The opinion of the court was delivered by: Nicholas G. Garaufis, District Judge
For over 200 years, the New York City Fire Department has served the people of New York with uncommon bravery, skill, and determination. New York's status as one of the world's great cities is owed in no small part to the commitment and unflagging effort of its firefighters, who provide the city with a degree of security that is rarely acknowledged only because it is so rarely called into question. On September 11, 2001, the world witnessed the magnitude of that commitment, and nobody who was in the city on that day or in the years after will forget the heroism that was displayed by firefighters as the tragedy unfolded, or the role that the Fire Department played in rallying and sustaining the city during the aftermath.
Nonetheless, there has been one persistent stain on the Fire Department's record. For decades, black and other minority firefighters have been severely underrepresented in the Department's ranks. According to the most recent census data, black residents make up 25.6% of New York City's population; when this case was filed in 2007, black firefighters accounted for only 3.4% of the Department's force. In other words, in a city of over eight million people, and out of a force with 8,998 firefighters, there were only 303 black firefighters. This pattern of under-representation has remained essentially unchanged since at least the 1960s. While the city's other uniformed services have made rapid progress integrating black members into their ranks, the Fire Department has stagnated and at times retrogressed. When it comes to being a New York firefighter, blacks and other minorities face entry barriers that other applicants do not.
In July 2009, this court found that the written examinations that the Fire Department used to screen and rank applicants between 1999 and 2007 had discriminatory effects on certain minority applicants, including black applicants, and failed to test for relevant job skills. These examinations unfairly excluded hundreds of qualified black applicants from the opportunity to serve as New York City firefighters. Today, the court holds that New York City's use of these examinations constitutes a pattern and practice of intentional discrimination against blacks, in violation of the Fourteenth Amendment to the United States Constitution, Title VII of the Civil Rights Act of 1964, and State and City Human Rights Laws.
The factual and procedural background of this case is substantially detailed in United States v. City of New York, 637 F. Supp. 2d 77 (E.D.N.Y. 2009) ("D.I. Op." or "Disparate Impact Opinion") (granting Federal Government's and Intervenors' motions for summary judgment on their Title VII disparate-impact claims). Only a general summary and the facts relevant to the instant motions are recited below.
In May 2007, Plaintiff United States of America (the "Federal Government") brought suit against the City of New York (the "City") under Sections 706 and 707 of Title VII, 42 U.S.C. §§ 2000e-5 & 2000e-6, alleging that the City's procedures for screening and selecting applicants for entry-level firefighter positions discriminated against black and Hispanic applicants. (See Compl. (Docket Entry # 1) ¶¶ 1, 29-31, 34-37.) The Federal Government challenged two separate employment practices, each involving the City's use of two written examinations to appoint applicants to the rank of entry-level firefighter in the Fire Department of the City of New York ("FDNY" or the "Department"). The first challenged practice was the City's use of the two examinations -- Written Examination 7029, first administered in February 1999, and Written Examination 2043, first administered in December 2002 -- as "pass/fail screening devices" to eliminate applicants who failed the examination from the pool of potential appointees. The second challenged practice was the "rank-order processing" of applicants, whereby applicants who passed the written examination and a physical performance test ("PPT") were placed on a hierarchical hiring list in descending rank order of their combined written-examination and PPT scores, plus applicable "bonus points." See generally D.I. Op., 637 F. Supp. 2d at 84-86. The Federal Government alleged that these practices had a disparate impact upon black and Hispanic applicants and were not job-related for the position in question or consistent with business necessity, in violation of Section 703(k) of Title VII, 42 U.S.C. § 2000e-2(k). These claims were resolved by the Disparate Impact Opinion. See generally D.I. Op., 637 F. Supp. 2d 77.
In September 2007, the court permitted the Vulcan Society, Inc., Marcus Haywood, Candido Nuñez, and Roger Gregg (the "Intervenors") to intervene in this action.*fn1 (See Docket Entry # 47.) The Intervenors challenge the same practices challenged by the Federal Government, but the scope of their claims is substantially different. The Intervenors' Complaint alleges discrimination only against black, rather than black and Hispanic, applicants. (Intervenors' Compl. (Docket Entry # 48) ¶¶ 2, 3.) The Complaint adds four defendants to the action: the FDNY, the New York City Department of Citywide Administrative Services ("DCAS"), Mayor Michael Bloomberg, and former New York City Fire Commissioner Nicholas Scoppetta*fn2 (collectively, with the City, "Defendants"). Most importantly, in addition to reiterating the "disparate impact" claims from the Federal Government's Complaint, the Intervenors allege that Defendants' use of the pass/fail and rank-ordering procedures constituted intentional discrimination against black applicants. (Id. ¶¶ 3, 51, 56.) This allegation serves as the basis for five additional claims not found in the Federal Government's Complaint: that Defendants' acts violated (1) the "disparate treatment" provisions of Title VII, 42 U.S.C. §§ 2000e-2(a) & 2000e-2(m); (2) the Civil Rights Act of 1866, 42 U.S.C. § 1981; (3) the Equal Protection Clause of the Fourteenth Amendment under 42 U.S.C. § 1983; (4) the New York State Human Rights Law, New York Executive Law §§ 290 and 296; and (5) New York City Local Law 59 of 1986, as amended by Local Rule 39 of 1991, §§ 8-101, et seq. (Id. ¶¶ 57-61.)*fn3
This court has issued several decisions in this case that affect the posture and determination of the instant motions. First, this case has been bifurcated into separate liability and relief phases. (Docket Entry # 47.) Therefore, the questions currently before the court on the parties' various dismissal and summary judgment motions concern only the Defendants' liability for the charged acts, and not their obligations, if any, to remedy their behavior. Second, upon the Intervenors' motion, this court certified a class consisting of:
All black firefighters or firefighter applicants who sat for either Written Exam 7029 or Written Exam 2043 and were harmed by one or more of the following employment practices:
(1) Defendants' use of Written Exam 7029 as a pass/fail screening device with a cutoff score of 84.75;
(2) Defendants' rank-order processing of applicants who passed Written Exam 7029;
(3) Defendants' use of Written Exam 2043 as a pass/fail screening device with a cutoff score of 70.00; and
(4) Defendants' rank-order processing of applicants who passed Written Exam 2043.
United States v. City of New York, 258 F.R.D. 47, 67 (E.D.N.Y. 2009).*fn4 Thus, the Intervenors are proceeding as a class rather than as individuals, a fact which, as will be developed below in Section IV.A.2, has important implications for the analysis of their discrimination claims. See generally 1 Lex K. Larson, Employment Discrimination § 9.03 (2d ed. 2008).
A. Disparate Impact Ruling
In July 2009, this court issued a decision granting the Federal Government's and Intervenors' joint motions for summary judgment on their prima facie case of disparate impact and on the City's business necessity defense. D.I. Op., 637 F. Supp. 2d at 82-83. This ruling established that the City was liable for disparate-impact discrimination under Title VII. Id. at 132. The ruling itself was based on two basic conclusions:
First, Plaintiffs have shown that there is no triable issue of fact as to whether the City's use of Written Exams 7029 and 2043 has resulted in a statistically and practically significant adverse impact on black and Hispanic firefighter applicants. Black and Hispanic applicants disproportionately failed the written examinations, and those who passed were placed disproportionately lower down than white candidates on the hierarchical hiring lists resulting from their scores. Second, although the City has had the opportunity to justify this adverse impact by showing that it used the written examinations to test for the relevant skills and abilities of entry-level firefighters, the City has failed to raise a triable issue on this defense. Under Second Circuit precedent, the evidence presented by the City is insufficient as a matter of law to justify its reliance on the challenged examinations.
1. The Plaintiffs' Prima Facie Case
To establish a prima facie case of disparate-impact discrimination, the Federal Government and Intervenors (collectively, "Plaintiffs") presented extensive statistical evidence. For each challenged employment practice, Plaintiffs' experts conducted analyses that demonstrated the existence of statistically significant disparities between groups of candidates.
For each of the pass/fail uses of the examinations, these analyses demonstrate that the disparities between the pass rates of whites and minority candidates were between 10.5 and 33.9 units of standard deviation. For each of the rank-ordering uses of the examinations, the analyses demonstrate that the disparities between the rankings of whites and minority candidates were between 4.6 and 9.7 units of standard deviation. These statistical disparities show that black and Hispanic candidates disproportionately failed Written Exams 7029 and 2043, and were placed disproportionately lower on the eligibility lists created from those examinations.
