilizing a 5'7" minimum height requirement concluded,

inter alia,

that police personnel below 69 inches in height were assaulted more frequently than taller officers and that “shorter officers” had significantly more equipment accidents than “taller officers,” and found that officers within the traffic division who were 69 inches or taller made significantly more arrests than officers of lesser height. The authors thus questioned “the feasibility of eliminating the minimum height requirement” and stated that “[a]ny modification of current standards should be thoroughly investigated prior to their elimination.” John A. McQueeney, a co-author of that study, testified at trial in this case that police departments in Portland, Oregon and Los Angeles, California had conducted studies which had led them to impose a 5'9" height requirement. McQueeney stated that persons shorter than 5'9" may develop a so-called “Napoleonic complex,”

and may be more disposed to leave police department employment than individuals of greater height. (Tr. at 155-58, 178).

McQueeney additionally testified that during World War II certain height limitations were imposed within the Navy (Tr. at 165-167). However, McQueeney was unable to point to the existence of any military studies relating height to injuries, to ability to handle oneself in battle, or ability to police ah area.

Finally, McQueeney acknowledged that he did not believe it was possible to predict the performance of an officer under 5'7" by studying only policemen over 5'7" as had been done in the San Diego Study, and that he did not know whether the performance of females could be predicted by studying males. (Tr. at 184).

In further support of the validity of the challenged height-weight requirement, defendants have pointed to a consent decree entered into between the United States Department of Justice and the Maryland State Police, in which it was agreed that the Maryland State Police could continue to apply minimum height requirements of 5'6" to both men and women “so long as such minimum height requirements do not operate disproportionately to exclude females” and that pursuant to that decree, the Maryland State Police were allowed a one year

*714

period within which validation studies of the 5'6" requirement might be conducted.

Richard C. Nelson, a physical fitness authority from Penn State University, called to testify at trial by plaintiffs stated that height was not a good predictive factor as to physical performance either as to men or as to women. (Tr. at 29-30). Nelson conceded that among extreme mesomorphic body types, height might well bear some minimal correlation to strength and to running speed. (Tr. at 41-47). Nelson testified, however, that the concept of “weight in proportion to height” was not a scientific one, (Tr. at 85) and noted that the relation of muscle to body fat could vary markedly among individuals of the same height and weight. Nelson further testified that a 5'7" height requirement would eliminate 60% of Olympic weight lifters, 45% of Olympic wrestlers, and 75% of Olympic gymnasts. (Tr. at 28).

The authors of a study

conducted by the Urban Institute for the Police Foundation involving males and females on patrol of the Metropolitan Police of the District of Columbia concluded as follows:

Height

Generally speaking, the taller an officer was, the more likely he or she was to be rated poorly on performance. The taller women were more likely to have been rated on the Chief’s Survey as not suitable for retention in the department, and more likely to have comparatively poor average ratings on the Official’s Survey. Taller men were given lower overall performance ratings by the department and lower ratings on the Chief’s Survey on their general ability to patrol. They were less likely than shorter officers to have received favorable comments from the public, and they were observed to evoke comparatively poor reactions from victims. The only favorable relationship found between height and performance was that tall men were observed to receive more favorable reactions when they handled arguments inside residences.

In 1967, in

Task Force Report:

“The Police,” (Plaintiffs’ Exhibit No. 4) the President’s Commission on Law Enforcement and Administration of Justice, after discussing the importance of such personnel selection standards as advanced education, emotional stability, common sense and integrity, physical courage, stamina, and agility, wrote (at 130):

Physical Requirements.

Any police officer working in the field must possess physical courage, stamina and agility. These qualities may help to save his own life or the lives of others. But existing requirements on physical stature and condition in many departments are unduly restrictive, with the result that many ap

*715

plicants, who may otherwise have exceptional qualifications, are summarily rejected because of height, weight, or vision. For example, in 1956, a survey conducted by the International Association of Chiefs of Police revealed that nearly 85 percent of the police departments surveyed had a mandatory height requirement of 5'8" or higher.

All departments should eliminate inflexible mandatory physical requirements. While physical characteristics and conditions such as freedom from disabling diseases or physical handicaps should be carefully considered in the selection process, factors such as height should be considered along with other attributes of the candidate, rather than be automatically disqualifying.

Height, like age, is a factor which must be evaluated in terms of the full abilities of the candidate. It should not be used as a hurdle with a fixed standard except to eliminate persons below normal standards lacking other compensation qualities. Physical stature is a single factor which should not deprive the police service of individuals who are capable of physically defending themselves. The police image is not likely to suffer any severe damage if fully capable men are employed despite their lack of height. [Footnotes omitted]

Subsequently (at 171) the Commission’s report includes the following observations:

Selection Standards.

