Appendix — 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 STaTeEs OF AMERICA, ef ai.,

Respondents.

APPENDIX

To 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. DikerkeEr, 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

No.

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.

APPENDIX

To Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eighth Circuit

TABLE OF CONTENTS

Page

Appendix A — Opinion of the Court of Appeals for

the Eighth Circuit as amended on

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

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

SGFP wi balcdcnunshd ieee A-30

Appendix C — Opinion or 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

B POPE sks savssanenseuves tatiana

Appendix F — Order of the District Court, December

See

Appendix G — Statutory Provisions ...............

Appendix H — Uniform Guidelines on Employee Se-

lection Procedures (1978)............

Appendix I — Questions & Answers to Clarify & Pro-

vide a Common Interpretation of the

Uniform Guidelines on Employee

Selection Procedures (March 2, 1979) .

A-74

A-80

A-82

A-86

A-149

APPENDIX A

United States Court of Appeals

For the Eighth Circuit

No. 79-1435

Firefighters Institute for Racial Equality, er a/.,

Appellants,

VS.

The City of St. Louis, Missouri, a municipal corporation; ef al.,

Appellees.

and

Joseph Blessing, ef a/.,

Intervenors-A ppellees.

No. 79-1461

United States of America,

Appellant,

We

The City of St. Louis, Missouri, a municipal corporation; ef a/.,

Appellees,

and

Joseph Blessing, et al.,

Appellees.

Appeals from the United States District Court

for the Eastern District of Missouri.

Filed: April 9, 1980

Before LAY, Chief Judge, HEANEY, BRIGHT, ROSS,

STEPHENSON, HENLEY and McMILLIAN, Circuit Judges.

ORDER

The petitions for rehearing en banc are denied.

After a careful reexamination of the record, in the light of the

clarifications of that record supplied by the parties on their peti-

tions for rehearing, the Court withdraws pages 25 through 34

and substitutes therefor the attached pages in the opinion.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.

United States Court of Appeals

For the Eighth Circuit

No. 79-1435

Firefighters Institute for Racial Equality, er al.,

Appellants,

VS.

The City of St. Louis, Missouri, a municipal corporation; et a/.,

Appellees.

and

Joseph Blessing, ef al.,

Intervenors-Appellees.

No. 79-1461

United States of America,

Appellant,

ve.

The City of St. Louis, Missouri, a municipal corporation; ef a/.,

Appellees,

and

Joseph Blessing, et al.,

Appellees.

Appeals from the United States District Court

for the Eastern District of Missouri.

Submitted: September 13, 1979

Filed: January 17, 1980

Before HEANEY and ROSS, Circuit Judges,

and LARSON.* Senior District Judge.

HEANEY, Circuit Judge.

I.

PROCEDURAL HISTORY

This is the third appeal to come before us involving the

employment practices of the St. Louis Fire Department. We in-

itially held that a 1974 promotional examination for the position

— * yo

of fire captain had a racially disparate effect. We remanded the

matter to the district court with directions that it maintain

jurisdiction until it approved a promotional examination

validated in accordance with EEOC guidelines. Firefighters In-

stitute, Etc. v. City of St. Louis, 549 F.2d 506 (8th Cir.), cert.

denied, 434 U.S. 819 (1977). In the second appeal, we noted that

a valid promotional examination had still not been approved by

the district court, that the number of black fire captains had

decreased from four to one, and that fifty fire captain positions

were vacant. We again remanded the matter to the district court

with directions to it to order St. Louis to immediately promote

twelve qualified black firemen, and authorized it to order St.

Louis to promote an equal number of white firefighters. We fix-

ed a deadline of January 1, 1979, for validating a promotional

examination. Firefighters Institute v. City of St. Louis, Mo.,

588 F.2d 235 (8th Cir. 1978), cert. denied, 99 S.Ct. 3096 (1979).

Pursuant to our remand, the district court, on December 19,

1978, ordered the immediate promotion of twelve black

firefighters to the position of fire captain and directed St. Louis

to develop a valid promotional examination by January 1, 1979.

On December 29, 1978, St. Louis filed with the district court

a copy of its ‘‘Validation Report for the Position of Fire Cap-

tain in the City of St. Louis.’’ This report had apparently been

under preparation since the summer of 1978. The report called

for a two-part examination consisting of a written multiple

choice portion, which would be weighted 30% in the total score,

and an assessment center portion, which would be weighted

70% in the total score. The government received a copy of the

report on January 3, 1979.

*EARL R. LARSON, United States Senior District Judge, for the

District of Minnesota, sitting by designation.

=

By letter of January 29, 1979, the United States expressed to

St. Louis two areas of concern with respect to the proposed ex-

amination: the weight to be given the written portion of the test

and the manner of administration and supervision of the assess-

ment center portion of the test. The United States suggested that

the selection process proceed without resolving these concerns

so that the existence of adverse impact on blacks could be deter-

mined prior to any further litigation, a process which would ad-

ditionally delay filling the vacancies. The Firefighters Institute

for Racial Equality (FIRE), the black firefighters organization,

did not object to the suggestion. The white firefighters

organization, intervenors in the action, approved it. St. Louis

accepted the suggestion and, on February 1, 1979, it filed a

report informing the district court of the agreement to proceed

with the examination with all parties reserving their rights to

challenge the examination for failure to comport with the

guidelines after the results of the examination were known.

St. Louis administered the multiple choice portion of the ex-

amination on February 27, 1979, and informed the United

States of the results on March 13. The results showed a substan-

tial difference in the mean scores of blacks and whites.

Although the United States again noted its concern that this

portion of the test was not content valid, it agreed with St.

Louis that the selection process could proceed with the govern-

ment reserving its right to challenge the validity of the test if it

was found to impact adversely on blacks. The assessment center

portion of the examination was administered on April 9, 1979,

and thereafter was graded.

On Thursday, April 26, 1979, the Mayor of St. Louis,

without consulting either of the plaintiffs or the City Attorney’s

office, announced the results of the combined portions of the

test, proceeded to have an eligibility list certified and pro-

mulgated, and set in motion the promotion process. Sixteen

white firefighters were appointed fire captains the following

Monday morning, and seven additional whites and one black

—

were scheduled to be appointed that afternoon. The United

States learned that an eligibility list had been certified on April

26, 1979, but was assured by counsel for St. Louis that no ap-

pointments would be made for at least a week. Attorneys for the

United States and St. Louis agreed to meet on Monday after-

noon; but by the time of their meeting, sixteen white captains

had already been sworn in and thirty-two more were scheduled .

to be sworn in, eight on Monday afternoon and twenty-four on

Wednesday. The United States agreed that the eight promotions

scheduled for Monday afternoon could be made, and St. Louis

agreed to refrain from further promotion until at least May 11.'

The United States then sought and secured a temporary

restraining order from the United States District Court blocking

further appointments. A week later, on May 22, a hearing on

the government’s motion for a preliminary injunction was com-

menced. On June 4, 1979, the district court, after an extensive

hearing, denied preliminary injunctive relief, vacated its

restraining order and denied a motion for a stay pending appeal.

In the memorandum accompanying the denial, the district

court noted that notwithstanding its prior explicit directives that

any proposed selection process not be used until properly

validated, the plaintiffs had chosen to ignore the procedures

Outlined by the court and had not contested the examination

prior to its administration.’ The district court, assuming that the

'The United States consented to these promotions for two reasons:

First, the eight firefighters had already undergone the required

physical examinations and the United States preferred not to disap-

point their expectations at that late stage. Second, the fire department

had requisitioned thirty-three additional fire captain appointments,

and the United States felt that the appropriate number of black can-

didates could be assured immediate promotions.

*The court’s December 19, 1978, order read as follows:

IT IS * * * ORDERED * * * that the City of St. Louis utilize

best efforts to develop a properly validated examination for the

position of fire captain by January 1, 1979. The Court shall

— +. on

black firefighters would suffer irreparable injury if the appoint-

ments were to be made on the basis of the examination results,

held that because the plaintiffs had not established a likelihood

of success on the merits, they were not entitled to preliminary

injunctive relief. It reasoned that even though the plaintiffs had

assist in the expedition of resolving any parties’ objections to

said examination.

Its January 26, 1978, order read:

If defendants wish to assert the validity of an examination,

they shall submit to counsel for all parties at least sixty day

prior to any intended use, evidence of the validity of the

elements of the process, including a copy of the validation study

and all underlying documents or data concerning the develop-

ment of the selection process and its validity. If the parties are

unable to agree upon the valdity of the process, the process shall

not be utilized unless and until the Court determines, upon mo-

tion and such evidentiary hearing as it deems appropriate, that

the process had been properly validated.

The report to the court, filed February 1, 1979, detailed the parties’

agreement to proceed with the administration of the examination

while reserving the right to challenge its validity. For some unexplain-

ed reason, the report was not brought to the court’s attention. Given

the specific language in the court’s orders, the United States and FIRE

were remiss in their failure to file their objections prior to the date the

examination was scheduled to be administered. There is, however,

some justification for this failure. An after-the-fact examination of

the test results is essential to a determination of the examination’s

adverse impact, and a selection process which has no adverse impact is

usually not held to be in violation of Title VII and does not need to be

validated. See Uniform Guideline 1B, 43 Fed.Reg. 38,296 (1978);

Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975); Moore v.

Southwestern Bell Telephone Co., 593 F.2d 607, 608 (Sth Cir. 1979).

The agreement to delay a challenge to the validity of the examina-

tion, however, does not justify FIRE’S failure to participate in the

development of the examination or to encourage its members’ par-

ticipation. While we recognize that FIRE has only limited funds and

while we understand that it is expensive to employ an expert in in-

dustrial psychology or a related field, FIRE could have asked the

court to require St. Louis to provide money for it to hire an expert.

We also find unpersuasive FIRE’s argument that its participation in

—s

established a prima facie case of discriminatory impact, the

defendant had rebutted that case by establishing the validity and

job-relatedness of the examination process. The court conclud-

ed:

[T]he criticisms levelled at the examination simply do not

defeat the overwhelming evidence that this examination

was valid.***

Based upon the record presented to this Court, the

Court must conclude that plaintiffs have not fulfilled their

burden of establishing probable success on the merits.

Although the examination resulted in a disparate impact

upon black applicants, it was sufficiently validated. Thus,

defendants have fulfilled their obligations under the law.

Il,

CONTENTIONS OF THE PARTIES

The United States contends on appeal that the district court

erred in holding that the appellants were not likely to succeed on

the merits of their challenge to the examination. It asks this

Court to reverse the district court and to direct St. Louis to

promptly fill at least 25% of the present fire captain vacancies

with black firefighters. It also asks that St. Louis be directed to

continue to fill vacancies on a ratio of three whites to one black

the process would have operated as a waiver of its right to challenge

the examination. FIRE could certainly have participated while preser-

ving its right to challenge the use of the examination in light of any

adverse impact.

We agree with the district court that the hardening of attitudes by

St. Louis, FIRE and the white intervenors has exacerbated the already

serious problems of tension and low morale within the fire depart-

ment, but this hardening of attitude is not a reason to deny the black

firefighters relief if the examination does not comport with the

guidelines.

—

until a new eligibility list based on a properly validated examina-

tion is developed. Its contentions are generally supported by

FIRE.

St. Louis asks us to affirm the district court’s denial of

preliminary relief. It argues that the district court correctly held

that the plaintiffs were not likely to succeed in their challenge to

the validity of the examination and, further, that even if the

court erred in that determination, it correctly denied

preliminary relief because the plaintiffs had suffered no ir-

reparable injury. Finally, St. Louis contends that even if we find

the district court incorrectly denied preliminary relief, the mat-

ter must be remanded for (1) the district court’s determination

of the scope of such preliminary relief, and (2) the district

court’s final determination of the validity of the examination.

Ill.

LIKELIHOOD OF SUCCESS ON THE MERITS

In our first opinion in this case, we determined that the

EEOC guidelines applied to the development of a procedure for

selecting which of St. Louis’s firefighters should be promoted to

fire captain positions. Firefighters Institute, Etc. v. City of St.

Louis, supra, 549 F.2d at 510. We ordered St. Louis to develop

a promotional examination that was valid under those

guidelines. /d. at 513. The issue of likelihood of success on the

merits is, therefore, to be decided on the basis of whether the ex-

amination is valid under the EEOC guidelines.’ This requires a

two-step analysis: (1) Did the selection procedure have an

adverse impact on blacks? (2) If so, has St. Louis nevertheless

shown that the examination complies with the EEOC’s rules for

‘Four government agencies, including the Equal Employment Op-

portunity Commission, have adopted a revision of those guidelines

since our earlier opinion. Uniform Guideline 1A, 43 Fed.Reg. 38,296

(1978). The parties agree that these revised Uniform Guidelines con-

trol this action.

- ei

determining the validity of the selection procedure? We agree

with the district court’s finding that the procedure had an

adverse impact on blacks, but disagree with its determination

that the examination was valid.‘

A. Adverse Impact.

To determine whether blacks were adversely impacted by the

examination, we have computed the number of blacks and

whites who will be selected (1) if the sixty-two existing vacancies

in the position of fire captain are filled from the eligibility list

resulting from the examination, and (2) if the 120 expected pro-

motions are made from the same eligibility list.’

An analysis of the examination results reveals that, in filling

the ex’sting 62 vacancies, 58 of the 348 white firefighters who

completed the examination (16.7%) will be promoted while only

four of the 56 blacks who completed the examination (7.1%)

will be selected. It follows that the black selection rate will only

be 42.5% that of whites. This rate is substantially below the

80% rate established in the Uniform Guidelines on Employee

‘In deciding to deny a preliminary injunction, the district court ap-

plied the ‘traditional standard’’ under which the plaintiffs were

obligated to establish (1) a strong probability that they would succeed

on the merits at trial, and (2) a likelihood that they would suffer ir-

reparable harm without preliminary injunctive relief. Doran v. Salem

Inn, Inc., 422 U.S. 922, 931 (1975); Young v. Harris, 599 F.2d 870

(8th Cir. 1979). We accept this standard for the purposes of this ap-

peal. We reverse the district court because we believe that certain of its

factual findings were unsupported in the record and because it made

errors Of law which are set forth in detail in the opinion.

These figures include the twenty-four promotions which have

already been made on the basis of this examination.

—

Selection Procedures* as a rule of thumb for determining

whether employer policies or practices have an adverse impact

on employment opportunities for any race.’

A similar analysis reveals that 112 of the whites who com-

pleted the examination (32.2%) will be selected for promotion

to the 120 expected positions while only eight of the blacks

(14.3%) will be selected. Thus, the selection rate for blacks will

be only 44.4% that of whites. This rate is also substantially

*Section 4D, 43 Fed.Reg. 38,297 (1978), provides:

A selection rate for any race * * * which is less than four-fifths

(4/5) (or eighty percent) of the rate for the group with the

highest rate will generally be regarded by the Federal enforce-

ment agencies as evidence of adverse impact, while a greater

than four-fifths rate will generally not be regarded by Federal

enforcement agencies as evidence of adverse impact.

We find no merit to St. Louis’s contention that the pool of black

applicants was too small to exhibit adverse impact under the

Guidelines. Harper v. Trans World Airlines, Inc., 525 F.2d 409 (8th

Cir. 1975), is inapposite because the selection pool in that case con-

sisted of only five persons while sixty-five blacks took the written ex-

amination in this case. Moore v. Southwestern Bell Telephone Co.,

593 F.2d 607 (Sth Cir. 1979), relied on by the appellees, is also inap-

posite because no adverse impact under the 80% rule was shown

where the black selection rate was approximately 93% that of the

whites. We likewise find no merit to St. Louis’s contention that the

selection pool was inappropriate or atypical because of the prior

court ordered appointment of twelve blacks. Twelve whites were also

appointed and the pool of black qualified applicants may have been

larger had blacks not been discriminated against in hiring by the fire

department for many years.

"If the written portion of the test alone is considered, the selection

rate for blacks would only be 20.1% that of whites. If only the assess-

ment center portion is considered, the black selection rate would be

54.3% that of whites.

— A-12 —

below the 80% rate established in the guidelines.* It follows that

the examination impacts adversely on blacks.

B. Validity of the Examination

Having determined that the selection procedure had an

adverse impact on blacks, we turn to the question of whether

the procedure is valid under the Uniform Guidelines. St. Louis

attempted to establish the validity of the examination? through a

process known under the guidelines as content validation.

