Appendix — Personnel Board of Jefferson County v. United States

a 0 -4 0 6 | mess ‘> : S.

No. SEP 13 1980

Supreme Court of the United States

OCTOBER TERM, 1980

THE PERSONNEL BOARD OF JEFFERSON COUNTY, ALABAMA,

Petitioner,

versus

THE UNITED STATES OF AMERICA,

Respondent.

THE PERSONNEL BOARD OF JEFFERSON COUNTY, ALABAMA,

Petitioner,

versus

ENSLEY BRANCH OF THE NATIONAL ASSOCIATION

For THE ADVANCEMENT OF COLORED PEOPLE, ef al.,

Respondents.

THE PERSONNEL BOARD OF JEFFERSON COUNTY, ALABAMA,

Petitioner,

versus

JOHN W. MarrTIN, ef al.,

Respondent.

THE PERSONNEL BOARD OF JEFFERSON COUNTY, ALABAMA,

Petitioner,

versus

Lucy WALKER, ef al.,

Respondents.

APPENDIX TO PETITION

FOR A WRIT OF CERTIORARI

to the United States Court of Appeals

for the Fifth Circuit

HuBertT A. GrissSoM, JR.

Davip P. WHITESIDE, JR.

Of Counsel: Attorneys for Petitioners

JOHNSTON, BARTON, PROCTOR,

SWEDLAW & NAFF

Twelfth Floor, Bank for Savings Building

Birmingham, Alabama 35203

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

~-.

TABLE OF CONTENTS

Page

Appendix A - Order of U.S. Court of Appeals Denying

Petition For Rehearing ............... A-l

Appendix B - Opinion of U.S. Court of Appeals ..... A-3

Appendix C - Opinion of U.S. District Court ........ A-28

Appendix D - Order of U.S. District Court .......... A-64

Appendix E - Civil Rights Act of 1964 (42 U.S.C.

SS oS ca cane aci enon ey Suhaeees A-66

Appendix F - Uniform Guidelines on Employee Selec-

tion Procedures (1978); 28 C.F.R.

§50.14 (1978), 29 C.F.R. §1607 (1979) .. A-76

Appendix G - Department of Justice Guidelines on

Employee Selection Procedures (28

on es RE | ere A-138

Appendix H - E.E.O.C. Guidelines on Employment

Selection Procedures (29 C.F.R. §1607

ERR ga AP OL Seder nae 2 Sea A-171

—_ = ee

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 77-1819

Ensley Branch of the N.A.A.C.P., et al.,

Plaintiffs-Appellees,

versus

George Seibels, et al.,

Defendants,

Personnel Board of Jefferson County,

Defendant-Appellant.

John W. Martin, et al.,

Plaintiffs-Appellees

Cross Appellants,

versus

City of Birmingham, et al.,

Defendants,

Personnel Board of Jefferson County,

Defendant-Appellant

Cross Appellee.

United States of America,

Plaintiff-Appellee

Cross-Appellant,

versus

Jefferson County, et al.,

Defendants,

Personnel Board of Jefferson County,

Defendant-Appellant,

Cross Appellee.

a me

Lucy Walker, et al.,

Plaintiffs-Appellees,

versus

Jefferson County Home, et al.,

Defendants,

Personnel Board of Jefferson County,

Defendant-Appellant.

Appeals from the United States District Court for the

Northern District of Alabama

ON PETITION FOR REHEARING

Before GODBOLD, RONEY and ANDERSON, Circuit

Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed in the

above entitled and numbered cause be and the same is hereby

denied.

Dated June 16, 1980.

es eel ome

APPENDIX B

Ensley Branch of the N.A.A.C.P., et al.,

Plaintiffs-Appellees,

v.

George Seibels, et al.,

Defendants,

Personnel Board of Jefferson County,

Defendant-Appellant.

John W. Martin, et al.,

Plaintiffs-Appellees

Cross Appellants,

v.

City of Birmingham, et al.,

Defendants,

Personnel Board of Jefferson County,

Defendant-Appellant

Cross Appellee.

United States of America,

Plaintiff-Appellee

Cross-Appellant,

Vv.

Jefferson County, et al.,

Defendants,

Personnel Board of Jefferson County,

Defendant-Appellant,

Cross Appellee.

a Se

Lucy Walker, et al.,

Plaintiffs-Appellees,

Vy

Jefferson County Home, et al.,

Defendants,

Personnel Board of Jefferson County,

Defendant-Appellant.

