dissenting.
I would remand to the district court on both the Title VII and § 1981 claims.
I recognize that we are bound by the holding in Bronze Shields, Inc. v. New Jersey Department of Civil Service, 667 F.2d 1074 (3d Cir. 1981), that the 180-day period in which to file a charge with the EEOC runs from the date of the eligibility list’s promulgation with respect to applicants who failed the examination and who were never placed on the list. My own view is that Judge Higginbotham’s dissent sets forth the more persuasive analysis relying on the continuing violation, but we are not free to overrule a published opinion of a previous panel. See Internal Operating Procedures, United States Court of Appeals for the Third Circuit, Ch. VIII, C. (1980). However, in this case, the Title VII claim differs in some material respects from that *960before the court in Bronze Shields. Here the plaintiff Heath was already a firefighter who sought to attack not only the pattern of promotions in the fire department but the pattern of hirings as well. As a current employee, there would have been no reason for Heath to have taken the examination of May 30, 1973, from which the list controlling hirings was apparently taken. Heath’s ability to challenge discriminatory hiring practices may be sustained under the theory that a current employee has standing under Title VII to attack discriminatory hiring practices, even though the complaining employee has not been denied employment. See, e.g., EEOC v. Mississippi College, 626 F.2d 477, 482-83 (5th Cir. 1980), cert. denied, 453 U.S. 912,101 S.Ct. 3143, 69 L.Ed.2d 994 (1981); Waters v. Heublein, Inc., 547 F.2d 466, 469-70 (9th Cir. 1976), cert, denied, 433 U.S. 915, 97 S.Ct. 2988, 53 L.Ed.2d 1100 (1977); Gray v. Greyhound Lines, East, 545 F.2d 169 (D.C.Cir.1976). Cf. Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972) (current tenants have standing under Title VIII to attack exclusion of non-white apartment applicants on grounds of interest in “interracial associations”). See also 4 Newberg on Class Actions § 7973c (1977). In an affidavit on record, Heath alleged that his work environment has been adversely affected by the absence of more black and hispanic employees in the fire department. Appendix of Appellant Vulcan Pioneers at A148-51. The district court failed to consider whether these allegations demonstrate sufficient injury to confer standing upon Heath to complain of the hiring practices. Since Heath’s action was dismissed for failure to file a timely charge and there was no finding that he had not adequately shown standing, I believe that on appeal we must assume that Heath can properly challenge both hiring and promotion practices.1
Heath filed his EEOC charge on July 27, 1976, concededly more than 180 days after the promulgation of the hiring list on October 4, 1973. However, this list did not expire until October 3, 1976. Since the plaintiff in this case, in contrast to those in Bronze Shields, is an employee who claims continued injury because of discriminatory hiring practices, I would hold that the violation continues so long as the list remains in effect, and that the period for timely filing of a charge with the EEOC would extend from the promulgation of the list to 180 days after its expiration. As so construed, Heath’s charge was filed within the requisite 180 days.
*961Moreover, in Bronze Shields we relied on the fact that there had been no appointments from the list within 180 days before the filing of the charge and suggested that the result might be different if that were not the case. 667 F.2d at 1083 & n.23. In contrast, it appears in this case that several firefighters were hired on March 10, 1976. If those hirings were made using the hiring eligibility list, a question which is not clear from the record, then the Heath complaint was timely filed not only if measured from the expiration of the list but also if measured from the most recent use of the list.
The majority seems to concede that the Heath complaint, if timely filed, would toll the limitations period with respect to the Hood complaint. Cf. American Pipe & Construction Co. v. Utah, 414 U.S. 538, 554, 94 S.Ct. 756, 766, 38 L.Ed.2d 713 (1974) (“commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action”). Unlike the plaintiffs in Bronze Shields who had failed the examination, HOod passed it but alleges that as a result of the discriminatory practices, his low placement on the eligibility list resulted in the failure to hire him. Appendix of Appellant Hood at A3-4. Hood could not have been expected to know that his name would not be reached until the list expired. Since the date when Heath filed his charge with the EEOC, July 27, 1976, inured to Hood’s benefit, and as noted above, I would hold Heath’s charge was timely, I would also hold that Hood is not precluded from having his Title VII action heard.