Certain selection standards may have the unintended effect of arbitrarily barring large numbers of minority group applicants who could adequately perform police work. For example, minimum height restrictions prevent many Puerto Ricans, Mexiean-Amerieans, and Orientals from joining police forces. The minimum height requirement was recently changed in Chicago from 5 feet 8 inches to 5 feet 7 inches, in part because of the need to recruit Puerto Ricans. Similarly, restrictions on flat feet and other physical defects have barred many Negroes; eyesight problems, many Oriental-Americans. In the review of traditional physical requirements which the Commission has recommended, an important factor should be the extent to which inflexible standards tend to interfere with the recruitment of members of minority groups. [Footnote omitted]

An unpublished study by the State of Wisconsin conducted in October, 1971 on minimum height requirements utilized in various law enforcement jurisdictions throughout the United States concluded,

inter alia:

1. There appears to be no proven rationale which is used to “justify” any

specific

minimum height requirement.

2. There does not appear to be any significant facts to support the hypothesis that a smaller officer invites attack or is more likely to have a physical confrontation than a larger officer.

3. There does not appear to be any evidence to indicate that lowering the minimum height requirement will in and of itself attract more minorities.

4. There does appear to be a general trend to lower the physical requirements, including the height requirement, for law enforcement positions.

5. Progressive enforcement agencies appear to be emphasizing technique, human and cultural understanding, and arrestee empathy on the part of the officer as being more important than the physical size of the officer.

Accordingly, Wisconsin eliminated any then existing minimum height requirement for law enforcement positions in Wisconsin State Service.

Likewise, the Attorney General of the State of Pennsylvania on August 9, 1973, in Official Opinion No. 57,

concluded that a 5'6" minimum height requirement main-

*716

tamed by State Police disproportionately disadvantaged female and Spanish-surnamed applicants, and should be suspended pending validation of the same. The Pennsylvania Attorney General found as unsupported arguments that smaller officers were more likely to be attacked, that smaller officers were less likely to be visible and thus to be effective, and that the cost of maintaining equipment inventories for smaller officers was prohibitive.

The capacity of a woman 5'7" or smaller to perform successfully the position of Police Officer is also discussed in

Women in Policing

(1972).

Therein, in a Police Foundation report, Catherine Milton asserted (at 17) that women “three to four inches below” a 5'7" minimum were as of 1972 patrolling in Miami, Florida, and Peoria, Illinois.

The Board of Appeals and Review of the United States Civil Service Commission concluded that no “rational relationship, or * * * showing of relevancy” was “established or demonstrated between performance in the position of Park Police Officer [of the National Park Service], and the [5'8'' — 145 lbs.] height/weight requirement” which had been applied by the National Park Service.

See In the Matter of Shirley Long,

November 13, 1972.

See also Moore v. City of Des Moines Police Department and City of Des Moines Civil Service Commission,

CP# 881 (Iowa Civil Rights Commission — July 11, 1973) (holding invalid a 5'9" — 149 lbs. minimum height-weight requirement for the positions of patrolman or policewoman until such time as those requirements could be validated).

Plaintiffs herein, as noted

supra,

have challenged the height-weight requirement as violating both Title VII and also constitutional standards.

Dothard

Rawlinson,

433 U.S. 321 , 97 S.Ct. 2720 , 53 L.Ed.2d 786 (1977), one of plaintiffs challenged a 5'2" height requirement and a 120 lb. weight requirement for prison guards in Alabama. Those physical qualifications excluded over 40% of the female population, but only less than 1% of the male population (433 U.S. at 329-30, 97 S.Ct. 2720 ). Mr. Justice Stewart held (at 330-31, 97 S.Ct. 2720 ) that plaintiffs’ showing of disproportionate impact based upon national statistics was sufficient to constitute a prima facie case of sex discrimination under Title VII. Noting that state defendants had failed to adduce any evidence in justification of its standards, the Supreme Court affirmed the District Court’s holding (at 331-32, 97 S.Ct. 2720 ) that the height-weight requirements violated Title VII.

Boyd v. Ozark Air Lines,

568 F.2d 50 (8th Cir. 1977), a 5'2" woman asserted that the defendant airline’s 5'7" height requirement for pilots violated Title VII. Since the height requirement excluded 93% of females aged 18-34 but only 25% of the males in that age bracket, the District Court held that plaintiff had made out a prima facie Title VII case. However, that Court also concluded that defendant airline had shown the physical qualification to be a business necessity because the safe and efficient operation of a plane depended on the pilot’s ability to operate all the instruments and still reach the “design eye reference point”

(id.

at 53) — a factor related to height. On appeal, the Eighth Circuit affirmed.

