Appeal and cross-appeal from orders of the District Court for the Eastern District of New York (Charles P. Sifton, Judge) providing supplemental relief in connection with a Title VII lawsuit alleging gender discrimination in entry-level hiring of New York City firefighters. 626 F. Supp. 591 (E.D.N.Y. 1985). Affirmed in part, reversed in part, and remanded.
Before: FEINBERG, Chief Judge, NEWMAN and KEARSE, Circuit Judges.
JON O. NEWMAN, Circuit Judge :
This is an appeal and cross-appeal from orders of the District Court for the Eastern District of New York (Charles P. Sifton, Judge) providing supplemental relief in connection with a Title VII lawsuit against alleging gender discrimination in entry-level hiring of New York City firefighters. In an earlier stage of this litigation, the District Court invalidated an entry-level examination and ordered various forms of relief, including the development of a new non-discriminatory entry-level test. The current round of litigation concerns challenges to the validity of the new test and to the District Court's orders requiring adjustments in the scoring of the new test and in the use of the eligibility list assembled as a result of the new test. For reasons that follow, we affirm in part, reverse in part, and remand for entry of a revised order.
Much of the background is set forth in our prior decision, which rejected challenges to certain aspects of the relief the District Court had ordered after invalidating the physical portion of the original test. See Berkman v. City of New York, 705 F.2d 584 (2d Cir. 1983). The plaintiff, Brenda Berkman, filed the suit in 1979, alleging gender discrimination by the New York City Fire Department and other municipal defendants in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The plaintiff challenged the physical test of Exam 3040, the 1978 Fire Department entrance examination, on the ground that this test had a disparate impact on women and was not job-related. On March 4, 1982, the District Court invalidated the physical portion of Exam 3040 and ordered several forms of relief, including "preparation of new and valid selection procedures." Berkman v. City of New York, 536 F. Supp. 177, 216 (E.D.N.Y. 1982). This aspect of relief, which is customary in Title VII litigation, was not challenged on the prior appeal. The March 4, 1982, decision also ordered as interim relief the hiring of up to 45 women members of the plaintiff class who passed a "qualifying test" of physical abilities. Such a test was developed by the defendants in cooperation with the plaintiff and approved by the District Court in August 1982. The qualifying test consisted of two parts, a simulation of engine company tasks and a simulation of ladder company tasks, separated by a rest interval. See 705 F.2d at 592 n.10. The test was scored on a pass/fail basis, with completion in four minutes, nine seconds, considered a passing score. This test was administered in September 1982. Thirty-eight of the women who passed were hired as firefighters.
On September 11, 1982, the defendants administered the written portion of a new entry-level firefighter test, Exam 1162. The written portion was administered to 31,421 candidates, of whom 566 identified themselves as females.
In October 1982 the defendants sought the District Court's approval of the physical test of Exam 1162. The physical test was similar to the "qualifying test" used for interim hiring, with some changes. Two additional tasks were added - a hose pull and a wall vault. The rest interval between the engine company tasks and the ladder company tasks was reduced to two minutes. Finally, the scoring was altered from pass/fail to a rank-ordered system based on speed of completion. Completion in less than four minutes was scored 100, completion in each of the six 30-second intervals between four and seven minutes was scored downward from 95 to 70 in five-point steps, and completion in more than seven minutes was considered failing. This produced seven passing grades or "bands." An applicant's overall score on Exam 1162 was to be determined by averaging the scores on the written and physical tests.
In January and February 1983 the District Court heard testimony on seven days concerning the validity of the physical test of Exam 1162. That hearing was adjourned on February 18, 1983, without a specific date for resumption. Two months later the defendants informed the Court that they were reluctantly going to administer Exam 1162, despite the lack of an advance ruling on its validity, because of the need to promulgate a new eligibility list and the unlikelihood that the hearing would be resumed and an advance ruling issued. Receiving no contrary indication from the District Court, the defendants administered the physical test of Exam 1162, at a cost of $750,000, to more than 20,000 applicants who had passed the written test. Prior to administering the physical test, the defendants obtained foundation funding for a special training program for women to prepare them for the test. Most of the women who participated actively in the training program passed the physical test, with 40 percent scoring at least 85.
The physical test was administered during the period from July 1983 until the spring of 1984. During that period an episode occurred that would prove significant to one aspect of the remedy challenged on this appeal. In September 1983 the named plaintiff, Brenda Berkman, and another class member, both of whom had been hired pursuant to the District Court's interim hiring remedy, were terminated at the conclusion of their probationary period, ostensibly for poor performance. This action precipitated a motion for reinstatement, plaintiff contending that the terminations had been the result of intentional discrimination. The District Court agreed and ordered reinstatement. Berkman v. City of New York, 580 F. Supp. 226 (E.D.N.Y. 1983).
The defendants disclosed the results of Exam 1162 in May 1984. Of the 31,421 applicants who took the written test, 29,113 achieved a passing score of at least 70. The passing rates were: men, 98.65 percent; women, 97.8 percent. The score were bunched at the high end: 83.21 percent of the applicants scored 90 or higher, 66.68 percent scored 94 or higher, and 9,788 applicants scored 98 or higher. Of the 28,559 men who passed the written test, 22,255 (77.93%) took the physical test; of the 554 women who passed the written test, 165 (29.78%) took the physical test. The passing rates on the physical test were: men, 95.42 percent; women, 46.67 percent. The distribution of scores on the physical test was as follows: