Meeting of May 16, 2007 - Employment Testing and Screening
Employers seeking to make hiring and promotion decisions based on merit frequently use tests to establish a list of eligible candidates. The recent spat of litigation over these tests underscores that these tests are prone to disparate impact challenges. The Supreme Court first described the disparate impact theory in Griggs v. Duke Power Co., 401 U.S. 424, 431-2 (1971) (Title VII “proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. . . . [G]ood intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as ‘built-in headwinds’ for minority groups and are unrelated to measuring job capability.”). The allocation of proof in a disparate impact case is as follows:
There are several methods of measuring adverse impact. One method is the EEOC’s Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. §1607 et seq. (“Uniform Guidelines”), which finds an adverse impact if members of a protected class are selected at a rates less than four-fifths (80 percent) of that of another group. For example, if 50 percent of white applicants receive a passing score on a test, but only 30 percent of African-Americans pass, the relevant ratio would be 30/50, or 60 percent, which would violate the 80 percent rule. 29 C.F.R. §§ 1607.4 (D) and 1607.16 (R). The 80 percent rule is more of a rule of thumb for administrative convenience, and has been criticized by courts. See 1 LINDEMANN AND GROSSMAN, EMPLOYMENT DISCRIMINATION LAW, at 92-94.
The courts more often find an adverse impact if the difference between the number of members of the protected class selected and the number that would be anticipated in a random selection system is more than two or three standard deviations. See 1 LINDEMANN AND GROSSMAN, at 90-91. The defendant may then rebut the prima facie case by demonstrating that the scored test is job-related and consistent with business necessity by showing that the test is “validated,” although a formal validation study is not necessarily required. 29 CFR § 1607.5(B); see also Watson v. Fort Worth Bank & Trust Co., 487 U.S. 977, 998 (1988); Albermarle Paper Co. v. Moody, 422 U.S. 405, 431 (1975).
This memorandum summarizes significant relatively-recent cases from January 2000 through April 5, 2007, involving the use of scored tests in the employment context. It excludes polygraphs or so-called “honesty tests,” but includes physical strength and agility tests. The cases were located through a Westlaw ALLFEDS search, a LEXIS-NEXIS search, in the GENFED Library, CURRENT File, and a search of Fair Employment Practice Cases (BNA), also on LEXIS-NEXIS. All cases have been checked for subsequent history, which is included in the citation. The case are listed alphabetically and divided between courts of appeals cases and district court cases.
Adams v. Chicago,
469 F.3d 609 (7th Cir. 2006).
Minority Chicago police officers sued the City, claiming that an exam used for promotions to sergeant in 1997 had a disparate impact on minority candidates.
The challenged exam was created by an outside consultant and consisted of three parts: (1) multiple-choice questions covering the law, department procedures, and other regulations sergeants needed to know; (2) multiple-choice questions testing the administrative functions performed by sergeants, and (3) an oral exam based on written briefing. To qualify for the third part of the exam, candidates had to perform well on the first two parts. Each part of the exam was weighted equally, and candidates were ranked by scores to create a promotion list, with the highest scorer entitled to the first promotion. The exam was first used in 1994. Because the court had previously denied an injunction requested by the plaintiff-officers to prevent continued use of the exam, it was used again in 1996 and 1997. About one month before the 1997 exam, a task force appointed by the Mayor recommended that the City change its promotions so that “thirty percent of promotions to sergeant be based upon merit [i.e., on-the-job performance as rated by supervisors], with the promotional tests used to assure a ‘minimum level of competence.’” The plaintiff-officers here challenge the exam’s use for 1997 promotions, because the City did not implement the task force’s recommendations.
The City conceded that the promotional exam had a disparate impact on minority officers who sought promotion to sergeant. The plaintiff-officers conceded that the promotional examination was job-related and consistent with business necessity, based on a previous court ruling from litigation involving a similar test used to promote sergeants to lieutenants. Therefore, the remaining issue is whether the plaintiff-officers proved that there was another available method of evaluation which was at least equally valid and less adverse that the City refused to use.
At trial, the plaintiff-officers offered two pieces of evidence to show that the City failed to use an alternative, available method of evaluation: (1) Beginning in 1989, the City used merit to fill twenty percent of D-2 positions, which consists of police officers functioning as detectives, youth officers and gang crimes specialists, and (2) the City implemented the task force’s recommendation to base thirty percent of its officer-tosergeant promotions on merit starting in 1998. The trial court found that promotion processes used after 1997 were inadmissible as subsequent remedial measures under Rule 407 and granted summary judgment for the City, because without such evidence, the plaintiff-officers could not demonstrate that considering merit was available or would result in at least equally job-related, less adverse promotions.
On appeal, the Seventh Circuit ruled that the trial court erroneously excluded the evidence as a subsequent remedial measure, holding that Rule 407 did not apply to disparate impact situations and that such evidence qualified as an exception to Rule 407’s exclusion by being admitted for the another purpose—determining the availability of an alternative promotional method. The Seventh Circuit nonetheless upheld the ultimate decision below, because even while using the 1998 examination as evidence, the plaintiff-officers still could not show that the City had available to it an at least equally valid and less adverse exam by the 1997 promotions. The plaintiff-officers would have to show that the last officer promoted in the proposed merit-based selection process would be roughly as qualified as the officer last selected under the 1997 method. Even if the plaintiff-officers could show this, they could not show that the process for evaluating the officers based on merit for sergeant promotions was actually available for use during the 1997 promotions or that the City refused to adopt this alternative. The task force’s recommendation only one month prior to the 1997 promotional process was only prospective, and development of the merit-based process used in 1998 took approximately nineteen months. The Court further determined that, because the D-2 merit-based process, which did exist in 1997, involved promotions into non-supervisory positions, it could not be considered an available, at least equally valid method for promoting officers into the supervisory position of sergeant.
The dissent disagreed with the weighty burden the majority placed on the plaintiff-officers, reasoning that they only had to, and did, present evidence from which a reasonable jury could conclude that, at the time of the 1997 promotions, the City could have used a thirty-percent merit promotion process. The dissent disagreed that a reasonable alternative is not available merely because the defendant has not completed its own inquiry into the viability of the alternative—and that at least a material dispute of fact existed as to whether the City took proper steps to implement the task force’s recommendation promptly.
Allen v. Chicago,
351 F.3d 306 (7th Cir. 2003).
African-American and Hispanic police officers brought suit against city, alleging it engaged in race-based discriminatory promotions in violation of Title VII. This case arose from a challenge to the 1998 sergeant’s promotional process by minority officers who were not selected for promotion from officer to sergeant. Two classes of plaintiffs challenged the process. Subclass A plaintiffs were minority officers who failed a written qualifying test and were not eligible for promotions. Subclass B plaintiffs were minority officers who passed the written qualifying test, but were not promoted because of the city’s thirty-percent ceiling on the number of merit-based promotions. Although both the written qualifying test and the thirty-percent ceiling on merit promotions had a disparate impact on minority officers, the officers conceded that each was job related and consistent with business necessity. Therefore Subclass A and B plaintiffs each attempted to argue that other tests or selection devices, without a similarly undesirable racial effect, would also serve the employer’s legitimate interest in efficient and trustworthy workmanship.
Subclass A Plaintiffs
Subclass A officers challenged the written qualifying test prerequisite to merit promotions. Subclass A officers proposed that merit promotions be made without requiring a passing score on the written qualifying test. The court found that the officers lacked evidence to establish either that: (1) merit promotions with no qualifying score prerequisite would be substantially equally valid as merit promotions with the qualifying score prerequisite, and (2) whether such promotions would be less adverse in their impact.
The written qualifying test was designed to measure the skills, knowledge and abilities required by a minimally qualified sergeant on the first day of the job. The merit promotions were validated with the qualifying test prerequisite. The City argued therefore, there was no evidence that merit promotions alone would be equally valid. Without an initial assessment of job knowledge, skills and abilities, an officer who lacked the minimum level of competence might be promoted.
The officers argued that the City could eliminate the test and train nominators, who were already trained to assess meritorious traits, also to assess job knowledge, skills and abilities. The officers, however, provided no evidence to demonstrate that the nominators were capable of assessing these prerequisites. The court found the officers’ “bare assertion” about the ability of nominators to assess job knowledge was insufficient to show that this procedure was valid in comparison with the written qualifying test. The court further stated that, even if the officers had presented evidence of validity, they still presented insufficient evidence that their alternative would be less discriminatory. There was simply no way of knowing who would be promoted if the nominators assessed job knowledge, skills and abilities, without regard to passage of the written qualifying test. Thus, the court affirmed summary judgment to the City on the claim of Subclass A.
Subclass B
The Subclass B officers challenged the city’s thirty-percent ceiling on merit promotions as discriminatory. They argued that merit promotions should be made at a greater percentage of the total number of promotions made.
The court of appeals affirmed the district court’s determination that Subclass B had not established an equally valid, less discriminatory alternative, and thus the City was entitled to summary judgment. On appeal the officers argued that they “should not be required to come forward with evidence to show a correlation between their alternative procedure and job performance.” The court of appeals held that this argument directly contradicted their burden under the framework of 42 U.S.C. § 2000e-2(k)(1)(A)(ii) and Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, (1975). Thus, without any evidence that the officers’ alternative of increasing merit promotions would lead to a workforce substantially equally qualified, the court could not accept the officers’ alternative as substantially equally valid.
Allen v. Rumsfeld,
No. 03-1496, 2003 WL 21739000 (8th Cir. July 9, 2003).
Federal employee brought action alleging that she was denied promotion because of her race and in retaliation for prior complaints of discrimination, both in violation of Title VII. The court found that plaintiff’s low scores on the skills narrative evaluation precluded her from establishing a prima facie case, because they indicated that she was not as qualified as the fifty-six employees who were promoted. Plaintiff contended that her low scores were the result of discrimination, either because the panelists who rated her skill narratives determined her race due to the activities discussed in them or because the defendant practiced discrimination by limiting racial minorities’ participation in activities that lead to achievement of higher scores. The record, however, demonstrated that participation in relevant activities was not race-specific and that the individuals rating the skill narratives had no information regarding the race, color, or national origin of the applicants. Furthermore, there was no evidence to support plaintiff’s claim that the persons who rated her application were able to determine her identity and then to retaliate against her for prior complaints of discrimination. Finally, the Court found unavailing plaintiff’s argument that the declining numbers of African-Americans receiving promotions was evidence that she was discriminated in this case and affirmed summary judgment for the defendant.
Anderson v. Westinghouse Savannah River Co.,
406 F.3d 248 (4th Cir. 2005), cert. denied, 126 S. Ct. 1431 (2006).
A black, female administrative assistant sued her employer alleging that its use of its Competency Based Posting System (CBPS) and Ranked Performance Pay Process (RP3) created a disparate impact on African-Americans. The hiring and promotion process under the CBPS contains 19 steps, three of which were challenged by the plaintiff on account of their subjectivity. The three challenged steps related to the applicants being selected for an interview and the interview panel choosing the candidate for the position after an interview. During the interviews, the panel considers six core competencies: teamwork, leadership, communications, business results, self-management, and employee development. The panel also considers functional competencies, which are selected to be specific to the position sought—such as being proficient in heating and a/c design.
The RP3 is designed to provide merit-based increases based on job performance. Managers must use the RP3 electronic evaluation worksheet to rate employees, and employees can be rated in various combinations, such as total ranking of all employees, ranking per work group, ranking per salary grade, etc. Merit increases are awarded based on each division’s budget and rankings. Plaintiff offered one expert’s opinion testimony on the disparate impact of the RP3 system. The Fourth Circuit affirmed the district court’s decision to exclude this testimony for lack of proper controls—his statistical analysis compared white and African-American employees without taking into account any differences in their job titles or position and, therefore, failed to compare similarly-situated workers. Without this expert testimony, Plaintiff’s RP3 disparate impact claim failed.
