FRIENDLY, Circuit Judge:
As in Chance v. Board of Examiners, 458 F.2d 1167 (2 Cir. 1972), and Bridgeport Guardians, Inc. v. Members of the Bridgeport Civil Service Comm'n, 482 F.2d 1333 (2 Cir. 1973), we are confronted with a claim that a city has unintentionally discriminated with respect to the employment of minority group members. Here, as in Chance, the city is New York; the alleged discrimination is with respect to persons allowed to qualify for the entering grade in the Fire Department. The action was brought under the Civil Rights Act, 42 U.S.C. § 1983, and its jurisdictional counterpart, 28 U.S.C. § 1343(3).
Plaintiffs, five minority individuals who had applied for employment with the Fire Department and two organizations representing minority firefighters, brought this suit as a class action in the District Court for the Southern District of New York. Their complaint alleged that the procedures used to select New York City firemen discriminated against blacks and Hispanics in violation of the equal protection clause of the Fourteenth Amendment. The defendants were the Civil Service Commission of the City of New York, the City's Department of Personnel, the chairman of the Commission and director of the Department, two members of the Commission, and then Fire Commissioner Lowery, hereafter referred to as the municipal defendants. Attacking on a broad front, plaintiffs first sought injunctive relief to prevent the Fire Department from making any more appointments based on an eligibility list reflecting performance on Exam 0159, a written civil service examination given on September 18, 1971. In addition, they sought to block further use of various other screening measures, including the Department's minimum height requirement, a requirement that every fireman have a high school or high school equivalency diploma, and the bar, arising from the combined effect of § 487a-3.0(b) of chapter 19 of the Administrative Code of New York City and § III-4.3.2(b) of the Rules and Regulations of its Civil Service Commission, against any applicant who had been convicted of a felony or of petty larceny.
At a hearing on plaintiffs' application for a preliminary injunction, Judge Weinfeld took evidence on the alleged discriminatory impact of the written examination and on the question whether the test was sufficiently related to a fireman's job to survive constitutional attack. At the conclusion of the seven-day hearing, he suggested that the parties agree to treat the hearing as a final trial on the merits of the case under F. R.Civ.P. 65(a)(2). Both parties agreed,
On June 12, in a comprehensive opinion, the district judge, 360 F.Supp. 1265, ruled that the written examination had a discriminatory impact and that it was not sufficiently job-related to justify its use. He enjoined further reliance on the challenged eligibility list, without prejudice to the parties' applying for interim relief which would permit appointments from the list on a quota basis until a new examination could be given and a new eligibility list established. Because the injunctive relief would benefit all persons similarly situated, Judge Weinfeld declined plaintiffs' request that he designate a class. As to the automatic disqualification issues, he ruled that it was unnecessary to consider those questions, stating:
He added there was serious doubt whether the plaintiffs had standing to raise either the criminal conviction bar or the high school diploma requirement, since it appeared from the complaint that none of the named plaintiffs was subject to exclusion for those reasons.
Two months later, after having allowed intervention by non-minority candidates who had qualified under Exam 0159 but had not yet been appointed, the district court issued an order granting interim relief. The order instructed that in making future appointments from the challenged eligibility list, defendants would be required to hire one minority applicant for every three nonminority applicants hired. In an accompanying memorandum, the court further directed the municipal defendants "to exert every good faith effort to accelerate the establishment of a new list."
The defendants, intervenors, and plaintiffs all appealed from various portions of the district court's decision and order. We denied an application by the defendants and intervenors for a stay but brought the appeal here on an expedited basis. As is usual in cases of this sort, we have had a number of amicus briefs filed on behalf of various individuals and organizations. However useful amicus briefs may be on an issue of first impression in this circuit, see Chance, supra, 458 F.2d at 1169 & n.5, they only add to our burdens when the controlling principles have been established and the parties are so capably represented as here.
Under Chance and Bridgeport Guardians our analysis must be three-pronged. Was Judge Weinfeld "clearly erroneous" in finding that Exam 0159 had had a "racially disproportionate impact"?
