In addition, Dr. Kaido conceded that the New York State DCS had enough information from field studies and knowledge of the position to develop criterion from which to measure job performance. She testified that when she wrote in her affidavit that such criterion were not available, she meant that New York State DCS had simply not developed a criterion measure, administered it, nor determined its reliability. Because defendants have failed to produce credible evidence that the content of the examinations developed in 1975 was related to the content of the job of Eligibility Examiner in 1989 and 1990, I conclude that defendants have failed to carry their burden of production on this factor.
The "representativeness" requirement has two different meanings. The first is that the content of the test must be representative of the content of the job; the second is that the procedure, or methodology, of the test must be similar to the procedures required by the job itself." Guardians, 630 F.2d at 98; 29 C.F.R. § 1607.14(C)(4). Neither requirement is to be interpreted so rigorously as to foreclose any possibility of constructing a valid test. "The task of identifying every capacity and determining its appropriate proportion is a practical impossibility. It is similarly impossible for the procedures of the test to be truly representative of the actual job procedures." Guardians, 630 F.2d at 98. Rather, the test should "measure important aspects of the job, at least those for which appropriate measurement is feasible," but need not "measure all aspects, regardless of significance, in their exact proportions." Guardians, 630 F.2d at 99.
Only 13 of the 49 KSAs identified by the 1975 job analysis as necessary to the successful performance of the job were tested by the examinations at issue here. Dr. Kaido testified that the other 36 KSAs could not be tested by a written instrument. She testified that 24 of the untested KSAs were full performance KSAs, that is, they could only be learned on the job. The EEOC Guidelines make it clear that testing for material that can only be learned on the job is inappropriate. 29 CFR § 1607.5(f). She testified that the other 12 untested KSAs were not subject to testing by a written instrument. Thus, oral expression, which was identified as one of the most important KSAs, was not tested. Dr. Kaido offered no credible explanation as to why such KSAs as the ability to give written instructions, recognize conflicting facts, recognize resource possibilities, relate information on an application to eligibility requirements, work under pressure, and summarize relevant facts in writing could not be tested by a written examination. She conceded, however, that the ability to write clear and concise letters, which also was not tested, could have been tested by a written examination.
On the basis of this testimony, the Court concludes that the examinations were needlessly unrepresentative. Excluding those KSAs that could only be learned on the job, the examinations at issue tested only 50% of the remaining KSAs identified in the 1975 job analysis study. The test seized upon relatively minor aspects of the Eligibility Examiner job, such as reading comprehension and arithmetic and ignored others.
Under the Guidelines, "where cutoff scores are used, they should normally be set so as to be reasonable and consistent with normal expectations of acceptable proficiency within the work force." 29 C.F.R. § 1607.5(H); Guardians, 630 F.2d at 105. "[A] criterion-related study is not necessarily required" in order to establish a basis for the cutoff score; the employer may rely on "a professional estimate of the requisite ability levels, or, at the very least, by analyzing the test results to locate a logical 'break-point' in the distribution of scores." Guardians, 630 F.2d 79, 105.
Defendants, however, have offered no such basis. They rely merely upon the New York State Civil Service Commission President's Regulations which set 70% of the total possible score as the passpoint, and set the passpoint two standard errors of measurement below 70% to guard against false negatives.
They have not offered any evidence, however, that the passpoint was either a logical "break-point" in the distribution of scores or that it corresponded to the ability level required by the job. In her "Response to Dr. Backman's Report," dated January 20, 1994, Dr. Kaido admitted that "we do not know in fact whether the job performance of those who scored between any passpoint and two SEMs below it would be satisfactory" (emphasis added).
Because I find that the examinations had a significant disparate impact and defendants have failed to offer credible evidence that the examinations served the legitimate business goal of fair competition in civil service employment, I find for the plaintiffs. The parties shall within 30 days of the date of this Order submit briefs and affidavits on the issues of relief, attorney fees and any other matters pertinent to a final judgment.
Dated: White Plains, N.Y.
December 20, 1995
Barrington D. Parker, Jr.