Turning next to the § 1981 claim, I continue to believe that proof of discriminatory impact should be sufficient to establish a claim under § 1981, for the reasons set forth in Judge Gibbons’ dissent in Croker v. Boeing Co., 662 F.2d 975 (3d Cir. 1981) (en banc), which I joined, and in Judge Higgin-botham’s dissent in Bronze Shields. I recognize, however, that we are compelled to follow the precedent of those cases. In view of the fact that the Supreme Court has agreed to review a case presenting this very issue, Guardians Association v. Civil Service Commission, 633 F.2d 232 (2d Cir. 1980), cert, granted,-U.S.-, -, 102 S.Ct. 997, 71 L.Ed.2d 291 (1982), I would have preferred to defer decision of this case pending the Supreme Court’s ruling on this subject.
However, even under the construction of § 1981 accepted by the majority in Croker v. Boeing, I believe the entry of summary judgment was inappropriate. The Croker majority recognized that “disproportionate impact may be an important factor in proving racially discriminatory intent. See Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977).” 662 F.2d at 989. In this case plaintiffs have alleged a disproportionate impact of such magnitude as to create an inference of discriminatory intent. As alleged by plaintiffs, the population of Newark according to the 1970 census was 54% black, 12% hispanic. Appendix of Appellant Vulcan Pioneers at A89. In 1973, blacks comprised only 4.5% of the Newark Fire Department, the lowest percentage of minority employees of any major Newark agency. In contrast, the percentage of black employees in other Newark agencies was 43.4%; the agency with the largest percentage of blacks was the department of rat and pest control, 86.2% of whose employees were black. Id. at A90.
The 1973 statewide civil service hiring examination had a pass rate of 65.1% for white male applicants, 18.3% for black male applicants, and 18.5% for hispanic male applicants. Id. at A100. Between 1973 and 1976, 112 appointments were made to the fire department from the list, of whom only 4 were blacks, and 1 hispanic. Id. at A85. In 1976, blacks and hispanics still, only comprised 5% of the fire department. Id. at A95. While defendants may be able to rebut the inference of discriminatory intent which those statistics create, I believe that on this record a triable issue of intent was raised.
*962I would therefore remand to the district court for resolution of the factual issues, if any, presented with respect to Heath’s standing to challenge the hiring practices of the fire department, the propriety of class certification on the Title VII claim, and the adequacy of the plaintiffs’ evidence to establish discriminatory intent under § 1981.
. The majority suggests that we are precluded from considering what it denominates as Heath’s “ ‘work environment’ claim” on the ground that it was not raised until well after the original EEOC charge. At 958 n.8. However, Heath’s allegation that is work environment has been adversely affected by the absence of more minority employees does not constitute a separate claim of discrimination. It is conceded that Heath’s EEOC charge challenged both the pattern of hirings and promotions in the fire department, which were the discriminatory practices alleged. The “work environment claim”, on the other hand, has relevance to Heath’s standing to assert his claim of discrimination in hirings.
As the court stated in Macon v. Bailar, 451 F.Supp. 140, 142 (E.D.Va.1978), cited by the majority at 958 n.8, the requirement that a charge of discrimination first be filed with the EEOC serves to give the employer “notice of the fault” and “the opportunity to correct its fault out of court.” In this case, Heath’s EEOC charge alleged:
The [defendants] discriminate against Black and Hispanic people on the basis of race in hiring, promotion and other terms, condition and privileges of employment. This pattern and practice of discrimination includes the following: The New Jersey Department of Civil Service and the New Jersey Civil Service Commission have administered hiring and promotional examinations for firefighter positions which discriminate against Blacks and Hispanics. The City of Newark has administered a background investigation for applicants for employment for firefighters which discriminates against Blacks and Hispanics. The present seniority system perpetuates these discriminatory practices. The charging party brings this charge on behalf of all Black and Hispanic persons similarly situated.
Appendix of Appellant Vulcan Pioneers at A44. This charge gave defendants ample notice that Heath was challenging both the pattern of hir-ings and promotions. Unlike the cases cited by the majority, therefore, this is not a case where an employee files a charge with the EEOC alleging one type of discrimination and then files suit alleging another type of discrimination.