Full opinion text
MEMORANDUM OPINION AND ORDER JOSEPH H. YOUNG, District Judge. Four black employees of the Baltimore City Fire Department have brought suit individually and as representatives of all similarly situated and affected persons, seeking injunctive and declaratory relief from patterns and practices of racial discrimination allegedly employed by the defendants, Mayor and City Council of Baltimore, members of the Board of Fire Commissioners and Civil Service Commission. Twenty-three white firemen have intervened as defendants. By order of October 20, 1972, the Court certified this suit as a class action on behalf of all black employees of the Baltimore City Fire Department, all black former employees and all potential black employees and applicants. The actions of defendants on which the complaint is based, if proven, would make injunctive or declaratory relief appropriate to all such individuals. Rule 23(b)(2), Federal Rules of Civil Procedure. Jurisdiction is founded upon 28 U.S.C. § 1343(3), which confers on this Court, without regard to the amount in controversy, jurisdiction of any action to redress the deprivation under color of any state law or regulation, of any right, privilege or immunity secured by the Constitution, or by any federal civil rights statute. Plaintiffs’ complaint charging racially discriminatory employment practices properly invokes such jurisdiction by stating a claim for relief under 42 U.S.C. §§ 1981, 1983 and 1988, 28 U.S.C. § 2201 and the Thirteenth and Fourteenth Amendments. Whitner v. Davis, 410 F.2d 24 (9th Cir. 1969); Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1971); Bennett v. Gravelle, 323 F.Supp. 203 (D.Md.1971). Venue is proper in this District. 28 U. S.C. § 1391. Plaintiffs’ amended complaint sets out numerous specific grievances. They concern overt discrimination against the plaintiff class through a long-standing refusal to hire any blacks to work in the Fire Department and through segregation and harassment after they were hired. Additionally they allege discrimination against plaintiffs in more covert ways, including maintenance of hiring procedures designed to minimize entry of blacks into the Department and promotion procedures designed to hinder the progress of those blacks who do enter the Department. The complaint places more than the intentions of defendants in issue. Plaintiffs are entitled to treatment by this government employer free from discrimination of any sort. The Court must evaluate the position of blacks in the Department and determine whether responsibility for any disadvantaged position can be laid to defendants. Carter v. Gallagher, supra; Chance v. Board of Examiners, 458 F.2d 1167 (2d Cir. 1972); Griggs v. Duke. Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). Black employees in the Department do not compromise the same percentage of the Department as they do of the City. A survey by the Fire Department shortly after suit was filed disclosed that only 13.7% of the Department employees were black, and a survey taken just before trial commenced disclosed that the percentage rose imperceptibly in the year that this action was pending. The percentage of blacks is even lower in the officer ranks. By contrast, the census figures indicate that in 1970 47% of the residents of the City of Baltimore were black. Intervenors contend that, since the Fire' Department is not limited in its hiring to City residents, more appropriate figures for comparison are the racial percentages of the Baltimore Standard Metropolitan Statistical Area. Blacks comprised slightly less than 24% of that population in 1970. If there were significance to the community-department comparison alone, it could not be doubted that plaintiffs have made a dramatic showing. For though new firefighters can reside anywhere within 30 miles of the City, the record shows that over two-thirds of the applicants come from the City itself. Therefore, to accurately reflect the racial composition of the actual hiring area, the black percentage of the Department would have to be closer to 47 % than 24%. It is 14%. But dramatic and frustrating though it may be, this discrepancy does not prove a violation of the Civil Rights Acts, as plaintiffs contend. It does not evidence that the defendants maintained practices or procedures which caused the statistical discrepancy. And most importantly, it gives no clue as to where the problem of disparate treatment might lie. I. Black entrance into the Baltimore City Fire Department is a recent story. Blacks were for years totally excluded from Fire Department employment, and the years after their initial entry were marked by segregation, ostracism and harassment. When blacks were first admitted to the Department in 1953, it was only at the behest of a local civil rights organization. Until 1953, the Board of Fire Commissioners (fire board) had simply refused to appoint black applicants (whose names were conveniently designated in red ink by the Civil Service Commission on the list of eligible applicants.) As can be imagined, those people who countenanced and perhaps encouraged the exclusion of blacks from the Department were not willing to accept black firemen as equals once they entered. The record in this case is replete with testimony of individual firemen to widespread segregation of firehouse facilities and to an atmosphere of harassment and ostracism. One witness called by defendants, a Battalion Chief in 1953 and thus in a position to observe conditions in many of the firehouses, testified that, though segregation did not occur in all of the firehouses, it did occur in most. The fire board caused the removal of “Reserved” signs in 1956, but the segregation which the signs had signaled continued thereafter, though perhaps not on the same scale. In some houses, the segregation that persisted was tacit, and individual blacks who defied the house policy and used “white” facilities sometimes escaped sanctions. In other houses, segregation was practiced openly, as when blacks reporting for temporary duty at a segregated house were shuffled off to another because the “black bed” was occupied. This situation persisted in more and more isolated instances until the late 1960’s. During the period of the worst racial segregation, blacks were made the butt of house pranks to a disproportionate degree and were frequently ostracized from quasi-official house clubs. In the situation just described, it is not hard to imagine that it was difficult for black firemen to carry on in the Department or work their way to higher positions. Indeed, some of the harassment was directly connected with ability to attain promotions on an equal basis, causing blacks to leave the Department in far greater proportions than whites during the 1950’s. Defendants and intervenors make much of the fact that no causal relation between segregation, harassment, ostracism and heightened attrition rates has been shown. But a psychiatrist called by defendants conceded that one natural reaction to such treatment would be to leave the Department. And the Court does not need statistics or psychiatric testimony to draw a conclusion that is consistent with everything we know of human nature — blacks were treated unfairly and many of them left the Department for that reason. One witness, an ex-employee and a prominent member of the community, testified to having left the Department for just that reason. His description of the frustrations and