Plaintiff’s CBPS disparate impact claim also failed. Plaintiff failed to provide sufficient statistical evidence to show causation, because her expert’s comparison of the percentage of African-American employees who actually succeeded to the percentage he expected to succeed based on the total percentage African-American employees failed to account for any other variables, such as presentation in interviews, education, and experience. Additionally, the discretion of the interview panel was not as subjective or unfettered as the plaintiff alleged, seeing as how they were required to rely on core and functional competencies when evaluating the candidates.
Banks v. East Baton Rouge Parish School Bd.,
320 F.3d 570 (5th Cir. 2003), cert. denied, 124 S. Ct. 82 (2003).
Female former and current school janitors brought suit against school board, alleging retaliation and disparate impact discrimination in violation of Title VII and § 1983. According to the employees, the Board thwarted the employees’ immediate promotion, when the Board, acting pursuant to a consent decree, implemented a reading requirement and new salary structure for its janitors.
Prior to the Consent Decree, the Board employed three levels of janitors, Janitor I, Janitor II and Janitor III. Janitor I employees (all of whom were female) worked part-time for six hours per day, nine months per year and were responsible for performing basic tasks. Janitor II employees (most of whom were male) worked eight hours per day for the entire year, performed essentially the same tasks as Janitor I, with the addition of some duties such as lawn care. Janitor III employees (all of whom were male) worked full-time, performed the same tasks as Janitor I and II employees, with the addition of some supervisor tasks, such as locking up buildings and supervising cleaning crews.
After the Board eliminated medical benefits and reduced the hours of Janitor I employees, the Employees sued, alleging that the Board’s actions had a disparate impact on female employees, since all Janitor I employees were female. While this suit was pending, the DOJ commenced an investigation and ultimately filed suit against the Board alleging that the Board discriminated against women by reserving the Janitor II and Janitor III positions for males. After an evaluation of all school system positions, the Board decided to phase out the three-tiered janitor position and replace it with two new positions: “Janitor” and “Lead Janitor.” The Board implemented new testing procedures to select applicants for the new Janitor position. Applicants were required to take and pass a “practical” test involving the use of maintenance equipment, as well as a reading test, which tested an applicants’ ability to read at an eighth-grade level. Applicants for the Lead Janitor position were not required to take either test. The Board’s justification for the reading test was safety concerns based upon OSHA safety regulations, which are written on an eighth grade reading level, as were the majority of chemical workplace safety sheets. The Board then entered into the consent decree with the DOJ, which incorporated the Board’s plan for the new Janitor position.
Thereafter, when the plaintiffs applied for the new Janitor position, they took the required tests. All the plaintiffs passed the practical test, but only one passed the reading test. The plaintiffs who failed the reading test were given the option of either remaining in their old Janitor I jobs or taking the new Janitor position on a probationary basis, regardless of their current reading ability. The plaintiffs who took the probationary Janitor position were paid at the lowest pay step in the new pay scheme. Once a probationary employee demonstrated an eighth grade reading level, she would be moved up the pay scale to a level that corresponded with the old Janitor I pay scale.
The instant lawsuit followed. The plaintiffs alleged that the Board’s implementation of the new Janitor position was in retaliation for the plaintiffs’ previous lawsuit against the Board. When asked why the reading test was required, one school employee allegedly stated, “[t]hat’s what you get for filing a lawsuit.” The employees also alleged that the reading test had a disparate impact on female janitorial employees.
The district court granted the Board’s Motion for Summary Judgment, finding that plaintiffs failed to establish a prima facie case of retaliation. The Fifth Circuit affirmed, reasoning that the Board’s implementation of the reading test was not an “adverse employment action” under either Title VII or § 1983.
In addition, the court of appeals affirmed the district court’s finding that the plaintiffs failed to establish a prima facie case of disparate impact discrimination under Title VII. The plaintiffs argued that the female Janitor I employees were the only employees adversely impacted by the reading requirement, since the mostly-male Janitor II employees could place into the Lead Janitor positions without taking a reading test. The court of appeals, however, looked to the entire pool of potential applicants for the position, not just the actual applicants. The court found that the entire pool was open to both male and female applicants. Also, the plaintiffs failed to produce any statistical evidence tending to show that the reading requirement operated in a way that selected females in a pattern “markedly disproportionate” from the entire pool of applicants for the new Janitor position. In addition, the plaintiffs failed to produce any non-statistical evidence that the reading requirement selected female applicants in a significantly discriminatory pattern.
The court found that the Board, on the other hand, provided statistical evidence showing that the selection of the protected group, females, actually exceeded the selection of the comparison group, males. The Board explained that, since the position was created and the reading tests had been used, a total of 548 females and 471 males had applied for employment. Of those applicants, 87 females (or 15.9% of the total female applicants) and 56 males (or 11.9 % of the total male applicants) were selected for employment. The Board also maintained that, “the figures show that, in reality, more women have been selected for employment for the new janitor position than men despite the testing requirements.” Thus, the court held that that the district court correctly concluded that the plaintiffs failed to establish a prima facie case of disparate impact discrimination.
Banos v. Chicago,
398 F.3d 889 (7th Cir. 2005)
Minority police sergeants in the Chicago Police Department (CPD) sued the City of Chicago, alleging racially discriminatory disparate impact in the 1998 CPD promotional process in violation of Title VII.
The Promotional Process: Sergeants applying for lieutenant positions were put through a three-part evaluation: (1) a written qualifying test, (2) an assessment exercise, and (3) a merit selection process. Applicants were required to pass the written qualifying test before they could be considered for lieutenant under the latter two parts. Following the written test, the City made 70 percent of its promotions from a rank-order list of candidates based on their score on the assessment exercise, which was composed of written responses to questions. The remaining 30 percent of promotions were merit-based.
In their original complaint, the Plaintiffs alleged that both the written qualifying test and the assessment exercise unlawfully discriminated against them based on race. The district court certified two subclasses of Plaintiffs: Subclass A was composed of minority officers who failed the written qualifying test; Subclass B was composed of minority officers who passed the written qualifying test but did not achieve a high enough score on the assessment exercise to warrant promotion.
The outcome of this case turned on holdings in two other pertinent cases. In July of 2000, the Plaintiffs requested and were granted a stay of discovery pending resolution of a writ of certiorari filed in Bryant v. City of Chicago, 200 F.3d 1092 (7th Cir. 2000). In Bryant, the Seventh Circuit Court of Appeals held that the 1994 CPD promotional process was content-valid and thus not violative of Title VII. The Supreme Court denied the writ of certiorari in October of 2000.
Following this denial, the Plaintiffs amended their complaint, alleging that merit promotions were an equally valid, less discriminatory alternative to rank-order promotions, and that the City of Chicago violated Title VII by limiting the use of merit based promotions to 30 percent. Upon request, the Plaintiffs admitted, pursuant to Fed. R. Civ. P. 36(a), that the written qualifying test and the assessment exercise were valid under Title VII.
However, in the aftermath of Allen v. City of Chicago, No. 98-C7673, 2002 WL 31176003 (N.D. Ill. Sept. 30, 2002) (ruling that plaintiffs had failed to establish that merit-based promotions were an equally valid and less discriminatory alternative to rank-based promotions), the Plaintiffs sought to resurrect their original claims, acknowledging that Allen was fatal to their amended complaint. Once again, the Plaintiffs attempted to assert, under Fed. R. Civ. P. 36(b), that the written qualifying test and the assessment exercise violated Title VII, asking the district court to withdraw their earlier admissions. This request was denied and the district court entered summary judgment for the City of Chicago. The Seventh Circuit Court of Appeals affirmed, finding no abuse of discretion. Expressly endorsing the district court’s refusal to allow Plaintiffs to withdraw their admissions, the Court of Appeals declared, “Admissions, in some ways, are like sworn testimony. Once one is made, there is no need to revisit the point.”
Baptist v. Kankakee,
-- F.3d --, 2007 WL 789583 (7th Cir. 2007).
African-American police officers sued the City of Kankakee, alleging racial discrimination in the police department’s promotional policies and a promotional test. Defendant’s promotional exam was given for the purpose of creating lists for promotions to Sergeant or Lieutenant. The promotion exam consisted of a written exam, an oral exam for Sergeant candidates or Oral Assessment Center for Lieutenant candidates, merit (“Chief”) points, longevity points, and time-in-grade points. If an individual’s total score was 70 or more, that person would be entitled to additional “veteran’s points,” based on military service. Individuals were placed on the promotion eligibility list in rank-order based on total score.
Plaintiffs settled in open court and then moved to vacate the settlement. The Seventh Circuit rejected the plaintiffs’ arguments and affirmed the settlement and the order dismissing their disparate treatment claims.
Relevant settlement terms: The City agreed to engage in practices to safeguard against discrimination, such as: (1) establish a “Blue Ribbon Committee” to review recruiting, testing, and promotional policies; (2) employ an independent testing company for any hiring and promotion testing, and (3) conduct annual cultural diversity training.
Bell v. Potter,
No. 02-2732, 2002 WL 31641561 (7th Cir. 2002), cert. denied, 123 S. Ct. 1922 (2003).
An African-American applicant sued Postal Service, alleging that denial of his second application for employment was retaliatory because he filed a discrimination complaint related to his first application. The court found that the plaintiff’s comparison of potential postal employees and their test scores was irrelevant, because test scores were not among the reasons that the Postal Service articulated for not hiring the applicant. The court held that the applicant failed to establish a prima facie case of retaliation against the Postal Service.
Bew v. Chicago,
252 F.3d 891 (7th Cir. 2000), cert. denied, 534 U.S. 1020 (2001).
The plaintiffs in this case were African-American probationary police officers who were discharged by the City of Chicago for failing the Illinois Law Enforcement Officers’ Certification Examination. They sued, alleging a disparate impact on African-American and Hispanic officers. This is an unusual case in which the overall pass rate for African-Americans was 98.24% as compared to 99.96% for whites. The district court held that, even where there was no violation of the 80% guideline, there still might be disparate impact under a Z-score analysis, and in this case the Z-score was more than five standard deviations from the norm. The City’s motion for summary judgment was denied, and the case proceeded to a bench trial. In that trial the district court held that plaintiffs had established a prima facie case of disparate impact discrimination, but that the City had proved that the exam was related to the job, the cut-off score was reasonable and consistent with professional standards, and that defendants had shown a business necessity for the test. In this opinion the Court of Appeals affirmed that finding. Plaintiffs had objected to the cut-off score, but the court found it to be consistent with normal expectations of the knowledge necessary to be a police officer. In addition, the score satisfied the City’s desire not only to certify well-trained officers, but also to provide adequate numbers of officers for staffing purposes. Given the high pass rates, the Court held that to reduce a cut-off score to the point where all test-takers pass would be to make the test a futile exercise, because it no longer is a measuring device. It held that the cutoff score met both the business necessity and job-relatedness standards. Plaintiffs also objected to the cut-off score as arbitrary and not differentiating between those officers who would perform adequately from those who would not. Plaintiffs provided as proof of this the fact that certain probationary officers who were performing adequately were not within the cut-off score. The Court held, however, that cut-off scores need not be set so that they would select all good job performers and reject all bad performers. Plaintiffs had also objected to the rule that officers could take the certification exam only three times. When responding to this argument, the Appeals Court noted that, in light of its finding that the exam was valid and the cut-off score was appropriate, it is reasonable to expect plaintiffs to pass the exam. It held a policy of allowing three opportunities for test-takers was generous.
Biondo v. Chicago,
382 F.3d 680 (7th Cir. 2004), cert. denied, 543 U.S. 1152 (2005).
White applicants whose promotions within Chicago Fire Department (CFD) were denied or delayed as a result of the City’s five year use of standardized lists, established in response to disparate impact of competitive examination on minorities, filed suit under § 1983 and Title VII. After an advisory jury determination and two jury trials, the district court directed entry of judgment in favor of the plaintiffs. The City of Chicago appealed.