Id. at 93.*fn5 Under clearly established Second Circuit precedent, this showing was more than adequate to make out a prima facie case against the City. See id. at 94.
Plaintiffs' evidence also demonstrated that the statistical disparities were significant as a practical matter. According to the expert analyses,
[A]pproximately one thousand additional black and Hispanic candidates would have been considered for appointment as FDNY firefighters had it not been for the disparities resulting from the examinations. Further, absent these disparities, approximately 293 additional black and Hispanic candidates would have been appointed from the eligibility lists used from 2001 through 2008, and approximately 249 black and Hispanic applicants who were actually appointed would have been appointed sooner. Given that, in 2007, the FDNY had 8,998 firefighters, including only 303 black firefighters and 605 Hispanic firefighters, it is clear that these disparities have a substantial practical significance. In fact, the disparities are overwhelming.
The City did not dispute either the accuracy or practical significance of Plaintiffs' statistical analyses. Id. Instead, the City attacked Plaintiffs' reliance on statistical-significance testing as a general matter. The City's principal contention was that the large sample sizes at issue in this case rendered statistical-significance testing unreliable because, as the City stated in its opposition papers, "the larger the group we are examining, the more candidates who sit for the exam, the greater our likelihood that some of them will not do as well as others." (City's Memorandum of Law in Opposition to Pls.' Motion for Summary Judgment on Prima Facie Case of Disparate Treatment (Docket Entry # 256) at 5.) As noted in the opinion, this argument flew in the face of common sense, Second Circuit precedent, the testimony of one of the City's statistical experts, and the City's own admissions. See D.I. Op., 637 F. Supp. 2d at 94-96. "Rather than undermining confidence in statistical significance testing, large sample sizes make such testing more reliable. Larger sample sizes create a greater likelihood that random differences between individuals will even out among all groups, and a lower likelihood that significant differences between the performance of racial or ethnic groups will have resulted from chance." Id. at 95.
The City also argued that Plaintiffs' statistical analyses "inappropriately compare[d] the racial disparity in test results to a hypothetical world in which racial and ethnic groups perform equally well," id. at 96, and that the disparities between white, black, and Hispanic candidates could be explained by native differences in those groups' "capability and preparedness," id. at 97. This argument misconstrued both the purpose of statistical-significance analysis and the nature of the prima facie disparate-impact case. Because the goal of statistical-significance testing is to determine whether an observed disparity is the product of chance rather than some other factor, statistical testing properly assumes equal aptitude across groups. Id. This determination is crucial at the prima facie stage, because the elimination of random chance as an explanation for the observed disparity permits the plaintiff to carry its burden of demonstrating that the disparity is attributable to the challenged employment practice. The City's identification of a possible explanation (however dubious) for the disparity, which would only be germane to a second-stage "business necessity" defense, was irrelevant to the question of whether Plaintiffs had demonstrated the existence of a practice that adversely affected minority applicants. Id.
Finally, the City urged the court to rely on the so-called "80% Rule," rather than statistical significance testing, to assess Plaintiffs' statistical evidence. The 80% Rule derives from a Department of Labor regulation stating that a selection rate for a racial group that is less than four-fifths the selection rate for the group with the highest rate (in this case, white applicants) "will generally be regarded by Federal enforcement agencies as evidence of adverse impact." 29 C.F.R. § 1607.4(D). This court denied the City's request, observing that the 80% Rule is merely a "rule of thumb" that is not binding on courts and may be ignored when other statistical evidence demonstrates disparate impact. D.I. Op., 637 F. Supp. 2d at 98. Given the large sample size and overwhelming standard-deviation evidence, the court refused to exclude statistical-significance testing in favor of the 80% Rule. Id.
Accordingly, based on the strength of Plaintiffs' statistical evidence and the City's inability to demonstrate any material dispute regarding that evidence, this court granted summary judgment to Plaintiffs on their prima facie case of disparate-impact discrimination. Id. at 98-99.