No. 77-1819

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

May 8, 1980

Appeals from the United States District Court for the Nor-

thern District of Alabama.

Before GODBOLD, RONEY and ANDERSON, Circuit

Judges.

R. LANIER ANDERSON, III, Circuit Judge:

This case is a consolidation of four separate actions brought

by the United States and private parties against the Personnel

Board of Jefferson County, Alabama, and other local govern-

ment agencies. The district court held that the Persoanel

Board’s use of two examinations in screening and certifying

candidates for jobs as police officers and firefighters violates Ti-

tle VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.

§2000e et seq. The court ordered certain remedies, the remedies

being tailored to its conclusion that use of the police officer test

did not violate Title VII until April 25, 1975, and that use of the

firefighter test did not violate Title VII until July 8, 1976. We

agree with the district court that the Personnel Board’s use of

both tests abridges Title VII; however, we believe that the court

ay ee

failed to make essential findings in determining the time at

which liability commenced. Accordingly, we affirm in part and

reverse and remand in part with instructions.

On January 4, 1974, the Ensley Branch of the National

Association for the Advancement of Colored People, together

with certain named individuals, for themselves and on behalf of

others similarly situated, filed a complaint in the United States

District Court for the Northern District of Alabama, against

George Seibels (then Mayor of Birmingham, Alabama), the City

of Birmingham, the members of the Personnel Board of Jeffer-

son County, and the Personnel Director of that Board, alleging

that the defendants engage in discriminatory hiring practices

against blacks in violation of the Fourteenth Amendment, 42

U.S.C. §§ 1981, 1983, and 2000e et seq. (Title VII). A suit rais-

ing the same constitutional and statutory allegations was filed

on January 7, 1974, by John W. Martin and other named plain-

tiffs against the City of Birmingham, Jefferson County, and the

Personnel Board of Jefferson County.' On May 27, 1975, the

United States brought suit against the Jefferson County Person-

nel Board and the municipal and other governmental jurisdic-

tions within Jefferson County’ alleging a pattern or practice of

discriminatory employment practices against blacks and women

in violation of Title VII, the Omnibus Crime Control and Safe

Streets Act of 1968, as amended, 42 U.S.C. § 3766(c), the State

and Local Fiscal Assistance Act of 1972, as amended, 31 U.S.C.

§ 1242, the Fourteenth Amendment and 42 U.S.C. § 1981. On

' Also named as defendants in the Martin suit are the Director of

the Jefferson County Personnel Board and three Jefferson County

Commissioners.

? Defendants in the government’s suit other than the Personnel

Board are Jefferson County, the County Department of Public

Health, and the cities of Bessemer, Birmingham, Fairfield, Fulton-

dale, Gardendale, Homewood, Huey Town, Midfield, Mountain-

brook, Pleasant Grove, Tarrant, and Vestavia Hills.

re

February 20, 1976, Lucy Walker filed suit challenging the

employment practices of the Jefferson County nursing home

under Title VII and 42 U.S.C. § 1981. All four cases were con-

solidated for trial.

On December 20-22, 1976, trial was held on the merits of the

limited issue of whether the two tests used by the Personnel

Board to screen and rank applicants for positions as police of-

ficers and firefighters are discriminatory and violative of the

constitutional or statutory rights of blacks.’ All other issues

under the complaints were reserved until a later date.

On January 10, 1977, pursuant to Fed.R.Civ.P. 54(b), the

district court entered a final order on this limited issue.‘ The

court held that the police and firefighter tests do not violate the

Constitution,’ but do violate Title VII. The court determined

that the Title VII violation commenced on April 25, 1975, with

respect to the police test and on July 8, 1976, with respect to the

firefighter test. The Court ordered certain remedies to correct

> At trial, plaintiffs dropped their attack on the Office Worker test

administered by the Personnel Board and also dropped their claim

that the police and fire tests discriminate on the basis of sex.

‘ The district court’s opinion and order is reported at 13

Empl.Prac.Dec. (E.P.D.) 411,504.

* The district court found that the Personnel Board’s use of the

tests in issue is not motivated by intentional discrimination. The par-

ties do not dispute this finding. This appeal, therefore, is restricted to

Title VII issues.

a Sp

the discrimination caused by use of the tests since those dates.°

From this judgment, the Personnel Board filed a notice of ap-

peal, and the United States and the plaintiffs in the Martin ac-

tion filed a joint notice of cross-appeal. The Personnel Board

contends that the tests do not violate Title VII; the United States

and the Martin plaintiffs contest the court’s determination as to

when Tiule VII liability commenced.

