Petition — City of St. Louis v. United States

IN THE

Supreme Court of the United States

OCTOBER TERM 1979

City OF St. Louis, et ai.,

Petitioners,

Vv.

THE UNITED STATES OF AMERICA, ef al.,

Respondents.

Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eighth Circuit

THOMAS A. CONNELLY,

City Counselor

THOMAS J. RAY

RoBerT H. Dierker, Jr.,

Assistant City Counselors

314 City Hall

St. Louis, Missouri 63103

314-622-3361

Attorneys for Petitioners

St. Louis Law Printing Co., Inc., 411 No. Tenth Street 63101 314-231-4477

QUESTIONS PRESENTED

I. Whether Title VII (42 U.S.C. §2000e, et seq.) authorizes a

Court of Appeals to mandate, on interlocutory appeal, quota

relief against a public employer in the form of a promotion

quota, imposed without reference to the racial composition of

the appropriate candidate pool and without reference to any

valid means of ascertaining whether candidates are minimally

qualified.

II. Whether, applying appropriate standards for preliminary

injunctions in a Title VII case involving a public employer, a

District Court may properly deny such relief on the basis of

substantial evidence that the civil service employee selection

procedure at issue was professionally developed and validated

as job-related, where the job involved directly affects the public

safety, notwithstanding contrary evidence on the issue of job-

relatedness.

III. Whether a content valid selection procedure used by a

public employer to rank candidates for promotion must be sup-

ported by ‘“‘empirical evidence’’ of correlation between the

selection procedure and job performance, above and beyond

evidence showing the relationship between the selection pro-

cedure and a concededly complete job analysis, in order to per-

mit the procedure’s use as job-related under Title VII and the

Uniform Guidelines on Employee Selection Procedures.

IV. Whether the ‘‘Questions and Answers to Clarify and

Provide a Common Interpretation of the Uniform Guidelines

on Employee Selection Procedures,’’ being an interpretation by

anonymous draftsmen of Guidelines which are themselves inter-

pretations of Title VII, are entitled to the same judicial

deference as the Guidelines.

PARTIES BELOW

The parties in the Court of Appeals were as follows:

Appellants: United States of America; Firefighters In-

stitute for Raci’ Equality, a corporation; George Baker,

Robert D. Morgan, Robert Grady, Sherman George,

George Redford Turner, Lawrence L. Britt, Vernon Am-

mons, Wendell H. Goins, Charles Gay, George E. Horne,

William L. Young, Daniel S. Austin, Robert Anderson,

John H. Harvey, Joseph P. Hughes, Eugene Stanton,

Preston Sims, each individually and on behalf of all other

persons similarly situated.

Appellees: The City of St. Louis, Missouri; Frank C. Cum-

mings, Acting Chairman of the Civil Service Commission

of City of St. Louis; Fred Gould, a member of the Civil

Service Commission, City of St. Louis; Charles Marino,

Director, Department of Public Safety, City of St. Louis;

Denis D. Broderick, individually and in his capacity as Fire

Chief of the City ef St. Louis; R. Elliott Scearce, in-

dividually and in his capacity as Director of the Depart-

ment of Personnel, City of St. Louis.

Intervenors-Appellees: Joseph Blessing, Michael Davis,

Robert Crowley, David Banta, Andrew Rios, George

Hohmann, Don Blackwell, Nick Altmeyer and George

Tschlis, each individually and as members of a class;

Roland Ralston and William O. Hill.

The City of St. Louis and its officers named above are, of

course, the Petitioners in this Court. Respondents hereinafter

will be referred to respectively as the ‘‘Government,’”’ ‘‘FIRE”’

and ‘‘Intervenors’’.

TABLE OF CONTENTS & AUTHORITIES

Page

I ic a ga Cn chau Daddies awk kcen cs i

I Reon ee eee wen aoa ii

I rae ee Oa cul ye eece Uric wits iii

lh he re en bis cn aa ¢eeie els l

Ns crak ous 34a wer eee ee a hea 2

Statutory Provisions & “Regulations” Involved ....... 2

Te errs eee 2

Reasons for Granting the Petition ................... 8

I. The Petition ought to be granted because the

questions of federal law presented herein are

recurring questions of serious national im-

portance and must be settled by this Court ... 8

Il. The Petition ought to be granted because the

decision of the Court of Appeals conflicts

with decisions of other circuits and of the

re Hr ee PTO 24

RN So ad CPUC Ds eee chee tube H caer oawe’ 30

Appendix A — Opinion of the Court of Appeals for

the Eighth Circuit as amended on

denial of rehearing, April 9, 1980 ..... A-|

Appendix B — Opinion of the District Court, June 4,

SOT 0 640 beak bec cada bOS bas he A-30

Appendix C — Opinion of the Court of Appeals for

the Eighth Circuit, November 29, 1978 A-40

Appendix D — Opinion of the Court of Appeals for

the Eighth Circuit, February 2, 1977 .. A-55

Appendix E — Order of the District Court, January

rer er er ar ees A-74

Appendix F — Order of the District Court, December

a ois Ware backs cckawicdaceres oe A-80

Appendix G — Statutory Provisions ............... A-82

Appendix H — Uniform Guidelines on Employee Se-

lection Procedures (1978)............ A-86

Appendix I — Questions & Answers to Clarify & Pro-

vide a Common Interpretation of the

Uniform Guidelines on Employee

Selection Procedures (March 2, 1979) . A-149

Cases Cited

Page

Albermarle Paper Co. v. Moody, 422 U.S. 405, 10 FEP

GE WRIEIOON oc who 600 56-40 besoewsee's 9,12,14,21,22

Association against Discrimination, Etc. v. City of

Bridgeport, 594 F.2d 306, 19 FEP Cases 115 (2d

Se MES ek 4 15 bios has ROR KS ee 25

Bishop v. Wood, 426 U.S. 341 (1976) ................ 20

Blake v. City of Los Angeles, 595 F.2d 1367, 19 FEP

Cases 1441 (9th Cir. 1979), cert. denied, 48 USLW

Ps ius Gace sd he hi ea kk ede 17

Bridgeport Guardians, Inc. v. Bridgeport Civil Service

Comm., 482 F.2d 1333, 5 FEP Cases 1344 (2d Cir.

1973), cert. denied, 421 U.S. 991, (1975) ......... 10,26

Carter v. Gallagher, 452 F.2d 315, 3 FEP Cases 900,

modified on rehearing en banc, 452 F.2d 327, 4

FEP Cases 121 (8th Cir.), cert. denied, 406 U.S.

ER CE So a ee 9,27

Commonwealth of Pennsylvania v. O’ Neill, 465 F. Supp.

451, 19 FEP Cases 55 (E.D. Pa. 1979) ........... 20

Davis v. County of Los Angeles, 566 F.2d 1334, 16 FEP

Cases 396 (9th Cir. 1977), vacated as moot, 440

U.S. 625, 19 FEP Cases 262 (1979)... ccc cece. 8

Dawson v. Pastrick, 600 F.2d 70, 19 FEP Cases 1540

Ne. Cc eebalnees 12

Dendy v. Washington Hospital Center, 581 F.2d 990,

17 FEP Cases 1227 (D.C. Cir. 1978) ...... 15,16,20,27,28

Detroit Police Officers Ass’n v. Young, 608 F.2d 671,

20 FEP Cases 1728 (6th Cir. 1979), pet. for cert. fil-

ed, 48 USLW 3558 (1980) (No. 79-1080) ......... ll

Doran v. Salem Inn, Inc., 422 U.S. 922 (1975)......... 16

Dunn v. Retail Clerks, Local 1529, 299 F.2d 873 (6th

ee ce eenaneueaes 12

EEOC v. Local 638, etc., 532 F.2d 821, 15 FEP Cases

ee Lat cae beececeacnc es 10

Franks v. Bowman Transportation Co., 424 U.S. 747,

PD ccc cot teeccccces 9

Furnco Construction Corp. v. Waters, 438 U.S. 567, 17

es, when eweckesctecvcess 10

Garza v. Texas Educational Foundation, Inc., 565 F.2d

CTs. eR beeen Chane es 16

Guardians Ass’n v. Civil Service Comm., New York

City, ___ F. Supp. _____, 21 FEP Cases 1467 (S.D.

ia sock hs sneak Kee ban nce beaed 11,22

vi

Harper v. Mayor & City Council of Baltimore, 359 F.

Supp. 1187, 5 FEP Cases 1050 (D.Md.), aff’d sub

nom. Harper v. Kloster, 486 F.2d 1134, 6 FEP

ce I

Hazelwood School Dist. v. United States, 433 U.S. 299,

oe Eo Re a

International Salt Co. v. United States, 332 U.S. 392

EE aad ee a ee ee a

Jackson v. Nassau County Civil Service Comm., 424 F.