2. The City's Business-Necessity Defense
The court next turned to the merits of the City's business-necessity defense, which shields employers from Title VII liability if they can demonstrate that a challenged practice is justified by legitimate business and job-related considerations. D.I. Op., 637 F. Supp. 2d at 99. To be considered job-related, an employment examination must be properly "validated," Gulino v. N.Y. State Educ. Dep't, 460 F.3d 361, 383 (2d Cir. 2006), meaning that it must be "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 Co. v. Moody, 422 U.S. 405, 431 (1975). The validity of an employment examination is assessed using the five-part test set forth in Guardians Association of the New York City Police Department, Inc. v. Civil Service Commission:
(1) the test-makers must have conducted a suitable job analysis;
(2) they must have used reasonable competence in constructing the test itself;
(3) the content of the test must be related to the content of the job;
(4) the content of the test must be representative of the content of the job; and
(5) there must be a scoring system that usefully selects from among the applicants those who can better perform the job. 630 F.2d 79, 95 (2d Cir. 1980).
This court held that the City had failed to meet its burden to show that the challenged examinations were job-related under the Guardians standard. The undisputed facts established, inter alia, that (1) the City could not demonstrate a correspondence between the tasks or work behaviors required of entry-level firefighters and the abilities that the examinations were meant to measure, D.I. Op., 637 F. Supp. 2d at 110-115; (2) the City failed to consult outside experts to construct appropriate test questions, and did not conduct sample testing on the questions it adopted, id. at 115-16; (3) the examinations did not actually test for the job-related abilities they were intended to test for, id. at 116-18; (4) the examinations failed to test for cognitive and non-cognitive abilities that are important to the job, the cognitive abilities that were tested for were not the most important cognitive abilities for the job, and as a general matter, non-cognitive abilities were more important to the job than cognitive abilities, id. at 118-22; (5) the examinations were written at an unnecessarily high reading level, id. at 122-23; and (6) the chosen cutoff scores for the examinations did not bear any relationship to the necessary job qualifications, id. at 123-28. The undisputed facts also demonstrated that the rank-ordering procedure failed to distinguish between qualified and unqualified candidates because it relied on the faulty written examinations and produced significant differences in ranking based on statistically insignificant differences in test performance. Id. at 128-31. Moreover, the City could not show that an applicant's ranking corresponded to future job performance. Id. at 130-31.
Because Plaintiffs had demonstrated the absence of any genuine issue of material fact with respect to their prima facie case of discrimination and the City's business-necessity defense, and because the undisputed evidence was insufficient to demonstrate that the City's pass/fail and rank-ordering practices were job-related, this court found that the City was liable as a matter of law for disparate-impact discrimination against black and Hispanic firefighter applicants in violation of Title VII. Id. at 132.
1. The Vulcan Society Litigation
As this court noted in its previous opinion, "[t]his is not the first time the City has been brought to federal court to defend its entry-level firefighter examinations against charges of discrimination." D.I. Op., 637 F. Supp. 2d at 81. In 1973, Judge Edward Weinfeld in the Southern District of New York held that the City's written and physical examinations for entry-level firefighters violated the Equal Protection Clause because of their discriminatory impact on black and Hispanic applicants. See Vulcan Soc'y of New York City Fire Dep't, Inc. v. Civil Serv. Comm'n, 360 F. Supp. 1265, 1269 (S.D.N.Y. 1973) (hereafter, "Vulcan Society"), affirmed in relevant part by 490 F.2d 387 (2d Cir. 1973). The Vulcan Society opinion is instructive not only for its breadth and acuity, but because it furnishes proof of an old adage: the more things change, the more they remain the same.
In Vulcan Society, the Vulcan and Hispanic Societies brought suit against the New York City Civil Service Commission, among others, alleging that the FDNY's hiring procedures discriminated against blacks and Hispanics in violation of the Equal Protection Clause.*fn6 Vulcan Society, 360 F. Supp. at 1266. The gravamen of plaintiffs' claim was that the FDNY's use of a pass/fail written examination and a rank-ordering protocol based on applicants' performance on the written examination resulted in the disproportionate exclusion of minority applicants.*fn7
Plaintiffs further alleged that the examination did not test the skills and qualifications needed to become a firefighter. Id. at 1266, 1288.
