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January 15, 1981

VULCAN SOCIETY OF WESTCHESTER COUNTY, INC.; Hubert M. Robinson; Shearin O. Higgs; Clarence W. High III; Joseph Miles; James Garland; Buel McQuay; Henry Cleveland; Robert P. Gray III; Michael B. Smith; Ronald O. Archer; Larry M. Moyer; and Paul D. McQuay, Plaintiffs,
FIRE DEPARTMENT OF the CITY OF WHITE PLAINS; et al. Angelo Martinelli, et al. and Professional Fire Fighters Association, Inc., et al., Intervenor-Defendants. UNITED STATES of America, Plaintiff, v. NEW YORK STATE DEPARTMENT OF CIVIL SERVICE; et al. City of New Rochelle; Leonard C. Paduano et al. and Professional Fire Fighters Association, Inc., et al., Intervenor-Defendants

The opinion of the court was delivered by: SOFAER

Most of the parties in these consolidated employment discrimination cases have agreed to consent judgments, which they have submitted to the Court for approval. All of the proposed judgments are designed to enhance the prospect of equal employment opportunities for Blacks, Hispanics, and women in the fire departments of New Rochelle, Mount Vernon, and White Plains. Each city has agreed to a different settlement plan. One of these proposed judgments, that of New Rochelle, is unopposed. The two others, those of Mount Vernon and White Plains, are attacked by the intervenor unions as illegal and contrary to the public interest. For the reasons stated below, all three settlements are approved.

This litigation commenced in October 1975, when the Vulcan Society and several individual plaintiffs filed charges with the Equal Employment Opportunity Commission (EEOC) alleging discrimination against Blacks, Hispanics, and women in the employment practices of the fire departments in four cities of Westchester County. On February 11, 1975, the EEOC issued a certificate of probable cause to believe that violations of law existed. The Vulcan Society and others filed suit in this Court on March 1, 1978, against defendants from the four cities and the New York State Department of Civil Service, alleging discrimination against Blacks.

Motions to amend the complaint and to certify a class in the Vulcan suit were granted in part and denied in part in April 1979. See Vulcan Society of Westchester County v. Fire Department of White Plains, 82 F.R.D. 379 (S.D.N.Y.1979) (Sweet, J.). Discovery then commenced on the merits, and several motions relating to preliminary relief were decided. The Court has limited the hiring and promotion of firemen by the cities involved in this litigation, although many appointments and some promotions have been made by consent or with Court approval. On January 17, 1980, the federal government filed suit against the same defendants, alleging discrimination against Blacks, Hispanics, and women. The cases were ordered consolidated on April 22, 1980.

 Throughout early 1980, the parties engaged in settlement negotiations even as they prepared for trial. In the Spring, the plaintiffs in both suits and the defendants from three of the cities announced that they had reached agreement on virtually all issues. The proposed consent judgments originally submitted by the plaintiffs and the three cities were similar. Subsequent events, however, have led the parties to revise the proposed judgments, so that each now differs materially from the others. A review of these judgments and their background is the first order of business.

 I. The Proposed Settlements

 In each of the proposed consent judgments, the defendants specifically deny any unlawful discrimination. All agree, however, to be enjoined and to refrain from considering race, national origin, or sex in making appointments to any position in the respective fire departments. The cities also undertake to recruit and train minorities and women, to eliminate height and reach requirements, and to implement a variety of other changes as to which no objection has been raised.

 A. The Original Consent Judgments

 The controversial provisions in the proposed settlements are those aimed at increasing the proportion of minorities and women on the cities' firefighting forces. At the time these actions were commenced, the three cities had proportionately far fewer minorities on their forces than were available for employment in those cities and in Westchester County generally. The uncontroverted evidence illustrates the low representation of minorities in the fire forces involved. In 1970, minorities made up 3.9% of the fire department in New Rochelle, a city with a 16.1% minority population; in Mount Vernon, the respective figures were 3.1% and 36%; and in White Plains, 3.4% and 15.4%. Plaintiffs' Joint Memorandum of Law, June 17, 1980, Table IV. In addition, none of the three departments has a single minority officer, and none has ever hired a woman in any capacity.

 To overcome these disparities in representation, the cities agreed in the original consent judgments to "undertake in good faith to hire firefighters so as to achieve the goal of a firefighter force in each City which reflects no less than the proportion of Blacks and Hispanics between the ages of eighteen (18) and forty-four (44) in the civil labor force ..." of each city. P VI(A). *fn1" Women were to be hired, if possible, until they constituted at least 10% of each city's force. All of these were to be promoted, moreover, so that the officer ranks would reflect the proportion of the force represented by each group.

