The opinion of the court was delivered by: SOFAER
The United States commenced this action against the City of Yonkers, its Mayor and Police Commissioner, the New York State Department of Civil Service, and its President and Commissioners in December 1980. The suit challenged hiring procedures for the Yonkers Police Department, including written examinations administered in 1972, 1973, and 1977, physical agility tests administered in 1973 and 1977, and a height requirement in effect until 1973. The complaint alleged that defendants had engaged in a pattern and practice of discrimiination on the basis of race and gender in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2000e-17; the State and Local Fiscal Assistance Act of 1972, 31 U.S.C. § 6716; the Comprehensive Employment and Training Act of 1973, Pub. L. No. 93-203, § 612, 87 Stat. 839, 882 (repealed 1982); and the Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. § 3789d.
In an earlier opinion, this court denied motions for summary judgment filed by both the Yonkers and State defendants. See United States of America v. City of Yonkers, 592 F. Supp. 570 (S.D.N.Y. 1984). We declined at that time to decide defendants' Rule 41(b) motions to dismiss for failure to establish a prima facie case, in order to afford defendants an opportunity further to cross-examine the government's expert-witness, Dr. Bernard R. Siskin. Defendants having decided not to cross-examine Dr. Siskin further at this time, this memorandum and order now assesses the sufficiency of the United States' prima facie case.
In support of their motions, defendants make several preliminary legal arguments. The defendants first contend that disparate impact analysis is only appropriate to challenges to "specific, limited, facially neutral employment criteria," whereas here the United States mounts an "overall challenge" to an allegedly "pervasive pattern or practice of discrimination." Yonkers Defendants' Pretrial Brief at 17-18 (April 23, 1984). At trial the United States adduced sparse anecdotal evidence of discriminatory attitudes toward and treatment of minority and female applicants, elicited testimony on patterns of assignment and promotion, attempted to establish the inadequacy of Yonkers' recruitment efforts, and tried to bring out a preception in the minority community of alienation from the Yonkers police force. The United States now firmly represents, however, that it founds this action wholly on the disparate impact model of employment discrimination and attacks only certain facially neutral selection criteria in the hiring of Yonkers police officers. United States Brief in Support of its Prima Facie Case at 1-2, 10 (May 18, 1984); see International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335, 52 L. Ed. 2d 396, 97 S. Ct. 1843 n. 15 (1977); B. Schlei & P. Grossman, Employment Discrimination Law 80-205 (2d ed. 1983). In any event, for the most part the evidence of particular instances of discriminatory conduct was unreliable and altogether insufficient. The United States explains that it offered other evidence -- such as the refusal of Yonkers officials to allow one woman to retake the physical fitness test when a dispute arose over whether she had run the required distance in one event, and their refusal to allow another woman to take the medical examination when she claimed she had not received notice -- only to demonstrate that Yonkers "rigidly applied rules" in a way that precluded affirmative action and that "Yonkers treated minorities and women exactly like white men." Reply Brief in Support of its Prima Facie Case at 6 n.*. But Yonkers had no obligation to run its testing procedures on a discriminatory basis.
The United States also failed to establish that Yonkers violated Title VII by failing adequately to recruit minorities and women. See e.g., Association Against Discrimination in Employment, Inc. v. City of Bridgeport, 479 F. Supp. 101, 110 (D. Conn. 1979), aff'd in part and vacated in part on other grounds, 647 F.2d 256 (2d Cir. 1981), cert. denied, 455 U.S. 988, 102 S. Ct. 1611, 71 L. Ed. 2d 847 (1982). Assuming that Yonkers had a reputation for discrimination and hence an obligation to recruit, the evidence concerning Yonkers' recruitment efforts suggested that Yonkers engaged in increasingly vigorous and effective campaigns before each test. While Yonkers Personnel Director Jack Christiansen insisted that the City had conducted some minority recruiting in 1972, no other witness could recall such an effort. In 1973, however, Police Chief Polsen issued a press release in English and Spanish announcing the date of the examination and expressing Yonkers' interest in attracting candidates from all groups in the community in order to remedy minority underrepresentation in the police department. More importantly, the Yonkers Urban League, the Administrator of the Human Rights Commission, and Rita Nelson, a Yonkers police officer, organized a recruitment and training program. Nelson testified that she and other Yonkers police officers participated in this campaign and served as instructors for a series of eight, two-hour training sessions; that several ranking officers contributed funds from their own pockets; that the police department contributed the use of its facilities; and that a Spanish-speaking officer was dispatched to speak with Hispanic community groups. A local newspaper and Christiansen testified that Yonkers sought public service spots on local radio. The City prepared and distributed recruitment posters and pamphlets; it also set up a recruitment center in a minority neighborhood and detailed minority police officers to do recruiting. In 1983 Yonkers hired James Barrier, a retired black police lieutenant, to head the 1983 effort. In its campaign evaluation following the 1977 test, Yonkers had observed that, while it had succeeded in attracting significant numbers of women and minorities to register for the exam, members of these groups proved much less likely actually to appear for the test. Yonkers attempted to remedy this problem for the 1983 test by arranging to transport candidates to the testing sites. In addition, it again opened a recruitment center, distributed literature, and detached minority police officers for fulltime recruiting. Yonkers also conducted an extensive training program, with 32 teachers leading classes of 25 persons apiece. All witnesses agreed that the 1983 recruitment effort had been highly successful. Numerical results, which showed that the percentage of women and minorities that had signed up for and taken the examination substantially exceeded their representation in the relevant labor force, bore out this assessment.