The municipal defendants do not here challenge the findings of racially disproportionate impact, but the intervenors do. The basic facts are these: Roughly 11.5% of the 14,168 applicants who entered the examination halls were black or Hispanic. Yet minority members comprised only 5.6% of those who had passed the written, physical and medical examinations at the time of the hearing. Non-minority candidates thus survived the screening process at a rate more than twice that of minority candidates. Perhaps even more important, 18.4% of the whites who took the examination ranked in the top 4000 and survived the physical
In challenging these statistics, the intervenors attack the reliability of the two ethnicity surveys by which the figures were gathered. The first was conducted by the Vulcan Society, an organization representing black firemen. The Society posted in front of the examination halls observers who counted the minority candidates as they entered. The Fire Department itself conducted the second survey, a "sight survey" of those candidates who passed all stages of the selection process and were deemed "finally qualified." While the rather crude procedures of physical observation used in the surveys doubtless led to error in some cases, it is hard to believe that survey errors could have accounted for the striking racial imbalance that the results indicated. Indeed, it is arguable that the statistics probably underestimate the disparity between the percentage of minority candidates who took the examination and the percentage who qualified for appointment, since in the initial survey the Society instructed its observers to register candidates as minority members only when they were certain the candidates were black or Hispanic, but there is no indication that the Fire Department was similarly conservative in its survey of the candidates who qualified.
The intervenors also criticize the plaintiffs' comparison of the number of minority candidates who took the written examination with the number who finally qualified for appointment as a means of proving the racially disproportionate impact of the written test. The comparison was invalid, they claim, because minority members might have been disproportionately eliminated by either the physical or medical examinations, rather than by the written test. In theory this is true, and since there is no claim that the physical and medical examinations were biased, such a result would vitiate plaintiffs' constitutional claim. But plaintiffs' statistical expert produced an analysis showing that on the hypothesis that the written examination did not discriminate against minority applicants, the non-minority candidates must have passed the physical and medical examinations at a rate almost three times that of the minority candidates, a result he properly regarded as extremely unlikely.
The intervenors point to several other factors which they claim may undercut the validity of plaintiffs' statistics, but none of them casts serious doubt on the court's finding. They contend first that a substantial number of minority candidates may have done well on the written examination but been prevented from becoming "finally qualified" by the diploma or height requirement or the
It may well be that the cited figures and other more peripheral data relied on by the district judge did not prove a racially disproportionate impact with complete mathematical certainty. But there is no requirement that they should. "Certainty generally is illusion, and repose is not the destiny of man."
In Castro v. Beecher, supra, 459 F.2d at 732, the First Circuit stated that
Judge Coffin later referred to the defendants' obligation to "come forward with convincing facts establishing a fit between the qualification and the job." Id. We do not consider that this court's references to "a heavy burden" in Chance, supra, 458 F.2d at 1176, and Bridgeport Guardians, supra, 482 F.2d at 1337, meant anything more. The point we were endeavoring to underscore is that a showing of a racially disproportionate impact puts on the municipal or state defendants not simply a burden of going forward but a burden of persuasion. This may indeed prove to be "heavy" because plaintiffs are likely to produce experts who will find numerous grounds for criticizing the examinations, whether legitimately or not. But if the public employer succeeds in convincing the court that the examination was "substantially related to job performance," an injunction should not issue simply because he has not proved this to the hilt.
We shall first consider the written examination. No one now challenges Judge Weinfeld's conclusion that Questions 81-100, entitled "City Government and Current Events," were not job related.
Although the judge placed particular emphasis on the unrelatedness of the civic affairs questions, this was not the limit of his criticism of the written examination. He sustained plaintiffs' contention that defendants failed to perform an adequate job analysis in preparing the examination
Cases like this one have led the courts deep into the jargon of psychological testing. Plaintiffs insist that the only satisfactory examinations are those which have been subjected to "predictive validation" or "concurrent validation," preferably the former. The district court defined these terms as follows: "Predictive validation consists of a comparison between the examination scores and the subsequent job performance of those applicants who are hired"; "Concurrent validation requires the administration of the examination to a group of current employees and a comparison between their relative scores and relative performance on the job." The judge wisely declined to insist on either. The Fourteenth Amendment no more enacted a particular theory of psychological testing than it did Mr. Herbert Spencer's Social Statics. Experience teaches that the preferred method of today may be the rejected one of tomorrow. What is required is simply that an examination must be "shown to bear a demonstrable relationship to successful performance of the jobs for which it was used." Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849 at 853, 28 L.Ed.2d 158 (1971); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 n.14, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
The intervenors argue that the judge confused "construct validation" with "content validation" and thereby erred in finding Exam 0159 insufficiently job-related. We do not think the judge was confused. He characterized "content validation" in accordance with both prior case law and the leading authorities in the field:
See Bridgeport Guardians, supra, 482 F.2d at 1338. A simple example of an examination having content validity would be a typing test for applicants for a job as a typist. Although the court had no occasion to discuss "construct validity," that method is plainly distinguishable from "content validity." As noted in Bridgeport Guardians, supra, 482 F.2d at 1337-1338, "construct validity" requires identification of general mental and psychological traits believed necessary to successful performance of the job in question. The qualifying examination must then be fashioned to test for the presence of these general traits. To design a "construct valid" test for typists, the examiners would first determine that a typist's job requires, for instance, the ability to concentrate, perseverance, and attention to detail. Assuming that the identification of necessary traits was accurate, an examination that properly tested for those traits would have construct validity.