This case arises from a test implemented and developed in 1986 for the CFD position of lieutenant. CFD has five ranks: firefighter, engineer, lieutenant, captain, and battalion chief. CFD took care to ensure that the exam was both non-discriminatory and a valid test of skills. Yet although 29% of those who took the exam were either black or Hispanic, only 12% of those who received the highest 300 scores were in these groups.
The Department concluded that this disparate impact could be justified under the EEOC’s Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. § 1607.4, only if the exam were valid for rank-order use--that is, if someone who scores higher on the test is “bound” to perform better than the person next in line. According to the Department’s expert, this examination had a standard error of measurement of 3.5, which is to say that a person who scored 80 and took a similar test again could score as high as 83.5 or as low as 76.5 without implying that his skills and probability of success in the higher position had changed.
Convinced that it could not make promotions from the 1986 list in rank-order fashion, the Department established what it called “standardized” lists and what most people would call racially segregated lists: it drew up one list for whites and another for blacks and Hispanics, and then made 29% of all promotions from the minorities-only list. The Department used these lists until 1991, promoting a total of 209 lieutenants from the 1986 exam. This process meant that the promotion of some white candidates was delayed, and others were not promoted even though minority candidates with lower scores became lieutenants.
The Department acknowledged that its approach could be sustained only if a compelling interest supported its use of race and ethnicity. However, it did not argue that either past discrimination or a quest for diversity supported its approach. It instead maintained that it had a compelling need to comply with 29 C.F.R. § 1607.4.
In a scathing opinion, the court clearly held that compliance with a governmental regulation is not automatically a compelling interest. The court reasoned that if that were so, Congress or any federal agency could direct employers to adopt racial quotas, and the direction would be self-justifying: the need to comply with the law or regulation would be the compelling interest. Furthermore, if avoiding disparate impact was a compelling governmental interest, “then racial quotas in public employment would be the norm.” As the court further explained, “[s]uch a circular process would drain the equal protection clause of its meaning.” The Court further admonished the City of Chicago’s two-list rank-order procedure, finding that the Civil Rights Act of 1991 explicitly forbids the City’s response to disparate impact. And while the 1991 Act did not apply retrospectively, the 1991 Act and 1964 Act jointly revealed that standardization cannot be an indispensable response to disparate impact.
The court then concluded that the City could have used bands reflecting the standard error of measurement. For example, the Department could have treated all scores in the range of 96-100 as functionally identical and made promotions by lot from that band. According to the Court, such a procedure would have respected the limits of the exam’s accuracy while avoiding any resort to race or ethnicity. Given that the City had options of this kind, the Court found that the City’s two-list procedure was not compelled. The court further reasoned that the Department’s assertion that it viewed rank-order promotions unsupportable was further undermined by the fact that after it created each list, the Department promoted in rank-order sequence from each list.
Although the court of appeals affirmed the district court’s decision on the merits, it vacated and remanded the judgment with respect to damages and equitable relief, finding that the substantial awards of compensatory damages and lengthy front pay awards were not supported by the record.
Bishop v. New Jersey,
144 Fed. Appx. 236 (3d Cir. 2005).
African-American plaintiffs challenged the 2000 version of a firefighter promotional exam that: (1) included 75 multiple choice questions in addition to the traditional essay format; (2) made passing the written portion a prerequisite to taking the oral potion of the exam; (3) utilized a numerical score instead of a pass/fail score for the written and oral portions of the exam; and (4) factored seniority into the exam scores only if the candidate passed the written and oral portions of the exam (the “Z formula”). Only 129 out of 287 applicants passed the exam in 2002, which included 29.5% of the African-American, 33.3% of the Hispanic, and 55.8% of the Caucasian candidates. The municipal defendants did not create or implement the exam, but did make selections from the list of passing applicants.
The district court held, and the Third Circuit affirmed, that the municipal defendants were not liable for the alleged disparate impact of the exam. Prior decisions had held that the use of an eligibility list containing the results of an allegedly tainted exam was “merely the neutral effect of a prior act of discrimination, but does not constitute a separate discriminatory action.” Because Newark had no choice but to use the eligibility list and exercised limited discretion in choosing whom to hire from the list, the City’s use of the list was a “neutral, ministerial action, rather than a separate discriminatory act.”
Chicago Firefighters Local 2 v. Chicago,
249 F.3d 649 (7th Cir. 2000), cert. denied, 534 U.S. 95 (2001).
This opinion relates to three consolidated cases – one of them dating back to 1987 – by white firefighters who complained that their equal protection rights were infringed by the affirmative action promotions of black and Hispanic firefighters made by the Chicago Fire Department. In this action the white firefighters made a number of arguments related to the ongoing efforts of the city to remedy what was acknowledged to be previous discrimination against minorities in selections for firefighter positions. These arguments related to the appropriate level for minority participation in the fire department, and whether the population of the city and surrounding area should be applied to the population of the fire department. There is lengthy discussion of the population issues, but the claims of the plaintiffs in this area were dismissed. The one claim of interest is the question of whether the city’s practice in banding test scores amounted to prohibited race norming. In reviewing other cases in this area, the court noted that, although banding has been upheld as a valid method of affirmative action, no court had previously been asked to consider its consistency with the prohibition of race norming scores. In this opinion the court holds that if banding is adopted in order to make lower black scores seem higher it would be a form of race norming and forbidden. Instead, the court holds that banding is a universal and normally an unquestioned method of simplifying scoring by eliminating meaningless gradations. It analogizes banding to schools that change from number grades to letter grades. In rejecting the objections to the city’s banding process, it notes that banding is most attractive when the range of abilities in a group being tested is relatively narrow, such as the skill difference between someone who receives 200 questions right on an exam as compared to someone who answers 199 questions correctly.
Cotter v. Boston,
323 F.3d 160 (1st Cir. 2003).
Seven Caucasian police officers sued the city under § 1983, alleging equal protection violations by the Boston Police Department (“BPD”) when promoting three African-American police officers. The BPD was operating under a consent decree governing sergeant promotions. The decree expired in 1995. This case arises from a reverse discrimination action challenging the subsequent 1997 promotional process. In 1997, the police department sought to promote thirty police officers to sergeant. Each candidate took a 1996 sergeant promotion examination given by the Human Resources Division. If promotions had been made in strict rank order of these scores, twenty-nine non-African-American officers and one African-American officer would have been promoted. The Department determined that this promotional decision would violate the “four-fifths rule,” indicating possible adverse impact on minority candidates. In addition, because of the disparity in the promotion of officers to sergeant, current racial tensions within the Department, and the documented history of past discrimination within the BPD, the BPD sought greater African-American representation among its sergeant ranks. Therefore, the Department promoted the top 26 officers in strict rank order which included all officers scoring 86 and above, with the exception of one officer who was bypassed for cause.
Only two of the seven non-African-American officers who achieved a score of 85 were promoted. The Department then promoted three African-American officers who achieved a score of 84 (the “African-American Officers”), while not promoting 5 officers who achieved an 85 and all officers who achieved a score of 84.
The BPD was required by Massachusetts law to provide a statement to the HRD explaining the reasons for its departure from strict rank order selections. See Mass. Gen. Laws ch. 31, § 27 (2002). The BPD sent a letter to the HRD stating that the departure from strict rank order to promote the African-American Officers was done to “ensure compliance with current EEOC guidelines, and applicable federal and state discrimination laws.” The HRD rejected this explanation, contending that the BPD was erroneously acting under a terminated consent decree.
In response to the HRD’s rejection, the Department promoted six additional officers (one formerly bypassed for cause and the five with a score of 85). The end result was that all 33 officers scoring 85 and higher were promoted and the three African-American Officers scoring 84 were promoted. However ten non-African-American officers scoring 84, including seven Caucasian plaintiffs, were not promoted. Of the 36 officers promoted to sergeant, four were African-American.
On May 21, 1999, plaintiffs filed suit against the City alleging that the Department violated plaintiffs’ civil rights under 42 U.S.C § 1983 by failing to promote plaintiffs to sergeant because of their race. After discovery, the City moved for summary judgment, on the grounds that the plaintiffs lacked standing, and that the promotions of the African-American Officers were a narrowly-tailored means of meeting several compelling governmental interests. On March 22, 2002, the district court granted the City’s Motion, dismissed plaintiffs’ claims and entered judgment in favor of the City. The district court held that the City’s actions were a narrowly-tailored means of remedying the continuing effects of past discrimination.
On appeal, the First Circuit held that the plaintiffs did not have standing because they failed to identify a cognizable injury warranting relief under § 1983. Even if BPD had not used race-conscious criteria, it nonetheless would have only promoted candidates with a score of 85 or higher. Thus, because appellants only scored 84, and otherwise not eligible for promotion even absent the use of the BPD’s race-conscious criteria, they could not establish standing for damages. Appellants also argued that they had standing to seek immediate promotion. The court found that two of the appellants, who had since been promoted to sergeant, lacked standing to seek immediate promotion. However, the Court agreed that the remaining appellants could make a colorable claim for standing to seek immediate promotion.
The court then turned to the merits of the case. The City asserted that the race-conscious action was necessary to ameliorate “vestiges” of past discrimination by the Department against African-American applicants and officers. The court found that the Department’s history of discrimination was well-documented by past litigation and records. As recently as October 1996, African-Americans comprised 25.02% of the BPD’s 1,547 officers, but only 16.49% of the BPD’s sergeants. The court concluded that this difference was statistically significant, not reasonably attributed to chance, and concrete evidence that discrimination existed at the time the African-American Officers were promoted.
Next, the court determined that the action taken by the City in its effort to remedy past discrimination was narrowly tailored to rectify the specific harm in question. In doing so, the court considered several factors, including the extent to which: (i) the beneficiaries of the order are specially advantaged; (ii) the legitimate expectancies of others are frustrated or encumbered; (iii) the order interferes with other valid state or local policies and (iv) the order contains (or fails to contain) built-in mechanisms which will, if time and events warrant, shrink its scope and limit its duration.
Applying these factors, the court concluded that the Department would have had to promote twenty African-American officers to create a situation whereby the percentage of African-American officers and African-American sergeants was approximately equal. The necessity for relief was great, but the means chosen by the Department were modest – only three African-American officers were promoted out of rank – indicating narrow tailoring. Only qualified minorities were promoted; they were therefore not specially or unfairly advantaged by their promotions. All officers were competing for a limited number of spots. Because of this competition, the City’s promotion of the African-American officers did not disturb any legitimate, firmly rooted expectations of the appellants. Had the City not departed from strict rank order, no additional Caucasian officers would have been hired. Finally, finding that the means were narrowly tailored, the court approvingly cited the fact that there were no quotas or long-term guidelines established.