Supp. 1162, 14 FEP Cases 775 (E.D. N.Y. 1976) ..

Jones v. New York City Human Resources Admin., 391

F. Supp. 1064, 12 FEP Cases 264 (S.D. N.Y. 1975),

aff’d, 528 F.2d 696, 12 FEP Cases 284 (2d Cir.),

cert. denied, 429 U.S. 825 (1976)................

Kirkland v. New York State Dept. of Correctional Ser-

vices, 520 F.2d 420, 11 FEP Cases 38 (2d Cir.

10

10

12

19

19

1975), cert. denied, 429 U.S. 823 (1976) ...... 9,10,20,25

Louisville Black Police Officers Org. v. City of Louis-

ville, _.__ F. Supp. ___, 20 FEP Cases 1195

ee

McCullers v. City of Raleigh, 11 FEP Cases 1034 (E.D.

ARE I es er

Morrow v. Crisler, 491 F.2d 1053, 7 FEP Cases 586 (Sth

Cir. banc), cert. denied, 419 U.S. 895 (1974)......

Oburn v. Shapp, 521 F.2d 142, 14 FEP Cases 1046 (3d

EES cay eb da tb wole dN sWine i vubess vos

Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 13

FEP Cases 517 (3d Cir. 1976), cert. denied, 429

I de ee

1]

20

11

15

Vii

Pennsylvania v. O’Neill, 473 F.2d 1029, 5 FEP Cases

PUTED. i's ky 60 sd pedeneteccuesatsee re 25

Regents of University of California v. Bakke, 438 U.S.

265, 17 FEP Cases 1000 (1978).................. 9,15

Sampson v. Murray, 415 U.S. 61 (1974) .............. 16,20

Sledge v. J.P. Stevens & Co., 585 F.2d 625, 18 FEP

Cases 261 (4th Cir. 1978), cert. denied, 440 U.S.

ENG Ns 5s x didieGeah cin bh da obo Os edn Seen cls 9,26

Swann v. Charlotte-Mecklenburg Board of Education,

SII os yew scuns bh ewes yee cckaks, 8

United States v. Board of Education, Garfield Hts.,

581 F.2d 791 (6th Cir. 1978)...............0005 29

United States v. City of Chicago (Fire Dept.), 573 F.2d

416, 16 FEP Cases 908 (7th Cir. 1978).......... 11,12,18

United States v. City of Chicago, 549 F.2d 415, 14 FEP

Cases 462 (7th Cir.), cert. denied sub nom. Arado

v. United States, 434 U.S. 875 (1977) ............ 9

United States v. Hayes International Corp., 415 F.2d

1038, 2 FEP Cases 67 (5th Cir. 1969) ............ 16

United States v. N.L. Industries, Inc., 479 F.2d 354,

5 FEP Cases 823 (8th Cir. 1973) ................ 10,27

United States v. South Carolina, 445 F. Supp. 1094, 15

FEP Cases 1196 (D.S.C. 1977), aff’d sub nom. Na-

tional Education Ass’n v. South Carolina, 434

U.S. 1026, 16 FEP Cases 507 (1978)......... 19,22,28,29

United States v. Spectro Foods Corp., 544 F.2d 1175

2 FR Ar Once AM whet on We 12

Viii

Vanguard Justice Society, Inc. v. Hughes, 471 F. Supp.

670, 19 FEP Cases 587 (D.Md. 1979) ............ 18

Vulcan Society v. Civil Service Comm., 490 F.2d 387,

6 FEP Cases 1045 (2d Cir. 1973) ............... 9,11,16

Washington v. Davis, 426 U.S. 229, 12 FEP Cases 1415

GPE 8 bbb oben kcg0ds bss date ee 17

Washington v. Walker, 529 F.2d 1062, 12 FEP Cases

POPE ML, CU 0 4ch.s cc dieebacwiecekeee 20

White v. Carolina Paper Board, Corp., 564 F.2d 1073,

16 FEP Cases 44 (4th Cir. 1977) ................ 10

Statutes, Rules, and ‘‘Regulations’”’ Cited

Civil Service Reform Act of 1978, 92 Stat. 1113, 5

els BAN IEE 0.0 sho bc wunnede Ceicre dau 21

PRU BR. GR aod vcwdaescad cabucsctkete 2

Be UA. BURGE) 0 oo oc s ows chen cack cee 13,27

MU BR GO ins be eee 2

Title VII, Civil Rights Act of 1964, as amended, 42

WBC, GHIIOR OOM, ooo vnc ciccdoececcu ee 2,passim.

Section 703 (h), 42 U.S.C. § 2000e-2 (h).......... 20

Section 706 (g), 42 U.S.C. § 2000e-5 (g) .......... 9

uae FOR, GE. ON, Pies Raa ons vee cs cocancuese 24

Uniform Guidelines on Employee Selection Procedures,

29 CFR § 1607.1, et seq., 43 Fed. Reg. 38290 (Aug.

BR COREE isi sess 2,3,4,17,18,19,22

PT TED ecb évecniensndnwegbveweds 17,18

Questions and Answers to Clarify and Provide a Com-

mon Interpretation of the Uniform Guidelines on

Employee Selection Procedures, 44 Fed. Reg.

ee 2,6,18,19,23,24

EEOC Guidelines on Sex Discrimination, 29 CFR §

a Ea ge, Cath ee 24

Other Authorities Cited

L. Cronbach, Essentials of Psychological Testing (1970) 18

B. Schlei & P. Grossman, Employment Discrimination

I, PI os a oa) od ac aed been e's 9

Barrett, EEOC Guidelines: Accurate Interpretation a

Must, 7 Assessment & Development | (Feb. 1980) . 23

Hunt, Civil Service Testing and Affirmative Action: A

Psychologist’s Perspective, 44 U. Cin. L. Rev. 690

RB RSA RD Og a gs ea 24

Johnson, Albemarle Paper Co. v. Moody: The After-

math of Griggs and the Death of Employee

Testing, 27 Hast. L.J. 1261 (1976) .............. 21

Seelman, Employment Testing Law: The Federal Agen-

cies Go Public with the Problems, 10 Urb. Law. |

ee Dae EE AEE s ook Wak bdbe en dca kh 17,22

BNA Daily Labor Report No. 67, April 6, 1978........ 19,23

Ses ae, MON OU OPED cc x ccccccccededweve 22

Comment, The Uniform Guidelines on Employee Se-

lection Procedures: Compromises and Controver-

sies, 28 Cath L. Rev. 605 (1979)............0000- 17,22

Developments in the Law, Employment Discrimination

and Title VII of the Civil Rights Act of 1964, 84

ey ee eee

Kae

Note, Employment Testing and Proof of Job<Related-

ness: A Tale of Unreasonable Constraints, 52

POOR. DA. DOCU sg on on Sedcepecavcenss

17,18

OO ea ee ee ree ee

No.

IN THE

Supreme Court of the United States

OcTOBER TERM 1979

City OF St. Louis, et al.,

Petitioners,

v.

C P THE UNITED STATES OF AMERICA, ef ail.,

Respondents.

Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eighth Circuit

Come now Petitioners, and respectfully pray that a writ of

certiorari be issued to review the judgment of the United States

Court of Appeals for the Eighth Circuit entered in this case on

April 9, 1980.

OPINIONS BELOW

The original opinion of the Court of Appeals, January 17,

1980, reversing the order of the District Court denying prelimi-

nary relief, is reported unofficially at 21 FEP Cases 1140. The

opinion of the Court of Appeals as modified on denial of re-

hearing on April 9, 1980 is reported at 616 F.2d 350, and this

version of the opinion is reproduced in Appendix A hereto,

together with the order denying rehearing. The opinion of the

District Court, filed June 4, 1979, is reported at 470 F.Supp.

=

1281, 19 FEP Cases 1643, and is reproduced in Appendix B. For

the convenience of this Court, the previous opinions of the

Court of Appeals, reported respectively at 588 F.2d 235, cert.

denied, 99 S.Ct. 3096 (1979), and 549 F.2d 506, cert. denied,

434 U.S. 819 (1977), are reproduced in Appendices C and D.

JURISDICTION

The judgment of the Court of Appeals was initially entered

on January 17, 1980. Timely petitions for rehearing were filed.

The petitions for rehearing were denied and the opinion of the

Court of Appeals modified on April 9, 1980. This Petition is

filed within ninety days of that date. 28 U.S.C. §2101. The

jurisdiction of the Supreme Court is invoked under 28 U.S.C.

§1254(1).