The 1973 and 1977 recruitment campaigns were by no means exemplary. The 1977 training program, for example, was criticized for comparing poorly with the test actually administered. And Hispanic community leaders continued to criticize outreach efforts to their community. Overall, however, the record reveals gradually improving and ultimately successful efforts to eliminate any prevailing perceptions in the minority communities that the Yonkers police force was not accessible to them. See Transcript at 922.
Defendants argue further that the evidence thus far presented is insufficient to establish a prima facie case of disparate impact of the selection procedures on blacks, Hispanics, and women. But the United States identifies three specific employment criteria -- the 1972, 1973, and 1977 written examinations, the 1973 and 1977 physical fitness tests, and the height requirement -- which on their face might well be "facially neutral in their treatment of different groups but . . . in fact fall more harshly on one group than another." Teamsters, 431 U.S. at 335 n.15. A fourth criterion -- the 1972 exclusion of women -- is discriminatory on its face. Whatever the utility of disparate impact analysis in evaluating subjective employment criteria or in mounting "a wide ranging attack on the cumulative effect of a [defendant's] employment practices," Pouncy v. Prudential Insurance Co., 668 F.2d 795, 800 (5th Cir. 1982); compare id. with Schlei & Grossman at 1288 & n. 15, this suit, as presently pressed, is an appropriately circumscribed challenge to specific, objective selection criteria. Compare Carroll v. Sears, Roebuck & Co., 708 F.2d 183, 188-89 (5th Cir. 1983) (Wisdom, J.) (employment practices related to training, promotion, termination, and job classification susceptible only to disparate treatment analysis), with id. at 189 (facially neutral testing program subject to disparate impact analysis).
Defendants also contend that as a matter of law disparate impact analysis cannot establish a pattern or practice of discrimination within the meaning of section 707(a). The argument confuses the breadth of discrimination necessary to support the Attorney General's suit with the means available to prove it. The Supreme Court has advised that in a pattern-or-practice action the government "ultimately had to prove more than the mere occurrence of isolated or "accidental" or sporadic discriminatory acts," Teamsters, 431 U.S. at 336; "single, insignificant, isolated acts of discrimination" would not do, id. at 336 n. 16 (quoting Senator Humphrey, 110 Cong. Rec. 14270 (1964)). But as the Court's comparison in Teamsters of the disparate treatment and disparate impact analyses in the context of a section 707(a) suit suggests, see id. at 335 n. 15, a pattern of discrimination might be proved by either widespread disparate impact or regular disparate treatment. "Either theory may, of course, be applied to a particular set of facts" Id. For this reason, courts have employed disparate impact analysis in pattern-or-practice suits without comment. See, e.g., United States v. City of Chicago, 573 F.2d 416, 424 (7th Cir. 1978) (suit by Attorney General under 42 U.S.C. 2000e et seq.); Walls v. Mississippi State Department of Public Welfare, 542 F. Supp. 281, 309-10 (N.D. Miss. 1982) (government challenge under section 707 to educational qualifications and testing program utilizing disparate impact analysis), aff'd in part, rev'd in part on other ground, 730 F.2d 306 (5th Cir. 1984); United States v. City of Buffalo, 457 F. Supp. 612, 621-22 (N.D.N.Y. 1978), modified on other ground, 633 F.2d 643 (2d Cir. 1980). Moreover, because by definition desparate impact analysis must focus on much more than isolated occurrences, it lends itself to uncovering a proscribed pattern or practice. As a practical matter, a well-documented statistical assault might well reveal a pattern of the identified effect. See, e.g., United States v. City of Chicago, 385 F. Supp. 543, 553-54 (N.D. Ill. 1974).
