Lynda LeBoeuf COSTA, Plaintiff, Appellee, v. John A. MARKEY, et al., Defendants, Appellants, 706 F.2d 1

BOWNES, Circuit Judge. We granted the plaintiff’s petition for a rehearing to examine the effect on this case of the Supreme Court’s decision in Connecticut v. Teal, 457 U.S. 440, 102 S.Ct. 2525, 73 L.Ed.2d 130 (1982). Because we find that Teal mandates a reversal of our prior opinion, we restate the relevant facts. The New Bedford Police Department makes appointments for police officers from a list of eligible applicants that is certified to it by the state civil service personnel division. The lists at issue in this case were derived from a 1972 written examination for the position of police officer.

Applicants’ names appear on the list in order of their scores on the exam, adjusted for various statutory and court-ordered preferences. Plaintiff took the 1972 examination and was notified in 1973 that her score was 93.3 percent. She passed the city’s physical fitness examination in May 1974. Prior to February 1974 New Bedford had two distinct police categories: males were police officers and females were police women. Male applicants were ineligible for positions as police officers if they failed to meet a minimum height requirement of five feet six inches.

In February 1974 the city abandoned these separate job categories, and thereafter both men and women competed for positions as police officers. Women applicants were also required to meet the five feet six-inch height minimum. In March 1974 a woman police officer retired. Because the city needed a female officer to perform special duties, related,, for example, to female prisoners, it sought special permission from state authorities to engage in sex-specific hiring using a list of female applicants already certified for Taunton, Massachusetts.

The ■ Massachusetts Commission Against Discrimination authorized New Bedford’s use of the Taun-ton list, but the state Division of Civil Service never certified the list to New Bedford. The Division of Civil Service supplied New Bedford with an integrated list of male and female applicants on July 30, 1974, that was derived from the 1972 examination. Plaintiff’s name was mistakenly omitted from this list, but was included on August 7, 1974, after the city was notified of the error. Her name, however, was incorrectly placed higher on the list than it should have been.

This error was corrected, but not until February 1975, well after the allegedly discriminatory acts occurred. In August 1974 plaintiff was interviewed for a position as a police officer in New Bedford, but was rejected because she failed to meet the five feet six-inch height requirement. If her name had appeared in the correct place on the July 30 list, she would not have, received the interview. Thus, application of the height requirement prevented plaintiff from obtaining a job as a police officer for which she was not eligible under the civil service requirements.

After an additional female police officer retired and use of the July 30 list did not result in the hiring of any women, New Bedford sought and received approval to hire from a list dated August 12, 1974. This list was derived from the July 30 list, but contained only the names of the female applicants. Plaintiff’s name correctly appeared first on this list. Plaintiff, however, was again rejected because she failed to meet the height requirement. Two women who placed third and fourth on the list satisfied the height requirement and were appointed to positions as police officers.

The woman appearing second on the list was also disqualified because of the height requirement. Plaintiff brought suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, using a disparate impact theory of discrimination. Plaintiff alleged that-New Bedford’s use of the height requirement discriminated against her on two separate occasions: once, when the integrated list was used, and again, when the female-only list was used. We start with the integrated list.

Plaintiff produced undisputed evidence that eighty percent of the male population is at least five feet six inches tall, while less than twenty percent of the female population reaches this height. The city defended on the basis of the incorrect placement of plaintiff’s name on the applicant list for police officers. The district court held that, although plaintiff was deprived only of an “invalid appointment” as a police officer, the defendants nonetheless had violated Title VII. The court denied plaintiff back pay, but issued a declaratory judgment in her favor. Neither party appealed this judgment.

As to the female-only list, the district court held that the second application of the height requirement also violated plaintiff’s rights under Title VII and entitled her to back pay and other relief. The defendants appealed, and we reversed. In our decision we concluded that because the height requirement was applied to women only there could be no disparate effect on women and hence no prima facie case of disparate impact discrimination. In so doing we rejected plaintiff’s argument, which relied primarily on the Second Circuit’s opinion in Teal v.

Connecticut, 645 F.2d 133 (2d Cir.1981), aff’d, 457 U.S. 440, 102 S.Ct. 2525, 73 L.Ed.2d 130 (1982), that the height requirement was one component of a selection process that excluded eighty percent of all women applicants and that this alone violated Title VII even though the overall result of the selection process was not objectionable. We explicitly declined to follow the Second Circuit’s approach in Teal, and the Supreme Courtis subsequent affirmance of Teal made this reconsideration necessary. In Connecticut v.