This case has been ably argued on appeal by counsel for both

sides,’ and we also have the benefit of a well-reasoned and com-

prehensive opinion by Judge Pointer of the court below.

FACTS

The Personnel Board of Jefferson County is required under

Alabama law to administer examinations to applicants for posi-

tions with local government agencies. Two such examinations

are at issue here: the 10—C test administered to applicants for

positions with the fire department, and the 20—B test admin-

istered to applicants for positions with the police department.

* Specifically, the Court ordered that blacks be referred for open-

ings on the police and firefighter forces at the rate at which they took

the tests when most recently administered. To accomplish this, the

Court ordered that the names of a sufficient number of blacks be

added to the current police and firefighter eligibility lists so that the

lists shall be representative of the racial composition of the test-takers,

i.e., 28 and 14 percent black for police and firefighter lists, respective-

ly; that, one-third of future certifications, i.e., referrals from the lists

for actual employment, are to be black until, considering all certifica-

tions since the relevant 1975 and 1976 dates, the numbers of certifica-

tions become representative of the racial composition of the test-

takers. Thereafter, blacks are to be certified in accordance with their

representation of the lists, i.e., 28 and 14 percent of certifications for

policemen and firefighters, respectively, will be black. Similarly,

referrals from future lists will be a function of the rate at which blacks

take the examinations on which the lists are based, until or unless

defendants develop valid tests. 13 E.P.D. at 6807-08.

’ The Educational Testing Service, Inc. filed a brief as amicus

curiae urging reversal of the district court’s holding that the tests

violate Title VII.

—” Eo

Both tests were developed by the International Personnel

Management Association. Each test is a paper and pencil in-

strument consisting of 120 multiple choice questions.’

Applicants who pass'® the 10—C or 20—B are placed on an

eligibility list for positions with the police or fire department,

and are ranked on the list in the order of their scores. If a single

vacancy occurs, the three persons at the top of the list are cer-

tified to the appropriate department for final selection. If multi-

ple vacancies occur, the number of persons certified is two more

than the number of vacancies to be filled. Thus, merely passing

the tests, and thereby being entered on the relevant eligibility

list, is not nearly so important as obtaining a score sufficiently

high to be placed high enough on the list to be actually certified

to the police or fire department.

ADVERSE IMPACT

A prima facie Title VII case against an employment test

may be built with statistics showing that use of the test has an

adverse racial impact. This showing shifts to the employer the

burden of proving that the test is job-related. Albemarle Paper

Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45

L.Ed.2d 280 (1975); Griggs v. Duke Power Co., 401 U.S. 424,

432, 91 S.Ct. 849, 854,28 L.Ed.2d 158 (1971); Scott v. City of

Anniston, 597 F.2d 897, 901 (Sth Cir. 1979).

The district court found that use of the 1O—C and 20—B has

an adverse impact upon blacks. The evidence shows that since

* The International Personnel Management Association was

formerly the Public Personnel Association.

* Since April 10, 1974, only 80 of the 120 questions have been used

in grading the 10—C test. We have examined the tests and note in

passing that a very substantial number of the questions seem to be

aimed primarily at verbal or mathematical ability.

'© The raw score which constitutes a passing grade fluctuates,

depending on the number of vacancies anticipated and other factors.

mae lem

March 24, 1972, the date Title VII became applicable to public

employers such as the Personnel Board, only 51 blacks (6.6%)

have been hired out of a total of 768 blacks who took the police

test. The comparable figure for whites is 455 whites hired

(23.3%) out of the total of 1,953 whites who took the police

test. Similarly, only 9 black firefighters have been hired, which

represents 3.2% of the black applicants, as compared to 215

white firefighters hired, which represents 14.1% of the white ap-

plicants. With respect to the number of blacks and whites who

passed the exam, the court found that the pass rates for blacks

(48.6% for the police test and 24.2% for the firefighter test) are

substantially less than the pass rates for whites (90.2% for the

police test and 82.5% for the firefighter test). The Personnel

Board does not in this appeal contest the district court’s finding

that the two tests have an adverse impact; the Board argues only

that it has carried its burden of showing that the tests are job-

related.

