The opinion of the court was delivered by: LASKER
The Human Resources Administration (HRA), a "super-agency" of the City of New York, was created in 1966 in order to coordinate and administer the varied city programs dealing with poverty and social services. Plaintiffs in these two consolidated actions challenge five civil service examinations for positions in the Human Resources Specialist (HRS) Series. They claim that the examinations had a discriminatory impact on Blacks and Hispanics and are not job-related. The named plaintiffs and the class they seek to represent are Black and Hispanic persons
who took and failed one or more of the five examinations challenged here. They seek (1) a declaration of the unconstitutionality of the examinations; (2) an injunction against appointments from the lists based on the results of the examinations; (3) an injunction requiring the creation of constitutionally adequate selection procedures for the positions in question and (4) an injunction requiring the permanent appointment of those presently serving as provisional employees to the positions they now occupy. Suit is brought under 42 U.S.C. §§ 1981 and 1983. Jurisdiction is based on 28 U.S.C. § 1343(3) and (4), and the Fifth and Fourteenth Amendments.
The Jones plaintiffs challenge examinations Nos. 1631 and 2013, the promotional and open competitive examinations for the position of Supervising Human Resources Specialist (Sup. HRS). The Williams plaintiffs attack the constitutionality of the open competitive examination (No. 1097) for Human Resources Specialist (HRS) and both the promotional and open competitive examinations for Senior Human Resources Specialist (Sr. HRS) (Nos. 1626 and 1099). By earlier orders the city has been preliminarily enjoined from making appointments based on any of the examinations.
Trial of the issues in Jones has been completed. By stipulation, the parties have supplemented the record developed in Jones to enable the court to decide the merits of Williams.
Cases of this type, and these suits in particular, involve a prodigious amount of factual matter. Accordingly, we have so far as possible restricted the text of this opinion to substantive discussion, and made extensive use of footnotes for other material.
The present suits follow in the wake of several recent cases in this Circuit involving civil service examinations alleged to have a disparate impact on minority applicants. See, e.g., Vulcan Society v. Civil Service Commission, (hereafter "Vulcan"), 490 F.2d 387 (2d Cir. 1973), aff'g 360 F. Supp. 1265 (S.D.N.Y. 1973); Bridgeport Guardians, Inc. v. Bridgeport Civil Service Commission, ("Bridgeport Guardians"), 482 F.2d 1333 (2d Cir. 1973) aff'g in part and rev'g in part, 354 F. Supp. 778 (D. Conn. 1973); Chance v. Board of Examiners, ("Chance"), 458 F.2d 1167 (2d Cir. 1972) aff'g 330 F. Supp. 203 (S.D.N.Y. 1971); Kirkland v. N.Y. State Dep't of Correctional Services, ("Kirkland"), 374 F. Supp. 1361 (S.D.N.Y. 1974).
The ground rules established in those decisions require plaintiffs to make a prima facie showing that the examinations have a "racially disproportionate impact," Vulcan, 490 F.2d at 391, Chance, 458 F.2d at 1175-1176; see also Castro v. Beecher, ("Castro"), 459 F.2d 725, 732 (1st Cir. 1972). Upon such a showing the burden shifts to the defendants to establish that the challenged examinations are job-related, Vulcan, 490 F.2d at 391. If it is demonstrated that disparate examination performance results from the candidates' relative qualifications for the job, rather than their race, the examinations are constitutionally adequate, in spite of their racially disparate impact. Griggs v. Duke Power Co., 401 U.S. 424, 28 L. Ed. 2d 158, 91 S. Ct. 849 (1971), Chance, 330 F. Supp. at 214. The burden on defendants is "a heavy one," Chance, 458 F.2d at 1176, Guardians, 482 F.2d at 1337, but is discharged if they "come forward with convincing facts establishing a fit between the qualification and the job." Vulcan, 490 F.2d at 393 quoting with approval Castro, 459 F.2d at 732. The defendants are not required to prove that no alternative methods of selection were available to them; the critical question is whether the challenged procedure is constitutionally sound, not whether a better one could have been devised. Castro, 459 F.2d at 733, Vulcan, 490 F.2d at 393.
A. As in earlier suits, plaintiffs base their prima facie case on statistics provided by defendants as to the race of passing and failing candidates. However, as to three of the five examinations in question, the data is incomplete because HRA does not keep records of the race of candidates who were not HRA employees at the time they took an examination. Neither side suggested or undertook, and the court did not order, a survey to determine the race of those not identified in HRA's records.
Accordingly, as to 2013 the ethnicity of only 51% of the candidates is known; for 1097 and 1099 the figures are 54% and 60% respectively. The available statistics are set forth in the chart below:
Challenged Exam No. 1631 (Sup. HRS) (Prom.)