STATUTORY PROVISIONS AND

“REGULATIONS” INVOLVED

The pertinent provisions of Title VI! of the Civil Rights Act

of 1964, as amended, 42 U.S.C. §2000e, et seq., are reproduced

in Appendix G hereto. Although they are not in fact regula-

tions, the Uniform Guidelines on Employee Selection Pro-

cedures (1978), adopted by the Equal Employment Opportunity

Commission (EEOC), 29 CFR Part 1607, are reproduced in per-

tinent part in Appendix H. Similarly, the ‘Questions and

Answers to Clarify and Provide a Common Interpretation of

the Uniform Guidelines on Employee Selection Procedures,’’ 44

Fed. Reg. 11996 (March 2, 1979) are reproduced to the extent

relevant in Appendix I.

STATEMENT OF THE CASE

Following a judgment of the United States Court of Appeals

for the Eighth Circuit finding that the selection procedure for

promotion to fire captain in the St. Louis Fire Department did

not comport with the standards required by Title VII of the

Civil Rights Act of 1964, as amended, the United States District

Court for the Eastern District of Missouri (Nangle, District

— on

Judge) entered an order, inter alia, requiring Petitioners to

develop a new selection procedure which complied with EEOC

guidelines. Appendix E. Other aspects of this order induced

another appeal, after which the District Court entered an order

requiring Petitioners to immediately promote 12 black fire-

fighters, with the option also of promoting 12 whites to the rank

of fire captain, and directing Petitioners to develop a valid selec-

tion procedure not later than January 1, 1979. Appendix F.

Acting on the orders of the Court of Appeals and the District

Court in the summer of 1978, experts employed by Petitioners

began to develop and document the new fire captain selection

procedure (hereinafter sometimes referred to as the ‘‘1979 ex-

amination’’), utilizing the Uniform Guidelines on Employee

Selection Procedures, initially published in December, 1977, 42

Fed. Reg. 66542 and finally adopted in August with an effective

date of September 25, 1978. 43 Fed. Reg. 38290 (Aug. 25, 1979);

Appendix H. The result of these efforts was a massive (in excess

of 700 pages) validity report on the 1979 examination which was

filed by Petitioners with the District Court on December 29,

1978. The purpose of the filing with the District Court was to

permit the Government and FIRE to critique the 1979 examina-

tion in advance of its-administration. See Appendix E, p. A-75.

Howevei, the Government and FIRE instead proposed, and all

parties eventually agreed, that administration of the examina-

tion should proceed and objections would be reserved until after

an assessment of adverse impact. Appendix A, p. A-S.

The 1979 examination was administered in two segments, a

written, multiple-choice examination (30% of total score) and

an assessment center (70% of score). Appendix B, p. A-33. The

results of the written portion caused the Government to express

reservations, but the assessment center was allowed to proceed.

Upon publication of the final results, Petitioners acted im-

mediately to promote candidates on the basis of their rank on

the 1979 examination. Appendix A, p. A-5. The Government

and FIRE obtained a temporary restraining order from the

District Court after twenty-four firefighters (1 black) had been

promoted. Appendix A, p. A-S—A-6.

a em

The District Court held an extensive hearing on the question

of whether to grant a preliminary injunction, generating a tran-

script of nearly 400 pages and numerous statistical exhibits in

addition to the validity report previously filed.’ Although a per-

tion of the evidence adduced concerned adverse impact of the

1979 examination, by far the largest proportion related to the

validity, under Title VII and the Uniform Guidelines on Em-

ployee Selection Procedures (1978), of the examination. Nearly

all of the testimony given at trial was that of expert witnesses

presented by each side.

On June 4, 1979, the District Court denied the application for

a preliminary injunction and dissolved the temporary restrain-

ing order previously granted. In its opinion, 470 F.Supp. 1281,

19 FEP Cases 1643, Appendix B, the Court stated that the

“issue to be decided by this Court at this juncture in the pro-

ceedings is whether plaintiffs have established ‘a clear showing

of probable success and possible irreparable injury’ based upon

plaintiffs’ claim that the examination was not properly vali-

dated.’’ Appendix B, p. A-33. The District Court assumed,

without deciding, that promotions based upon an invalid ex-

amination having adverse impact would establish a possibility

of irreparable harm. Jd. Based on statistical evidence, the

District Court concluded that there was no adverse (‘‘dis-

parate’’) impact on the assessment center portion of the 1979

' The appeal below proceeded on a designated record. Rule 30(f),

F.R.App.Pro., 8th Cir. Rule 11. Petitioners have previously requested

that the Clerk of the Court of Appeals certify the entire record to this

Court pursuant to former U.S.Sup.Ct. Rule 21, but Petitioners have

been informed that the record will not be certified without the express

request of the Clerk of this Court. Consequently, Petitioners have

largely confined their Statement of the Case to facts which can be col-

lected from the published opinions in this case, although some

references to the record below have been deemed unavoidable. Peti-

tioners respectfully suggest that full consideration of this petition re-

quires that the record below be certified to this Court.

ee

examination. Appendix B, pp. A-33—A-34. However, the

Court concluded that the written portion of the test had an

adverse impact and that the Government and FIRE had estab-

lished a prima facie case of adverse impact on the examination

as a whole. /d.

Reviewing the evidence of examination validity presented at

the hearing, the District Court found that (1) content validity

was the only feasible approach in this case; (2) the content of the

written and assessment center portions of the 1979 examination

was determined after development of a thorough job analysis;

(3) an expert panel of incumbent fire officers (two white, two

black) was used to analyze job tasks and link them to the knowl-

edges, skills and abilities (KSA’s) to which they related; (4) the

tasks and KSA’s were rated and ranked in terms of importance;

(5) KSA’s suitable for measurement by a written examination

were identified by the expert panel and test items were prepared

by the panel and Petitioners’ test professionals; (6) test items

and KSA’s were linked and the difficulty of each item was rated

in accordance with the difficulty of the position; (7) similar care

was taken with respect to the assessment center concerning

development of exercises and reliability of raters; (8) the

Statistical analyses performed by Petitioners supported the

reliability of the written test, the assessment center, and the 1979

examination as a whole; (9) the criticisms of the examination

presented by Dr. Richard Barrett (the Government’s expert)

were insufficient to warrant the conclusion that the 1979 ex-

amination was not valid; (10) the City acted in good faith to

carry out the mandates of the courts and develop a valid ex-

amination. Appendix B, pp. A-36—A-38. In light of the record

presented to it, the District Court held that the Government and

FIRE had failed to establish probable success on the merits, and

so denied relief.

On interlocutory appeal, the Court of Appeals for the Eighth

Circuit ‘‘vacated’’ the order of the District Court denying a

preliminary injunction, and also fashioned extensive affirmative

— pe

relief (which had not been requested in the District Court).

Based on its own review of the evidence (see, e.g., Appendix A,

p. A-19), and its own resolution of conflicting expert testimony,

the Court of Appeals concluded that Petitioners had failed to

prove that the 1979 examination was content valid. In reaching

this conclusion, the Court relied not only upon the Uniform

Guidelines but also very heavily upon the “Questions and

Answers to Clarify and Provide a Common Interpretation of

the Uniform Guidelines on Employee Selection Procedures.”’

See Appendix A, p. A-14. In applying the Guidelines and the

Questions and Answers, the Court of Appeals accepted nearly

every criticism of the 1979 examination advanced by the

Government’s expert, notwithstanding the trial court’s express

rejection of that testimony. Compare Appendix A, pp.

A-17—A-19 with Appendix B, pp. A-37—A-38.

Having demolished the 1979 examination, the Court of Ap-

peals proceeded to fashion both interim and long-term man-

datory relief, in an attempt to finally dispose of the case on the

merits. Appendix A, pp. A-25—A-26. As part of its mandatory

relief, the Court ordered Petitioners to immediately promote

eight black firefighters and to promote additional firefighters in

a black/white ratio of 1:2 until all existing vacancies and thirty

additional vacancies were filled. Appendix A, p. A-28. The

Court noted that full implementation of its promotion quota

would raise black representation in the fire captain rank to

26%, nearly equivalent to black representation in the firefighter

rank, but the Court made no reference to the racial composition

of those who actually took the 1979 examination. Compare Ap-

pendix B, p. A-34. The Court of Appeals gave a number of

justifications for imposing quota relief on interlocutory appeal,

including the ‘‘recalcitrance”’ of the City of St. Louis, although

the Court did not question the District Court’s express finding

that Petitioners (including the City) had acted in good faith to

Carry out the mandates of the courts and to develop a valid ex-

amination. See Appendix A, p. A-27.

