Full opinion text
MEMORANDUM OPINION FERGUSON, District Judge. Mexican-American individuals comprise 25.8% of the general population of the City of Santa Ana but only 9.2% of the police officers employed by the Santa Ana Police Department and only 4.5% of the firefighters employed by the Santa Ana Fire Department. In an effort to rectify this disparity, plaintiffs Lawrence Felix and the League of United Latin American Citizens (“LULAC”) have filed a class action civil rights suit alleging discrimination by the City of Santa Ana and several named city officials in the process by which police officers and firefighters are selected for employment. Specifically the plaintiffs allege discrimination in the recruitment practices, the use of the California Short-Form Test of Mental Maturity, 1963 revision (“Short Form”), the use of the Fire Aptitude Test, Form 45 (“Form 45”), the imposition of a fixed height requirement, and the employment of a high school education or equivalency requirement. The defendants concede the disparity between Mexican-Americans’ representation in the general population and their, representation in the police and fire departments, but deny that Santa Ana’s general population statistics are an appropriate yardstick for comparison. Instead they offer Orange County labor force statistics as the relevant standard. Moreover, they believe that the hiring procedures they have relied upon, although occasionally flawed, have developed to the point that they might serve as a model for other jurisdictions. Indeed, Santa Ana has exercised creative leadership in the development of personnel techniques which other jurisdictions would do well to emulate. Moreover, the defendants have exhibited an exemplary commitment to the development of personnel policies which might assure equal opportunity and quality police and fire protection. Nonetheless, although Santa Ana has proceeded in all good faith, the plaintiffs have presented convincing evidence that the recruitment policies and some of Santa Ana’s hiring policies improperly operate to exclude Mexican-Americans from positions with the police and fire departments. The plaintiffs have demonstrated that these policies have developed because of a misconception of the requirements of Title VII and the civil rights statutes and a misapplication of the EEOC Guidelines. As is so often the case in employment discrimination litigation, an orderly examination of the principal issues requires presentation of a complicated factual picture. Many of the facts relevant to the disposition of this lawsuit were stipulated to by the parties; others were developed in the course of a seven day trial. I. Factual Background. 1. This action was filed in March of 1974 pursuant to Title VII of the Civil Rights Act of 1964 as amended in 1972 (42 U.S.C. § 2000e, et seq.) and pursuant to the general civil rights statutes, 42 U.S.C. §§ 1981, 1983. 2. Plaintiff Lawrence Felix is a Mexican-Ame'rican citizen who applied for employment as a uniformed patrolman with the City of Santa Ana in the years 1969, 1972, and 1973. He participated in oral interviews and took written and physical examinations, but was denied employment in each of the years he applied. 3. On December 20, 1974 plaintiff Felix was certified by the court as the representative of a class composed of: “(a) all Mexican-Americans who have applied for employment as police officers or firefighters with the defendant City of Santa Ana within three years of the commencement of this action; (b) all Mexican-Americans who presently are applicants for such employment; and (c) all Mexican-Americans who may apply for such employment in the future, who apply during the effective term of apy final decree this Court may issue . . . 4. Plaintiff League of United Latin American Citizens (“LULAC”) is a membership organization active in the pursuit of the civil rights of its membership and of Mexican-Americans in general. It is suing on behalf of one or more of its Mexican-American members who are past applicants for employment with either the police or fire departments in Santa Ana. 5. Defendant City of Santa Ana is a chartered municipal corporation located in Orange County and incorporated pursuant to the laws and Constitution of the State of California. The city performs many functions including the prevention, suppression, and extinguishment of fires within the city limits and the prevention of crime and maintenance of public order within the city limits. The former functions, of course, are performed by the Santa Ana Fire Department; the latter by the Santa Ana Police Department. 6. Defendant Vernon Evans is the Mayor of Santa Ana. Defendant Bruce C. Spragg is the City Manager. Defendant Donald Bott is the Personnel Director. Defendant Raymond C. Davis is the Police Chief. Defendant Eugene Judd is the Fire Chief. 7. The principal offices of defendant City of Santa Ana are located within the Central District of California. All individual defendants reside within the Central District, and the employment practices questioned in this litigation were implemented in the Central District. 8. Federal jurisdiction and venue with respect to the Title VII component of this action are based upon § 706(f)(3) of that title, 42 U.S.C. § 2000e-5(f)(3). Jurisdiction and venue for the 42 U.S.C. §§ 1981, 1983 aspects of this litigation rest upon 28 U.S.C. §§ 1343(3) and (4) together with 28 U.S.C. §§ 1391(b) and (c). 9. As of May 31, 1975, Mexican-Americans constituted 9.2% of the uniformed work force of the Santa Ana Police Department and 4.5% of the Santa Ana Fire Department. The specific numbers are as follows: (a) Police Department Total 249 Mexican-American 23 (b) Fire Department Total 221 Mexican-American 10 10. According to the 1970 census, the population and labor force statistics for Santa Ana and for Orange County are as follows: (a) General population, Santa Ana Total 146,247 Mexican-American . 37,732 (25.8%) (b) General population, Orange County Total 1,420,386 Mexican-American 160,168 (11.3%) (c) Civilian labor force, Santa Ana Total 61,736 Mexican-American 13,289 (21.5%) (d) Civilian labor force, Orange County Total 575,570 Mexican-American 56,936 (9.9%) 11. Mexican-American applicants have been recruited in numbers far below what might be expected for a city with a Mexican-American population exceeding 25% of the total. No statistics were available showing the ethnic breakdown of applications received for uniformed positions in the police and fire departments for the years prior to and including 1971. The parties stipulated, however, that the percentage of Mexican-Americans appearing for the written tests in the years 1972-74 approximated the percentage of Mexican-American applicants. 