cruelties of racial discrimination was both moving and convincing. And he left in 1964. Responsibility for each of these instances of discrimination rests squarely with the defendants. It was the City of Baltimore which permitted the collusion of the Board of Fire Commissioners and the Civil Service Commission which resulted in black exclusion from the Fire Department prior to 1953. It was the fire board, appointed by the Mayor of Baltimore and responsible under the City charter for Fire Department affairs which condoned segregation in the use of Fire Department facilities and victimization of blacks in many forms in fire house affairs. It was the City and the Board which failed to take any effective corrective action throughout the 1950’s when the link between discriminatory treatment and high attrition of black firemen should have signaled the urgent need for such action. The defendants, by what they did and, charged with the responsibility to act, by what they did not do, deprived the plaintiffs of the equal protection of the laws guaranteed by the Fourteenth Amendment and violated 42 U.S.C. § 1981 and § 1983. Carter v. Gallagher, supra; Allen v. City of Mobile, 331 F.Supp. 1134 (S.D.Ala.1971) aff’d 466 F.2d 122 (5th Cir. 1972). Those defendants should not be heard to claim laches, or limitations, since the discriminatory treatment, of which the pre-1953 exclusion was only one part, continued well into the period covered by the statute. While it is sufficient for relief that the effects of past practices have continued within the statutory period, it should be noted that the practices here complained of themselves are not so dated as J be without the reach of Section 1983. II. As representatives of all potential black employees and applicants for employment, one of the principal grievances of plaintiffs is “the utilization of tests which discriminate against blacks as a condition precedent to their employment.” Amended complaint II, 9(d). The procedure which determines entrance to the Department is the common merit-system method. The Civil Service Commission conducts entrance tests for the Fire Department and certifies to the Department a list of all applicants who have passed those entrance procedures in rank order. The Board of Fire Commissioners then selects new firemen from this certified list of eligibles. In making this selection, the fire board may depart from strict numerical selection within the confines of the “rule of five”. The Civil Service Commission publicizes the tests and puts all prospective applicants on notice that they must meet certain Commission rules for Fire Department entrance, such as height limitations and a high school diploma. The Commission does not advertise the limitation on residence which the Department places upon its employees, apparently because that limitation is within the province of the Board rather than the Commission. The selection process includes a multiple choice written test (“firefighter” test), a physical examination and a background check for police record and character. The process included until recently a “penmanship” examination, designed to test for writing and spelling ability. This exam was abandoned in 1971, the same year that an “agility” component was added to the testing procedure. No complaint is made that either the physical or the background check discriminate against the plaintiff class, nor has complaint been lodged against the high school diploma prerequisite to entrance. Excluding credits for veterans, the multiple choice written test was, until 1971, the only factor in the entrance procedures which could effect rank on the eligibility list. (In 1971, the “agility” test score was factored into the total score.) Other facets of the entrance procedures have played a screening function. If one did not pass the “penmanship” exam, for example, one was not eligible to take the written exam. For this reason it would be misleading to concentrate solely on the effect of the written test. But since the number of applicants who are eligible to take the entrance exam is invariably much greater than the number of openings in the Department, the impact of the written test in sorting among those applicants is obvious. And the Civil Service Commission does not seem to have treated the written entrance examination as the important selection device it is. During the last decade, the Commission has drawn on two sources for its entrance exam. One of these has been the Public Personnel Association (PPA), a national commercial organization from which the Commission purchased several examinations. The other source has been the solitary work of a commission personnel technician. The employee upon whom this responsibility fell lacked professional training in test construction. And he was, as a Commission employee, unfamiliar with Fire Department work. Working principally on his own, he constructed a test that was used as an alternate to the PPA exam from 1962 to 1969 when the Department purchased additional entrance exams from the Public Personnel Association. In 1971, the Commission employee was again given the job of constructing a Fire Department entry level test. This time he had the advice of a study panel which had been appointed by the fire board in an effort to lessen the racial impact of the entrance tests. Though he took their advice on many points it was not expert advice, and the actual choice of questions remained largely his own. In making this selection, he relied heavily on the types of questions he had observed in the PPA examinations. The manner of preparation of the penmanship and agility tests need concern us less. The former was utilized to ensure that all new firemen were literate enough to accurately record incoming communications. Statements of the type one might expect to hear over the Department communications network were dictated and the examinees were required to set them out in writing without exceeding a certain number of spelling errors. The penmanship test was abandoned before the 1971 entrance examination at the instigation of the aforementioned study panel. The same panel also caused inauguration of the agility test. The panel, whose function it was to make the entrance process yield more blacks, felt that it was important to add to the written test a “non-intelleetive component.” The agility test consisted of situps, pushups, pullups and a jog. It was valued at 40% of the total score, the written test at 60%. The scoring was designed in such a way that a good performance on the agility portion could salvage a below-passing score on the written test. The Court has had presented to it complete racial statistics on only the 1971 examination. The primary reason for this is that the race of each examinee in 1971 was recorded and was available both to plaintiffs and defendants for development of their eases. For that 1971 examination, examinees were not screened by penmanship exams, and the eligibility ranking was a combination of the written test score and the new agility test score. But the statistical data that is available on the results of the firefighter examinations in previous years indicates that the 1971 test, despite its variations in procedure, is a representative example of the racial impact of the firefighter examinations over the years. In 1971, of 538 applicants, 172 were black. 