Davis v. County of Los Angeles,

566 F.2d 1334, 1337, 1341-42 (9th Cir. 1977),

cert. granted,

437 U.S. 903 , 98 S.Ct. 3087 , 57 L.Ed.2d 1132 (1978), the District Court determined that there existed violations of Title VII unrelated to the fire department’s 5'7" height requirement. In ordering accelerated hiring of blacks and Mexican-Americans by the fire department, the District Court concluded that a 5'7" requirement was valid and took it into account in determining the proportions of various minority groups to be hired. The fire department did not introduce any scientifically approved test demonstrating the job-relatedness of the height requirement, which ef

*717

fectively excluded 41% of Mexican-Americans. A fire chief testified that a smaller man might have difficulty “removing long ladders and other equipment and might have a slower reaction time in climbing on and off equipment,”

(id.

at 1342). However, that fire chief conceded that shorter firemen functioned without impairment during World War II. On appeal, the Ninth Circuit held that such testimony fell short of establishing that “the height restriction was manifestly related to employment by the Fire Department”

(id.

at 1342) and thus of validating the height requirement under the standards stated by the Supreme Court in

Dothard

(which had not been decided when the District Court filed its opinion in Davis). Therefore, the Ninth Circuit reversed the District Court’s finding in

Davis

of job-relatedness.

Nor have defendants herein established job-relatedness of the height-weight requirement. Defendants, principally through the Commissioner’s testimony, have shown fears and concerns, but have not borne their Title VII burden. Accordingly, plaintiffs, having established the discriminatory impact of those requirements, are entitled to prevail as to their Title VII challenge thereto.

There remains plaintiffs’ constitutional attack on those requirements. In

Fox v. Washington,

396 F.Supp. 504 (D.D.C.1975), Judge Bryant held that a 5'7" height requirement imposed by the District of Columbia Fire Department bore no rational relationship to job performance, and thus violated a federal Civil Service Employment Practice regulation

which required a “rational relationship” between “performance” and “employment practice” and “a showing that the employment practice was professionally developed” 396 F.Supp.

supra

at 505. Judge Bryant wrote (at 507) that the regulation required the District of Columbia to show “a significant, substantial governmental interest in its height requirement” and that the District had not so done.

Judge Bryant wrote (at 507) that any merit to the arguments that taller firemen would receive greater respect and be less subject to physical injury were “obviated by the [District of Columbia] police department’s recent action in lowering the height requirement to 5'0".”

Castro v. Beecher,

459 F.2d 725 (1st Cir. 1972), in upholding a determination by Judge Wyzanski that in the absence of any evidence of discriminatory purpose or any facially discriminatory practice, at 5'7" height requirement had not been shown to violate the Equal Protection rights of Spanish-surnamed persons, Judge Coffin wrote (at 734):

Even were an insistence upon a minimum height of five feet seven inches made clear, however, the record would be infirm in another respect. Quite simply, the plaintiffs have failed to demonstrate that a minimum height requirement has a disproportionate impact on Spanish-surnamed persons. Nor can a court employ a rigorous standard of review on the basis of a mere supposition that a classification has such an impact. While one Spanishsurnamed plaintiff had standing to raise the claim, having shown that he was less than five feet seven inches tall, no data was presented concerning the average of Spanish-surnamed males as compared with other males, either for any city, for Massachusetts, or even for the nation. Superintendent Sullivan testified that from his personal observation the average height of Spanish-surnamed males in Boston was, indeed, five feet seven inches, while another bit of testimony was that

*718

Spanish-surnamed males seemed smaller than stateside Americans. The only other evidence was an equally inconsequential summary of a police conference report indicating that one person present was of the opinion that Puerto Ricans could not meet the requirement and a two-line excerpt from an unreported opinion of the Equal Employment Opportunities Commission regarding the average height of Puerto Ricans. This simply does not suffice. In the absence of a showing of prima facie discriminatory impact, the standard of review is, as we have indicated, a relaxed one, which a minimum height requirement for policemen clearly meets.

Smith v. City of East Cleveland,

363 F.Supp. 1131 (N.D.Ohio 1973),

reversed sub nom. Smith v. Troyan,

520 F.2d 492 (6th Cir. 1975),

cert. denied,

426 U.S. 934 , 96 S.Ct. 2646 , 49 L.Ed.2d 385 (1976), Judge Lambros concluded that a 5'8" height requirement was unrelated to a valid state interest. In so doing, Judge Lambros rejected (at 1140-44) the arguments that the occasional need for “ ‘brute force’ ” justified the challenged height requirement, or that that requirement was “related to physical fitness as required for the police officer,” to running or agility skills required by a police officer, to the ability of an officer to see and be seen in crowds, drive a car, utilize one’s arms in connection with restraining techniques and/or self-defense techniques; absorb body blows; or to deter attacks upon himself.