1972 1973 1974 (a) Fire Department Total recruits 220 117 571 Mexican-Americans 34(15.5%) 10(8.5%) 99(17.3%) (b) Police Department Total recruits 144 162 810 Mexican-Americans 8(5.5%) 14(8.6%) 128(15.8%) Given recruitment statistics such as these, it is hardly surprising that the percentage of Mexican-Americans employed in the police and fire departments falls far below the percentage of Mexican-Americans in the city’s general population. Contrast, for example, the fact that 24.7% of the craftsmen and 27.6% of the ■ .laborers employed by the City of Santa Ana as of June 1, 1973 were Mexican-Americans. At the outset, it is curious that the city could attract so many Mexiean-Americans for lesser paying jobs and so few for higher paying jobs. Defendants insist that this disparity is explained by the “fact” that the “natural” labor market for fire and police positions is Orange County, not Santa Ana, and that the percentages of Mexican-American applicants support that analysis. Moreover, the defendants assert that at least since the middle of 1973, they have organized a laudable recruitment program specifically designed to reach groups protected under Title VII. Specifically, the defendants point to the employment of Mr. Joseph Canton in July, 1973 as a personnel analyst who has been designated specific job functions in the city’s “outreach” recruitment program. Although Mr. Canton’s recruitment efforts in periods when no vacancies were available in the police and fire departments were relatively minor, when vacancies did become available, Mr. Canton launched a full-time recruitment effort, and he was assisted by four or five minority persons in the police or fire departments and by the staff of the Personnel Department. These efforts ranged from personal contacts, newspaper, radio, and television advertisements, and the dissemination of brochures. Moreover, Mr. Canton made special efforts to involve organizations prominent for their representation of minority groups, such as the plaintiff LULAC. The defendants argue, therefore, that the failure to attract Mexican-American applicants proportionate to that group’s representation in the city population is traceable to economic factors beyond their control, i.e., a labor market broader than the confines of the city. This court nonetheless finds that the low percentage of Mexican-American applicants is traceable to other factors. First and foremost is the fact that the defendants concentrated their recruitment efforts outside the City of Santa Ana. Each of the witnesses who spoke to this issue testified that the majority of the defendants’ recruitment efforts were directed outside the city. For example, Captain Stebbins testified that the recruiting efforts for the police department were concentrated in the southern California area, most particularly in Los Angeles County, Orange County, and Riverside County. The evidence indicates that the persuasive impact of the recruitment efforts of the city have been felt in the Orange County area outside the city. It is not surprising, therefore, that in 1974, 84.1% of the applicants for positions with the police department and 71.6% of the applicants for positions with the fire department resided outside the City of Santa Ana. Thus the percentage of Mexican-American applicants is closer to the county-wide statistics than to the city statistics. This court finds that the primary cause for this phenomenon has been the nature of the recruitment. Other factors which have served to deter Mexican-American applications have been the imposition of height and high school degree requirements (discussed infra ) and a poor reputation in the Mexican-American community. Indeed Mr. Canton admitted that his contacts with the Mexican-American community and with its leadership revealed such substantial suspicion of the city’s attitude toward Mexican-Americans that the idea of forming a minority advisory group to assist the city in minority recruitment for the fire department was rejected. Mr. Canton testified that his contacts with individuals in the community revealed a suspicion about the depth of the city’s commitment to minority hiring and a belief that the city had a “poor track record” in this area. A recruitment program concentrated in Santa Ana could have effectively served to combat this reputation. Defendants’ efforts to recruit Mexican-American applicants for police and fire positions can only be justified in terms of Orange County population statistics. As is discussed in section III, infra, that position cannot be reconciled with the philosophy and objectives,of the Civil Rights Acts. 12. In 1973, and the years prior thereto, all applicants for police officer positions in Santa Ana were required to be at least 5' 8" in height. The requirement was eliminated in 1974. A 5' 7" height requirement was imposed prior to 1973 for the firefighter position, but was eliminated in 1973. The defendants conceded that they were unaware of any validation studies which demonstrate that a height requirement is job-related or is a valid predictor of job performance. The parties stipulated that a 5' 7" height requirement disqualified approximately 13.8% of the white male population and approximately 42.9% of the Mexican-American male population. A 5' 8" requirement disqualified approximately 23.7% of the white male population and approximately 56.8% of the Mexican-American male population. In an astonishing bit of testimony, an employee of the City of Santa Ana advanced the defendants’ position that the height requirements (which automatically operate to exclude between 42.9% and 56.8% of the Mexican-American male population) have not been a barrier to the recruitment of Mexican-Americans. This remarkable conclusion was said to be supported by the fact that the witness’ “personal review of our employment files [disclosed] that no Mexican-American applicant has ever been denied or rejected for employment in the police and fire department during the last three years in question here because of . . .a failure to meet a height requirement.” But all the employment file search demonstrates is that when a city circulates job descriptions which state minimum height requirements (as the city did here), those who do not meet those requirements will not apply. The failure of “short” Mexican-Americans to apply for these positions indicates that they read job bulletins, not that they are uninterested. This court finds that the height requirement constituted a substantial barrier to the recruitment of Mexican-American applicants for positions with the Santa Ana police and fire departments. Mr. Charles Guenther, a personnel analyst for the City of Santa Ana, conceded that the height requirement is an inaccurate measure of the physical skills necessary for the positions in question. The court has no way of determining how many qualified applicants were deterred from applying, but considering the arbitrary character of the requirement and the substantial segment of the population it operated to exclude, this court is forced to conclude that significant numbers of qualified Mexican-Americans were deterred from applying. 