426 names were certified to the Fire Department as eligible for appointment. Of these 426, 112 were black. The figures indicate that while approximately 32% of the applicants were black, only 26% of those certified as eligible for appointment were black. The part the written test played in this impact is demonstrated by the fact that, while only 15 of 366 whites who took the written test scored below 60% (for a failure percentage of 4%%), 35 of the 172 black examinees did so (failure percentage of 20%). Because of their ranking on the eligibility list — a product of both written and agility scores — ■ blacks garnered only 15 of 92 appointments, 16%. The most significant comparison in this picture is that, while 32% of those who sought appointment were black, Civil Service Commission entrance procedures yielded an appointment group with only half that black percentage. The Court’s ability to make a similar comparison for other years is hampered chiefly by the fact that racial statistics regarding applicants or employees were not kept by the Department for many years, at least not on an official basis. Racial identification of all relevant information for a few other years has been made. For every year in which the black percentage of those applying to the Department is known, the percentage of those appointed who are black has been significantly smaller. For the June, 1956 exam, 40% of the applicants were black and only 24% of those appointed were black. In January, 1957, 44% of the applicants were black and only 28% of the appointees. In 1960, 40% of the applicants were black and only 24% of the appointees. And in 1963, 47% of the applicants were black and only 24% of the appointees. The only conclusion possible is that some aspect of the entry procedure has had a substantially adverse impact on blacks. As in 1971, there is evidence for .earlier years that the written test played a significant part.in this impact. And there is further evidence that when the penmanship exam was. used as a screening device, it too had a significant impact on black success. For each of the years in which adverse impact of the entry procedures on black applicants was documented, black failure rates on both the penmanship portion and the written portion were higher than those for whites. On the written portion, unlike the penmanship portion, the actual score is as important as whether one fits above or below the passing line. But the failure rate is at least one indicia of what a comparison of actual scores might show. An inference that exam failure rate by race is indicative of exam scores is borne out by the 1971 experience — both high black failure rate and low ranking of black test passers. To reiterate, every year for which we have information regarding the percentage ’ of ‘ applicants to the Department who were black, the percentage of black appointees was much lower. And both the written and penmanship tests contributed to this result. The fact that the adverse impact demonstrated by that discrepancy, survived the elimination, of the penmanship exam in 1971, corroborates what the-statistics for the earlier years indicated — that the written exam played an independent and significant role in diminishing black appointments. ■ . Statistics for appointments-to the Department for every year since 1953 indicate that the years discussed above for which application figures were also available are clearly representative of the general experience. But the conclusion regarding defects in the entry procedures of the Fire Department was made independently of any assumptions regarding a desirable percentage of black entrants. The “problem” that has been defined, quite simply, is the fact that blacks get hired in a lower percentage than they apply. Employment tests which are shown to eliminate a disproportionate percentage of one racial group must be demonstrably accurate measures of job performance. Griggs v. Duke Power Co., supra. Whether intentional or not, the use made of the results of these entry tests has hampered the employment opportunities of black people. That use is a violation of 42 U.S.C. § 1981 and § 1983, unless it can be shown that the tests sorted out the best applicants for appointment. Chance v. Board of Examiners, supra; Carter v. Gallagher, supra; Castro v. Beecher, 334 F.Supp. 930 (D.Mass.1971), modified 459 F.2d 725 (1st Cir. 1972). This burden of validation rests with the defendants. Before addressing the question of whether the defendants have met that burden, one further point about the admission of blacks to the Fire Department should be mentioned. The Fire Department has not always employed residents who live as far from the City as 30 miles. Until 1955, in fact, the Department hired only City residents. The Department changed its restriction to residency within three miles of the City that year, then to five miles in 1958, ten air miles in 1963, and finally, in 1966, the Department relaxed the residency restriction to 30 miles. There has been some testimony that the liberalization of the limitation was occasioned by desire for a greater number of applicants. But more persuasive are the records of the fire board, which indicate that expansion was due, quite simply, to the Department’s desire to abide the wishes of its members, some of whom wanted to reside at ever greater distances from the City. Though restriction on residence for initial employment could have been retained without burdening those already employed who wished to move, the Board chose not to make the distinction between employees and applicants. And non-city residents took advantage of the relaxed residency restriction by applying for employment in the City Fire Department in great numbers. The year after the change from City residency to residency within three miles of the City, 5% of those on the eligible list were non-city people. And the evidence indicates a steady trend toward increased non-city presence on the eligibility list as the residency requirement was further relaxed. Since 1966 when the restriction was eased to 30 miles from the City, the non-city presence on the eligibility list has been greater every year than for any year that preceded 1966. The non-city examinees as a group score slightly higher on the written exams than the City people as a group, indicating an even greater dominance of appointment than the eligibility percentages reveal. And, as should be evident from the significant difference between the black percentage of the City and SMS A populations, the entry of more and more non-city people into the Department brought with it a decreasing percentage of black entrants. Non-city applicants to the Department, unlike their City counterparts, have been overwhelmingly white. Were it not for the adverse impact of the entry tests on blacks,. of course, the percentage of black entrants would still have matched the percentage of black applicants. Restricting initial employment to City residents, which defendants seem to suggest, while it would result in more black firefighters, would not rid the procedures of their illegality. Only a showing of job relation can accomplish that. Testing instruments which adversely affect one racial group must be shown to be valid instruments. Simply defined, test validity is a showing that there is a greater probability that high scorers will perform well on the job than will low scorers. The degree of probability is the degree of test validity. Cooper and Sobol, Seniority and Testing under Fair Employment Laws, 82 Harv. L.Rev. 1598 (1969). The