JOB-RELATEDNESS

[2] To prove the job-relatedness of the police and firefighter

tests, the Personnel Board employed criterion-related validity

studies.'' The district court held that the studies failed to

'' **Validation’’ is the process of determining whether a selection

device is sufficiently job-related to comply with the requirements of

Title VII. See Uniform Guidelines on Employee Selection Procedure

(hereinafter referred to as Uniform Guidelines], 43 Fed.Reg. 38290,

38291 (August 25, 1978). There are three basic methods of validation:

** ‘criterion’ validity (demonstrated by identifying criteria that indicate

successful job performance and then correlating test scores and the

criteria so identified); ‘construct’ validity (demonstrated by examina-

tions structured to measure the degree to which job applicants have

identifiable characteristics that have been determined to be important

in successful job performance); and ‘content’ validity (demonstrated

by tests whose content closely approximate tasks to be performed on

the job by the applicant).’’ Washington v. Davis, 426 U.S. 229, 247,

96 S.Ct. 2040, 2051, 48 L.Ed.2d 597 n.13 (1976); See Uniform

Guidelines, § 5, 43 Fed.Reg. at 38298.

— A-10 —

validate either test.'?

The studies used three criterion measures: academy grades,

i.e., relative class rank among students who successfully com-

plete academy training; efficiency ratings of incumbent

employees (police and firefighters) by their supervisors; and ex-

perimental ratings of incumbent employees by their supervisors,

based on 12 categories, the categories relating to personality

characteristics, job knowledge and job-related abilities.

The Uniform Guidelines cited in this footnote were adopted on

August 25, 1978, by the Equal Employment Opportunity Commission

(EEOC), the Civil Service Commission (CSC), the Department of

Labor (DOL), and the Department of Justice (DOJ), and are codified

in the 1979 editions of 29 C.F.R. § 1607 (EEOC); 5 C.F.R. § 300.103

(c) (CSC); 41 C.F.R. § 60-3 (DOL); and 28 C.F.R. § 50.14 (DOJ). The

Guidelines, effective September 25, 1978, supersede the guidelines on

employee selection procedure previously issued by the EEOC and the

DOJ (the DOJ Guidelines were issued jointly with the DOL and CSC).

With the exception of its provision on interim use of unvalidated tests,

discussed below, the Uniform Guidelines are consistent, in all matters

pertinent to this case, with the EEOC and DOJ Guidelines. This opin-

ion shall refer to the EEOC and DOJ Guidelines as well as to the

Uniform Guidelines; citations to the former will be to the 1978

C.F.R., citations to the latter will be to the Federal Register.

'? The Personnel Board, in 1970, initiated a preliminary, in-house,

validation study of the 10—C police officer test. This study,

developed by Eugene Williams, Chief Examiner of the Board was not

designed to meet the validation requirements of Title VII and was not

relied upon by the district court in assessing the validity of the 1O—C.

The studies upon which the district court based its holding of no

job-relatedness, and which are the subjects of our review, were con-

ducted by Drs. William McLaurian and William Farrar, psychology

professors at the University of Alabama in Birmingham. The

McLaurian-Farrar studies examined both the 10—C police officer

tests and the 20—B firefighter test. The final results of these studies,

(the studies began in 1972) were reported to the Personnel Board on

August 25, 1975, with respect to the 1O—C and on July 8, 1976, with

respect to the 20—B.

— A-ll —

Acade 1y Grades. The district court found that the scores on

the 10O—t and 20—B tests bear statistically significant'’ correla-

tion to grades in the training academies and it further found that

the training academies furnished skills or knowledge needed for

performance on the job. However, the district court also found

that academy grades are not valid predictors of job perfor-

'S Explanation of a few statistical concepts is in order. We quote at

length from the government’s brief:

Statistically, the degree of correlation between two variables

(e.g., entrance exam scores and subsequent school grades) is ex-

pressed as a ‘correlation coefficient’ on a scale running from

+1.0 to —1.0. A perfect positive correlation (e.g., entrance

exam scores exactly predict subsequent school grades, with the

higher exam scores predicting the best grades) would be ex-

pressed as +1.0, and a perfect negative correlation (e.g., en-

trance exam scores exactly predict subsequent school grades, ex-

cept in reverse, with the lower exam scores predicting the best

grades) would be expressed as —1.0. Where the two variables

had absolutely no relationship to each other, the correlation

coefficient would be .0. The closer a correlation coefficient is to

either +1.0 or —1.0, the ‘higher the magnitude’ of the correla-

tion; and the closer it is to .0, the ‘lower the magnitude.’

Mueller, Schuessler & Castner, Statistical Reasoning in

Sociology, 2d Ed., at p. 315.

