The opinion of the court was delivered by: CURTIN
This case is a consolidated civil rights action brought by the United States Attorney General (hereinafter "Government") challenging the employment practices of the Buffalo Police Department and the Buffalo Fire Department.
The suit against the Police Department was originally filed in August 1973. It was brought against the City of Buffalo, the Police Commissioner, the Commissioners of the Buffalo Civil Service Commission who are responsible for civil service operations including entrance and promotional examinations, and the Buffalo Police Benevolent Association (BPBA), the labor organization which acts as collective bargaining agent for employees of the Police Department. The action sought to enforce Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e Et seq.,
and the rights guaranteed by the fourteenth amendment to the United States Constitution and by 42 U.S.C. §§ 1981 and 1983. On July 29, 1974 the complaint was amended to add the enforcement of the provisions of the State and Local Fiscal Assistance Act of 1972 (Pub.L. 92-512, 86 Stat. 919), 31 U.S.C. §§ 1221 Et seq. Jurisdiction in this court is based on 42 U.S.C. § 2000e-6(b), 28 U.S.C. §§ 1343(3), 1343(4), 1345 and upon 31 U.S.C. § 1242.
The Government filed the action against the Buffalo Fire Department on April 24, 1974 to enforce the same statutory and constitutional provisions with the same jurisdictional bases. On May 8, 1974, with the consent of all parties, the two suits were ordered to be consolidated. After some months of pre-trial discovery, the actions were brought to trial on April 1, 1975 and concluded on April 21, 1975. Subsequently the parties submitted proposed findings of fact and conclusions of law. In the autumn of 1976, at the direction of the court, the parties submitted further briefs regarding several new case law developments. Due to the heavy demands of other court business resulting from the death of Honorable John O. Henderson and from several protracted lawsuits before this court, I was unable to render my decision earlier.
Essentially the suits allege a pattern or practice of discrimination against minorities. The Government challenges the hiring requirements of both the Police and Fire Departments, namely, written examinations, height and other physical standards, the high school diploma requirement, and the longstanding absolute prohibition against women as either patrolmen or firefighters. Further, certain terms and conditions of employment are attacked, including both general policies and a number of specific incidents which have occurred in past years. Finally, several individual claims of employment discrimination have been raised for which individual relief is sought.
Since these suits were initiated both the Police and Fire Departments refrained from appointment of any candidates based upon the eligibility lists derived from the 1973 examinations. However, by a stipulation between the City and the Government filed on May 5, 1977, a number of firefighter appointments were approved based upon a formula embodied in the stipulation. The patrolman eligibility list based upon the examinations in question expired on April 4, 1977. The firefighter eligibility list in question expired on June 20, 1977.
As mentioned above, the Government seeks to enforce a number of statutory and constitutional provisions in this suit. Although these provisions may apply to all of the practices cited here, each imposes a different standard of liability.
The standard for proof of a constitutional violation under §§ 1981 and 1983 is decidedly more exacting than that under Title VII. Since this case was argued, the United States Supreme Court has issued a major opinion on employment discrimination in Washington v. Davis, 426 U.S. 229, 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976). The Court majority distinguished the standards for a finding of a violation of Title VII from that required to find invidious discrimination under the equal protection clause of the fourteenth amendment to the United States Constitution. Under Title VII a court may focus solely on the racially disproportionate impact of the challenged hiring practice, but to establish a constitutional violation, the acts in question must demonstrate a Racially discriminatory purpose. See Washington v. Davis, supra at 238-9, 96 S. Ct. 2040.
Specific criteria have been established by the Supreme Court for review of job hiring requirements under Title VII. If a test for employment or promotion has a disproportionately adverse effect on black applicants, it is unlawful under Title VII unless it is shown to be related to job performance. In Griggs v. Duke Power Co., 401 U.S. 424, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971), the Court stated:
The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited. 401 U.S. at 431, 91 S. Ct. at 853.
In Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S. Ct. 2362, 45 L. Ed. 2d 280 (1975), the Court amplified the law by ruling that a prima facie case of discrimination is established where evidence shows that the tests in question select applicants for hire or promotion in a racial pattern significantly different from that of the pool of applicants. 422 U.S. at 425, 95 S. Ct. 2362. Upon such a showing of disproportionate impact the burden of persuasion shifts to the employer to show that any given requirement has a manifest relationship to the employment in question, and that the disparity is the product of nondiscriminatory factors. Griggs, supra 401 U.S. at 432, 91 S. Ct. 849. Furthermore, since Title VII explicitly prohibits discrimination based upon sex as well as upon race, this standard should also be applied when sex is at issue. See Bowe v. Colgate-Palmolive Co., 489 F.2d 896, 900 (7th Cir. 1973).