Teal, 457 U.S. 440, 102 S.Ct. 2525, 73 L.Ed.2d 130 (1982), the Supreme Court considered “whether an employer sued for a violation of Title VII of the Civil Rights Act of 1964 may assert a ‘bottom line’ theory of. defense.” Id. at 442, 102 S.Ct. at 2528. Under such a theory, an employer using an employment criterion that has an adverse impact on a group protected by Title VII can defend on the ground that the adverse impact is offset by other measures and the final result is an appropriately balanced work force.

The Court held “that the ‘bottom line’ does not preclude [a plaintiff] from establishing a prima facie case, nor does it provide [an employer] with a defense to such a case.” Id. at 442, 102 S.Ct. at 2529. In Teal, the plaintiffs, four black employees of the Department of Income Maintenance of Connecticut, sought to upgrade their positions from provisional to permanent Welfare Eligibility Supervisors. The first step in the promotion process was attainment of a passing score on a written examination. Failure of this test precluded an applicant from further consideration for promotion.

Passing the test meant that the applicant moved on to later stages of the selection process in which the employer considered various other criteria, such as past work performance and recommendations of supervisors. Plaintiffs failed the written exam and brought suit alleging a violation of Title VII. Plaintiffs produced evidence that the written examination had a significantly disparate effect on black candidates; the black passing rate was sixty-eight percent that of the white. The employer defended on the basis of the bottom line result of its promotion process.

It argued that its additional factors in the promotion process, those considered once an applicant passed the written test, resulted in promotion of a greater percentage of black than white candidates. Rejecting the employer’s arguments, the Court explained that in determining whether the plaintiff had established a prima facie case under a disparate impact theory of discrimination the proper focus is not on the “bottom line” results of the hiring process, but rather on the particular step in the process alleged to have a discriminatory effect.

In considering claims of disparate impact under § 703(a)(2) this Court has consistently focused on employment and promotion requirements that create a discriminatory bar to opportunities. This Court has never read § 703(a)(2) as requiring the focus to be placed instead on the overall number of minority or female applicants actually hired or promoted. Id. at 450, 102 S.Ct. at 2532 (emphasis in original). Continuing on to a discussion of its decision in Dothard v.

Rawlinson, 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977), a case concerning height and weight requirements for prison guards, the Court explained: Although we noted in passing that women constituted 36.89 percent of the labor force and only 12.9 percent of correctional counselor positions, our focus was not on the “bottom line.” We focused instead on the disparate effect that the minimum height and weight standards had on applicants: classifying far more women than men as ineligible for employment. 457 U.S. at 450, 102 S.Ct. at 2533.

The Court concluded that “[t]he suggestion that disparate impact should be measured only at the bottom line ignores the fact that Title VII guarantees these individual respondents the opportunity to compete equally with white workers on the basis of job-related criteria.” Id. (emphasis in original). Teal teaches that the proper place to evaluate the strength of a Title VII plaintiff’s prima facie case of disparate impact discrimination is the point at which the employer’s neutral criterion has a discriminatory effect.

The Court’s focus must be on the first step in the employment process that produces an adverse impact on a group protected by Title VII, not the end result of the employment process as a whole. When it is shown that an employer’s rule disproportionately affects members of a class protected by Title VII, eliminating them from competition for an employment opportunity, the plaintiff establishes a prima facie case, and the burden shifts to the employer to show job-relatedness. The employer cannot point to the results of its process, but must justify use of the discriminatory element in that process.

Our original decision focused on the end result of New Bedford’s hiring process. We reasoned that the height requirement could not have a discriminatory effect on women because the city, during this phrase of its police officer recruitment, hired only women. We explained that “[ajbsent any discriminatory purpose, we see no justification for looking behind a result that does not reveal a hiring that has a disproportionately adverse impact on the relevant minority labor pool.” Costa v. Markey, 677 F.2d 158,161-62 (1st Cir.1982).

Teal requires us, however, to look behind the result and evaluate the disparate impact of the height requirement itself, not the end result of its application in this particular case. In the typical disparate impact case, two groups, one protected by Title VII and one not, are competing for employment opportunities. The employer applies a facially neutral rule to both groups, but the adverse results of the rule fall disproportionately on the group protected by Title VII.

The sticking point here is that in this instance of the city’s application of its height requirement women were excluded only relative to other women. While this may be used as a way to distinguish this case from Teal, we think to do so would evade Teal’s specific rejection of the “bottom line” defense. Were we to focus in this case on the city’s hiring of only women, we would be focusing on the “bottom line.” It is undisputed that New Bedford’s five feet six-inch height requirement resulted in far more women than men being classified as ineligible for appointment as police officers.

The city routinely applied the height requirement to both male and female applicants. In this case the city applied the requirement to women only and hired only women. But this is no defense to a prima facie case of disparate impact discrimination. It seeks to justify the disparate effect of the rule in general by pointing to the end results of one particular application of the rule. This is the “bottom line” approach which is proscribed by Teal.