Because a purely random drawing of a sample is liable to produce a

correlation coefficient which is somewhat off an absolute .0, the con-

cept of statistical significance becomes relevant. The concept is tied to

the statistical theory of probability and is dependent upon the number

of people in the sample. Generally, if a correlation coefficient is so

low that, on the basis of the sample size involved, more than | in 20

random drawings could be expected to produce a correlation coeffi-

cient is considered not to be statistically significant, or simply to be the

same as a correlation coefficient of .0. On the other hand, if the ob-

tained coefficient could be expected to reoccur no more than once in

20 random drawings, it is considered statistically significant, the

statistical indication for whichis p.< .05. Acorrelation coefficient of

the obtained magnitude which could not be expected to occur by

chance more than once in 100 random drawings is expressed as

p.< .01. Mueller, et al., pp. 394, ef seq.

— A-12 —

mance.'* The court concluded from these findings that while

completion of the academy is a valid criterion measure,

academy grades are not. Finally, the court found that even

though completion of the training academies is a valid criterion

measure, neither test predicts successful completion of the

academies; even extremely low test scores do not predict failure

at the academies.

Efficiency Ratings. Drs. Farrar and McLaurian, the experts

who conducted the validation studies, testified that the effi-

ciency ratings are not trustworthy assessments of the employees’

actual performance. Largely based on this testimony, the court

held that the efficiency ratings are not a valid criterion measure.

Experimental Ratings. Although determining that the ex-

perimental ratings system is an appropriate criterion measure

for determining job-relatedness, the court discovered fatal defi-

ciencies in the relationship between the test scores and the

ratings. With respect to the 20—B test, the court found that

while there is a statistically significant positive correlation be-

tween test scores and the experimental ratings for firefighters

having less than three years’ experience, there is a significant

negative correlation for firefighters having more than three

years’ experience, thus ‘‘suggesting that over time the lower

scoring applicants may be better employees.’’ Accordingly, the

court held that the 20—B is not a valid predictor of the ex-

perimental ratings. With respect to the 10—C test, the court

found that there is a statistically significant correlation between

test scores and experimental ratings, but that the correlation is

'* The court pointed out that ‘‘for the most part the correlation be-

tween academy grades and measures of job performance are not

significant and, in the few instances where significant correlations are

found, the findings are mixed, some being positive and others being

negative. A negative correlation, of course, indicates that the higher

the academy grades, the lower the performance ratings tend to be.’” 13

E.P.D. at 6802.

— A-13 —

of very low magnitude and lacks practical significance.'’ Accor-

dingly, the court held that the correlation between the 10—C

and the experimental ratings does not validate the 10—C for

operational use in screening or ranking applicants.

The Personnel Board raises numerous objections to the

above findings by the district court respecting the validity

studies. We have reviewed these finding under the clearly er-

roneous standard. See Wade v. Mississippi Cooperative Exten-

sion Service, 528 F.2d 508, 516 (Sth Cir. 1976); United States v.

City of Chicago, 549 F.2d 415, 429 (7th Cir.), cert. denied, 434

U.S. 875, 98 §.Ct. 225, 54 L.Ed.2d 155 (1977); Bridgeport

Guardians, Inc. v. Members of Bridgeport Civil Service Com-

mission, 482 F.2d 1333, 1337 (2d Cir. 1973), cert. denied, 421

U.S. 991, 95 S.Ct. 1997, 44 L.Ed.2d 481 (1975); Washington v.

Davis, 426 U.S. 229, 256, 96 S.Ct. 2040, 2055, 48 L.Ed.2d 597

(1976) (Stevens, J., concurring). Because we are not left with a

‘‘definite and firm conviction’’ that the court committed a

mistake in holding that the studies do not demonstrate job-

relatedness, Wade v. Mississippi Cooperative Extension Service,

supra, 528 F.2d at 516, we reject the Board’s objections.'*

'S Practical or operational significance is required by the guidelines.

Uniform Guidelines, § 14B(6), 43 Fed.Reg. at 38301; EEOC Guide-

lines, 29 C.F.R. § 1607.5(c)(2); DOJ Guidelines 28 C.F.R. Part 50.14

§ 12B(5). Judge Pointer’s finding that the 10—C lacks practical

significance was reached through painstaking application of several

different statistical approaches, see 13 E.P.D. at 6803-06; additional-

ly, as permitted by the guidelines, the judge’s inquiry into practical

significance considered, inter alia, the degree of adverse impact of the

10—C. Id. at 6806.