It should be noted that the legal standard under the State and Local Fiscal Assistance Act closely parallels that found under Title VII. Section 122(a) of the Act, 31 U.S.C. § 1242(a), states:
No person in the United States shall on the grounds of race, color, national origin, or sex be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity funded in whole or in part with funds made available under (the Act).
Further regulations issued by the Secretary of the Treasury under this provision state:
In any program or activity funded in whole or in part with entitlement funds, a recipient government may not . . . subject any individual to discrimination on the ground of race, color, national origin, or sex in its employment practices. 31 C.F.R. § 51.53(a).
The regulations also state that the standards for determination of employment discrimination under this Act are ordinarily the same as standards used by the Equal Employment Opportunity Commission under Title VII. 31 C.F.R. § 51.53(b). Since regulations promulgated pursuant to rulemaking authority granted by statute have the force of law, See, e.g., Federal Crop Ins. Co. v. Merrill, 332 U.S. 380, 384-85, 68 S. Ct. 1, 92 L. Ed. 10 (1947), this court may apply virtually the same standard as found under Title VII in this case. See United States v. City of Chicago, 549 F.2d 415, 440 (7th Cir. 1977).
A question of mootness has arisen in regard to several of the hiring practices involved in this suit, namely, the written examinations, the physical examinations, and the height requirements in effect in 1973. As mentioned previously, the eligibility lists for both patrolman and firefighter positions based upon those requirements have expired without any appointments based upon them.
The mootness doctrine, which is derived from article III of the Constitution, prevents the court from ruling on the merits of a question when the court can no longer grant relief which would have any practical effect. See Richardson v. Ramirez, 418 U.S. 24, 94 S. Ct. 2655, 41 L. Ed. 2d 551 (1974); DeFunis v. Odegaard, 416 U.S. 312, 94 S. Ct. 1704, 40 L. Ed. 2d 164 (1974); See generally 13 Wright, Miller & Cooper, Federal Practice and Procedure § 3533 at 263 (1975). The focus tends to be on the ability of the court to provide any presently meaningful remedy in light of the court's ability to surmise continuing effects or to forecast possible future effects. Wright, Miller & Cooper, Supra at 270.
Looking to the claims alleged in this suit, I find that the constitutional violations alleged regarding hiring practices are moot. Since the eligibility lists have expired, no appointments will be made from them. Therefore no direct discriminatory impact may result which would amount to a constitutional violation. However, such a violation might still be proved in the denial of equal terms and conditions of employment if the requisite discriminatory intent is shown.
In the Title VII claims, on the other hand, the Government has alleged a "pattern or practice" of discrimination.
This requires that a somewhat different perspective be taken on the hiring practices in question. A brief review of the nature of this claim will demonstrate the different issues of proof involved.
The term "pattern or practice" was not intended as a term of art and the words reflect only their usual meaning. See Teamsters v. United States, 431 U.S. 324, 336 n. 20, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (1977); See also United States v. Ironworkers Local 86, 443 F.2d 544, 552 (9th Cir.), Cert. denied, 404 U.S. 984, 92 S. Ct. 447, 30 L. Ed. 2d 367 (1971). The Supreme Court has restated the burden of proof as follows:
(T)he Government ultimately had to prove more than the mere occurrence of isolated or "accidental" or sporadic discriminatory acts. It had to establish by a preponderance of the evidence that racial discrimination was the company's standard operating procedure the regular rather than the unusual practice. Teamsters v. United States, supra at 336, 97 S. Ct. at 1855.
In a pattern or practice suit the court must focus on the employment system as a whole rather than just a part of it. United States v. United States Steel Corp., 371 F. Supp. 1045, 1053 (N.D.Ala.1973), Modified, 520 F.2d 1043 (5th Cir. 1975), Cert. denied, 429 U.S. 817, 97 S. Ct. 61, 50 L. Ed. 2d 77 (1976). The rules and procedures of an employer must be examined to determine whether they meet legal standards and, if not, to determine how to correct them. A substantial number of incidents of differential treatment may lead to a finding that such treatment is characteristic of the system as a whole which would require correction. Id.
In addition, in this type of suit, evidence of an employer's discriminatory practices prior to the effective date of Title VII is admissible for several purposes.
It may be admitted to illuminate the purpose and effect of present policies, United States v. Local 1, Ironworkers, 438 F.2d 679 (7th Cir. 1971), Cert. denied, 404 U.S. 830, 92 S. Ct. 75, 30 L. Ed. 2d 60 (1971), or the existence of a long-standing pattern or practice continuing to the present. Local 53, Asbestos Workers v. Vogler, 407 F.2d 1047 (5th Cir. 1969); United States v. Local 36, Sheet Metal Workers, 416 F.2d 123 (8th Cir. 1969). It may also be admitted to show that present policies, although neutral on their face, perpetuate the effects of past discrimination. United States v. Local 38, IBEW, 428 F.2d 144 (6th Cir. 1970), Cert. denied, 400 U.S. 943, 91 S. Ct. 245, 27 L. Ed. 2d 248 (1970); United States v. Local 1, Ironworkers, supra. Finally it may be introduced to determine what relief is appropriate to correct the effects of past discrimination and to prevent future discrimination. Rios v. Enterprise Ass'n Steamfitters, 501 F.2d 622, 629 (2d Cir. 1974).