Court’s duty to ensure that tests are “valid” ushers in considerations of psychology and psychometrics, about which the Court has been ably informed by all sides to this dispute. The origin of the various entry level tests used by the Fire Department has already been briefly described. Their mode of development leaves much to be desired. The tests prepared by the Civil Service Commission were prepared without benefit of a sound job description, a fact which seriously hampers, if it does not destroy, the tests’ ability to “measure the person for the job and not the person in abstract.” Griggs v. Duke Power Co., supra, 401 U.S. p. 436, 81 S. Ct. p. 856. And the personnel technician who composed the tests for the Commission did not draw on the expertise of the Fire Department training school staff, or of any other person knowledgeable about the qualifications for a successful firefighter, as he did for promotion exams. There is little need to detail further the transgressions of sound test construction practice which resulted in the locally prepared Fire Department exams. The Civil Service Commission staff head aptly summarized the status of these tests when he testified that he could not say whether or not the tests had rational validity. Somewhat the same situation prevails with respect to the PPA tests. The Civil Service Commission made specific inquiry to the PPA to determine whether a validation study had ever been made of their firefighter test and received a negative reply. Defendants introduced the report of an industrial psychologist, based on his study of the content of the 1971 firefighter exam, to the effect that the exam meets the requirements of the EEOC. But the EEOC guidelines he made reference to relate to the manner in which a test is to be developed rather than to evalution of the content of a specific test. In fact, the guidelines approve content validation studies only when empirical studies are not technically “feasible,” 29 C.F.R. 1607.5(a), a term which is defined as insufficient minority group members to run an empirical study, or lack of an unbiased measure of job performance. There is no indication that an empirical study was, by that definition, infeasible. The defendants’ more serious efforts to demonstrate the validity of their firefighter tests involved both content analysis by a firefighting expert and an empirical validation study by an industrial psychologist. The former analysis was made only of the 1971 exam. The expert described the test as of the general mental ability and mechanical aptitude type and concluded that the test was definitely job related. His comments amount to articulation of an assumption that the kind of aptitude which written general aptitude tests measure is a valid indicator of success as a firefighter. He cannot oe faulted for that assumption. It is common enough. But the law does not afford public employers the luxury of reliance on an untested assumption when the tests which proceed from that assumption adversely affect one racial ■ group. The crucial issue is whether the same type of psychological processes are involved in answering general aptitude questions of the type found in the test and in performing the duties of a firefighter. The firefighting expert agreed that he was not equipped to answer that question. The empirical validation study consisted of statistical analysis of correlation between firefighter test scores and scores on a test administered at the end of the six month fire school, which is the first assignment of all entering firemen. The fire school test scores were chosen as a criterion because they are objective, and because it was felt that, since fire school, is the first Fire Department assignment, success in fire school is, by definition, success on the job. It is clear that the exams administered at the end of fire school are based strictly on material that is presented during fire school. (It is just as clear that not all of the knowledge or skills one is expected to attain at fire school can be tested by a written instrument.) Defendants’ study indicates a statistically significant correlation between score on the written entrance exams and score on the fire school exam. Because the firefighter and fire school exams are of such different types, this validation study does not, at least, have the vice of testing the validity of performance on one exam through correlation with performance on an identical exam. However, there is much to be said for the proposition that success on an examination cannot be used as a criterion of validity for another examination, without distorting the correlation with test-taking ability variables. Though the testimony offered by plaintiffs to the effect that blacks as a class have poorer test-taking abilities than whites as a class is extremely weak, a survey of the literature regarding test validation suggests that using one test as a criterion for validity of another test is not a rigorous approach to validation. Given the haphazard origin of the firefighter tests used by defendants,.and the Court’s own perusal of the quality of those exams, it can only be concluded that if the tests were valid, it would only be by sheerest chance. That being so, the Court cannot accept a questionable procedure for empirical validation as sufficient to meet defendants’ burden. The careless manner in which the tests were compiled or acquired makes effective validation all the more necessary. III. All new firemen enter the Department as firefighters. There are five officer ranks above that of firefighter, and several specializations that a firefighter may be promoted to but which do not serve as prerequisites to officer promotion. The two dominant specializations are pump operator and emergency vehicle driver. There are time in grade prerequisites to eligibility for promotion to those specialities and each of the officer positions. All promotions are by competitive exam. Score on the competitive exam accounts for 60% of the final promotion score, supervisor’s efficiency ratings account for 30% and seniority in grade accounts for 10%. Plaintiffs object to the use of what they consider discriminatory promotion tests and efficiency ratings, alleging that the entire promotion system has the purpose and effect of perpetuating the effects of past discrimination. The time in grade requirements serve as obvious hurdles for those who were not given the opportunity until late in the Department’s history to become firemen. A new fireman cannot be tested for emergency vehicle driver during his first year or pump operator until he has been a firefighter for three years, and cannot be tested for Lieutenant, the first officer step, before serving five years in the Department. Each successive officer step requires two years in grade in the next lower officer position, until one attains the rank of Deputy Chief from which promotion to Chief of the Department requires only six months in grade. These time in grade requirements bar testing for the higher position and not just promotion to it. If a test is held only once a year, as many are, the time in grade requirement could actually amount to six years for Lieutenant or three years for other officer positions, depending on date of entry and date of testing. The time in grade requirements provide no competitive advantage to any fireman, in the sense of advantage in a head to head contest. They do remove certain people from the contest. Because blacks could not enter the Department until 1953, and because of heightened attrition rates for blacks in the 1950’s, there are fewer blacks able to compete for higher level positions. Time in grade requirements place a premium on experience and blacks are not in a position to have as much experience as whites because of the discriminatory practices of defendants. By retarding the progress of all firemen, the requirements reinforce patterns of racial disparity from rank to rank that originated in illegality. This injury is not individualized in the traditional sense. Although plaintiffs have not pointed out a black fireman who applied to the Department before 1953, and who now suffers because time in grade requirements hold him back, it is obvious that each black fireman has been injured by discrimination against other blacks who may have been his cohorts or superiors. The practices of the Department in the past have been, and many of the problems and misunderstandings in it today are, racial. There is no rule of .law that requires the Department to apportion its officer positions proportionally between the races. But the law does require that no barrier to such proportion be erected. The time in grade requirements draw out the effects of the old discrimination. In so doing they harm every black in the Department and must, therefore, be shown to be called for by business necessity. Robinson v. Lorillard, 444 F.2d 791 (4th Cir.), cert. denied, 404 U.S. 1006, 92 S.Ct. 573, 30 L.Ed.2d 655 (1971). The requirement that discriminatory employment practices be justified with a showing of business necessity reflects the law’s general approach to employment equality, of which the previously discussed test validation requirement is but a part. An employment practice, whether a test or not, which adversely affects minority groups must be eliminated if it is not necessary to the conduct of the business. Griggs v. Duke Power Co., supra; Robinson v. Lorillard, supra; United States v. St. Louis-San Francisco Ry. Co., 464 F.2d 301 (8th Cir. 1972). But while courts have come to depend on science in determining test validity, no such assistance is available in passing on the necessity of other employment practices. When the “business” is protecting the lives and property of a dependent citizenry, a Court should be especially leery of reconstructing employment practices which are ostensibly designed to increase the professional competence of the Department. Vulcan Society v. Civil Service Commission, 5 FEP eases 699 (S.D.N.Y.1973). The employer’s resistance to change in the employment practices is much more appealing than if it were presented in the guise of lost profits or increased price of the product. Robinson v. Lorillard, 444 F.2d, at 799; Johnson v. Pike Corp., 332 F.Supp. 490 (C.D.Cal.1971). The record provides little guidance on the matter of justification for the time in grade requirements. Testimony from two previous members of the Board of Fire Commissioners indicated their support for reducing the requirements. But their desire to lower the period resulted more from a belief that it would help blacks than from studies or personal knowledge indicating that it would not decrease Department efficiency. The current Chief of the Department and the Executive Secretary of the fire board personally believe that a decrease to three years in the time in grade requirement for Lieutenant would be desirable, and the Department currently has such a proposal under consideration. No inference can be drawn from the Department’s inertia on the other time in grade requirements, since the unions’ interest in this matter leaves the Department something less than a free agent. A former senior chief in the Fire Department testified that the time in grade requirements were necessary and even indicated that a somewhat longer period was called for between Captain and Battalion Chief. Defendant’s firefighting expert stated generally that a time in grade requirement was necessary to gain important technical knowledge and develop personal qualifications. The testimony by individual plaintiffs that has concerned the value of holding acting positions, supports the time in grade requirements. The testimony indicates there are skills involved in the higher positions that a junior employee is not likely to possess. Most of the evidence supporting reduction in time in grade requirements points toward reduction of the five year requirement only, yet it is the shorter requirement for the higher ranks that more directly impinges on black efforts to gain immediate representation at higher levels. Moreover, each of the time in grade requirements is but a formality to the average fireman for whom promotion normally takes much longer. The same figures which document this irrelevance of time in grade requirements to most firemen also demonstrate that reducing the time in grade requirements would not lower the floodgates to large numbers of inexperienced officers. It is true that one inexperienced officer at the. fireground is one too many. But those individuals vyho are able to compensate for the decreased seniority credits and lower efficiency ratings -that are concomitant with short time in grade, cannot be said to be of anything but high caliber if we are to have any faith in the promotion system. Because the time in grade requirements reinforce patterns for which discrimination is responsible and because no serious effects from their careful modification are likely to occur, the Court concludes that some such modification must be made. A potentially more serious impediment to large numbers of blacks is the written promotion exam. Plaintiffs rely on statistical data from the City’s Community Relations Commission and expert testimony for support of the proposition that blacks have fared poorly in promotion, and that poor performance of blacks is inevitable on written tests in general, or these tests in particular. The Community Relations Commission work proved unusually uninformative and the expert testimony was flatly contradicted by the facts. Because of the controversy generated during trial regarding evidence, including expert testimony, introduced by plaintiffs which was said to defile blacks, it would be well to note specifically those portions of the evidence which demonstrate clearly that blacks have done at least as well as whites on the Fire Department promotion exams. Due to the comparatively recent entry of blacks into the Department and the time in grade requirements, the only promotion exams which blacks have taken in significant numbers are the pump operator, Lieutenant and Captain exams. In examination for each of these categories, black and white performance has been substantially equal. For the most recent six years, blacks have passed the pump operator written exam at a 24.7% rate, whites at a 24.9% rate. For six selected years, blacks have passed the Lieutenant exam at a 17.2% rate, whites at a 16.2% rate. And for six selected years, blacks have passed the Captain exam at 77.3% rate and whites at a 49.