'6 The Board’s principal criticism of the findings below is the al-

leged failure of Judge Pointer to apply a ‘‘corrected coefficient,’’

which would make the statistics relating to the police test more

favorable to the Board. The Board has not convinced us that the

district court failed to give proper consideration to the ‘‘corrected

coefficient.’’ A careful reading of Judge Pointer’s opinion makes it

apparent that the judge recognized that the ‘‘corrected coefficient’’ is

based on several assumptions, and the judge, accordingly and proper-

— so

APPLICATION OF WASHINGTON

V. DAVIS

The Personnel Board’s principal argument on appeal is

based on the Supreme Court’s opinion in Washington v. Davis,

426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). The Board

focuses on the district court’s finding that both the police test

and the firefighter test bear a statistically significant correlation

to training academy grades. With that focus the Board argues

that the Davis case compels a decision in its favor. The Board

contends that the Davis case stands for the general proposition

that a test can be validated by showing that it predicts grades in

a job-relevant training program, without regard to the test’s

ability to predict job performance.'’ As discussed below, the

ly, used the ‘‘corrected coefficient’? with due regard for its

dependence on these assumptions. The crucial finding of the district

court, which was reached after careful and comprehensive considera-

tion of all the facts and circumstances, is that the validation study

showed that the police test is predictive of better job performance, but

that the magnitude of the positive prediction is so low that the test is

worthless for all practical purposes. We cannot conclude that this

finding is clearly erroneous.

The Board’s only other significant attack on the district court’s

findings is its suggestion that several of the statistical approaches used

by Judge Pointer in analyzing the operational utility of the police test

was inappropriate. The Board has not convinced us in this regard.

However, even if we should eliminate from our consideration all of

the statistical approaches used by the district judge except the two ap-

proved by the Board, namely, the Taylor-Russell approach and the

Anastasi approach, we still could not label as clearly erroneous the

district court’s finding that the police test is not approvriate for opera-

tional use.

'' The Board contends that this interpretation of Washington v.

Davis was adopted by the Supreme Court in its summary affirmance

of the three-judge District Court decision in United States v. South

Carolina, 445 F.Supp. 1094 (D.S.C.) aff'd. 434 U.S. 1026, 98 S.Ct.

756, 54 L.Ed.2d 775 (1978). The Board’s reliance on United States v.

South Carolina is misplaced for three reasons. (1) ‘‘[T]he precedential

effect of a summary affirmance can extend no farther than ‘the

precise issues presented [in the jurisdictional statement required by

Supreme Court Rule 15] and necessarily decided by those actions.’”’

aw Aal§ a

Davis case held that the test there was properly validated

because it was shown to predict whether those tested had the

minimum reading and verbal skills necessary to complete a job-

Illinois State Board of Elections v. Socialist Workers’ Party, 440 U.S.

173, 182, 99 S.Ct. 983, 990, 59 L.Ed.2d 230 (1979); Washington v.

Confederated Bands and Tribes of the Yakima Indian Nation, 439

U.S. 463, 477 n.20, 99 S.Ct. 740, 750 n.20, 58 L.Ed.2d 740 (1979);

Mandel v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 2240, 53

L.Ed.2d 199 (1977). We have examined the jurisdictional statement

filed with the Supreme Court in United States v. South Carolina and

determined that neither of the two issues presented specifically ad-

dresses the Washington v. Davis question of validation against train-

ing. (2) A summary affirmance affirms only the judgment and not the

reasoning of the court below. Jilinois State Board of Elections v.

Socialist Workers’ Party, supra, 440 U.S. at 182-83, 99 S.Ct. at

989-990; Washington v. Confederated Bands and Tribes of the

Yakima Indian Nation, supra, 439 U.S. at 477 n.20, 99 S.Ct. at 750

n.20; Mandel v. Bradley, supra, 432 U.S. at 176, 97 S.Ct. at 2240.

Therefore, the three-judge District Court’s interpretation of

Washington v. Davis, to the extent that interpretation differs from

our own, is not binding on this Court. (3) United States v. South

Carolina is factually distinguishable from the instant case. The State

of South Carolina used minimum score requirements on the National

Teachers Examination to certify and determine the pay levels of

teachers within the State. A content validity study demonstrated that

the content of the exam matched the content of teacher training pro-

grams in South Carolina, and that the minimum score requirement

correlated to the minimum amount of knowledge necessary to effec-

tive teaching. 445 F.Supp. at 1112-14; See also Id. at 1107. After a cer-

tain date, examinees who did not achieve the minimum score, and thus

lacked the minimum amount of knowledge to teach effectively, were

not certified. Before that date, most examinees who did not achieve

the minimum score were certified, but their compensation was less

that those who scored the minimum. /d. at 1105-06 & n.12. Thus, the

test in South Carolina was used solely as a measure of minimal com-

petence to teach, much as the test in Washington v. Davis was used to

determine a minimum level of required competence. In contrast, the

instant tests were used not to determine minimum competence to per-

form as policemen or firefighters, but for ranking purposes unrelated

to minimum competence.