Uniform Guideline 5A, 43 Fed.Reg. 38,298 (1978).

(1) The Multiple Choice Portion of the Examination.

In our view, the multiple choice portion of the examination is

not content valid under the Guidelines.'° Because the test is a

written, multiple choice examination purporting to select those

firefighters who can be expected to perform the best in a

physical, stressful job, empirical evidence that the examination

will actually accomplish that goal is required. None has been

presented.

‘If the written portion of the test is considered alone, the selection

rate for blacks would only be 42.7% that of whites. If the assessment

center portion only is considered, the black selection rate would be

75.6% that of whites.

*Although the selection procedure included physical, year-in-service

and satisfactory grade requirements as well as the examination, we do

not understand the plaintiffs to be challenging any portions of the

procedure other than the two-part examination.

'°Neither St. Louis’s good intentions nor the size of its expenditure

is determinative of the issue of whether the examination is content

valid. See United States v. San Diego County, 20 EPD 430,154 (S.D.

Cal. July 6, 1979).

— A-13 —

The job of fire captain in the St. Louis Fire Department in-

volves the fighting of fires, the supervision of firefighters at the

scene of a fire, the instruction and training of firefighters at the

firehouse, and the maintenance of good morale and working

relationships within the captain’s group. The captain’s job does

not depend on the efficient exercise of extensive reading or

writing skills, the comprehension of the peculiar logic of multi-

ple choice questions, or excellence in any of the other skills

associated with outstanding performance on a written multiple

choice test. Because of the dissimilarity between the work situa-

tion and the multiple choice procedure, greater evidence of

validity is required."'

The multiple choice test consisted of 130 items. The items

were drawn from a list of knowledges and abilities,'? which were

developed from a list of a fire captain’s job tasks.'* The can-

1! TAs] the setting and manner of the administration of the selec-

tion procedure less resemble the work situation, * * * the less likely

the selection procedure is to be content valid, and the greater [is] the

need for other evidence of validity.”’ Uniform Guideline 14C(4) (em-

phasis added). 43 Fed.Reg. 38,302 (1978).

12 A test of knowledges and abilities may be used it it measures a

representative sample of knowledges, skills or abilities that (a) are

necessary to performance of that job, and (b) are operationally de-

fined in Guideline 14C(4). Uniform Guideline 14C(1). 43 Fed.Reg.

38,302 (1978). If a knowledge is to be measured, it must be defined in

terms of behavior and it must be part of a body of learned informa-

tion that is actually used in and necessary for critical or necessary job

behaviors that are observable. Uniform Guideline 14C(4), 43

Fed.Reg. 38,302 (1978). If an ability is to be measured, the ability

must be defined in terms of observable aspects of job behavior and

should be an ability actually used in and necessary for the perfor-

mance of critical or important work behaviors. /d. Any selection pro-

cedure measuring an ability should closely approximate an observable

work behavior. /d.

') The plaintiffs do not contest the adequacy of the description of

job tasks and behaviors under the Guidelines.

— se

didates were required to choose one correct response for each

item, and the tests were graded exclusively on the basis of the

number of ‘‘right’’ answers. These scores were then computed

with the assessment center scores to determine each candidate’s

rank in the overall selection process. Because these test results

were used to rank candidates, St. Louis must prove that the

results are associated with different levels of job performance. '‘

The EEOC’s ‘‘Questions and Answers,’’'’ which provide

uniform interpretations and explanations of the Guidelines, ex-

plicitly address the requirements for using written examinations

which measure knowledge to rank job candidates. They specifi-

cally require empirical evidence that mastery of more knowledge

is linked with better performance on the job.

‘* “Where a selection procedure supported solely or primarily by

content validity is used to rank job candidates, the selection procedure

should measure those aspects of performance which differentiate

among levels of job performance.’’ Uniform Guideline 14C(9), 43

Fed.Reg. 38,303 (1978).

“The evidence of both the validity and utility of a selection pro-

cedure should support the method the user chooses for operational use

of the procedure, if that method of use has a greater adverse impact

than another method of use. Evidence which may be sufficient to sup-

port the use of a selection procedure on a pass/fail (screening) basis

may be insufficient to support the use of the same procedure on a

ranking basis under these guidelines.’’ Uniform Guideline 5G, 43

Fed.Reg. 38,298 (1978).

'* These Questions and Answers were adopted by the four agencies

that promulgated the Uniform Guidelines. Their intent is to ‘‘interpret

and clarify, but not to modify, the provisions of the Uniform

Guidelines.’’ 44 Fed.Reg. 11,996 (1979). Such interpretations are en-

titled to great deference by the court, especially where, as here, the

Guidelines themselves are highly technical and somewhat difficult for

those untrained in test construction to comprehend.

“*Since this involves an interpretation of an administrative

regulation a court must necessarily look to the administrative

construction of the regulation if the meaning of the words used

~~ Ants

Any conclusion that a content validated procedure is ap-

propriate for ranking must rest on an inference that higher

scores on the procedure are related to better job perfor-

mance. The more closely and completely the selection pro-

cedure approximates the important work behaviors, the

easier it is to make such an inference. * * *

Where the content and context of the selection pro-

cedure are unlike those of the job, as, for example, in

many paper-and-pencil job knowledge tests, it is difficult

to infer an association between levels of performance on

the procedure and on the job. * * * To justify use of such

a test for ranking, it would also [in addition to tying tested

knowledges to work behaviors] have to be demonstrated

from empirical evidence either that mastery of more dif-

ficult work behaviors, or that mastery of a greater scope of

knowledge corresponds to a greater scope of important

work behaviors.

Question and Answer No. 62, 44 Fed.Reg. 12,005 (1979) (em-

phasis added).

Nothing in the record can be construed as empirical evidence

of an association between levels of performance on the multiple

choice examination and on the job.'* St. Louis, in its descrip-

is in doubt. * * * [T]he ultimate criterion is the administrative

interpretation, which becomes of controlling weight unless it is

plainly erroneous or inconsistent with the regulation.”’

Udall v. Tallman, 380 U.S. 1, 16, 17 (1965), citing Bowles v. Seminole

Rock & Sand Co., 325 U.S. 410, 413-414 (1945). See generally K.

DAVIS, Administrative Law Treatise §7.22 (2d ed. 1979).

'6 Webster’s New World Dictionary defines ‘‘empirical’’ as:

1. relying or based solely on experiment and observation

rather than theory [the empirical method] 2. relying or based on

practical experience without reference to scientific principles [an

empirical remedy].

See Western Addition Community Organization v. Alioto, 360

F.Supp. 733, 736 n.5 (N.D. Cal. 1973).

— A-16 —

tion of the development of the test items, explained that each

member of the expert panel, which consisted of two fire cap-

tains and two deputy chiefs, examined each test item and in-

dicated whether he thought it required basic knowledge or ad-

vanced knowledge. The form on which the panel members made

this evaluation described ‘‘advanced’’ as _ performance-

differentiating. St. Louis’s expert also testified that the expert

panel analyzed the tested knowledges and abilities to determine

whether they were performance-differentiating. These exercises

by the panel members, however well-intentioned, are not a form

of empirical evidence. They are basically opinion and conjec-

ture, not actual observation of the correlation between the ex-

tent of mastery of the knowledges or abilities sought to be

measured by the test and job performance.'’

The requirement of empirical evidence to sustain the validity

of the multiple choice test is logical and consistent with the spirit

of the Guidelines. A procedure that selects candidates on the

basis of their performance on a test that closely mirrors actual

job behavior would, understandably, be more likely to ac-

curately predict how well the candidates will do on the job. The

Questions and Answers offer an example of such a selection

procedure. An employer may use a typing test to select persons

to fill a job that consists almost entirely of typing. Question and

Answer No. 62, 44 Fed.Reg. 12,005 (1979). It is fairly easy to in-

'? We do not rest our decision on the validity of the multiple-choice

test on Dr. Richard Barrett’s testimony that the demonstrated

reliability coefficient of .84 was not sufficiently high for a valid ex-

amination. Mr. Edmund Knowles, the expert witness for St. Louis,

testified that a reliability coefficient of .84 was sufficient and we do

not quarrel with the district court’s finding that the test was reliable.

However, a showing of reliability does not end the matter. All such an

analysis shows is that those persons who did the best on the examina-

tion tended to do the best on most of the same questions and that

those who did less well on the test tended to do less well on most of the

same questions. The principal criticism of the multiple choice test is

that there is no showing that those persons who received the highest

scores on the test would, in fact, perform the best as fire captains.

— <p

fer that such a test is job related and that, if fairly administered,

its results might be used in spite of a showing of adverse impact.

A different situation exists here, however, and justifies the re-

quirement of additional evidence of validity. A fire captain’s

job is a physical, hands-on job. It involves complex behaviors,

good interpersonal skills, the ability to make decisions under

tremendous pressure, and a host of other abilities—none of

which is easily measured by a written, multiple choice test. The

development of this type of test requires many stages and levels

of analysis and a mistake at any stage can destroy the validity of

the examination. If the knowledges chosen to be tested are not

appropriate to the job, are poorly articulated, are incomplete in

some respect or over-emphasize some aspect of work behavior,

the examination will be invalid. If the knowledges are not ac-

curately weighted, or if the test disproportionally samples the

knowledges, the examination will be invalid. If the test ques-

tions are poorly drawn, incomplete or simply inappropriate for

sampling the knowledges sought, the examination’s validity is

destroyed to the extent of those deficiencies. Because of all these

potentials for error, it is logical and reasonable to require some-

thing concrete to validate an examination which has an adverse

impact on blacks.

The multiple choice test has not been shown to be content

valid for the additional reason that St. Louis has not shown that

the selection procedure measures ‘‘those aspects of performance

which differentiate among levels of job performance.”’ Uniform

Guideline 14C(9), 43 Fed.Reg. 38,303 (1978). We are not

satisfied with the expert panel’s method of predicting the ability

of an item to differentiate job performance based on whether it

required basic or advanced knowledge. Dr. Richard Barrett, the

plaintiff’s expert witness, testified that the task of predicting the

actual difficulty of test items is itself very difficult, even for a

trained industrial psychologist. He expressed great doubts about

the ability of an expert panel, untrained in matters of test con-

struction, to make that determination. Even if the panel was

— A-18 —

capable of making this determination, however, its results do

not support use of the test for ranking. The panel decided that

77 of 130 test items were basic and that only 53 were advanced

or performance-differentiating. There is no showing in the

record that the number of each type of item in the advanced

group was proportionate to the weight which the expert panel

assigned to the corresponding knowledge or ability. We are left

with a group of 53 items which the panel declared to be perfor-

mance-differentiating but which have not been shown to be cor-

related with the importance of the knowledges and abilities they

tested.

The results of the multiple choice examination reveal another

problem with its use as a ranking device. Ninety percent of the

examinees correctly answered 30% of the 130 items, and 80% of

the candidates correctly answered 50% of the questions. This

again demonstrates a reliance on a relatively small number of

test items to rank the candidates. Further, there has been no

showing that these more difficult items correlate in number or

difficulty with the knowledges and abilities thought to be

performance-differentiating.

Moreover, a large portion of the multiple choice test, viewed

by itself, reveals additional infirmities. Twenty of the 130 items

purport to test a candidate’s ‘‘ability to size up a fire.’’ Since

this is a test of an ability rather than a knowledge, the Uniform

Guidelines require the test itself to ‘closely approximate an

observable work behavior.’’? Uniform Guideline 14C(4). St.

Louis does not argue that writing a multiple choice examination

closely approximates firefighting. Thus, the pool of items on

which St. Louis can rely in arguing that its measurement of test

performance differentiates among levels of job performance is

again reduced. What remains is a series of questions that we

cannot say are representative of the necessary performance-

differentiating knowledges and abilities.

— A-19 —

Many additional criticisms of the multiple choice examination

were offered at the hearing by Dr. Barrett and by Captain

Daniel Austin, a twenty-seven-year fire department veteran. We

do not intend to go into them in detail. We note, however, that

several were substantive in nature, suggesting that the examina-

tion measured items of knowledge that were not necessary for

successful performance of a fire captain’s job, and several were

more technical, criticizing the construction of the test items

themselves.'* To the extent that these criticisms are valid, they

again reduce the pool of potentially performance-differentiating

items and weaken the case for the examination’s validity.

On the basis of the record before us, we cannot find that St.

Louis has shown the multiple choice portion of the examination

to be valid under the Uniform Guidelines. We hold that the

district court incorrectly applied the Guidelines in determining

that the plaintiffs had little probability of success on the merits

of their action.

(2) The Assessment Center.

We turn now to the validity of the assessment center portion

of the examination. This section of the examination consisted of

three parts: a fire-scene simulation, in which the candidates

were shown slides of a large fire and were asked to respond in

writing to questions regarding their observations and what

orders they might give; a training simulation, in which each can-

'* For example, Questions 126 and 130 require knowledge of the

diameter of certain water mains and of the number of pumping sta-

tions in St. Louis, and Questions 62 and 63 require knowledge of cer-

tain elements of window and stair construction. Captain Austin

testified that these are not items of knowledge which are necessary for

the performance of a fire captain’s duties. Examples of questions of

which technical criticism were made include Question 90, which refers

to the phases of a fire in terms that Captain Austin testified are not

commonly used by fire captains, and Question 86, which contains

double negatives that make it difficult to comprehend.

—<

didate prepared and presented an informational lecture, similar

to one he might give at the firehouse, from printed materials

given to him; and an interview simulation, in which each can-

didate, playing the role of a fire captain, interacted with a per-

son playing the role of a firefighter involved in a personal con-

frontation with another firefighter. In each of the second two

simulations, the candidates were physically observed by three

assessors who later conferred to evaluate the candidates.

The fire scene simulation is also a paper-and-pencil test which

is far removed from the content and context of the candidate’s

actual work behavior. To justify the use of this portion of the

examination as a ranking device, St. Louis is again required to

demonstrate ‘‘from empirical evidence either that mastery of

more difficult work behaviors, or that mastery of a greater

scope of knowledge corresponds to a greater scope of important

work behaviors.’’ Question and Answer No. 62, 44 Fed.Reg.

12,005 (1979). Once again, we find no such empirical evidence

in the record.

Further, the interpretations of the Guidelines specifically

discuss the content validity of a paper-and-pencil test which is

intended to replicate work behaviors. Question and Answer No.

78 provides that

[p]aper-and-pencil tests which are intended to replicate a

work behavior are most likely to be appropriate where

work behaviors are performed in paper and pencil form

(e.g., editing and bookkeeping). Paper-and-pencil tests of

effectiveness in interpersonal! relations (e.g., sales or super-

vision), or of physical activities (e.g., automobile repair) or

ability to function properly under danger (e.g., fire-

fighters) generally are not close enough approximations of

work behaviors to show content validity.

44 Fed.Reg. 12,007 (1979).

— A-21 —

The fire scene simulation was a paper-and-pencil test that re-

quired written answers to questions about a slide presentation.

It was intended to replicate the work behaviors which a fire cap-

tain would undertake in response to the scenes depicted in the

slides. The test sought to measure the candidate’s ability to

observe the situation depicted in the slides and to decide on the

correct course of responsive action, including his projected

physical actions, his supervision of the firefighters under his

command and his ability to deal with the dangers of the situa-

tion. It seems to fall squarely within the scope of Question ana

Answer No. 78 as a test which is not a close enough approxima-

tion of a work behavior to show content validity. Once again,

this outcome is supported by logic and reason. The fire scene

simulation, like the multiple choice examination, cannot avoid

testing the candidate’s proficiency in the written exercise of ver-

bal skills which is certainly not a critical or necessary job

behavior for a fire captain. The candidates may be very profi-

cient at assessing the scene of a fire and issuing the appropriate

oral orders but ineffectual in communicating those orders in

writing. It may be that such a simulation test requiring oral

responses could be shown to be valid by a content validity

study. '°

The appellants also criticize two aspects of the validity of the

administration of the assessment center portion of the examina-

tion. First, they note that each candidate was observed for a

very short period of time. The candidates were not observed at

all during the fire scene simulation and were observed for a total

'? The Guidelines provide that the validity of a selection procedure

may be shown by criterion-related validity studies, content validity

studies or construct validity studies. 29 C.F.R. §1607.5 (1979). Here,

the City did not rely on criterion-related studies or construct studies

but attempted to establish content validity. As noted above, the cir-

cumstances of a multiple-choice examination are so dissimilar from

the work situation as to make it impossible to establish job relatedness

through a content validity study. Similarly, requiring written answers

to the simulation test questions tends to vitiate any showing of content

validity.