-9% rate. Because typically there are more passers than there are open positions, a comparison of scores on the exams is probably more informative than the' .comparison of pass rates. But the pass rates suggest scores on the promotion exams ai’e also comparable. Blacks do just as well as whites whether analysis is made of pass rates or averages of the scores. The accuracy and import of the promotion test statistics which defendants have presented is not seriously disputed by plaintiffs. They indicate in their brief that “there is little indication that one group performs better or worse than the other.” But they contend that for two reasons the performance of blacks would be better than that of whites if the tests were fair. Their principal argument is that the adverse impact of the entrance examination has masked the effect of the promotion exams. Plaintiffs could not contend that only the more qualified blacks survived the entrance exam without admitting the validity of that examination. A contention, on the other hand, that the entrance examination screened out all but the best black test takers fails for a different reason. The equal performance of both races on the promotion exams might only indicate that those promotion exams effectively neutralized test-taking skills. One would have to postulate the invalidity of the promotion examinations in order to conclude that equal pass rates implied adverse impact. The Court will not shift the burden to defendants to prove the validity of the promotion exams on the basis of such a postulate. Chance v. Board of Examiners, 330 F.Supp. 203 (S.D.N.Y.1971), 458 F.2d 1167 (2d Cir.), on which the plaintiffs must almost exclusively rely for this proposition, is distinguishable from the instant situation in two very important respects. First, in Chance all of the tests involved were of the same basic type. In the instant suit, the entrance test is meant to discern aptitude whereas the promotion tests are directed in large part toward a demonstration of acquired knowledge. That difference makes it impossible to assume that the defects which were found in the entrance exam also inhere in the promotion examinations. Secondly, the court in Chance dealt with a pyramiding of tests, each having an adverse impact. It was for this reason that the court described a “magnification” of statistical discrepancies. Plaintiffs here are not asking the Court through reference to the test that served a screening function to make a finding of adverse impact from moderate statistical, discrepancy. Rather, plaintiffs ask the Court to hypothesize an adverse impact on the basis of statistics which show a clearly equal performance by both races. As noted above, the Court does not feel the law compels or justifies such a decision. The other reason plaintiffs suggest that the Court should infer adverse impact from equal performance on the tests is that black Fire Department officers, as a group, have more formal education than their white counterparts and that common sense suggests they should do better on the promotion exams for that reason. But while common sense may suggest that additional formal education may be an ingredient in success as a fire officer, it is certainly not the only ingredient. And if there is one thing which the testimony of psychometricians in this case has made clear, it is that each element of success in the position must be weighed and compared with all others in determining what role it should play in the testing process. To single out one factor and suggest that it should be reflected in high pass rates is to suggest the construction of an invalid test. If the plaintiffs’ argument is that additional formal education necessarily has, though it should not, a marked effect on test performance, then this contention also is untenable unless the Court assumes the invalidity of the promotion exams. For the reasons stated above, the Court will not do so. There is one other matter- pertaining to performance on the promotion tests which should be mentioned. The discrimination against blacks that occurred in the Department on a wide scale in the early years took the form, in some cases, of deprivation of study material and unequal assignment of acting positions. Since promotion exams test acquired knowledge, access to study materials could materially affect performance on the exams. And there is convincing testimony that holding an acting position is excellent preparation for the exam for that higher position. The denial of access to study materials seems to have been a part of the general ostracism of blacks in some firehouses. Therefore, though the testimony does not reflect the fact, we may assume that the practice may once have been widespread. But the Court is unable to determine the impact on promotions from this problem, which happily does not seem to have existed in more recent years. The Department has taken steps to make study material available to all members of the Department on an equal basis. That being the case, and especially in light of the consistent results of Fire Department promotion exams over a span of years, the Court cannot conclude that blacks would have done better on the promotion exams but for this discrimination. Denial of acting positions is an allegation that has been sparsely documented. Acting positions are generally given to the senior man. Some of the specific charges of denial have been shown to be baseless, and there is testimony that arbitrary parcelling out of acting positions has been at the expense of some whites as well as some blacks. The Court finds that there was no denial of equal rights to acting positions except in isolated instances, and that victims of such out-of-order appointments were sometimes whites. Plaintiffs attack the system by which supervisor’s efficiency or performance ratings are assigned to each fireman. The efficiency rating procedure has been suspended for administrative reasons while a new system is enacted. The end product of the old system has been the subject of extensive proof. Plaintiffs allege that an analysis of the percentages of black and white candidates for promotion who have maximum efficiency ratings indicates a substantial discrepancy in favor of whites. Defendants have introduced data indicating that there has been no statistically significant difference between the averages of efficiency ratings of such candidates. They argue that maximum efficiency ratings have no special significance and point out that, since efficiency ratings generally reflect time in grade, the relatively junior blacks could be expected to experience efficiency ratings below the maximum more frequently than whites. It is true that there is a statistically significant correlation between efficiency ratings and seniority in grade. Statistical evidence to this effect was personalized by the efficiency history of several witnesses which showed a progression as the individuals gained seniority in grade. Fire Department procedures encourage this correlation by requiring efficiency ratings to be given at a minimum level the first time a newly promoted person is graded. But the record indicates that black candidates for promotion have more seniority in grade on the average, not less, than the whites with whom they compete for promotions. Because of the correlation between efficiency ratings and seniority we would expect blacks to experience maximum efficiency ratings more frequently than whites rather than less frequently. Moreover, if the discrepancy in maximum ratings were explainable by these short periods in grade, there is no reason not to expect a difference in average ratings as well. And there is no such difference. The conclusion must be that while blacks have not been graded lower on the average than whites, they have been graded differently. Apparently, blacks have