— A-16 —

relevant training program. We do not believe the Davis'® ra-

tionale can be extended, as the Board urges, to the general prop-

osition that any test can be validated by showing a relationship

to training. More specifically, we reject the Board’s suggested

extension of the Davis holding to this case, where the tests were

not used to ascertain the minimum skills necessary to complete

job-relevant training'’, but rather were used to rank job ap-

plicants according to their test scores and to select only the

highest test scorers for job placement.

In Washington v. Davis, two blacks (respondents in the

Supreme Court but referred to here as plaintiffs), whose ap-

plications to become police officers in the District of Columbia

Police Department had been rejected, claimed, inter alia, that a

written test (‘‘Test 21’’) used. by the Department for recruiting

purposes violated their rights under the due process clause of

the Fifth Amendment, 42 U.S.C. § 1981, and D.C.Code §

1-320. Test 21, developed by the Civil Service Commission and

administered throughout the federal service, was designed to

test the verbal ability, vocabulary, reading and comprehension

of potential recruits for the police department. In order to gain

entry into the training program, a grade of at least 40 out of 80

was required on Test 21. Plaintiffs moved for summary judg-

ment seeking a declaration that Test 21 unlawfully

'* Some authorities suggest that Washington v. Davis has no ap-

plication to Title VII because the action in Davis was brought under

the due process clause of the Fifth Amendment, 42 U.S.C. § 1981, and

D.C. Code § 1-320, and not Title VII. See, e.g., Guardians Associa-

tion of the New York City Police Department, Inc. v. Civil Service

Commission of the City of New York, 431 F.Supp. 526 (S.D.N.Y.),

vacated and remanded on other grounds, 562 F.2d 38 (2nd Cir. 1977);

See also Davis, 426 U.S. at 255, 96 S.Ct. at 2054 (Stevens, J., con-

curring). Since we conclude that Washington v. Davis is factually

distinguishable, we do not reach the question of its application to Title

VII.

'? In this case, Judge Pointer found that neither test predicts suc-

cessful completion of the training programs. See n.23, infra.

an Att —

discriminated in violation of the Fifth Amendment. The defen-

dants filed a counter-motion for summary judgment, asserting

that plaintiffs were entitled to relief on neither constitutional

nor statutory grounds.

The district court granted defendants’ and denied plaintiffs’

motions. Davis v. Washington, 348 F.Supp. 15 (D.D.C. 1972).

The district court found, among other things, that a higher

percentage of blacks failed Test 21 than whites, and that the test

had not been validated to establish its reliability for measuring

subsequent job performance. These findings were held suffi-

cient to shift the burden of proof to defendants. Jd. at 16. The

district court found that defendants had met their burden by

proving that ‘‘the Test is directly related to a determination of

whether the applicant possesses sufficient skills requisite to the

demands of the curriculum a recruit must master at the police

academy.”’ /d. at 17 (emphasis added).*° Given its relationship

to the training program, the court held that the lack of job per-

formance validation did not defeat the test.

The Court of Appeals reversed on constitutional grounds.

512 F.2d 956 (D.C. Cir. 1975). Applying the Title VII principles

developed in Griggs v. Duke Power Co., supra, 401 U.S. at 424,

91 S.Ct. at 849, to the Fifth Amendment claim, it held, inter

alia, that without proof by defendants that Test 21 had been

validated in regard to job performance, defendants had not

rebutted plaintiffs’ prima facie case of discriminatory impact.

Id. at 961-65.

20 Defendants’ argument to the district court was that,

‘‘Undeniably, a police recruit must have the minimum reading skills in

order to complete the curriculum at the Training Academy . . . Test

21 merely makes certain that a potential recruit has the minimum skills

in reading and verbal ability.’” Memorandum in Support of Defen-

dants Hampton, Spain and Andolsek’s Motion for Summary Judg-

ment, U.S. Supreme Court Records, Briefs at 97, FO—0097—75

(1975).