Pass Fail Total % Passing
Blacks 12 57 69 17%
Whites 28 24 52 54%
Hispanics 3 13 16 19%
Unknown 0 1 1
43 95 138
Challenged Exam No. 2013 (Sup. HRS) (Prom.)
Pass Fail Total % Passing
Blacks 39 208 247 16%
Whites 125 108 233 54%
Hispancis 3 17 20 15%
Others 5 3 8 63%
Subtotal 172 336 508
Unknown 183 303 486 38%
355 639 994
Challenged Exam No. 1626 (Sr. HRS) (Prom.)
Passed Failed Total % Passing
Blacks 11 51 62 18%
Whites 30 4 34 88%
Hispanic 3 5 8 37%
Other 0 2 2
44 62 106
Challenged Exam No. 1099 (Sr. HRS) (OC)
Blacks 56 165 221 26%
Whites 101 54 155 65%
Hispanic 8 22 30 27%
Subtotal 165 241 406
Unknown 90 187 277 32%
255 428 683
Challenged Exam No. 1097 (HRS) (OC)
Blacks 55 120 175 31%
Whites 59 56 115 51%
Hispanics 7 29 36 19%
Other 1 1 2
Subtotal 122 206 328
Unknown 78 200 278 28%
200 406 606
Putting aside for the moment the question of the representativeness of the available data for Examinations No. 2013, 1099 and 1097, the existing figures for all five examinations clearly indicate a disparity between the passing rates of white and minority candidates in excess of the 1.5 to 1 ratio which Chance held sufficient to establish a prima facie case. 330 F. Supp. at 210.
As to No. 1631, for which complete data is available, whites passed at a rate of approximately three times that of Blacks and Hispanics (54% to 17% and 19% respectively). On Examination No. 1626, for which the data is also complete, whites passed at a rate of about five times that of Blacks and 2.4 times the rate of Hispanics (88% to 18% and 37%, respectively).
The available figures for No. 1099 indicate that whites passed at 2.5 times the rate of Blacks and Hispanics (65% to 26% and 25%, respectively). As to No. 2013, whites passed at over three times the rate of Blacks and Hispanics (54% to 16% and 15%, respectively). Whites passed No. 1097 at a rate of 1.7 times that of Blacks and 2.7 that of Hispanics (51% to 31% and 19%, respectively). In sum, the figures for all five examinations indicate a disparate impact in favor of white candidates in excess of the 1.5 to 1 ratio that carried the day for plaintiffs in Chance.
Not surprisingly, defendants' most vigorously pressed objection to plaintiffs' prima facie case is the incompleteness of the data for Nos. 2013, 1099 and 1097. They argue that in the absence of complete and reliable data as to the race and passing rate of all, or substantially all, candidates on these exams, plaintiffs have failed to establish a prima facie case.
Defendants make the related argument that even assuming that the complete figures for Nos. 1631 and 1625 show substantial disparate impact as to those exams, the inconclusive nature of the statistics for the other three tests and plaintiffs' failure to challenge two additional exams in the HRS series whose results are inconclusive as to impact, indicate that the class did not fare significantly worse than whites on the HRS series on the whole, which defendants claim is the proper standard. For the reasons stated below, we find that neither argument has merit and that plaintiffs have established a prima facie case as to all five exams.
B. Although neither side produced a statistical expert at trial, experts for each of the parties have submitted affidavits as to the significance of the statistics in the record.
Plaintiffs' expert, Richard S. Barrett, is a nationally recognized expert in the field of testing. His affidavit sets forth certain computations using the Chi-Square Test, a generally accepted means of analyzing statistics of the type used in lawsuits such as this one. See Chance, 458 F.2d at 1173, 330 F. Supp. at 212. The purpose of the Chi-Square Test, as described by Barrett, is to determine whether a differential pass rate for two or more groups arises from a real difference in the performance of the groups, or from random differences arising from chance variation in the sample. (Barrett affidavit, dated November 4, 1974, Paragraph 4.) In this case, the Chi-Square Test attempts to determine whether the lower passing rates for Blacks and Hispanics resulted from mere chance, or from a factor related to race.
Barrett's computations, which are based on the complete statistics for Nos. 1631 and 1626, and on the available statistics for Nos. 2013, 1099 and 1097, are set forth below:
Examination Comparison Chi-Square
1631 Black v. White 17.81
Minority v. White 19.63
2013 Black v. White 76.40
Minority v. White 80.42
1626 Black v. White 44.60
Minority v. White 43.65
1099 Black v. White 59.40
Minority v. White 62.49
1097 Black v. White 11.49
Minority v. White 15.32
Barrett states that a Chi-Square of 6.64 will occur less than one time in 100 as the result of chance, and that conventional statistical tables do not include values as large as those shown in the chart "because their occurrence as chance events is too small to be taken seriously." (Barrett affidavit, Paragraph 6) Accordingly, as to Nos. 1631 and 1626, for which complete statistics are available, it is readily apparent that plaintiffs have established disproportionate impact not resulting from chance.