Pointing next to the language of section 707(a) which requires that the Attorney General have reason to believe that the identified pattern or practice "is of such a nature and is intended to deny the full exercise" of statutorily protected rights, defendants argue that in order to establish a pattern or practice within the meaning of the statute the United States must demonstrate intention in the constitutional sense. See, e.g., Washington v. Davis, 426 U.S. 229, 238-39, 48 L. Ed. 2d 597, 96 S. Ct. 2040 (1976). The courts have uniformly refused to read such a requirement into the statute, however, but have instead respected the evident congressional purpose that the statute reach conduct which is intentional in the relatively innocuous sense of advertence. See Local 189, United Papermakers and Paperworkers v. United States, 416 F.2d 980, 996-97 (5th Cir. 1969) (intent requisite to § 707(a) suit "may be inferred from the fact that defendants persisted in the conduct after its racial implications had become known to them"), cert. denied, 397 U.S. 919, 25 L. Ed. 2d 100, 90 S. Ct. 926 (1970); Walls v. Mississippi State Department of Public Welfare, 542 F. Supp. 281, 309 n. 17 (N.D. Miss. 1982), aff'd in part, rev'd in part on other grounds, 730 F.2d 306 (5th Cir. 1984); United States v. Local 357 of the International Brotherhood of Electrical Workers, 356 F. Supp. 104, 117 (D. Nev. 1973); see also United States v. Bethlehem Steel Corp., 312 F. Supp. 977, 993 (W.D.N.Y. 1970); modified, 446 F.2d 652 (1978); see also Griggs v. Duke Power Co., 401 U.S. 424, 432, 28 L. Ed. 2d 158, 91 S. Ct. 849 (1971 ("Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation" (emphasis in original)).
The proof introduced thus far at trial establishes a prima facie case of discrimination. As the Supreme Court has explained:
to establish a prima facie case of discrimination, a plaintiff need only show that the facially neutral standards in question select applicants for hire in a significantly discriminatory pattern. Once it is thus shown that the employment standards are discriminatory in effect, the employer must meet "the burden of showing that any given requirement [has] . . . a manifest relationship to the employment in question." Griggs v. Duke Power Co., [401 U.S. 424, 432, 28 L. Ed. 2d 158, 91 S. Ct. 849 (1971)]. If the employer proves that the challenged requirements are job related, the plaintiff may then show that other selection devices without a similar discriminatory effect would also "serve the employer's legitimate interest in "efficient and trustworthy workmanship." Albemarle Paper Co. v. Moody, [422 U.S. 405, 425, 45 L. Ed. 2d 280, 95 S. Ct. 2362 (1975) (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973)].
Dothard v. Rawlinson, 433 U.S. 321, 329, 53 L. Ed. 2d 786, 97 S. Ct. 2720 (1977); see, e.g., Connecticut v. Teal, 457 U.S. 440, 446-47, 73 L. Ed. 2d 130, 102 S. Ct. 2525 (1982). At this point, the United States need only demonstrate a "significantly discriminatory" effect from the challenged procedures in order to put the defendants to their rebuttal. Statistical evidence is wholly competent for the purpose. See, e.g., Teamsters, 431 U.S. at 339-40 & n.20; Bushey v. New York State Civil Service Commission, 733 F.2d 220, 225 (2d Cir. 1984); Kirkland v. New York State Department of Correctional Services, 711 F.2d 1117, 1131-32 (2d Cir. 1983), cert. denied, 465 U.S. 1005, 104 S. Ct. 997, 79 L. Ed. 2d 230 (1984); United States v. Wood, Wire and Metal Lathers International Union, Local No. 46, 471 F.2d 408, 414 n. 11 (2d Cir. 1973); United States v. Ironworkers Local 86, 443 F.2d 544, 551 (9th Cir.), cert. denied, 404 U.S. 984, 30 L. Ed. 2d 367, 92 S. Ct. 447 (1971); Schlei & Grossman, supra, at 1287 ("Statistics are almost totally determinative in adverse impact cases"). The findings as to Title VII apply equally to the Revenue Sharing Act, 31 U.S.C. § 6716(a), see Cohen v. West Haven Board of Police Commissioners, 638 F.2d 496, 499 & n.4 (2d Cir. 1980); United States v. State of New York, 82 F.R.D. 2, 4-5 (N.D.N.Y. 1978); Officers for Justice v. Civil Service Commission, 20 Fair Empl. Prac. Cas. (BNA) 179, 185 (N.D. Cal. 1978); and to the Omnibus Crime Control and Safe Streets Act, 42 U.S.C. § 3789d(c)(1), see United States v. New York, 82 F.R.D. 2, 4-5; Officers for Justice, 20 Fair Empl. Prac. Cas. (BNA) at 185. Although no court has applied Title VII standards to the Comprehensive Employment and Training Act, the provisions of that statute are similar to those of Title VII, see Comprehensive Emoloyment and Training Act, Pub. L. No. 93-203, § 612(a), 87 Stat. 839, 882 (1973) (repealed 1982).
The United States relies heavily on the report of Dr. Bernard R. Siskin, first presented as an appendix to the United States' Pretrial Brief but revised several times both during the prima facie phase of trial and well after its close. See, e.g., Siskin Report (April 1984) (appendix to United States Pretrial Brief); Siskin Report (amended April 29, 1984) (Gov't Exhibit 26E); Siskin Report (JUly 5, 1984). In summary, Dr. Siskin testified that the 1972, 1973, and 1977 written tests had a statistically significant disproportionate impact on black and Hispanic test-takers, that the 1973 and 1977 physical agility tests had a statistically ...