— A-22 —

of only about thirty minutes during the other two exercises. We

consider this to be a substantial criticism, especially considering

the Guidelines’ requirement of additional evidence to validate a

procedure for ranking candidates, rather than for ascertaining

minimum competence. Second, they criticize the assessor’s role

in the administration of the examination. They argue that the

steps taken to assure the thoroughness of the training of the

assessors and uniformity of evaluation among the various

assessor groups was not sufficient.*° These arguments are not

without merit. The Validation Report filed in December, 1978,

anticipated the use of fifty to sixty assessors for whom at least

three to four days of training would be necessary to assure stan-

dardization of assessment. In fact, seventy-eight assessors were

used. Those assessing the interview and training simulations

received only two days of training, and those assessing the fire

scene received one day of training.

During this training, twenty-six assessors participated in an

exercise designed to demonstrate the reliability of their scores.

Although the district court was persuaded by the results of this

exercise, we are not. The raw data show substantial variance

among the ratings given by the assessors in the exercise. The

statistical coefficients of correlation derived by St. Louis from

this exercise give an incomplete picture of the reliability of the

procedure. First, the coefficient does not measure the dif-

ferences in scores given by the assessors, but measure only the

correlations in their relative ratings. For example, one assessor

might give three scores to three individuals—a four and two

fives—and another assessor might give scores of one, two and

two. The analysis used to produce the coefficients of correlation

*° Each assessor evaluated sixteen candidates, and three assessors

simultaneously evaluated each candidate’s performance on the

simulation. Each group of three assessors met one to three days later

to attempt to reach a consensus on the candidate’s performance on

each portion of the evaluation.

— A-23 —

results in those sets of scores correlating perfectly, even though

the actual ratings differ. Second, the analysis does not add. ess

the reliability of the assessment of the candidate’s behavior, but

only of the scoring procedure. This missing piece of analysis is

an important aspect of the reliability of the assessment center

portion of the examination.

Although we share the plaintiffs’ concerns over these aspects

of the assessment center portion of the examination, we would

be hesitant to hold that the district court erred in sustaining the

validity of the interview and training portions of the examina-

tion. These latter portions more closely comply with the spirit of

the Guidelines than does either the multiple choice examination

or the fire scene simulation. But these sections do not stand

alone. They are a part of an overall selection procedure which

we hold to be inconsistent with the Guidelines. We include our

comments only for the purpose of guiding the parties in for-

mulating a new selection procedure that will be entirely consis-

tent with the Guidelines.

IV.

EQUITABLE RELIEF

A. Interim Relief.

Having held that the appellants are likely to succeed on the

merits, we must remand this matter to the district court.’

Because St. Louis promoted twenty-four firefighters without

"In denying plaintiffs’ motion for a preliminary injunction, the

district court assumed without deciding that the denial of preliminary

relief would constitute irreparable harm. In our view, the plaintiffs

have demonstrated irreparable injury as a matter of law. Twenty-three

white firefighters have been promoted on the basis of an examination

which has not been validated. The promotion of still more firefighters

on the basis of the present eligibility list, nearly all of whom would be

white, would work a great injustice on the black fire captain can-

didates whose promotions have been delayed for years. The effects of

i —

awaiting a determination of whether its selection procedure was

content valid, the question of the scope of preliminary injunc-

tive relief is a very difficult one. We do not hesitate to require

interim relief to ameliorate the effects of the twenty-four pro-

motions, especially in view of the harm that may accrue to the

careers of qualified black candidates due to St. Louis’s untimely

promotions. See n. 21 supra. However, in light of the already

chaotic and demoralized condition of the fire department, we

do not feel that the demotion of the twenty-three whites and one

black is an appropriate alternative.

The only other available alternative is to require that a

number of blacks be promoted to the position of fire Captain

and that their effective promotion date be the same as that tof

the twenty-four previously appointed captains. While such pro-

motions will undoubtedly also contribute to the tension within

the department, we feel that the history of discrimination

against blacks in the St. Louis Fire Department requires such af-

firmative relief. Firefighters Institute v. City of St. Louis, Mo..,

supra, 588 F.2d at 240-241. See Albemarle Paper Co. v. Moody,

supra at 418; United States v. City of Chicago, 573 F.2d 416,

429 (7th Cir. 1978); United States v. City of Chicago, 549 F.2d

415, 436-437 (7th Cir.), cert. denied, 434 U.S. 875 (1977);

Kirkland v. New York St. Dept. of Correctional Serv., $20 F.2d

420, 429-430 (2d Cir. 1975), cert. denied, 429 U.S. 823 (1976).

We next must determine the number of black firefighters to

be promoted to fire captain and the standard by which those to

be promoted will be selected. Although there is no ideal solu-

tion, it appears that the best solution is to require St. Louis to

these continual delays in the promotions of blacks in the department

do not end at the fire captain position. At oral argument, counsel for

the United States pointed out that an additional five years of service is

required as a prerequisite for eligibility for promotion to the battalion

chief position. Since the promotional examination for that position is

given fairly infrequently, any delay in the promotions of blacks will

adversely affect their chances of further advancement in the depart-

ment.

— A-25 —

immediately promote eight additional black firefighters to the

position of fire captain. The promotion of eight additional

black firefighters will bring the percentage of black fire captains

to 16.6%. which will be an important step towards equating the

proportion of black fire captains to that of black firefighters in

the department.”? There is also no ideal solution to the question

of which black firefighters should receive these promotions. In

our view, the assessment center portion of the examination

comes the closest to comporting with the Guidelines and would,

thus, be the fairest basis for the selection of the eight black

firefighters.

B. Longer-Term Relief.

In Section III of this opinion, we held that St. Louis had not

established the content validity of its examination. Although the

district court heard the evidence on a motion for preliminary

relief, the parties presented, and the court considered, ex-

haustive evidence contesting and supporting the issue of validi-

ty. We are not aware of any excluded evidence in support of

validity which would be brought forward in the final hearing on

the merits of the action. It appears that the district court viewed

its decision as a final determination of the merits of the action.

In light of these facts, we are inclined to consider our opinion

dispositive of the question of validity. If, however, the district

court is convinced that St. Louis can offer additional, non-

cumulative evidence to prove the validity of the examination

under this Court’s in‘erpretation of the Uniform Guidelines, the

district court may receive such evidence and make its decision

on the merits of the case on the entire record. If not, however,

St. Louis has no recourse but to develop a new examination for

the position of fire captain which is fully consistent with this

Presently, 22% of the department’s approximately 900 uniformed

personnel are black, and 27% of those in the entry-level firefighter

position are black.

— A-26 —

opinion and the Guidelines, and to do so promptly. The United

States and FIRE are obligated to participate with St. Louis in

developing such an examination. FIRE has a further obligation

to encourage its members to participate actively in the formula-

tion of a valid examination. It would be highly inappropriate

for FIRE to ‘“‘lie in the weeds’’ until the results of a new ex-

amination are known. As we have indicated earlier, their par-

ticipation in the preparation of an examination does not bar

their right to contest the validity of the examination if it proves

to have an adverse impact.

All of the parties and their experts should work together to

formulate an examination that will be fully consistent with the

Guidelines and this opinion. The district court should, upon the

request of FIRE and the white firefighters’ organization, re-

quire St. Louis to pay a reasonable fee to experts who can assist

each of the groups in the preparation of a valid examination.

This leaves yet another question for our determination. St.

Louis stated at oral argument that sixty-two vacancies presently

exist in the fire captain position, and fifty-eight additional

vacancies are predicted to occur over the next two years.’ St.

Louis has filled twenty-four of the sixty-two present vacancies,

and we have required it to fill eight more in this opinion.

St. Louis has predicted additional problems with department

morale if promotions are made from an examination which has

not been validated, and we share its concern over tizis possibiii-

ty. Nevertheless, we believe, for several reasons, that the present

vacancies m .. be filled promptly and at least thirty of those

which arise between now and the development of an eligibility

list from a properly validated examination must be filled as they

occur. First, St. Louis has urged the importance of restoring the

“The number of expected vacancies in the position in the near

future is greater than usual because of a recent change in the depart-

ment’s retirement rules.

om elt we

department to full strength, stressing that the efficiency of its

firefighting services has been jeopardized by the lack of perma-

nent fire captains. Second, as we previously stated, permitting

additional delays in the promotional process will increase the

harm which will accrue to black candidates by delaying their

possible promotions to a higher rank. Third, a field of can-

didates eligible for promotion exists because all the firefighters

who completed the assessment center portion of the examina-

tion had met the department’s requirement of five years’

satisfactory service (‘‘an average rating of ‘Adequate’ or above

on the most recent Service Rating’’) as a firefighter or fire

prevention inspector. Moreover, all of the persons who took the

assessment center portion of the examination had received a

passing frade in the multiple-choice portion of the examination.

Fourth, we suspect there has been a certain amount of foot-

dragging by St. Louis,’* which has benefited financially by leav-

ing many of the positions of fire captain vacant and using

firefighters to perform the fire captain’s duties. Fifth, we feel

that the new examination can be prepared, given and graded

before more than thirty additional vacancies occur.

We, therefore, feel that the only satisfactory solution to this

problem lies in the immediate promotion of firefighters to fill

the existing vacancies, and to fill the first additional thirty

vacancies as they occur. St. Louis must fill these vacancies on

the basis of one black firefighter for each two white firefighters

that are promoted to the position of fire captain.?* These

“We extensively discussed the City’s recalcitrance in our last opi-

nion, Firefighters Institute v. City of St. Louis, Mo., 588 F.2d 235,

240-241 (1978), cert. denied, 99 S.Ct. 3096 (1979).

251f all these promotions are made on this basis, blacks will hold ap-

proximately twenty-six percent of the fire captain positions.

~~

q

firefighters are to be chosen for promotion on the basis of their

rank on the assessment center portion of the examination.

V.

SUMMARY

The district court’s order of June 2, 1979, is vacated and the

matter is remanded to the district court, which shall take the

following action:

1. It shall order the City of St. Louis to promptly appoint to

the position of fire captain those eight black firefighters who

received the highest scores on ihe assessment center portion of

the examination, with effective promotion dates of April 30,

1979,

2. It shall order St. Louis to promote firefighters to fill the

remaining thirty existing vacancies and the first thirty additional

vacancies that occur prior to a final resolution of this matter in

accordance with Section IV of this opinion.

3. It shall promptly determine whether it will receive addi-

tional evidence of the validity of the examination under the

Guidelines.

4. If it decides it will not receive additional evidence of the

validity of the examination, it shall

(a) order the parties and intervenors to proceed to

promptly develop a valid examination; and

(b) require St. Louis, on the request of FIRE and the

intervenors, to make reasonably sufficient funds available

to FIRE and the intervenors to permit expert assistance for

each group.

5. If it decides it will receive additional evidence of the validi-

ty of the examination, it shall hold its hearing on this issue as

con el ain

soon as practicable. If it then determines that the examination is

invalid, it shall enter an order in conformance with paragraph 4

above.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIR-

CUIT.

— A-30 —

APPENDIX B

UNITED STATES DISTRICT COURT

EAS’*ERN DISTRICT OF MISSOURI

EASTERN DIVISION

No. 74 C 30 (3)

Firefighters Institute For Racial Equality, et al.,

Plaintiffs,

VS.

City Of St. Louis, Missouri, et al.,

Defendants.

No. 74 - 200 C (3)

United States Of America,

Plaintiff,

Vs.

City Of St. Louis, et al.,

Defendants.

ORDER

Pursuant to the memorandum filed this date,

IT IS HEREBY ORDERED that plaintiffs’ application for

preliminary injunction be and is denied.

IT IS FURTHER ORDERED that the temporary restraining

order, previously entered herein, be and is dissolved.

/s/ John F. Nangle

UNITED STATES DISTRICT JUDGE

Dated: June 4, 1979.

— A-31 —

MEMORANDUM

This matter is before the Court upon the application of plain-

tiffs for a preliminary injunction prohibiting defendants from

promoting any individual to the position of fire captain based

on the results of the 1979 examination for said position. On

May 15, 1979, this Court issued a temporary restraining order

prohibiting promotions. On May 22, 1979, the temporary re-

straining order was extended, for good cause shown, pending

completion of the introduction of evidence relating to the validi-

ty of the examination in question. Rule 65, Federal Rules of

Civil Procedure.

Originally, this action was brought by black firefighters and

the United States Department of Justice, alleging racially

discriminatory practices in the St. Louis Fire Department. Pur-

suant to the mandate of the appellate court, Firefighters In-

stitute for Racial Equality v. City of St. Louis, 549 F.2d 506 (8th

Cir. 1977), the matter. was remanded to this Court in part to ex-

ercise continuing jurisdiction over the cause pending develop-

ment of a valid promotional examination. Following remand,

various orders of this Court were issued which are relevant

herein. Particularly noteworthy are the following portions of

orders of this Court:

IT IS FURTHER ORDERED, ADJUDGED, and DE-

CREED that the City of St. Louis utilize best efforts to

develop a properly validated examination for the position

of fire captain by January 1, 1979. The Court shall assist in

the expedition of resolving any parties’ objections to said

examination. December 19, 1978 order issued herein. [em-

phasis added]

If defendants wish to assert the validity of an examination,

they shall submit to counsel for all parties at least sixty

days prior to any intended use, evidence of the validity of

the elements of the process, including a copy of the valida-

tion study and all underlying documents or data concern-

— A-32 —

ing the development of the selection process and its validi-

ty. Lf the parties are unable to agree upon the validity of

the process, the process shall not be utilized unless and un-

til the Court determines, upon motion and such eviden-

tiary hearing as it deems appropriate, that the process has

been properly validated. January 26, 1978 order issued

herein. [emphasis added]

Notwithstanding these explicit directives, plaintiffs chose to ig-

nore the procedure outlined by the Court. Plaintiffs did not

contest the examination prior to its administration. Instead,

defendant incurred the expense of its administration, estimated

at over $20,000.00. Examination scores were computed and

posted. Not until promotions were about to be made, and after

expectations of promotions of individual firefighters had been

raised, did plaintiffs seek to contest the validity of the examina-

tion process.

Sadly, the parties have hardened their attitudes rather than

conscientiously working together toward a common goal - the

finest possible firefight’ g units for the City of St. Louis. There

have been letters to the newspapers and to this Court which ap-

prove as well as criticize the written portion of the Assessment

Center portion of the examination. There have been suggestings

of cheating, although the evidence offered did not reveal any

racial connection with respect to the alleged cheating. Tensions

have been greatly exacerbated. Over and above all of this, there

is a serious problem. The development, administration and

evaluation of an examination requires time, which the St. Louis

Fire Department can no longer afford if it is to properly protect

the citizens of the city of St. Louis. The testimony of the Chief

of the St. Louis Fire Department, Charles Kamprad, as well as

that of Captain Daniel Austin, reveal widespread problems with

morale. Captain Austin stated that these problems resulted

from the examination process and the posting of scores with

resulting expectations on the part of certain firefighters who an-

ticipated promotions, and disappointment on the part of those

— A-33 —

who did poorly. Chief Kamprad testified as to the impact of the

unfilled positions not only upon morale but upon the efficiency

of the department as a whole. There are approximately 55

vacancies at the present time in the position of fire captain.

Chief Kamprad estimated that there would be 120 vacancies

during the next two years, the life of the promotional list

prepared as a result of the 1979 examination. He said morale

was lower than he had seen it in many years and cited instances

of the effect of this in fighting fires.

The issue to be decided by this Court at this juncture in the

proceedings is whether plaintiffs have established ‘‘a clear

showing of probable success and possible irreparable injury”’

based upon plaintiffs’ claim that the examination was not prop-

erly validated. Checkers Motor Corporation v. Chrysler Cor-

poration, 405 F.2d 319, 323 (2d Cir. 1969) (emphasis in

original). See also Dino DeLaurentiis Cinematografica, S.p.A.

v. D-150, Inc., 336 F.2d 373 (2d Cir. 1966); American Smelting

and Refining Company v. Pennzoil United, Inc., 295 F.Supp.

149 (D.Dela. 1969) adding the factor of balance of hardships.

The Court will assume, without deciding, that promotions

based upon an invalid examination having a disparate impact

sufficiently establishes possible irreparable injury.