~~

Although the Court of Appeals held that the 1979 examina-

tion was not valid for any purpose, the Court nevertheless

directed Petitioners to make promotions on the basis of the

assessment center segment of the examination, using segregated

lists for black and white firefighters. Appendix A, p. A-28. The

Court of Appeals apparently found sua sponte that assurance of

minimal qualifications for promotion was obtained by the fact

that all assessment center participants had five years’ satisfac-

tory service and had passed the written test, although the Court

pointed to no evidence in the record to support that view. /d., p.

A-27.

win

REASONS FOR GRANTING THE

PETITION FOR CERTIORARI

I. The Petition Ought To Be Granted Because The Questions

Of Federal Law Presented Herein Are Recurring Questions Of

Serious National Importance And Must Be Settled By This

Court.

A. The decision of the Court of Appeals, by imposing pro-

motion quota relief on interlocutory appeal wholly without

reference to qualifications of candidates or the racial composi-

tion of the appropriate candidate pool, and without any

evidence as to the necessity or propriety of such relief,

represents a novel and extraordinary departure from principles

of affirmative relief heretofore obtaining in Title VII cases, and

illustrates the compelling need for articulation of more precise

standards to govern the imposition of quota relief under Title

VII.

This Court has held in other contexts that the use of

mathematical ratios as ‘‘a starting point in the process of shap-

ing a remedy”’ for illegal discrimination is not unconstitutional

and is ‘‘within the equitable remedial discretion of the District

Court.’’ Swann v. Charlotte-Mecklenburg Board of Education,

402 U.S. 1, 25 (1971). However, the Court has to date refrained

from providing clear guidance to the lower courts in imposing

such remedies in Title VII cases, although it has had at least one

Opportunity to do so. See County of Los Angeles v. Davis, 440

U.S. 625, 19 FEP Cases 282 (1979), vacating as moot Davis v.

County of Los Angeles, 566 F.2d 1334, 16 FEP Cases 396 (9th

Cir. 1977).* Nevertheless, the lower federal courts have proceed-

ed to impose quota relief regularly as a remedy under Title VII,

* The practice of the lower courts in fashioning such race-conscious

relief has been recognized by this Court, but has not been expressly

approved. See Regents of University of California v. Bakke, 438 U.S.

265, 301-02, 17 FEP Cases 1000, 1015 (1978) (Powell, J.).

—

utilizing an almost bewildering variety of ratios and rationales.

See, e.g., United States v. City of Chicago, 549 F.2d 415, 14

FEP Cases 462 (7th Cir.), cert. denied sub nom. Arado v.

United States, 434 U.S. 875 (1977); Vulcan Society v. Civil Ser-

vice Comm., 490 F.2d 387, 6 FEP Cases 1045 (2d Cir. 1973);

Carter v. Gallagher, 452 F.2d 315, 3 FEP Cases 900, modified

on rehearing en banc, 452 F.2d 327, 4 FEP Cases 121 (8th Cir.)

cert. denied, 406 U.S. 950 (1972); see generally, B. Schlei & P.

Grossman, Employment Discrimination Law 1199-1200 (1976),

id., Supp. 322 (1979).

One of the questions Petitioners seek to present here is not the

constitutionality of quota relief, but rather what ‘“‘sound legal

principles”’ guide the ‘‘judgment”’ of a federal court which is

exercising its discretion to fashion quota relief under Title VII.

Cf. Albemarle Paper Co. v. Moody, 422 U.S. 405, 10 FEP

Cases 1181 (1975) (construing §706(g) of the Civil Rights Act of

1964, as amended, 42 U.S.C. §2000e-5(g), with respect to stan-

dards governing award of back pay). This question is particular-

ly acute when the case involves promotion quotas, which have

been imposed much less frequently and much more carefully

than hiring quotas, see, e.g., Sledge v. J.P. Stevens & Co., 585

F.2d 625, 18 FEP Cases 261 (4th Cir. 1978), cert. denied, 440

U.S. 981 (1979), and which are usually sought in cases involving

' public employers functioning under civil service systems, so that

such relief will typically directly affect identifiable non-minority

persons with legitimate expectations of promotion, see, €.g.,

Kirkland v. New York State Dept. of Correctional Services, 520

F.2d 420, 11 FEP Cases 38 (2d Cir. 1975), cert. denied, 429 U.S.

823 (1976).

This Court has frequently emphasized the remedial purpose

of Title VII, e.g., Albemarle Paper Co. v. Moody, supra;

Franks v. Bowman Transportation Co., 424 U.S. 747, 12 FEP

Cases 549 (1976). The Court has also recognized that Title VII

does not require employers to utilize employee selection pro-

—"

cedures which maximize minority representation in the work

force, Furnco Construction Corp. v. Waters, 438 U.S. 567,

577-78, 17 FEP Cases 1062, 1066 (1978), and that all relevant

Statistics pertaining to the availability of minorities must be con-

sidered in assessing liability in hiring discrimination cases. Jd;

see also Hazelwood School Dist. v. United States, 433 U.S. 299,

15 FEP Cases 1 (1977). From these cases the principle follows

that remedial employment quotas must be fashioned under Title

VII with reference to the relevant pool of candidates or ap-

plicants. See, e.g., EEOC v. Local 638, etc., 532 F.2d 821, 15

FEP Cases 1618 (2d Cir. 1976); United States v. N.L. In-

dustries, Inc. 479 F.2d 354, 377, 5 FEP Cases 823, 841 (8th Cir.

1973) (‘*...in determining an appropriate minority-

nonminority hiring ratio, we think that the number of qualified

blacks available is an important factor. . . .’’); cf. Ostapowicz

v. Johnson Bronze Co., 541 F.2d 394, 13 FEP Cases 517 (3d

Cir. 1976), cert. denied, 429 U.S. 1041 (1977) (sex discrimina-

tion case). This requirement would seem to be particularly perti-

nent when promotion quotas are involved, since the effect of

such quotas will be to displace non-minority candidates who

may have equal or superior qualifications. Cf. Bridgeport Guar-

dians, Inc. v. Bridgeport Civil Service Comm., 482 F.2d 1333, 5

FEP Cases 1344 (2d Cir. 1973), cert. denied, 421 U.S. 991

(1975).

In fashioning quota relief, especially promotion quotas, some

courts have also considered whether there is a ‘‘compelling

need’’ for such relief, whether there was ‘‘egregious”’ or inten-

tional discrimination, whether statistical disparities were ex-

treme, and whether the discrimination found could otherwise be

cured without a quota. See, e.g., Sledge v. J.P. Stevens & Co.,

supra, 585 F.2d at 646-50, 18 FEP Cases 275-79; White v.

Carolina Paperboard Corp., 564 F.2d 1073, 16 FEP Cases 44

(4th Cir. 1977); Harper v. Mayor & City Council of Baltimore,

359 F.Supp. 1187, 5 FEP Cases 1050 (D.Md.), aff’d sub nom.

Harper v. Kloster, 486 F.2d 1134, 6 FEP Cases 880 (4th Cir.

1973); EEOC v. Local 638, etc., supra; Kirkland v. New York

— oe

State Dept. of Correctional Services, supra, 520 F.2d at 427, 11

FEP Cases at 43; cf. Morrow v. Crisler, 491 F.2d 1053, 7 FEP

Cases 586 (Sth Cir. banc), cert. denied, 410 U.S. 895 (1974). It

has also been said that court-imposed quotas must be subjected

to a “‘reasonableness test’’ to determine whether they provide

an effective remedy for past discrimination without unnecessari-

ly trammeling the interests of non-minority candidates for pro-

motion. Detroit Police Officers’ Ass’n v. Young, 608 F.2d 671,

20 FEP Cases 1728 (6th Cir. 1979), pet. for cert. filed, 48 USLW

3558 (1980) (No. 79-1080).

Because promotion quotas have been so sparingly utilized, it

seems that no courts have addressed the issue of how one deter-

mines qualifications for promotion in the absence of a valid

selection procedure. Some hiring quota cases have been able to

avoid a similar problem by finding selection procedures to be

valid on a pass/fail basis but not valid for ranking purposes,

e.g., Louisville Black Police Officers Org. v. City of Louisville,

__. F.Supp. ____, 20 FEP Cases 1195 (W.D.Ky. 1979). Other

courts have skirted the problem by simply barring the use of un-

validated, discriminatory selection procedures but giving the

employers the option of continuing to utilize them on an essen-

tially segregated basis. Guardians Ass’n v. Civil Service Comm.,

New York City, ___. F.Supp. ___., 21 FEP Cases 1467, 1472

(S.D.N.Y. 1980); see also United States v. City of Chicago (Fire

Dept.), 573 F.2d 416, 429 16 FEP Cases 908, 916-17 (7th Cir.

