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

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## Record

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

## Text

IN THE

Supreme Court of the United States

OcTOBER TERM 1979

City OF St. Louis, et ai.,
Petitioners,

Vv.

THE UNITED 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.

— 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

aE is

VIII. SIMPLIFICATION OF
REPORTING AND
RECORDKEEPING REQUIREMENTS

The reporting and recordkeeping provisions which appeared
in the December 30 draft which was published for comment
have been carefully reviewed in light of comments received and
President Carter’s direction to limit paperwork burdens on
those regulated by Government to the minimum necessary for
effective regulation. As a result of this review, two major
changes have been made in the documentation requirements of
the guidelines:

(1) A new section 15A(1) provides a simplified recordkeeping
option for employers with fewer than 100 employees;

(2) Determinations of the adverse impact of selection pro-
cedures need not be made for groups which constitute less than
2 percent of the relevant labor force.

Also, the draft has been changed to make clear that users can
assess adverse impact on an annual basis rather than on a con-
tinuing basis.

Analysis of comments. The uniform guidelines published to-
day are based upon the proposition that the Federal Govern-
ment should speak to the public and to those whom it regulates
with one voice on this important subject; and that the Federal
Government ought to impose upon itself obligations for equal
employment opportunity which are at least as demanding as
those it seeks to impose on others. These guidelines state a
uniform Federal position on this subject, and are intended to
protect the rights created by title VII of the Civil Rights Act of
1964, as amended, Executive Order 11246, as amended, and
other provisions of Federal law. The uniform guidelines are also
intended to represent ‘‘professionally acceptable methods’’ of
the psychological profession for demonstrating whether a selec-
tion procedure validily predicts or measures performance for a

—h ~

particular job. Albemarle Paper Co. v. Moody, 442 U.S. 405,
425. They are also intended to be consistent with the decisions
of the Supreme Court and authoritative decisions of other ap-
pellate courts.

Although the development of these guidelines preceded the is-
suance by President Jimmy Carter of Executive Order 12044
designed to improve the regulatory process, the spirit of his Ex-
ecutive order was followed in their development. Initial agree-
ment among the Federal agencies was reached early in the fall of
1977, and the months froia October 1977 until today have been
spent in extensive consultation with civil rights groups whose
clientele are protected by these guidelines; employers, labor
unions, and State and local governments whose employment
practices are affected are affected by these guidelines; State and
local government antidiscrimination agencies who share with
the Federal Government enforcement responsibility for dis-
criminatory practices; and appropriate members of the general
public. For example, an earlier draft of these guidelines was cir-
culated informally for comment on October 28, 1977, pursuant
to OMB Circular A-85. Many comments were received from
representatives of State and local governments, psychologists,
private employers, and civil rights groups. Those comments
were taken into account in the draft of these guidelines which
was published for comment December 30, 1977, 42 FR 66542.

More than 200 organizations and indi’'iduals submitted writ-
ten comments on the December 30, 1977, draft. These com-
ments were from representatives of private industry, public
employers, labor organizations, civil rights groups, the
American Psychological Association and components thereof,
and many individual employers, psychologists, and personnel
specialists. On March 3, 1978, notice was given of a public hear-
ing and meeting to be held on April 10, 1978, 42 FR 9131. After
preliminary review of the comments, the agencies identified
four issues of particular interest, and invited testimony par-
ticularly on those issues, 43 FR 11812 (March 21, 1978). In the

— A-98 —

same notice the agencies published questions and answers on
four issues of concern to the commenters. The questions and
answers were designed to clarify the intent of the December 30,
1977, draft, so as to provide a sharper focus for the testimony at
the hearing.

At a full day of testimony on April 10, 1978, representatives
of private industry, State and local governments, labor
organizations, and civil rights groups, as well as psychologists,
personnel specialists, and others testified at the public hearing
and meeting. The written comments, testimony, and views ex-
pressed in subsequent informal consultations have been careful-
ly considered by the four agencies. We set forth below a sum-
mary of the comments, and the major issues raised in the com-
ments and testimony, and attempt to explain how we have
resolved those issues.