13. All applicants for police officer and firefighter positions in Santa Ana have been and are required to possess a high school degree or “G.E.D.” equivalency diploma. Indeed, California Government Code § 1031(e) requires that police officers be high school graduates or pass the “G.E.D.” equivalency exam. The parties stipulated that “in Orange County, according to the 1970 census, 37.8% of the Mexican-American males aged twenty through twenty-four do not have a high school degree or equivalency; for white males of the same ages in Orange County, the high school degree or equivalency requirement eliminates 14.6%.” The defendants stipulated in the pretrial order that they were unaware of any validation studies which demonstrate that the high school degree is a “job-related, valid predictor of job performance” for the position of firefighter. No such “studies” were presented at trial with respect to the police officer positions. On the other hand, there was evidence presented to support the proposition that the reading level required to comprehend the firefighter training manuals was at the ll-12th grade level. Moreover, defendants’ expert, Dr. Wollock, after conducting an extensive job analysis including 164 interviews with police officers in 30 jurisdictions, concluded that the high school diploma requirement or equivalency standard is “a very reasonable standard for a police officer.” This conclusion coincided with that of the Task Force Report of the President’s Commission on Law Enforcement and the Administration of Justice which recommended as “[a]n appropriate first step” that “all departments . . . immediately establish a requirement that no person be employed in a sworn capacity until he has received a high school diploma and has demonstrated by appropriate achievement tests the ability to perform successfully college level studies.” Moreover the Commission itself observed that: A policeman today is poorly equipped for his job if he does not understand the legal issues involved in his everyday work, the nature of the social problems he constantly encounters, the psychology of those people whose attitudes toward the law differ from his. Such understanding is not easy to acquire without the kind of general knowledge that higher education imparts . . Police candidates must be sought in the colleges, and especially among liberal arts and social science students. Despite this impressive authority, the plaintiffs submitted evidence which casts considerable suspicion on the utility of a high school education requirement. Most significant was the testimony of Mr. Guenther who offered the disturbing and uncontradicted conclusion that “until very recently, at least, the Santa Ana Unified School District would grant a high school diploma to anyone who achieved a reading skill level of the fifth grade level.” This testimony, however, does not address the question of the capabilities of the typical high school graduate in Santa Ana or the overall quality of the educational experience for the typical graduate. Although Mr. Guenther’s testimony on this point is disquieting in the extreme, it is not a sufficient reed upon which to decide that the high school experience in Santa Ana is so radically dissimilar from that of other jurisdictions as to render the Presidential Commission’s conclusions inapplicable. Nor is there evidence that the continuation of a high school requirement would discriminate against Mexican-Americans. The evidence produced at trial disclosed that approximately 40% of the high school student population in Santa Ana are Mexican-Americans. This figure which exceeds the Mexican-American percentage of the total population by some 15% suggests that a relatively large proportion of Mexican-Americans are about to receive a high school diploma. This court finds, therefore, that the continuation of the high school degree requirement would not have an adverse impact on Mexican-Americans. The extent to which the imposition of the high school requirement was justified in past years is discussed in section V. 14. In general, the overall acceptance rates do not reveal a pattern of discrimination against those Mexican-Americans who have applied for these public safety positions. The comparative acceptance rates for the firefighter position in the years 1972-1974 are as follows: Mexican-Americans White and all others Whites 1972 Applied 34 186 160 Hired 2 17 13 Acceptance rates 5.9% 9.1% 8.1% 1973 Applied 10 107 86 Hired 3 13 13 Accepted rates 30.0% 12.1% 15.1% 1974 Applied 99 472 392 Hired 2 15 10 Acceptance rates 2.0% 3.2% 2.6% 1972-74 combined Applied 143 765 638 Hired 7 45 36 Acceptance rates 4.9% 5.9% 5.6% Mexican-American applicants constituted 15.7% of the applicant population and 13.5% of the total appointments. 15. The comparative acceptance rates for the position of police officer in the ire as follows: 1972-74 a Mexican-Americans White and all others Whites 1972 Applied 8 136 130 Hired 1 13 12 Acceptance rates 12.5% 9.6% 9.2 % 1973 Applied 14 148 143 Hired 1 12 12 Acceptance rates 7.1% 8.1% 8.4% 1974 Applied 128 682 611 Hired 9 38 34 Acceptance rates 7.8% 5.6% 5.6% 1972-74 combined Applied 150 966 884 Hired 11 63 58 Acceptance rates 7.3% 6.5% 6.6% rican applicants constituted 13.4% of the total applicant population, and Mexican-Americans accounted for 14.9% of the appointments. Mexican-Amei 16. The hiring procedure which leads to the appointment of Santa Ana uniformed police officers and firefighters is administered by the city’s personnel department. Applications are normally processed once per year for the police department and once every two years for the fire department. The filing period for the positions in question lasts from three to six weeks. After it closes, applications are screened to eliminate those who fail to meet basic standards including education and age standards. Those who survive the initial screening proceed through an examination process which includes written tests, oral interviews, and physical agility tests. An “eligible” list is prepared, and the candidates are listed in rank order. As vacancies occur, appointments are made from the eligible lists in order of rank subject to a “rule of three.” That rule requires that at any time when one or more appointments are made from the eligible list, only two persons may be bypassed on the list for the purpose of making appointments not in rank order. 17. In 1971 and the years prior thereto, the California Short-Form Test of Mental Maturity, 1963 Revision (“Short Form” test) was administered to applicants for positions in both police and fire departments. Statistics comparing the performance of white and Mexican-American applicants on the Short Form test for this period are unavailable. 18. After 1971, applicants for uniformed positions in the relevant departments were administered the following written tests: (a) Fire Department 1972 Short Form Test SRA Pictorial Reasoning Test 1973 Fire Aptitude Test, Form 45 1974 Fire Aptitude Test, Form 45 SRA Pictorial Reasoning Test (b) Police Department 1972 Short Form Test 1973 Short Form Test 1974 Law Enforcement Aptitude, Form 51X 19. The comparative performance of Mexican-American and white applicants on written tests administered for the firefighter positions in the years 1972 and following is as follows: Took Written Test Passed Written Test Percentage Passing 1972 Whites 160 86 53.7% Mexican-Americans 34 12 35.3 % 1973 Whites 86 50 58.1% Mexican-Americans 10 3 30.0% 1974 Whites 378 378 100% Mexican-Americans 96 95 99% In 1973, the passing score on the Form 45 test was 48. In 1974, the passing score on the Form 45 test was reduced to 19. If the same method of scoring employed in 1973 had been followed in 1974, the percentages of persons passing would have been reduced in the case of white applicants to 55.7% of the white applicants and to 21.2% in the case of Mexican-American applicants. The mean average scores by race on each written test administered to firefighter applicants since 1971 are as follows: White Mean Mexican-American Mean 1972 Short Form Test 76.10 66.15 SRA Pictorial 58.98 57.18 1973 Form 45 49.90 38.64 1974 Form 45 49.08 38.93 SRA Pictorial 58.91 55.04 20. The comparative performance of Mexican-American and white applicants on written tests administered for police officer positions in the years 1972 and following is as follows: Took Written Test Passed Written Test Percentage Passing 1972 Whites 130 82 63.1% Mexican-Americans 8 5 62.5% 1973 Whites 143 78 54.5% Mexican-Americans 14 2 14.3% In 1974, 128 Mexican-Americans and 611 whites took the written tests. All persons were passed. The mean average scores by race on the written tests administered to police officer applicants in 1974 was as follows: White Mean Mexican-American Mean 1973 Short Form 74.64 69.00 1974 Law Enforcement Aptitude 40.51 35.64 21. Defendants could not produce any studies bearing on the question of whether or not the Short Form test (used prior to 1973 in the fire department and prior to 1974 in the police department) is a job-related, valid predictor of job performance for the positions in question. 