Full opinion text
MEMORANDUM DECISION MARSHALL, District Judge. The defendants in these complex, consolidated civil rights cases, which involve sexual and racial discrimination in the Police Department of the City of Chicago, are now pursuing their fifth interlocutory appeal to the Court of Appeals for this circuit. We understand that the appeal has been fully briefed and is set for oral argument on January 6. In these circumstances considerations of policy (but not jurisdiction) could suggest that we stay our hand in deciding the merits of the cases until the Court of Appeals has spoken. This is so because while the legal issue on appeal is a narrow one, the propriety of our November 13, 1975 refusal to vacate an earlier order preliminarily enjoining current payments of so-called revenue sharing moneys to the City, the factual issues in the cases are so inextricably interwoven with the legal issues — including that of the revenue sharing cut-off — that guidance beyond that narrow, albeit important, question might be forthcoming from the Court of Appeals. We have concluded, however, that we should not defer our decision on the merits of certain of the issues in the cases. When the revenue sharing injunction was first entered against the Secretary of the Treasury and others by the District Court for the District of Columbia, the City appealed to the Court of Appeals for this circuit from our refusal to issue a countermanding injunction. It also sought review of the Secretary’s decision to comply with the District of Columbia injunction. After the Court of Appeals observed in an unpublished memorandum order that the appeal should have been taken to the Court of Appeals for the District of Columbia, the City dismissed the appeal and its petition for review. The revenue sharing case was then transferred here on the City’s motion under 28 U.S.C. § 1404(a). Upon its arrival, the City requested that we modify or vacate the injunction. After an evidentiary hearing, we adopted the injunction, approved it and refused to vacate or modify it. The City did not appeal that order. Now, truly at the eleventh hour, it has appealed from the denial of an identical motion. Furthermore, as we noted in denying the City’s most recent revenue sharing motion, we have already once postponed this decision on the merits awaiting the results of another narrow interlocutory appeal taken by the Arado intervening defendants who deemed themselves aggrieved by our refusal to enjoin the Police Department’s temporary sergeants program which was unilaterally announced by the Department while the cases were in trial on the merits. The briefs in that appeal, while purporting to speak only to the question of our refusal to enjoin the temporary sergeants program, launched a full scale attack on our preliminary injunction findings of fact and then proceeded to argue evidence adduced at the trial on the merits which we had not yet passed upon. Thus, we waited for the Court of Appeals to rule. When it did, it did not get drawn into the thicket of facts. It limited its unpublished memorandum order of affirmance to the matter of the temporary sergeant appointments pointedly observing that “nothing stated herein is intended to have any bearing whatsoever on any issue on the merits now pending before the district court.” Within days of that affirmance, the City was back with its renewed request for interlocutory relief in respect to revenue sharing. When that request was denied, the pending appeal followed. In light of this record, and in view of the numbers of parties to this action who are represented by separate able counsel, we have concluded that the numbers of potential interlocutory appeals are limited only by the ingenuity of counsel. Indeed, the next may be triggered by the Department’s new method of selecting patrol officers which the parties, the public and the court have awaited since April, 1974. Additionally, we understand that the City has taken the position in the pending appeal that separate interlocutory relief is warranted because we have unduly delayed our decision on the merits. That argument, having been addressed to the Court of Appeals, is not for us to decide. Suffice it here to observe that the delay has been occasioned in part by the overall history of the case, in part by the size of the task confronting us, in part by our previously noted deference to an earlier interlocutory appeal, and in part by our view expressed in November 1974 that “It is far better in cases of this nature that the remedy come from the parties rather than the court.” That view was, in reality, a hope which had been spawned by the City defendants’ repeated representations that a new, non-diseriminatory, unisex method of selecting patrol officers was in the offing. First made at a pretrial conference held April 10, 1974, the representation was repeated in testimony given by witnesses called by the City defendants during the preliminary injunction hearings held in June of that year (the estimate was then the fall of 1974), urged as a ground for mootness as far as allegations of sex discrimination were concerned, raised again during the hearings relating to revenue sharing in January 1975, again during the trial on the merits held in March-June, 1975, and periodically since then through in camera disclosures to the court and counsel, the last of which occurred on October 31, 1975. Still the results of the new method of selection have not been made known. The delay in the new method of selecting patrol officers has not been our only frustration with respect to a remedy coming from the parties. There was also the arrogant, contumacious refusal by the City defendants to honor their interim hiring agreement and our order approving it of December 16, 1974. When, in the spring of 1975, we were urged by the plaintiffs to proceed against the City defendants for their wilful refusal to abide the terms of that order (which would have recognized the aspirations of at least 500 of the men holding places on the 1971 patrolman’s eligibility list), we were importuned by the defendants to stay our hand until the results of the new unisex methods for selecting patrol officers were known. Unwisely, in retrospect, we did just that. Thus, we have concluded that the time has come for the court to fashion a remedy. Finally, there is the possibility that the Court of Appeals will find helpful, in its consideration of the issue before it, our findings and conclusions with respect to the merits of the case. Compare, Silverthorne v. Laird, 460 F.2d 1175 (5th Cir. 1972). This is particularly so in light of our conclusion that the City defendants have knowingly discriminated against women, blacks and Hispanics in the employment of police officers and that the most effective remedy to cure that constitutional malaise is the economic sanction of withholding revenue sharing funds until those defendants meet the affirmative requirements of a decree entered pursuant to this decision. For these reasons, then, we proceed to a decision on the merits of all of the principal issues in the cases save racial discrimination in discipline and the essentially private claims raised by the plaintiffs in Robinson v. Conlisk, 70 C 2220, at all times cognizant of the superior position, wisdom and