Full opinion text
MEMORANDUM & ORDER NICHOLAS G. GARAUFIS, District Judge. Plaintiff United States of America (the “Federal Government”), as well as the Vulcan Society, Inc. (the “Vulcans” or the “Vulcan Society”), Marcus Haywood, Can-dido Núñez, and Roger Gregg (the “Individual Intervenors”) (together with the Vulcans, the “Intervenors”), brought suit to challenge the use by Defendant City of New York (the “City”) of two written examinations in the screening and selection of applicants for entry-level firefighter positions in the Fire Department of New York (“FDNY”). Based upon extensive briefing and voluminous factual submissions from the parties, the court found the City liable for disparate-impact discrimination on July 22, 2009, 637 F.Supp.2d 77 (see Docket Entry #294) and intentional discrimination on January 13, 2010, — F.Supp.2d-(see Docket Entry # 385). Following its two liability rulings, the court now proceeds to the remedial phase. The parties have briefed remedial proposals in light of the court’s first liability ruling — the disparate impact decision. The parties have also briefed the Intervenors’ motion to continue class certification for the purposes of the remedial phase. (See Docket Entries ## 328-35, 352, 354, 366.) In this Memorandum & Order, the court does not order any particular form of relief. Instead, the court outlines the broad contours of relief and resolves several basic disputes regarding the implementation of a remedy. The court reserves ruling on many of the subsidiary details that require further information from the parties, and raises numerous issues regarding those details. These issues are listed in the Conclusion Section, infra, and the parties should be prepared to address them at a conference to be scheduled for the second week in February (the “February Conference”). In essence, the court concludes that two broad forms of relief are needed to remedy the City’s discrimination: (1) compensation for the identified victims of the City’s discriminatory testing practices, and (2) compliance measures to ensure that the City implements and administers a fair and job-related test for entry-level firefighters. These forms of relief are simple in concept, but will be complex in execution. Achieving these basic aims will require ongoing oversight, attention to myriad details, and resolution of disputes among the parties. As set forth in more detail below, the court will order the following measures designed to compensate identified victims of discrimination: (1) there will be a notice-and-claims procedure by which the approximately 7,400 minority applicants who sat for Written Examinations 7029 and 2043 will have the opportunity to claim entitlement to relief; (2) the City will have the opportunity, and the burden, to show that any of these individual candidates were not victims of discrimination because they were not hired for legitimate reasons; (3) the remaining, identified victims of discrimination will be eligible for monetary relief, apportioned on a pro rata basis among them; (4) 293 victims of discrimination — the shortfall of minority hires resulting from the City’s use of Written Examinations 7029 and 2043 — -will be eligible for priority hiring relief, provided that they meet the current requirements for appointment as an entry-level firefighter; and (5) retroactive seniority will be available to priority hires, as well as to those whose hiring was delayed by the City’s discrimination. The court provides further detail on these areas below, and raises several issues for the parties to address at the February Conference. The court will also order the following compliance relief: (1) the City, in conjunction with the other parties, will develop a new testing procedure for the position of entry-level firefighter; (2) the court will conduct a hearing to consider the validity of the City’s current examination, Written Examination 6019, and to decide whether and how the City may use that examination on an interim basis; (3) following the development of a new test, the court will consider whether that new test serves the City’s legitimate needs as well as, or better than, Exam 6019, and has less discriminatory impact on minority candidates, and is thus a preferable nondiscriminatory alternative to Exam 6019; and (4) if the new examination is a better alternative to Exam 6019, the court will order steps to implement that examination and consider measures to ensure ongoing compliance with Title VII. In reaching these conclusions, the court declines at this time to impose interim hiring quotas on the City as part of its remedy. The court provides further detail on these areas below, and raises several questions for the parties to address at the February Conference. In what follows, the court begins by setting out the basic legal framework for the types of relief ordinarily available in Title VII cases. The court then provides a summary of the preliminary relief order proposed by the Federal Government (the “PRO”). Next, the court addresses the scope of individual and compliance relief. The court goes on to address some of the proposals made by the Uniformed Firefighter Association (“UFA”) and the Intervenors. Finally, the court addresses the issue of remedial-phase class certification. In the Conclusion Section, the court summarizes its principal conclusions and lists the issues that the parties should be prepared to address at the February Conference. I. BASIC FORMS OF AVAILABLE RELIEF “The primary purposes of Title VII are to prevent discrimination and achieve equal employment opportunity in the future, and to make whole the victims of past discrimination.” Assoc. Against Discrimination in Employment, Inc. v. City of Bridgeport, 647 F.2d 256, 278 (2d Cir.1981) (internal citations omitted) (“AADE”). In order to achieve these purposes, a “district court has broad, although not unlimited, power to fashion the relief it believes appropriate.” Berkman v. City of New York, 705 F.2d 584, 594 (2d Cir.1983). Courts have generally recognized three categories of relief in Title VII cases: compliance relief, compensatory relief, and affirmative relief. See id. at 595. Compliance relief is “designed to erase the discriminatory effect of the challenged practice and to assure compliance with Title VII in the future.” Id. Among other measures, compliance relief involves “restricting the use of an invalid exam, specifying procedures and standards for a new valid selection procedure, and authorizing interim hiring that does not have a disparate racial impact.” Guardians Assoc. of New York City Police Dept. Inc. v. Civil Service Comm’n. 630 F.2d 79, 108 (2d Cir.1980) (“Guardians”). It may also involve “restricting appointments from an eligibility list compiled by reference to the results of an invalid test....” Berkman, 705 F.2d at 595. Compliance relief is “appropriate whenever a Title VII violation has been found, irrespective of any history of prior discriminatory practices or the intent of the defendant.” Id. (citing AADE, 647 F.2d at 278 and Guardians, 630 F.2d at 108 & n. 25). Compensatory relief is “designed to ‘make whole’ the victims of the defendant’s discrimination.” Id. “The object in making a plaintiff whole is simply to place the injured party, as near as may be, in the situation he would have occupied if the wrong had not been committed.” Sands v. Runyon, 28 F.3d 1323, 1329 (2d Cir.1994) (internal quotation marks, alteration and emphasis