22. The defendants maintain that the Form 45 test has been validated by a study conducted under the auspices of the Selection Consulting Center. The study entitled “Validation of Entry-Level Firefighter Examinations in the State of California and Nevada” was conducted by virtue of a $120,000 grant from the United States Civil Service Commission. It took sixteen months to complete, required more than four work years of time, and involved seventy-three jurisdictions throughout California and Nevada. The study used a sample of incumbent firefighters from seventy-three jurisdictions. Each of the participants, whose experience on the job ranged from one to six years, took the Form 45 examination. Each of the participants also was ranked by supervisors in terms of nine criteria which a job analysis revealed to be important performance dimensions of firefighter performance in each of the participating jurisdictions. The basic inquiry of the study, then, was to determine whether there was a statistically significant relationship between the incumbents’ performance on the test and their ranking in job performance. The validity coefficients generated separately for whites and Mexican-Americans revealed statistically significant correlations for each of the groups on all nine criteria. Practical significance was also established by considering the selection ratio, the success rates on the job, the size of the validity coefficients (which ranged from .389 to .568 for Mexican-Americans), and the economic and human risks involved in hiring unqualified individuals for the job. The study concluded that the test was practically useful in the selection of firefighters and that the same test scores have equivalent prediction of job success for each racial group. The plaintiffs essentially do not contest the fairness with which the study was conducted, the quality of the job analysis, or the strength of the córrelation coefficients. The plaintiffs do contest the adequacy of the sample and the adequacy of the procedure to protect against the effects of supervisorial bias. The substance of those objections and additional facts relevant thereto will be considered in section VI. II. Standing. The defendants assert that “One of the most startling features of this case is the utter absence of a case or controversy. No named plaintiff or class representative was personally aggrieved by any of the challenged practices.” Standing to sue, of course, is a basic Constitutional requirement under Article III. In the absence of standing, there is no case or controversy, and thus a basic threshold inquiry is to determine “whether the plaintiff has ‘alleged such a personal stake in the outcome of the controversy’ to warrant his invocation of federal court jurisdiction and to justify exercise of the court’s remedial powers on his behalf.” Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343, 354 (1975) (emphasis in original), quoting Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663, 678 (1962). There is no question but that the plaintiffs have standing to sue. Plaintiff Felix has applied three times for a position with the Santa Ana Police Department; three times he has been rejected. The second amended complaint alleges that he “was rejected for service as a uniformed police officer by defendants due to defendants’ illegal and discriminatory practices.” Specifically Felix contends that although he “passed” the written tests (which he alleges to be discriminatory), his score on them was low causing him to be eliminated from consideration at later stages in the hiring process. He claims to be entitled to backpay and to a priority hiring order. As the plaintiffs remark, “It is difficult . to imagine an individual plaintiff with a more direct personal stake in the outcome of the controversy.” Plaintiff LULAC also has a right to bring this lawsuit. It alleged in the second amended complaint that it has “one or more members who have been direct victims of defendants’ illegal and discriminatory hiring practices in that those members have been refused employment by defendants by reason of defendants’ illegal and discriminatory employment practices.” Plaintiff Felix is one member of LULAC who allegedly has been the victim of the defendants’ practices. LULAC’s position in this case is quite unlike that of the Sierra Club in Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), and its position is quite different from its own situation in League of United Latin American Citizens v. Hampton, 163 U.S.App.D.C. 283, 501 F.2d 843 (1974). In those cases the organizational plaintiffs failed to allege that any of their members were among the injured, and the courts, therefore, held that they were merely interested bystanders without a direct stake in the controversy. In cases where organizational plaintiffs have alleged specific injury, standing has been permitted. Here LULAC has alleged a specific injury, and its position is, therefore, more akin to that of SCRAP in United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973) and that of the Bridgeport Guardians, Inc. in Bridgeport Guardians, Inc. v. Members of the Bridgeport Civil Service Commission, 354 F.Supp. 778 (D.Conn.), rev’d in part on different grounds, 482 F.2d 1333 (2nd Cir. 1973), cert. denied, 421 U.S. 991, 95 S.Ct. 1997, 44 L.Ed.2d 481 (1975). See also Arkansas Education Association v. Board of Education, 446 F.2d 763 (8th Cir. 1971). The suggestion of the defendants that there is no case or controversy in this matter, therefore, borders on the frivolous. Of greater substance (albeit still unsatisfactory) is the defendants’ contention that the plaintiffs should be confined to litigating the specific practices which have plagued them and that they should not be permitted to litigate or represent the class on any practices which did not specifically affect them. This argument misconceives the broad approach to standing which the courts have taken in racial discrimination cases. The philosophy perhaps was best explained in Huff v. N. D. Cass Co., 485 F.2d 710, 713-14 (5th Cir. 1973) (en banc): At the appellate level we have made clear that we give full scope to Title VII, recognizing, as we do, that employment discrimination is “one of the most deplorable forms of discrimination known to our society, for it deals not just with an individual’s sharing in the ‘outer benefits’ of being an American citizen, but rather the ability to provide decently for one’s family in a job or profession for which he qualifies and chooses,” and recognizing also that racial discrimination, which is by definition class discrimination, is a particularly virulent form of employment discrimination, because it is generally both subtle and pervasive. We have applied a broad approach to standing, stressing the individual’s role as private attorney general taking on the mantle of the sovereign, (emphasis added). Thus the Supreme Court has endorsed the view that Title VII exhibits “ ‘a congressional intention to define standing as broadly as is permitted by Article III of the Constitution.’ ” Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205, 209, 93 S.Ct. 364, 367, 34 L.Ed.2d 415, 419 (1972), quoting Hackett v. McGuire Brothers, Inc., 445 F.2d 442, 446 (3d Cir. 1971). And the Ninth Circuit has recognized that an exception to the general rule that persons may not raise the rights of others is that “Congress may grant standing by statute to persons who might otherwise lack standing.” Construction Industry Association v. City of Petaluma, 522 F.2d 897, 904 (1975). In keeping with these broad concepts, the courts have permitted “across the board” system-wide attacks on racial discrimination. Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122 (5th Cir. 1969). Illustrative is the approach taken in Long v. Sapp, 502 F.2d 34, 43 (5th Cir. 1974): Like the plaintiff in Georgia Highway Express, Mrs. Long directs her claims at racially discriminatory policies that she alleges pervade all aspects of the employment practices of Jackson County. Having shown herself to be a black and a former employee, albeit lawfully discharged, she occupies the position of one she says is suffering from the alleged discrimination. She has demonstrated the necessary nexus with the proposed class for membership therein. As a person aggrieved, she can represent other victims of the same policies, whether or not ail have experienced discrimination in the same way (emphasis added), citing Reed v. Arlington Hotel Co., Inc., 476 F.2d 721 (8th Cir. 1973), cert. denied, 414 U.S. 854, 94 S.Ct. 153, 38 L.Ed.2d 103 (1974). Thus, once a claim of injury has been properly made, the courts have been willing to permit plaintiffs to serve as the class representatives for occupations for which they have not applied (Crockett v. Green, 388 F.Supp. 912 (E.D.Wis.1975) (plaintiff who applied for job as bricklayer and mason permitted to litigate discrimination involving mechanics and repairmen, electricians, heavy equipment operators, stationary engineers, skilled machinery occupations, carpenters, compositors, typesetters and “kindred” workers)); for people of races other than their own (National Organization for Women v. Bank of California, 5 EPD ¶ 8510 (N.D.Cal.1973) (black plaintiff permitted to represent class of black persons and Spanish-surnamed individuals discriminated against because of race or ethnic background)); for practices which were not and on the facts could not have been adversely applied to them (Parham v. Southwestern Bell Telephone Co., 433 F.2d 421 (5th Cir. 1970) (plaintiff who applied for position with telephone company permitted to litigate (1) the company’s high school diploma requirement despite the fact that he had graduated from high school and (2) the company’s recruitment program despite the fact that that program had not prevented him from applying)). See generally Scott v. University of Delaware, 68 F.R.D. 606, 607 (D.Del.1975). The basic principle underlying these cases is that if it is constitutional for the Congress to permit publicly employed representatives to bring lawsuits on behalf of the public, it is constitutional to permit individuals who have suffered injury to bring lawsuits on behalf of the public. Cf. Sierra Club v. Morton, 405 U.S. 727, 737, 92 S.Ct. 1361, 1367, 31 L.Ed.2d 636, 644 (1972). Thus on the basis of the private attorney general theory and the fact that racial discrimination is by definition class discrimination, plaintiff Felix has standing to represent the class on practices which did not apply to him (e. g., the high school education requirement, the height requirement, the Form 45 test), and he also has standing to represent the class with respect to public safety occupations for which he had not applied, i. e., the fire department. Both departments are run by the same employer with common, personnel procedures and policies. An “across the board” attack is warranted under the circumstances. In addition to the foregoing, LULAC contends that it has standing because if it prevails “fire and police services in the Santa Ana Mexican-American Communities will be improved.” The principal case in support of this position is Trafficante v. Metropolitan Life Insurance Co., supra. There white tenants sued under Title VIII of the Civil Rights Act (which prohibits discrimination in housing) claiming that discrimination against nonwhites by the owners of the apartment complex in which they resided had deprived them of the social benefits of living in an integrated community, had deprived them of business opportunities and professional advantages which would have accrued if they had lived with members of minority groups, and had caused them embarrassment and economic damage by virtue of being “stigmatized” as residents of a “white ghetto.” The Court held that even though the plaintiffs were not the objects of the discrimination, they were nevertheless “aggrieved” persons within the meaning of Title VIII. 42 U.S.C. § 3610(a). The question posed by LULAC’s position is whether or not a similar interpretation should apply to the term “aggrieved” persons within the meaning of Title VII. 42 U.S.C. § 2000e — 5. It is instrucfive to note at the outset that the Court in Trafficante relied on court interpretations of the “aggrieved” term in Title VII to assist it in determining the meaning of the same term in Title VIII. 409 U.S. at 209, 93 S.Ct. at 366, 34 L.Ed.2d at 419. Nothing in Trafficante suggests that the term in Title VII should receive a narrow interpretation. Yet one court has held that a different construction of Title VII is appropriate: Title VIII was intended to ensure all persons a living environment free from unlawful discrimination. This Court is not persuaded, however, that Congress sought through Title VII to protect whatever interest white persons might have in working in an environment which is free from discrimination against racial and ethnic minorities. Unlike Title VIII, which was intended to change living environments for all by changing housing patterns through ending housing discrimination, Title VII is aimed at lifting economically persons belonging to racial and ethnic minorities by providing equal access to employment opportunities. Waters v. Heublein, Inc., 8 EPD ¶ 9522, at 5308 (N.D.Cal.1974). The court, without direct reference to the legislative history, concluded that “Persons who are not the objects of racial or ethnic discrimination in employment are not within the zone of interests Congress intended to protect with Title VII.” Id. Nonetheless there is persuasive evidence in the legislative history that, as was the case in Title VIII, the supporters of Title VII were concerned with factors that went beyond the interests of those who were the immediate objects of discrimination. Particularly persuasive is the joint statement of Representatives McCulloch, Lindsay, Cahill, Shriver, MacGregor, Mathias, and Bromwell. Their statement was designed to accompany House Report No. 714 (on H.R. 7152 which became the Civil Rights Act of 1964) because the abbreviated House Report presented a need for “fuller documentation of the reasons for the bill. The urgency of the measure makes it imperative that its supporters state why it is so important.” The statement makes clear that the interests of the bill’s supporters were not confined to a concern for the objects of the discrimination. In particular the statement observed that employment discrimination denies to the Nation the full benefit of the skills, intelligence, cultural endeavor, and general excellence which the Negro will contribute if afforded the rights of first-class citizenship. The failure of our society to extend job opportunities to the Negro is an economic waste. . The employment needs in practically every professional and technical field are expected to rise substantially . . . . Likewise, the requirements for managers, clerical workers, sales workers, craftsmen, foremen, and similar skilled occupational groups are all projected for large increases. To deny to the Nation the means to fill these needs and, thereby, to maintain its economic superiority is to deny the Nation the ability to continue as the leading country in the world. 