1978) (promotions offered first to minorities on suspect eligibili-

ty lists until valid selection procedure implemented).

Finally, most courts have recognized the general principle

that, even in Title VII cases, the framing of remedial decrees

‘**should take place in the District rather than the Appellate

Courts,’’’ Vulcan Society v. Civil Service Comm., supra, 490

F.2d at 399, 6 FEP Cases at 1053, quoting /nternational Salt

Co. v. United States, 332 U.S. 392, 400 (1947); see also Dawson

~

v. Pastrick, 600 F.2d 70, 19 FEP Cases 1540 (7th Cir. 1979).

There are few, if any, reported instances (other than the case at

bar) where the severe limitations on the granting of mandatory

relief on interlocutory appeal have been ignored. Compare

United States v. Spectro Foods Corp., 544 F.2d 1175 (3d Cir.

1976) and Dunn v. Retail Clerks, Local 1529, 299 F.2d 873 (6th

Cir. 1962) with United States v. City of Chicago (Fire Dept.),

supra.

Whether some or ail of the foregoing considerations must

figure in the decision to impose quota relief can only be decided

by this Court. Whatever the standards for such relief are or

should be, however, the need for the explication of standards by

this Court is cast in sharp relief by the decision of the Court of

Appeals in this case. It is not too much to say that in this case,

equity varied like the Chancellor’s foot. To be sure, the Court

of Appeals offered numerous justifications for its draconian

decree: immediate promotions to fire captain were required to

vitiate morale and efficiency problems in the St. Louis Fire

Department flowing from the large number of vacancies in the

rank of captain; the possibility that further delays in promotion

to captain would disadvantage blacks in competing for promo-

tion to battalion chief; and ‘‘we suspect that there has been a

certain amount of foot-dragging by St. Louis.’’ Appendix A,

p. A-27. But does this approach constitute ‘‘the principled ap-

plication of standards consistent with’’ the principles of Title

VII?’ Clearly not.

The Court of Appeals in this case ignored the primary role of

the District Court in framing relief, ignored the racial composi-

tion of the appropriate candidate pool, and ignored the ques-

tion of how qualifications for promotion could properly be

> See Albemarle, supra, 422 U.S. at 417, 10 FEP Cases at 1187.

determined in the absence of a valid selection procedure. In-

stead, the Court of Appeals substituted its discretion for that of

the District Court, imposed a quota that will result in substan-

tial overrepresentation of minorities in the affected job, and

created its own means of determining minimal qualifications

without a scintilla of evidence that its own chosen method was

valid, i.e., demonstrably job-related.

The Court of Appeals’ promotion quota effectively disposed

of 68 fire captain vacancies, when the record showed that the

complement in the rank was 162.‘ In so doing, the Court acted

on a request for mandatory relief presented for the first time on

interlocutory appeal under 28 U.S.C. §1292(a)(1). The Court

noted that full implementation of its quota would result in

blacks holding 26% of the fire captain promotions. Appendix

A, p. A-27, n.25. The Court made absolutely no reference to

the composition of the relevant candidate pool, although it did

observe that blacks comprised 22% of all Fire Department per-

sonnel and 27% of entry level firefighters. The Court simply ig-

nored the fact that, of those firefighters actually eligible to com-

pete for promotion to fire captain, 15% were black.’

’ The, complement of fire captains is now 148, due to fiscal con-

Straints necessitating a reduction in St. Louis Fire Department

manpower.

* Understandably, the composition of the appropriate applicant

pool does not appear in the opinion of the Court of Appeals. The

District Court found, however, that 15% of those who began the 1979

examination were black. Appendix B, p. A-34. The uncontradicted

and uncontested evidence in the record shows that five years of service

as a firefighter is necessary before one can be considered eligible to

compete for promotion to captain. Defendants’ Exhibit B (Validation

Report), pp. 79 ff. There is no claim that blacks were deterred from

taking the examination by past discrimination; in fact, the record

shows that proportionately more black firefighters took the test.

— Pn

Why was a quota resulting in minority representation of 26%

in the fire captain rank necessary, when blacks comprised only

15% of the relevant candidate pool? No sound reason was given

by the Court of Appeals, although perhaps its fashioning of

relief was influenced by the ‘‘recalcitrance’’ or ‘‘foot-dragging”’

of the Petitioners. Yet in this respect the Court of Appeals

disregarded two important factors: (1) twelve black firefighters

had previously been promoted by order of the Court of Appeals

to remedy past discrimination, see Appendix C, p. A-50; and (2)

the District Court expressly found that Petitioners had acted in

good faith to carry out the mandates of the courts and develop a

valid selection procedure. Appendix B, p. A-38. It would seem

that the Court of Appeals has some sort of ‘‘corruption of

blood’’ theory regarding employers who have in the past been

convicted of Title VII violations.

Perhaps most seriously, the affirmative relief fashioned by

the Court of Appeals requires Petitioners to promote fire cap-

tains from segregated eligibility lists compiled on the basis of the

assessment center portion of the selection procedure which the

Court had held to be invalid. See Appendix A, p. A-28. To

reach this result, the Court found that a field of (minimally

qualified?) candidates existed because all persons on the assess-

ment center list had five years of service and had passed the

written portion of the examination! It is the height of irony that

the written portion of the 1979 examination received the

heaviest criticism from the Court of Appeals. One can only infer

that the decision of the Court of Appeals was the product of in-

clination rather than a judgment guided by sound legal prin-

ciples. Cf. Albemarle, supra, 422 U.S. at 416, 10 FEP Cases at

1187.

In short, the Court of Appeals’ decision must be viewed as a

significant departure from the norms of affirmative relief under

Title VII - as well as from the norms of mandatory relief on in-

terlocutory appeal. Because the type of quota relief fashioned

by the Court beiow presents serious and sensitive issues, cf.

—

Regents of University of California v. Bakke, supra, the ar-

ticulation of controlling standards by this Court is clearly in

order. Accordingly, this Petition ought to be granted so that the

judgment of the Court of Appeals can be reviewed and cor-

rected by this Court.

B. The decision of the Court of Appeals threatens both the

continued utility of content valid selection procedures and the

existence and efficacy of traditional civil service merit systems

based on competitive examination.

The decision of the Court of Appeals with respect to the selec-

tion procedure in this case raises a number of very serious prob-

lems. In the first place, it does nothing to clarify the prevailing

confusion as to the appropriate standards for granting prelimi-

nary injunctions in Title VII cases. Compare Appendix A with

Dendy v. Washington Hospital Center, 581 F.2d 990, 17 FEP

Cases 1227 (D.C.Cir. 1978); Oburn v. Shapp, 521 F.2d 142, 14

FEP Cases 1046 (3d Cir. 1975). Moreover, the review methodol-

ogy of the Court of Appeals in this case seems to guarantee that

a preliminary injunction will issue as a matter of course in Title

VII cases involving public employers’ selection procedures.

Here, Petitioners presented extensive evidence of a professional-

ly developed and validated selection procedure in an effort to

refute the Government’s and FIRE’s showing (if any) of prob-

able success on the merits; but this proved Petitioners’ undoing,

since the Court of Appeals gave no deference whatever to the

District Court’s findings and made a frank attempt to dispose of

the case on interlocutory appeal. See Appendix A, p. A-25. Yet,

if Petitioners had limited their presentation to the mere in-

troduction of the validity report prepared by its experts, there

can be no doubt that the Court of Appeals would have held such

evidence inadequate to refute probable success on the merits by

—=—

the Government and FIRE. Once again, it is a question of stan-

dards to ve observed by the lower federal courts.°

This Court has held that preliminary relief affecting govern-

ment personnel matters is not to be viewed in quite the same

way as other applications for such relief. See Sampson v. Mur-

ray, 415 U.S. 61 (1974); compare Garza v. Texas Educational

Foundation, Inc., 565 F.2d 909 (Sth Cir. 1978) with United

States v. Hayes International Corp., 415 F.2d 1038, 2 FEP

Cases 67 (Sth Cir. 1969). The Court of Appeals for the District

of Columbia Circuit has recognized that preliminary injunctions

affecting employee selection are not to be lightly granted when

the employer presents substantial evidence of test validity, and

the job is one which directly relates to the public health and

safety. Dendy v. Washington Hospital Center, supra. Accord-

ingly, it would seem that certiorari would be appropriate in this

case in order to provide authoritative guidance to the lower

federal courts and to prevent unnecessary disruption of the

operations of public employers in similar cases.

Viewed as a substantive decision on the merits of Petitioners’

claim that the 1979 examination for fire captain was job-related,

the opinion of the Court of Appeals raises even more serious

questions.