The statement submitted by the American Psychological
Association (A.P.A.) stated that ‘‘these guidelines represent a
major step forward and with careful interpretation can provide
a sound basis for concerned professional work.’’ Most of the
A.P.A. comments were directed to clarification and interpreta-
tion of the present language of the proposal. However, the
A.P.A. recommended substantive change in the construct
validity section and in the definition of work behavior.

Similarly, the Division of Industrial and Organizational
Psychology (division 14) of the A.P.A. described the technical
standards of the guidelines as ‘‘superior’’ in terms of the con-
gruence with professional standards to ‘‘most previous orders
and guidelines but numerous troublesome aspects remain.”’
Division 14 had substantial concerns with a number of the pro-
visions of the general principles of the draft.

Civil rights generally found the uniform guidelines far
superior to the FEA guidelines, and many urged the adoption,
with modifications concerning ranking and documentation.
Others raised concerns about the ‘“‘bottom line’’ concept and
other provisions of the guidelines.

7 en

The Ad Hoc Group on Employee Selection Procedures repre-
senting many employers in private industry supported the con-
cept of uniform guidelines, but had a number of problems with
particular provisions, some of which are described below. The
American Society for Personnel Administration (ASPA) and
the International Personnel Management Association, which
represents State and local governments, generally took the same
position as the ad hoc group. Major industrial unions found
that the draft guidelines were superior to the FEA guidelines,
but they perceived them to be inferior to the EEOC guidelines.
They challenged particularly the bottom line concept and the
construct validity section.

The building trade unions urged an exclusion of apprentice-
ship programs from coverage of the guidelines. The American
Council on Education found them inappropriate for employ-
ment decisions concerning faculty at institutions of higher
education. Other particular concerns were articulated by
organizations representing the handicapped, licensing and certi-
fying agencies, and college placement offices.

General Principles

1. Relationship between validation and elimination of
adverse impact, and affirmative action. Federal equal employ-
ment opportunity law generally does not require evidence of
validity for a selection procedure if there is not adverse impact;
e.g., Griggs v. Duke Power Co., 401 U.S. 424. Therefore, a user
has the choice of complying either by providing evidence of
validity (or otherwise justifying use in accord with Federal law),
or be eliminating the adverse impact. These options have always
been present under Federal law, 29 CFR 1607.3; 41 CFR
60-3.3(a); and the Federal Executive Agency Guidelines, 41 FR
51734 (November 23, 1976). The December 30 draft guidelines,
however, clarified the nature of the two options open to users.

— A-100 —

Psychologists expressed concern that the December 30 draft
of section 6A encouraged the use of invalid procedures as long
as there is no adverse impact. Employers added the concern that
the section might encourage the use of illegal procedures not
having an adverse impact against the groups who have histor-
ically suffered discrimination (minorities, women), even if they
have an adverse impact on a different group (whites, males).

Section 6A was not so intended, and we have revised it to
clarify the fact that illegal acts purporting to be affirmative ac-
tion are not the goal of the agencies or of the guidelines; and
that any employee selection procedure must be lawful and
should be as job related as possible. The delineation of examples
of alternative procedures was eliminated to avoid the implica-
tion that particular procedures are either prescribed or are
necessarily appropriate. The basic thrust of Section 6A, that
elimination of adverse impact is an alternative to validation, is
retained.

The inclusion of excerpts from the 1976 Equal Employment
Opportunity Coordinating Council Policy Statement of Affir-
mative Action in section 13B of the December 30 draft was
criticized as not belonging in a set of guidelines for the valida-
tion of selection procedures. Section 13 has been revised. The
general statement of policy in support of voluntary affirmative
action, and the reaffirmation of the policy statement have been
retained, but this statement itself is now found in the appendix
to the guidelines.