The evidence adduced by the parties revealed the following:

the promotional examination consisted of a written portion and

an Assessment Center portion. The written portion was

weighted 30% of the final grade and the Assessment Center

score constituted 70%. The grand mean ratings on the Assess-

ment Center portion of the examination were as follows:

Black applicants: 2.864

White applicants: 2.865.

Of the 404 applicants who underwent the Assessment Center

portion of the examination, 56 or 13.86% were black. Of the

top 100 scores, 10 applicants or 10% were black. These results

— At on

fail to reveal a disparate impact upon black applicants. The

Statistical difference between the percentage of applicants who

were black and the percentage of applicants scoring within the

top 100 places is minimal. In view of this minimal difference,

and in light of the small statistical pool, Harper v. Trans World

Airlines, Inc., 525 F.2d 409 (8th Cir. 1975), the Court concludes

that there is no disparate impact. See Moore v. Southwestern

Bell Telephone Company, ___ F.2d ___, 19 E.P.D. $9134 at

page 6892 (Sth Cir. 1979) in which the court stated that ‘‘a 7.1%

selection differential between black and white applicants does

not evidence the required disproportionate impact needed to

make a prima facie case of discrimination’’. {emphasis in

Original]

A disparate impact did result, however, from the written por-

tion of the examination. Of the 429 applicants who took the

written portion, 65 or 15.2% were black. While 97.8% of the

white applicants passed the written portion, only 87.7% of the

black applicants did so. Because the scores achieved by white

and black applicants on the Assessment Center portion revealed

no disparate impact, the effect of the written examination,

although only 30% of the total score, on the final ranking of

candidates resulted in a disparate impact upon black applicants.

Thus, of the top 100 final scores, only 7 or 7% were black.

The Court therefore concludes that plaintiffs have established

a prima facie case of the examination’s discriminatory impact.

Griggs v. Duke Power Co., 401 U.S. 424 (1971). Thus, the

burden shifts to defendants to establish the validity, or job

relatedness, of the examination process. A/bermarle Paper Co.

v. Moody, 422 U.S. 405 (1975).

Validation of an examination process can be accomplished in

a variety of ways.

The preferred method of test validation is criterion-related

or empirical validity, which includes what are referred to as

the predictive and concurrent methods of validation.

~ &3S

Predictive validation consists of a comparison between the

examination scores and the subsequent job performance of

those applicants who are hired. If there is a sufficient cor-

relation between test scores and job performance, the ex-

amination is considered to be a valid or job related one.

Concurrent validation requires the administration of the

examination to a group of current employees and a com-

parison of their relative scores and relative performance on

the job.

An examination has content validity if the content of the

examination matches the content of the job. For a test to

be content valid, the aptitudes and skills required for suc-

cessful examination performance must be those aptitudes

and skills required for successful job performance. It is

essential that the examination test these attributes both in

proportion to their relative importance on the job and at

the level of difficulty demanded by the job. Vulcan Society

of New York City Fire Department, Inc. v. Civil Service

Commission of the City of New York, 360 F.Supp. 1265,

1273-74 (S.D. N.Y. 1973), modified, 490 F.2d 387 (2d Cir.

1973).

This Court has previously concluded that content validation was

and is the only feasible approach herein. United States v. City of

St. Louis, 410 F.Supp. 948 (E.D.Mo. 1976), rev’d in part, 549

F.2d 506 (8th Cir. 1977). See also Vulcan Society of New York

City Fire Department, Inc., supra; Commonwealth of Penn-

sylvania v. Glickman, 370 F.Supp. 724 (W.D.Pa. 1974);

Kirkland v. The New York State Department of Correctional

Services, 374 F.Supp. 1361 (S.D.N.Y. 1974), modified, 520

F.2d 420 (2d Cir. 1975). The evidence adduced at the hearings

held in connection with the present application for injunctive

relief reaffirms this conclusion. All of the parties seem to con-

cede this point.

In order to establish that the examination herein has content

validity,

— A-36 —

defendants must demonstrate not only that the

knowledge, skills and abilities tested for by [the examina-

tion] ... coincide with some of the knowledge, skills and

abilities required to successfully perform on the job, but

also that 1) the attributes selected for examination are

critical and not merely peripherally related to successful

job performance; 2) the various portions of the examina-

tion are accurately weighted to reflect the relative impor-

tance to the job of the attributes for which they test; and 3)

the level of difficulty of the examination matches the level

of difficulty for the job. Kirkland, supra at 1372.

Because a wiitten examination could not accurately assess cer-

tain of the skills required of the position, the examination in-

cluded not only a paper-and-pencil examination but also an

Assessment Center portion in which applicants were required to

respond to simulated situations. This method was suggested by

plaintiffs’ expert, Dr. Richard Barrett at the prior trial and ap-

proved by the United States Court of Appeals for the Eighth

Circuit in its February 2, 1977 decision herein.

The items to be included on the written portion of the ex-

amination as well as on the Assessment Center portion were

determined after development of a thorough job analysis. An

expert panel of fire personnel was constituted and assisted in the

preparations of both portions of the examination. Two of the

four panel members were black. The Court notes, at this junc-

ture, that black fire personnel, although encouraged and invited

to participate, were unwilling to do so. Captain Austin par-

ticipated as a member of the expert panel only when directly

ordered to do so.

Task questionnaires were completed. Each task was rated on

a number of factors and then ranked in order of importance.

Each task was linked to the knowledge, skills and abilities

[(““KSA’’] to which it related. Each KSA was then rated on the

— Ad? =

basis of different factors and ranked in terms of importance.

There can be no doubt as to the thoroughness of the job

analysis.

The list of KSAs was used to construct the examination. The

expert panel determined which KSAs could be tested for by a

written examination. Based thereon, test items were prepared by

Edmond Knowles, an employee of the Department of Personnel

of the City of St. Louis and an expert in the development and

validation of examinations, members of his staff, and the expert

panel of fire personnel.

The expert panel linked the KSAs to the test items. They rated

the difficulty of each item in accordance with the difficulty of

the position. Similar care was taken in connection with the

Assessment Center portion of the examination, concerning the

items to ve included for testing, the simulations developed

therefor and the reliability of the raters.

A vast number of statistical analyses were performed to deter-

mine the reliability of both the written examination and the

Assessment Center examination. These analyses consistently

supported the reliability of the examination.

The criticisms levelled by plaintiffs’ expert, Dr. Richard Bar-

rett, and by Captain Austin, are insufficient to warrant the con-

clusions that the examination was not valid. Dr. Barrett, con-

cededly an expert in these areas, testified that no matter how ex-

tensive and thorough the preparation of an examination might

be, it could still prove to be invalid based upon post-

administration statistical analysis. He stated that even he might

not be able to construct an examination which would withstand

validation scrutiny. The ease with which Dr. Barrett attacked

certain portions of the examination and the general construc-

tion of the examination leads this Court to observe that any ex-

amination can be picked apart in ‘‘Monday morning quarter-

back’’ fashion.

— A-38 —

The Court would observe that Dr. Barrett is an expert at this

‘*picking apart’’ process. Yet, he admittedly has very limited ex-

perience in constructing examinations. He has testified in litiga-

tion concerning 65 examinations and found that only two of

those examinations passed muster. Of course, it is possible that

63 of the examinations truly did fail to meet the validation re-

quirements of the law. Thus, his litigation statistics may be

meaningless but they do point up Dr. Barrett’s ability to criticize

examinations. The Court would state that Dr. Barrett is an in-

telligent person, a qualified man in the field. His honest nature,

as indicated above, caused him to concede that even he might

not be able to construct an examination for the position of fire

Captain that would prove valid under the law.

The City of St. Louis, through the efforts of Edmund

Knowles, also an expert in the field, made every effort to pro-

duce a valid examination, a fact conceded by plaintiffs herein.

The Court finds that defendants undertook to follow the man-

date of the United States Court of Appeals for the Eighth Cir-

cuit and the orders of this Court in developing a fair testing pro-

cedure. Acting in good faith, defendants developed a new ex-

amination. Help was sought from fire personnel, the obvious

true experts in this area. Knowles did all that could be done to

eliminate any possible bias in the examination process.

It is not the job of this, or any other Court to tell experts how

to write an examination. Even having to determine the question

of validity gives this Court pause. Two experts presented this

Court with diametrically opposed opinions, based on

diametrically opposed statistical analyses, of the identical data.

The area in which these experts testified is not an area in which

most judges have great expertise.

It is this Court’s conclusion that the criticisms levelled at the

examination simply do not defeat the overwhelming evidence

that this examination was valid. The evidence also failed to sup-

port the claim that racially discriminatory appointments to the

— A-39 —

position of acting captain, or senior man, affected test results.

The statistical evidence failed to establish a correlation between

examination scores and such temporary appointments.

Based upon the record presented to this Court, the court must

conclude that plaintiffs have not fulfilled their burden of

establishing probable success on the merits. Although the ex-

amination resulted in a disparate impact upon black applicants,

it was sufficiently validated. Thus, defendants have fulfilled

their obligations under the law.

The appllication for preliminary injunction will be denied,

and the temporary restraining order dissolved.

/s/ John F. Nangle

UNITED STATES DISTRICT JUDGE

Dated: June 4, 1979.

ee

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 78-1294

Firefighters Institute for Racial Equality, et al.,

Appellants,

Vv.

The City of St. Louis, Missouri,

a Municipal Corporation, et al.,

Appellees,

and

Joseph Blessing, et al.,

Intervenors-Appellees.

Appeal from the United States District Court

for the Eastern District of Missouri.

Submitted: September 11, 1978

Filed: November 29, 1978

Before HEANEY and STEPHENSON, Circuit Judges, and

VAN SICKLE,* District Judge.

HEANEY, Circuit Judge.

* BRUCE M. VAN SICKLE, United States District Judge for the

District of North Dakota, sitting by designation.

> Anh a

This is the latest appeal in protracted litigation, challenging

the employment practices of the St. Louis Fire Department.

Members of the Firefighters Institute for Racial Equality

(F.1.R.E.) and several named plaintiffs brought this action in

January, 1974, against the City of St. Louis and various City of-

ficials, alleging racial discrimination against blacks in the hiring

and promotion of personnel in the St. Louis Fire Department.

F.I.R.E. also challenged the existence of racially segregated

eating arrangements, or ‘“‘supper clubs,’’ maintained by white

employees in the City’s firehouses. The action was brought

under 42 U.S.C. §§1981, 1983 and 2000e ef seg. The United

States subsequently filed suit under §2000e et seq as well, charg-

ing the City with the ‘‘pattern or practice’ of discrimination in

violation of Title VII of the Civil Rights Act of 1964. The cases

were consolidated for trial. The intervenors, representing a class

of non-black employees and candidates for employment in the

Fire Department, were permitted to intervene on behalf of the

City.

On April 9, 1976, the District Court entered an order in which

it found for the City on all counts. This order was amended by a

nunc pro tunc order issued by the District Court on June 28,

1976. In that order, the court found that the examination which

the City had used for the entry level position of firefighter had a

disparate racial effect and was not validated.' The order re-

quired that the City attempted to achieve a fifty percent hiring

' The mean scores for blacks and whites on the written examination

given for the entry level position of firefighter in 1974 were approx-

imately 56.70 and 71.95, respectively. The cut-off score used in 1974

eliminated approximately fifty-one percent of the black applicants

and twenty-five percent of the white applicants. The parties stipulated

that although the population of St. Louis is approximately forty per-

cent black, only eleven percent of the uniformed personnel employed

“ Aang St. Louis Fire Department as of November 30, 1974, were

— el ae

rate of blacks for firefighter positions over the next five years.

F.I.R.E., the named plaintiffs and the United States appealed.’

On appeal, this Court affirmed the District Court with regard

to the City’s use of a particular examination for the position of

battalion chief and with regard to the City’s refusal to promote

a particular individual, George Horne. Firefighters Institute,

Etc. v. City of St. Louis, 549 F.2d 506, 515-516 (8th Cir.), cert.

denied, 434 U.S. 819 (1977). We found, however, that the ex-

amination administered in 1974 for promotion to the position of

nie lien had a racially disparate effect to the disadvantage of

minority candidates, and that the City had failed to demonstrate

that the test was sufficiently job related to justify its use. Jd. at

509-513. We remanded the case to the District Court with direc-

tions that it maintain continuing jurisdiction until a valid ex-

amination is devised by the parties and approved by that court.

Id. at 513-514. We also found that the maintenance of

segregated supper clubs by white employees in the City’s

firehouses violated Title VII, and directed the District Court, on

remand, to supervise the promulgation of regulations by the

Fire Department which would prohibit the use of City’s

facilities for such activities. Jd. at 515.

On October 21, 1977, the District Court entered an order

which permanently enjoined the City from engaging in any

practice with respect to promotion to the rank of fire captain

which had the purpose or effect of discriminating against any

black applicant on the basis of race. The order permanently en-

joined the use of the 1974 test results as the basis for either per-

manent or temporary (acting) appointments to the position of

fire captain, except as provided therein. It enjoined the City

* The United States appealed only that portion of the District

Court’s order denying relief as to a Promotional examination which

had been given for the position of fire captain, and as to the

maintenance of segregated “supper clubs’’ by white employees in the

City’s firehouses. No appeal was taken by any party as to the fire-

fighter examination.

= ee

from making any permanent appointments to the position of

fire captain unless made on the basis of a valid examination or,

pending the development of a valid examination, unless fifty

percent of such vacancies were filled with qualified blacks. The

order previded that all black applicants who passed the 1974 test

and who were on the 1974 eligibility list were to be deemed

qualified during this interim period. In the event that all blacks

on that list were offered employment and the defendants desired

to make further permanent appointments during this interim

period, the parties were directed to determine an appropriate

basis for the appointment of black firefighters who are other-

wise qualified for promotion under time-in-grade and efficiency

rating standards.’ The order also provided that, to the extent

practicable, the fifty percent goal established for permanent ap-

pointments during the interim period should also be followed

for temporary appointments during this period. The court also

directed the City to promulgate regulations to assure that any

segregation in communal eating arrangements in firehouses

ceased.

On January 26, 1978, the District Court entered an order set-

ting aside its order of October 21, 1977. The court expressed its

‘*deep disappointment with the intransigence of all parties and

their continued unwillingness to conscientiously and _ in-

dustriously seek an acceptable procedure for filling the

numerous vacancies existing in the position of Fire Captain,

which vacancies should be filled if the safety of the persons and

properties of St. Louisans is to be assured.’’ The court then

reiterated the provisions of its previous order, with the excep-

tion of those provisions governing the appointment of in-

dividuals to fire captain positions pending the development of a

’ Basic qualifications for promotion to the position of fire captain

have been five years of experience as a firefighter, satisfactory service

ratings and a satisfactory score on the written examination ad-

ministered in 1974.

— * wm

valid examination. Instead of requiring that any such interim

appointments to permanent positions be made in accordance

with a fifty percent black promotional goal, as specified in the

previous order, the revised order provides that such appoint-

ments may be made as follows: A racially identified list of all

firefighters, who have served five years or more as a firefighter,

is to be drawn up in the order of departmental seniority. The

black firefighter with the most seniority and the white fire-

fighter with the most seniority will then be offered the oppor-

tunity to be evaluated by the Assessment Center technique.‘ The

individual receiving the higher evaluation is then to be pro-

moted, regardless of his race. The firefighter who is not pro-

moted remains eligible for the next fire captain vacancy and is

evaluated along with the black firefighter and the white fire-

fighter with the next highest seniority. The two unsuccessful

candidates for that vacancy remain eligible for the next vacancy,

and so on. The order contains no provisions governing tem-

porary appointments to fire captain positions, except for a

general prohibition against the use of the 1974 test results as the

basis for any appointments to the position of fire captain,

whether on a temporary or permanent basis.

-

F.I.R.E. contends that the remedy contained in the District

Court’s order of January 26, 1978, is inadequate on several

* The Assessment Center technique, lauded by both F.I.R.E. and

the City’s expert witnesses, is a selection procedure which uses in-

dividual and group exercises to simulate job responsibilities while

assessors evaluate a candidate’s performance. Firefighters Institute,

Etc. v. City of St. Louis, 549 F.2d 506, 513 (8th Cir.), cert. denied,

434 U.S. 819 (1977). This Court has previously recognized the poten-

tial of the Assessment Center technique as a means of evaluating

supervisory skill. /d.