objectivity of the Court of Appeals. What follows will stand as our findings of fact and conclusions of law and reasons for our decision pursuant to Rules 52(a) and 65(d), Fed.R.Civ.P. We adopt and incorporate by reference our earlier decisions of April 24, 1974 (Robinson v. Conlisk, Ill., 385 F.Supp. 529), April 24, 1974 (United States v. City of Chicago, Ill., 385 F.Supp. 540), November 7, 1974 (United States v. City of Chicago, Ill., 385 F.Supp. 543), April 21, 1975 (United States v. City of Chicago, Ill., 395 F.Supp. 329), and November 13, 1975 (United States v. City of Chicago, 405 F.Supp. 480). Because issues will remain to be adjudicated after the entry of the decree pursuant to this memorandum, we find that there is no reason to delay the entry, enforcement of or appeal from that decree and we direct the clerk of this court to enter the decree when it has been presented and signed as a final one pursuant to Rule 54(b), Fed.R.Civ.P. Before turning to the merits, a brief history of the litigation and its parties and the issues is in order. I. THE HISTORY OF THE LITIGATION The litigation originated on September 9, 1970 with the complaint of Renault Robinson and the Afro-American Patrolmen’s League against the City, James B. Conlisk, Jr., who was then the City’s Superintendent of Police, and the members of the City’s Police Review Board. 70 C 2220. Robinson is a black Chicago Police Officer and the League is composed of black Chicago Police Officers. The complaint alleged violations of plaintiffs’ First, Fifth, Thirteenth and Fourteenth Amendment rights and sought relief under 42 U.S.C. §§ 1981 and 1983, 28 U.S.C. § 1343(3) and 28 U.S.C. § 1331. The action was first assigned to Judge Parsons, who recused himself, reassigned to Judge Marovitz and then to Judge McGarr. During its pendency before Judge McGarr, the case moved through a series of contested discovery proceedings and motions addressed to the pleadings. On April 11, 1973 plaintiffs filed their second amended complaint. Defendants moved to dismiss or alternatively for summary judgment. That motion was denied by Judge McGarr in an opinion filed September 19, 1973. On May 13, 1973 Tadeo Robert Camacho and others, Hispanic and black who had sought appointment as Chicago Police Officers, filed their complaint against the City, Conlisk, the members of the Civil Service Commission of the City and Charles A. Pounian, the Secretary of the Commission. 73 C 1252. Alleging discrimination in employment in violation of their Fourteenth Amendment and statutory rights, plaintiffs sought relief under 42 U.S.C. §§ 1981, 1985, 2000d et seq. and 2000e et seq. The action was assigned to Judge Parsons, where it remained, moving through some discovery and a denial of defendants’ motion to dismiss. On August 14, 1973, the United States of America filed its complaint against the City, Conlisk and the Civil Service Commission of the City. 73 C 2080. The Government alleged a pattern and practice of racial and sexual discrimination by the defendants in respect to employment, promotion, assignment and discipline in the Police Department, all in violation of Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e et seq., the Fourteenth Amendment and 42 U.S.C. §§ 1981 and 1985, and later, by amendment, the State and Local Fiscal Assistance Act of 1972, 31 U.S.C. §§ 1221 et seq. It also sought enforcement of the regulations and guidelines of the Department of Justice and the Law Enforcement Assistance Administration, 28 C.F.R. 12.201 et seq. and 42.301 et seq. The action was assigned to Judge McMillen as related to an earlier action brought by the United States against the City alleging similar discrimination in the City’s fire department. • While the action was pending before Judge McMillen it was moving very swiftly toward a hearing on plaintiff’s motion for a preliminary injunction. On September 27, 1973, the Robinson case, 70 C 2220, was reassigned here from Judge McGarr as a part of our initial calendar. We called the parties in for a status report and directed them to resume their discovery. Shortly thereafter the Camacho plaintiffs in 73 C 1252, and the Government in 73 C 2080 filed statements with the Executive Committee of this court pursuant to our Local Rule 10 B 4 that their cases were related to 70 C 2220 and should be reassigned here. Some delay was experienced in respect to the reassignments but ultimately orders to that effect were entered and those two cases came here on February 15 and 20, 1974. We promptly convened a joint pretrial conference on March 5, 1974, at which we requested the parties to consider consolidation of the actions and stated our desire to proceed with the hearing on the motion for a preliminary injunction in the Government’s case, 73 C 2080, on May 6, 1974, the date which had been scheduled by Judge McMillen. The City defendants then moved for reconsideration of Judge McGarr's opinion and order denying their motion to dismiss or for summary judgment in the Robinson case, 70 C 2220. Briefs were filed. We reconsidered the motion and denied it on April 24, 1974. 385 F.Supp. 529. The plaintiffs in the three cases jointly moved to consolidate them. The City defendants opposed the motion insisting that separate trials were required despite the fact that the cases had come here as related because they all involved allegations of employment discrimination .in the Chicago Police Department. The motion to consolidate was granted. 385 F.Supp. 540. On April 10, 1974 a consolidated pretrial conference was held regarding the hearing on the motion for preliminary injunction. At that conference defendants suggested that the need for a preliminary hearing was doubtful because they were at work on a new unisex method of selecting patrol officers. The evidentiary hearing on plaintiffs' motion for a preliminary injunction in the consolidated action commenced on May 30, 1974, pursuant to Rule 65(a)(2), Fed.R.Civ.P., i. e., it was consolidated with the trial on the merits. On the eve of that hearing, Louis Arado, et al., who hold places on the 1973 sergeants promotion list, were granted leave to intervene as defendants with the consent of the City defendants. Henceforth, where appropriate, the City of Chicago and its several officers and employees will be referred to as the City defendants and the Arado defendants will be so designated. In addition, subsequent intervenors will be appropriately designated. The preliminary injunction hearing consumed 17 trial days; testimony was concluded June 28, oral arguments were heard July 11, and thereafter the parties filed extensive written briefs in which the City defendants urged, inter alia, that the issue of sex discrimination was moot because, as their witnesses had testified, the new unisex method of selecting patrol officers would be ready by the fall of 1974. On June 28 a consent decree settling certain height, weight, vision and medical requirements was entered. On November 7, 1974 we filed an opinion and issued a preliminary injunction directed particularly at the uncontroverted showing of discrimination against women, the 1971 patrolman’s roster and the 1973 sergeants promotion list. 385 F.Supp. 543. Shortly thereafter we set the consolidated action for trial on the merits to commence January 6, 1975. All