Therefore it is my conclusion that to rule upon the pattern or practice claim it is necessary to consider not only the practices prior to 1972 but also those hiring practices in 1973 which are no longer in effect. Although these never resulted in actual appointments to the departments, they do bear upon the purpose and effect of present practices and upon a determination of equitable relief.
I will turn next to an examination of the various claims made by the Government.
I. GENERAL POPULATION STATISTICS
The plaintiffs have introduced 1970 United States Census figures which show that the population of the City of Buffalo is 20.4% Black and between 3.2% To 3.9% Spanish-surname Americans (hereinafter "SSA").
In addition, the labor force in the City is 17.5% Black and 40.6% Female.
Since commencement of this suit in November 1973, no appointments have been made to entry level uniformed positions within the Buffalo Police Department. At that time the Police Department employed 1395 uniformed personnel of whom 36 (2.6%) were black males, 2 (0.1%) were black females, 3 (0.2%) were SSA males, and 16 (1.1%) were white females. As of the same date the Department employed 911 patrolmen of whom 24 (2.6%) were black males and 3 (0.3%) were SSA males. No women were employed in the patrolman position. Meanwhile, of the 42 police cadets employed by the Department at that time, 3 (7.1%) were black males.
At that time the Police Department also employed 95 full time non-uniformed personnel (clerks, typists, cleaners, etc.). Of these 45 (47.4%) were white females, 2 (2.1%) were black males and 5 (5.2%) were black females. Of the 7 blacks employed, 5 were cleaners or charwomen.
As of June 1974 the Fire Department employed 1173 uniformed personnel of whom 14 (1.2%) were black males. No females and no SSA males were employed in uniformed positions. At the same time 874 firefighters were employed of whom 14 (1.6%) were black males. Aside from appointments made in June 1977 pursuant to a consent decree between the Government and the Fire Department, no other appointments to uniformed positions have been made since June 1974.
While a discrepancy between the minority community population and the population employed by defendants may not of itself be sufficient to establish a prima facie case of discrimination it, at least, invites further inquiry. See Bridgeport Guardians, Inc. v. Bridgeport Civil Service Comm'n, 482 F.2d 1333, 1335 n. 4 (2d Cir. 1973), Cert. denied, 421 U.S. 991, 95 S. Ct. 1997, 44 L. Ed. 2d 481 (1975).
Here the evidence indicates a substantial disparity between the general black, SSA, and female population in the City of Buffalo and the representation of those groups in the work force of the Police and Fire Departments. The defendants have introduced a number of documents (Def. Ex. 2-3) to substantiate their efforts to recruit minority applicants for qualifying examinations, including those for the police cadet and community peace officer positions. Without ruling on whether this statistical evidence alone is sufficient to establish a prima facie case, I find that it gives a strong indication of discriminatory impact which requires further inquiry as follows.
The Government argues that both the Police and Fire Departments have made use of written examinations in their job selection process which have had a discriminatory impact upon black and SSA candidates for positions.
The examinations in question which were prepared by the New York State Department of Civil Service and administered by the Buffalo Civil Service are the 1973 patrolman examination (965-C), and the 1973 firefighter examination (966-B). The 1971 police cadet examination (965-B) will also require consideration.
A. DISPROPORTIONATE IMPACT
The plaintiffs may make a statistical showing of disproportionate passing rates to establish a prima facie case of discrimination. Cf. Teamsters, supra. Such a comparative study of the pass-fail ratios of different racial and ethnic groups has been found to establish a prima facie case of discrimination in a number of instances. See Chance v. Board of Examiners, 458 F.2d 1167 (2d Cir. 1972); Bridgeport Guardians, Inc. v. Bridgeport Civil Service Comm'n, supra.
A racially disproportionate impact need not be proven with mathematical certainty. Vulcan Society of N. Y. City Fire Department, Inc. v. Civil Service Comm'n., 490 F.2d 387, 393 (2d Cir. 1973). A variance in the pass rate of more than 1 1/2 times between whites and black or SSA candidates has been found sufficient to shift the burden of proof in a number of cases. See Bridgeport Guardians, supra at 1335 n. 3.
Of the 621 people taking the February 1973 written patrolman examination (965-C), 86.6% Were white, 11.7% Were black and 1.6% Were SSAs. The New York State Department of Civil Service designated 70% As a passing grade. The examination results showed that 43.4% Of the whites received at least a 70% Grade while only 8.2% Of the blacks and 10% Of the SSAs achieved a passing score.