The testing procedure at issue in Vulcan Society was strikingly similar to the testing procedures in this case. Applicants were required to take a written examination, which was administered approximately every four years; those who scored below 70% were disqualified, while those who passed were placed on an "eligible list" in order of their scores. Id. at 1267. As openings occurred in the FDNY, they were filled by candidates in order of their ranking on the eligible list, provided the candidates passed a second-stage process consisting of a physical fitness test, medical examination, and character evaluation. Id.
Judge Weinfeld held a bench trial, at which plaintiffs used statistical evidence to make out a prima facie case of discrimination. These statistics demonstrated that, while 11.5% of the applicants who took the written examination were black or Hispanic, only 5.6% of the applicants who passed the written examination and were called to take the second-stage physical and medical examinations were black or Hispanic. Id. at 1268. Plaintiffs' statistical expert established that, among those applicants who passed the written and second-stage examinations, the ratio of whites to minorities was 2.3 to 1. Id. at 1269. Among those applicants who ranked in the top half of the eligible list and passed both sets of examinations, the ratio of whites to minorities was 2.8 to 1. Id. Plaintiffs' expert testified that this latter disparity was "statistically significant to a very high degree," in that the odds of such a result obtaining by chance were less than 1 in 10,000. Id. The expert concluded, in sum, that "the entire examination process had a substantial discriminatory impact on the minority groups." Id. Judge Weinfeld also noted the "overwhelming disparity between minority representation in the Department (5%) and in the general population of New York City within the age group eligible for appointment (32%)," an "extreme incongruity" that was "confirmatory of plaintiffs' statistical showing." Id.
Defendants did not contest the accuracy of the plaintiffs' statistical analyses. Id. Instead, they enfiladed the accuracy of the raw data relied on by plaintiffs, the sufficiency and scope of the data sample, and the precision of the expert's findings. Id. at 1270-72. Judge Weinfeld rejected each of defendants' arguments, three of which bear mentioning here. First, in contradistinction to the City's current defense strategy, the Vulcan Society defendants argued that the sample size at issue was too small to yield meaningful analysis. Judge Weinfeld declared this attack to be "without substance," as the 14,168 candidates who sat for the written examination and the 7,987 candidates on the eligible list constituted a data sample that was "certainly sufficient . . . to yield meaningful information." Id. at 1271. Second, defendants argued, as the City did in the present case, that "the adverse impact of the examination on minorities [was] explicable in terms of the educational and cultural deprivations of minority groups." Id. at 1272. Judge Weinfeld rejected that contention in language that the City would have done well to heed here:
It is no defense . . . that the discriminatory impact of the examination procedure may be due to socio-economic disadvantages suffered by minority groups. The very essence of the concept of de facto discrimination . . . is that when state action which is neutral on its face unintentionally disadvantages racial minorities in areas such as public employment, the state has the burden of demonstrating that the action in question has at least a substantial relation to a legitimate state interest such as hiring qualified employees. Inquiries into ultimate causes are irrelevant.
The law views de facto racial classifications, whatever their ultimate sociological explanation, as sufficiently suspect to place upon the state a heavy burden of justification.
Id. Finally, defendants objected that plaintiffs' evidence did not prove that the adverse impact was the result of the written examination, rather than the second-stage examination procedures. Id. at 1271. Judge Weinfeld found, to the contrary, that the evidence established the "overwhelming likelihood" that the written portion standing alone had a substantial discriminatory impact. Id. at 1272. Moreover, any apportionment of fault among the constituent parts of the testing procedure could not obscure the ultimate conclusion that the overall procedure had a "significant and substantial discriminatory impact upon minorities." Id. at 1272. Plaintiffs' statistics therefore made out a prima facie case of discrimination. Id.
Judge Weinfeld further held that defendants had failed to carry their burden of demonstrating that the examination was job-related. Some of the reasons for this holding have the quality of déjà vu. For example, Judge Weinfeld found that (1) the FDNY failed to validate the written examination, inasmuch as the Department failed to identify the job-related abilities that the examination was meant to test, id. at 1274-75; (2) many of the questions on the examination had "little apparent relationship to the job of fireman" and therefore did not test for job-related abilities, id. at 1276; (3) miniscule differences in test performance produced significant differences in applicants' rankings, id.; and (4) defendants failed to demonstrate that an applicant's performance on the written examination corresponded to future job performance, id. at 1273.