2. The “‘bottom line’’ (section 4C). The guidelines provide
that when the overall selection process does not have an adverse
impact the Government will usually not examine the individual
components of that process for adverse impact or evidence of
validity. The concept is based upon the view that the Federal
Government should not generally concern itself with individual
components of a selection process, if the overall effect of that
process is nonexclusionary. Many commenters criticized the am-
biguity caused by the word ‘‘generally’”’ in the December 30

-*%

— A-101 —

draft of section 4C which provided, ‘‘the Federal enforcement
agencies * * * generally will not take enforcement action based
upon adverse impact of any component”’ of a process that does
not have an overall adverse impact. Employer groups stated the
position that the ‘‘bottom line’’ should be a rule prohibiting en-
forcement action by Federal agencies with respect to all or any
part of a selection process where the bottom line does not show
adverse impact. Civil rights and some labor union represen-
tatives expressed the opposing concerns that the concept may be
too restrictive, of law, and that it might allow certain discrimi-
natory conditions to go unremedied.

The guidelines have been revised to clarify the intent that the
bottom line concept is based upon administrative and pros-
ecutorial discretion. The Federal agencies cannot accept the rec-
ommendation that they never inquire into or take enforcement
action with respect to any component procedure unless the
whole process of which it is a part has an adverse impact. The
Federal enforcement agencies believe that enforcement action
may be warranted in unusual circumstances, such as those in-
volving other discriminatory practices, or particular selection
procedures which have no validity and have a clear adverse im-
pact on a national basis. Other unusual circumstances may war-
rant a high level agency decision to proceed with enforcement
actions although the ‘‘bottom line’’ has been satisfied. At the
same time the agencies adhere to the bottom line concept of
allocating resources primarily to those users whose overall selec-
tion processes have an advese impact. See overview, above, part
III.

3. Investigation of alternative selection procedures and alter-
native methods of use (section 3B). The December draft in-
cluded an obligation on the user, when conduction a validity
study, to investigate alternative procedures and uses, in order to
determine whether there are other procedures which are
substantially equally valid, but which have less adverse impact.
The American Psychological Association stated:

*%

= Ai —

*‘We would concur with the drafters of the guidelines
that it is appropriate in the determination of a selection
strategy to consider carefully a variety of possible pro-
cedures and to think carefully about the question of
adverse impact with respect to each of those procedures.
Nevertheless, we feel it appropriate to note that a rigid en-
forcement of these sections, particularly for small em-
ployers, would impose a substantial and expensive burden
on those employers.’’

Since a reasonable consideration of alternatives is consistent
with the underlying principle of minimizing adverse impact con-
sistent with business needs, the provision is retained.

Private employer representatives challenged earlier drafts of
these guidelines as being inconsistent with the decision of the
Supreme Court in Albemarle Paper Co. v. Moody, 422 U.S.
405. No such inconsistency was intended. Accordingly, the first
sentence of section 3B was revised to paraphrase the opinion in
the Albemarle decision, so as to make it clear that section 3B is
in accord with the principles of the Albemarle decision.

Section 3B was further revised to clarify the intent of the
guidelines that the obligation to investigate alteraative pro-
cedures is a part of conducting a validity study, so that alter-
native procedures should be evaluated in light of validity studies
meeting professional standards, and that section 3B does not
impose an obligation to search for alternatives if the user is not
required to conduct a validity study.

Just as, under section 3B of the guidelines, a user should in-
vestigate alternative selection procedures as a part of choosing
and validating a procedure, so should the user investigate alter-
native uses of the selection device chosen to find the use most
appropriate to his needs. The validity study should address the
question of what method of use (screening, grouping, or rank
ordering) is appropriate for a procedure based on the kind and
strength of the validity evidence shown, and the degree of
adverse impact of the different uses.

*%

— A-103 —

4. Establishment of cutoff scores and rank ordering. Some
commenters from civil rights groups believed that the December
30 draft guidelines did not provide sufficient guidelines as to
when it was permissible to use a selection procedure on a rank-
ing basis rather than on a pass-fail basis. They also objected to
section 5G in terms of setting cutoff scores. Other comments
noted a lack of clarity as to how the determination of a cutoff
score or the use of a procedure for ranking candidates relates to
adverse impact.

As we have noted, users are not required to validate pro-
cedures which do not have an adverse impact. However, if one
way of using a procedure (e.g., for ranking) results in greater
adverse impact than another way (e.g., pass/fail), the procedure
must be validated for that use. Similarly, cutoff scores which
result in adverse impact should be justified. If the use of a
validated procedure for ranking results in greater adverse im-
pact than its use as a screening device, the evidence of validity
and utility must be sufficient to warrant use of the procedures as
a ranking device.