of the defendants appealed from the preliminary injunction order. Subsequently they dismissed their appeals. On December 16, 1974, after extensive negotiations among the parties, plaintiffs and the City defendants agreed to an interim hiring program under which the City could appoint 600 patrol officers— 500 from the 1971 patrolman’s roster and 100 from a police matron roster. After hearings in open court, we approved that agreement and incorporated it into an interim hiring order. In doing so we noted the City’s professed need for police officers and the fact that the remedy was coming from the parties, rather than the court. At the same time, in part because appeals were pending from the preliminary injunction order, in part to meet the convenience of the parties and in part because of the anticipated new “unisex” method of selecting patrol officers, we continued the trial on the merits to March 1975. On February 7, 1974, just before the consolidated cases had arrived on our calendar, Renault Robinson, the Afro-American Patrolmen’s League and the National Association for the Advancement of Colored People had commenced an action in the United States District Court for the District of Columbia against the Secretary of the Treasury and officials of the Office of Revenue Sharing (hereafter the ORS defendants). Plaintiffs alleged that the racially discriminatory practices of the City’s Police Department, to which a major portion of the City’s revenue sharing allotments had been allocated, violated Section 122(a) of the State and Local Assistance Act of 1972, 31 U.S.C. § 1242(a), and they sought injunctive relief in respect thereto. The history of that action has been reported in our memorandum decision of April 21, 1975, 395 F.Supp. 329, and need not be repeated here. On December 18, 1974, the District Court for the District of Columbia acting in light of our preliminary injunction of November 7, enjoined the ORS defendants from making further revenue sharing payments to the City until it had complied with a final order of this court. There followed a frenzy of maneuvers by the City which included a collateral attack here on the District of Columbia order, an appeal to the Court of Appeals for this Circuit and the City’s unilateral repudiation of the interim hiring agreement and order. Ultimately the District of Columbia action was transferred here on the City’s motion, docketed at 75 C 79 and consolidated with the other actions. The result is that the Government finds itself in the anomalous position of being a plaintiff as to certain of the revenue sharing issues in the case and a defendant as to others. As we shall see, it has not entirely reconciled that dilemma. It was about this time that Carolyn Burauer, et al., requested and were granted leave to intervene as plaintiffs. Ms. Burauer and her colleagues aspired to be patrol officers. They sought to represent the particularized views of women who had been discriminated against by the Police Department. They will be referred to as the Burauer plaintiffs. Then came Roy Isakson, et al., who hold places on the 1971 patrolman roster. They were granted leave to intervene as defendants upon the condition that they dismiss a spate of state and federal court actions they had brought which, in effect, were collateral attacks on the November 7 preliminary injunction. The Isakson defendants’ activities here have included, inter alia, the presentation of some 615 petitions bearing thousands of signatures “to hire the 1500 [on the 1971 patrolman roster].” Initially they aligned themselves with the City defendants. By the- conclusion of the trial, however, they seemingly had joined forces with the plaintiffs for in their brief they urge a permanent injunction against “the use of the type of exams, physicals and procedures used [in respect to patrolmen] in 1971,” the “full implementation of the interim hiring order” and “ratio . . . minority hiring in all prospective hiring.” Br. of Isakson Defendants, p. 6. In February, 1975, as the time for trial approached, it was discovered that the City defendants had falsely answered an interrogatory served upon them by the Robinson plaintiffs in 1971. The interrogatory had called for information relating to Department surveillance of Robinson and other offices of the League. The answer was: Department records reveal no surveillance has ever been conducted on Renault Robinson, or any other officer of the Afro-American Patrolmen’s League. Then in February, massive surveillance files were discovered — dating back to 1968 — at least to the extent that they had not been destroyed by the City defendants in 1974, long after all of the actions had been pending and the interrogatories answered. But, we were told, the surveillance files were extraordinary sensitive and we were urged by the City’s counsel in an ex parte, in camera conference to inspect them and use our restraint in ordering their disclosure. Inspect them we did — two brief cases full — and all of them pertained to Robinson and the League. While they contained large quantities of newspaper clippings and memoranda relating to surveillance of public meetings and testimonials at which Robinson and other League members were in attendance, they also contained appraisals and opinions of Robinson and the League which were clearly relevant to their claims here. And then, on the eve of the trial on the merits, Nicholas J. McNamara, et al., who hold places on the 1970 lieutenants promotion roster were granted leave to intervene as defendants. They, too, have aligned themselves with the City defendants, but unlike the Isakson defendants, who appear to have changed their stance, or the Arado defendants, who have taken it upon themselves to defend not only the 1973 sergeants roster but the 1971 selection of patrolmen as well, the McNamara defendants have limited their efforts to defending the 1970 lieutenants roster and its underlying examination. As will appear in due course, they have succeeded. The trial on the merits commenced on March 10. On that day, the City defendants announced unilaterally, without notice to the parties or leave of court, the promotion of 16 sergeants to the office of lieutenant, the program for the promotion of temporary sergeants and a new written examination for patrol officers. Each announcement provoked motions by all of the remaining parties, except the McNamara defendants, for preliminary injunctions restraining the proposed actions. On June 6, the motions were denied following extensive hearings conducted intermittently during the trial as the dimensions of the proposals were disclosed. The Arado defendants appealed the denial of their motion and it was the decision on that appeal which we awaited as previously noted. The new examination for patrol officers was given with our approval, on April 19, without advance disclosure of its contents. The results of the examination have been disclosed to the court and counsel in camera and subject to a stringent protective order which the parties have honored. Therefore, we shall not comment here on the results of that examination. So, too, have the results of the medical examinations been disclosed, under similar restrictions. But the results of the third, fourth and fifth phases of the new method — individual