On appeal to the Sixth Circuit,

sub nom., Smith v. Troyan,

520 F.2d 492 (6th Cir. 1975), Judge Peck wrote as follows (at 496-97):

We think the district court erred in finding no “rational support” for the height requirement. If East Cleveland’s height requirement lacks “rational support,” so do height requirements elsewhere. Plaintiff’s own exhibits demonstrate that forty-seven of forty-nine state highway patrols and police forces and twenty-nine of twenty-nine municipal police departments surveyed have, or at least then had, height requirements (ranging from five feet, six inches to six feet). See Note, Height Standards in Police Employment & the Question of Sex Discrimination; the Availability of Two Defenses for a Neutral Employment Police Found Discriminatory Under Title VII, 47 So.Calif.L.Rev. 585, 586-9 (1974) [hereinafter Height Standards], That certain government entities, including the Wisconsin highway patrol, the Pennsylvania state police (2 CCH Empl.Prac.Guide ¶ 5177 [1973]) and the Law Enforcement Assistance Administration (33 Fed.Reg. 6415 [March 9, 1973]), no longer utilize or favor height requirements cannot rebut the nearly universal use of height requirements in hiring police. Such widespread use, of course, does not compel a finding of constitutionality, but “is plainly worth considering” in determining the “rationality” and constitutionality of height requirements.

Manning v. Rose,

507 F.2d 889, 892 (6th Cir. 1974), quoting

Leland v. Oregon,

343 U.S. 790, 798 , 72 S.Ct. 1002 , 96 L.Ed. 1302 (1952).

Moreover, at least three East Cleveland Police officials testified uncontradictedly and adamantly to the need for the height requirement. The chief of detectives, with twenty-six years’ police experience, testified to the psychological advantage of a taller officer; a shift commander, with over seventeen years’ experience, testified to the advantage of height in effecting arrests and emergency aid; and, the police chief testified similarly. Though plaintiff’s expert witnesses discounted the importance of height and though the district court accepted that discounting, 363 F.Supp. at 1140-4 , note-worthily, no expert had police experience.

The district court also discounted certain “functions claimed to be related to height and weight [because those functions] actually took only a small portion of the average patrolman’s time and . [because] traffic-related matters accounted for more than three-quarters of the patrolman’s working time.” That an occupational function consumes a

de minim-is

proportion of one’s workday, however,

*719

does not necessarily diminish the need for selecting one who can best perform that function. A lifeguard may well spend all but fifteen minutes of an entire summer observing swimmers and keeping the beach free of litter, but in those fifteen minutes swimming ability to rescue a drowning swimmer becomes vitally crucial. See Height Standards,

supra,

at 611.

Even if plaintiff’s experts were correct, and even if modern police practices discount the importance of height, there would still be “rational support” for the height requirement. The equal protection clause requires nothing greater than “rational support.” As Mr. Justice Stewart has written,

“[The Fourteenth Amendment no longer gives courts] power to strike down state laws ‘because they may be unwise, improvident, or out of harmony with a particular school of thought.’ That era long ago passed into history.”

Dandridge v. Williams,

397 U.S. 471, 484-85 , 90 S.Ct. 1153, 1161 , 25 L.Ed.2d 491 (1970) (citations omitted).

On the other hand the Sixth Circuit (at 497) affirmed Judge Lambros’ invalidation on constitutional grounds of a 150 pound weight requirement as having no correlation either to physical or psychological job prerequisites.

Mieth v. Dothard,

418 F.Supp. 1169 (M.D.Ala.1976) (three-judge court),

aff’d in part and vacated in part on other grounds sub nom. Dothard v. Rawlinson,

433 U.S. 321 , 97 S.Ct. 2720 , 53 L.Ed.2d 786 (1977), two women challenged Alabama’s height requirement for state trooper and prison guard respectively. One of plaintiffs, who had applied for a position as state trooper, Brenda Mieth, had apparently not pursued her administrative remedies under Title VII.

Therefore, her suit arose only under section 1983 and the Fourteenth Amendment and the District Court (at 1179) considered it only in that context. The Alabama Department of Public Safety had required that all applicants for state trooper be at least 5'9" in height and weigh at least 160 lbs. Alabama state troopers spend most of their time on traffic enforcement, especially patrolling the rural highways of the state. The District Court stated (at 1173) that “[unquestionably, the job is hazardous.” The Department of Public Safety did not actively recruit women and the director of the Department was personally opposed to employing women as troopers. There were no female troopers employed at the time of suit.