omitted). Such make-whole relief typically includes “backpay, payment of the value of past fringe benefits, and retroactive seniority.” Berkman, 705 F.2d at 595. “These forms of relief are generally appropriate under the same circumstances as compliance relief.” Id. (citing AADE, 647 F.2d at 278-80). “To the extent that an order requires the hiring of a ... victim of the discrimination ... [,] it constitutes both compliance relief and compensatory relief.” Id. at 595-96. Finally, affirmative relief is “designed principally to remedy the effects of discrimination that may not be cured by the granting of compliance or compensatory relief.” Id. at 596. This type of relief may involve “setting of long-term hiring targets or the imposition of a requirement that the defendant actively recruit or train members of the Title VII-protected group,” as well as “interim hiring relief that is extended to persons other than members of the plaintiff class and in proportions exceeding the ratio of plaintiff class members to the total applicant pool.” Id. Such relief is only appropriate when a “defendant’s discrimination has been intentional, or there has been a long-continued pattern of egregious discrimination.” Id. II. THE PROPOSED RELIEF ORDER The PRO submitted by the Federal Government is the starting point in fashioning the appropriate remedy. It is laid out in eight sections, each addressing a different aspect of the proposed remedial plan. Section I provides definitions of terms that are used later in the PRO. (See PRO ¶¶ 1-10.) Section II, entitled “General Injunctive Relief,” prohibits the City from (1) relying on Written Examinations 7029 or 2043 as part of a firefighter selection process, (2) retaliating against any person who has complained about discrimination, participated in the investigation or litigation of discrimination, or sought or obtained relief in this litigation (3) using any written examination as part of a firefighter selection process in a manner that results in a disparate impact upon black or Hispanic applicants and is not job-related, or in a manner that is otherwise inconsistent with the requirements of Title VII, or (4) using any written examination for the job of entry-level firefighter without prior approval of the court. (See id. ¶¶ 11-13.) Section III, entitled “Interim Hiring Procedure,” addresses the City’s hiring needs in the period during which a final remedy is imposed. This Section permits the City to continue using its current open-competitive eligible list from its current written examination, Written Examination 6019. Under the PRO, the City may continue using Exam 6019 until the earlier of January 1, 2011 or the date on which a new eligibility list is created based upon newly established selection procedures (the development of which is provided for later in the PRO). (See id. ¶ 14.) The City would subsequently have to hire from among the black and Hispanic applicants on the Exam 6019 eligibility list who had not yet been reached for selection until any “shortfall” of such applicants resulting from any disparate impact form the interim use of Examination 6019 had been remedied. (See id. ¶ 15.) Section IV, entitled “Individual Relief,” sets out procedures to determine which individuals have been affected by the City’s discrimination and to establish the amount and kind of relief they are entitled to. This Section requires the City to deposit into an interest-bearing account the total amount of money that will eventually be paid in monetary awards to identified black and Hispanic victims of discrimination. (See id. ¶¶ 16-17.) It establishes a notice-and-claims process for black and Hispanic applicants who sat for Written Exams 7029 and 2043, which would notify victims of the availability of relief, and require each to submit a claim form to the Federal Government. (See id. ¶¶ 18-20.) Claimants would be required to indicate the form of relief sought. (See id. ¶ 21.) Section IV then requires the Federal Government to summarize the claims information and to make an initial relief eligibility and apportionment determination with respect to each claimant. (See id. ¶¶ 21-24.) It also provides a process by which the parties would seek to resolve, outside of court, any disagreements with respect to these initial relief determinations. (See id. ¶¶ 25-27.) Following these initial determinations, Section IV requires the Federal Government to submit to the court a “Relief Awards List” containing information about each individual who submitted a claim form, including the type of relief sought and the Federal Government’s assessment of eligibility and amount of appropriate relief. (See id. ¶ 28.) Section IV provides for a “Fairness Hearing” following the submission of this Relief Awards List, which would allow affected parties to object to these initial remedial determinations. (See id. ¶ 29.) The court would resolve any objections and a final remedial list would then be approved. (See id. ¶¶ 30-33.) Section IV also sets out the forms of relief that would be distributed. First, it provides for “monetary relief awards” to be provided to eligible applicants, and sets out a procedure for payment. (See id. ¶¶ 34-40.) Second, it provides for “priority hiring” relief, which would permit up to 293 black and Hispanic candidates who failed Written Examination 7029 or 2043 to be hired on a priority basis by the City. (See id. at ¶¶ 41-53.) Specifically, following the entry of a final relief order, the City would have to appoint two black priority hires and one Hispanic priority hire out of every five appointments for entry-level firefighter until 293 qualifying minority applicants had been offered a position (or the list of such applicants had been exhausted). In doing so, the City would not be required to offer a position to any claimant determined to be currently unqualified based upon the City’s objective, nondiscriminatory criteria. (See id. ¶¶ 49-53.) A candidate’s current qualifications for appointment would not consider whether he or she had met an age requirement. (See id. ¶ 53.) Finally, Section IV provides for the awarding of “retroactive seniority” relief to some of the victims of discrimination, including seniority for the purposes of pay, pension and benefits, as well as “competitive” seniority used when incumbent firefighters compete for promotions, transfers or other benefits. (See id. ¶¶ 54-56, 10.) Such seniority would be available to those who were hired under the “priority hiring” relief mentioned above, as well as to those victims who were already hired by the City, but whose hiring was delayed because of the discriminatory impact of Written Examinations 7029 and 2043. (See id.) The calculation of seniority would extend back until the victim’s “presumptive hire date” — i.e., a victim would be entitled to seniority as of the median hiring date for the eligibility list created from either Exam 7029 or 2043 (depending upon which the applicant sat for). (See id. ¶¶ 54-55, 9.) A victim would be awarded seniority as if they had been hired on February 2, 2003 (the median hire date of the Exam 7029 eligibility list) or June 11, 2006 (the median hire date for the Exam 2043 eligibility list). (See id. ¶ 9.) Section V, entitled “Development of a New Selection Procedure,” requires the City, in consultation with the Federal Government and the Vulcan Society, to “design, develop and validate” a new selection procedure for the job of entry-level