Of the 872 men taking the firefighter written examination in January 1973 (966-B), 85.4% Were white, 12.8% Were black, and 1.7% Were SSAs. Again, the New York State Department of Civil Service designated 70% As a passing grade. Examination results showed that 80.5% Of the whites received at least 70%, while 36.6% Of the blacks and 26.7% Of the SSA men achieved a passing score.
The record indicates that the written examinations comprise only one-half the total score; the other half is based upon physical agility and height/weight scores. Theoretically, an applicant could pass the overall test while receiving a score of 40 on the written component. Defendants argue, therefore, that the written examination has no discriminatory impact. The court finds this reasoning unpersuasive. The construction of the written examination is such that minority applicants are placed at a great disadvantage just to reach the required overall certification score of 140. Furthermore, the actual point total, even if one attains a passing score, is determinative of ranking on the eligibility list. The lower the score achieved on the written examination, the less chance one has of eventually obtaining a position.
By its showing of a significant disparity between the passing grades of whites and both black and SSA candidates, the plaintiff has established a prima facie case of discrimination in the Police and Fire Department testing programs.
B. RELATION TO JOB PERFORMANCE
The establishment of a prima facie case of discriminatory impact shifts the burden of proof to the defendants. Griggs, supra 401 U.S. at 432, 91 S. Ct. 849. This burden includes not only the burden of production but also the burden of persuasion. Vulcan Society, supra at 393. The defendants must show a demonstrable relationship between the test results and successful performance of the job for which it was used. Griggs, supra 401 U.S. at 431, 91 S. Ct. 849; Bridgeport Guardians, supra at 1337.
Such tests are impermissible unless shown, by professionally acceptable methods, to be "predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated." Albemarle Paper, supra 422 U.S. at 431, 95 S. Ct. at 2378. In order to meet their burden of proving a relationship between test results and job performance, the defendants must show that validation studies have been made of the tests. Three basic types of validation have been recognized by the courts as professionally acceptable, namely, criterion, content and concept validation. Id.
In this case, the two forms of test validation which the parties have discussed regarding the patrolman examination are criterion and content validation. Essentially, criterion related validity results from a statistical comparison of test performance with some measure or measures (criterion) of job performance. Content validity, on the other hand, is established through a showing that the content of the test is actually a representative sample of the important elements of the job itself. See Tr. at 616; American Psychological Association Standards for Educational and Psychological Tests (A.P.A. Standards) at 29. The Supreme Court in Albemarle expressed a strong preference for criterion validity as described in the EEOC Guidelines On Employee Selection Procedures, 29 C.F.R. § 1607 Et seq. (EEOC Guidelines). 422 U.S. at 431, 95 S. Ct. 2362. The EEOC Guidelines permit the use of content validation only where the criterion test is not technically feasible. The burden here falls upon the defendants to show that such validation cannot be performed. EEOC Guidelines, 29 C.F.R. § 1607.5(a).
1. 1973 FIREFIGHTER EXAMINATION
The defendants have offered absolutely no evidence of the performance of any validation study upon the 1973 firefighter examination (966-B). By this failure to demonstrate a necessary relation between the test and job performance, the defendants have violated Title VII of the Civil Rights Act as interpreted in Griggs and Albemarle Paper through use of the 1973 firefighter examination.
2. 1973 PATROLMAN EXAMINATION
Next, we must examine the defendants' claim that the 1973 patrolman examination (965-C) meets the standards developed for validation. Defendants make no clear showing that criterion validation was unfeasible here. Instead, they introduce evidence that a "factor analysis" was performed on the June 1971 examination (965-B) (Tr. 710). They contend that this analysis is a form of content validation which should apply to the 1973 patrolman examination as well. Leaving aside an evaluation of the sufficiency of the factor analysis on the 1971 examination for the moment, this court finds that the 1973 examination has not been properly validated on other grounds.
First, testimony by the defendants' own witness establishes that the 1973 examination differed in major respects from the 1971 examination (Tr. 735). Therefore, the factor analysis performed on the earlier examination cannot be found to bear on the content validity of the 1973 examination.
Second, content validation requires that a substantial job analysis be performed to demonstrate the relevance of the test content to the job characteristics. The job analysis should clearly define, in a written report, the job duties and the method by which they were obtained. EEOC Guidelines § 1607.5(a); A.P.A. Standards, Supra at 29. In preparation of the 1973 examination the job analysis consisted of a job description provided by the City of Buffalo and the personal knowledge of that job possessed by the Associate Police Examiner (Tr. 675-679). No on-site observations were made of the patrolman job (Tr. 678-80), and the personal job experience ...