Id.

at 1173, 1178. The Court, noting (at 1180) that under

Washington v. Davis,

the constitutional test “is not one oí impact but one of intent,” but that “evidence of disproportionate impact is relevant to this question of intent,” that the director of the department testified that he did not believe women should be troopers, and that “the statistics * * * show that

almost all women are excluded by the 5 ft. 9 in., 160 pound physical qualifications,” concluded that the height-weight requirements “were intended to be discriminatory.”

Id.

at 1180. Further, after reviewing expert testimony similar to the testimony in this case, the Court stated (at 1181) that “women do not need protectors; they are capable of deciding whether it is in their best interest to take unromantic or dangerous jobs” and held (at 1182) that the height-weight requirements were “not rationally related to any legitimate state interest and therefore violate the Equal Protection Clause . . . .”

No appeal was filed from that holding in favor of Mieth.

*720

This Court has carefully noted Judge Peck’s analysis of the rationality of the police height requirement in

Smith v. Troyan, supra

and like the three-judge court in

Mieth

(at 1182), “respectfully differs” with the Sixth Circuit and agrees with the

Mieth

court that “[o]ne lesson the women’s rights movement has taught us is that many long-held conceptions concerning the sexes have been found to be erroneous when exposed to the light of empirical data and objectivity” (at 1182). In the within cases, the totality of the evidence reveals that the 5'7" height requirement of the Baltimore City Police Department has been shown to be neither “rationally related” to the position of Police Officer, nor fairly and substantially related to performance of the duties of that said position. Therefore, plaintiffs are entitled to prevail herein, on the issue of the height-weight requirement, not only in connection with their Title VII challenge but also because of violation of their constitutional rights. That is true, with regard to the constitutional challenge, whether the “mid-level” or the “strict scrutiny” test is applied.

Race Issues

While the race discrimination allegations of plaintiffs are not confined to examinations and tests, they are the core of plaintiffs’ racial challenge in these cases. Accordingly, they are analyzed herein before other racial issues are considered.

Entry-Level Examinations

Entry-level police officers in the Department are hired pursuant to a process which has several components.

As discussed

supra,

the Commission and the Department have joint responsibility for the hiring process. The Commission’s responsibility is generally limited to the administration and, after 1977, the formulation of the written test. (CDX 7).

Failure to pass the written examination disqualifies the applicant from further consideration for employment.

As discussed

supra

at 689-697, because of the state-city nature of the Department, the Department does not operate under the same set of personnel rules which govern the City’s agencies, and the Commission does not have the same degree of control over the Department’s personnel procedures as the Commission has over those procedures within City agencies. (CDX 7). As to entry-level applicants prior to 1977, the Commission’s role was limited to the administration of the entry-level written examination and to the transmission to the Department of a list of eligibles who passed that examination. (CDX 7). Beginning in 1974, the Commission, in general, played a more expanded role within those confines and finally, in 1977, in the formulation and administration of the entry-level examination.

From about 1967 (PX 152) through 1976, the Commission, in conjunction with the

*721

Department administered “Test No. 10,” a commercially available. paper-and-pencil test consisting of four different written examinations, respectively titled, Policeman Test “(10-A),” “(10-B),” “(10-C)” and “(10-D).” (PX-25-27). The parties have treated the four variations of Test No. 10 as one exam. Except for the fact that each of the four variations contains different actual test items, the tests are seemingly identical in their subject matter and testing methodology. All four variations consist of 120 multiple-choice items, which test memory, reading comprehension and skill in verbal analogies, basic mathematics and general knowledge. In the past, Test No. 10 was widely used for the selection of entry-level police officers in police departments.

Plaintiffs allege that the use of Test No. 10 from 1974 through 1976 violated plaintiffs’ Title VII and constitutional rights, contending that the test had an adverse impact upon black applicants and that defendants have not shown job relatedness of the test.

Plaintiffs advance similar assertions with respect to the test which the Department first began to use on December 15, 1977. That 1977 examination was constructed as a part of a major criterion-related validation study which was apparently undertaken by the Department and the Commission in April 1974. (CDX 4). The project included a job analysis of the position of Baltimore City police officer and the development of written and oral examinations and job performance measures. (CDX 4).

The 1977 written test is a multiple choice examination containing 105 items: 35 items designed to measure “language skills”; 35 to measure “observational skills”; and 35 to measure “reasoning ability.”

A “passing point” on the written component was established prior to its administration.

If an applicant passed the written examination given on December 15, 1977, he went on to the oral group examination

100

which was “used to determine an applicant’s standing on the final list of eligibles.” (CDX 4 at 6). Section 16 of the Code of Local Laws of Baltimore City requires the Commission to list successful examinees in order of their performance on the competitive examination and requires the Commissioner to select each appointee from among those standing within the first five on the list,

i. e.,

the so-called rule of five.