 Because this hiring goal was not a "quota," it guaranteed very little. The original settlement agreements therefore also sought to attack the reasons why a disproportionately large percentage of the cities' firefighting forces was white. Plaintiffs attributed the lack of minorities on the cities' firefighting forces in large part to the written firefighter exam, prepared and administered by the New York State Department of Civil Service. Evidence has been presented that the written exam has a discriminatory impact. *fn2" Furthermore, plaintiffs asserted that the practice of giving the written exam greater weight than the physical agility test had a discriminatory effect. Recruitment procedures, plaintiffs concluded, would have to be modified to enhance the prospects of increased minority interest in firefighting jobs. Finally, plaintiffs were concerned with the impact on minorities of certain requirements or disqualifications, such as the disqualification for prior convictions or drug abuse, and the requirement of a high school diploma or its equivalent.

 The original consent agreements dealt with these matters by revising in fundamental ways the process for selecting firefighters. First, New York State would revise and validate the written exams for entry and promotion. This, the parties agree, would first require, as a long term remedy, a job analysis for each position for which a written test was to be administered, and a performance rating for those jobs. Similar analyses have been conducted for other cities. See Hearing Transcript ("Tr") at 194 (Dunnette study for United States Civil Service Commission). The job analyses were to be completed for all positions within eighteen months; the State would then promulgate uniform job descriptions. Task performance rating surveys were to be completed within the same period. If the State failed to comply with these procedures, or if any test devised was found to have an adverse impact, the parties were to attempt to resolve the problem, failing which the plaintiffs could seek appropriate relief from the Court. Para. IV.

 The parties devised a formula to avoid adverse impact from the testing procedures to be used until either a validated examination could be designed or the hiring goals were met. A written test could be given, but if the statewide success rate for minorities on a particular question was less than 80% of the success rate for non-minorities, then that question would be excluded in scoring the test. Furthermore, the test would change from a "ranking" exam to a "qualifying" device; anyone who obtained a passing grade (70%) would be entitled to take the physical agility test. Finally, if minorities passed the written test at an overall rate of less than 80% of the passing rate for non-minorities, then the parties would negotiate to remedy the adverse impact, with resort to the Court available if negotiations were unsuccessful. P II(B) (1). (The 80% requirement for test questions and for the test passing rate are hereafter referred to as the "4/5ths Rule.")

 The original consent judgments retained the physical agility test, which the parties conceded was job-related and which they represented has no adverse impact upon minorities. Rather than merely retaining this test, however, the parties agreed that it should become the sole basis for ranking applicants, as compared to its past use as a qualifying test. Plaintiffs agreed, however, that the test could be changed by defendants to minimize any unlawful discriminatory impact it might have, presumably upon non-minorities, or to correct other problems that could impair the test's validity or reliability. Para. II(B)(2).

 A further, significant revision in the selection process was the proposed consent judgments' provision allowing persons with prior convictions or a history of drug abuse to apply for positions as firefighters or officers. If either of these factors was made a basis for rejecting an applicant, the department had to so indicate in writing, and the applicant would have a right to be heard. The defendants agreed to consider applicants individually before rejecting them on these grounds, and to weigh the factors listed in section 753 of the New York Correction Law, which applies by its terms only to applicants for public employment who have prior convictions, not to those merely with histories of drug abuse. Para. II(C). The parties also agreed to many special recruitment provisions to increase the number and quality of minority and female applicants for firefighter positions. Para. X.

 Promotions to Fire Lieutenant and Fire Captain would continue to be based on written exams prepared by New York State. The test would provide ranked results, but the passing score would be 70%, and each question and the exam as a whole would be subject to the 4/5ths Rule. Furthermore, the period of qualifying experience for promotion to lieutenant was reduced to three years as of the time of appointment (allowing the test to be taken after 21/4 years of experience). Para. III.

 The proposed agreements also included a variety of record keeping and reporting requirements. Para. XI. In addition, damage awards (including back pay) were proposed for individual plaintiffs, for members of the plaintiff classes, and for the Vulcan Society. These amounts are relatively small, are unchallenged, and seem entirely reasonable. See 42 U.S.C. ยง 2000e-5(g); Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S. Ct. 2362, 45 L. Ed. 2d 280 (1975). Finally, the proposed judgment contained general provisions vesting the Court with continuing jurisdiction; permitting plaintiffs to seek further relief for alleged discriminatory conduct by defendants; deeming compliance with the judgments to constitute compliance with applicable federal equal employment laws; agreeing that, if provisions of the judgment ...

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