Denney v. Albany,
247 F.3d 1172 (11th Cir. 2001).
White firefighters sued the city following their failure to be promoted to lieutenant. In this decision, the court of appeals reviewed the district court’s findings and affirmed, holding that there was insufficient evidence of discriminatory intent in the selections for lieutenant. The city’s promotional process for lieutenant was challenged previously in connection with a 1994 promotion process, and the plaintiffs in that action were successful in proving discrimination. This action was brought following a later qualification exercise. Twenty-three applicants completed the process, and 21 were placed in the eligibility pool. The qualification exercise included a written examination weighted at 30% of the overall score, a skills assessment center, weighted at 50%, and an oral interview with the police chief, weighted at 20%. Those who scored 70 out of a possible 100 on the three-step qualification exercise were considered qualified and placed in the pool of candidates from which lieutenant selections were made by the police chief. In making final selections from the pool, the police chief, who is black, did not refer to the scores on the qualification exercise. Instead he evaluated the candidates as to their demonstrated leadership, maturity, interpersonal skills, and a willingness to support management in its policies. By the time of this action an equal number of white and black firefighters had been selected for promotion to lieutenant. The plaintiffs in this case alleged that they were more qualified than two of the black firefighters who were selected. The court rejected plaintiffs’ argument that the qualification exercise process had a disparate impact on whites, holding that, since the plaintiffs successfully completed the qualification exercise, and since the qualification exercise scores were not used in the police chiefs selection of the candidates who would receive a promotion, the plaintiffs could not challenge that initial qualification exercise process. This agreed with the district court’s finding. The court looked closely at the written and oral components of the process, because the plaintiffs argued that the police chief engaged in a process that amounted to race norming, by ranking blacks higher on the interview than whites, thus increasing the combined scores of blacks relative to those of whites. The district court rejected this finding, since there was no statistical disparity between blacks and whites in the total score. It declined to find discrimination in the subjective aspects of the oral examination, holding that the oral examination analyzed different skills from the written examination and it was therefore not unusual that scores of candidates might differ in these two parts of the process. There was statistical evidence that overall, qualified black applicants were selected for promotion at a rate that was not statistically different from the rate at which qualified white applicants were promoted. Furthermore, the statistical anomaly in the scoring of blacks and whites on the oral exam was found to occur in another year in which the oral examination process had not involved the police chief, lessening the likelihood that he was engaged in race norming. Finally, the court rejected the plaintiffs’ claims of discrimination in the final selection process because it was purely subjective. It found no discrimination in the fact that the department used the qualification exercise scores solely to determine the pool of qualified candidates, and then relied on other criteria for the selection of lieutenants. The qualification exercise gauged some of the skills necessary for a lieutenant, but it was not intended to gauge a candidate’s ability in all of the skill areas necessary for a lieutenant. Although the plaintiffs might on paper be arguably the best candidates, the court held that the department was not required to select the best qualified candidate, and it would not reexamine its business decisions.
Donahue v. Boston,
371 F.3d 7 (1st Cir. 2004), cert. denied, 543 U.S. 987 (2004).
For a summary of the facts, see Donahue v. Boston, 304 F.3d 110 (1st Cir. 2002), cited below. On remand, the district court found that when the plaintiff last took the qualifying civil service exam in April 2001, he was no longer eligible for hire by the Boston Police Department (“BPD”) due to the age restriction set by a Massachusetts statute. Accordingly, the district court held that the plaintiff lacked standing to pursue his claim for prospective injunctive relief. The First Circuit affirmed the district court’s holding. The First Circuit similarly reasoned that the plaintiff did not satisfy a key requirement of standing to seek prospective relief because Massachusetts’s constitutional age limitation precluded plaintiff from being “able and ready” to apply for appointment to the BPD in December 2001, the date of the district court’s original opinion, as well as in 2004.
Donahue v. Boston ,
304 F.3d 110 (1st Cir. 2002), aff’d, 371 F.3d 7 (1st Cir. 2004).
A challenge to the selection process for new police officers in the Boston Police Department remains alive after an appeals court reversed the district court and allowed an unsuccessful white candidate’s claim for prospective relief under the Equal Protection Clause to proceed to trial. The current selection process is the result of a consent decree entered in 1973. Under that decree Boston uses a state-administered examination for appointments to the police academy, with a passing score of 70. When requested by the Boston Police Department, the Massachusetts Human Resources Division certifies an eligibility list of those who received a passing score on the most recent test; however, the eligibility list alternates minority and nonminority candidates. By definition, all individuals on the eligibility list are considered qualified for appointment. The list is further separated by splitting residents and nonresidents and giving priority to residents of Boston. Other preferences are also applied. Candidates who receive a passing score and qualify for one of four statutory preferences are moved to the top of the list. Those preferences are for children of firefighters or police officers killed in the course of their duties; disabled veterans; veterans; and widows or widowed mothers of veterans who were killed in action or died from a service-connected disability. In addition, special certification lists are created for those with three language skills: Spanish, Vietnamese, and French-Creole. Approximately one of every three hires is an individual from one of the language preference lists.
The plaintiff sat for the examination in April 1997, May 1999, and April 2001. In each case he received a high score – 96 in 1999 – but given the number of individuals taking the exam, and the various preferences, the process left him always remote from the “lowest” candidate selected. The district court rejected his several claims for relief, holding that under the Equal Protection Clause, he had no standing to claim either retrospective or prospective relief, because he could not show that he would have been hired under criteria that were race neutral. The court of appeals agreed with the district court that the plaintiff did not have standing to assert a claim for retrospective damages relief because he was unable to establish that he would have received the benefit he sought under a race-neutral policy. However, the court of appeals reversed and remanded the district court’s denial of prospective injunctive relief on standing grounds, because there was not enough evidence in the record to determine whether the plaintiff had standing to pursue the prospective relief sought.
Dyke v. O’Neal Steel, Inc. ,
327 F.3d 628 (7th Cir. 2003).
Temporary employee alleged that his employer violated the ADA by terminating him from his temporary position. The defendant, a warehouse operator, required permanent and temporary employees, who had worked for defendant for over thirty days, to pass vision and physical abilities tests. Plaintiff had worked for two weeks at the defendant’s warehouse as a temporary employee when, at the request of his supervisor, he submitted an application for a full-time position. The defendant’s personnel assistant, after receiving plaintiff’s application, and without administering the vision test, requested the plaintiff’s temporary agency transfer the plaintiff to another assignment. Her stated reason for the transfer request was her subjective belief that plaintiff, because he only had one eye, could not pass the defendant’s mandatory vision test. The plaintiff claimed that the defendant “regarded him” as disabled based upon the company’s vision standards. The court found that the company’s vision standards alone were not sufficient evidence to support a finding of “regarded as” disabled. The court further found that there was sufficient evidence to show that the defendant regarded the plaintiff as disabled by the company’s vision standard, together with the fact that the company failed to administer plaintiff the vision test and failed to inquire regarding the specifics of the plaintiff’s condition.
EEOC v. Dial Corp.,
469 F.3d 735 (8th Cir. 2006).
The EEOC brought a Title VII disparate treatment and disparate impact action against Dial on behalf of female applicants rejected for entry level positions when they failed a strength test. Entry level employees at Dial’s plant are required to carry approximately 35 pounds of sausage at a time, and must lift and load the sausage to heights between 30 and 60 inches high. These employees suffer a large number of work-related injuries. To help reduce the injury rate, Dial implemented several safety measures starting in 1996. In 2000, Dial implemented a strength test called the Work Tolerance Screen (WTS). In this test, job applicants had to carry a 35 pound bar and lift and load it onto frames approximately 30 and 60 inches off the floor. Prior to the test, forty-six percent of new hires were women. After the test, female hires dropped to fifteen percent. The overall female test passing rate was thirty-eight percent, while the men’s pass rate was ninety-seven percent. Although injuries did decrease after test implementation, the decrease had begun in 1998, after other safety procedures were instituted.
At trial, the EEOC presented evidence that the strength test was significantly more difficult than the actual job workers performed at the plant—the test required 6 lifts per minute without breaks, while the job averaged only 1.25 lifts per minute with breaks. The EEOC’s expert also testified that, before the test, the women’s injury rate was actually lower than that of males. Dial’s experts testified that the test effectively tested skills representative of the actual job and that the injury rate decrease could be attributable to the test. The trial court concluded that Dial’s use of the strength test had an unlawful disparate impact on the female applicants, because Dial could not demonstrate business necessity or show either content or criterion-related validity and failed to control for other variables potentially causing the injury rate decline. Dial appealed, claiming that the strength test was a business necessity because is decreased the number of injuries in the plant.
The Eighth Circuit affirmed the decision below. Once a plaintiff establishes a prima facie case of disparate impact, the employer must show the challenged practice is “related to safe and efficient job performance and is consistent with business necessity.” To establish the business necessity defense, the employer must prove that the practice was related to the specific job, the required skills, and physical requirements of the position. A validity study is not necessary if the employer can show the challenged procedure is sufficiently related to safe and efficient job performance. The Eighth Circuit rejected Dial’s arguments that the WTS was content valid, because its physiology expert’s testimony was discredited by the EEOC’s industrial organization expert, who testified that the WTS was more difficult than the actual job and created a “testing environment” where applicants tend to work harder during the test in order to outperform the competition. The Court also rejected Dial’s argument that the WTS was criterion-related valid due to the overall injury decline. The decline started prior to implementation of the exam, and women had lower injury rates than men, who had higher passing rates. Therefore, the test did not predict which applicants could safely handle the job, as Dial contended. Last, the Eighth Circuit approved placing the burden on Dial to establish that there was no acceptable less adverse alternative to the WTS. The Court explained that, as part of Dial’s burden of showing business necessity, it had to demonstrate the need for the challenged procedure. Here, Dial could not show that its other safety measures could not produce the same declining injury results. Because Dial failed to show business necessity, the burden never shifted to plaintiffs to show existence of a nondiscriminatory alternative.
Firefighters’ Inst. for Racial Equality v. City of St. Louis,
220 F.3d 898 (8th Cir. 2000), cert. denied, 532 U.S. 921 (2001).
An association of African-American firefighters and 22 individual plaintiffs sued the City of St. Louis and the firefighter’s union alleging discrimination in the promotional exam used for battalion fire chiefs. In this decision, the Eighth Circuit affirmed a grant of summary judgment to the City and union. The promotional exam in question was developed by Barrett & Associates to test job knowledge and supervisory and managerial skills. It included a written, multiple choice exam, fire scene simulation, and an oral briefing exercise. The test was administered in 1997 to 80 fire captains, of whom 53 were Caucasian and 25 were African-American. That resulted in 12 captains being placed on the eligibility list – ten Caucasians and two African-Americans. FIRE sued, alleging disparate impact where 19% of the Caucasian candidates but only 8% of the African American candidates were eligible for promotion based on their performance on the test. FIRE’s allegations included, first, the fact that the use of multiple choice questions violated a 1980 decision of the Circuit that found an earlier fire captain exam not job-related because the skills for a fire captain couldn’t be adequately measured by a multiple choice test. In this case, the City had presented evidence demonstrating that multiple choice questions could adequately measure the skills of a battalion chief. FIRE also alleged that the fire scene questions, referred to as “first-responder” questions, were not job-related because battalion chiefs do not have first-responder duties. However, the City presented portions of the standard operating procedures manual from which the first responder questions were drawn. FIRE also objected to the use of two management books as resources for the exams, alleging that they were hard to find and out-of-date. The City presented evidence that these were available in adequate supply, not difficult to obtain, and were management publications by the International Society of Fire Service Instructors, directly related to supervision of firefighters. The Court found the exam was related to safe and efficient job performance, consistent with business necessity, and noted the failure by FIRE to present any evidence of a less discriminatory procedure.
Garrett v. Hewlett Packard Co.,
305 F.3d 1210 (10th Cir. 2002).
Former employee brought an action against employer, alleging the employer subjected him to race and age discrimination. The defendant did not contest the plaintiff’s allegations that the ranking and evaluation system were wholly subjective. Absent evidence that defendant’s system of ranking and evaluation relied on objective criteria, the court held that plaintiff satisfied his burden to demonstrate pretext under the third prong of McDonnell Douglas for the purposes of avoiding summary judgment.
Garrison v. Gambro,
428 F.3d 933 (10th Cir. 2005).
Plaintiffs, all women over forty, sued Gambro alleging that the skills assessment test at issue had a disparate impact on women and employees over forty. As part of a reorganization, Gambro divided the equipment assembly department into two categories: EQ-1 (with only 6 positions), and EQ-2. Gambro required anyone who wanted to work in those positions to pass an industry-approved, standardized assessment examination that measured the skills of: assembly, inspection, mechanical comprehension, and mechanical dexterity. Those who did not pass the assessment could either accept a severance package or apply for other jobs within Gambro. All of the plaintiffs applied for the EQ-1 and -2 positions and failed the exam. However, of the eight people who passed the exam, half were women and half were over forty. The gender ratio of those hired for the EQ-1 position was four females to two males.