During each oral group examination in January 1978, four applicants, selected at random from those being tested, watched four three-minute video-taped episodes of police intervention. Then, a member of the Commission staff, acting as the discussion leader, asked questions of, and encouraged discussion among, the four applicants (CDX 4 at 7), for about fifteen minutes after each episode. Each such discussion was observed by two police officers and a Commission staff member, all chosen at random. A total of 12 different such raters or examiners participated in the January 1978 oral examinations,

i. e.,

five police sergeants, four police lieutenants and three Commission staff persons.

*722

On the basis of the observed discussions in January 1978, each rater graded each applicant on the applicant’s ability to (1) express ideas, (2) establish satisfactory relationships with others in the group, (8) observe and recall events in the episode and (4) reason clearly and make sound practical judgments (CDX 4 at 6).

101

In order to pass the oral group examination, each applicant needed to achieve a predetermined score of 36 out of a possible 60. Scores of 1, 3 or 5 were awarded each applicant by each rater on each factor. Applicants who scored a minimum of 36 points on the oral component of the entry-level examination went on to the next step of the selection process.

Promotional Examinations

Plaintiffs attack the written promotional examinations for sergeant, lieutenant and captain.

102

All of those promotional examinations were prepared by the Commission utilizing certain information provided by the Department with regard to job duties and specifications (DX 7). During and apparently after 1975, detailed job analyses were prepared by the Commission with regard to the positions of sergeant and lieutenant. Starting in 1976, the Commission did the same with regard to captain. Prior to the 1974-75 period, the sergeant and lieutenant examinations were prepared by the Commission, using references and texts made available to it by the Department. (PX 99 at 6-7; PX 152). Seemingly, over the years, a “bank” of questions was developed from which particular exam items were drawn.

Id.

Beginning in 1975-76, all exam questions (except those pertaining to handling and evaluating subordinates) have apparently been based on materials available to and/or used on a regular basis by police officers, including,

inter alia,

General Orders, Departmental Rules and Regulations, the Manual of Procedures, a Digest of Criminal Law and Procedures and certain commercially available materials.

103

(CDX 5, 8, 9).

The Department’s uniform practice both before and after the 1975-76 period with regard to all promotional examinations has been to establish a predetermined, apparently arbitrary passing score. Each candidate who passes the written examination is given seniority points and an efficiency rating. Then, those three items,

i. e.,

passing examination score, seniority points and efficiency rating, are considered together so as to establish a composite score which is weighted 40%, 5% and 15% on the basis of the written exam, seniority and efficiency rating, respectively. Thereafter, the Department’s standing practice has been to place on promotion interview lists the applicants in the order of the composite scores and to interview 80, 40 and 25 candidates for sergeant, lieutenant and captain, respectively.

104

The oral interviews of promotional candidates are conducted by supervisory police personnel from other police jurisdictions without the state of Maryland. Each interviewee is given an oral interview score which is weighted 40%. The pre-interview composite score is weighted 60%. The candidates are then ranked in accordance with their final scores and promotions are made from that final list, within the rule of five.

Experts

In support of their allegations that the entry level and promotional examinations

*723

have discrirninatorily impacted upon blacks, plaintiffs have adduced substantial statistical evidence in the form of exhibits and expert testimony.

Doctors Richard S. Barrett and Alan Gittelsohn testified as experts on behalf of plaintiffs. Dr. Barrett is a recognized authority in the field of psychometrics and has testified in numerous cases which have involved the effect on minorities of examinations used as employee selection devices. Dr. Gittelsohn has held faculty positions at numerous universities and colleges and is currently and has been since 1966 a professor of biostatistics at Johns Hopkins University.

Dr. Barrett analyzed the results of Test No. 10 in 1974,1975 and 1976; the results of the sergeant promotional examinations in 1972, 1973 and 1974; the results of the lieutenant promotional examinations in 1973, 1974, 1975 and 1976; and the results of the caption promotional examination administered in 1972-74 and in 1976.

Dr. Gittelsohn testified concerning the scores obtained by a group of blacks and whites on Test No. 10 in 1976; pass/fail data on the written component of the entry-level examination administered in 1977; and pass/fail data on the sergeant promotional examinations in 1976 and 1977. Dr. Gittelsohn further testified concerning the appointment rate for blacks and whites to entry-level police officer positions in 1976.

Entry-Level Statistics

As to 1974, 1975 and 1976, Dr. Barrett compared the relative pass rates of black and white applicants. According to figures provided by the Commission, Dr. Barrett found that blacks taking Test No. 10 in 1974 had a pass rate that was 64% of that of whites. In 1975, black applicants passed at a rate that was 44% of the rate for whites, and in 1976, blacks taking Test No. 10 had a pass rate which was 49% of that of their white counterparts.

