The opinion of the court was delivered by: MISHLER
MISHLER, Ch.J.: In June of 1973, the New York State Civil Service Commission gave an examination for the newly created permanent position of community service assistant, a paraprofessional berth in human services agencies throughout the state. Among the i94 candidates taking the examination in Nassau County were ten employees of the Nassau County Office of Consumer Affairs and the Nassau County Department of Social Services who served these agencies as provisional community service assistants. Although eight of the provisionals received passing grades on the exam, none of their scores were high enough to qualify them for appointment to the permanent positions. Consequently, the ten employees, eight of whom are black, either lost their jobs or were demoted to the lower paying but non-competitive position of community service aide. The present litigation ensued.
The black plaintiffs, former provisional community service assistants, claim that the defendants, who include the New York State Civil Service Commission and the Nassau County Civil Service Commission,
violated the provisions of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, as amended,
and the federal civil rights laws, 42 U.S.C. §§ 1981 and 1983. Jurisdiction is predicated on 28 U.S.C. §§ 1331 and 1343(3) and (4) and 42 U.S.C. § 2000e(5)(f). The white plaintiffs limit their claim to violations of the Due Process Clause of the fourteenth amendment and 42 U.S.C. § 1983. In an earlier proceeding, Judge Weinstein preliminarily enjoined the defendants from altering the salary status of those plaintiffs employed in the office of Consumer Affairs or discharging the plaintiff Gibrilla. The case was then tried before this court without a jury. Although the facts are largely undisputed, some background would be helpful.
The position of community service assistant was created in 1968 by the federal government's Public Service Careers Program to provide lower-level social service jobs for welfare recipients and low income persons. Although the position was originally non-competitive, the eventual goal of the federal program was to create a competitive position that would blend into the state civil service system, providing a route for low income persons to the more desirable civil service jobs. (Defendants' Exhibit E; Mar. 2, 1976, tr. 172-73). During this period of its development, community assistant positions were established in Nassau County human service agencies,
including consumer affairs and social services (welfare).
The Department of Consumer Affairs of the County of Nassau services the entire population of Nassau County, but places special emphasis on assisting the black communities by, for example, establishing educational programs for black consumers. Plaintiff Gibrilla, a community service assistant for the Office of Consumer Affairs, to cite one example, handles individual consumer complaints and lectures to various civic groups on consumer problems (Mar. 1, tr. 50-51). The Nassau County Department of Social Services provides such assistance to welfare recipients as organizing self-help drug addiction groups (Mar. 1, tr. 150-51) and furnishing advice on housing matters. In her capacity as community service assistant, plaintiff Melendez, for example, assisted welfare families in finding housing and was responsible for checking the bills received by the Department of Social Services when clients were placed temporarily in motels (Mar. 1, tr. 108-09).
Despite the broad range of activities performed by the plaintiffs, the duties of the various community service assistants require essentially the same basic skills.
According to the job description of this position, a community service assistant must have the ability "to speak effectively"; "present oral and written reports"; "work effectively with others"; "to follow instructions"; and "to relate to the clientele and staff."
(Plaintiffs' Exhibit 7). The job pays from $7,237.00 to $9,093.00, as compared with $6,498.00 to $8,107.00 for the position of community service aide. A candidate for community service assistant must pass the civil service examination in order to be placed on the eligible list. Appointment from the list to a permanent position is limited by the "rule of three", N.Y. Civ. Serv. L. § 61(1), to "one of the three persons certified by the appropriate civil service commission as standing highest on [the] eligible list."
The examination was given in Nassau County on June 2, 1973. Consisting of 60 questions divided into three sections, the test was designed as a "general selection battery for paraprofessionals in the human services area." (Plaintiffs' Exhibit 2). Fifteen questions involved the problems and demands of interviewing clients; fifteen questions were devoted to record keeping; and thirty questions tested ability to understand and appropriately respond to people with various personal problems in a variety of situations.