firefighter. (See id. ¶ 57.) Following the development and validation of a new selection procedure, the City would report its results to the Federal Government and the Vulcans, who could either (1) agree to jointly submit the new test for the court’s approval, and seek implementation of an eligibility list based upon the new procedure within six months, or (2) file objections to the new procedure with the court, and seek a hearing to determine the validity of the new test and the availability of alternative procedures for prompt implementation. (See id. ¶¶ 58-61.) Section VI, entitled “Compliance Monitoring,” requires the City to maintain various records and documents relating to its hiring of entry-level firefighters and its compliance with the court’s remedial order. (See id. ¶¶ 63-67.) The Section requires the City to make these records available to the Federal Government and to the Vulcans upon request. (See id. ¶ 64.) It also requires the City to make available for interview or deposition any individuals with knowledge or information necessary to verify the City’s compliance. (See id. ¶ 65.) As part of its compliance obligations, the City would also have to provide reports to the Federal Government and to the Vulcans about various aspects of its entry-level firefighter selection process. (See id. ¶¶ 66-67.) Section VII of the PRO, entitled “Retention of Jurisdiction,” provides for the retention of the court’s jurisdiction over the case until certain benchmarks have been reached. (See id. ¶ 68.) Section VIII, entitled “Costs and Fees,” requires the City to pay for certain costs and fees incurred in the course of the litigation. (See id. ¶¶ 69-71.) III. INDIVIDUAL RELIEF Following its liability rulings, the court must fashion relief that “makes whole” the victims of the City’s discriminatory testing practices. The PRO sets out a basic framework for awarding that type of relief, and the court will adopt the broad contours of the Federal Government’s proposal, including: a notice-and-claims process designed to identify — and seek information from' — black and Hispanic applicants who sat for Written Examinations 7029 and 2043; a process by which the City may attempt to show a nondiscriminatory reason for not hiring those applicants; a pro rata distribution of monetary benefits to the identified victims of discrimination; and a determination of which 293 victims, if any, are currently interested and qualified to be awarded priority hiring as entry-level firefighters with retroactive seniority. The City objects to several aspects of this relief, and the court has identified several areas in which further information is required. In this Section, the court addresses: (A) the burdens of proof applicable to individual relief determinations; (B) the process for making individual relief determinations; (C) the distinction between those victims eligible for monetary relief only and those also eligible for priority hiring; and (D) the availability of retroactive competitive seniority. As set forth below, the court concludes that (A) the basic, burden-shifting framework set out by the Supreme Court in Franks v. Bowman Transportation Company, 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976), is applicable to the remedial determinations in this case; (B) further information or clarification from the parties is needed on the process for making individual relief determinations; (C) only applicants who are currently qualified to be firefighters are eligible for priority hiring, but further information or clarification is needed on the nature of those qualifications; and (D) the retroactive seniority set out in the PRO is properly available to priority hires, but further information or clarification is needed concerning retroactive seniority for victims delayed by the City’s discriminatory practices. The court addresses each of these four areas in turn. In doing so, the court overrules the City’s objections to the basic burden-shifting framework at the relief phase, and to the award of retroactive competitive seniority as an available form of relief. A. Burden to Prove Individual Eligibility The City argues that the PRO improperly lightens Plaintiffs’ burden to show that particular individuals were actual victims of the City’s discriminatory hiring practices. According to the City, following the court’s liability ruling, Plaintiffs still carry a burden: They must prove which of the class members would have actually gone forward with the [hiring] process. Thereafter, the defendants have the burden of showing which of those, in this reduced pool, would not have been able to enter the academy. Then, a further examination and determination is still required for the Court to determine which class members were actually victims, i.e., which would have actually advanced beyond simply being on a list and gone to the Fire Academy. (See Defendants’ Opposition (Docket Entry # 347) (“Def. Mem.”) 23-24.) For support, the City relies principally on the Supreme Court’s decisions in International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977) and Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 104 S.Ct. 2576, 81 L.Ed.2d 483 (1984). The City points to language, for example, that a plaintiff “must carry [the] burden of proof, with respect to each specific individual, at the remedial hearing to be conducted by the District Court .... ” (Def. Mem. 20 (quoting Teamsters, 431 U.S. at 371, 97 S.Ct. 1843); see also id. at 20-21 (quoting Stotts).) What the City ignores, however, is that the quoted language applies to a type of claim that is not present in this case: a claim by an individual who did not actually apply for a job, but who claimed to have been deterred by a selection practice. For the type of claim at issue here, however, the applicable burden-shifting framework was set forth by the Supreme Court in Franks v. Bowman Transportation Company, 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976). In Franks, the Supreme Court held that “proof of a discriminatory pattern and practice creates a rebuttable presumption in favor of individual relief’ for the victims of discrimination. Teamsters, 431 U.S. at 359 n. 45, 97 S.Ct. 1843 (describing Franks). Plaintiffs “need only show that an alleged individual discriminatee unsuccessfully applied for a job and therefore was a potential victim of the proved discrimination.” See id. at 362, 97 S.Ct. 1843. Following this showing, “the burden then rests on the employer to demonstrate that the individual applicant was denied an employment opportunity for lawful reasons.” Id. (citing Franks, 424 U.S. at 773 n. 32, 96 S.Ct. 1251); see also 42 U.S.C. § 2000e-5(g)(2)(A). By its terms, this burden-shifting framework applies to cases in which actual applicants for employment have been refused a job on account of a discriminatory selection practice. In Teamsters, the Supreme Court expressly affirmed — and extensively relied upon — its decision in Franks. A new issue presented in Teamsters, however, was how a court should assess the claims of individuals who did not actually apply for the job in question, but who nonetheless claimed to have been deterred by a discriminatory hiring practice. See Teamsters, 431 U.S. at 364-71, 97 S.Ct. 1843. The Supreme Court held that seniority relief would be available to such individuals only if they could demonstrate that they were “potential victim[s] of unlawful discrimination.” Id. at 367, 97 S.Ct. 