FEINBERG, Circuit Judge:
This case presents a challenge to civil service examinations on the familiar ground that they are racially discriminatory.
In October 1972, the Human Resources Administration (HRA), which administers various city social services programs, gave a series of nine examinations for certain positions.
Both sides have appealed. Defendants concede that Judge Lasker correctly stated the legal principles that govern the case:
391 F.Supp. at 1067. They argue, however, that his factual findings of disproportionate racial impact and non-job-relatedness are clearly erroneous. Plaintiffs appeal from the denial of attorneys' fees.
A. Disproportionate Racial Impact
The statistical tables set out in Judge Lasker's opinion, 391 F.Supp. at 1068-69, show that the passing rates for whites on the challenged examinations were 54%, 54%, 88%, 65% and 51%; for blacks the corresponding percentages were 17, 16, 18, 26 and 31; and for Hispanics, 19, 15, 37, 27 and 19. As the trial court pointed out,
391 F.Supp. at 1069.
Defendants' primary objection to this analysis is that the statistics on which it is based are incomplete, and therefore form an inadequate basis for Judge Lasker's conclusion. The problem is that the only individuals taking the test whose race is known are those who were already employed by HRA; no records were kept of the race of other applicants. Thus, for the promotional examinations the race of substantially all applicants is known, but for the three challenged open competitive examinations the differential passing rates cited above were based only on those who were already HRA employees: 51%, 54% and 60% of the total number of candidates.
We agree with Judge Lasker that the incompleteness of the data is not fatal to his findings that plaintiffs had made out a prima facie case of disproportionate impact. The inference that the available data accurately represented the results of the test for all candidates is a reasonable one. In the absence of any reason to believe otherwise, it seems highly unrealistic to believe that minority applicants who were not HRA employees would so far outperform their white counterparts as to wipe out the substantial disparity between the white and minority HRA employees who took the same test, particularly in the light of expert testimony that such a result was unlikely.
Defendants also argue that on the particular facts of this case, even if the results of the five challenged examinations were racially discriminatory, plaintiffs still did not make out a prima facie case because the results of the other tests in the same series were not racially
Defendants' attack on Judge Lasker's finding that the challenged examinations were not sufficiently job-related to overcome plaintiffs' prima facie statistical case has two aspects. Judge Lasker, following the procedure approved by this court in Vulcan Society, supra note 1, 490 F.2d at 395-96, and Kirkland, supra note 1, 520 F.2d at 425-26, concentrated his attention on the method of test construction used by the defendants. Defendants argue that (1) the district court's finding that their method of test construction was "inadequate," 391 F.Supp. at 1083, was clearly erroneous, and (2) even if that finding was correct, the further finding that the test was not job-related is erroneous because the trial court insufficiently analyzed the content of the test.
Both points are dealt with thoroughly in Judge Lasker's opinion. Rather than repeat the details of the test-construction method, we refer the reader to the lengthy discussion there, 391 F.Supp. at 1077-84. Defendants stress the expert testimony they presented to support the professionalism of their construction of the challenged tests. At the very least, it must be conceded that unlike the defendants in the cases cited in note 1 supra, HRA had made a good faith effort to prepare adequate job analyses and to construct a test which measured qualities demanded by the jobs in question. But plaintiffs' expert testified flatly that the job analysis "does not even remotely meet professional standards," that "the written test was inadequate as a measure of . . . performance in the job," and that "there was no evidence for content validity or any other validity of this test."
Defendants' argument that Judge Lasker insufficiently analyzed the content of the examination is without merit. Pointing to the broad range of functions that might be performed by someone in one of the job categories for which the tests were given, defendants argue that this requires a test that covers not specific knowledge but mastery of certain "core skills" basic to all jobs performed by those in each job title. But Judge Lasker found that defendants had not established the existence of such a common core of skills, or that the job analyses prepared by HRA successfully identified them, or that the examinations given tested for them. 391 F.Supp. at 1084-85. These findings were clearly permissible on the record before the trial court.
In short, we repeat what we said in Chance, supra note 1, 458 F.2d at 1175:
Plaintiffs argue that the district court erred in denying them attorneys' fees. They maintain that plaintiffs suing
Plaintiffs also attempt to bring themselves within the exceptions left open by the Supreme Court in Alyeska Pipeline Service Co. v. The Wilderness Society, 421 U.S. 240, 258-59, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975), to the general rule that attorneys' fees may not be awarded absent statutory authorization. In light of the explanation of the "common benefit" cases in F. D. Rich Co. v. Industrial Lumber Co., 417 U.S. 116, 130, 94 S.Ct. 2157, 2165, 40 L.Ed.2d 103 (1974), as involving a "shifting of fees . . . to spread the cost proportionately among the members of the benefited class," we are not at all sure that plaintiffs come within that exception.
The judgment of the district court is affirmed.