A new section 5G has been added to clarify these concepts.
Section 5H (formerly section 5G) addresses the choice of a
cutoff score when a procedure is to be used for ranking.

5. Scope: Requests for exemptions for certain classes of
users. Some employer groups and labor organizations (e.g.,
academic institutions, large public employers, apprenticeship
councils) argued that they should be exempted from all or some
the provisions of these guidelines because of their special needs.
The intent of Congress as expressed in Federal equal employ-
ment opportunity law is to apply the same standards to all users,
public and private.

These guidelines apply the same principles and standards to
all employers. On the other hand, the nature of the procedures
which will actually meet those principles and standards may be
different for different employers, and the guidelines recognize

— A-104 —

that fact. Accordingly, the guidelines are applicable to all
employers and other users who are covered by Federal equal
employment opportunity law.

Organizations of handicapped persons objected to excluding
from the scope of these guidelines the enforcement of laws pro-
hibiting discrimination on the basis of handicap, in particular
the Rehabilitation Act of 1973, sections 501, 503, and 504.
While this issue has not been addressed in the guidelines,
nothing precludes the adoption of the principles set forth in
these guidelines for other appropriate situations.

Licensing and certification boards raised the question of the
applicability of the guidelines to their licensing and certification
functions. The guidelines make it clear that licensing and cer-
tification are covered ‘‘to the extent’’ that licensing and cer-
tification may be covered by Federal equal employment oppor-
tunity law.

Voluntary certification boards, where certification is not re-
quired by law, are not users as defined in section 16 with respect
to their certifying functions and therefore are not subject to
these guidelines. If an employer relies upon such certification in
making employment decisions, the employer is the user and
must be prepared to justify, under Federal law, that reliance as
it would any other selection procedure.

6. The ‘‘Four-Fifths Rule of Thumb”’ (section 4D). Some
representatives of employers and some professional suggest that
the basic test for adverse impact should be a test of statistical
significance, rather than the four-fifths rule. Some civil rights
groups, on the other hand, still regard the four-fifths rule as
permitting some unlawful discrimination.

The Federal agencies believe that neither of these positions is
correct. The great majority of employers do not hire, promote,
or assign enough employees for most jobs to warrant primary
reliance upon statisical significance. Many decisions in day-to-

— A-105 —

day life are made on the basis of information which does not
have the justification of a test of statistical significance. Courts
have found adverse impact without a showing of statistical
significance. Griggs v. Duke Power Co., supra; Vulcan Society
of New York v. CSC of N.Y., 490 F.2d 387, 393 (2d Cir. 1973);
Kirkland v. New York St. Dept. of Corr. Serv., 520 F.2d 420,
425 (2d Cir. 1975).

Accordingly, the undersigned believe that while the four-
fifths rules does not define discrimination and does not apply in
all cases, it is appropriate as a rule of thumb in identifying
adverse impact.

Technical Standards

7. Criterion-related validity (section 14B). This section of the
guidelines found general support among the commenters from
the psychological profession and, except for the provisions con-
cerning test fairness (sometimes mistakenly equated with dif-
ferential prediction or differential validity), generated relatively
little comment.

The provisions of the guidelines concerning criterion-related
validity studies call for studies of fairness of selections pro-
cedures where technically feasible.

Some 14B(8). Some psychologists and employer groups ob-
jected that the concept of test fairness or unfairness has been
discredited by professionals and pointed out that the term is
commonly misused. We recognize that there is serious debate on
the question of test fairness; however, it is accepted profes-
sionally that fairness should be examined where feasible. The
A.P.A. standards for educational and psychological tests, for
example, direct users to explore the question of fairness on find-
ing a difference in group performances (section E9, pp. 43-44).
Similarly the concept of test fairness is one which is closely
related to the basic thrust of Federal equal employment oppor-

— A-106 —

tunity law; and that concept was endorsed by the Supreme
Court in Albemarle Paper Co. v. Moody, 422 U.S. 405.