1843. The Supreme Court held that a nonapplicant claiming to be deterred by an employer’s discriminatory practices bears “the not always easy burden of proving that he would have applied for the job had it not been for those practices.” Id. at 367-68, 97 S.Ct. 1843. “When this burden is met, the nonapplicant is in a position analogous to that of an applicant and is entitled to the presumption” applicable to actual applicants. Id. at 368, 97 S.Ct. 1843. In other words, Teamsters held that nonapplicants bear the burden of demonstrating that they would have applied for a job, but it did not disturb the presumption of relief afforded to actual applicants. Nor did the Supreme Court’s holding in Stotts alter this distinction in the burdens of proof between applicants and nonapplicants. In the Stotts language quoted by the City, the Supreme Court noted that individuals who prove that they were victims of discrimination may be awarded competitive seniority, but those who were nothing more than members of the same minority group as those victims could not necessarily be awarded such relief. Stotts, 467 U.S. at 578-79, 104 S.Ct. 2576. This language — relying on Franks and Teamsters — does not address the manner by which applicants and nonapplicants may satisfy their burden. As set forth in Teamsters, actual applicants meet their initial remedial burden by showing that they have unsuccessfully applied for a position, while nonapplicants satisfy their burden only by affirmatively demonstrating that they would have applied. 431 U.S. at 357-71, 97 S.Ct. 1843. Consistent with Teamsters and Stotts, individual relief in this case is available to actual test takers — i.e., those who sat for Written Examinations 2043 and 7029 — unless the City is able to show that those individuals would not have been hired for nondiscriminatory reasons. As set forth in the PRO, actual test takers would receive notice of the availability of relief, and would be given the opportunity to submit a claim form indicating that they sat for Written Examination 7029 or 2043, and were discriminated against based upon the City’s use of one of those examinations. (See PRO ¶¶ 18-20.) Once a claimant comes forward with evidence that, for example, he or she failed Written Examination 7029 or 2043, that individual would be entitled to a presumption that he or she was the subject of discrimination and is entitled to compensatory, make-whole relief. See Teamsters, 431 U.S. at 362, 97 S.Ct. 1843; see also Cohen v. West Haven Bd. of Police Com’rs, 638 F.2d 496, 502 (2d Cir.1980) (“Where there has been an unlawful refusal to hire, individual class members establish their prima facie entitlement to backpay simply by showing that they applied for the job and were not hired.”); Acha v. Beame, 531 F.2d 648, 656 (2d Cir.1976) (noting that plaintiff could “satisfy her burden by demonstrating that she actually filed an application for employment”). Following this simple showing, the burden would rest on the City “to demonstrate that the individual applicant was denied an employment opportunity for lawful reasons.” Teamsters, 431 U.S. at 362, 97 S.Ct. 1843 (citing Franks, 424 U.S. at 773 n. 32, 96 S.Ct. 1251); see also Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 159-60 (2d Cir.2001). The City could attempt to show that, based upon nondiscriminatory hiring criteria in place at the time, the City would not have hired the individual, or the individual would have voluntarily withdrawn from the process. Doubts as to the existence of such nondiscriminatory reasons would be resolved against the City, which is responsible for the uncertainty. See Cohen, 638 F.2d at 502; AADE, 647 F.2d at 289. Should the City succeed in showing a nondiscriminatory reason, no relief would be awarded. If the City should fail to show a nondiscriminatory reason, the claimant would be entitled to make-whole relief. To the extent that the City objects to this burden-shifting framework, the City’s objection is OVERRULED. B. Process for Determining Individual Eligibility In order to provide individual relief to the victims of the City’s discrimination, the court must implement a workable process by which the thousands of potential victims can be identified and compensated. The PRO establishes the starting point. It sets out a claims process coupled with pro rata relief that will allow the court to approach the task of remedying widespread discrimination without resorting to thousands of individualized hearings. It also sets out a process in which the Federal Government would make the initial eligibility determination, the City and the Vulcans would object, and the parties would attempt to resolve their differences outside of court. (See PRO ¶¶ 25-27.) Following this process, the Federal Government would provide the court with its initial eligibility determinations, to which any party (including the City, the Vulcans, individual claimants, and others) would have the chance to object at a court-ordered “Fairness Hearing.” (See id. ¶¶ 28-30.) This would limit the number of disputes that the court would be required to resolve. Nonetheless, the court requires further information to determine whether all the particulars of the process set out in the PRO should be ordered as currently drafted. The court identifies three issues with respect to the eligibility determinations. First, the PRO does not explicitly state that its initial, out-of-court eligibility determinations will be made in accordance with the Franks burden-shifting framework. In other words, the PRO does not state that a claimant would have the initial burden of demonstrating that he or she was an actual test taker, followed by an opportunity for the City to satisfy its burden to show a nondiscriminatory reason for its hiring decision. (See PRO ¶ 22.) Instead, it appears that the Federal Government would make an initial, out-of-court eligibility determination, and that each of its determinations would have the presumption of correctness. Any objecting party — whether it be a claimant, a third party, or the City — would have the burden of overcoming that presumption. (See PRO ¶¶ 31, 33 (requiring any objector to show that United States’ determination was not “reasonable, equitable and consistent with the provisions of this Order”); see also PRO ¶ 32 (requiring any objector to priority hiring determination to show that claimant “would not have been hired from the relevant eligible list, absent the City’s use of the practices the Court has found resulted in an unlawful disparate impact in violation of Title VII”).) Providing a presumption in favor of the Federal Government’s determinations would help to streamline a process which will involve assessing thousands of potential award recipients. But, the precise process for making such a determination is not clear to the court from the face of the PRO. The parties should be prepared to address the details of the eligibility determination process at the February Conference. Second, the initial eligibility determination should involve a simple determination of whether an individual sat for one of the two discriminatory examinations, followed by a determination of whether the City has shown a nondiscriminatory reason that an individual would not have been hired. The reasons the City will rely upon will likely fit into a discrete universe of nondiscriminatory qualifications for the job of entry-level firefighter at the time of Written Examination 7029 and 