—

grounds.’ It contends that the procedure provided in the order

for the promotion of individuals to permanent fire captain posi-

tions pending the development of a valid examination is inade-

quate in that it fails to guarantee that any black firefighters will

be promoted. It argues that elimination of the effects of past

discrimination requires the imposition of a fifty percent black

promotional goal, similar to that provided in the District

Court’s previous order of October 21, 1977. F.1.R.E. also con-

tends that since the firefighters who serve as acting fire captains

gain valuable supervisory experience which will given them a

competitive advantage on any test for fire captain positions

which is developed later, these assignments should also, as far as

practicable, reflect a fifty percent black ratio.

The City responds, first, that since the appellants adduced

only general statistical information as to the disparate impact of

the 1974 examination upon blacks,*® there is no evidence of

racial discrimination which would justify the imposition of a

racial goal for promotions to fire captain positions. It contends

that no violation of Title VII has been established since there is

no evidence that any firefighters, white or black, have received

promotions on the basis of the 1974 examination results, and

since there is no evidence that any black firefighters would have

been promoted but for the invalid test.

5 The United States does not appeal from the District Court’s

order.

* The adverse effect of the 1974 examination on black candidates

for fire captain is detailed in our prior opinion. The mean score for

blacks was 69.72; for whites, it was 76.59. Of those blacks taking the

exam, 25.5 percent received a passing score; 43.6 percent of the whites

passed. Firefighters Institute, Etc. v. City of St. Louis, supra at 510

n.4.

— ee

The City’s contention that no violation of Title VII has been

established which would permit an order requiring that

qualified blacks be appointed to acting or permanent fire cap-

tain positions is without merit. We have previously held that the

promotional examination for fire captain, which was ad-

ministered by the defendants in 1974, had a racially dispropor-

tionate impact on blacks and was not job related. Firefighters

Institute, Etc. v. City of St. Louis, supra at 509-514. The use of

a testing device, although neutral on its face, which has a racial-

ly disparate impact on members of minority groups and which

has not been properly validated by the employer, constitutes a

discriminatory act for which Title VII affords a remedy. See

Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975);

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 806 (1973);

Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971). The

Supreme Court has recently approved of the use of racial

preference as a means for remedying constitutional or Statutory

violations resulting in identified, race-based injuries to in-

dividuals held entitled to the preference. University of Califor-

nia Regents v. Bakke, 57 L.Ed.2d 750, 778 (1978). See also

Davis v. County of Los Angeles, 566 F.2d 1334, 1342-1343 (9th

Cir. 1977), cert. granted, 46 U.S.L.W. 3780 (June 20, 1978);

Carter v. Gallagher, 452 F.2d 315, 329-330 (8th Cir.) (en banc),

cert. denied, 406 U.S. 950 (1972), and cases cited therein. Other

courts have upheld the use of preferential relief in hiring or in

the making of promotions after finding that an employer had

engaged in a discriminatory testing practice similar to that

engaged in here. See, e.g., United States v. City of Chicago, 549

F.2d 415, 436-437 (7th Cir.), cert. denied, 434 U.S. 875 (1977);

Davis v. County of Los Angeles, supra; Boston Chapter

N.A.A.C.P., Inc. v. Beecher, 504 F.2d 1017, 1026-1028 (Sth

Cir. 1974), cert. denied, 421 U.S. 910 (1975); Vulcan Soc. of

N.Y. City Fire Dept., Inc. v. Civil Serv. Com ’n, 490 F.2d 387,

398-399 (2d Cir. 1973); Commonwealth of Pennsylvania v.

Flaherty, 404 F.Supp. 1022, 1030-1031 (W.D. Pa. 1975);

Western Addition Community Organization v. Alioto, 369

— A-47 —

F.Supp. 77 (N.D. Cal. 1973), appeal dismissed as moot, 514

F.2d 542 (9th Cir.), cert. denied, 423 U.S. 1014 (1975).

The City’s contention that preferential relief is unavailable

because there is no evidence that any specific black candidate

for promotion would have been promoted but for the invalid

test is likewise without merit. In Teamsters v. United States, 431

U.S. 324 (1977), the Supreme Court stated:

When the Government seeks individual relief [in a Title

VII case] for the victims of the discriminatory practice, a

district court must usually conduct additional proceedings

after the liability phase of the trial to determine the scope

of individual relief. The petitioners’ contention in this case

is that if the Government has not, in the course of proving

a pattern or practice, already brought forth specific evi-

dence that each individual was discriminatorily denied an

employment opportunity, it must carry that burden at the

second, ‘‘remedial’’ stage of trial. That basic contention

was rejected in the Franks case [Franks v. Bowman

Transportation Co., 424 U.S. 747 (1976)]. As was true of

the particular facts in Franks, and as is typical of Title VII

pattern-or-practice suits, the question of individual relief

does not arise until it has been proved that the employer

has followed an employment policy of unlawful discrimi-

nation. The force of that proof does not dissipate at the

remedial stage of the trial. The employer cannot, there-

fore, claim that there is no reason to believe that its in-

dividual employment decisions were discriminatorily

based; it has already been shown to have maintained a

policy of discriminatory decision-making.

Id. at 361-362.

The City next contends that even if there has been a violation

of Title VII which would make the imposition of preferential

relief a possible remedy, the District Court did not err in failing

to impose such a remedy in this case.

—S

Title VII has vested broad equitable powers in the federal

courts in order ‘‘to make possible the ‘fashion[ing] [of] the most

complete relief possible.’ ’’ The federal courts have ‘‘ ‘not mere-

ly the power but [also] the duty to render a decree which will so

far as possible eliminate the discriminatory effects of the past as

well as bar like discrimination in the future.’ ’’ Albemarle Paper

Co. v. Moody, supra at 418, 421. Accord, Teamsters v. United

States, supra at 364-365.

We believe that the record in this case, viewed as a whole,

provides ample justification for preferential relief such as that

imposed by the District Court in its order of October 21, 1977.

This litigation was begun in January, 1974, almost five years

ago. Since that time, the number of black fire captains in the St.

Louis Fire Department has decreased from four to one.’ Ap-

proximately fifty of the 180 permanent fire captain positions in

the Fire Department are now vacant. The City has known since

October 3, 1977, when its petition for certiorari was denied, that

a nondiscriminatory method for the selection of fire captains

would have to be devised. Despite this knowledge, little progress

has been made in developing such a method. Meanwhile, the Ci-

ty has apparently determined not to make any permanent ap-

pointments to fire captain positions,’ notwithstanding the fact

’Of the 180 persons holding the rank of fire captain as of November

30, 1974, a total of four (2.2%) were black. Since that time, one of

these black fire captains has been promoted and two have retired,

leaving only one black individual now holding the rank of fire captain.

*Intervenors state in their brief that the only reason they did not ap-

peal from the District Court’s order of January 26, 1978, was the

assurance of the City’s administration that under no circumstances

would promotions be made pursuant to the District Court’s interim

plan. The City, in its brief, concedes this intention, stating ‘‘[s]ince the

promotional procedure suggested by the Court, based upon seniority

and the assessment center, was not acceptable [to] any of the parties

and because of the fact that no voluntary agreement was reached bet-

ween the parties, the City is now proceeding with the third alternative

* * * and is developing a new promotional exam.”’

— A-49 —

that twelve black firefighters qualified for promotion even on

the basis of the discriminatory examination administered in

1974, and that since the filing of this suit, forty-three additional

black firefighters have attained the necessary five-year service

requirement. The net result of the City’s inaction is the con-

tinuation of a policy of discrimination against those black can-

didates for promotion who have been the victims of discrimina-

tion in the past. The City’s recalcitrance cannot be justified on

the basis of operational considerations as the failure of the City

to make permanent fire captain appointments has caused a

deterioration in the Department’s morale and impaired its effi-

ciency.’

We cannot ask those black firefighters who have been the vic-

tims of discrimination to wait forever for the vindication of

their rights. In light of the City’s apparent decision not to make

any permanent appointments pending the development of a

valid examination, and of the fact that the development of such

an examination rests in the first instance with the City, we do

not believe that mere reinstatement of the provisions of the

District Court’s order of October 21, 1977, as requested by

F.I.R.E., will afford any greater relief than that afforded by the

court’s order of January 26, 1978, since under neither order is

the City required to make any permanent appointments to fire

captain positions. We believe that nothing short of an affir-

mative order requiring the immediate promotion of those black

firefighters who are unquestionably qualified is necessary in

*Deputy Fire Chief Allen Brandenmeyer testified that the failure of

the City to make appointments to the rank of fire captain has caused

deterioration in the morale of the Fire Department, impairing the

Department’s efficiency in emergency situations. Failure to make pro-

motions has also resulted in a reduction in the number of fire inspec-

tions made in commercial and residential areas, and those acting cap-

tains who have made such inspections have been handicapped by their

lack of apparent authority. /

— A-50 —

order to redress the rights of those who have been the victims of

the City’s discrimination. '°

The City concedes that the twelve black firefighters who pass-

ed the 1974 examination are qualified for promotion to fire cap-

tain positions. These individuals, if otherwise still qualified ,

should be offered immediate promotion. Since only one in-

dividual now holding the rank of fire captain is black, the addi-

tion of twelve black fire captains will increase the number of

black fire captains to thirteen, or 7.2 percent of all fire captain

positions. We do not think that increasing the percentage of

blacks holding the rank of fire captain to 7.2 percent is

unreasonable, in light of the fact that eleven percent of the

uniformed personnel employed by the Fire Department at the

time of trial were black, and that this percentage has un-

doubtedly increased as the fifty percent black hiring goal for the

entry level position of firefighter is implemented. See United

States v. N. L. Industries, Inc., 479 F.2d 354, 377 (8th Cir.

1973). In addition to the immediate promotion of the twelve

black candidates, the District Court may also, in its discretion,

require the immediate promotion of twelve white candidates

who are also qualified on the basis of the 1974 examination.

Guidelines governing the precise selection of these individuals

shall be developed, if necessary, by the District Court.

'°We note that other courts have approved of the use of interim

preferential hiring or promotional relief under similar circumstances.

See, e.g., United States v. City of Chicago, 549 F.2d 415, 437 (7th

Cir.), cert. denied,434 U.S. 875 (1977); Davis v. County of Los

Angeles, 566 F.2d 1334, 1343-1344 (9th Cir. 1977), cert. granted, 46

U.S.L.W. 3780 (June 20, 1978); Vulcan Soc. of N.Y. City Sire Dept.,

Inc. v. Civil Serv. Com’n, 490 F.2d 387, 398-399 (2d Cir. 1973); com-

monwealth of Pennsylvania y. Flaherty, 404 F.Supp. 1022, 1029

(W.D. Pa. i975); Western Addition Community Organization v.

Alioto, 369 F.Supp. 77, 80 (N.D. Cal. 1973), appeal dismissed as

moot, 514 F.2d $42 (9th Cir.), cert. denied, 423 US. 1014 (1975).

— «|

Any additional promotions which the City desires to make

prior to the development of a valid examination must be made

in accordance with the Assessment Center technique, as set

forth in the District Court’s order of January 26, 1978. Written

guidelines should delineate the criteria to be used in evaluating a

candidate’s performance, and those criteria should be objective

to the maximum extent possible. See Wells v. Meyer’s Bakery,

561 F.2d 1268, 1273 (8th Cir. 1977).

It is undisputed that those firefighters who serve as acting fire

captains gain valuable supervisory experience which may give

them a competitive advantage on any test for fire captain posi-

tions which is developed later. We, therefore, agree with the ap-

pellants that these assignments must be made in a manner which

does not unfairly disadvantage black candidates for promotion.

Evidence adduced at a hearing held on August 4, 1976, in-

dicated that assignments to acting fire captain positions were

based in part on the results of the 1974 examination, previously

invalidated by this Court. The brief of the intervenors informs

us that shortly after the issuance of the District court’s order on

January 26, 1978, those assigned as acting captains were reliev-

ed of that responsibility, and firehouse seniority was insituted as

the basis for these positions. The City has confirmed that

firehouse seniority is now used. Since this seniority system

would inevitably reflect the previous discriminatory practices of

the City in the hiring of entry-level personnel, automatic ap-

pointment of those firefighters with greatest seniority to acting

fire captain positions serves to perpetuate the effects of past

discrimination in violation of Title VII. See Griggs v. Duke

Power Co., supra at 430; United States v. N. L. Industries, Inc.,

supra at 361; Chavez v. Temple U. High Sch. Dist. No. 218, 565

F.2d 1087, 1093 (9th Cir. 1977).'' We, therefore, direct the

''We are not here concerned with a bona fide seniority system which

is immunized from a finding of illegality by reason of §703(h) of Title

VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e-2(h). See

Teamsters v. United States, 431 U.S. 324, 355-356 (1977). Compare

— A-52 —

District Court, on remand, to enter an injunctive decree which

requires that assignments to acting fire captain positions reflect

a fifty percent black ratio as far as is practicable, pending the

development of a valid examination.

The City stated, during oral argument before this court, that

it would have a properly validated examination for the position

of fire captain developed by January 1, 1979. We have con-

fidence that the District Court will require the City to keep its

commitment in this regard.

Upon the development of such an examination by the City,

the court shall promptly hear and resolve any objections which

any party has to the plan. If any party objects to that court’s

detrmination, that party shall have ten days in which to file

notice of appeal in this Court. An accelerated briefing schedule

shall then be arranged with the Clerk of this Court.

We recognize that the affirmative relief which we order today

may impinge upon the justified expectations of both black and

white firefighters who are as well qualified for promotion as are

those twelve black firefighters whose promotion we have

ordered. Continued inaction, however, will serve neither to vin-

dicate the rights of those black firefighters who have been the

victims of past discrimination nor to give the people of St. Louis

the fire protection which they deserve. Federally guaranteed

rights ‘‘can neither be nullified openly and directly by state

legislators or state executive or judicial officers, nor nullified in-

directly by them through evasive schemes * * * whether attemp-

ted ‘ingeniously or ingenuously.’ *» Cooper v. Aaron, 358 U.S.

1, 17 (1958). We are confident that the City’s expeditious good

James v. Stockham Valves & Fittings Co., 589 F.2d 310, 352-353 (Sth

Cir. 1977), cert. denied, 434 U.S. 1034 (1978) (seniority system, which

was the product of collective bargaining, must be evaluated in the con-

text of the company’s extensive unlawful employment practices during

the period of the negotiations and its intransigent adherence to

— policies, in determining whether it was in fact bona

— A-53 —

faith compliance With our mandate will eliminate the necessity

for further imposition of such relief and will allow future pro-

motions to be made on a nondiscriminatory basis which is fair

to all candidates.

II.

F.I.R.E. next contends that the attorney’s fee of $12,500

awarded to F.I.R.E. by the District Court is arbitrary and

capricious. It contends that under Johnson v. Georgia Highway

Express, Inc., 488 F.2d 714 (Sth Cir. 1974), specific factors must

be considered in making an award under §706(k) of Title VII of

the Civil Rights Act of 1964, 42 U.S.C. §2000e-5(k), and that no

consideration of these factors is reflected in the District Court’s

order.

The guidelines for awarding attorney’s fees, which are set

forth in Johnson, have received repeated approval by this

Court. See Allen v. Amalgamated Transit Union Local 788, 554

F.2d 876, 884 (8th Cir.), cert. denied, 434 U.S. 891 (1977). They

should be followed. Moreover, the basis of the award of at-

torney’s fees should be set forth in detail so that this Court can

adequately review the record. Failure of the District Court to

disclose the basis of its award may compel the conclusion that it

has abused its discretion. See Johnson v. Georgia Highway Ex-

press, Inc., supra at 720. In this case, we have independently

reviewed the record, however, and have determined that the

$12,500 award made by the District Court is adequate compen-

sation in light of the experience of F.I.R.E.’s counsel at the time

of trial, the time and labor which we believe should be required

for a case of this type, the customary fee for similar legal work

in the community, and the other factors listed in Johnson. The

District Court’s denial of the twenty-five percent bonus re-

quested by counsel for F.I.R.E. was also not an abuse of discre-

tion.

We award F.I.R.E. $4,000 for attorney’s fees for this appeal.

— A-54 —

The order of the District Court is reversed to the extent that it

is inconsistent with this opinion. The District court is hereby

directed to modify its decree to grant injunctive relief and to

permit further proceedings as required by this opinion.

Reversed and remanded.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

— A-55 —

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Nos. 76-1507 and 76-1663

Firefighters Institute for Racial Equality, et al.,

Plaintiff-Appellants,

v.