Instead of burying himself in a question-by-question analysis of Exam 0159 to determine if the test had construct or content validity, the judge noted that it was critical to each of the validation schemes that the examination be carefully prepared with a keen awareness of the need to design questions to test for particular traits or abilities that had been determined to be relevant to
The court's findings with respect to the construction of the examination were as follows:
Appellants do not seriously assert that these findings are clearly erroneous, and our examination of the record convinces us they are far from being so.
The judge was also warranted in rejecting the testimony of defendants' expert, Forbes McCann, that, except for the twenty civics questions, Scheinkman had achieved the miracle of stumbling into an examination that bore "a demonstrable relationship to successful performance of the jobs" without having formulated an adequate analysis of just what the jobs were or what traits they demanded.
It is arguable that McCann's testimony proved the opposite of what he contended. Like Scheinkman, he insisted that the purpose of the test was to examine for the ability to learn to become a fireman in the probationary training school, not for the ability to perform the tasks required of a fireman. Performance on a written multiple-choice examination may well correlate quite highly with the ability to learn certain skills but not with the ability to perform them on the job.
We prefer not to enter this morass, since there were ample grounds for rejecting McCann's testimony even if his premise were to be accepted. We cite a few: His assertion that ability to comprehend written materials was the most important single factor in a fireman's job is at war with common sense. His defense of the mathematics questions, despite his concession that very few firemen occupy jobs that require calculating skills, on the ground that there were only six or seven such questions on the test, ignored two important factors: One was that the scores on the examination were so closely bunched that a difference of only a few points could mean the difference of several thousand places on the eligibility list. The other was that since many other questions either were plainly invalid or too easy to have any differentiating effect,
The defendants and the intervenors ask us to set aside Judge Weinfeld's finding that Exam 0159 was insufficiently job-related because of the absence of a competitive, as distinguished from a merely qualifying, physical examination. We decline to do so.
We can speedily reject the first ground of attack, namely, the absence of evidence that the minority group candidates would do better than whites on a competitive physical examination. This misinterprets Judge Weinfeld's opinion. He did not hold that the use of a merely qualifying physical in itself necessarily or even probably worked against the minorities; what he held was that the absence of a competitive physical in the selection process for a largely physical vocation was additional evidence of the lack of job-relatedness of the selection procedure considered as a whole.
We likewise reject the claim that there was insufficient evidence to support this finding. Several witnesses testified to the high physical demands of a fireman's job. The Department had conducted competitive physical examinations from 1919 to 1968, and Fire Commissioner Lowery and Fire Chief O'Hagen expressed a strong and well-reasoned preference for the practice. While Captain Meyers supported the use of a qualifying physical, he conceded
We stress the limited nature of our holding. We do not read Judge Weinfeld as having said that if a written examination were sufficiently job-related, a competitive physical would always be constitutionally required, although he obviously would view such a physical with favor. There are considerations of cost and convenience that militate against giving a competitive physical to an extremely large group, including some who will rank so low on a proper written examination that even an Olympic score on a competitive physical would not put them within hiring range. Plaintiffs say these difficulties can be readily overcome, but they do not tell us how. In any event, there is no need to decide the question at this time. All that we regard the judge as having held, and all that we now approve, is that, in combination with the defects in preparation and content of Exam 0159 which we have described, the use of a merely qualifying physical examination rendered the Fire Department's selection procedures insufficiently job-related to withstand constitutional attack.