2043. The City might argue, for example, that a particular claimant was not medically, psychologically or physically fit, or that he or she had a criminal record. (See Declaration of Richard A. Levy (Docket Entry # 264), Ex. L (Notices of Examinations 7029 and 2043).) It might, therefore, be efficient for the City to develop early on a list of the nondiscriminatory criteria it will rely upon to challenge individual claimants’ eligibility. The court could then settle any disagreement about these criteria and provide the parties with a framework for the City’s objections going forward. Establishing such criteria would increase efficiency by allowing eligibility determinations to be made with the aid of identified standards, and allowing the court to resolve any disputes about those standards. Third, although the City bears the burden of proving nondiscriminatory reasons for individual hiring decisions, it might be inefficient for the City to gather all the information relevant to its objections. For example, information about some of the individual qualifications, such as a criminal record or a high school diploma, could be more easily obtained from the individual claimants themselves. To increase efficiency, therefore, the individual claim forms might require information about some of the straightforward qualifications, to be supplied under oath, from claimants themselves. Requiring the claimants to provide this information would likely have little effect on the burden of proof for making the ultimate qualifications determination. Cf. AADE, 647 F.2d at 289 (“With respect to most of the City’s prerequisites ... we would expect the allocation of the burden of proof to have little impact.”). In sum, the court substantially agrees with the PRO’s eligibility framework, but requires the parties’ views on several issues relating to the implementation of that process. At the February Conference, the parties should be prepared to address these issues. C. Types of Individual Relief: Monetary or Hiring For victims who failed the written examinations, two basic categories of make-whole relief are available: monetary relief and hiring relief. Yet, not all victims will necessarily be entitled to both forms of relief. {See PRO ¶23.) This is sensible because, as set forth below, entitlement to priority hiring requires a victim to be currently qualified to be an entry-level firefighter, but entitlement to monetary relief does not. Eligibility for compensatory relief, as a general matter, turns on a candidates’ qualifications at the time of Written Examination 7029 and 2043. See, e.g., AADE, 647 F.2d at 289. The hiring of a victim as a remedial measure, however, depends on the victim being currently in compliance with the City’s nondiscriminatory qualifications for entry-level firefighter. See Franks, 424 U.S. at 772-73 n. 31, 96 S.Ct. 1251 (noting that applicants must be “presently qualified” to be eligible for priority hiring). Such qualifications appear to include physical, medical, and psychological fitness tests, as well as background checks and basic language proficiency. {See Declaration of Sharon Seeley (Docket Entry # 316) (“Seeley Deck”), Ex. E (setting forth qualifications from Notice of Examination 6019); see also PRO ¶¶ 45-53 (setting forth procedures for determining current qualifications for priority hiring).) Moreover, to ultimately work as a firefighter, a victim would have to successfully complete training at the Fire Academy. Should a claimant be unable to meet these qualifications, he or she would be limited to monetary relief. The distinction between eligibility for monetary relief and hiring relief balances the need to make whole the victims of past discrimination with the concern for public safety that is inherent in any decision to hire a firefighter. The need to ensure that firefighters possess relevant qualifications can outweigh the preference for hiring as an available form of make-whole relief. See AADE, 647 F.2d at 281-82 n. 24 (rejecting argument that relief order would “require the City to hire persons who are not qualified to be firefighters,” because, in part, “[a]ll will be required to pass physical fitness tests, and meet the City’s other requirements, other than the written test”). In order to balance these considerations, the City must be given the opportunity to challenge a victim’s current qualifications for the job of entry-level firefighter. The PRO sets out a procedure that allows the City to do so. (See PRO ¶¶ 45-53.) Among those eligible for priority hiring, the City would have to make an “offer of priority hire” to up to 293 victims. (See PRO ¶¶ 41-46.) The City would have no obligation to hire any individual who, for example, refused hiring, failed a post-offer medical or psychological evaluation, or failed to appear without good cause on his or her first day at the Fire Academy. (See id. ¶ 47.) The PRO also permits the City to contend that a claimant is “not currently qualified for the entry-level firefighter position using the lawful, objective hiring criteria in use by the City at that time .... ” (See id. ¶ 49.) The parties would attempt to resolve any dispute over current qualifications outside of court, and the court would resolve any disputes the parties could not. (See id. ¶¶ 51-52.) The court agrees that this basic framework is a sensible approach to determining which individuals are currently qualified. Nevertheless, the PRO does not make precisely clear what sorts of qualifications will be considered at this stage. For example, the PRO suggests that an individual victim would have to sit for Written Examination 6019, and score at least a 60 to be considered currently qualified. (See PRO ¶ 48 (in section relating to current qualifications, requiring City to notify Plaintiffs if claimant failed to sit for Written Examination 6019 or failed to score a 60); ¶ 47 (noting that a claimant could not be considered currently unqualified if he or she scored at least a 60 on Written Examination 6019).) But it is not clear why eligibility for priority hiring for victims of discrimination should depend on a grade of 60 on Exam 6019. In any event, at the February Conference, the parties should be prepared to address the issue of the current qualifications of victims. D. Awarding Retroactive Seniority “A court that finds unlawful discrimination is not required to grant retroactive relief.” Ingram v. Madison Square Garden Center, Inc., 709 F.2d 807, 811-12 (2d Cir.1983). Retroactive seniority is a matter to be determined based upon the circumstances of an individual case and is a matter within the “sound equitable discretion of the district courts.” Franks, 424 U.S. at 770, 96 S.Ct. 1251. Nonetheless, “retroactive seniority is ordinarily considered to be a relatively fundamental form of relief where a plaintiff was subject to unlawful discrimination in the hiring process.” Sands, 28 F.3d at 1329. In fashioning an award of retroactive seniority, the Supreme Court has cautioned district courts to consider the degree of impact such an award would have on non-victim employees of a defendant. In Teamsters, the Supreme Court wrote: [AJffcer the victims have been identified and their rightful place determined, the District Court will again be faced with the delicate task of adjusting the remedial interests of discriminatees and the legitimate expectations of other employees innocent of any wrongdoing. 