1964 United States Code Congressional and Administrative News 2514-17. This is not to imply that considerations of upgrading the level of the work force were paramount in the legislators’ minds. The joint statement points out that “Aside from the political and economic considerations, however, we believe in the creation of job equality because it is the right thing to do.” Id. at 2517. It is to say that when LULAC states that one of its interests in bringing the lawsuit is that if it prevails public safety services in Santa Ana will be improved, it calls into play considerations which clearly were within the “zone of interests” contemplated by the Civil Rights Act of 1964. Nor is it decisive in the posture of this case that the plaintiff’s affidavit is phrased in the language of advantage rather than in the language of injury. The statement of advantage necessarily implies that LULAC has been unfairly denied a benefit (cf. Zarefsky, “The ‘Traditional Case’ — ‘Comparative Advantage Case’ Dichotomy: Another Look,” 6 Journal of the American Forensics Association 12, 14 (1969)), and as the Supreme Court stated in SCRAP, “ ‘The basic idea that comes out in numerous cases is that an identifiable trifle is enough for standing to fight out a question of principle; the trifle is the basis for standing and the principle supplies the motivation.’ ” 412 U.S. at 689 n. 14, 93 S.Ct. at 2417, 37 L.Ed.2d at 271, quoting Davis, “Standing: Taxpayers and Others,” 35 U.Chi.L.Rev. 601, 613 (1968). But it is not even necessary to determine if the principles of SCRAP stretch to meet this situation. Here LULAC has already alleged a definite injury to one or more of its members. The situation is therefore analogous to the law explained in Sierra Club v. Morton, supra, 405 U.S. at 737-38, 92 S.Ct. at 1367, 31 L.Ed.2d at 644: [Ojnce review is properly invoked, that person may argue the public interest in support of his claim that the agency has failed to comply with its statutory mandate. It was in the latter sense that the “standing” of the appellant in Scripps-Howard existed only as a “representative of the public interest.” It is in a similar sense that we have used the phrase “private attorney general” to describe the function performed by persons upon whom Congress has conferred the right to seek judicial, review of agency action. Here too, LULAC, having properly in- ’ voked the judicial process in pursuit of a hiring order, may point to violations of the statute in view of its standing as a representative of the “zone of interests” contemplated by the legislation. Of course, this is a broad view of standing, but as previously mentioned, Congress’ intent in this area was that standing be defined “as broadly as is permitted under Article III of the Constitution.” III. Prima Facie Case. The Civil Rights Acts do not require employers to hire minority groups in proportion to their representation in the population. Indeed, Title VII specifically provides that: Nothing contained in this subchapter shall be interpreted to require any employer ... to grant preferential treatment to any individual or to any group because of the race of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race employed by any employer . in comparison with the total number or percentage of persons of such race in any community, State, section, or other area, or in the available work force in any community, State, section, or other area. 42 U.S.C. § 2000e-2(j). Nonetheless such population statistics can be of procedural import in employment discrimination cases. A plaintiff can establish a prima facie case of discrimination solely through the use of comparative statistics. As the Eighth Circuit recently explained in Green v. Missouri Pacific Railroad Co., 523 F.2d 1290, 1293-94 (1975): A disproportionate racial impact [sufficient to establish a prima facie case] may be established statistically in any of three ways. The first procedure considers whether blacks as a class (or at least blacks in a specified geographical area) are excluded by the employment practice in question at a substantially higher rate than whites. See Griggs v. Duke Power Co., supra, 401 U.S. [424] at 430 n. 6, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971) (on the requirement of a high school diploma, the Court cited statistics from the U.S. Census Bureau that in North Carolina only 12 percent of black males had completed high school while 34 percent of white males had done so); United States v. Georgia Power Co., 474 F.2d 906, 918 (5th Cir. 1973) (the court cited statistics from the South and from the Atlanta area showing that a substantially higher percentage of whites had completed high school than blacks); Gregory v. Litton Systems, Inc., 316 F.Supp. 401, 403 (C.D.Cal.1970), aff’d, 472 F.2d 631 (9th Cir. 1972) (the court cited national arrest statistics showing that blacks suffered a disproportionately high percentage of arrests); Johnson v. Pike Corp., 332 F.Supp. 490, 494 (C.D.Cal.1971) (the court cited general studies indicating that blacks’ wages were garnished at a disproportionately high rate). The second procedure focuses on a comparison of the percentage of black and white job applicants actually excluded by the employment practice or test of the particular company or governmental agency in question. See Griggs v. Duke Power Co., supra, 401 U.S. at 430 n. 6, 91 S.Ct. 849, 28 L.Ed.2d 158; Vulcan Society of the New York City Fire Dept. v. Civil Service Comm, of the City of New York, 490 F.2d 387, 392 (2d Cir. 1973); Bridgeport Guard, Inc. v. Members of the Bridgeport Civil Service Comm., 482 F.2d 1333, 1335 (2d Cir. 1973); cf. Rogers v. International Paper Co., supra, 510 F.2d [1340] at 1348-49 (8th Cir. 1975). Finally, a third procedure examines the level of employment of blacks by the company or governmental agency in comparison to the percentage of blacks in the relevant geographical area. See Bridgeport Guard, Inc. v. Members of the Bridgeport Civil Service Comm., supra, 482 F.2d at 1335-36; United States v. Georgia Power Co., supra, 474 F.2d at 910; Butts v. Nichols, 381 F.Supp. 573, 579 (S.D.Ia.1974) (three-judge court); cf. Rodriguez v. East Texas Motor Freight, supra, 505 F.2d [40] at 54-55 (5th Cir. 1974). The rationale of the statistical prima facie ease is obvious. If an employer utilizes hiring procedures which fail to employ minorities in