The Tenth Circuit affirmed the district court’s finding that the plaintiffs could not make out a prima facie case of disparate impact. Plaintiffs attempted to draw comparisons regarding all employees in the entire equipment-assembly area. However, the plaintiffs only applied for the six positions available in EQ-1 and did not apply for the positions available in EQ-2 or -3. The Court, therefore, held that plaintiff’s broad comparison was irrelevant, because only the at-issue jobs formed the proper basis of a disparate impact inquiry. With respect to these six positions, it was undisputed that four out of the six positions were given to women (hiring 19% of women applicants as opposed to 7% of male applicants). As an aside, the Court also noted that the hiring rate for women was greater than for men during the entire equipment manufacturing reorganization.
Gulino v. New York State Educ. Dep’t,
460 F. 3d 361 (2d Cir. 2006).
The Tests: Plaintiff African-American and Latino educators in the New York City public school system challenged the New York City Board of Education’s use of two different tests for permanent teacher certification. The National Teachers Examination Core Battery (“Core Battery Test”) was a general knowledge test that tested “a range of knowledge, skills and abilities that were deemed necessary to being a competent teacher.” The City eventually replaced the Core Battery Test with the Liberal Arts and Sciences Test (“LAST”) developed jointly by the State Education Department and National Evaluation Systems. LAST tests only an applicant’s knowledge of liberal arts and sciences and is only one component of a teacher’s certification. Also, LAST is a pass-fail exam that covers four basic subject areas by multiple choice and writing by use of an essay section. To pass LAST, a test-taker must score an average of 200 points on each section, but a low score in one section can be off-set by a high score in a different section.
The district court found that although both tests had a disparate impact on the plaintiff-minorities, they did not violate Title VII because they were job related. In so holding, the district court reasoned that although the defendants could not demonstrate formal validity for the LAST, the test satisfied job relatedness in light of the coincidence of three factors the court thought applied under a 1988 U.S. Supreme Court case: (1) the importance given to the ability to write an essay by those education professionals surveyed by the test-maker; (2) the weight of the essay writing portion of the test; and (3) the fact that the majority of plaintiffs would have passed the LAST but for the essay writing portion. Plaintiffs only appealed the district court’s holding with respect to the LAST.
Held: The Second Circuit found that the district court applied the wrong legal standard for job relatedness because the 1988 U.S. Supreme Court case it relied on did not, as the district court thought, “lower the bar” for test validation and had only persuasive force. Instead, the district court was bound by the U.S. Supreme Court and Second Circuit’s long standing content-validation requirements explained in Guardians Ass’n v. Civil Serv. Comm’n of New York, 630 F.2d 79 (2d Cir. 1980): “(1) [T]he test-makers must have conducted a suitable job analysis[;] (2) they must have used reasonable competence in constructing the test itself[;] (3) the content of the test must be related to the content of the job . . .[;] (4) the content of the test must be representative of the content of the job[; and] [there must] be (5) a scoring system that usefully selects from among the applicants those who can better perform the job.” (alteration in original). Because the district court failed to elicit sufficient facts under the Guardians standard, the Second Circuit vacated the district court’s judgment and remanded the case for determination consistent with the appropriate legal standard.
Heath v. Ohio Turnpike Comm’n,
No. 02-3392, 2004 WL 68526 (6th Cir. Jan. 8, 2004).
Plaintiff, an African-American part-time toll collector, brought action against Defendant, his employer, the Ohio Turnpike Commission, alleging race-based employment discrimination for failure to promote him to a full-time position. In opposing Defendant’s motion for summary judgment, Plaintiff argued generally that the Defendant’s testing and interview processes disproportionately blocked African-American part-time toll collectors from reclassification as full-time collectors. In support of his contention, Plaintiff presented evidence of a statistical disparity --the reclassification of twenty-six white and zero black part-time toll collectors between 1997 and early 2000. The court concluded, however, that plaintiff’s statistical evidence was not “sufficiently substantial” to raise “an inference of causation.” In reaching this conclusion, the court found persuasive the fact that Plaintiff’s own expert witness preliminarily concluded that, given the racial composition of the applicant pool, the number of black applicants selected for reclassification did not differ significantly from what would be expected absent improper discrimination. No contrary opinion was offered. Thus, because Plaintiff failed to make out a prima facie “disparate impact” case, summary judgment was appropriate for Defendant.
International Bhd. of Elec. Workers v. Mississippi Power & Light Co.,
442 F.3d 313 (5th Cir. 2006).
This disparate impact lawsuit by African-American employees and their unions against MP&L stemmed from a Reduction-in-Force plan which enabled laid-off employees with a certain measure of seniority to “bump” into junior positions, provided that the more senior employees could qualify for the new positions. To qualify for the clerical positions of Storekeeper and Plant Storekeeper, the plaintiffs had to pass a validated aptitude test called the Clerical Aptitude Battery (“CAB”). Neither of the plaintiffs met the cutoff score. Consequently, they were not allowed to bump into these positions. CAB is a test developed by EEI, which is responsible for validating the test by establishing the statistical correlation between success on the test and success in relevant jobs. EEI also provides suggested scores and ranges to employers and requires employers to be certified to conduct the test, whereafter the employer may set and vary its own cutoff scores.
The plaintiffs did not challenge the exam’s validity. Instead, they challenged the method of setting the cutoff scores for the Storekeeper positions. The score cutoff was originally 178 for this position, as recommended by EEI. After MP&L notified EEI of the high turnover and low passage rates, EEI recommended use of 150 as the cutoff score, which was so used from 1989 to 1993. In 1993, MP&L was acquired by Entergy, which raised the cutoff score to 180, at least in part for uniformity purposes. The plaintiffs could not meet the 180 cutoff score.
The defendants conceded the plaintiffs’ prima facie case of disparate impact but demonstrated that increasing the score significantly increases the likelihood that successful applicants for the position will develop into proficient employees. (Defendants’ expert showed that the 180 cutoff score created a 50% chance that an applicant would develop into an above-average worker and only a 31% chance of being in the bottom third. The 150 cutoff score made it equally likely—39%—that the candidate would become above average or end up at the bottom.) Despite MP&L’s showing of business necessity, the district court found in favor of the plaintiffs by imposing on defendants the burden of demonstrating the absence of acceptable alternative employment practices and finding that they failed to meet their burden. The Fifth Circuit reversed, finding that the district court had inappropriately placed the burden on the defendants to show that raising the cutoff score to 180 was the only means to achieve its legitimate business purpose. After reviewing the “direct and unambiguous statutory language” that Congress used to explain the disparate impact framework as well as the Supreme Court’s prior disparate impact decisions, the Fifth Circuit ruled that it is the plaintiff’s burden to show that there exists an acceptable alternative employment practice to the one at issue. Because the plaintiffs provided no meaningful alternative to the challenged testing practices in this case, they failed to meet their burden.
Isabel v. City of Memphis
404 F.3d 404 (6th Cir. 2005).
African-American police officers alleged that a facially-neutral written test administered by the City of Memphis had a disparate impact on minority promotions within the police department, and brought this action against the City.
In this case, the Sixth Circuit Court of Appeals repudiated the notion that the EEOC’s four-fifths rule is dispositive of disparate impact. Despite the fact that the test administered by the City of Memphis did not result in a violation of the four-fifths rule, the court allowed admission of two other statistical analyses (the “T” and “Z” tests) to support a finding of disparate impact. Background: In July of 2000, 120 sergeants applied for lieutenant positions; of those, 63 were African-American, and 57 Caucasian. The promotional process consisted of four parts: (1) a written test, (2) a practical exercise test, (3) performance evaluations, and (4) seniority points. The four components would account for 20%, 50%, 20%, and 10%, respectively, of each applicant’s score. However, only those who passed the written test, which had a cut-off score of 70, would be allowed to continue in the promotion process. Finding that the 70 cut-off score violated the four-fifths rule, the City of Memphis reduced the cut-off score to 66.
The test was developed and managed by Dr. Mark Jones, who created the exam in cooperation with Memphis police officers. Dr. Jones and expert officers constructed questions aimed at identifying the knowledge necessary for performing identified lieutenant tasks. Originally, Dr. Jones advised against implementing a cut-off score; he testified at trial that he was forced to do so by the union and admitted that the cut-off score “was incapable of distinguishing between candidates who can and cannot perform the job of lieutenant.”
98 candidates passed the test under the new 66 cutoff score; 51 were white and 47 were black. All parties agreed that, according to the numbers, the test did not violate the four-fifths rule established by the EEOC.
The City asserted on appeal that this fact was evidence of no disparate impact and that the four-fifths test was the only statistical analysis that the court should consider. The court disagreed, upholding the district court’s use of the “T-test” which evaluated the difference between the mean scores of whites and blacks on the test, and the “Z-test” which measured the passage rate across groups, showing a white passage rate of 90% and a minority passage rate of 74.6%. Plaintiff’s expert, Dr. Richard Deshon, testified that the difference of 15.4% was statistically significant. The four plaintiffs in this case scored below 66 and thus were not allowed to proceed to subsequent promotional assessments.
Based primarily on the T-and Z-test analyses, the district court found that the written test, as applied, unlawfully discriminated against minority applicants, holding that the Plaintiffs established a prima facie case by: (1) identifying a specific employment practice to be challenged; and (2) through relevant statistical analysis proving that the challenged practice had an adverse impact on African-Americans. Once Plaintiffs set forth this prima facie case, the burden shifted to the City to demonstrate that the challenged practice was-job related for the position in question and consistent with business necessity. The City attempted to meet its burden by presenting proof of content-related validity; it tried to show that the contents of the test had a direct relationship to the contents of the lieutenant job, and thus prove the test was necessary to assess practical performance ability. In their decision, the Sixth Circuit Court of Appeals established a rule for cut-off score validation: “In order to validate a cut-off score, it must be shown that the cutoff score establishes a point of minimal qualification.” In other words, the cutoff score must be able to separate those who are qualified to do the job from those who are not. Here, the district court found that the written test “could not be trusted to be related to actual job performance.” The Court of Appeals found strong evidence in support of the district court’s assessment of content validity, finding especially compelling the fact that a non-minority applicant who scored 66 (and thus was initially eliminated by the 70 cut-off score) ended up being the second-rated candidate overall after the entire promotional procedure.
The Sixth Circuit Court of Appeals affirmed the district court’s ruling on the grounds that the Plaintiffs established a prima facie case of disparate impact and on the grounds that the City failed to demonstrate that the challenged practice had content-related validity and was an approximation of a candidate’s potential job performance such that the cut-off score was a point of minimal qualification.
Note: the Court of Appeals also upheld the district court’s remedy, ordering the promotion of all Plaintiffs to lieutenant and awarding Plaintiffs attorney’s fees.
Kohlbek v. Omaha,
447 F.3d 552 (8th Cir. 2006).
White firefighters brought a reverse discrimination action against Omaha alleging they were not promoted due to the City’s implementation of Omaha’s most recent affirmative action plan (“Plan”), established as part of its mission to integrate the fire department. Omaha’s position was that the Plan was consistent with the OFCCP’s Guidelines.
Plan: In accordance with the Guidelines, the City determined an “availability” percentage in a given job group by considering the percentage of qualified minorities and the percentage of minorities among all those who are “promotable, transferable and trainable” in the organization. While the City calculated its internal availability rate for African-Americans to be 11.4% for fire captain and 5.8% for battalion chief, the actual percentages were 7.7% and 3.1%, respectively. The City uses the phrase “underutilization” of a position when the minority representation in that position was not within half of a person of the goal. The City utilized both written and practical tests to determine those who would be placed on a promotion eligibility list in rank order of their scores. When a promotion position opened, the fire department’s personnel director would send the names of the top five candidates to the fire chief, who conducts individual reviews based on test scores, ranking, seniority, education, discipline record, job performance and attendance. However, when there is underutilization for a position, the fire chief also considers race when making promotion decisions.