interviews, background checks and psychiatric interviews — have not been forthcoming. The trial on the merits consumed 43 court days. It was concluded by closing arguments on June 26, followed by extensive written briefs. There followed the affirmance of the temporary sergeants order and the City’s renewed request that we vacate or modify the revenue sharing injunction. In respect to the latter, the City was supported by the Chicago Bar Association, the Chicago Crime Commission, the Civic Federation and the Southeast Chicago Commission, as amici curiae. While reminding us of their long standing stance against sexual and racial discrimination, the amici acknowledged their lack of familiarity with the record. Nevertheless, they asserted that the economic sanction of revenue sharing termination was inappropriate in the circumstances of the case. We shall treat that argument in the section of this opinion devoted to revenue sharing. All of which brings us to the merits. As we address them, we observe that because all four of the individual actions were tried as a consolidated case, and because our acceptance of the transfer of the District of Columbia revenue sharing case was conditioned on the parties’ agreement that all prior proceedings here could and would be considered as a part of the proceedings in that case, and because each group of intervenors agreed to accept the record in the consolidated case as they found it, and finally, because the preliminary injunction hearing was held under Rule 65(a)(2), Fed.R. Civ.P., all of the evidence adduced by the parties at any stage of the proceedings may be considered in respect to all of the issues presented, subject, of course, to normal standards of relevancy. II. SEXUAL AND RACIAL DISCRIMINATION IN THE SELECTION, PROMOTION, ASSIGNMENT AND DISCIPLINE OF POLICE OFFICERS This part of this memorandum will address the subjects of sexual and racial discrimination in the selection, promotion and assignment of police officers within the Chicago Police Department. We will first consider discrimination against women. We will then turn to racial discrimination in the appointment of patrol officers, the promotion of sergeants and lieutenants and the assignment of officers. Part III of the memorandum will deal with the appropriate remedy, including that applicable to revenue sharing. Because the general claims of racial discrimination in discipline and the private claims of Renault Robinson and the Afro-American Patrolmen’s League are so closely intertwined, they will be considered together and separately. A decree pursuant to this memorandum will be entered separately. A. Discrimination against women The Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, provides in material part: The term “person” includes governments, governmental agencies [and] political subdivisions The term “employer” means a person engaged in an industry affecting commerce who has fifteen or more employees . The term “industry affecting commerce” means any activity in commerce or in which a labor dispute would hinder or obstruct commerce . . . and ... includes any governmental activity. . It shall be an unlawful employment practice for an employer— (1) to fail or refuse to hire . or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex . . . ; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s sex .... 42 U.S.C. §§ 2000e(a), (b) and (h) and 2000e — 2. There is no question that since March 24, 1972, the effective date of the Equal Employment Opportunity Act of 1972, this statutory prohibition against discrimination in employment on account of sex has been applicable to the Police Department of the City of Chicago. In our preliminary injunction memorandum we found it undisputed that women had been and were being discriminated against by the City defendants in entry, employment, assignments and promotions in the Department, in violation of the Act. 385 F.Supp. at 548. We also found that the City defendants had not validated or justified that discriminatory treatment (385 F.Supp. 555) and we enjoined it. 385 F.Supp. 545. If anything, the conduct of the City defendants since then, together with the additional evidence adduced at the trial on the merits, have exacerbated the situation. It was not until April, 1975 — five months after the preliminary injunction issued — that the City defendants undertook any steps to implement their obligations under the decree and the Act. At that time they issued an order allowing incumbent women to apply for reassignment, and permitted women to take the new patrol officers written examination* from which no appointments have been made. Prior to April, they had refused to honor the interim hiring agreement and order, which encompassed women, and since then they have failed to appoint any women from the 1972 matron roster although the use of it was not in any way affected by the preliminary injunction. Even their voluntarily undertaken emergency temporary sergeants program produced no female promotions and had as one of its requirements an almost impossible hurdle for women: three out of the last five years of duty in a field assignment. In short, almost three years after the effective date of the Equal Employment Opportunity Act of 1972, two years after the commencement of the Government’s action here and more than one year after the entry of the preliminary injunction, it is still business as usual insofar as women in the Chicago Police Department are concerned. Furthermore, the additional evidence at trial showed that the entry training which women recruits have received in the past has been at the Training Academy along with and, in all essential respects, the same as that received by patrolmen recruits. On this record there can be no question that the preliminary injunction should be made permanent in respect to the Department’s discrimination against women. An additional issue in respect to women arose during the trial and as a result of the April, 1975 announcement of the new “unisex” patrol officers examination. At that time the City defendants prescribed a minimum height of 5'4" for all applicants. Upon objection by the Government and the Burauer plaintiffs, the test was administered without the imposition of that requirement. An employment requirement based on height appears néutral on its face. However, if the neutral requirement is shown to have a markedly disproportionate impact on a given class of applicants, a prima facie case of discrimination is established. Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). The evidence shows that while the announced 5'4" height requirement excludes only 7.5 percent of the eligible males, it will exclude 65 percent of the eligible females. In these circumstances, the burden is upon the City defendants to validate the 5'4" requirement by proving that it is job related. Of course, physical strength, of which size is an element, is an important if not essential attribute for those who engage in much of the work which police officers do. But the difference between 5'4" and 5'3", which the evidence shows will markedly reduce the disparity in eligibility, is not so clear. This is particularly so in light of the fact that historically, the Department’s minimum height requirement for women has been 5'3". While women have, as we have seen, been discriminated against in their employment opportunities in the Department, the work to which most of them have been assigned — that of matrons and the handling of female prisoners — has required the attribute of physical strength. Because the announced height requirement has not been applied by the City defendants, it will not be specifically included in the injunction. But it does, in our judgment, fall within the scope of the decree’s general prohibition of discrimination against women, absent a persuasive showing of job relatedness which has not been made. B. Racial discrimination in the selection, promotion, assignment and discipline of police officers We turn now to the question of racial discrimination in the selection of patrol officers and the promotion of sergeants and lieutenants by and within the Department. We first observe that no challenge has been made respecting promotions to the rank of captain or the selection of command personnel. Before considering the facts shown by the evidence, attention should be given to the principles of law which have governed our deliberations. 1. Governing legal principles Since our preliminary injunction decision in November, 1974 (385 F.Supp. 543), we have followed closely the decisions of other federal courts in the area of racial discrimination in employment (and particularly public police employment) for the purpose of identifying any which contradict, undercut or weaken the legal conclusions we expressed at that time and our application of them to the facts then before us. We have found none and the parties have called none to our attention. Accordingly, we reaffirm the legal conclusions we there expressed and apply them here with the following additional observations. The defendants urge that the adoption by the Congress of the Federal Rules of Evidence, and particularly Rule 301 dealing with presumptions, has altered the burden of persuasion in respect to test-job relatedness which we have heretofore imposed on defendants. The issue has arisen as the result of the following passage in our earlier memorandum (385 F.Supp. at 553): In short, the disproportionate impact raises more than an inference of impermissible discrimination which a fact finder is permitted to draw. The conclusion of [impermissible] discrimination is in the nature of a presumption and is required unless the employer persuades the fact finder that the practices used fit the job, predict performance on the job, and are necessary for the on-going effectiveness and efficiency of the employing agency. Rule 301 of the Federal Rules of Evidence, as enacted by the Congress, provides: In all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on which it was originally cast. Thus defendants argue that, in our earlier decision, we imposed a burden of persuasion upon them which is now prohibited by Rule 301. It is evident that their argument stems particularly from our statement that “more than an inference” arises from disproportionate impact; “the conclusion of [impermissible] discrimination is in the nature of a presumption and is required unless the employer persuades the fact finder” of job relatedness. As is frequently the case, a label— “presumption” — for which we readily accept responsibility, has clouded analysis. The beginning point is Section 703(h) of the Civil Rights Act of 1964 which provides in material part: . nor shall it be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race, color . or national origin. . 42 U.S.C. § 2000e — 2(h). In Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), the Supreme Court spoke directly to the subject at hand. . The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited. $ * * ♦ % % On the record before us, neither the high school completion requirement nor the general intelligence test is shown to bear a demonstrable relationship to successful performance of the jobs for which it was used. * * * # * * Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation. More than that, Congress has placed on the employer the burden of showing that any given requirement must have a manifest relationship to the employment in question. 401 U.S. at 431, 432, 91 S.Ct. at 853, 28 L.Ed.2d at 164. Emphasis in original. Clearly the Court read the Act as imposing upon the employer the burden of proving that any test which excludes an identifiable racial group is “related to job performance,” “bear[s] a demonstrable relationship to successful performance” and has “a manifest relationship to the employment in question.” If any doubt remained it was laid to rest in Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280, 43 U.S.L.W. 4880 (1975). There the Court considered a situation almost identical to that presented in Griggs save for the fact that the employer did adduce evidence of job relatedness. The Court said: In Griggs v. Duke Power Co., 401 U.S. 424 [91 S.Ct. 849, 28 L.Ed.2d 158], this Court unanimously held that Title VII forbids the use of employment tests that are discriminatory in effect unless the employer meets ‘the burden of showing that any given requirement [has] ... a manifest relation to the employment in question.’ Id., at 432 [91 S.Ct. at 854, 28 L.Ed.2d at 164].21 This burden arises, of course, only after the complaining party or class has made out a prima facie case of discrimination — has shown that the tests in question select applicants for hire or promotion in a racial pattern significantly different from that of the pool of applicants. 422 U.S. at 425, 95 S.Ct. at 2375, 45 L.Ed.2d at 301. Footnote 21 to the Court’s opinion read, “In Griggs, the Court was construing 42 U.S.C. § 2000e-2(h),” which has been previously quoted. The Court then went on to affirm the holding of the Court of Appeals for the Fourth Circuit that Albemarle’s evidence of job relatedness was insufficient. Thus it is clear that it is the Act which imposes the burden of proof of job relatedness of the employer. And this Circuit, as well as others, has held that burden of proof to include “the burden of going forward and the burden of persuasion.” United States v. United Brotherhood, etc., 7 Cir., 457 F.2d 210, 214, cert. denied, 409 U.S. 851, 93 S.Ct. 63, 34 L.Ed.2d 94 (1972); Vulcan Society, etc. v. Commission, 490 F.2d 387, 393 (2d Cir. 1973); United States v. Hayes International Corp., 456 F.2d 112, 120 (5th Cir. 1972). That application of the concept > of burden of proof is consistent with the overwhelming weight of authority. McCormick on Evidence (Cleary ed. 1972) §§ 336 et seq. Finally, assuming arguendo the appropriateness of our earlier use of the term “presumption,”, which we must say we now question, it is clear from the express language of Rule 301 that its prohibition regarding “the risk of non-persuasion” has no application here for this is a case which is “otherwise provided for by Act of Congress.” As a consequence of the foregoing, we are confident that the standards we used in evaluating the evidence adduced during the preliminary injunction hearing were correct and we will apply them now to all of the evidence which has been presented on the issues of racial discrimination in employment and promotion in the Department. 