To test the significance of the differential pass rates of black and white applicants for entry-level and other positions in the Department, plaintiffs’ experts utilized standard statistical techniques. Dr. Barrett found that the results of Test No. 10 in each of the years 1974, 1975 and 1976 were statistically highly significant. He testified that the probability of obtaining such results was less than one in 10,000,000 for each of the examinations. Dr. Gittelsohn testified that on one of the occasions,

e., on December 15, 1976, 234 whites scored an average of 10.8 points higher than 140 blacks on Test No. 10.

105

Dr. Gittelsohn concluded that this difference was statistically significant at the .001 level. With regard to the written component of the entry-level examination administered on December 15, 1977, Dr. Gittelsohn testified that 27 of 112 or 24.11% of the black applicants failed the written component whereas 8 of 262 or 3.05% of the white applicants failed the written component. Dr. Gittelsohn testified that the difference was highly significant at the .001 level of significance.

Sergeant Statistics

The pass rates for blacks on the sergeant promotional examination was 68% of that for whites in 1972, less than 1% of that for whites in 1973 and 57% of that for whites in 1974. Dr. Barrett found statistical significance in the results of the sergeant’s examination, namely, that in 1972 the level of significance was .00003, in 1973 .0002, and in 1974 .02. As to the 1976 sergeant examination, 79 of 600 whites, or 13.17%, passed but only 2 of 129 blacks, or 1.55%, passed. As to the 1977 sergeant examination, 172 of 714 whites or 24.09% passed and only 8 of 141 blacks or 5.67% passed. Dr. Gittelsohn’s opinion was that the differences reflected in the results for 1976 and 1977 were of high statistical significance at the .001 level.

Lieutenant Statistics

Dr. Barrett made similar statistical analyses of the lieutenant promotional examinations. The results thereof differ

*724

from those obtained from his analysis of the entry-level and sergeant examinations. In 1973, two out of twelve black candidates for promotion to lieutenant passed the written examination, a rate that was only 39% of the rate of success enjoyed by white candidates for promotion. Dr. Barrett found that that difference in pass rates was not statistically significant at the .05 level of significance. In 1974, 7 of 13 blacks passed the lieutenant ■ promotional examination, a rate that was almost 50% greater than the rate of white candidates. In 1975, the ratio of the black pass rate to the white pass rate was 36%. Dr. Barrett found that difference not statistically significant at the .05 level of significance. Finally, in 1976, 2 of 17 blacks passed. The pass ratio in 1976 for black as against white candidates was 40%. No statistical significance was attached to the 1976 statistics by Dr. Barrett.

Plain ;.iffs seek to aggregate the results of the lieutenant promotional examinations for the years 1973-76 and contend that the results of such aggregation show that blacks passed the lieutenant’s examination for those years considered together at only 66% of the rate at which whites passed the examinations. However, no statistical significance is attached thereto by plaintiffs’ experts.

Captain Statistics

Plaintiffs’ expert studied the results of the written captain promotional examination administered from 1972 through 1974. Using aggregate figures for those three years, plaintiffs contend that blacks passed the said examination at a rate of only 73% of that of white candidates. No statistical significance has been attached to that difference by plaintiffs’ experts.

106

In 1976, blacks passed the captain’s promotional examination at a greater rate than did whites.

Plaintiffs may have abandoned all claims deriving from the alleged discriminatory impact of the captain’s examination. In any event, plaintiffs have failed to establish such impact.

General Statistics

Plaintiffs produced evidence showing, according to United States Census data, that the black population of Baltimore City in 1970 was 420,210 and the white population was 479,837.

107

Between December 31, 1972 and June 28, 1978, one month before the trial in this case, the percentage of black sworn personnel in the Department rose from 13.12% to 14.39%.

108

As of June 28, 1978, there were 19 black (5.39%) and 333 white sergeants in the Department; 6 (5.5%) black and 103 white lieutenants and 2 (12.5%) black and 14 white captains.

In addition to plaintiffs’ evidence regarding the 1972-75 appointments, Dr. Gittel

*725

sohn testified that in 1976, of a total of 146 complete Civil Service applications submitted by black males, thirteen blacks or 8.9% were favorably considered and were appointed. Of a total of 467 completed applications submitted by white males, 87 or 18.6% of those applications resulted in appointments to the Department. Thus, in 1976, the appointment rate for black applicants was less than half that of white applicants.

With one exception, defendants adduced no evidence tending to cast serious doubt on the accuracy of or reliability of any of plaintiffs’ calculations.