The plaintiffs: Caucasian Plaintiff 1 passed the August 2000 promotion exam for battalion chief and was ranked eleventh on the eligibility list, while an African-American was ranked twentieth. Following various promotions of higher ranked candidates, Plaintiff 1 was ranked second and the African-American was ranked below him. Two positions opened within six days of each other. The African-American, although ranked lower, was appointed to the first open position of battalion chief. The fire chief made this decision, at least in part, because African-Americans were underutilized in that position. The first-ranked candidate was appointed to the next open position. Had the fire chief followed the rank ordering, Plaintiff 1 would have received the second open position. Following various promotions, Caucasian Plaintiff 2 was ranked second and two African-Americans were ranked thirty-second and thirty-third. Because these two African-Americans were thereafter promoted out of rank order, which the chief testified probably would not have happened absent the Plan, Plaintiff 2 was not, but would have been, promoted.
The issue presented was whether the racial classifications used in making promotional decisions under the 2002 Plan were constitutional. The Court analyzed the Plan under the strict scrutiny standard of the Equal Protection Clause of the Fourteenth Amendment and reversed the district court’s holding that favored the defendant, finding that that Plan was not narrowly tailored to remedy specifically identified past discrimination. In so holding, the Court determined that the City’s method of determining underutilization by using the half person rule did not truly coincide with situations where discrimination could be legally inferred. Rather, the half person rule did not require a statistically-significant showing of discrimination before the chief began considering race when making promotion decisions. Therefore, the Court held that the 2002 Plan made racial classifications beyond its interest in remedying identifiable racial discrimination—both in general and with respect to the specific promotion decisions challenged by the plaintiffs.
Lanning v. Southeastern Pennsylvania Transp. Auth.,
181 F.3d 478 (3d Cir. 1999), cert. denied, 528 U.S. 1131 (2000), same holding on remand, 84 Fair Empl. Prac. Cas. (BNA) 1012 (E.D. Pa. 2000).
Five women sued SEPTA under Title VII, in a class action on behalf of all female applicants who applied for positions as police officers with the transportation authority during a two-year period. All applicants for these positions were subject to a physical fitness test, the first element of which was a 1.5 mile run which had to be completed in 12 minutes. Failure to do so disqualified the applicant. The district court ruled in favor of the Authority following a bench trial. On review the Third Circuit vacated that judgment and remanded the case.
In 1991 SEPTA hired an expert to develop a physical fitness test as a means of enhancing the level of fitness, physical vigor, and general productivity of its police force. The expert used twenty experienced officers as subject-matter experts, and, following a job study, he concluded that running, jogging and walking were important transit officer tasks and that they jogged on an almost daily basis. The subject-matter experts concluded further that it was reasonable to expect transit officers to run one mile in uniform, with all of their gear, in 11.78 minutes. The expert rejected this conclusion and determined that the correct standard instead should be for them to run 1.5 miles within 12 minutes. He calculated the aerobic capacity which this exertion represented and concluded that it was the level necessary to perform the job of a transit officer. During the test’s use, female pass rates were significantly different from male pass rates. In one year the female pass rate was 12% while the male rate was nearly 60%. In other years the female pass rate was 6.7%, compared to a 55.6% pass rate for men. The Transit Authority conceded that this part of the fitness test had a disparate impact on women. The Transit Authority had also begun testing incumbent police officers for their aerobic capacity. Following a protest by the union, however, it discontinued disciplining officers based on poor performance on the test, and instead begin an incentive reward program to encourage officers to meet fitness goals. Internal documents from the Authority showed that 86 percent of incumbent officers met the fitness standards, but also that the Authority had never taken any steps to determine whether officers who failed the fitness test performed poorly or hindered the Authority in its ability to meet its goals. Included among the plaintiffs’ evidence was the experience of a female officer who failed the 1.5 mile run, and was hired due to a clerical error. That officer during several years of service was decorated and nominated repeatedly for annual or quarterly awards. She was commended for her outstanding performance and served as one of two defensive tactics instructors. There was also evidence showing that there were an extremely low number of women in the transit police force: most recently 16 out of 234.
The district court found that the Authority had established that the level of aerobic capacity it targeted as required was job-related and consistent with business necessity. It also accepted the expert’s study as demonstrating “the manifest relationship of aerobic capacity to the critical and important duties” of a transit police officer. In a lengthy opinion discussing previous significant cases on business necessity, the appeals court concluded that the district court did not apply the correct legal standard, and accepted on the Authority’s expert’s qualifications alone the justification for the targeted aerobic capacity cutoff. The district court nowhere made its own independent analysis of whether the aerobic capacity which was required for the 1.5 mile run actually reflected the minimum aerobic capacity which was necessary to perform successfully the job of a police officer. The appeals court rejected the conclusion that more is better when it comes to fitness or aerobic capacity and said that concept has no bearing on the appropriate cutoff time, which should reflect minimum qualifications necessary to perform successfully the job in question.
Lanning v. Southeastern Pennsylvania Transp. Auth.,
308 F.3d 286 (3d Cir. 2002).
On remand, the district court entered judgment in favor of the defendants. Plaintiffs appealed the district court’s decision. The sole issue on remand had been whether or not SEPTA proved that its 42.5 mL/kg/min aerobic capacity standard measured the minimum qualifications necessary for the successful performance of the job of SEPTA transit officers. The plaintiffs argued that it had not, because a significant number of individuals who failed the run test could perform at least certain critical job tasks. SEPTA argued that the run test measured the “minimum qualifications necessary” in terms of aerobic capacity to successfully perform as a SEPTA transit officer because the relevant studies indicated that individuals who failed the test would be less likely to successfully execute critical policing tasks. The appeals court affirmed the district court’s grant of judgment in favor of the defendant. In doing so, the appeals court concluded that the defendant produced more than sufficient competent evidence to support the finding that a pre-hire, pre-academy training aerobic capacity of 42.5 mL/kg/min measured the minimum qualifications necessary for successful performance as a SEPTA transit officer, and thus, justified the conceded disparate impact on female candidates as a business necessity.
In determining whether the run test did indeed measure the minimum qualifications necessary for the job, the district court had credited a study that evaluated the correlations between a successful run time and performance on 12 job standards. The study found that individuals who passed the run test had a success rate on the job standards ranging from 70% to 90%. The success rate of the individuals who failed the run test ranged from 5% to 20%. The district court found that such a low rate of success was unacceptable for employees who are regularly called upon to protect the public. The court of appeals stated that, in doing so, the district court implicitly defined the “minimum qualifications necessary” as meaning “likely to be able to do the job.” Other studies cited by the district court offered similar results and showed that the defendant’s experts set the run cut off time at 12 minutes for objective reasons. For example, in one study, 80% of those passing the defendant’s run test met minimum job standards, while only 33% of those failing did. Another study showed that 84% of those passing the test could carry out an emergency assist, while only 14% of the failing group were able to do so.
The lengthy dissent stated that the district court’s findings of fact were erroneous. According to the dissent, it was clear from the record that no real attempt was made to establish either criterion-related or construct validity for SEPTA’s test, because no empirical data was submitted to show the required correlation between tested running times and ultimate job success. The only attempt to establish a correlation to actual job performance was an arrest analysis. The dissent stated that this analysis neither encompassed a representative spectrum of SEPTA transit officer job duties nor evidenced any unsatisfactory performance by those who failed to pass the test.
Mems v. City of St. Paul,
224 F.3d 735 (8th Cir. 2000).
Six African-American firefighters sued the St. Paul Fire Department alleging racial harassment of black firefighters who worked the night shift and disparate impact in the written examination given for promotion to captain. The district court granted summary judgment to the Fire Department on both claims. On this appeal the Court of Appeals reversed summary judgment for the Fire Department on the hostile working environment claim, holding that genuine issues of material fact existed with respect to the claim and summary judgment was inappropriate. The Appeals Court affirmed, however, summary judgment to the Fire Department on the claims of disparate impact in the promotional exam. The Fire Department used a written examination as a prerequisite to being considered for promotion to captain. Both sides agreed that over the four testing years in question, white applicants had a higher pass rate than black applicants when analyzed under the “Four-Fifths Rule.” The Appeals Court looked generally at the statistical record in the case and held it to be not well developed, and not supportive of claims that the Fire Department’s promotional practices in the past have had a general disparate impact on African-Americans. Therefore the Court held the question to be a narrow one of whether the written portion of the examination disparately impacted African-Americans. In reviewing the statistical evidence, the Appeals Court held that the sample size, which ranged from three to seven African-Americans in the several years, was too small to be statistically significant. There was agreement on this point from the statistical experts for both plaintiffs and defendants. In an attempt to overcome this deficiency, the plaintiffs combined all minorities and compared their exam results to that of white firefighters.
This provided a larger sample size than if African-Americans were analyzed alone. The Appeals Court rejected this combined analysis, holding that the plaintiffs’ claims were based exclusively on the impact on African-Americans, and they had not anywhere in their case produced evidence that other minorities were similarly situated or affected by the examination. It held the evidence to be insufficiently statistically significant and affirmed the district court’s grant of summary judgment.
Montemayor v. City of San Antonio,
276 F.3d 687 (5th Cir. 2001).
A jury verdict of nearly $900,000 in favor of a female cadet at the fire department training academy was reversed on appeal, based on her performance on a written examination and skills performance tests. The cadet had been admitted to the training academy pursuant to a previous state court order, after she argued that she was initially denied admission to the academy as retaliation for her claim of harassment during her admission interview because of the sexual content of some questions.
As candidates progressed through the training academy, they were given numerous written examinations as well as skills tests. The fire department’s policy was that cadets could retake written tests if they failed. The policy permitted a cadet to retake only two examinations; if a cadet failed a third written examination, he or she was dismissed from the academy, and was not permitted to retake the third examination. The plaintiff argued that her dismissal from the academy was based on further retaliation for her complaints about the conduct of her original interview. However, there was evidence in addition to her performance on the written examinations that she was a sub-standard cadet. In particular she failed to meet a minimum standard on a test of her ability to connect hoses and operate fire equipment, including power saws. The plaintiff agreed that the tests that she failed were for operations that would be critical to her performance as a firefighter. In addition, there was evidence that the policy about retests and dismissal after failing a third test was consistently applied, and that no cadet had ever been accepted as a firefighter who failed a third examination. This led the court to grant judgment as a matter of law to the city and reverse a jury verdict of $877,000. A modest jury verdict of $23,000 was upheld for her original claim that she had initially been denied admission to the academy based on retaliation for her objection to the sexually harassing questions at her interview. The content of the written examinations is not discussed and was not an element in this action.
Paige v. California Highway Patrol,
291 F.3d 1141 (9th Cir. 2002), cert. denied, 123 S. Ct. 1256 (2003).
A class of minority California Highway Patrol officers challenged the promotion process as having a disparate impact on minorities. In this decision the Ninth Circuit reversed and remanded the district court’s decision on statistical and validation issues. The challenged promotional process applied to all positions above entry level patrol officer, and included various written and oral examinations. The Highway Patrol argued that the appropriate statistical analysis of the outcome of the process was to look at each separate supervisory position. The plaintiffs, however, argued that aggregation of the data on all supervisory positions would be more probative than subdivided data. The appeals court agreed. Although there were different questions and different exam topics for each supervisory rank, the court found sufficient commonality among the duties and skills required by the various positions to justify aggregation. The plaintiffs also argued that the appropriate statistical analysis should compare the percentage of minorities who successfully completed the promotion process to external census data on all law enforcement officers in the geographic area. They further argued that the analysis should considered separate minority subgroups. The district court had agreed that use of external data for the statistical analysis was inappropriate, but had held that the analysis should compare white and nonwhite pools, rather than analyzing minority subgroups. The appeals court agreed with the latter finding, holding that where employment practices have identical discriminatory effects on members of all minority groups, and benefit only members of the white majority, there is no basis for evaluating individual minority groups. However, it rejected the use of external census data in analyzing the disparate impact of the promotional process. It noted that the California Highway Patrol promotional process was a closed process, and the only eligible candidates were officers who were already employed by the CHP. Therefore, the appropriate pool on which to base the statistical analysis of the promotion process was the pool of candidates eligible to apply for promotion, and that was the population of nonsupervisory officers within the CHP, not the external population of all area law enforcement officers. It did permit the use of data on examinations and eligibility lists from years prior to the start of liability, holding that the process operated as an ongoing discriminatory policy and practice. Finally, it found that the CHP had failed to show appropriate validation of the process as a whole, and of its individual parts, and there was no evidence that the examination tested for skills that were critical to performing well in the supervisory ranks. This opinion provides no discussion on validation efforts, if any, that had occurred.