431 U.S. at 372, 97 S.Ct. 1843. In deciding whether to award retroactive seniority to identified victims of discrimination, the court must carefully consider the legitimate expectations of “other employees innocent of any wrongdoing.” Id. The PRO provides for retroactive seniority to be awarded to those victims who were never hired by the City, as well as to those victims whose hiring was delayed. In either case, the awarded seniority would extend back until the victim’s “presumptive hire date” — ie., a victim would be entitled to seniority as of the median hiring date for the eligibility list created from either Exam 7029 or 2043 (depending upon which the applicant sat for). (See id. ¶¶ 5, 8, 9, 54-55.) The court addresses each of these categories in turn. 1. Non-Hire Victims The PRO allows the court to appropriately balance the considerations set forth by the Supreme Court in Teamsters in awarding seniority relief to victims who were not hired. Based on the calculations at the liability phase, the PRO begins from the premise that 186 black and 107 Hispanic applicants (293 total victims) would have been hired if not for the City’s discriminatory hiring practices. (See supra, note 5.) Because it is impossible to determine exactly when these individual black and Hispanic applicants would have been hired, the PRO proposes to assume that each of them would have been appointed as of the median hiring date of each examination. (See PRO ¶¶ 9, 55.) Although this assumption will not precisely reflect the circumstances of each individual in the absence of discrimination, relying upon the median of all hiring dates is reasonable under the circumstances. The City objects to this proposal, arguing that the PRO “improperly seeks to award competitive seniority without making the individualized findings and assessments, which are required for such relief.” (Def. Mem. 8.) The City contends that monetary awards “can be applied to the entire class on a pro rata basis as any imprecision only has a negative effect on the wrongdoer.” (Id.) By contrast, the City argues that awards of retroactive seniority require “individualized showings” to determine “the actual victims of discrimination and to cause the least impact on the rights of the innocent non-victim employees.” (Id.) That is, the City opposes the awarding of retroactive competitive seniority, asserting that the PRO does not identify actual victims of discrimination and does not adequately consider the rights of incumbent firefighters. (Def. Mem. 8-19.) A fundamental misconception runs through the City’s arguments. The City fails to appreciate that the actual applicants who sat for Written Examinations 7029 and 2043 are presumed to be victims of discrimination based solely upon their having sat for those exams and having failed or effectively failed. See Teamsters, 431 U.S. at 359 n. 45, 362, 97 S.Ct. 1843. Every one of these applicants will be an identified victim of discrimination should the City fail to demonstrate a nondiscriminatory reason that the person was not hired. The PRO, therefore, does not take a “classwide” approach to identifying the victims of discrimination. Instead, it requires an individual determination of whether each test taker was discriminated against based upon use of the written examinations or whether he or she was not hired for a legitimate nondiscriminatory reason. The issue on which the PRO does take a classwide approach is the determination of what form and how much relief will be afforded to these individually identified victims of discrimination. The PRO bases this calculation for non-hires on a determination of the number of positions and amount of seniority that would have been awarded to black and Hispanic applicants absent the discrimination. This classwide approach does not fail to identify individual victims — instead, it accounts for the fact that it is impossible to determine which particular identified victims would have been hired for the available positions. Limiting the number of positions to 293 — and setting the seniority date to the median date of hiring — allows the court to balance the need to compensate victims against the uncertainty created by the City’s discriminatory practices. Rather than being overbroad, the approach is tailored to distribute the positions and seniority resulting from the minority shortfall to a subset of the victims of discrimination. This approach is consistent with the case law cited in the parties’ briefing. See, e.g., Ingram, 709 F.2d at 812-14; United States v. City of Miami, 195 F.3d 1292, 1300 (11th Cir.1999); see also Robinson, 267 F.3d at 162 n. 6 (noting availability of classwide relief, but indicating preference for individual determinations). The approach awards seniority in an amount that is coextensive with the shortfall that resulted from the City’s discriminatory hiring practices. Because the court determined that 186 black and 107 Hispanic applicants would have been hired absent the discrimination, the PRO properly fixes the number of available positions at 293. Assuming that these hires would have been spread out proportionately among all hiring from each respective list, it is reasonable to set the seniority date for each of these hired victims as of the median date. This approach is designed to recreate the conditions that would have existed absent discrimination, and would do no more than make whole the victims who were, and are, currently qualified to be entry-level firefighters. Such make-whole relief properly includes competitive seniority. See Truskoski v. ESPN, Inc., 60 F.3d 74, 77 (2d Cir.1995) (“Seniority rights— both ‘competitive status’ seniority and ‘benefit’ seniority — are important components of ‘make whole’ relief under Title VIL”). The City contends, however, that the rates of appointment for those who passed Written Examinations 7029 and 2043 demonstrate that many candidates who would have passed one of the written examinations toould not have been hired. (Def. Mem. 22-23.) As previously noted, however, the shortfall calculation already takes into consideration the hiring rates of candidates who passed the written examinations. (-See supra, note 5.) To the extent that there is uncertainty about whether any particular individual would have carried forward with the process, or would have been disqualified for a nondiscriminatory reason, that uncertainty will be resolved against the wrongdoer. Moreover, because the PRO would grant seniority to no more than 293 victims, even if the City fails to show a nondiscriminatory basis for its decisions not to hire hundreds of victims, no more than 293 individuals would be granted retroactive seniority. Therefore, the amount of seniority relief awarded would not exceed the amount of the injury. Finally, the proposed seniority relief does not unduly burden incumbent firefighters. First of all, the fact that incumbents are affected is not, on its own, sufficient to defeat an award of retroactive seniority. As the Supreme Court stated in Franks, more is required: [Djenial of seniority relief to identifiable victims of racial discrimination on the sole ground that such relief diminishes the expectations of other, arguably innocent, employees would if applied generally frustrate the central “make whole” objective of Title VII. These conflicting interests of other employees will, of course, always be present in instances where some scarce employment benefit is distributed among employees on the basis of their status in the seniority hierarchy.... [W]e find untenable the conclusion that this form of relief may be denied merely because the interests of other employees may thereby be affected. “If relief under Title VII can be denied merely because the majority group of employees, who have not suffered discrimination, will be unhappy about it, there will be little hope of correcting the wrongs to which the Act is directed.” 