All parties object to the interim relief directed by the trial judge. What we have said sufficiently disposes of the objections of the municipal defendants and the intervenors based on the contention that the only defect in Exam 0159 was the 20 civics questions and that therefore the court should have done no more than to order that the examination be regraded. There remain the challenges to the court's use of an interim quota system and to the ratio of minority to non-minority candidates that the court selected. As in Bridgeport Guardians, supra, 482 F.2d at 1340, we approach the use of a quota system "somewhat gingerly" and approve this course only because no other method was available for affording appropriate relief without impairing essential city services. As to the ratio chosen, the intervenors argue that the proper ratio should be 7 majority candidates to 1 minority candidate, and the plaintiffs contend that the ratio should be 1:1.
The argument for the 7:1 figure is that the ratio of whites to minority members who took the examination was 8:1 and that only a slight adjustment in that figure is needed to take account of improper disparities in appointments already made. Arguing against this and in support of a 1:1 ratio, plaintiffs urge that the nature of Exam 0159 and its predecessors had discouraged minority members from taking the examination; that although there was no specific evidence as to the discriminatory effect of previous examinations, on which Exam 0159 was patterned in considerable measure, this could be gleaned, sufficiently for the purpose of framing relief, from the fact that only 5% of the New York City Fire Department consisted of minority members as against a 32% city-wide minority population in the eligible age group; and that at most the district court's 3:1 ratio up to June 30, 1974 would bring the percentage of minority firemen up to only 6.7%.
It is quite true that the judge's 3:1 ratio does not purport to rest
We turn now to the portion of plaintiffs' cross-appeal concerning the judge's failure to act on their complaints concerning the requirements for a minimum height and a high school or high school equivalency diploma, and the bar against applicants convicted of a felony or of petty larceny. Plaintiffs urge that all three automatic disqualifications operate more harshly on blacks and/or Hispanics than on whites and therefore require a showing of job-relatedness.
The refusal to rule on the minimum height requirement, despite the fact that one of the plaintiffs would have been barred thereby, seems to have been the result of a misunderstanding. The preliminary injunction sought by the plaintiffs was addressed to the eligibility list prepared as a result of Exam 0159, and the testimony had been confined to the racial effect and the job-relatedness of the written and physical examinations. It was altogether appropriate for the judge to seek agreement of the parties that he might rule on these issues as on final hearings and, having obtained this, to make a disposition of them. But, in the absence of an agreement by plaintiffs' counsel to abandon the minimum height issue, which was squarely raised as to one of the plaintiffs, the judge was obliged to rule on the question either one way or the other.
Plaintiffs' position on the diploma requirement and conviction bar is not so strong since none of them were affected by these provisions. But, here again, the judge's commendable desire to get at the heart of the complaint seems to have created a bit of a procedural impasse. He was entirely right in thinking it unnecessary, from the plaintiffs' standpoint, for him to decide on class action designation in order to pass upon the issues raised in regard to Exam 0159.
We do not find that the cases cited by plaintiffs, either under § 1983 or under Title VII of the Civil Rights Act, e. g., Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122 (5 Cir. 1969); Parham v. Southwestern Bell Tel. Co., 433 F.2d 421 (8 Cir. 1970); Carr v. Conoco Plastics, Inc., 423 F.2d 57 (5 Cir.), cert. denied, 400 U.S. 951, 91 S.Ct. 241, 27 L.Ed.2d 257 (1970); and Castro v. Beecher, supra, mandate an answer of that question in their favor.
The judgment is affirmed except that the cause is remanded for further proceedings on the issues discussed in Part VI of this opinion. Plaintiffs may recover costs against the municipal defendants.
All four answers are plausible; we fail to understand the relevance of picking the right one to becoming a good fireman.
Common sense also suggests many flaws in the physics-mathematics series. One example is Question 63, which we reproduce below:
A high school physics student would know the correct answer is (C), but the wrong answer (A) might be more useful for a fireman on the job. The preceding question seems equally without job relationship; while it may be of some value for a fireman to know that "A ball rolling along level ground will slow down and come to a stop," we cannot appreciate the importance of his knowing whether the force that accomplishes this is called velocity, momentum, friction or equilibrium.