experienced neither high nor low scores with the frequency of whites. Thus, the efficiency ratings themselves do not answer the question of whether black promotion opportunity has suffered because of the efficiency rating system. The seniority situation is somewhat akin to efficiency in that figures regarding the potential impact of this factor are unsatisfying. The Court is forced to conjecture about whether this potential is sufficient to have had an adverse impact on black promotion. One-tenth of the total promotion grade depends on seniority in grade. Seniority credits are computed on a scale of 100, with 70 being a minimum. The 30 other seniority points are gained at the rate of two per year for the first five years, one per year for the next five, and one-half per year thereafter. Ten percent of the total seniority points are added into the total promotion score. Because of the inverse graduation of the seniority credits, it is difficult to generalize about their effect. Blacks who entered the Department five years after whites would be penalized in competition for promotion, but that penalization would depend on when the individuals were competing. For example, a white who entered the Department in 1944 would have had seniority credit of 8.75 on the 1959 Lieutenants’ exam. A black who entered the Department in 1954 would have had seniority credit of 8 on that same exam. There would be less of a discrepancy in competition for the same promotion five years later. Thus, the fact that there could be an effect is apparent, but the dimension of that potential impact is not at all clear. There are large numbers of whites in the Department who entered before the first blacks were admitted. The fact that one entered the Department prior to 1953 does not imply that one is benefitting in promotion competition from the earlier entry. Seniority for promotions is job seniority. But there is evidence that large numbers of pre-1953 entries are holding the same position they held 20 years ago, and thus are enjoying the fruits of entry into the Department at a time when it excluded blacks. And an officer need not have attained his present position prior to 1953 to be benefitting from seniority that blacks were not able to acquire. If a Lieutenant attained his present position in 1958, for example, he attained it before any black could, due to the combined effect of the pre-1953 exclusion and the time in grade requirement. All white firemen in these categories are benefitting unjustly from their seniority in competition with blacks for promotion. Defendants have effectively demonstrated that this potential for substantial adverse impact from either seniority or efficiency has not been realized, as of yet. If promotions had been based strictly on written test score, there would have been, over a seven-year period, three additional black pump operators, and, over an eight-year period, one additional black Captain and no additional black Lieutenants. While adding one more black Captain to the current complement of five would be a significant percentage increase, it cannot be said that in a Department with well over 100 Captains, an increase of one black Captain substantially alters the racial make-up of that rank. And the same is true for the three additional black pump operators. But the potential for impact on the racial composition of the Department inheres in the seniority and efficiency figures discussed above. With seniority it can be said that blacks are in a position to be victimized through competition with whites who gained their job seniority at a time when blacks were excluded from the Department or were ineligible for the job because of the prior exclusion. With efficiency, it can be said only that blacks are graded differently. The potential for substantial adverse impact may never be realized, but the possibility that it will may diminish the expectations of some black firemen, and should lead this Court to guarantee that it will not. Moreover, though these promotion factors have played little part in the present racial make-up of the Department, it is clear that several black firemen have lost promotions due to the seniority situation and differing efficiency ratings. For these individuals, the fact that the practices do not bear heavily on their class as a whole is no consolation. Defendants have not proven that either the efficiency rating system or the use of seniority credits toward promotion is necessary to the conduct of the business of the Fire Department, a burden which they bear. Promotion in the Baltimore City Fire Department is a composite of success on written examinations, ratings by one’s supervisor, and longevity in grade. The application of all these factors has resulted, 20 years after the first black fireman entered the Department, in racial compositions within the Department that vary widely among the ranks. Excepting the new emergency vehicle driver position, the black percentage of each position decreases as one progresses up the line from firefighter to Chief. As a method of evaluating the racial impact of the overall promotion system, defendants’ statistician has computed the expected racial composition of the Department if promotions had been administered fairly since 1953, and compared that table of expectations with the present composition of the Department. If the emergency vehicle driver position is excluded (as it should be since there has been only one test for this new position and most holders of the title were grandfathered in without entering into competition for the position), the resulting discrepancies between the races in the various positions are not statistically significant. But these calculations, based on comparison of only those men who entered since 1953, are faulty. They presuppose that no blacks can be expected to have progressed to the point of those whites who entered before that date, and thereby posit departmental longevity as the most important variable in determining the rank one holds within the Department. That principle itself is a serious indictment of a Department which prevented blacks from having more than 20 years longevity. Thus, the statistically insignificant differences in Department racial composition, if one controls for entry date, really only describe phenomena already noted: that performance on the written promotion exams has been about the same and that the efficiency and seniority components of promotion have not appreciably altered this essential equality. The defendants’ calculations describe a system that has been operating objectively. But they disregard the inescapable fact that white control of the upper echelons of the Department is disproportionate to white presence in the Department and that this is due to the total exclusion of blacks until 1953 and to a system so structured that the effects of the exclusion are reflected in the composition of the Department 20 years later. The time in grade requirements exert a drag on black ascendance in the Department. The efficiency system has been applied differently to blacks than to whites. The seniority system has penalized some blacks and has potential for doing so to many more, perhaps even to the extent of distorting the objective operation of the promotion system. This system does not amount to the equal protection of the laws mandated by 42 U.S.C. § 1981 and § 1983. Allen v. City of Mobile, 331 F.Supp. 1134 (S.D.Ala.1971), 466 F.2d 122 (5th Cir. 