City of St. Louis, et al.,

Defendants-Appellees,

United States of America,

Plaintiff-Appellant,

v.

City of St. Louis, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Missouri.

Submitted: October 14, 1976

Filed: February 2, 1977

Before Lay, Ross and Stephenson, Circuit Judges.

Ross, Circuit Judge.

In this consolidated action, black firefighters and the Depart-

ment of Justice allege the existence of racially discriminatory

— A-56 —

practices in the St. Louis City Fire Department. In the first ac-

tion the Firefighters for Racial Equality (F.I.R.E.) and several

named plaintiffs represent a class who are presently employees

or who seek employment with the St. Louis Fire Department.

The United States subsequently filed suit under Title VII of the

Civil Rights Act of 1964 seeking redress for a ‘‘pattern or prac-

tice”’ of discrimination as well as for individuals not represented

by F.I.R.E. Both actions were filed pursuant to 42 U.S.C. §§

1981, 1983 and 20006e et seg. The principal defendant, the City

of St. Louis is joined in its argument by the Intervenors who

represent class of nonblack employees and candidates for em-

ployment in the fire department.

Appeal is taken on a number of issues, but no appeal has been

taken with respect to the examination for firefighter which is the

entry level position in the fire department.' The F.I.R.E. Ap-

pellants do contest the City’s promotional practices with regard

to the fire captain’s exam and the battalion chief’s exam. Also

charged as unlawful are exclusion of blacks from firehouse

eating arrangements known as “supper clubs,” and the failure

to promote a black individual, George Horne, to a fire captain

position. F.I.R.E. also contests the amount of attorney’s fees

which the district court indicated it would award.

Of these issues, the United States appeals on only two: the

Promotional exam for fire captain and the supper club discrimi-

nation issue. This court considers the latter as the principal

' The firefighter exam was shown to have had a disparate racial ef-

fect and was not validated. See nunc pro tunc order 2 (June 28, 1976).

The order was entered on June 28 and amended the April 9, 1976

memorandum opinion which had included the Parties partial consent

decree on the entry level issue. On June 28 the court issued an order

pursuant to the stipulation of the parties granting relief similar to the

partial consent decree. The June 28 order required defendants inter

alia to try to achieve a $0 percent hiring rate for blacks in filling vacan-

cies at the entry level over the next five years.

‘%

aan Be? ok

claims, and reverses with respect to them. The district court is

affirmed with respect to the battalion chief exam and in the mat-

ter of George Horne.

Fire Captain’s Examination

The position of fire captain is the first level supervisory job in

the St. Louis Fire Department. According to the findings of the

district court, fire captains are responsible for the supervision of

a group of men and equipment on a particular work shift. The

in-service training of the firefighters under his command is a

significant part of the fire captain’s job. According to the City’s

validation study, the fire captain leads his company at. the fire

scene. !

Promotion to the fire captain’s position is dependent on a

composite score developed from three measurements of an in-

dividual’s qualifications. For candidates on the 1974 eligibility

list which is at issue here, the ‘‘written test’’ was given a 45 per-

cent weight as was an ‘“‘experience and training score.’’ The

“service rating’? score was weighted as 10 percent of the

composite.

Attaining the rank of fire captain is a highly sought-after and

competitive goal of both blacks and whites. From the 1974 pro-

cedure now under sorutiny a total of 453 persons are seeking the

higher position of captain, while only approximately 18 persons

are needed to fill vacancies during the two-year life of the

eligibility list. The highest ranking black man ranks as number

55 out of total of 189 on the list. As a prerequisite for considera-

tion all applicants for fire captain must have served five years as

firefighter.’

? F.1.R.E. has alleged that the change of the in-service requirement

from five to seven years from 1967 up until 1974, when it was changed

back to five years, adversely affected black applicants. However, the

change, which was instituted both times on the recommendations of

consultants, admittedly affected white candidates as well as black.

— A-58 —

The experience and training score, which comprised 45 per-

cent of the total score, is also a function of /ength of service with

the fire department. According to the district court, points are

awarded for each month of experience with the department. In

1974 all applicants with ten or more years experience received

the maximum score of 45 points. Eighty-one percent of those

who made the 1974 eligibility list for the captain’s position

received the maximum number of points for experience and

training.

While the experience and training score is largely quan-

titative, the ‘‘service rating’’ is qualitative, and reflects the in-

dividual’s last supervisory rating prior to announcement of the

written exam. On this measurement of qualification, 93 percent

of the persons on the eligibility list received scores in the narrow

range between 7.8 and 9.2.

At trial Dr. O’Leary, the City’s test analyst and expert

witness, testified that these two work-related ratings were in-

cluded because he felt that experience on the job and the quality

of that experience were important factors in evaluating potential

fire captains.’

It appears that as a practical matter these two scores carry less

weight than their assigned value indicates. For many of those

189 persons who made the eligibility list, these two experienced-

based scores are closely clustered, making the written exam of

much greater weight in determining final rank than the allotted

weight of 45 percent.

* Dr. O’Leary also testified that determining the relative weight of

the three scores was a matter of judgment and he knew of no

mathematical or statistical procedure to objectively determine the

weight to be accorded each criteria. This opinion was refuted to a cer-

tain extent by the plaintiff’s expert, Dr. Barrett, who indicated that

weighting is best arrived at by some empirical means such as a

criterion-related validity study. In any event, it has not been argued on

this appeal that the use of an experience and training score or a service

score has resulted in a discriminatory impact on black candidates.

~~ hea

It is not disputed here that the 1974 written exam for the fire

captain’s position adversely affected black candidates as a

whole. The district court concluded that the statistical evidence

presented established that the test had a disparate impact on

blacks.‘

It is a distinguishing feature of a Title VII cause of action that

discriminatory impact suffices to establish a prima facie show-

ing of discrimination. The recent case of Washington v. Davis,

426 U.S. 229, 239 (1976), establishes that a law or other official

act is not unconstitutional solely, because it has a racially

disproportionate impact regardless of whether it reflects a

racially discriminatory purpose. However, Congress’ statutory

standard for Title VII, where discriminatory purpose need not

be proved, is unshaken by the Washington decision. Id. at

246-47.’

It is now a familiar principle that Title VII was not meant to

preclude the use of testing devices, and that what is forbidden is

* The mean score for blacks on this exam was 69.72; the mean for

whites was 76.59. Of those blacks taking the exam 25.5 percent re-

ceived a passing score; 43.6 percent of the whites passed.

* In 1972 Congress amended 42 U.S.C. § 2000e and included state

and local governments, such as the City of St. Louis, under the rubric

of ‘‘employers’’ subject to that Act. Intervenors in this appeal, citing

National League of Cities v. Usery, 44 U.S.L.W. 4974 (June 24, 1976)

have strongly contested Congress’ power to dispense with the intent

requirement in Title VII cases where the state and local gov ts

act as employers. The Cities case, supra, limiting Congress’ power to

impose wage and hour standards for state and local employees under

the commerce clause, is undoubtedly inapposite. But see Fitzpatrick v.

Bitzer, 44 U.S.L.W. 5120 (June 28, 1976). In any event, the court

determines that it need not reach this issue. Counsel for the In-

tervenors has admitted under the court’s questioning the constitu-

tional issue was not raised below.

im Meh...

the controlling use of such tests ‘‘unless they are demonstrably a

reasonable measure of job performance.’’ Griggs v.. Duke

Power Co., 401 U.S. 424, 436 (1971).

Once a racially adverse impact is demonstrated, the burden of

proof shifts to the employer to prove the job relatedness of the

exam he has utilized. Albemarle Paper Co. v. Moody, 422 U.S.

405, 425 (1975). Accepted professional methods of ‘‘validating’”’

exams for their job-relatedness are found in the EEOC Guide-

lines published in 29 C.F.R. § 1607.5 (1975). The Supreme

Court has said of these tests validation techniques:

The EEOC Guidelines are not administrative ‘‘regulations”’

promulgated pursuant to formal procedures established by

the Congress. But, as this Court has heretofore noted, they

do constitute ‘‘[t}he administrative interpretation of the

Act by the enforcing agency,’’ and consequently they are |

“‘entitled to great deference.’’ (Citations omitted).

Albemarle Paper Co. v. Moody, supra, 422 U.S. at 431.

Though it has been argued here that the EEOC Guidelines,

which refer to the standards of the American Psychological

Association (APA), should be considered ‘‘guidelines on/y’’

these standards have often been sanctioned as a means by which

courts may professionally evaluate the validity of employment

tests when called upon to do so.‘

* See, e.g., Douglas v. Hampton, 512 F.2d 976 (D.C. Cir. 1975):

“These guidelines have been cited with approval by the Supreme

Court, followed by all courts dealing with these issues, and recognized

as controlling in at least one circuit. We think it unwise to depart from

these accepted principles at ‘his stage in the development of the law

concerning equal employment opportunity.’’ Jd. at 986 (footnote

omitted). See also, Kirkland v. New York St. Dept. of Correctional

Serv., 520 F.2d 420, 426 (2d Cir. 1975); Vulcan Soc’y of New York

City Fire Dept., Inc. v. Civil Serv. Commission, 360 F.Supp. 1265,

1273 n.23 (S.D.N.Y. 1973). 7

7%

— A-6i—

It is also true that in this case Dr. O’Leary, the City’s expert

who developed and validated the test, purportedly considered

and reviewed the APA and EEOC publications as guidelines in

preparing the examination.

Accepted validation techniques under these standards include

two forms of criterion-related validity, plus the content and

construct validity methods. Criterion-related studies involve the

correlation of job performance with success on an examination.

Predictive validation requires a comparison between an appli-

cant’s test scores and subsequent on-the-job performance as an

employee; concurrent validation methods correlate the test

scores of present employees vis-a-vis their present job perfor-

mance. Vulcan Society of New York City Fire Dept. v. Civil

Service Commission, 490 F.2d 387, 394 (2d Cir. 1973). These

empirical methods are, of course, dependent on statistical cor-

relations as proof of reliability and validity. Content validity,

the technique chose by Dr. O’Leary for justification of the fire

_captain’s exam, generally requires that the examination reflect a

representative sample of the knowledge or behavior that will be

used in performance of the job.

The F.I.R.E.-Appellants have argued on this appeal that a

content validity study should not have been undertaken by the

City and that this type of test should be used only when a |

criterion-related study has proved to be technically infeasible.’

This argument is now undermined by the Supreme Court’s re-

cent observation in Washington v. Davis, 426 U.S. 229 (1976),

that ‘‘[iJt appears beyond doubt by now that there is no single

method for appropriately validating employment tests for their

relationship to job performance.”’ Jd. at 247 n.12 (emphasis ad-

ded).* Although in this court’s opinion content validation, if

” See.C.F.R. § 1607.5(a) (1975).

* Newly proposed regulations provide that ‘‘[flor the purposes of

satisfying these guidelines users may rely upon criterion related validi-

ty studies, content validity studies, or construct validity studies * * *.”’

41 Fed. Reg. 29018 (1976).

°°.

-

— A-62 —

properly done, could be an acceptable means of evaluation for

the City to undertake, it is no more acceptable than a criterion-

related test, especially if such criterion-related test involves con-

current validation testing methods with present fire captains.

Constructing a content valid exam and proof of its validity re-

quires as a first step a thorough analysis of the job to be per-

formed. The district court concluded, and this court does not

challenge the finding, that Dr. O’Leary’s analysis of the fire

captain’s job was thorough and complete.’

¢

It is in fact the fatal flaw in the validation study that the test

Dr. O’Leary devised did not reflect his findings in the job

analysis. The captain’s exam admittedly failed to test. the one

major job attribute that separates a firefighter from a fire cap-

* Twenty-seven fire captains were interviewed in the preparation of

this job analysis. Those interviewed were asked to describe the

elements of the job and rank their relative importance. Captains were

questioned concerning the positive and negative critical incidents of

the job, and the essential and desirable qualities of a fire captain.

A pool of questions for the exam were obtained through the Inter-

national Governmental Personnel Management Association; accord-

ing to Dr. O’Leary, a series of items tailor-made by the department

were also included. Questions on the exam were distributed according

the importance of each area of knowledge. The best items were

selected after review by several technical and test advisors. See United

States v. City of St. Louis, 410 F.Supp. 948, 954 (E.D. Mo. 1976).

*Dr. Barrett’s main objection to the job analysis was that in his opin-

ion the descriptions of job activities and skill levels were incomplete.

He also acknowledges, however, that the 27-person sample interview

technique, and cataloging of information used by Dr. O’Leary were

reasonable methods. Considering the district court’s evaluation of the

two experts’ credibility, this court will not disturb the lower court’s

conclusions about the job analysis. Compare the job analysis in this

case with the cursory preparation disapproved in Vulcan Soc’y of New

York City Fire Dept., Inc. v. Civil Serv. Comm ‘n, Supra, 360 F.Supp.

at 1275.

al

a

tain, that of supervisory ability. From the interviews conducted

for the job analysis, the City’s expert determined that almost 43

percent of a fire captain’s time was spent in supervision, a

higher percentage of time than on any other single element. Of

the six tasks ranked as the ‘‘most important,’’ supervision was

fourth. There was no attempt to test supervisory skills prior to

selecting the new captains. The City admits this lack of proper

testing for supervisory ability but claims the best method of

doing it, through an Assessment Center approach, is too

- expensive.

The EEOC Guidelines accept evidence of content validity for

tests ‘‘that consist of suitable samples of the essential knowl-

edge, skills or behaviors composing the job in question.’’ 29

C.F.R. § 1607.5(a) (1975) (emphasis added). Similarly, the APA

Standards, which the EEOC Guidelines refer the reader to,

clearly warn that:

An employer cannot justify an employment test on

grounds of content validity if he cannot demonstrate that

the content universe includes all, or nearly all, important

. parts of the job.

AMERICAN PSYCHQBOGICAL ASSOCIATION, STAND-

ARDS FOR EDUCATIONAL AND PSYCHOLOGICAL

TESTS 29 (1974) (emphasis added).

It is clear that this court’s objection to this test is similar to

the objections of other courts. In a decision where Blacks and

Hispanics challenged the content validity of a correction

officer’s exam, the court also questioned the test’s lack of com-

prehensiveness:

More serious perhaps than specific item flaws is the fact

that, regardless whether 34-944 adequately tests the at-

tributes it is intended to measure, it fails to examine a

number of traits, skills and abilities which witnesses for

both sides singled out as important to the Sergeant job.

ay Se

Among these are leadership, understanding of inmate reso-

cialization, ability to empathize with persons from dif-

ferent backgrounds, and ability to cope with crisis situa-

tions.

Kirkland v. New York State Dept. of Correctional Services, 374

F.Supp. 1361, 1378 (S.D.N.Y. 1974), aff’d in relevant part, 520

F.2d 420 (2d Cir. 1975). In Vulcan Society of New York City

Fire Department, Inc. v. Civil Service Commission, supra, 360

F.Supp. at 1274, aff’d, 490 F.2d 387 (2d Cir. 1973), the court

quite simply stated: ‘‘[aJn examination has content validity if

the content of the examination matches the content of the job.'°

Though the district court was ‘‘convinced” from the job

analysis that the ‘‘areas tested sufficiently identify suitable can-

didates for promotion,” it is this court’s opinion that an er-

roneous legal standard was applied in reaching that conclusion.

The job analysis here may have appeared impressive in relation

to those challenged in other cases, but a good analysis in any

situation is of little use when the examination fails to reflect

what is found in the job analysis. The test is not content valid.

In short, even a common sense concept of content validity,

aside from EEOC and APA Standards, requires that an impor-

tant and distinguishing attribute be tested in some manner to

find the best qualified applicants. Here, where the exam failed

to test a job component comprising over 40 percent of the

employee’s time, the inference of discrimination has not been

rebutted with a finding of the exam’s “‘job-relatedness.”’

'* The court continued: “‘It is essential that the examination test

these attributes both in proportion to their relative importance on the

job and at the level of difficulty demanded by the job.’’ 360 F.Supp.

at 1274, See also Douglas v. Hampton, $12 F.2d 976 (D.C. Cir. 1975).

“**Content’ validity is established when the content of the test closely

approximates the tasks to be performed on the job by the applicant.”’