Accordingly, we have retained in the guidelines the obligation
upon users to investigate test fairness where it is technically
feasible to do so.

8. Content validity. The Division of Industrial and Organiza-
tional Psychology of A.P.A. correctly perceived that the provi-
sions of the draft guidelines concerning content validity, with
their emphasis on observable work behaviors or work products,
were “‘greatly concerned with minimizing the inferential leap be-
tween test and performance.’’ That division expressed the view
that the draft guidelines neglected situations where a knowl-
edge, kill or ability is necessary to an outcome but where the
work behavior cannot be replicated in a test. They recommend-
ed that the section be revised.

We believe that the emphasis on observable work behaviors
or observable work products is appropriate; and that in order to
show content validity, the gap between the test and performance
on the job should be a small one. We recognize, however, that
content validity may be appropriate to support a test which
measures a knowledge, skill, or ability which is a necessary
prerequisite to the performance of the job, even though the test
might not be close enough to the work behavior to be con-
sidered a work sample, and the guidelines have been revised ap-
propriately. On the other hand, tests of mental processes which
are not directly observable and which may be difficult to deter-
mine on the basis of observable work behaviors or work pro-
ducts should not be supported by content validity.

Thus, the Principles for the Validation and Use of Personnel
Selection Procedures (Division of Industrial and Organizational
Psychology, American Psychological Association, 1975, p. 10),
discuss the use of content validity to support tests of **specific
items of knowledge, or specific job skills,’’ but call attention to

> '

— A-107 —

the inappropriateness of attempting to justify tests for traits or
constructs on a content validity basis.

9. Construct validity (section 14D). Business groups and pro-
fessionals expressed concern that the construct validity re-
quirements in the December 30 draft were confusing and
technically inaccurate. As section 14D indicates, construct
validity is a relatively new procedure in the field of personnel
selection and there is not yet substantial guidance in the profes-
sional literature as to its use in the area of employment prac-
tices. The provisions on construct validity have been revised to
meet the concerns expressed by the A.P.A. The construct validi-
ty section as revised clarifies what is required by the Federal en-
forcement agencies at this stage in the development of construct
validity. The guidelines leave open the possibility that different
evidence of construct validity may be accepted in the future, as
new methodologies develop and become incorporated in profes-
sional standards and other professional literature.

10. Documentation (section 15). Commenters stated that the
documentation section did not conform to the technical re-
quirements of the guidelines or was otherwise inadequate. Sec-
tion 15 has been clarified and two significant changes have been
made to minimize the recordkeeping burden (See overview, part
VIII).

11. Definitions (section 16). The definition of work behavior
in the December 30, 1977 draft was criticized by the A.P.A. and
others as being too vague to provide adequate guidance to those
using the guidelines who must identify work behavior as a part
of any validation technique. Other comments criticized the
absence or inadequacies of other definitions, especially
‘*adverse impact.’’ Substantial revisions of and additions to this
section were therefore made. —

— A-108 —

UNIFORM GUIDELINES ON
EMPLOYEE SELECTION
PROCEDURES (1978)

Note.—These guidelines are issued jointly by four agencies.
Separate official adoptions follow the guidelines in this part IV
as follows: Civil Service Commission, Department of Justice,
Equal Employment Opportunity Commission, Department of
Labor.

For official citation see section 18 of these guidelines.

TABLE OF CONTENTS
GENERAL PRINCIPLES

1, Statement of Purpose
A. Need for Uniformity—Issuing Agencies
B. Purpose of Guidelines

C. Relation to Prior Guidelines

2. Scope
A. Application of Guidelines
B. Employment Decision
C. Selection Procedures
D. Limitations
E. Indian Preference Not Affected