The 1979 examination for fire captain was developed as a

content valid selection procedure - the only feasible method.

See Appendix B, p. A-35; see also Appendix D, p. A-62. Con-

tent validity essentially is found when the content of the test

matches the content of the job. E.g., Vulcan Society v. Civil

Service Comm., supra, 490 F.2d 395, 6 FEP Cases 1050. Stated

* The Court of Appeals professed to review the District Court in

terms of the ‘‘traditional’’ preliminary injunction standard (movant

must show irreparable harm and substantial probability of success on

the merits, see Doran v. Salem Inn, Inc., 422 U.S. 922 (1975)), but the

opinion of the Court belies this at every step.

=-_— {7 —

less simply, content validity is established by showing that the

test is representative of and actually measures work behaviors

necessary for successful job performance or that the test

measures knowledges, skills and abilities used in and necessary

for performance of important work behaviors. Uniform Guide-

lines on Employee Selection Procedures, 29 CFR §1607.14 (C)

(4), Appendix H, p. A-133; see Comment, The Uniform Guide-

lines on Employee Selection Procedures; Compromises and

Controversies, 28 Cath.L.Rev. 605, 622-23 (1979). Only after a

long struggle in the courts and in the bureaucracy was content

validity recognized in the Uniform Guidelines as the psycho-

metric coequal of criterion-related validity, the darling of the

original EEOC Guidelines. See Washington v. Davis, 426 U.S.

229, 247 n. 13, 12 FEP Cases 1415, 1422 n. 13 (1976); Blake v.

City of Los Angeles, 595 F.2d 1367, 19 FEP Cases 1441 (9th

Cir. 1979), cert. denied, 48 USLW 3698 (1980); see generally,

Seelman, Employment Testing Law: The Federal Agencies Go

Public with the Problems, 10 Urb.Law. 1 (1978); Comment,

supra, 28 Cath.L.Rev. 620-21; Developments in the Law, Em-

ployment Discrimination and Title VII of the Civil Rights Act

of 1964, 84 Harv.L.Rev. 1109, 1122-28 (1971).

In the case at bar, the Court of Appeals rejected the content

validity of the 1979 examination for fire captain for two major

reasons: (1) ‘‘Nothing in the record can be construed as em-

pirical evidence of an association between levels of performance

on the... examination and on the job,’’ Appendix A, pp.

A-15, A-20; and (2) ‘‘the circumstances of a multiple-choice

examination are so dissimilar from the work situation as to

make it impossible to establish job relatedness through a con-

tent validity study,’’ id., p. A-21, n. 19. In reaching these con-

clusions, the Court of Appeals relied less on the Uniform

Guidelines than on the explanatory Questions and Answers

(discussed below), but the critical factors in the decision were

obviously the use of written exercises as part of a selection pro-

cedure for a ‘‘physical doing, hands-on job,’’ and the absense

en

of some (unspecified) direct, concrete evidence that good per-

formance on the 1979 examination presaged good performance

as a fire captain. Clearly, this view of the requisites of content

validity grievously misconstrues the theory underlying that

strategy and, if uncorrected by this Court, will restrict the use of

content validity to the most elementary types of selection pro-

cedures (e.g., typing tests for typists).

The reasoning of the Court of Appeals concerning content

validity is seriously deficient in several respects. First, as even

the Questions and Answers recognize, content validity is

primarily a judgmental process concerned with the adequacy of

the selection procedure as a sample of work behaviors or

necessary job knowledge. Question and Answer No. 62, Appen-

dix I, p. A-176; see also L. Cronbach, Essentials of Psychological

Testing 148 (1970). Content validity depends primarily on the

adequacy of the job analysis in identifying critical work

behaviors and knowledges, skills and abilities necessarily prere-

quisite to successful job performance. Uniform Guidelines,

§1607.14(C)(1) and (2), Appendix H, p. A-131. The con-

tent valid procedure is not and cannot be a pure predictive pro-

cedure, see Developments in the Law, supra, 84 Harv.L.Rev.

1122, and nothing in the Guidelines or in any accepted profes-

sional standards provides that content validity is destroyed

unless there is ‘‘empirical evidence’’ outside the job analysis

that good test performance does indeed predict good job perfor-

mance. On the contrary, in most cases, claims of content validi-

ty have foundered when the job analysis is held to be faulty or

when the examination is found to be unrelated to the job

analysis. See, e.g., United States v. City of Chicago (Fire

Dept.), supra; Vanguard Justice Society, Inc. v. Hughes, 471

F.Supp. 670, 19 FEP Cases 587 (D.Md. 1979).

In this case, the job analysis is unquestioned. See Appendix

A, p. A-14, n. 13. Pursuant to this analysis, knowledges, skills

and abilities were identified and rated in terms of importance by

an expert panel as well as a cross-section of other fire depart-

— ee

ment personnel. See Appendix A, p. A-16; Appendix B, p.

A-36; Defendants’ Exhibit B (Validation Report) pp. 21-16,

40-60. As the District Court’s findings indicate, Petitioners

made a more than reasonable showing that the validity report

was executed in a responsible, professional manner designed to

produce trustworthy results. Since the quality of test prepara-

tion and validation was very high under professional standards,

as evidenced by the production of an uncontested job analysis,

it follows that the likelihood of validity—without any other

“‘empirical evidence’’—is correspondingly high. See United

States v. South Carolina, 445 F. Supp. 1094, 15 FEP Cases 1196

(D.S.C. 1977), aff’d sub nom. National Education Ass’n v.

South Carolina, 434 U.S. 1026, 16 FEP Cases 507 (1978); Jones

v. New York City Human Resources Admin., 391 F. Supp.

1064, 12 FEP Cases 264 (S.D.N.Y. 1975), aff’d, 528 F.2d 696,

12 FEP Cases 284 (2d Cir. 1976).

The Court of Appeals also seriously erred in its manifest

hostility to the use of any type of written exercise as part of the

selection procedure for a non-academic job. Nothing in the

Guidelines or reported cases supports such a per se rule. Indeed,

the Guidelines were themselves revised in conformity to profes-

sional criticism that the standards for content validity, as

Originally proposed, placed ‘‘the emphasis . . . on observable

work behavior or work product and [neglected] situations where

knowledge, skill or ability is essential to an outcome which is

not necessarily a replication of the test.’” Compare BNA Daily

Labor Report, No. 67, April 6, 1978, at A-22 with 43 Fed. Reg.

38295, Appendix G, p. A-106. If certain knowledges are identified

by an adequate job analysis as necessary to performance, then it

would seem permissible to test for such knowledges through any

reasonable medium, not excluding a multiple-choice test, so

long as no irrelevant difficulty is introduced. See, e.g., Jackson

v. Nassau County Civil Service Comm., 424 F. Supp. 1162, 14

FEP Cases 775 (E.D.N.Y. 1976); see also, Question and Answer

No. 73; Appendix I, p. A-179.

~— ee

If the decision of this Court of Appeals in this case remains

undisturbed, it is readily apparent that the effect on public

employees will be disastrous. The written competitive examina-

tion will be virtually outlawed, as will the traditional rank-

ordering of candidates on civil service employment registers,

even if done by means of assessment centers. Moreover, the use

of content validity will be foreclosed as an effective validation

strategy.

In sum, the need for clarification of the standard for issuance

of preliminary injunctions in Title VII cases affecting public

employers is plain. Judicial interference in public personnel

matters is not to be embarked upon lightly. Compare Sampson

v. Murray, supra, with Bishop v. Wood, 426 U.S. 341 (1976).

**Civil service laws, like civil rights laws, were enacted to

ameliorate a social evil,’’ and ‘‘the judiciary should act with

great reluctance in undermining traditional civil service con-

cepts.’’ Kirkland, supra, 520 F.2d 428, 11 FEP Cases 44; see

also Commonwealth of Pennsylvania v. O’Neill, 465 F.Supp.

451, 464-65, 19 FEP Cases 55, 66 (E.D.Pa. 1979). Where, as

here, the evidence clearly shows that the employer developed a

selection procedure in a professional manner, designed to pro-

duce trustworthy results, in light of a thorough analysis of the

particular job, with the assistance of minority employees, surely

the District Court may properly deny preliminary relief,

especially where the job in question directly affects the public

safety. Cf. Dendy v. Washington Hospital Center, supra; see

also Washington v. Walker, 529 F.2d 1062, 12 FEP Cases 1075

(7th Cir. 1976); McCullers v. City of Raleigh, 11 FEP Cases

1034 (E.D.N.C. 1975).