Id. at 984 (emphasis added) (footnote omitted). See also Bridgeport

Guardians, Inc. v. Members of Bridgeport Civil Serv. Comm’n, 482

F.2d 1333, 1338 (2d Cir. 1973). Dr. O’Leary said at trial: ‘‘Content

validity is validity demonstrated when one can show that the content

of his predictors * * * are very close to the content of the job that the

person is going to be performing.”’ (Emphasis added).

— A-65

Both experts agree that there is no good pen and paper test

for evaluating supervisory skills. In his validation study Dry

O’Leary had anticipated that supervisory ability would be

judged after an employee had been selected and placed on the

job through the use of a “‘six months working test period.”” Ac-

cording to the validation study, the individual’s supervisory

abilities would be ‘‘closely scrutinized’ and his performance

evaluated on a pass/fail basis. Whatever merit this idea may

have as a means of eliminating unfit employees after they are

chosen, it cannot substitute for a valid selection method utilized

at the outset to fairly pick the best employees in a nondiscrimi- |

natory manner. The many who are not picked for the ‘‘working

test period’’ obviously have no opportunity to compete or to

raise their rank by a demonstration of their ability. Significant-

ly, the City’s director of personnel testified that though the

working test portion has ‘‘always existed’ he did not know

whether a fire captain had ever been eliminated because of his

performance during that period. Used in this manner, the pro-

bationary period would prove even less valuable as a means of

selection.

Both experts also testified at trial concerning an excellent

method of supervisory evaluation known as the Assessment

Center technique. Dr. O’ Leary had himseif used it for the depu-

ty and fire chief examination in St. Louis, labeling it as ‘‘one of

the most effective methods’’ available. He described the Assess-

ment Center as a selection procedure which uses individual and

group exercises that simulate job responsibilities while assessors

evaluate a candidate’s performance. The Assessment Center

was apparently rejected for choosing fire captains because of

the large number of persons who wish to take that test. The

evidence indicates that the assessment technique takes at least

one day and costs as much as $500 per person.

Dr. Barrett, who is enthusiastic about this approach as well,

has suggested a means for reducing the expense through the use

of a content valid screening test. As the court understands his

—A-66

testimony, the written test would be a screening device only,

eliminating those persons who obviously did not possess the re-

quisite job knowledge to perform at the captain’s level. The

Assessment Center could then be used to rank those persons

who successfully complete the written exam. Dr. Barrett,

however, also testified that this cutoff score would need to be

relatively low. As Dr. Barrett testified, another possible screen-

ing device is performance ratings given from the lower level job.

This court clearly does not have enough evidence in the

record or testing expertise to devise a complete remedy for

testing supervisory skills using the Assessment Center or any

other method. Other courts have dealt with the problem and in

similar causes of action concerning invalid exams have directed

“executive or administrative officials to live up to their respon-

sibilities and to prepare and conduct an examination consonant

with the Fourteenth Amendment.”’ Vulcan Society of New

York City Fire Dépt., Inc. v. Civil Service Commission, supra,

360 F.Supp. at 1278.

Other courts have also dealt with the necessity of testing

supervisory skill where that attribute was critical. In affirming

the district court’s rejection of Jew York City’s exam for school

principals, the court of appeals said:

The [district] judge did not outlaw other written examina-

tions orindicate that none could be created to test more

fairly the qualities necessary for a supervisory job. It may

well be that new testing procedures will be devised by the

parties themselves and be approved by the district court.

Chance v. Board of Examiners, 458 F.2d 1167, 1179 (2d Cir.

1972) (footnotes omitted).

This court will take the same general approach of urging the

parties on remand to devise a test of supervisory skills to be ap-

proved by the district court. The one caveat is that the final test

must be validated in accordance with the published EEOC

— A-67 —

Guidelines. This may be accomplished by devising a content

valid test or by a concurrent criterion-related validity test. The

Assessment Center is a concededly good device, but the court

will not at this point require that approach to be the sole method

finally used. Whatever test is used should provide equal

reliability and validity. Because of the difficulty of devising a

test properly reflecting the supervisory skills of the applicants, it

is possible that a criterion-related concurrent validation test

coupled with a limited use of the Assessment Center would meet

the guidelines. Cost to the City is one factor which may be con-

sidered in deciding whether to use the Assessment Center tech-

nique,'' but it may not be the sole deciding factor.

The district court shall have continuing jurisdiction until a

vali‘ exam is devised by the parties to these cases, if possible,

and may require reports or take evidence on testing procedures

as it deems necessary. The final plan will be subject to that

court’s approval.

Both appellants also argue that the test has a number of

**fla. ditems’’ which invalidate the written exam even for the

areas of job knowledge it has attempted to cover. At trial Dr.

Barrett had criticized many of the individual questions that were

used on the test.'? Though Dr. Barrett gave examples of each of

'' If a screening device is used in conjunction with Assessment

Center, development of a fair cutoff score is obviously important. The

EEOC Guidelines provide:

It is expected that each operational cutoff score will be reason-

able and consistent with normal expectations of proficiency

within the work force or group on which the study was con-

ducted.

29 C.F.R. § 1607.6 (1975).

'? Dr. Barrett objected to ‘‘tenuous linkage’’ in some questions:

questions where a correct answer did not guarantee adequate perfor-

mance on the job; and questions that gave a premium to the testwise

individual. Other items, he said, called for Fo aia information’”’ not

related to inb performance.

-.

-%

— ss

his specific criticisms, his testimony does not render the trial

court clearly erroneous. When asked if each item on a test had

to be valid in order for the whole test to be valid, he replied that

it did not. He previously admitted not having made a study of

the entire fire captain’s exam to determine the tota/ number of

poor and unrelated questions. This Court agrees that some im-

provement could be made in this area.

Supper Clubs

The second principal claim concerns the exclusion of blacks

from the ‘‘supper clubs.’’ Supper clubs are informal eating ar-

rangements among on-duty firefighters at firehouses in the St.

Louis Fire Department. Cooking facilities, stove, refrigerator,

and cabinets for storage, are provided by the City for the use of

its on-duty personnel. Each supper club provides for its own

utensils and condiments and buys food for the shared meals. A

cook is chosen, who the district court found ‘‘has the discretion

and authority to determine who is a member of the club.’’ The

clubs are not organized or regulated by the Fire Department.

As a finding of fact the district court concluded that blacks

have been excluded from many of these clubs. These exclusions,

the court found, frequently result in blacks, where a minority in

a firehouse, cooking and eating apart from their white

associates.

The district court felt that such segregation was ‘‘offensive’’

and ‘‘incomprehensible’’ but concluded that because no Fire

Department directive or order promoted the exclusivity, the

court would not intervene. The district court did indicate that if

the problem persisted it would seek a solution.

The existence of segregated supper clubs was accepted as a

fact by the district court and that fact is accepted here. This

court as well finds the exclusion of black co-workers by whites

highly offensive, and regards the situation as one which the Fire

Department could remedy by appropriate regulations.

ro Se

In Rogers v. Equal Employment Opportunity Commission,

454 F.2d 234, 238 (Sth Cir. 1971), cert. denied, 406 U.S. 957

(1972), the court in determining that the Commission possessed

‘*the statutory authority to investigate psychological fringes in

an employment relationship,’’ discussed the scope of Title VI"’s

authority to alleviate race discrimination:

This language evinces a Congressional intention to define

discrimination in the broadest possible terms. Congress

chose neither to enumerate specific discriminatory prac-

tices, nor to elucidate in extenso the parameter of such

nefarious activities. Rather, it pursued the path of wisdom

by being unconstrictive, knowing that constant change is

the order of our day and that the seemingly reasonable

practices of the present can easily become the injustices of

the morrow. Time was when employment discrimination

tended to be viewed as a series of isolated and

distinguishable events, manifesting itself, for example, in-

an employer’s practices of hiring, firing, and promoting.

But today employment discrimination is a far more com-

plex and pervasive phenomenon, as the nuances and

subtleties of discriminatory employment practices are no

longer confined to bread and butter issues. As wages and

hours of employment take subordinate roles in

management-labor relationships, the modern employee

makes ever-increasing demands in the nature of intangible

fringe benefits. * * *

see e888

* * * Therefore, it is my belief that employees’

psychological as well as economic fringes are statutorily

entitled to protection from employer abuse, and that the

phrase ‘‘terms, conditions, or privileges of employment”’

in Section 703 is an expansive concept which sweeps within

its protective ambit the practice of creating a working en-

vironment heavily charged with ethnic or racial discrimina-

er”

m%

—_e

tion. * * * One can readily envision working environments

so heavily polluted with discrimination as to destroy com-

pletely the emotional and psychological stability of minori-

ty group workers, and I think Section 703 of Title VII was

aimed at the eradication of such noxious practices.

See also Wilson v. Woodward Iron Co., 362 F.Supp. 886, 896

(N.D. Ala. 1973). The language in Rogers is apposite to the

situation in this case.

The City provides the cooking facilities in each firehouse for

use by its on-duty personnel as part of their employment; it is

clear that city officials have been made aware of the segregated

eating arrangements in the firehouses for some time and have

protested their iiability to solve the problem to the district

court.

On remand of this case to the district court, that court should

renew the interest it had indicated it had in an ongoing review of

the supper club problem by supervising the Department’s pro-

mulgation of new regulations. Those regulations should provide

that use of city facilities by supper clubs may not continue in a

discriminatory and segregated manner. In other words the sup-

per clubs may not use City kitchen facilities if they refuse

membership to blacks. In this way the City may comport with

its duty to provide a non-discriminatory working environment;

additionally, the inclusion of blacks and the reduction of racial

tension in firehouses cannot help but aid the City as an

employer where the job at hand requires the close cooperation

of its employees and a concerted team effort.

Battalion Chief’s Exam and the Matter of George Horne

The F.1I.R.E.-Appellants have appealed the district court’s

decision that a prima facie case of racial discrimination was not

shown with respect to the use of the battalion chief’s examina-

tion. We affirm. It is undisputed that results from the exam

showed no disparate racial impact. Two of the three blacks who

a As?l =

took the examination passed it and at least one will be ap-

pointed to the higher level supervisory position. F.I.R.E.

argues, however, that a comparison of the racial composition of

the employment poo/ with the lack of black battalion chiefs

clearly suffices for a prima facie showing of racial discrimina-

tion. This argument is rejected. In Carter v. Gallagher, 452 F.2d

315, 323 (8th Cir. 1971), this court held that demographical

‘*{s]tatistical evidence can make a prima facie case of

discrimination’ in a situation where an all white 535 man Fire

Department operated in a large city with a 6.44 percent black

population. In St. Louis, eleven percent of the existing force is

black, and blacks will be hired at a 50 percent rate on the entry

level pursuant to the district court’s order.

In the case on which F.I.R.E. makes its primary*claim for

support, the court used census figures to supplement ‘‘meager

exam statistics’? which had shown a racial disparity. See Boston

Chapter N.A.A.C.P., Inc. v. Beecher, 504 F.2d 1017, 1020 (Ist

Cir. 1974). This is obviously not the case here.

Likewise, the district court is affirmed in the matter of

George Horne. The district court found that a union official

had written a letter to Mr. Horne in which he told him that'six

vacancies would be available. The district court also found that

a Deputy Chief had told Horne he would speak to the Fire Chief

concerning a promotion. However, only four new fire captains

were requisitioned by the Fire Department at. that time,

eliminating Horne from consideration prior to the expiration

of the eligibility list.

F.I.R.E. points to no evidence which suggests that racial

discrimination was the Department’s motive in making a re-

quest for four new captains. In fact, George Horne was sixth on

the eligibility list, and a white man who was fifth and would

precede Horne was also passed over for promotion. |

As a final matter, St. Louis has raised the issue of whether or

not the district court erred in not dismissing the suit brought by

-

7%

my < - e

the United States under 42 U.S.C. §§ 2000e-5(f) and 2000e-6

(b). It is the City’s contention that the United States could only

participate in this suit as an intervenor; that to bring their own

suit is duplicative and contrary to the intent of the statute. The

United States argues that St. Louis is precluded from raising this

issue because of failure to cross-appeal; that the suit by the

United States is brought on the basis of 47 charges filed with the

EEOC, 30 of which were not included in the F.I.R.E. com-

plaint; that the United States also proceeded under the pattern

and practice authority of § 200e-6 on behalf of the ‘‘public in-

terest’’ and accordingly, presents policy considerations different

from those presented by private litigants; and finally the con-

solidation of the cases provides an equivalent practical effect.

We agree with each of the reasons advanced by the United

States (with the exception of the second reason), and, in view of

the consolidation of the cases for trial, and the fact that

F.I.R.E. raised the same questions as the United States on ap-

peal, we do not consider our determination to be in conflict with

EEOC v. Missouri Pacific Railroad Co., 493 F.2d 71 (8th Cir.

1974).

A question is also raised concerning the jurisdiction of the

district court to enter its nunc pro tunc order of June 28, 1976.'‘

Without passing on this question we direct that at the time the

district court reassumes jurisdiction of the cases on remand, it

should reenter its order as of that date.

Also at that time the district court should award appropriate

attorney’s fees to F.I.R.E. for work prior to this appeal. The

court had previously indicated it was without jurisdiction to do

so after an appeal was taken. Attorney’s fees under Title VII

may be awarded pursuant to 42 U.S.C. § 2000e-5(k). The fees

awarded in this case, both on remand and upon completion of

'*See note 1, supra.

—*. oe

the balance of the case, should be in a fair and reasonable

amount in accordance with twelve guidelines set by the court in

Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (Sth

Cir. 1974). In our opinion the award of $3,000 suggested by the

trial court is grossly inadequate under these guidelines for work

done prior to appeal.

Accordingly, the judgment of the district court is affirmed in

part, and reversed and remanded in part for further proceedings

consistent with the views expressed in this opinion. Attorney’s

fees for this appeal will be awarded to F.I.R.E. upon submnis-

sion of affidavits relating to the guidelines described in Johnson

v. Georgia Highway Express, Inc., supra, 488 F.2d 714.

A true copy.

Attest:

Clerk, U.S. Court of Appeals, Eighth Circuit

oe

APPENDIX E

‘

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION ’

No. 74 - 200 C (3)

Unites States of America,

Plaintiff,

Vs.

City Of St. Louis, et al.,

Defendants.

No. 74 C 30 (3)

Firefighters Institute For Racial Equality, et al.,

Plaintiffs,

VS.

The City Of St. Louiis, Missouri, et al.,

Defendants.

ORDER

Pursuant to the mandate of the United States Court of Ap-

peals for the Eighth Circuit, and upon motions of the parties,

the Court hereby enters the following order in these causes. .

Prior thereto the Court expresses deep disappointment with the

intransigence of all parties and their continued unwillingness to

conscientiously and industriously seek. an acceptable procedure

for filling the numerous vacancies existing in the position Of Fire .

Captain, which vacancies should be filled if the’ safety of the

persons and properties of St. Louisans i is to be aqeured.

a7 ‘ -

IT IS HEREBY ORDERED thir the October 21, 1977 order Behe

of this Court be and jis set aside. " ‘

— Als —

IT IS FURTHER ORDERED, ADJUDGED, and

DECREED that this Court’s nunc pro tunc order of June 28,

1976 is hereby re-entered as of this date and made a part of this

order and that all reports and records as are provided for therein

shall be accessible to counsel for all parties.

IT IS FURTHER ORDERED, ADJUDGED, and

DECREED that, except as otherwise provided herein, defen-

dants, their officials, agents, employees and all persons acting in

concert with them are hereby permanently enjoined from engag-

ing in any act or practice with respect to promotions to the rank

of Fire Captain within the St. Louis Fire Department which has

the unlawful purpose or effect of discriminating against any

black applicant for such position because of race or color.

IT IS FURTHER ORDERED, ADJUDGED, and

DECREED that, except as otherwise provided herein, defen-

dants are permanently enjoined from making permanent or

temporary appointments or acting assignments to the position

of Fire Captain in any fashion which is in any respect based

upon the eligibility list or written test for Fire Captain prepared

in 1974,

IT IS FURTHER ORDERED, ADJUDGED, and

DECREED that, except as otherwise provided herein, defen-

dants shall make no appointments to the position of Fire Cap-

tain éxcept upon the basis of an examination process shown to

be valid in accordance with Title VII of the Civil Rights Act of

1964, as amended, and the guidelines of the Equal Employment

Opportunity Commission issued thereunder. If defendants wish

to assert the validity of an examination, they shall submit to

counsel for all parties at least sixty days prior to any intended

use, evidence of the validity of the elements of the process, in- .

cluding a copy of the validation study and all underlying

- documents or data concerning the development of the selection

process and its validity. If the parties are unable to agree upon

the validity of the process, the process shall not be utilized

— yo

unless and until the Court determines, upon motion and such

evidentiary hearing as it deems appropriate, that the process has

been properly validated. The examination, and copying of any

examination process by the parties herein, shall be subject to

such protective orders as the Court deems necessary.