percentages substantially departing from their representation in the population, there are grounds for concern that the racially disproportionate impact of those procedures have been the product of discriminating devices. If an employer can demonstrate that minority individuals are uninterested in, or unqualified for, the employment in question, no Title VII violation would lie. Title VII, however, assumes that protected groups are both qualified for and interested in employment; thus, the failure to hire such groups in percentages related to their representation in the population justifies shifting the burden to the party most familiar with the nature of the job, the qualifications needed for the job, and the relationship of the hiring procedures to those qualifications. Of course, there are areas of alleged discrimination in which it would be unreasonable to draw even a threshold inference of discrimination. The defendants seize on such cases, for example, Mayor of Philadelphia v. Educational Quality League, 415 U.S. 605, 94 S.Ct. 1323, 39 L.Ed.2d 630 (1973), in an effort to demonstrate that threshold inferences can never be drawn from population data. In Mayor of Philadelphia, the plaintiffs attempted to show discrimination in the selection of the thirteen members of a body called the Educational Nominating Panel. The function of the panel was to seek out candidates for the Philadelphia Board of Education and to recommend nominees to the Mayor of Philadelphia. Under the terms of the city charter, only four of the panel members were to be drawn from the population at large. The remaining members of the panel were required to be selected from the highest ranking officers of nine different categories of city-wide organizations, one from each category. Clearly, resort to general population statistics in the Mayor of Philadelphia case was inappropriate. As the Court pointed out: [T]his is not a case in which it can be assumed that all citizens are fungible for purposes of determining whether members of a particular class have been unlawfully excluded. At least with regard to nine seats on the Panel and assuming, arguendo, that percentage comparisons are meaningful in a case involving discretionary appointments, the relevant universe for comparison purposes consists of the highest ranking officers of the categories of organizations and institutions specified in the city charter, not the population at large. . . . Furthermore, the District Court’s concern for the smallness of the sample presented by the 13-member Panel was also well founded. Id. at 620-21, 94 S.Ct. at 1333, 39 L.Ed.2d at 644. The Mayor of Philadelphia case offers but frail support for the defendants’ contention that population comparisons cannot be used to establish a prima facie case. Rather it stands for the sensible but limited proposition that the indirect evidence provided by general population comparisons does not properly yield a threshold inference of racial discrimination in circumstances where the employment sample is small or where the qualifications for the positions in question are far removed from those of the average citizen. Nor does Davis v. Washington, 168 U.S.App.D.C. 42, 512 F.2d 956 (1975), cert. granted, 423 U.S. 820, 96 S.Ct. 33, 46 L.Ed.2d 37 (1975) assist the defendants’ case. In Davis, the plaintiffs (using the second method discussed in Green) attempted to establish a prima facie case by demonstrating that the percentage of black failures on a written examination was far greater than the percentage of white failures. The defendants responded that the plaintiffs had failed to provide a prima facie case because they had not shown a disparity between the percentage of blacks in the Metropolitan Police Department and the percentage of black population in the community. The defendants thus contended that proof of a prima facie case required demonstration of a disparate impact with respect to both pass-fail rates and population figures. The District of Columbia Court of Appeals categorically rejected that contention: There is no authority — and we decline to provide any — for the proposition that proof of a racially disproportionate impact must encompass both pass-fail rates and disparate population figures. We think the precedents establish that either demonstration is legally sufficient to shift the burden of establishing job relatedness to the employer. Id. at 960 (emphasis added). Clearly the holding of Davis does not support the defendants’ contention that exclusive reliance on population statistics as a prima facie case is “foreign to the law.” Instead the defendants point to dictum stating that population data [has] been considered judicially for only two purposes. There are a number of cases that have held population data alone sufficient to show racially disproportionate impact, but in the apparent absence of data on pass-fail rates. Other courts have noted population data merely to corroborate a showing of racially disproportionate impact based on pass-fail rates. Id. at 960 (emphasis added) (footnotes omitted). Assuming the Davis dictum accurately described the use of population statistics by courts in the past, it is hardly a warrant for the defendants’ conduct in this case. Even assuming adequate pass-fail rates on the written tests employed by the defendants, it is clear that by improper recruitment, and the use of an arbitrary height requirement, the defendants were responsible for preventing substantial numbers of Mexican-Americans from taking the tests in the first place. It is inconceivable that the District of Columbia Court of Appeals in Davis meant to sanction such conduct. If the defendants’ reading of the law were accurate, substantial numbers of minority group members, admittedly the victims of discriminatory devices, would be denied any form of relief merely because other fortunate members of minority groups able to overcome the first three discriminating devices were not discriminated against at the final stages of the personnel process. Indeed the Davis court itself rejected a similar suggestion. The defendants there argued that because the police department had engaged in affirmative effects to recruit black officers, its use of a test with a racially disproportionate impact did not offend the principles of Title VII. The Davis court quite properly held that such affirmative efforts had no bearing on a showing that an employment practice has a racially disproportionate impact. Although the Department, quite commendably, has succeeded in increasing the proportion of black officers through vigorous efforts, it is self-evident that use of selection procedures that do not have a disparate effect on blacks would have resulted in an even greater percentage of black police officers than exists today. Id. at 961. Similarly here, had the defendants not employed selection and recruitment techniques that adversely affect Mexican-Americans, greater percentages of Mexican-Americans would be employed today. Sensibly read, therefore, the Davis dictum is not helpful to the defendants on the pretesting discriminatory devices employed by them. See also Erie Human Relations Commission v. Tullio, 493 F.2d 371, 372-73 n.4 (3rd Cir. 1974) (prima facie case as to pre-exam requirements based upon general population statistics coupled with opportunity to discriminate). The Davis dictum, however, is relevant to, but not dispositive of, the question of whether