Patterson v. Illinois Dept. of Corrections,
No. 01-3456, 2002 WL 1352462 (7th Cir. June 13, 2002).
Former state correctional officer brought action alleging that his termination for refusing to undergo a mandatory tuberculosis test violated the Rehabilitation Act of 1973, and the ADA. Plaintiff, as part of an annual screening, took a tuberculoses skin test (the “Mantoux test”). Plaintiff’s results were negative, but he subsequently suffered an allergic reaction to the test and was taken to the emergency room. Plaintiff’s personal physician advised him not the take the Mantoux test again. For the next two years, plaintiff took a chest X-ray in lieu of undergoing the Mantoux test. In the third year, defendant required all of its employees, who had not previously tested positive, to submit to the Mantoux test. Plaintiff refused and was suspended from work for ten days. An independent physician examined plaintiff and concluded that plaintiff would most likely not suffer from another adverse reaction to future Mantoux tests. The defendant then demanded that the plaintiff take the Mantoux test or be fired. Plaintiff refused and submitted a request for accommodation requesting that defendant accept a chest X-ray in lieu of the Mantoux test. Defendant subsequently dismissed plaintiff for refusing to submit to the Mantoux test. Plaintiff argued that the defendant’s tuberculosis testing requirement was an impermissible blanket policy that violated the Rehabilitation Act and the ADA. The crux of plaintiff’s argument was that the defendant’s policy required all employees to take the Mantoux test and did not allow the alternative of chest X-rays for individuals like him who reacted adversely to the Mantoux test in the past. The court disagreed, finding instead that the tuberculosis testing requirement to which plaintiff objected applied to all correctional officers, not only those identified as disabled, and therefore did not constitute an impermissible blanket policy.
Peace v. Wellington,
No. 05-4441, 2006 WL 3017118 (6th Cir. Oct. 23, 2006).
Two former corporals in the Mahoning County, Ohio Sheriff’s Department sued the Sheriff for disparate impact discrimination when they failed a promotion test.
All corporals were required to take and pass a Sergeant’s test or else be returned to the rank of Deputy, but with no loss of pay or departmental seniority. Those who passed with a composite score of at least seventy percent would be promoted to Sergeant. Of forty-nine deputies and eight corporals who took the exam, forty deputies and four corporals passed with a score of at least seventy percent. Plaintiffs failed the exam. Plaintiff’s disparate impact claim was dismissed on summary judgment by the trial court for failure to provide evidence establishing a prima facie case.
The Sixth Circuit affirmed the decision below, holding that the Plaintiffs presented “virtually no statistical substantiation for their disparate impact claim.” Although the Supreme Court has not specified the type(s) of statistical evidence upon which courts hearing disparate impact claims should or may rely, a plaintiff who presents statistical evidence need not rule out all other potential variables nor prove discrimination with scientific certainty. A plaintiff must, however, prove relevant adverse impact by a preponderance of the evidence. Here, the Sixth Circuit found that the plaintiffs’ conclusory assertion that “75% of those demoted to deputy were African-American”— with no substantiation of this figure and with no other evidence, such as data regarding the other corporals and deputies who took the exam or the total pool of test-takers—does not establish a prima facie case of disparate impact.
Price v. M&H Valve Co.,
No. 03-02785-CV-PT-M, 2006 WL 897231 (11th Cir. Apr. 7, 2006).
An African-American current employee of M&H Valve brought a Title VII cause of action alleging, inter alia, disparate impact in training based on race. M&H Valve had instituted a supervisor-training program as part of its conciliation agreement with the EEOC due to prior charges involving disparate promotions. The program was intended to provide all qualified employees interested in a supervisory position with the means to improve on skills necessary for such a promotion. To qualify for the program, M&H Valve management determined that its supervisor positions necessitated applicants to demonstrate at least a tenth-grade equivalency on the TABE exam. The TABE exam is a “norm-based” exam that tests grade levels in math, spelling, language, and reading. TABE is also one of only three tests used by Alabama for adult applicants seeking to obtain a GED.
The plaintiff only performed at the 4.5, 1.3, and 5.7 grade levels in reading, language and spelling, and math; and, therefore, was not eligible for the supervisor-training program. Plaintiff, in turn, alleged that M&H Valve failed to provide him with training opportunities that the Company provided to Caucasian employees.
The plaintiff provided evidence that there were no African-Americans in the current supervisor-training program class. M&H Valve responded on two fronts. To the extent the plaintiff alleged the TABE exam had a disparate impact on screening applicants, M&H Valve argued that the plaintiff could not produce sufficient statistical evidence to buttress his claim, nor could he show that M&H Valve’s legitimate business reasons for the test were pretextual. M&H also argued that the plaintiff failed to show that the actual training program, as opposed to the testing, had a disparate impact.
The Eleventh Circuit affirmed the district court’s grant of summary judgment in favor of M&H Valve, ostensibly because the plaintiff failed to exhaust his administrative remedies for his disparate impact claim by failing to provide adequate notice in his EEOC Charge. The Court nonetheless held, as dicta, that even assuming that the plaintiff had identified a particular, facially-neutral employment practice, he could not establish a prima facie case of disparate impact because “he failed to demonstrate a statistical disparity in the racial composition of employees benefiting from the practice and those qualified to benefit from the practice.” In so holding, the Court relied on precedent that “statistics based on an applicant pool containing individuals [such as the plaintiff] lacking minimal qualifications for the job would be of little probative value.”
Rutherford v. City of Cleveland,
No. 04-3904, 2006 WL 1526091 (6th Cir. June 1, 2006).
Background: Nonminority police officers challenged the City’s continued compliance with a consent decree’s race-based hiring plan issued to remedy the discriminatory impact that resulted from a police entrance exam administered in the 1960s and 1970s. In a prior case, the district court found that the entrance exam had a disparate impact on minorities and was not validated for job performance. As a result, the district court granted a consent decree, which, among other things, required the hiring of a specific percentage of minorities in order to remedy the effect of other disparate impact screening practices. In the 1980s, the district court amended the consent decree to include the following terms: (1) The consent decree would be enforced until 33% of the officers were minorities or until December 31, 1992, whichever came first. (2) However, if the City failed to hire at least 70 officers in any given year, the decree would continue an additional year for each year the City failed to hired 70 officers, unless the 33% was achieved. (3) Last, the City would hire three minority officers for every four non-minority officers and maintain separate eligibility lists for minority and non-minority candidates from which one out of three qualified candidates would be chosen.
In years following the decree, the City never reached the 33% target and failed to hire at least 70 officers in two different years. Therefore, the City continued to comply with the decree through December 31, 1994. Plaintiffs challenged the constitutionality of applying the consent decree from December 31, 1992 through December 31, 1994, arguing that the decree was no longer justified by a compelling governmental interest, nor narrowly tailored to achieve such an interest.
Held: The Sixth Circuit reasoned that the decree’s constitutionality should be analyzed by using the facts and circumstances existing at the time the court enacted the race-based remedy—as opposed to the time period being challenged. According to the Court, this is especially true when presumably the practice of discrimination has halted; but its effects are still felt. Therefore, the Sixth Circuit found that because the vestiges of racial discrimination had not been sufficiently relieved by 1992, and because the decree continued to be narrowly tailored to remedy the same, the City continued to be constitutionally bound by the decree’s terms. The Court did not agree that the City’s use of validated examinations for years prior to the 1993-1994 time period made the decree’s race-based relief unnecessary, as the facts showed that such exams were not effectively remedying the effects of past discrimination.
Sledge v. Goodyear Dunlop Tires N. Am., Ltd.,
275 F.3d 1014 (11th Cir. 2001).
The timing of the development of a test, the process by which it was administered, and the use of its results led a federal appeals court to vacate summary judgment in favor of an employer. The plaintiff was a black employee at a tire factory employed as a tire “builder,” who received significant experience as a maintenance mechanic in the course of his duties. He indicated to the Human Resources Department that he would like to be moved into a maintenance position, which would be a promotion. The collective bargaining agreement required posting of all open positions. Pursuant to the process, employees placed their name on the posting and the Human Resources Department selected those who would be interviewed. Plaintiff indicated his interest in three mechanic positions. At the time, there were 107 mechanics, of whom all but one were white. The plaintiff was not interviewed for any of three openings, and in order to bolster the possibility of promotion, he asked his supervisors in the tire building department to sign a letter stating that he was qualified to be a maintenance mechanic, which they did. In that same month, the plant engineer developed a two-part test for selecting those to be interviewed for maintenance mechanic positions. The first part was a written examination including mathematic problems and requiring identification of various tools. The second, “practical” part was administered by the maintenance supervisors and required the applicant to repair certain pieces of machinery and demonstrate welding skills. A score of 75% was required on the written examination, and, to be certified for an interview, supervisors needed to agree that the candidate had passed the practical part of the test.
Immediately following the implementation of the test, the plaintiff posted for two mechanic positions. Several applicants were tested, but he was not. He asked to take the exam but was denied that opportunity. Both positions were filled by whites who had not taken the test. He protested the awarding of the positions to two individuals who had not taken the written examination, and reiterated his request that Human Resources give him a chance to take the test. Before he received a response, another opening was posted, and he applied again. Several applicants were tested, but he was not. The job went to a white applicant who failed the examination. The plaintiff continued to protest and the company changed the first part of the test expanding it to include 169 possible points, compared to the previous 99 points. Of the 70 additional questions, 31 were on drawing and reading and 40 were word problems. A white applicant took the new test for a mechanic opening, and he was told to disregard the word problems. He passed on that basis and also passed the practical test. Two days later, following a 12-hour shift that had begun the previous evening, Human Resources told the plaintiff that if he wanted to take the test he would have to take it immediately. He agreed and took the new expanded test including the word problems. He failed the exam, but passed the practical section, which he took immediately following the written test. He asked to review his written examination, but was denied permission. Evidence before the court showed that he had passed the original, 99-point test, but with the word problem scores included, he did achieve not a passing grade. He was not retested. Although he posted on subsequent openings, he was denied an interview based on his failing score. A white applicant who filed a grievance with the union about his failure on the longer written test was permitted to retake the test. To avoid a claim of race discrimination Human Resources Department permitted the plaintiff to take it as well. The test they were given, however, was a new test designed by a member of the engineering staff. Neither of them passed the test, but the white candidate was given the job. In light of this history, the appeals court held that a reasonable jury could find that the plaintiff was qualified for a maintenance mechanic position and that the written examinations developed over a six-month period were nothing more than a pretext for racial discrimination. The test was not given to all applicants, and a passing score was not required of all individuals selected for maintenance mechanic. Furthermore, the administration of the task to the plaintiff at the end of a 12-hour shift, after previously denying him the opportunity to take the test, was also evidence of a lack of fairness.
Stout v. Potter,
276 F.3d 1118 (9th Cir. 2002).
Plaintiff female postal inspectors brought a Title VII action against the postmaster general, alleging denial of promotion on the basis of sex. The plaintiffs alleged both disparate treatment and disparate impact on the basis of sex in violation of Title VII. The district court granted summary judgment for the postmaster general, and the court of appeals affirmed. The court of appeals held that: (1) the female inspectors failed to establish prima facie case of disparate impact under Title VII and (2) the female inspectors failed to establish that the facially neutral screening process excluded female applicants.