IT IS FURTHER ORDERED, ADJUDGED, and

DECREED that pending development of a valid examination,

defendants may, if they so desire, make appointments to the

position of Fire Captain by utilizing the following procedure:

a) Within two weeks of this date, defendants shali, with

the assistance of the parties herein, prepare a racially-

identified list of all firefighters who have served five

years or more in the position of firefighter, in the

order of the departmental seniority date of each

firefighter. The sole purpose of such list shall be to

serve as the source for promotions as set forth in this

provision. The name of any firefighter eligible to be

included thereon shall be removed and not considered

if he so directs.

b) The black firefighter with the most departmental

seniority and the white firefighter with the most

departmental seniority shall then be evaluated by the

Assessment Center technique. The firefighter receiv-

ing the higher ranking evaluation between the two

shall be promoted, regardless of race or comparative

seniority. The other firefighter who is not promoted

shall then become eligible for the next Fire Captain

position to be filled. Also eligible for such position

- Shall be the black firefighter with the next longest

departmental seniority and the white firefighter with

the next longest departmental seniority, who shall

also both be evaluated by the Assessment Center

technique. The firefighter receiving the highest

evaluation of the three shall be promoted.

a AFT ee

c) The same procedure shall be followed for each vacancy

to be filled: with each appointment to a vacancy, the

applicant or applicants who had the lower evaluation

ratings and had not been appointed to prior vacancies

shall be eligible for the next appointment, along with

the remaining most senior black firefighter and the re- _

maining most senior white firefighter, who shall

likewise be evaluated by the Assessment Center

technique. The firefighter receiving the highest rank-

ing evaluation shall be promoted. Again, those

firefighters not so promoted shall then become eligi-

ble for the next Fire Captain position to be filled. The

defendants may fill as many vacancies in the position

of Fire Captain as they desire by following the forego-

ing procedure.

IT IS FURTHER ORDERED that, in any event, pending

development of a valid examination, the parties may agree upon

any procedure they choose for making permanent or temporary

or acting appointments to the position of Fire Captain.

IT IS FURTHER ORDERED, ADJUDGED, and

DECREED that defendants shall, within thirty days of this

date, submit to counsel for all parties appropriate regulations

assuring that persons will not be excluded on the basis of race or

color from communal eating arrangements within firehouses.

Upon agreement by the parties, the Court shall order the im-

plementation of such regulations. If the parties fail to agree, the

matter shall be submitted to the Court for resolution.

IT IS FURTHER ORDERED, ADJUDGED, and

DECREED that defendants shall retain for a period of five

years all records relating to the screening, selection and appoint-

mefit of persons for the pésition of Fire Captain, including all

applications, idefitified by race, and all ¢gecords ,relating to the

selection procedure. Counsel for ‘all parties shall have the right

. to inspect and copy all’such documents upon reasonable notice

to defendants withdut further order of the Caurt.

%

— A-78 —

IT IS FURTHER ORDERED, ADJUDGED, and

DECREED that defendants shall submit, together with the

reports required in the June 28, 1976 nunc pro tunc order incor-

porated herein,

a) the name, address, telephone number, date of appoint-

ment and race of each person appointed to the Pposi-

tion of Fire Captain;

b) the number of persons identified by race who were dis-

qualified for appointment to the position of Fire Cap-

tain, classified by the reason for disqualification;

* c) the name, address, telephone number and race of each

person who failed to complete probation as a Fire

Captain;

d) a racially-identified copy of any eligibility list for Fire

Captain established during that period;

€) a racially-identified list of persons serving as acting

captains during the reporting period, showing hours

served for each person in that acting Capacity.

IT IS FURTHER ORDERED, ADJUDGED, and

DECREED that this Court retain jurisdiction of this action for

a period of five years for such further relief or other orders as

may be necessary or appropriate. At any time after five years

from date of entry of this order, defendants may move the

Court upon forty-five days’ notice to the parties for dissolution

of this order and upon their showing that the goals of this order

have been achieved, the order may be dissolved.

IT IS FURTHER ORDERED, ADJUDGED, and

DECREED ‘that plaintiffs shall be awarded costs incurred

herein.

— A-79 —

IT IS FURTHER ORDERED, ADJUDGED, and

DECREED that attorney’s fees in the amount of $12,250.00

shall be awarded to counsel for plaintiff “irefighters Institute

for Racial Equality.

/s/ John F. Nangle

UNITED STATES DISTRICT JUDGE

z Dated: January 26, 1978. ‘ '

=

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7 ° 4

°.

—_ wo

APPENDIX F

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

No. 74-200 C (3)

United States of America,

Plaintiff,

Vs.

City of St. Louis, et al.,

Defendants.

No. 74 C 30 (3)

Firefighters Institute For Racial Equality, et al.,

Plaintiff,

vs.

City Of St. Louis, Missouri, et al.,

Defendants.

ORDER

Pursuant to the mandate of the United States Court of Ap-

peals for the Eighth Circuit, and upon motion of the Parties, the

Court hereby enters the following order in these causes.

IT IS HEREBY ORDERED, ADJUDGED and DECREED

that the City of St. Louis shall immediately promote the top or

first twelve (12) black firefighters who passed the 1974 examina-

tion to the position of fire captain, if otherwise still qualified.

IT IS FURTHER ORDERED, ADJUDGED and DECREED

by this Court, in the exercise of its discretion, that the City of

St. Louis shall immediately promote the top or first twelve (12)

white firefighters who passed the 1974 examination to the Pposi-

tion of fire captain, if otherwise stil! qualified.

— A-81 —

IT IS FURTHER ORDERED, ADJUDGED, and

DECREED that any additional promotions which the City of

St. Louis desires to make prior to the development of a valid ex-

amination must be made in accordance with the Assessment

Center technique, as previously set forth by this Court in its

order of January 26, 1978.

IT IS FURTHER ORDERED, ADJUDGED, and

DECREED that the City of St. Louis, its agents, servants, and

employees and all persons acting in concert with them are

hereby permanently enjoined from making any assignments to

the position of acting fire captain that does unfairly disadvan-

tage black candidates for promotion and further, in order to im-

plement this the City of St. Louis is required to make said

assignments reflecting a fifty (50) per cent black ratio, as far as

practicable, pending the development of a valid examination.

IT IS FURTHER ORDERED, ADJUDGED, and

DECREED that the City of St. Louis utilize best efforts to

develop a properly validated examination for the position of fire

captain by January 1, 1979. The Court shall assist in the expedi-

tion of resolving any parties’ objections to said examination.

IT IS FURTHER ORDERED, ADJUDGED, and

DECREED that F.I.R.E. be awarded the further sum of Four

Thousand dollars ($4,000.00) for attorney’s fee.

/s/ John F. Nangle

UNITED STATES DISTRICT JUDGE

Dated: December 19, 1978.

— A-82 —

APPENDIX G

Pertinent Provisions Of Title VII Of The

Civil Rights Act Of 1964, As Amended

42 U.S.C. § 2000e. Definitions

For the purposes of this subchapter—

(a) The term ‘‘person’’ includes one or more individuals,

governments, governmental agencies, political subdivisions,

labor unions, partnerships, associations, corporations, legal

representatives, mutual companies, joint-stock companies,

trusts, unincorporated organizations, trustees, trustees in

bankruptcy, or receivers.

(b) The term ‘‘employer’”’ means a person engaged in an in-

dustry affecting commerce who has fifteen or more employees

for each working day in each of twenty or more calendar weeks

in the current or preceding calendar year, and any agent of such

a person, but such term does not include (1) the United States, a

corporation wholly owned by the Government of the United

States, an Indian tribe, or any department or agency of the

District of Columbia subject by statute to procedures of the

competitive service (as defined in section 2102 of Title 5), or (2)

a bona fide private membership club (other than a labor

organization) which is exempt from taxation under section

501(c) of Title 26, except that during the first year after March

24, 1972, persons having fewer than twenty-five employees (and

their agents) shall not be considered employers.

.' ¢ &*

(f) The term ‘‘employee’’ means an individual employed by

an employer, except that the term “‘employee’’ shall not include

any person elected to public office in any State or political sub-

division of any State by the qualified voters thereof, or any per-

son chosen by such officer to be on such officer’s personal staff,

or an appointee on the policy making level or an immediate ad-

— A-83 —

viser with respect to the exercise of the constitutional or legal

powers of the office. The exemption set forth in the preceding

sentence shall not include employees subject to the civil service

laws of a State government, governmental agency or political

subdivision.

(g) The term ‘‘commerce’’ means trade, traffic, commerce,

transportation, transmission, or communication among the

several States; or between a State and any place outside thereof;

or within the District of Columbia, or a possession of the United

States; or between points in the same State but through a point

outside thereof.

(h) The term ‘‘industry affecting commerce’’ means any ac-

tivity, business, or industry in commerce or in which a labor

dispute would hinder or obstruct commerce or the free flow of

commerce and includes any activity or industry ‘‘affecting com-

merce’’ within the meaning of the Labor-Management Repor-

ting and Disclosure Act of 1959, and further includes any

governmental industry, business, or activity.

(i) The term ‘‘State’’ includes a State of the United States,

the District of Columbia, Puerto Rico, the Virgin Islands,

American Samoa, Guam, Wake Island, the Canal Zone, and

Outer Continental Shelf lands defined in the Outer Continental

Shelf Lands Act.

._ * *

Pub.L. 88—352, Title VII, § 701, July 2, 1964, 78 Stat. 253;

Pub.L. 89—554, §8(a), Sept. 6, 1966, 80 Stat. 662; Pub.L.

92-261, § 2, Mar. 24,1972, 86 Stat. 103.

42 U.S.C. § 2000e-2. Unlawful employment practices—Em-

ployer practices

(a) It shall be an unlawful employment practice for an

employer—

en el as

(1) to fail or refuse to hire or to discharge any individual, or

otherwise to discriminate against any individual with respect to

his compensation, terms, conditions, or privileges of employ-

ment, because of such individual’s race, color religion, sex, or

national origin; or

(2) to limit, segregate, or classify his employees or applicants

for employment in any way which would deprive or tend to

deprive any individual of employment opportunities or other-

wise adversely affect his status as an employee, because of such

individual’s race, color, religion, sex, or national origin.

(h) Notwithstanding any other provision of this subchapter,

it shall not be unlawful employment practice for an employer to

apply different standards of compensation, or different terms,

conditions, or privileges of employment pursuant to a bona fide

seniority or merit system, or a system which measures earnings

by quantity or quality of production or to employees who work

in different locations, provided that such differences are not the

result of an intention to discriminate because of race, color,

religion, sex, or national origin, nor shall it be an unlawful

employment practice for an employer to give and to act upon

the results of any professionally developed ability test provided

that such test, its administration or action upon the results is not

designed, intended or used to discriminate because of race, col-

or, religion, sex or national origin. It shall not be an unlawful

employment practice under this subchapter for any employer to

differentiate upon the basis of sex in determining the amount of

the wages or compensation paid or to be paid to employees of

such employer if such differentiation is authorized by the provi-

sions of section 206(d) of Title 29.

(j) Nothing contained in this subchapter shall be interpreted

to require any employer, employment agency, labor organiza-

tion, or joint labor-managment committee subject to this sub-

— A-85 —

chapter to grant preferential treatment to any individual or to’

any group because of the race, color, religion, sex, or national

origin of such individual or group on account of an imbalance

which may exist with respect to the total number or percentage

of persons of any race, color, religion, sex, or national origin

employed by any employer, referred or classified for employ-

ment by any employment agency or labor organization, admit-

ted to membership or classified by any labor organization, or

admitted to, or employed in, any apprenticeship or other train-

ing program, in comparison with the total number or percentage

of persons of such race, color, religion, sex, or national origin in

any community, State, section, or other area, or in the available

work force in any community, State, section, or other area.

Pub.L. 88—352, Title VII, § 703, July 2, 1964, 78 Stat. 255;

Pub.L. 92—261, § 8(a), (6), Mar.24, 1972, 86 Stat. 109.

— A-86 —

APPENDIX H

Uniform Guidelines on Employee Selection Procedures (1978)

43 Fed. Reg. 38290 (Aug. 25, 1978)

Title 29—Labor

CHAPTER XIV—EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

PART 1607—UNIFORM GUIDELINES ON

EMPLOYEE SELECTION PROCEDURES (1978)

Title 5—Administrative Personnel

CHAPTER 1—CIVIL SERVICE COMMISSION

PART 300—EMPLOYMENT (GENERAL)

Title 283—Judicial Administration

CHAPTER 1—DEPARTMENT OF JUSTICE

PART 50—STATEMENTS OF POLICY

Title 41—Public Contracts and Property Management

CHAPTER 60—OFFICE OF FEDERAL CONTRACT

COMPLIANCE PROGRAMS, DEPARTMENT OF LABOR

PART 60-3— UNIFORM GUIDELINES ON EMPLOYER

SELECTION PROCEDURES (1978)

Adoption of Employee Selection Procedures

AGENCIES: Equal Employment Opportunity Commission,

Civil Service Commission, Department of Justice and Depart-

ment of Labor.

ACTION: Adoption of uniform guidelines on employee

selection procedures as final rules by four agencies.

SUMMARY: This document sets forth the uniform

guidelines on employee selection procedures adopted by the

equal Employment Opportunity Commission, Civil Service

Commission, Department of Justice, and the Department of

Labor. At present two different sets of guidelines exist. The

guidelines are intended to establish a uniform Federal position

in the area of prohibiting discrimination in employment prac-

tices on grounds of race, color, religion, sex, or national origin.

—.

Cross reference documents are published at 5 CFR 300.103(c)

(Civil Service Commission), 28 CFR 50.14 (Department of

Justice), 29 CFR Part 1607 (Equal Employment Opportunity

Commission), and 41 CFR Part 60-3 (Department of Labor)

elsewhere in this issue.

EFFECTIVE DATE: September 25, 1978.

FOR FURTHER INFORMATION CONTACT: [Omitted in

printing. }

SUPPLEMENTARY INFORMATION:

An Overview of the 1978 Uniform Guidelines

On Employee Selection Procedures

I. BACKGROUND

One problem that confronted the Congress which adopted the

Civil Rights Act of 1964 involved the effect of written

preemployment tests on equal employment opportunity. The

use of these test scores frequently denied employment to

minorities in many cases without evidence that the tests were

related to success on the job. Yet employers wished to continue

to use such tests as practical tools to assist in the selection of

qualified employees. Congress sought to strike a balance which

would proscribe discrimination, but otherwise permit the use of

tests in the selection of employees. Thus, in title VII, Congress

authorized the use of ‘‘any professionally developed ability test

provided that such test, its administration or action upon the

results is not designed intended or used to discriminate ***’’.'

At first, some employers contended that, under this section,

they could use any test which had been developed by a profes-

sional so long as they did not intend to exclude minorities, even

if such exclusion was the consequence of the use of the test. in

‘Section 703(h), 42 U.S.C. 2000e(2)(h).

— A-88 —

1966, the Equal Employment Opportunity Commission

(EEOC) adopted guidelines to advise employers and other users

what the law and good industrial psychology practice required.?

the Department of Labor adopted the same approach in 1968

with respect to tests used by Federal Contractors under Ex-

ecutive Order 11246 in a more detailed regulation. The Govern- '

ment’s view was that the employer’s intent was irrelevant. If

tests or other practices had an adverse impact on protected *

groups, they were unlawful unless they could be justified. To

justify a test which screened out a~ higher proportion of

minorities, the employer would have to show that it fairly

measured or predicted performance on the job. Otherwise, it’

would not be considered to be ‘professionally developed.”’

In succeeding years, the EEOC and the Department of Labor

provided more extensive guidance which elaborated upon these

principles and expanded the guidelines to emphasize all selection

procedures. In 1971 in Griggs v. Duke Power Co.,' the Supreme

Court announced the principle that employer practices which

had an adverse impact on minorities and were not justified by

business necessity constituted illegal discrimination under title

VII. Congress confirmed this interpretation in the 1972 amend-

men

This text is long and has been trimmed here. Open the source document for the complete record.