1972); Carter v. Gallagher, supra; Griggs v. Duke Power Co., supra. IV. Defendants have continued to contest the propriety of the Court’s decision to cause this action to be maintained as a class action on behalf of the class described at the outset of this opinion. The gist of their continuing objection is a supposed failure of the four officer litigants to effectively represent all members of the class. Had the Court not been assured by the conduct of this litigation that its previous determination to have it maintained as a class suit was proper, that determination would have been modified or amended. Rule 23(c)(2), Fed.R.Civ.P. This observation is not made in needless refutation of defendants’ contention, nor in an attempt to alter later determinations of the res judicata effect of this decision. See Cherner v. Transitron Electronic Corp., 221 F.Supp. 48 (D.Mass.1963). Rather, the Court wishes to make clear that its attempt to tailor relief to those members of the class who have borne the brunt of a particular inequity, should not be interpreted as a belief that the litigants were not a coherent class or the named plaintiffs did not provide effective representation. The fact that an action is grounded in wrongs common to the class members does not mean that certain of the class members may not have been harmed in ways others were not. For the Court to wield its equitable powers without regard to where the harm hit would be improper. In employment situations, courts have often been called upon to tailor their injunctive relief narrowly, for example to make the precise adjustment to seniority systems called for by the evidence. United States v. Chesapeake and Ohio Ry. Co., 471 F.2d 582 (4th Cir. 1972); United States v. St. Louis-San Francisco Ry. Co., 464 F.2d 301 (8th Cir. 1972); Hicks v. Crown Zellerbach Corp., 319 F.Supp. 314, modified 321 F.Supp. 1241 (E.D.La.1970). Such precision in formulating a proper injunction does not indicate that the class was improperly formed. “[T]he Court under F.R.Civ.P. 23 has the duty, and ample powers, both in the conduct of the trial and relief granted to treat common things in common and to distinguish the distinguishable.” Jenkins v. United Gas Corp., 400 F.2d 28, 35 (5th Cir. 1968). Employment discrimination suits are frequently pursued on behalf of classes composed of both employees and non-employees. See e.. g., Commonwealth v. O’Neill, 348 F.Supp. 1084 (E.D.Pa.1972). In such cases, the relief that is afforded at the entry level necessarily benefits the prospective employees more directly, than those already hired. The Court must make its remedy comport with the specific harm that has been shown. Intervenors argue that the Court should not compensate blacks in the Fire Department for harm that may have befallen other black persons. Plaintiffs counter that racial discrimination is inherently class discrimination and thus relief is proper if it goes to any member of the class. Both positions are too facile. Class actions afford no excuse for indiscriminate relief. And yet, as previously noted in discussion of the time in grade requirements, the nature of racial "discrimination and the conditions in the Fire Department may combine to render injuries directly suffered by some blacks indirectly harmful to others. The Court has fashioned relief with both of these principles in mind. This Court has neither the intention nor the authority to supervise the operation of the Fire Department. When requested, it does have the responsibility to see that the procedures for hiring and promoting firemen are within the bounds proscribed by applicable constitutional and statutory provisions. In carrying out that responsibility, the Court would be remiss in not commenting on several aspects of this litigation. Above the din of battle, one clarion call comes through — the service and expertise provided the residents and business community of Baltimore City by the Fire Department. With one voice all witnesses — members and nonmembers of the Department — have recognized the high quality of fire protection available to the City and the fact that racial problems which have beset the Department’s personnel matters have in no way affected the performance of the Department. The relief provided herein does not imply a lowering of those high standards, but rather an improvement of those standards to make certain they determine, without discrimination, who is and who is not qualified, hopefully resulting in bolstering the morale of all firemen by removing impediments to unity in the Department. High standards of performance were also evident in the work of all counsel in presenting the issues and evidence necessary to enable the Court to consider the merits of the case. The Court is especially indebted to the City Solicitor, who, with unusual perseverance, expertise and good humor, sought out the facts that the plaintiffs could not, or would not, produce, enabling the Court to arrive at an informed conclusion. The entrance procedures must be purged of discrimination through validation of the firefighter test. The new testing procedures must center on a validated examination, excluding the penmanship examination and the agility component in the final score. The penmanship examination has been proven to be superfluous in the last two years, and the agility test stems from old, and misguided efforts to increase the number of blacks in the Department, efforts which have no place in the non-discriminatory procedures the Department must inaugurate. Until the Fire Department validates the firefighter tests or acquires' tests which are valid, hiring cannot be based entirely on the results of such tests. But though using the test to make fine distinctions between men ranking closely on the list would be inappropriate, the test is a logical and adequate method of screening the applicants to the Department. The six month fire school that immediately follows entrance into the Department will ensure that the screening process will produce qualified firefighters. The Court cannot honor plaintiffs’ request for hiring quotas. When racial classifications are imposed by the government, other than as remedies to court suits, they are subject to the “most rigid scrutiny.” Korematsu v. United States, 323 U.S. 214, 216, 65 S.Ct. 193, 89 L.Ed. 194 (1944). There have been suggestions that such classifications are per se illegal. Loving v. Virginia, 388 U.S. 1, 13, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), concurring opinion; McLaughlin v. Florida, 379 U.S. 184, 198, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964), concurring opinion. And although the full Court has not accepted such a categorical prohibition, the standards which the Supreme Court has applied to this suspect classification seem as rigorous in practice as the flat ban would be. Despite its concern with racial classifications, the Supreme Court has not dealt with the granting of favors or the creation of rights on a racial basis as part of a court’s remedial powers. In Swann v. Charlotte-Mecklenburg, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed. 554, (1971), the Court stressed the traditional breadth of a trial court’s remedial powers in fashioning a cure for the illegality of segregation. But the duty of a court to root out the vestiges of school segregation is not precedent for compelling public employers to hire on a racial basis, even as a remedy for past discrimination. Carter