It was the first time a competitive exam had been given for the position of community service assistant. At the time the examination was given, the economy of metropolitan New York, including Nassau County, had so deteriorated that highly skilled and educated individuals were forced to look for work in areas previously left to members of low income groups.
As a result, a large number of young whites with substantial educational backgrounds took the examination for community service assistant (Plaintiffs' Exhibit 1).
The plaintiffs, whose work as provisional employees was highly praised by their supervisors, were unable to achieve scores sufficient to place them at the top of the eligibility list for appointment. Much of the plaintiffs' attack on the examination concerns its failure to test for the different skills required in the consumer and social service departments and to measure areas of knowledge specific to the duties performed by a community service assistant.
Because of the somewhat disparate nature of the claims of the black plaintiffs and those of the whites, we will deal with the two groups of plaintiffs separately. We turn first to the question of whether the examination violates Title VII of the 1964 Civil Rights Act, the basis for the black plaintiffs' claims.
I. Title VII of the 1964 Civil Rights Act was enacted to "achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees." Griggs v. Duke Power Co., 401 U.S. 424, 429-30, 91 S. Ct. 849, 853, 28 L. Ed. 2d 158 (1971). The legislation created a significantly more rigorous standard for judging claimed discriminatory acts of private or public employers than exists with respect to purely constitutional claims of racial discrimination. Washington v. Davis, ... U.S. , 426 U.S. 229, 96 S. Ct. 2040, 2051, 48 L. Ed. 2d 597 (1976). In a challenge under Title VII to an employment exam, the complaining party has the burden of establishing a prima facie case of discrimination, usually defined as a showing that the test at issue has a racially disproportionate impact on applicants - it "selects applicants for hire or promotion in a racial pattern significantly different from that of the pool of applicants." Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S. Ct. 2362, 2375, 45 L. Ed. 2d 280 (1975); see Washington v. Davis, supra at 2047. Once this showing is made, however, the burden shifts to the employer to prove that its tests are job-related, i.e., the entrance or promotion examination bears a reasonable relationship to the needs of the job for which it is given. Griggs v. Duke Power Co., supra at 431, 91 S. Ct. at 853; McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668 (1973); Boston Chapter N.A.A.C.P., Inc. v. Beecher, 504 F.2d 1017, 1019 (1st Cir. 1974). Finally, if the employer does not establish that his test is job-related, the complaining party still may prevail if he can show that "other tests or selection devices, without a similarly undesirable racial effect, would also serve the employer's interest in 'efficient and trustworthy workmanship.'" Albemarle Paper Co. v. Moody, supra at 425, 95 S. Ct. at 2375, quoting McDonnell Douglas Corp., supra at 801, 93 S. Ct. at 1823.
1. Discriminatory Impact. In Nassau County, 286 candidates for the position of community service assistant took examination 64-914.
Of the 175 candidates who identified themselves ethnically, 113 were white; 55 were black; 3 were Puerto Rican; and 4 fit other ethnic categories. (Plaintiffs' Exhibit 3). The passing grade was set at a score of 36 correct answers out of the exam's 60 questions, a percentage of 60%. Ninety-nine of the 113 identified whites attained this score or better for a passing rate of 88%. Of the 55 identified blacks who competed, 40 passed the exam, a pass rate of 73%.In percentage terms, the passing rate for identified blacks was 83% of the passing rate for identified whites, or put in other statistical terms, white candidates passed at a rate 1.2 times that of black applicants.