2. Patrol officers The issues here remain the same as at the preliminary injunction hearing — the discriminatory effect of the 1971 patrolman examination and the like effect of the results of the Department’s background check. The only fresh evidence adduced at the trial on the merits consisted of the testimony of certain men who hold positions on the 1971 patrolman roster, the entry requirements of other law enforcement agencies, including the FBI and the Illinois Bureau of Investigation, and some statistical data regarding the racial breakdown in population and work force. In addition, the defendants urge that we did not give adequate consideration or fair weight to the preliminary injunction testimony of Professor Edwards who, on the eve of that hearing, was hired to validate the 1971 examination. Nor, they urge, did we give proper consideration to the necessity for and methods employed in conducting the background check. None of our earlier statistical findings regarding the racial impact of the 1971 patrolman examination have been challenged. The Arado defendants, however, apprehensive of the effect on them of a finding of cumulative discriminatory tests, have urged that the starting point of our analysis — the racial mix of the City — was improper; that we should have started with the racial mix of the Chicago and the greater metropolitan area labor forces. The evidence shows that in 1960 the male population of Chicago was 76.5% white, 22.5% black and 1% “other,” while the male labor force was 81.5% white and only 18.5% black. In 1970 the male population of Chicago was 60.1% white, 32.1% black and 7% Spanish, while the male labor force was 67% white, 25.8% black and 7.2% Spanish. Furthermore, the male labor force for the greater metropolitan Chicago area for 1970 was 86.5% non-black and 13.5% black. These latter statistics are relevant, we are told, because from 1966 until December 4, 1971 (the date the challenged 1971 patrolman examination was given), Chicago police officers were not required to reside in Chicago. Having established their statistical base, the Arado defendants proceed to argue that “events such as the Martin Luther King riots, the 1968 Democratic Convention confrontations, and the 1969 Black Panther raid, resulted in an antagonism of blacks against the Chicago Police Department and reduced the number of blacks who sought positions in the Department. Closing argument of Ara-do defendants, p. 13. From this the Axado defendants conclude that “the Government’s claim of past discrimination and underrepresentation is unsupported by the evidence in this case.” Id. The most striking aspect of the argument is that in 1971, when the male labor force in Chicago was only 25.8% black, and the Department (we assume we are to infer) still suffered from a “reduced . . . number of blacks who sought positions in the Department,” blacks comprised 29 + % of the men who wrote the 1971 patrolman examination. Thus, it appears that black male interest in the Department was up rather than down. Of course, those 1971 black males failed the examination at a rate of 67% while whites failed at a rate of only 33%, and that factor together with other selection criteria, i. e., place on the roster and background check, resulted in a black male hiring rate of only 10%. The primary inquiry is whether “the tests in question select applicants for hire or promotion in a racial pattern significantly different from that of the pool of applicants.” Albemarle Paper Co. v. Moody, supra. Accepting the Arado defendants’ statistical starting point of black males in the labor market, the result of the 1971 patrolman examination is the same: a grossly disproportionate impact on blacks. The second aspect of the Arado argument which is intriguing is their adoption of the testimony of plaintiffs’ witness Furcon concerning the efforts in the 1960’s “of then-Superintendent, O. W. Wilson, to professionalize the Department and to seek selection devices and procedures to attract the most capable people to become Chicago policemen.” Closing argument of Arado defendants, p. 12. One of the characteristics of the administration of “this farsighted man” (Id.) was a racial mix in the Department of 22%-26% at a time when the black population in the City was approximately 25% and the Chicago black male labor force was between 18.5% and 25.8%. Those statistics should be compared with the present racial profile of the Department: 83% white, 16% black and 1% Hispanic following a 1970 patrolman examination which black applicants failed at a rate of 77%, Hispanics 70% and whites 42%, and the 1971 examination which, as we have noted, blacks failed at a rate of 67%, Hispanics 68% and whites 33%. And the “far-sightedness” of the 1960’s must be compared with the testimony of former Superintendent Conlisk and his successor, incumbent Superintendent Rochford, with respect to the 1972 report of the Law Enforcement Assistance Administration. That report clearly put the City defendants on notice of the adverse effect that the Department’s employment practices were having on minority groups. Yet Conlisk disparaged the report as a “numbers game” which was of “no concern” to him. Rochford, on the other hand, had not bothered to look at the report since becoming Superintendent and had no plans to do so; nevertheless, he disagreed with the report’s conclusions. There can be no doubt that the evidence which we have previously summarized at 385 F.Supp. 548-550 showed that the 1971 patrolman examination had a grossly disproportionate impact upon blacks and Hispanics. Accordingly, it was a discriminatory and therefore, unlawful method of selection. Furthermore, from their experience with the 1970 examination, which was in all essential respects the same as that used in 1971, the City defendants knew that the 1971 test was discriminatory. Defendants’ argument that other law enforcement agencies, including the FBI and the IBI, use entry tests of like nature need not detain us. In the first place, we note that as time passes those tests are being declared invalid under the Civil Rights Act of 1964 and the equal protection clause of the Fourteenth Amendment. See Davis v. Washington, 168 U.S.App.D.C. 42, 512 F.2d 956 (1975), and cases there collected. Furthermore, while the general practice in a trade or industry may be relevant to prove a standard of care, it has never, to our knowledge, been a defense to a charge of discrimination that everyone does it. Insofar as Professor Edwards’ testimony was concerned, we did give it careful consideration in our earlier opinion and we accorded it the weight to which it was entitled. See 385 F.Supp. at 555— 556. With all respect to him, it did not show that the 1971 patrolman examination bore “a demonstrable relationship to successful performance of the job for which it was used.” Griggs v. Duke Power Co., supra, 401 U.S. at 431, 91 S.Ct. at 853, 28 L.Ed.2d at 164. The defendants have not challenged the preliminary injunction findings with respect to the content, use and disproportionate racial impact of the results of the Department’s background investigations of police officer candidates. 