The question that is unresolved by the Chi-Square analysis set forth above is whether the data for the entire group of candidates on Nos. 2013, 1097 and 1099 would show the same results as Barrett calculated on the basis of the known candidates on those exams. On this question Barrett states:
"Strictly speaking such a determination can be made only if there is reason to believe that those whose identity is not known are a random sample of the total group. There is, of course, no way to make this determination. However, the size of the Chi-Square statistics reported above [which were computed on the basis of the known group only] is so great that those whose race or ethnicity is unknown would have to differ in an unrealistically large degree from those whose identity is known to lead to the conclusion that the tests are free from adverse impact." (Barrett affidavit, Paragraph 7).
Although we recognize that in cases such as this, we may walk through statistical mine fields, Barrett's conclusions do accord with common sense. On No. 2013, for example, for which the ethnicity of 51% of candidates is known (the HRA population)5a whites passed at over 3 times the rate of Blacks and Hispanics. We find it distinctly improbable that minority group members in the non-HRA (unknown) group would outperform non-HRA whites on the same examination to the extraordinary degree necessary to bring the overall passing rates for minorities and whites into rough parity. This conclusion is buttressed by Barrett's observation that Nos. 2013, 1097 and 1099 are "made up of items of the type on which Blacks and Hispanics generally do more poorly than whites." (Barrett affidavit, Paragraph 8.) Cf. Griggs, 401 U.S. at 430. We reach the same conclusion as to No. 1097, which whites passed at a rate of 1.7 that of Blacks and 2.7 times that of Hispanics. The ethnicity and pass-fail results of 54% of the candidates are known. Consequently, minorities in the non-HRA group would have to outscore non-HRA whites substantially on that examination to negate the strong showing of adverse impact. The same conclusion applies to Examination No. 1099 which whites passed at a rate of 2.5 that of minority candidates, and as to which the ethnicity of 60% of the candidates is known.
In sum, we find that the data of record meets the standard to establish a prima facie case as articulated by Judge Friendly in Vulcan :
"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.' We must not forget the limited office of the finding that black and Hispanic candidates did significantly worse in the examination than others. That does not at all decide the case; it simply places on the defendants a burden of justification which they should not be unwilling to assume." 490 F.2d at 393.
The affidavit of defendants' statistical expert, Gus W. Grammas, is not inconsistent with our conclusions as to 2013, 1099 and 1097.
It states, and we agree, that neither the precise racial make-up nor the pass-fail rates of the non-HRA groups in Nos. 2013, 1097 and 1099 can be statistically inferred from the data about the HRA groups whose ethnicity and pass-fail rates are known because the known group (HRA employees) is not a random or representative sample of the unknown (non-HRA) employees. (Grammas affidavit, dated November 7, 1974, Paragraphs 6-7, 20-23.) But that fact is not inconsistent with our conclusion. Strictly speaking, the precise racial make-up of the unknown groups in Nos. 2013, 1099 and 1097 is irrelevant; the issue rather is whether there is any realistic likelihood that non-HRA minority candidates -- however many or few -- fared well enough in comparison to non-HRA whites to offset the startling imbalance in favor of whites among the known (HRA) candidates. We conclude there is no such likelihood.
Defendants' second attack on plaintiffs' prima facie case can be disposed of more easily. They claim that, notwithstanding plaintiffs' prima facie showing as to the five examinations challenged in this lawsuit, they should not be permitted to choose among the exams in the HRS series, challenging only those in which minorities performed worst. Neither the facts nor the law support defendants' argument.
Of the nine examinations in the HRS series, five are challenged here. Plaintiffs do not challenge the four other exams in the series; however, the results for three of these are of record: the Sr. HRS (MDT) open competitive exam (No. 1094), the HRS promotional exam (No. 1625), and the HRS (MDT) open competitive (No. 1095). The statistics for these are indicated in the chart below:
Sr. HRS (MDT) Open Competitive Exam No. 1094
Passed Failed Total % Passing
Blacks 18 41 59 31%
Whites 5 10 15 33%
Hispanics 7 15 22 32%
Other 0 1 1
Subtotal 30 67 97
Unknown 18 78 96 19%
48 145 193
HRS Promotional Exam No. 1625
Passed Failed Total % Passing
Blacks 13 36 49 27%
Whites 1 4 5 20%
Hispanics 0 4 4
14 44 ...