Appeals from decision of United States District Court for the Southern District of New York, Morris E. Lasker, J., finding that civil service examinations of New York City Human Resources Administration violated the Constitution, and denying attorneys' fees.
Smith and Feinberg, Circuit Judges, and Ward, District Judge.*fn*
This case presents a challenge to civil service examinations on the familiar ground that they are racially discriminatory.*fn1 In a thorough opinion, 391 F. Supp. 1064, the United States District Court for the Southern District of New York, Morris E. Lasker, J., held that five examinations given by the New York City Human Resources Administration unconstitutionally discriminated against black and Hispanic applicants. We affirm.
In October 1972, the Human Resources Administration (HRA), which administers various city social services programs, gave a series of nine examinations for certain positions.*fn2 Before us are challenges to five of them, in two consolidated class-action lawsuits.*fn3 After a non-jury trial, Judge Lasker found that the tests had a disproportionate impact on minority applicants and that defendants had not carried their burden of showing that performance on the examination reflected qualification for the job. Accordingly, in a final judgment and order dated May 23, 1975, the judge declared the five tests unconstitutional, enjoined defendants from making appointments based on the results of the discredited examinations, and ordered defendants expeditiously to develop lawful and non-discriminatory selection procedures in accordance with the EEOC Guidelines on Employment Selection Procedures, 29 CFR § 1607.1. He also denied plaintiffs' request for attorneys' fees. 391 F. Supp. at 1086-87.
Both sides have appealed. Defendants concede that Judge Lasker correctly stated the legal principles that govern the case:
The ground rules established in [the decisions of this court listed in note 1 supra] 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 1175-76 . . . . 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. . . . 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 . . . .
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,
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 ...