3. Discrimination Defined: Relationship Between Use of Selec-
tion Procedures and Discrimination

A. Procedure Having Adverse Impact Constitutes
Discrimination Unless Justified

B. Consideration of Suitable Alternative Selection Pro-
cedures

— A-109 —

4. Information on Impact
A. Records Concerning Impact

B. Applicable Race, Sex and Ethnic Groups For Record
Keeping :

C. Evaluation of Selection Rates. The ‘‘Bottom Line’’
Adverse Impact And The ‘‘Four-Fifths Rule’’

E. Consideration of User’s Equal Employment Oppor-
tunity Posture

5. General Standards for Validity Studies

A. Acceptable types of Validity Studies
Criterion-Related, Content, and Construct Validity fhe
Guidelines Are Consistent with Professional Standards =
Need For Documentation of Validity

Accuracy and Standardization

- roe

Caution Against Selection on Basis of Knowledges,
Skills or Abilities Learned in Brief Orientation Period

G. Method of Use of Selection Procedures
Cutoff Scores
I. Use of Selection Procedures of Higher Level Jobs
J. Interim Use of Selection Procedures
K. Review of Validity Studies for Currency
6. Use of Selection Procedures Which Have Not Been Validated

A. Use of Alternative Selection Procedures to Eliminate
Adverse Impact

— A-110 —
B. Where Validity Studies Cannot or Need Not Be
Performed
(1) Where Informal or Unscored Procedures Are Used
(2) Where Formal And Scored Procedures Are Used
7. Use of Other Validity Studies
A. Validity Studies not Conducted by the User

B. Use of Criterion-Related Validity Evidence from
Other Sources

(1) Validity Evidence
(2) Job Similarity
(3). Fairness Evidence
C. Validity Evidence from Multi-Unit Study
D. Other Significant Variables
8. Cooperative Studies
A. Encouragement of Cooperative Studies
B. Standards for Use of Cooperative Studies
9. No Assumption of Validity
A. Unacceptable Substitutes for Evidence of Validity
B. Encouragement of Professional Supervision
10. Employment Agencies and Employment Services
A. Where Selection Procedures Are Devised by Agency
B. Where Selection Procedures Are Devised by Elsewhere

11. Disparate Treatment

— A-lll —

12. Retesting of Applicants
13. Affirmative Action
A. Affirmative Action Obligations

B. Encouragement of Voluntary Affirmative Action
Programs

%

TECHNICAL STANDARDS
14. Technical Standards for Validity Studies

A. Validity Studies Should be Based on Review of Infor-
mation about the Job

B. Technical Standards for Criterion-Related Validity
Studies

(1) Technical Feasibility
(2) Analysis of the Job
(3) Criterion Measures
(4) Representatives of the Sample
(5) Statistical Relationships
, (6) Operational Use of Selection Procedures
(7) Over-Statement of Validity Findings
(8) Fairness
(a) Unfairness Defined
(b) Investigation of Fairness
(c) General Considerations in Fairness Investigations

(d) When Unfairness Is Shown

(e) Technical Feasibility of Fairness Studies

i

°e

A.

— A-112 —
Continued Use of Selection Procedures When Fair-
ness Studies not Feasible
Technical Standards for Content Validity Studies
Appropriateness of Content Validity Studies
Job Analysis for Content Validity
Development of Selection Procedure
Standards For Demonstrating Content Validity
Reliability
Prior Training or Experience
Training Success
Operational Use
Ranking Based on Content Validity Studies
Technical Standards For Construct Validity Studies
Appropriateness of Construct Validity Studies
Job Analysis For Construct Validity
Relationship to the Job

Use of Content Validity Study Without New
Criterion-Related Evidence

Standards for Use

Determinations of Common Work Behaviors

DOCUMENTATION OF IMPACT
AND VALIDITY EVIDENCE

15. Documentation of Impact and Validity Evidence

Required Information

(1)

(2)
(a)

(9)

— A-113 —
Simplified Recordkeeping for Users With Less Than
100 Employees
Information on Impact
Collection of Information on Impact

When Adverse Impact Has Been Eliminated in The
Total Selection Process

When Data Insufficient to Determine Impact
Documentation of Validity Evidence

Type of Evidence

Form of Report

Completeness

Criterion-Related Validity Studies

User(s), Location(s), and Date(s) of Study
Problem and Setting

Job Analysis or Review of Job Information
Job Titles and Codes

Criterion Measures

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0053%3A2. Public record. Not legal advice.