In light of Teal, we hold that when, as here, an employer uniformly applies a rule to male and female applicants and applies it in one round of hiring decisions to a pool of only female applicants; the rule must be job-related if in its regular application it has a disparate effect on women.

We realize that an argument can be made that Teal does not apply to a sex-specific list where mén and women are not in competition for the same job because a plaintiff cannot establish a prima facie case if the result of the particular application of the employer’s neutral rule only generates statistics about how women fared as compared to other women. Such an argument, however, overlooks the proper focus for examining the existence of a prima facie case. The Supreme Court has never required a plaintiff to use statistics from the actual application of a neutral rule when establishing a prima facie case.

There is no requirement ... that a statistical showing of disproportionate impact must always be based on analysis of the characteristics of actual applicants .... [R]eliance on general population demographic data [is] not misplaced where there [is] no reason to suppose that physical height and weight characteristics of [one state’s] men and women differ markedly from those of the national population. Dothard v. Rawlinson, 433 U.S. 321, 330, 97 S.Ct. 2720, 2727, 53 L.Ed.2d 786 (1977) (citations omitted).

If there is reason to doubt the accuracy with which national statistics reflect the effect of the rule on the particular employer’s labor pool, more narrowly tailored statistics may be required. See New York City Transit Authority v. Beazer, 440 U.S. 568, 586 n.29, 99 S.Ct. 1355, 1366 n.29, 59 L.Ed.2d 587 (1979). A case involving a height standard does not require resort to these more exacting statistics.

We hold that plaintiff has established a prima facie case of disparate impact discrimination by making an undisputed showing that New Bedford’s use of its height requirement excluded far more women than men from competing for positions as police officers. Since the city did not seek to justify its requirement by proving job-relatedness, plaintiff has proven a complete violation of Title VII. The final issue is relief. The parties have stipulated to the amount of back pay, interest, and attorney’s fees and the seniority and wage level to which the plaintiff would be entitled if she prevails.

The city defendants, however, dispute whether plaintiff is entitled to back pay at all, the time from which back pay is to be computed, and if she is entitled to back pay, they argue that the state should be jointly liable for any award. The defendants recognize and we agree that once a violation of title VII is proven, the successful plaintiff is presumptively entitled to back pay. See City of Los Angeles Department of Water & Power v. Manhart, 435 U.S. 702, 719, 98 S.Ct. 1370, 1381, 55 L.Ed.2d 657 (1978); Albemarle Paper Co. v.

Moody, 422 U.S. 405, 421, 95 S.Ct. 2362, 2373, 45 L.Ed.2d 280 (1975). “The Albemarle presumption in favor of retroactive liability can seldom be overcome, but it does not make meaningless the district courts’ duty to determine that such relief is appropriate.” City of Los Angeles Department of Water & Power v. Manhart, 435 U.S. at 719, 98 S.Ct. at 2372.

In particular, the district court is required to exercise its discretion in accord with the purposes of title VII. “[BJackpay should be denied only for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination.” Albemarle Paper Co. v. Moody, 422 U.S. at 421, 95 S.Ct. at 2373 (footnote omitted). The defendants claim that in this case two special circumstances exist to justify denial of a back pay award without frustrating the central purposes of title VII.

The first is reliance on a state statute. Defendants rely on a line of cases, decided before Albemarle, in which the courts ruled that an employer’s compliance with a state law designed to protect women, although a violation of title VII, was an important factor in determining whether the plaintiff was entitled to back pay. See, e.g., Williams v. General Foods Corp., 492 F.2d 399, 407 (7th Cir.1974); Ash v. Hobart Manufacturing Co., 483 F.2d 289, 292-93 (6th Cir.1973); Kober v. Westinghouse, 480 F.2d 240, 246-49 (3d Cir.1973).

The Supreme Court in Albemarle did not reach the question of whether reliance on female protective statutes provides an employer with a shield from back pay liability, Albemarle Paper Co. v. Moody, 422 U.S. at 423 n. 18, 95 S.Ct. at 2374 n. 18, and although at least two circuit courts since Albemarle have stated that such reliance would be a factor in the equitable balancing at the remedy stage, see Palmer v. General Mills, 600 F.2d 595, 598-99 (6th Cir.1979) (dictum); Stewart v.

General Motors Corp., 542 F.2d 445, 451 (7th Cir.1976) (dictum), cert. denied, 433 U.S. 919, 97 S.Ct. 2995, 53 L.Ed.2d 1105 (1977); contra Stryker v. Register Publishing Co., 423 F.Supp. 476,477 (D.Conn.1976), we need not decide this question in the present case. In the line of cases to which defendants look for support, the state statutes in question unequivocally commanded the employer to treat women employees differently than male employees. Such a statute, for example, would place limits on the hours a woman could work or on the strenuousness of the tasks she could perform.