Accordingly, Judge Weinfeld held that plaintiffs had proved that the FDNY's written examination violated the Equal Protection Clause because of its discriminatory impact on black and Hispanic applicants. Id. at 1277.
2. History of the FDNY Post-Vulcan Society
As part of the remedy in Vulcan Society, Judge Weinfeld ordered the defendants to hire one minority applicant for every three non-minority candidates hired. Vulcan Soc. of New York City Fire Dep't. Inc. v. Civil Serv. Comm'n, 490 F.2d 387, 391 (2d Cir. 1973). This order and the underlying liability finding were upheld by the Second Circuit. Id. at 398-99. Judge Weinfeld also ordered the defendants to create a new examination that did not discriminate against blacks and Hispanics, as described in Berkman v. New York, 536 F. Supp. 177, 183 (E.D.N.Y. 1982).*fn8 In 1973, the City, using money obtained from a Congressional grant, contracted with a private consulting firm to construct validated written and physical tests; three years later, however, the City cancelled these contracts, ostensibly due to a fiscal crisis.*fn9 Id. at 184. The Vulcan Society injunction lapsed in 1977. (Int. 56.1 ¶ 9.) That year, the City abandoned the 3:1 hiring ratio and instituted a hiring procedure that required applicants to take a cognitive examination and demonstrate minimum appointment requirements such as college credits, a driver's license, and certified first responder with defibrillation training. (Affidavit of Paul Washington (Docket Entry # 125) ("Wash. Aff.") ¶ 5.)
The subsequent history of the FDNY demonstrates that whatever practical effect Judge Weinfeld's injunction may have had on minority hiring dissipated shortly after the injunction expired. Indeed, the history suggests that any such effect constituted little more than a brief departure from an otherwise relentless pattern. In 1963, ten years before the Vulcan Society litigation, 4.15% of all FDNY employees (including non-uniformed employees) were black. (Id. ¶ 1.) In 1971, that number was essentially unchanged. (Id.) At the time of the Vulcan Society litigation, blacks and Hispanics constituted 32% of the City's population, but only 5% of the Department. Vulcan Society, 360 F. Supp. at 1269. In 1990, almost two decades later, blacks made up 29% of the City's population, but only 4% of firefighters. (Int. 56.1 ¶ 11.) In 2002, 25% of the City's residents were black, compared to only 2.6% of its firefighters. D.I. Op., 637 F. Supp. 2d at 80. Between 1991 and 2007, black firefighters never constituted more than 3.9% of the force, and by the time this case was filed in 2007, the percentage of black firefighters in the FDNY had dropped to 3.4%. (Int. 56.1 ¶¶ 14-15.)
This pattern of under-representation becomes starker when juxtaposed against the hiring patterns of other large municipal fire departments. The following table, based on a report by the City's Equal Employment Practices Commission ("EEPC") and data from the most recent census, compares the racial composition of the fire departments and local populations in eight of America's nine largest cities*fn10
CityBlack Population (% of total population)Black Firefighters (% of force)Ration of Black Representation in Municipal Fire Department to Black Representation in Municipal Population
The ratios in the right-hand column of Table 1 measure the degree to which the actual percentage of blacks in each municipal fire department departed from the percentage that would obtain if blacks were represented in the fire department in proportion to their representation in the local population.*fn11 What this table demonstrates is that, of the fire departments in the nine largest American cities, two had roughly the expected number of black firefighters, and in a third, the Los Angeles Fire Department, black firefighters were actually overrepresented. Four of these fire departments had between one-half and seven-tenths the expected number of blacks. The FDNY, however, had approximately one-tenth the expected number of blacks. The proportional representation of blacks in the FDNY was five times lower than the municipal fire department with the next-lowest ratio, and over 11 times lower than the department with the highest such ratio.
This pattern of under-representation has been repeated at the local level as well. In May 2001, the New York City Public Advocate sent a letter to the Fire Commissioner and Deputy Mayor that included the following table illustrating that "the firefighter force is the least diverse ethnically [and] racially . . . of all the uniformed services in the City"*fn12
DepartmentBlacks (%)Latinos (%)