In a larger sense, it is also time to clarify the weight and

nature of the burden imposed upon employers seeking to give

= pee

and act upon the results of professionally developed ability

tests, see 42 U.S.C. §2000e-2(h)—a burden which, judging by

the reported cases, has seldom been successfully carried by

employers. ‘‘Courts must recognize that the art of psychological

testing is imprecise.’’ Johnson, Albemarle Paper Company v.

Moody: The Aftermath of Griggs and the Death of Employee

Testing, 27 Hast.L.J. 1239, 1261 (1976). Of late, it would ap-

pear that the private employer has largely abandoned the strug-

gle. Cf. Seelman, supra, 10 Urb.Law. at 71 n. 331. Public

employers, Dound by civil service laws, have an obligation to

strive to preserve the merit system so laboriously constructed in

this nation since 1883, and there does not appear to be any

sound alternative to the competitive examination. But even

public employers will soon be forced, by decisions such as that

of the Court of Appeals in this case, to foresake the principle

that ‘‘selection and advancement should be determined solely

on the basis of relative ability, knowledge, and skills, after fair

and open competition which assures all receive equal opportuni-

ty.’’ Civil Service Reform Act of 1978, 92 Stat. 1113, 5 U.S.C.

§2301(b)(1).

In Albemarle, supra, Mr. Justice Blackmun wrote of his fear

that ‘‘a too rigid application of the EEOC Guidelines will leave

the employer little choice, save an impossibly expensive and

complex validation study, but to engage in a subjective quota

system of employment selection.’’ 422 U.S. at 449, 10 FEP

Cases at 1197 (concurring opinion). With the decision of the

Court of Appeals in this case, this prophecy has come to pass.

Indeed, so rigorous has the burden on the employer become that

not even exceedingly expensive and complex validation studies

suffice. The employer is left with no choice but to engage in

race-based employment selection; and, with consummate hypo-

crisy, the Government’s own expert witnesses have advocated

a

precisely that!’ If this revisionist philosophy of ‘‘separate but

equal”’ is to be repudiated, certiorari should issue so that this

Court can review and reverse the judgment below.

C. The Court of Appeals accorded unwarranted and ex-

cessive deference to the ‘‘Questions and Answers to Clarify and

Provide a Common Interpretation of the Uniform Guidelines

on Employee Selection Procedures.”’

This Court has held that the EEOC Guidelines on employee

selection procedures, being the administrative interpretation of

Title VII by the enforcing agency, are entitled to great deference

in the courts. E.g., Albemarle Paper Co. v. Moody, supra.

While the process which led to the promulgation of the Uniform

Guidelines by the EEOC and other agencies smacks more of

bureaucratic legislation than of interpretation, see Seelman,

supra, 10 Urb. Law. 3 ff.; Comment, supra, 28 Cath. L. Rev.

608-10; BNA Daily Labor Report, No. 252, December 30, 1977,

at A-7, Petitioners do not here question that the Guidelines

themselves provide the general standard of validity for the 1979

examination.*

” “While conceding the difficulty of constructing a test for police

officers that could be validated as having job relatedness, they both

(Dr. Richard Barrett and Dr. James Fitzpatrick] testified that if tests

such as this were used, the adverse impact on minorities should be

eased by maintaining separate lists for blacks, hispanics, and whites,

and selecting from these separate lists in a way would insure equal op-

portunity to the minorities.’’ Guardians Ass’n v. Civil Service

Comm., New York City, supra, 21 FEP Cases 1467, 1472 (emphasis

added).

* In fact, Petitioners were under a mandate to follow the Guidelines

in developing the 1979 examination. See Appendix D, pp. A-66—A-67;

Appendix E. But see United States v. South Carolina, supra, 445 F.

Supp. at 1113 n. 20, 15 FEP Cases at 1214 n. 20.

Petitioners do question, however, the heavy reliance of the

Court of Appeals on the ‘‘Questions and Answers to Clarify

and Promote a Common Interpretation of the Uniform: Guide-

lines,”’ 44 Fed. Reg. 11996 (March 2, 1979); Appendix I. Many

of these Questions and Answers apparently originated with the

expert witness who testified for the Government in this case, an

individual notorious for the ease and uniformity of his criticism

of employment tests, Appendix B, p. A-38. See Barrett, EEOC

Guidelines: Accurate Interpretation a Must, 7 Assessment &

Development 1 (Feb., 1980). Surely it is inappropriate to

judicially validate one man’s (or one group’s) employment

testing theories simply because they are published by a federal

agency in the form of questions and answers.

Another problem lies in the likelihood that the Questions and

Answers will change, but the Guidelines will remain the same.

The Introduction to the Questions and Answers invites ‘‘users

and other interested persons’’ to submit additional questions.

44 Fed. Reg. 11996; Appendix I, p. A-151. Yet the purpose of the

Questions and Answers is professedly not to modify the

Guidelines. Leaving aside for the moment the significant issue

of whether the current Questions and Answers do modify the

Guidelines,’ it is apparent that routine judicial deference to the

Questions and Answers will ultimately be incompatible with

their purpose of promoting clarification and common inter-

pretation of the Guidelines, without actually modifying them.

Surely the administrative interpretation of administrative inter-

pretations of Title VII have somewhat less eclat that the Court

of Appeals would lead one to believe; otherwise the gloss will

soon swallow the text.

*It is fairly obvious that the Questions and Answers relied on by the

Court of Appeals, Appendix A, pp. A-15, A-20, seriously undercut

the testing of job knowledge in content valid examinations - which the

Guidelines recognized only by reason of a revision which was grudg-

ingly acceded to by the agencies in face of heavy criticism by Divi-

sion 14 of the American Psychological Association. See Daily Labor

Report No. 67, supra, at A-22.

a

It should be recollected that test validity cases are in substance

very similar to those involving technical medical, engineering or

economic issues, presenting factual questions which should be

resolved without validation of particular theories by judicial

decree. Note, Employment Testing and Proof of Job-

Relatedness: A Tale of Unreasonable Constraints, 52 Notre D.

Law. 95 (1976); see also Hunt, Civil Service Testing and Affir-

mative Action: A Psychologist’s Perspective, 44 U. Cin. L. Rev.

690, 695-97 (1975); Rule 702, et seq., F.R.Ev. If employers must

cope with a steady stream of ‘‘Questions and Answers’’'® as well

as with the Guidelines, there is a danger that these bureaucratic

pronouncements together will form a procrustean bed on

which advanced and novel employment testing techniques will

likely be torn to pieces — as was the assessment center in this

case, which had previously been hailed by the Court of Appeals

as an acceptable technique. Appendix D, p. A-67. Such a

development can be forestalled only by review and rejection of

the thoughtlessly deferential approach of the Court of Appeals

to the Questions and Answers in this case.

II. The Petition Ought To Be Granted Because The Decision

Of The Court Of Appeals Conflicts With Decisions Of Other

Circuits And Of The Supreme Court.

A. The manner in which affirmative relief was granted in this

case is at variance with standards articulated by the Second,

Third and Fourth Circuits.

By imposing a 33-1/3% promotion quota to achieve 26%

minority representation in the rank of fire captain, without

‘It should be noted that the questions and Answers at issue here

were not published in final form until after the examination in this

case had been developed and partially administered. Moreover, the

EEOC appears to have embraced the ‘‘Question and Answer’’ motif

in other contexts, so that the status of this technique should be

judicially determined as soon as possible. See 29 CRF §1604.10 (Ap-

pendix) (EEOC Guidelines on Sex Discrimination).

=

reference to the racial composition of the appropriate applicant

pool, the Court of Appeals has plainly ignored the clear weight

of authority in other Circuits. For example, in Association

against Discrimination, etc. v. City of Bridgeport, 594 F.2d 306,

19 FEP Cases 115 (2d Cir. 1979), the Court of Appeals for the

Second Circuit vacated the imposition of a 1:1 hiring quota and

remanded for express findings as to why the quota ‘‘required

the hiring of minorities and non-minorities in approximately a

1:1 ratio when minorities constituted only roughly 11 percent of

those who took the test.’’ 594 F.2d 311, 19 FEP Cases 119. Ih

Ostapowicz v. Johnson Bronze Co., supra, the Third Circuit

observed, ‘‘Quotas are an extreme form of relief and, while this

court has declined to disapprove their use in narrow and careful-

ly limited situations . . ., certainly that remedy has not been

greeted with enthusiasm.’’ 541 F.2d 402, 13 FEP Cases 523,

citing Pennsylvania v. O’Neill, 473 F.2d 1029, 5 FEP Cases 713

(3d Cir. 1973) (promotion quota reversed). With that, the Court

in Ostapowicz vacated an order imposing a hiring quota without

findings concerning the composition of the available work

force.'' 541 F.2d at 402, 13 FEP Cases at 523.