385 F.Supp. at 549-550, 556-557. Instead, they urge that the investigative standards of other law enforcement agencies and two recently reported decisions, Green v. Missouri Pacific R.R. Co., 381 F.Supp. 992 (E.D.Mo.1974), and Lane v. Inman, 509 F.2d 184 (5th Cir. 1975), establish that we erred in holding that the investigations had not been shown to be job related. Green and Lane both hold that a prior conviction of a serious offense is, as a matter of law, a valid ground to refuse employment and a license to operate a taxicab, respectively. Green and Lane need not detain us for we agree that a prior conviction of a serious offense would be a valid ground to disqualify a person from police work. And this would be so regardless of the disproportionate racial impact such a standard might have. Furthermore, we agree that the investigative standards of others do tend to show the need for flexibility in inquiries of this type. But we did not enjoin flexibility in background investigations; we enjoined the standardless application of the unknown in arriving at undefined results in those investigations. All the record shows is that the Department inquires into bad character, immoral conduct and dissolute habits (which the chief administrator of the investigations could not define). In reaching those conclusions inquiry is made with regard to a candidate’s education, employment, financial condition, arrests, military service, driving history, and the arrest records of members of his or her family. We have not been given any insight into specific types of negative information that will disqualify a candidate, which may fall into these categories or be learned from these sources. All we know is that across the board, black candidates have been disqualified at a rate 40% greater than white candidates and at a rate of 2 to 1 on the basis of “arrest record” and 3 to 1 on the basis of “negative employment record.” When requirements for employment have such a disproportionate impact, they must be defined so that their validity can be determined. The City defendants have declined to provide that definition. Accordingly, the injunction with respect to the use of the results of the background investigations will be made permanent. What remains is the interest of those men who hold positions on the 1971 patrolman roster — manifested in court by the testimony of a representative sampling of them. They urge that they took and passed the test in good faith and that they should not be penalized by a retrospective determination that the test was discriminatory. The Constitution and the Civil Rights Acts dictate that in cases of this nature, the rights of the victims of discrimination be held paramount. The correlative is that the interests of the unknowing “beneficiary” of the discrimination must be subordinated. This is so because the “beneficiaries” can have no rights which have the unlawful discrimination as their origin. We sit, however, as a court of equity. As such, we can and should undertake to shape a remedy which will disappoint, as little as possible, the aspirations of those who took and passed the 1971 examination in the belief that it was valid. That was a key factor in the decision to approve the interim hiring agreement. That evidently was the intended thrust of the defendants’ witness Ornstein. That is what the Isakson defendants request in their final brief. To the extent permissible, we will, in fashioning a decree, seek to respect those aspirations. For the foregoing reasons and for the reasons stated in the preliminary injunction memorandum, those portions of the preliminary injunction dealing with the appointment of patrol officers from the 1971 patrolman roster, the utilization of the results of the 1971 patrolman examination and the utilization of the results of the Department’s current background investigation in the appointment of patrol officers will be made permanent except to the extent otherwise provided in the portion of this memorandum dealing with the appropriate remedy. 3. Sergeant promotions The defendants’ most vigorous attack against the preliminary injunction findings and conclusions has been made on the issue of promotions from the 1973 sergeant roster. Here they argue that we misapplied the burden of proof, failed to credit properly the preliminary hearing testimony regarding content and concurrent validity of the 1973 sergeant examination, and did not judge correctly the reliability and job relatedness of the Department’s efficiency ratings. In short, we were all wrong. To bolster their contentions defendants adduced additional expert testimony regarding the validity of the 1973 examination and substantial, impressive testimony from certain men holding positions on the 1973 roster as to their preparation for the examination. The starting point is the “consequences of the employment practices.” Griggs, supra, 401 U.S. at 432, 91 S.Ct. at 853, 28 L.Ed.2d at 164, emphasis in the original. What were the results of the 1973 sergeant examination? They were uncontroverted and as distressing . as the results of the 1971 patrolman examination. In 1973 blacks and Hispanics comprised 17% of the 11,431 patrolmen in the Department. They made up 20% of the pool of 6555 patrolmen who took the sergeant examination, again indicating a higher interest rate than their percentage of the available “labor force” would cause one to predict. But, only 13% of those who passed the test were blacks and Hispanics and only 7.2% of those with a reasonable expectation of promotion were. The practical success rate of whites versus blacks and Hispanics was 7.07% to 2.23% or 3 to 1. 385 F.Supp. 550-553. The defendants argue that this showing of disproportionate impact does not shift the burden to them under Griggs and Albemarle because this is a promotion test. That fact enters into the ultimate appraisal of the test and may be relevant to the question of the appropriate remedy, but it does not exempt the test from the commands of the equal protection clause or the Civil Rights Act of 1964. And this is particularly true where the pool of applicants was largely made up of persons who were accepted into the Department on the basis of the discriminatory patrolman examinations given in 1970 and 1971 and the showing that the 1968 sergeant examination had been similarly discriminatory in its results. 385 F.Supp. 550. We earlier placed the burden of proof on the City defendants and it remains there. Thus, they were obliged to persuade us of the job related validity of the 1973 sergeant examination. The burden of persuasion has as one of its benchmarks, the credibility of the witnesses and the weight to be given to their testimony. During the preliminary injunction hearing the defendants placed their stock in this regard in Dr. Charles A. Pounian, a defendant in his capacity as Secretary of the City’s Civil Service Commission. Dr. Pounian testified at length on the issues of content and concurrent validity. As to the former, he testified to the enormous energies — four man years — that were devoted to the preparation of the job description which preceded the preparation of the examination. He also testified to his concurrent validity study in which the examination was given to 88 pairs of black-white sergeants with their examination scores being correlated with their efficiency ratings. And while other experts similarly testified in support of the examination, their testimony was based entirely on Pounian’s; they were experts approving an expert. As we wrote in November, 1974, we had misgivings about the substance of the content and concurrent validity studies, and we still do. 385 F.Supp. 557-560. But we also made clear that we had misgivings about the credibility of the testimony given with respect to the studies. During the preliminary injunction hearing, Dr. Pounian changed his testimony twice while on the stand and his counsel sought to change it a third time by a letter to the court after the hearing was concluded. 