In the typical case the employer was caught between the proverbial rock and a hard place. That is, it could comply with either the commands of title VII or the state statute, but not both. The courts reasoned that the employer should not be penalized with a back pay award when it relied in good faith on a valid state statute. In this case, there is no statute that commanded New Bedford to adopt the height requirement. The statute to which defendants point only authorizes a city or town to adopt a height requirement if it chooses to do so. See 1973 Mass. Acts ch. 351.

The statute did not present New Bedford with the dilemma inherent in cases in which the state statute irreconcilably conflicts with title VII; such a conflict is the factor that tips the equitable balance in a defendant’s favor. The second special circumstance that defendants claim requires the court to deny back pay is their own good faith. We think that Albemarle prohibits a court from denying back pay solely on the basis of the employer’s good faith.

Although in Albemarle the Court ruled only that an employer’s lack of bad faith is not a sufficient reason for denying back pay, 422 U.S. at 422, 95 S.Ct. at 2373-74, the factors the defendants used to show absence of bad faith are almost identical to those asserted here, and the Court’s reasoning, therefore, is equally applicable here. In Albemarle defendant’s claim of no bad faith was based on its attempts to recruit minorities and its lack of knowledge that its seniority system violated title VII despite its disparate effect on blacks.

Here, defendants contend that their good faith is demonstrated by their taking affirmative steps to hire women and their lack of intent to discriminate. Defendants, thus, in effect ask us to deviate from the holding that Albemarle compels. We are not convinced that denial of back pay would not frustrate the purposes of title VII. Denying back pay on the basis of an employer’s innocent intentions would make the remedy “a punishment for moral túrpitude, rather than a compensation for workers’ injuries. This would read the ‘make whole’ purpose right out of Title VII .... ” Albemarle Paper Co. v.

Moody, 422 U.S. at 422, 95 S.Ct. at 2374. Moreover, too close an “emphasis on the employer’s aspirations and intentions accords too little weight to the legal standards that govern under Title VII. That Act focuses on effects, not purposes.” Cohen v. West Haven Board of Police Commissioners, 638 F.2d 496, 504 (2d Cir.1980). Were we to deny back pay here we would eliminate an important incentive for employers to undertake self-examination of their employment practices and discard those that have an illegal discriminatory effect.

Defendants next claim that their back pay liability was cut off as of the date of their subsequent offer to place plaintiff on the police force if she met the applicable civil service regulations. Plaintiff argues, first, that any offer was not “bona fide” because it was necessarily conditioned on plaintiff’s obtaining a place on a civil service list, a factor the city could not control, and second, that she was not obligated to accept the offer because it did not include back pay and retroactive seniority. The Supreme Court’s recent decision in Ford Motor Co. v.

EEOC, - U.S. -, 102 S.Ct. 3057, 73 L.Ed.2d 721 (1982), controls our disposition of this issue. In Ford Motor Co. the Court held that “absent special circumstances, the rejection of an employer’s unconditional job offer ends the accrual of potential backpay liability,” id. at-, 102 S.Ct. at 3070, and that an employer’s failure to include in the offer retroactive seniority or back pay does not make the offer unconditional and is not a special circumstance justifying rejection. Id. at-n. 7,---, 102 S.Ct. at 3062 n. 7, 3065-71.

From our examination of the record we are unable to discern the exact date on which the city made an offer to plaintiff and whether the offer was unconditional as defined in Ford Motor Co. We must therefore remand to the district court so that it can determine the amount of back pay due in the light of Ford Motor Co. Finally, we uphold the district court’s limitation of the back pay award to the city defendants only. The single act of discrimination that led to an award of back pay was the application of the height requirement to plaintiff during competition involving the all-women list.

As we noted earlier, the city’s adoption of the height requirement was completely voluntary. Although the state permitted an individual city to adopt a height requirement, it in no way compelled New Bedford to do so, and it clearly did not mandate adoption of a requirement that violated title VII. In short, neither the plaintiff nor the city produced any evidence that the state was responsible for the discrimination at issue. Our prior opinion finding no liability is reversed, and the case is remanded for further proceedings consistent herewith. .

Plaintiffs position on the list was based on the ranking of an applicant who not only had scored 93.3 percent on the examination,' as plaintiff had, but also was a member of a racial minority to be accorded preference, which plaintiff was not. . The height requirement rule has beep eliminated. . All further references to defendants are to the city defendants, the city officials of New Bed-ford. The state is also a party defendant.