The need to identify and consider the appropriate applicant

pool is all the more crucial in regard to promotion quotas in the

civil service context, for, as the Second Circuit has astutely

observed, Kirkland v. New York State Dept. of Correctional

Services, supra, 520 F.2d 429, 11 FEP Cases at 45:

A hiring quota deals with the public at large, none of

whose members can be identified individually in advance.

A quota placed upon a small number of readily identifiable

candidates for promotion is an entirely different matter.

Both these men and the court know in advance that

''Admittedly, Ostapowicz was a sex discrimination case, but the

citation of Pennsylvania v. O’Neill, supra, an otherwise cryptic deci-

sion, indicates that similar reasoning would be applicable to a race

discrimination case in the Third Circuit.

—

regardless of their qualifications and standing in a com-

petitive examination, some of them may be by-passed for

advancement solely because they are white. . .'?

Influenced by these considerations, the Second Circuit reversed

imposition of a promotion quota, albeit the case was not

brought under Title VII.

The decision in this case also sharply conflicts with the ap-

proach to quota relief taken by the Fourth Circuit. In Sledge v.

J.P. Stevens & Co., supra, 585 F.2d at 646, 18 FEP Cases at

275, the Court held that, ‘‘assuming quotas are permissible

elements of remedial decrees in employment discrimination

cases, they are appropriate only under limited and compelling

circumstances.’’ The Court then proceeded to vacate the im-

position of hiring and promotion quotas in view of the fact that

alternative remedies were available and the employer was work-

ing diligently to eradicate discrimination. Id., 647-650, 18 FEP

Cases 276-79.

In light of the foregoing, it is evident that the opinion of the

Court of Appeals respecting relief in this case is not only a

departure from settled principles of law under Title VII but also

directly conflicts with decisions of the Court of Appeals for the

Second, Third and Fourth Circuits. See generally, Sledge v. J.P.

‘Ironically, in the aftermath of the decision of the Court of Ap-

peals in the case at bar, white firefighters have begun to invoke Title

VII, claiming that Petitioners have discriminated against them by pro-

moting black firefighters over them in accordance with the Court’s

order. EEOC (St. Louis) Charge No. 072801070 (Joseph Durham,

5/28/80); Charge No. 072801071 (John Welch, 5/27/80). While these

charges are frivolous on their face and should not have been accepted

for filing by the EEOC, they do illustrate the harsh impact of the

quota and likelihood of exacerbation of racial tensions. See Kirkland,

supra, 520 F.2d 429, 11 FEP Cases 45, quoting Bridgeport Guardians,

Inc. v. Bridgeport Civil Service Comm., supra, 482 F.2d at 1341, 5

FEP Cases at 1350.

=.

Stevens & Co., supra.'’ This conflict should be resolved by this

Court by reviewing and reversing the Court of Appeals in this

case.

B. The Court of Appeals’ decision on the issue of test validi-

ty in this case conflicts with decisions of the District of Colum-

bia Circuit and of this Court.

Whether the decision of the Court of Appeals in this case is

viewed as deciding only an interlocutory appeal from denial of a

preliminary injunction (which it was), 28 U.S.C. §1292(a)(1), or

as a final decision on the merits (which it frankly tried to be, see

Appendix A, p. A-25), the correctness of the Court’s judgment

must in the final analysis rest on the propriety of the approach it

took with respect to assessing the validity of the 1979 examina-

tion. Viewed in its proper context as an interlocutory appeal,

the case turned on the showing by the Government and FIRE of

substantial probability of success on the merits, as well as other

factors. The Court of Appeals, by substituting its view of the

conflicting expert testimony for that of the District Court, was

able to hold that the Government and FIRE had shown prob-

able success on the merits because Petitioners failed to

demonstrate validity of the 1979 examination. See Appendix A,

p. A-19. However, in Dendy v. Washington Hospital Center,

supra, 581 F.2d at 992, 17 FEP Cases at 1229, a case quite

similar to this, the Court of Appeals for the D.C. Circuit

discussed the issue of grant or denial of a preliminary injunction

as follows:

The court must consider: (1) the likelihood that plaintiffs

will prevail on the merits; (2) the prospect of irreparable in-

jury to plaintiffs if relief is withheld; (3) the possibility of

'*The instant case also appears to be inconsistent with other deci-

sions within the Eighth Circuit itself. See Carter v. Gallagher, supra,

452 F.2d 330-31, 4 FEP Cases 124-25; see also United States v. N.L.

Industries, Inc., supra.

a vo

harm to other interested parties . . . if preliminary relief is

granted; and (4) the public interest. Plaintiffs have the

burden of establishing a substantial case on the merits. The

merits of the case at bar will, of course, turn on whether

plaintiffs can show discriminatory impact, and on whether

defendants, in turn, can rebut this showing by

demonstrating job-relatedness. . . . The burden of

demonstrating job-relatedness is on defendants in a pro-

ceeding to decide the merits. However, on a motion for

relief pending litigation, the court may take into account

the possibility that defendant will be able to establish job-

relatedness without a determination that it has shown a

positive likelihood of doing so. Even as to issues where the

burden at trial is on defendant, when the court is of the

view that the motion for relief pending litigation (and the

attendant change in the status quo ante) threatens harm to

defendant, and the defendant has come forward with some

evidence tending to support a defense, the court may take

into account whether there is a substantial case for the

defense without requiring defendant to establish a

mathematical probability of success on the merits.

It is apparent that the Court of Appeals in the case at bar

placed a much heavier burden on Petitioners than was warranted

by the procedural context of the appeal, and a much heavier

burden that the Dendy court would require. Since Dendy and

this case represent singularly conflicting views of preliminary

relief in Title VII cases, certiorari should issue to resolve the

matter.

Perhaps more importantly, the opinion of the Court of Ap-

peals in this case - viewed as a decision on the merits - takes an

approach to validity of the 1979 examination which brings the

Eighth Circuit into direct conflict with a decision of this Court.

In United States v. South Carolina, 445 F.Supp. 1094, 15

FEP Cases 1196 (D.S.C. 1977), aff’d sub nom. National Educa-

“a ye

tion Ass'n v. South Carolina, 434 U.S. 1026, 16 FEP Cases 501

(1978), this Court summarily affirmed a decision of a three-

judge court rejecting, inter alia, a Title VII attack on the validity

of the National Teacher Examination, which excluded a

disproportionate number of blacks from teaching jobs in the

state and also affected pay scales, unfavorably for blacks. The

court found that the NTE had been proved to be content valid,

and this Court necessarily affirmed that conclusion on appeal.

See 46 USLW 3312 (1977); cf. United States v. Board of Educa-

tion, Garfield Hts., 581 F.2d 791 (6th Cir. 1978). A major part

of the validity study used in that case involved ‘‘content review

panels’’ and ‘‘minimum score panels’’ composed of experienced

teacher educators. These ‘‘expert panels’’ determined both the

content of the examination for use in South Carolina and the

minimum scores required for successful completion. See 445

F.Supp. 1112-13, 15 FEP Cases 1213-15.

Even the most superficial reading of the opinion of the Court

of Appeals reveals that the method employed by Petitioners in

constructing the 1979 examination closely parallels the method

used by South Carolina.'* See Appendix B, pp. A-36—A-38; see

also Appendix A, pp. A-16—A-18. Petitioners’ experts utilized

not only an expert panel of two white and two black fire of-

ficers, but also extensively surveyed a cross-section of all ranks

in the St. Louis Fire Department to ensure that the 1979 ex-

amination matched the content of the fire captain’s job. The

criticisms leveled by the Court of Appeals at the efficacy of this

method are virtually identical to the criticisms rejected by the

Court in United States v. South Carolina, supra. Compare 445

F.Supp. 1112-13, 1S FEP Cases 1214-15 with Appendix A, pp.

A-16—A-18. It is essential to continued utility of content valid

|

—_— us

examinations that the conflict between this case and United

States v. South Carolina be resolved by granting this Petition

and reversing the judgment below.

CONCLUSION

For the foregoing reasons, certiorari should issue to the Court

of Appeals for the Eighth Circuit so that this Honorable Court

may review and correct the decision below.

Respectfully submitted,

THOMAS A. CONNELLY

City Counselor

THOMAS J. RAY

Assistant City Counselor

ROBERT H. DIERKER, JR.

Assistant City Counselor

314 City Hall

St. Louis, Mo. 63103

(314) 622-3361

Attorneys for Petitioners

‘*It should also be noted that the examination held valid in United

States v. South Carolina, supra, was confined exclusively to tests of

knowledge and did not purport to measure teaching skills. 445

F.Supp. 1108, 15 FEP Cases 1209.