424 U.S. at 774-75, 96 S.Ct. 1251 (quoting United States v. Bethlehem Steel Corp., 446 F.2d 652, 663 (2d Cir.1971)). While the court must carefully consider the interests of incumbent firefighters, the mere fact that these interests will be affected is insufficient to preclude retroactive competitive seniority. The approach proposed by the PRO properly balances the competing interests. The PRO proposes that retroactive competitive seniority should be awarded only to identified victims of discrimination. This number would be limited to the 293 places that the court determined would have been offered to black or Hispanic candidates absent the discriminatory impact of Written Examinations 7029 and 2043. Moreover, the effective hiring dates of those candidates — set to the median hiring dates from the respective examinations — does not place the victims in front of every other person hired from those examinations. Instead, it takes the more modest approach of assuming that minority candidates would have been hired approximately in the middle of each list. This effectively cuts in half the number of incumbents who would be affected by the grant of seniority. Accordingly, the negative effects of granting retroactive seniority to 293 individuals will be felt by approximately half of the 5,300 incumbents who were selected based upon the results of Written Examinations 7029 and 2043. (See D.I. Op., 637 F.Supp.2d at 80, 85-86, 94.) The Federal Government points out that 293 is about the size of one academy class so the displacement impact of the seniority awards will amount to, at most, approximately one class year of delayed seniority for those affected. (USA Reply 18.) The court also notes that these latter firefighters were themselves the beneficiaries of hiring from the discriminatory examinations. Although the incumbents bear no responsibility for this discrimination, it is reasonable to require them to carry a small measure of the burden of compensating the examinations’ victims. See Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 281, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986) (“When effectuating a limited and properly tailored remedy to cure the effects of prior discrimination, such a sharing of the burden by innocent parties is not impermissible.”) (internal quotation marks omitted). In reaching this conclusion, the court rejects the City’s argument that an award of retroactive competitive seniority would violate the Equal Protection rights of incumbent firefighters. As set forth in the PRO, these awards would be allotted only to identified victims of discrimination. Singling out this group for remedial relief is not a classification based upon race or ethnicity, but is instead a classification based upon that individual’s status as a victim of prior discrimination. See Acha, 531 F.2d at 656 (“Award of seniority to those who had actually been discriminated against by these defendants is not a ‘preference’ because of sex. It is rather a remedial device well within the broad power conferred on the district court by [42 U.S.C. § 2000e-5(g) ].”). And, to the extent that such relief might be unduly burdensome to any particular individual, the PRO provides for a Fairness Hearing to allow individuals to present their circumstances to the court. See 42 U.S.C. § 2000e-2(n). For the foregoing reasons, the City’s objection with respect to seniority for identified victims of discrimination is OVERRULED. 2. Delay Victims The PRO would also grant retroactive seniority to individuals who were delayed in hiring based on the City’s use of Written Examinations 7029 and 2043. (See PRO ¶¶ 5, 54; see also USA Mem. 20 n. 18.) The Federal Government explains that this provision provides seniority relief to those delayed in hiring “if they were hired after the median hiring date for the relevant eligible list.” (Id.) In other words, those minority candidates who were hired before the median hiring date on each examination would not be eligible for relief, but those who were hired after the median hiring date would be eligible for retroactive seniority up to that presumptive hiring date. Although the parties do not address this aspect of the proposed relief in their briefing, as set forth herein, they should be prepared to do so at the February Conference. According to the calculations cited in the court’s liability ruling, the delay in hiring was computed by comparing the actual distribution of black and Hispanic hires to the distribution of those hires absent discrimination. {See Siskin Report 19-21.) The difference between the minority applicants’ actual and expected hiring dates was then aggregated to reach the total amount of delayed wages and seniority for those minority appointments. {See id.) According to those calculations: approximately 68 black appointments from Written Examination 7029 were delayed for a total of approximately 20 years of lost seniority; approximately 86 Hispanic appointments from Written Examination 7029 were delayed for a total of approximately 23 years of lost seniority; approximately 44 black appointments from Written Examination 2043 were delayed for a total of approximately 14 years of lost seniority; approximately 51 Hispanic appointments from Written Examination 2043 were delayed for a total of approximately 12 years of lost seniority. {See D.I. Op., 637 F.Supp.2d at 90-92; Siskin Report, tbls. 3b, 4b, 12b, 14b.) With regard to apportioning the value of this delayed seniority, it is not clear to the court why reliance on the median hiring date would best approximate the amount of seniority each delayed claimant lost on account of the discrimination. It appears from the expert analysis relating to this delay that the impact of the delay was felt by minority candidates from the very beginning of the City’s appointments from Written Examinations 7029 and 2043. {See Siskin Report, tbls. 3a, 4a, 12a, 14a.) The delay, therefore, affected candidates who were hired before the median cutoff date, yet the PRO does not propose to award them retroactive seniority. Unlike for non-hires, the dates on which the delay claimants were hired can be determined, and those candidates who were hired before the median dates would be denied relief if seniority were to be based solely on the median hire date. Rather than exclude this group of individuals, the court would prefer to devise a method of apportioning relief that could be distributed among all victims. At the same time, the expert analysis shows that the delay in hiring did not affect every appointment made. {See D.I. Op., 637 F.Supp.2d at 90-92.) Accordingly, the analysis supposes that some of the hires made both before and after the median hire date were not affected by the discriminatory examinations. It may therefore be sensible to divide the total amount of delayed seniority pro rata across the total number of hires. Although not everyone hired was affected, dividing the total amount of seniority would apportion the total value of the loss among the individuals most likely to have been affected, rather