109

That exception relates to a substantial conflict in the evidence with regard to the total number of blacks who took the written component of the 1977 entry-level examination.

110

However, the resolution of that conflict is, as discussed

infra

at p. 726, not of controlling import.

Impact

A review of all of the evidence requires the conclusion that plaintiffs have established a prima facie case of racial discrimination with regard to the use by defendants of Test No. 10 — the entry-level test — from 1974 through 1976 and with regard to the written sergeant promotional examination used from 1972 through 1977. However, plaintiffs have not established a prima facie case of racial discrimination with regard to the use by defendants of the written promotional examinations for lieutenant or captain, or with regard to the 1977 entry-level examination.

Captain Impact

As indicated

supra,

plaintiffs may have abandoned all claims relating to captains. In any event, the statistical results do not establish a prima facie case.

See

Guidelines § 4(D).

111

While it can be argued that other allegedly discriminatory examinations affected the number of blacks eligible to take the captain examination, the statistical scarcity itself causes a lack of evidence of discriminatory impact.

Lieutenant Impact

For the years 1973-76, the black pass rate was only 66% of the white pass rate, thereby constituting “adverse impact” under the 80% rule of thumb recognized in section 4(D) of the Guidelines.

112

Nevertheless, even plaintiffs’ experts attached no statistical significance thereto, since the lieutenant’s data, as was the captain’s data discussed

supra,

involved numbers too small upon which to rest an affirmative determination of discriminatory impact.

Sergeant Impact

To the contrary, plaintiffs have established a prima facie case

employment discrimination by their showing of the disparate impact upon blacks of the written sergeant promotional examinations in the years 1972 through 1977 and the under-rep

*726

resentation of blacks within the rank of sergeant in the Department. The relevant and material facts going to the establishment by plaintiffs of the prima facie case with regard to the sergeant examination are unrebutted. Defendants, therefore, must demonstrate the job relatedness of the written examinations used during those years. That latter issue is discussed

infra.

1974-76 Entry-Level Impact

The evidence that Test No. 10 had a disparate impact on blacks during the years 1974 to 1976 is overwhelming. That evidence includes the appointment rates of black police applicants, the applicable census figures of the black population in the Baltimore area, and the relative rates of success on the test between black and white applicants for the job of entry-level police officer with the Department. Thus, defendants must show the job relatedness of that test. That issue is also discussed

infra.

1977 Entry-Level Impact

Defendants ceased by December 15, 1977 their use of Test No. 10 and began the use of a new test. As indicated

supra

at p. 725, the parties’ statistics differ as to the number of blacks who took the written entry-level exam in 1977.

113

Defendants’ statistics show the 1977 examination pass rate of blacks compared with the pass rate of whites at 82.7% or within the 80% rule of thumb measure of adverse impact recognized in the Guidelines.

The relative pass rates of blacks to whites on the

oral

component of the new- (1977) test, according to defendants’ statistics, is 76.8%, slightly below the 80% rule of thumb measure. Defendants’ statistics reveal that “the relative passing rate of blacks with respect to whites for the entire exam [written and oral] is 64%.”

114

But in compiling those statistics, defendants apparently included 46 whites and 22 blacks who seemingly passed the written examination and were-invited to take the oral examination, but who apparently did not appear for the oral examination.

115

Defendants do not state the reasons for the nonappearance of any of those applicants. In any event, however, applicants who did not take the oral component of the two-part entry-level examination should not be counted as though they took the oral examination and failed. Thus, the record does not contain entirely satisfactory statistics on the first use of the new 1977 entry-level examination considered as a whole. Additionally, complete statistics as to the relative appointment rates for blacks and whites who satisfactorily completed the application process in 1977 are not yet available. At the time of the conclusion of the trial of the race discrimination issues in these cases in late July 1978, a total of only 48 persons had been appointed to the Department

116

since the new test procedures were implemented in December 1977.

The use of the 1977 exam was commenced after considerable study and consideration. Analysis of the job of police officer in Baltimore City began as early as 1974. Several investigative techniques were used in that analysis. Regular meetings between Commission staff and police personnel were held; Commission staff members accompanied officers on the latter’s patrol duties; staff members interviewed officers in non-patrol divisions; the Commission prepared and distributed questionnaires to police officers;

117

and police supervisory personnel verified the findings resulting from the questionnaires.

Prior to 1977, the written entry-level examination had not been constructed for the purpose of predicting an applicant’s success

*727

at the police training academy. The new 1977 test was so constructed. In

Washington

Davis, supra,

Mr. Justice White wrote (at 249-52, 96 S.Ct. at 2052, 2053):

The submission of the defendants in the District Court was that Test 21 complied with all applic

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