385 F.Supp. 558. The two in-court changes were preceded by knowledgeable cross-examination. Nor were the changes mere “computational errors” by subordinates as defendants have urged. From our comprehension of the theory behind and purpose of the testimony, they so adversely affected the results that “[n]one of the third set of correlations reache[d] a level of practical significance in the judgment of either of defendants’ expert witnesses, Dr. Pounian or Dr. Ebel.” 385 F.Supp. 559. Nothing was done during the trial on the merits to bolster Pounian’s credibility or that of his studies. But events transpired and evidence was adduced which, while not reflecting directly on Pounian, did reflect on the general credibility of the City defendants’ case. We speak of the previously mentioned concealment and destruction of intelligence files relating to Renault Robinson and the officers of the Afro-American Patrolmen’s League. There is no question that the files were concealed in 1971 when the City defendants denied their existence. Only when plaintiffs renewed their discovery requests as the case neared trial on the merits did counsel for the City defendants insist that the files be produced. And then it was disclosed during the trial that certain of the files had been destroyed as late as April, 1974 on the eve of the preliminary injunction hearing. The credibility which a trier of fact extends to a litigant’s case is multifaceted. In the final analysis it is a question of confidence in the proof. In the light of this record, we do not have that degree of confidence in the City defendants’ evidence respecting the content and concurrent validity studies of the 1973 sergeant examination as to be persuaded by them. The defendants did, however, undertake to bring greater credibility to the 1973 sergeant examination by calling as an expert witness Dr. Philip Ash of the faculty of the University of Illinois and a person of impeccable credentials. He testified to a number of analyses he made of the examination long after the preliminary injunction hearing. He was permitted to testify out of order so that he could present his views here and meet another professional commitment in Africa. In his opinion the 1973 written sergeants test is content valid because the Civil Service Commission’s job analysis (about which Dr. Pounian testified) was thorough and professional. The specification of tasks into six “exam” categories was correct. The specification of items for coverage was realized by actual items that were included in the test. The match between the content of the job and the content of the test was a close one. The content validity was established in accordance with the EEOC Guidelines and the American Psychology Association Standards. He validated the examination by his own concurrent validity study. That study yielded correlation coefficients significant at the 1% level; the relationship between performance and test scores was linear and the correlation coefficients had practical significance. In his opinion the 1973 examination provided a practical means of significantly improving the quality of personnel at the sergeant level. Finally, Dr. Ash performed a differential validity study to test for possible bias of the 1973 sergeant examination against blacks. He found that the 1973 examination produced correlation coefficients significant at the 1% level for blacks and whites separately. He further found that the regression equations for blacks and whites were virtually identical, i. e., that the 1973 examination did not overpredict or underpredict the performance scores for whites or blacks. These findings, in his opinion, established that the examination was not biased against blacks. On cross-examination it was disclosed that certain of the opinions which Dr. Ash expressed here were at sharp variance with opinions he had recently expressed in other similar cases. For example, he testified that one of the purposes of the examination was to test judgment and, indirectly, psychological characteristics. When he was asked to affirm that a paper and pencil test cannot adequately determine whether a candidate has the necessary judgment and psychological characteristics required of a police officer, he declined to do so. Yet it was disclosed that when he testified for the plaintiffs in Morrow v. Crisler, 491 F.2d 1053 (5th Cir. 1974), an action which challenged successfully the entrance examination used by the Mississippi Highway Patrol, he had stated unequivocally that a pencil and paper test could not adequately determine those characteristics. In respect to his testimony concerning content validity, he agreed that the ultimate purpose of the examination was to select people for job performance as sergeants and that the job was one with diverse duties. He was then asked if, in those circumstances, content validity was not rejected by knowledgeable authorities as a validation technique. He responded in the negative. Then it was disclosed that he had given precisely that opinion in Morrow v. Crisler, supra, when he testified in support of the plaintiffs’ challenge of the test there. On direct examination Dr. Ash had stated that there were no feasible alternatives to paper and pencil examination (which the evidence shows tends to have built-in biases against blacks) when large numbers of applicants are to be tested. He repeated that opinion on cross-examination and then was confronted with his contrary testimony for the plaintiffs in Douglas v. Hampton, 168 U.S.App.D.C. 62, 512 F.2d 976 (1975). In this latter regard, it should be noted that while Dr. Ash’s testimony was given after the announcement of the 1975 temporary sergeants program, it preceded the results of the program. There, the Department selected qualified persons for the position of sergeant without discriminatory results and without a paper and pencil examination. We hold Dr. Ash in high regard. He is an outstanding figure in his field who has given unstintingly of his time in cases of this nature. But his testimony has not persuaded us that the 1973 sergeant examination is a valid predictor of performance on the job. That, as we understand it, is the test we are to apply in testing the testers. We remain confident of our preliminary findings and conclusions in respect to the 1973 sergeant examination and they are reaffirmed. The Arado defendants also elicited the testimony of several men, who passed the 1973 examination, that they had studied for it. In the main they studied the general orders of the Department. They also testified that they had failed the 1968 examination when they had not studied. We are told that the testimony was offered to rebut the “bunk” of white “test-wiseness” advanced by the plaintiffs (Arado defendants’ closing argument, p. 45) and that it shows that