# Petition — City of St. Louis v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1981
- **Citation:** 452 U.S. 938

## Text

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 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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0053%3A1. Public record. Not legal advice.