a prima facie case has been established with respect to the use of the written tests employed by the defendants. Clearly if the defendants could have established that the pass-fail rates on the written tests attacked by the plaintiffs did not reveal a disproportionate impact on minority applicants, general population statistics would be of limited utility. That presumably is the type of situation to which the Davis dictum was directed. The defendants here argue, however, that if they can establish overall acceptance rates which do not reveal a disproportionate impact on minority groups, then a disproportionate impact on a particular test does not constitute the kind of adverse impact necessary for a prima facie case. As the Sixth Circuit Court of Appeals stated in Smith v. Troyan, 520 F.2d 492, 497-98 (1975), “Though general ability, or intelligence, tests have often been invalidated for their racially disproportionate impacts . . . the disproportionate impacts have been in the hiring, rather than in the test results in and of themselves.” Nonetheless Smith v. Troyan is not in point, and the defendants’ position is not well taken. In Smith, the plaintiffs demonstrated that blacks fared less well than whites on one subtest of a total testing procedure. The Sixth Circuit would not permit a prima facie case to be established on the basis of a single subtest in circumstances where the overall hiring rate did not reveal a disproportionate impact. Specifically the court stated: That blacks fare less well than whites on the AGCT, a “subtest” in the process of hiring East Cleveland police officers, is insufficient in itself to require defendants to justify the AGCT as being job-related. Carried to its logical extreme, such a criterion would require the elimination of individual questions marked by poorer performance by a racial group, on the ground that such a question was a “subtest” of the “subtest.” Id. at 498. But the written tests challenged here did not function as subtests. They were used as pass-fail hurdles. Individuals who did not pass the tests were denied employment without any opportunity to make up for their low score by the posting of high scores in other phases of the testing process. As in Davis, “[I]t is self-evident that use of selection procedures that do not have a disparate effect on [Mexican-Americans] would have resulted in an even greater percentage of [Mexican-American] police [and fire employees] than exists today.” 512 F.2d at 961. The Civil Rights Acts protect individuals from discriminatory treatment. The Acts simply do not permit employers to exclude individuals from employment by use of discriminatory devices. Victims of discrimination are no less victims when an employer can point to favorable acceptance rates. Even if the “subtest” doctrine where stretched to apply to the use of pass-fail tests, it should not be applied in circumstances where an employer’s total hiring has produced a population disparity unfavorable to Mexican-Americans. Moreover the “subtest” doctrine itself is of dubious utility. Of course, employers should not be compelled to justify each and every question on a written test. But if a procedure forms a substantial part of an employee’s selection process, and if that procedure operates adversely against minority groups, employers should not be relieved of the burden of defending that procedure merely because it did not constitute the entirety of the hiring process. As the First Circuit Court of Appeals observed in Boston Chapter, NAACP, Inc. v. Beecher, 504 F.2d 1017, 1020-21 (1974), cert. denied, 421 U.S. 910, 95 S.Ct. 1561, 43 L.Ed.2d 775 (1975), “When widespread minority underemployment is shown to exist in a given occupation, primary selection devices should not be immunized from study by placing an unrealistically high threshold burden upon those with least access to relevant data.” After all, a finding of a prima facie case “is not determinative of the issue but merely shifts the burden to the defendant to justify the use of the exam. This is a burden a public employer should not be unwilling to assume.” Boston Chapter, NAACP, Inc. v. Beecher, 371 F.Supp. 507, 514 (D.Mass.), aff’d, 504 F.2d 1017 (1st Cir. 1974), cert. denied, 421 U.S. 910, 95 S.Ct. 1561, 43 L.Ed.2d 775 (1975). It is clear that the Ninth Circuit too has declared war on unrealistically high threshold burdens in employment discrimination cases. In United States v. Ironworkers Local 86, 443 F.2d 544 (9th Cir.), 404 U.S. 984, 92 S.Ct. 447, 30 L.Ed.2d 367 (1971), the defendants also assailed reliance on demographic statistics as a “statistical ‘numbers game,’ incapable of proving a violation of Title VII.” Id. at 550. The court rejected the contention as “without support” (id.) and observed that: Since the passage of the Civil Rights Act of 1964, the courts have frequently relied upon statistical evidence to prove a violation. This judicial practice has most often taken the form of the use of such data as a basis for allocating the burden of proof. On the basis that a showing of an absence or a small black union membership in a demographic area containing a substantial number of black workers raises an inference that the racial imbalance is the result of discrimination, the burden of going forward and the burden of persuasion is shifted to the accused, for such a showing is enough to establish a prima facie case. . Of course, as is the case with all statistics, their' use is conditioned by the existence of proper supportive facts and the absence of variables which would undermine the reasonableness of the inference of discrimination which is drawn. It is our belief that the often-cited aphorism, “statistics often tell much and Courts listen,” has particular application in Title VII cases. Id. at 551 (footnotes omitted). In keeping with the law prevailing in this circuit and elsewhere (Morrow v. Crisler, 479 F.2d 960 (5th Cir. 1973), cert. denied, 419 U.S. 895, 95 S.Ct. 173, 42 L.Ed.2d 139 (1974); Carter v. Gallagher, supra), this court holds that population disparity alone is sufficient to establish a prima facie case. Even if it were not, the evidence respecting recruitment and the evidence introduced with respect to the height requirement and the high school education requirement is more than sufficient to establish a prima facie case. Indeed even in the absence of a population disparity, the height requirement evidence alone would suffice to provide a prima facie case. (See procedures in Green, supra). It is clear that the recruitment practices, height requirement, and high school education requirement have operated “in fact to exclude a disproportionate number” (Berkelman v. San Francisco Unified School District, 501 F.2d 1264, 1267 (9th Cir. 1974)) of Mexican-Americans from employment. Moreover, as discussed infra, the pass-fail rates on the written tests reveal an adverse impact on Mexican-American applicants. The defendants argue in the alternative, however, that if demographic statistics are of consequence, the statistics involved in this case properly interpreted are favorable to them. If Santa Ana is the relevant labor market, however, the statistics are clearly unfavorable to the defendants. As recited previously, 25.8% of the city’s general population is Mexican-American, but only 9.2% of the police officers and 4.5% of the firefighters are Mexican-American. The defendants argue, however, that resort to the city’s