This case arose when the plaintiffs, along with thirty-four other postal inspectors, applied for promotion to Assistant Inspector in Charge (“AIC”). There were five open positions. Six of the thirty-eight applicants for the position were women. A review panel initially screened all applicants on the strength of their applications and their supervisor’s evaluations. The panel identified the most qualified candidates and forwarded their names as potential interviewees to a separate selection committee that made the final selection decisions. From the original pool of thirty-eight, the screening panel identified ten applicants as the most qualified. None of the six female applicants was included. Due to unexpected circumstances, two of the six female applicants was granted interviews in a second screening round. One of those applicants was ultimately promoted.
Finding that Plaintiffs failed to establish a prima facie case of disparate impact, the district court focused on the final results of the promotion process. The district court noted that one out of six female applicants was promoted, whereas three out of 32 male applicants received a promotion to AIC. This meant that female applicants were promoted at a rate of more than 16 percent, compared to a promotion rate for male applicants of less than 10 percent.
The court of appeals focused not on the bottom line of the promotion process but, rather, on the intermediate stage of the promotion process, the interview by the selection committee. The court found that the interview functioned as a pass/fail barrier to further consideration. The court stated that the non-adverse result of the ultimate promotion decisions cannot refute a prima facie case of disparate impact at the dispositive interview selection stage. But because those who were not selected in the first round were again considered in the second round, the court found that they could not be analytically separated for purposes of disparate impact analysis. After noting that the probative value of any statistical evidence was limited by the small available sample, the court found that the evidence did not indicate a substantial statistical disparity.
The court noted that the female applicants comprised 13.3 percent (2 of 15) of all those interviewed and 15.8 percent (6 of 38) of the original applicant pool. The percentage of interviewees who were female was nearly proportional to the percentage of applicants who were female. The 2.5 percent difference was not a substantial or significant statistical disparity. In addition, the court stated that, as a “rule of thumb,” courts have also considered the “four-fifths rule” found in the Uniform Guidelines. Applying this rule, the court observed that the selection rate for female applicants to be interviewed was 33% (2 of 6) and the rate for male applicants was 41% (13 of 32). This meant that the rate of selection for women was 81 percent of the rate of selection for men, again demonstrating that no disparate impact was shown.
Sutherland v. Norfolk Southern Ry. Co.,
No. 02-3321, 2003 WL 1870723 (7th Cir. April 11, 2003)
Female railway employee sued her employer for alleged gender-based failure to promote in violation of Title VII. The district court granted summary judgment for employer. On appeal, the Court of Appeals affirmed the district court and held that the plaintiff failed to establish a prima facie case of discrimination.
The defendant required union employees like Plaintiff who desired to move to non-union positions to score at least 24 on the Wesman Personnel Classification Test (“PCT”); a score below 24 disqualifies a candidate from consideration. In 1999 plaintiff scored 17 on the PCT. Under defendant’s policy, candidates are not retested unless they have received additional relevant education. Plaintiff had not received such education; thus she was not retested and not promoted. Between January 2000 and October 2000, seven male Norfolk employees moved from union positions to trainmaster positions in Chicago- all scored above 26 on the PCT.
Plaintiff filed suit. She did not, however, challenge the validity of the test. Rather Plaintiff proceeded under a disparate treatment theory. The district court concluded: (1) Plaintiff failed to establish a prima facie case of disparate treatment based on Norfolk’s refusal to promote her, because she had not demonstrated that she was qualified for the promotion or that similarly-situated men were promoted; and (2) even if she had, plaintiff failed to demonstrate that Norfolk’s reason for denying her promotion-her low PCT score-was pretextual. Plaintiff appealed. The court of appeals affirmed the district court’s grant of summary judgment for the defendant, reasoning that plaintiff did not score high enough on the PCT to be qualified, and she has provided no evidence of a male yardmaster with a score below 24 who was promoted. In short, she had not established a prima facie case.
Vaughn v. Watkins Motor Lines, Inc.,
291 F.3d 900 (6th Cir. 2002).
Former employees sued employer-motor carrier for race discrimination. Plaintiffs alleged that defendant discharged them because of their race. Plaintiff Vaughn alleged that he took and passed the required test to be placed in a management position, but was informed that he was not eligible for a promotion in light of his poor attendance record. Vaughn did not dispute his poor attendance, but contested the accuracy of Defendant’s records and, in addition, claimed that several Caucasian employees failed the promotion test but were nevertheless elevated to management positions. The court found that, although Vaughn’s deposition testimony that Caucasian employees had failed the test yet were promoted to supervisory positions might be relevant in a failure-to-promote racial discrimination claim, here neither plaintiff asserted such a claim. Plaintiffs instead alleged that defendant discriminated against them on the basis of their race by terminating their employment. Thus, the defendant’s refusal to promote Vaughn had no bearing on the question of whether plaintiffs established a prima facie case for the particular employment discrimination claim that they asserted. The court of appeals concluded that the district court did not err in granting summary judgment in favor of Watkins on the plaintiffs’ racial discrimination claims.
Zottola v. City of Oakland,
No. 01-15238, 2002 WL 463695 (9th Cir. Mar. 4, 2002).
Plaintiff job applicant brought an action against the city regarding an entrance exam for a firefighter position that allegedly discriminated against Caucasian males. The plaintiff contended that direct evidence of discrimination was established by the fact that eight African-American candidates, interviewed by a three-member all African-American panel, scored significantly higher than the thirty white candidates interviewed by the same panel. The court found that statistical evidence, although probative of motive in a disparate impact case, was not relevant in plaintiff’s case because the sample size was too small, standing alone, to establish a prima facie case of intentional discrimination. Thus, the court concluded that the racial composition of the panel was not sufficient, in combination with the insubstantial statistical evidence, to show intentional discrimination. The plaintiff further contended that the defendant failed to provide sufficient evidence that the oral interview selection process had been properly validated and therefore could not establish business necessity. Plaintiff argued that defendant’s job-analysis failed to demonstrate that its interview selection process was job-related. In support of his argument, plaintiff contended that the defendant failed to demonstrate by professionally accepted methods that its oral interview process was predictive of or significantly correlated with the knowledge, skills, and abilities identified in its job analysis as important characteristics for entry-level fire fighters. The defendant argued that it relied on content validation to demonstrate that its oral interview was predictive of the knowledge, skills, and abilities for an entry-level firefighter. The evidence that the defendant presented to validate its oral interview included pre-testing results collected as part of the job analysis; statistical inter-rater reliability studies that were conducted to ensure that the panel scores were reflective of the candidate rather than the rater; anecdotal evidence that the Fire Department “raved” about the candidates who had been hired and that they were performing well in the academy; and expert testimony that these “behavioral consistency orals yield the most reliable and valid results,” and that the use of open-ended oral interview questions was appropriate, professionally accepted, and prevalent throughout the country. Based upon the defendant’s evidence of content validation, the court held that the defendant produced sufficient evidence of validation to send the question to the jury and survive plaintiff’s motion for judgment as a matter of law.
Association of Mexican-American Educators v. California,
937 F. Supp. 1397 (N.D. Cal. 1996), aff’d en banc, 231 F.3d 572 (9th Cir. 2000).
Several diverse groups of minority teachers challenged the California Basic Educational Skills Test (“CBEST”), passage of which is required to teach K-12, plus serve in some administrative and staff positions, in the public schools in California. In a lengthy decision focusing on the various job analyses, validation studies and scoring methods through which the test had been developed and evoked, the test was found to be “objective, cost-effective, and a valid way to assure that teachers and others employed in the public schools possess basic skills.”
The CBEST is a pass/fail examination composed of three sections: reading, writing and mathematics. The reading and mathematics sections are composed of multiple-choice questions, while the writing portion consists of two essay questions. Passing scores were required for both elementary school teachers, secondary school teachers, and numerous non-teaching positions, such as administrators, school counselors and nurses. The test was administered five to six times per year, and candidates could take the test an unlimited number of times. A candidate who failed one or more sections need only retake the failed sections. Limited compensatory scoring was permitted. In evaluating the need for such a test, the court took note of the crucial role that teachers occupy in society, and the fact that the education of all children has a profound effect on the future of the state and the country. It noted that teachers are role models and that students learn not only what they are taught directly but also what they observe. Those teachers and administrators who use improper grammar or who make mistakes in simple calculations model that behavior to the students, to the detriment of their education. The court described the real issue as being whether teachers in California’s public schools, all of whom must already have achieved a college degree, should be required to pass a test of precollege-level skills before they are allowed to teach. In an opinion which noted the substantial adverse impact of the test, the court held that the state was entitled to assure that teachers and others who work in the public schools possess a minimum level of competency in basic reading, writing and math skills before being entrusted with the education of children.
The court used the 80% Rule to evaluate the impact of the test battery, and called the evidence undisputed that an adverse impact existed with respect to first-time CBEST takers who are Latinos, African-Americans, and Asian-Americans. It was not persuaded by defendants’ arguments that cumulative pass rates should be used, rather than first-time pass rates. It further dismissed defendants’ arguments that each subpart should be analyzed for pass rates, rather than the CBEST as a whole. In reviewing the validation of the test, the court found that defendants had shown that the basic skills were important elements in the jobs for which the CBEST was required, and further that CBEST actually tested those skills. In reviewing the validation of the test, it found that content validation was adequate for the test, where it was not designed to predict a teacher candidate’s performance on the job. It found that content validity would not be appropriate where the test purported to measure a hypothetical construct or trait, unlike the instant case where the CBEST was designed to measure specific well-defined skills. The test had been validated three times. The first was a validity study conducted contemporaneously with the 1982-83 development of the test, then a 1985 validation study, and finally a job analysis and content validity study conducted during 1994 and 1995. The 1982 validation included 289 SME participants who conducted an item content review of the items on the reading and math subtests. They evaluated the relevance of each item to the job of teaching in California on a four-point scale for relevance. That study found overall relevance ratings of 76% “critical” or “important” for the reading examination, and 65% for mathematics. The 1985 content validity study was a practitioners’ review, which involved 234 teachers and other school professional employees. That population was 36% minority. Those panelists rated the CBEST skills as very relevant or moderately relevant at a percentage ranging from 87% to 99%. All the skills tested by CBEST were rated either very or moderately relevant.
The 1994 validation study began with a detailed job analysis, which used a job analysis survey form that included reading skills, writing skills and math skills, as well as various teacher job activities. The survey was completed by approximately 1100 teachers and 230 administrators from a distribution sample of 6000 teachers and 1100 administrators. The study found no meaningful differences among ethnic groups in the skills that were deemed important for teachers, a fact that the court took note of several times in the opinion. The expert who conducted this last validation study (Dr. Kathleen Lundquist) made conservative adjustments in the math and reading skills included in the revised version of the test, which was first administered in August 1995. In summarizing the various efforts at validating the CREST, the court found that the 1982 validation effort was appropriate under the professional standards of the time. It further noted that it was professionally acceptable to conduct job analysis surveys after the test had been developed. Although plaintiffs suggested that the validation study should have considered separately requirements for beginning rather than experienced teachers, the court noted that the test was one for basic skills and not skills that teachers learn on the job. It further disposed of plaintiffs’ arguments that the time limits had an adverse impact on the plaintiff class. The final portion of the opinion dealt with the setting of passing scores. These had been set by the California Department of Education, but inasmuch as the passing scores which were selected were lower than those recommended by subsequent studies, the court found the levels to be acceptable.
Plaintiffs’ final arguments related to a possible alternative to the CBEST. Suggested alternatives included a bachelor’s degree, completion of an accredited teacher preparation program, subject-matter certification through an examination, or completion of a state-approved coursework program. However, the court found that these could not substitute for the CBEST, and in fact that individuals who had satisfied these requirements still might not pass the CBEST, as experience had shown. Plaintiffs’ suggestion of a GPA requirement or a coursework alternative similarly failed, based in part on the court’s view that there was little control over individuals who had completed course requirements outside the State of California, where information about whether the institution was accredited, or the content of its program, was not known and could not be regulated by the State.
On appeal to a three-judge panel, the Ninth Circuit affirmed the district court’s judgment on all issues except the denial of costs to the prevailing defendants, remanding the case for a determination of the proper costs to be taxe