than providing a windfall to certain victims at the expense of others. It would also limit the amount of recovery to the total value of the delayed seniority. In any event, the parties should be prepared to address methods of apportioning relief among those who were delayed by Written Examinations 7029 and 2043. Although the current method proposed by the PRO would provide relief to some of those delayed, it does not appear to fully reflect the calculations describing the disparate impact of the ranking. To the extent a closer approximation might be available, it would be preferable to apportion the amount of delay among all victims. IV. COMPLIANCE AND INTERIM RELIEF In addition to compensating the victims of past discrimination, the court must also impose measures that will ensure the City’s future compliance with Title VII. In light of the history and nature of the discrimination in this case, the court views compliance as a long-term issue. The development of a new, job-related examination is critical. Only then can the court be sure that the City’s testing practices meet the test-validation requirements of Title VII. Although the City has developed a new examination that has not been at issue in this litigation — Written Examination 6019 — that examination must be validated before it is utilized, and Plaintiff must have the opportunity to show that a newly developed examination is a better alternative. As set forth below, the court considers: (A) whether the City should be permitted to use the results of Written Examination 6019 before a new test is created and considered; and (B) what form of interim hiring is appropriate before a new test is developed. In considering the latter issue, the court first rejects the Intervenors’ proposal that the court impose a 60% minority hiring quota as an interim measure. The court then considers alternative interim measures. The court concludes that an immediate hearing on the validity of Examination 6019 is appropriate, and directs the parties to address other aspects of interim compliance and interim relief at the February Conference. A. Authority Over Written Examination 6019 The court must first consider whether its remedial power extends to Examination 6019, which was not at issue in the liability phase. Several of the City’s arguments bring this issue before the court. First, the City argues that the PRO “improperly presumes that Exam 6019 is invalid, and thus seeks to disregard the results of that exam without permitting the defendant any opportunity to present evidence to establish that the exam is job-related and consistent with business necessity.” (Def. Mem. 2.) The City also contends that discarding the results of Written Examination 6019 would violate Title VII and the constitutional rights of innocent non-victim candidates, in light of Ricci v. DeStefano, -— U.S. -, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009). Citing Ricci, the City further contends that the court may not set aside the results of Written Examination 6019 until the City has been given the opportunity to show that the examination is valid, and that its use of the examination is job-related. (Def. Mem. 6-8.) Although the validity of the City’s use of Exam 6019 was not presented at the liability phase, the liability rulings have brought that examination into play. At this point in the litigation, the court has an obligation to ensure that the City does not utilize discriminatory testing practices to hire entry-level firefighters. See Guardians, 630 F.2d at 109 (“Once an exam has been adjudicated to be in violation of Title VII, it is a reasonable remedy to require that any subsequent exam or other selection device receive court approval prior to use.”); Teamsters, 431 U.S. at 361 & n. 47, 97 S.Ct. 1843 (noting broad equitable discretion to issue orders “necessary to ensure the full enjoyment of the rights protected by Title VII”) (internal quotation marks omitted). Although there may have been improvements in its job analysis and test construction, the court still must be satisfied that Exam 6019 — the City’s current testing procedure — is compliant with Title VII’s demands. Several reasons support consideration of Exam 6019 during the remedial phase. First, the court is extremely reluctant to permit hiring from an examination that has not yet been properly validated. Although the City highlights the merits of Written Examination 6019, the City’s proven history of improper test construction calls its current examination into question. Second, according to the evidence presented by the Federal Government — which is not disputed by the City — Written Examination 6019 continues the pattern of disparate impact upon black and Hispanic applicants. (See Declaration of Bernard R. Siskin, PH.D. (Docket Entry # 316) (“Siskin Decl.”) ¶ 7-16 (describing statistically significant disparate impact resulting from pass/fail and rank-order use of Exam 6019); see also USA Mem. 8-10 & n. 11.) Third, the current eligibility list does not rank candidates based on any measure of physical abilities, which are skills plainly important to the job of entry-level firefighter. (See Seeley Deck Ex. D, at 200.) Finally, based on the court’s initial review of the eligibility list data from Written Examination 6019, the same ranking problems that plagued Examinations 7029 and 2043 are present on the Exam 6019 list. (See Docket Entry # 299 (Exam 6019 testing data) (sealed).) According to that data, nearly 9,000 test takers scored between 90 and 100 on the examination. (See id., att. 3.) Over 19,000 test takers scored above an 80 on the examination. (Id.) In other words, the vast majority of the 22,000 test takers are bunched within 20 points of one another, raising the issue of whether the examination is able to make fine distinctions between candidates’ qualifications. As the Federal Government’s expert puts it: Six hundred eighty (680) applicants scored above 96 (96.005 to 100), 4,589 applicants scored between 92 and 96 (92 to 95.995), and 6,507 applicants scored between 88 and 91.99 (88.004 to 91.99). The standard error of measurement of Written Exam 6019 is 2.10. Therefore a four-point difference in scores on Written Examination 6019, is within the range of normal variation in scores due purely to chance (and thus does not indicate a true difference in scores between individuals). Given the manner in which Written Exam 6019 was used to rank candidates, non-meaningful dif ferences in score can move an applicant thousands of ranks on the eligible list. (Siskin Decl. ¶ 16 (emphasis added).) To make matters worse, it appears that a given candidate’s ranking can be significantly influenced by the “bonus” points awarded for “Veteran’s,” “Legacy,” and “Residency” status. Because thousands of applicants scored between 90 and 100, the highest ranked candidates on the eligibility list are those applicants who have been awarded multiple bonus points. (See Docket Entry # 299, atts. 2, 3.) For example, the top fifty individuals listed on the eligibility list scored between 105 and 128 points, based on the combination of a testing score between 88 and 100, combined with the addition of between ten and thirty-five bonus points. (Id.) Indeed, it appears that, without the addition of bonus points, a candidate would stand virtually no chance of being appointed from the top of the list. The highest ranked candidate with no bonus points — who scored a 99 on the written examin