Although the black applicants did not do as well as the whites, we do not regard as discriminatory an exam that passed blacks at a rate better than 4/5 that of the passing rate for whites. A comparison with prior findings of discrimination in employment tests is revealing. In Vulcan Society of N.Y. City Fire Dept., Inc. v. Civil Serv. Comm'n., 490 F.2d 387 (2d Cir. 1973), a qualifying exam for the New York City Fire Department was held to have a discriminatory impact since white candidates passed the exam at a rate more than twice that of the minority candidates. Id. at 392. In Chance v. Board of Examiners, 458 F.2d 1167 (2d Cir. 1972), public school supervisory examinations, which white candidates passed at a rate 1 1/2 times that of minority candidates, were found to have a discriminatory impact. Id. at 1173. See Kirkland v. New York State Dept. of Correctional Serv., 374 F. Supp. 1361, 1366 (S.D.N.Y. 1974), modified, 520 F.2d 420 (2d Cir. 1975) (whites passed promotional exam for position of Correction Sergeant at a rate four times that of blacks and 2 1/2 times that of Hispanics); Bridgeport Guardians, Inc. v. Members of Bridgeport Civil Serv. Comm., 482 F.2d 1333, 1335 (2d Cir. 1973) (passing rate for white applicants for police department 3 1/2 times that of minority candidates); Castro v. Beecher, 459 F.2d 725, 729 (1st Cir. 1972) (25% of black applicants and 10% of Hispanic applicants passed police exam, while 65% of non-minority candidates achieved a passing score). See also Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1971), modified en banc, 452 F.2d at 327 (8th Cir.), cert. denied, 406 U.S. 950, 92 S. Ct. 2045, 32 L. Ed. 2d 338 (1972). Furthermore, the present case involves a relatively small number of applicants. Compare Vulcan Society of N.Y. City Fire Dept. v. Civil Serv. Comm'n., supra. The passing percentages would be substantially altered by a shift of several minority candidates from the fail to the pass column. In such a situation, some margin of error must be allowed. Plaintiffs bear a heavier burden in demonstrating a disproportionate impact when the number of test-takers is small and, in our opinion, a showing of a 4/5 passing rate does not satisfy that burden.
The plaintiffs also assert that discriminatory impact is evidenced by the fact that only one black candidate, or 2% of the identified black applicants, achieved a score sufficient to place him or her high enough on the eligibility list to be offered an appointment, while 7 whites, or 6% of the identified white applicants, achieved a score sufficiently high for appointment. Apparently, 17 candidates, identified and unidentified ethnically, all of whom had at least a raw score of 54, were offered the permanent position of community services assistant. Two black candidates, however, achieved raw scores of 53. (Plaintiffs' Exhibit 3). If each of these candidates had answered one more question correctly, thereby achieving a score of 54, then the comparative rates at the top of the eligibility list, i.e., 54 or above, would be 5.5% of the black applicants and 6% of the whites. See Bridgeport Guardians, Inc. v. Members of the Bridgeport Civil Serv., supra. Compare Vulcan Society of N.Y. City Fire Dept., Inc. v. Civil Serv. Comm'n., supra at 392. The failure of two black candidates to answer two questions correctly does not establish that the exam had a disproportionate impact with respect to those candidates who achieved a raw score of at least 54.
2. Job-Relatedness. If arguendo examination 64-914 did have a discriminatory impact, defendants nonetheless have sustained their burden of showing that the examination was substantially related to job performance. As is common in Title VII litigation, this case led the court "deep into the jargon of psychological testing." Vulcan Society, supra at 394. The parties' expert witnesses engaged in the usual jousting over "content validation"
versus "predictive and concurrent validation."
However, after five years of Title VII litigation since the decision in Griggs, we think it is clear that "there is no single method for appropriately validating employment tests for their relationship to job performance." Washington v. Davis, supra at 2051 n.13; Vulcan Society, supra at 394; Guidelines on Employment Selection Procedures ("Guidelines"), Equal Employment Opportunity Commission, 29 C.F.R. § 1607.5 (1975).
Indeed, as Judge Lasker observed in his opinion in Kirkland v. New York State Dept. of Correctional Serv., 374 F. Supp. at 1371:
[No] case in this Circuit has gone so far as to hold that failure to test an exam by criterion validity or to demonstrate the nonfeasibility of that approach justifies setting the ...