— A-18 —

The Court of Appeals was in turn reversed by the Supreme

Court. After holding that the D. C. Circuit had erred in apply-

ing Title VII standards to the Fifth Amendment claim of

discrimination, the Supreme Court considered the statutory

issues raised by the summary judgment motion. The Court ap-

proved the use of Test 21 to determine the minimum skills

necessary for satisfactory progress in the training program. For

the majority, Justice White wrote:

The advisability of the police recruit training course infor-

ming the recruit about his upcoming job, acquainting him

with its demands, and attempting to impart a modicum of

required skills seems conceded. It is also apparent to us, as

it was to the District Judge, that some minimum verbal and

communicative skill would be very useful, if not essential,

to satisfactory progress in the training regimen. Based on

the evidence before him, the District Judge concluded that

Test 21 was directly related to the requirements of the

police training program and that a positive relationship

between the test and training-course performance was suf-

ficient to validate the former, wholly aside from its possi-

ble relationship to actual performance as a police officer.

This conclusion of the District Judge that training-

program validation may itself be sufficient is supported by

regulations of the Civil Service Commission, by the opi-

nion evidence placed before the District Judge, and by the

current views of the Civil Service Commissioners who [are]

parties to [this] case. Nor is the conclusion foreclosed by

either Griggs or Albemarle Paper Company v. Moody, 422

U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975); and it

seems to us the much more sensible consturction of the

job-relatedness requirement.

426 U.S. at 250-251, 96 S.Ct. at 2052-2053 (emphasis added).

Earlier in the opinion Justice White discussed the various ways a

test could be validated:

— A-19 —

It is necessary, in addition, that they be ‘validated’ in terms

of job performance in any one of several ways, perhaps by

ascertaining the minimum skill, ability, or potential

necessary for the position at issue.

426 U.S. at 247, 96 S.Ct. at 2051 (emphasis added). Similarly,

Justice Stevens, concurring, stated:

The test serves the neutral and legitimate purpose of re-

quiring all applicants to meet a uniform minimum stan-

dard of literacy. Reading ability is manifestly relevant to

the police function, there is no evidence that the required

passing grade was set at an arbitrarily high level.

426 U.S. at 254, 96 S.Ct. at 2054 (emphasis added). And, later

in his concurring opinion:

As a matter of law, it is permissible for the police depart-

ment to use a test for the purpose of predicting ability to

master a training program even if the test does not other-

wise predict ability to perform on the job. I regard this as a

reasonable proposition and not inconsistent with the

Court’s prior holdings.

426 U.S. at 256, 96 S.Ct. at 2055. Further explaining his own

opinion for the Davis majority, Justice White, in his dissent

from the summary affirmance of United States v. South

Carolina, 434 U.S. 1026, 98 S.Ct. 756, 54 L.Ed.2d 775 (1977),

stated:

Washington v. Davis . . . was thought by the District Court

to have warranted validating the test in terms of the appli-

cant’s training rather than against job requirements; but

Washington v. Davis, in this respect, held only that the test

there involved, which sought to ascertain whether the ap-

plicant had the minimum communication skills necessary

to understand the offerings in a police training course,

could be used to measure eligibility to enter that program.

The case did not hold that a training course, the comple-

— sp

tion of which is required for employment, need not itself

be validated in terms of job relatedness. Nor did it hold

that a test that a job applicant must pass and that is de-

signed to indicate his mastery of the materials or skills

taight in the training course, can be validated without

reference to the job. Tests supposedly measuring an appli-

cant’s quaiifications for employement, if they have dif-

ferential racial impact, must bear ‘some manifest relation-

ship to the employment in question,’ Griggs v. Duke

Power Co., 401 U.S. 424, 432-[, 91 S.Ct. 849, 854, 28

L.Ed.2d 158] (1971)...

434 U.S. at 1027-28, 98 S.Ct. at 757 (emphasis added).

Thus, Washington v. Davis holds that a selection device

may be validated if it is shown to predict whether an applicant

has the minimum amount of reading and verbal skills necessary

to complete a job-relevant training program. We decline the

Personnel Board’s invitation to extend the Davis rationale by

holding that any test can be validated against training, without

respect to the test’s ability to predict job performance.”' Such

an extension would violate the requirement of job performance

validation enunciated in Griggs and Albemarle, as well as the

agency guidelines”? elaborating upon that requirement.

7! Other courts similarly refuse to read Washington v. Davis as

establishing that selection devices may be validated for Title VII pur-

poses without regard to job performance. See, e.g., Blake v. City of

Los Angeles, 595 F.2d 1367, 1382 n.17 (9th Cir. 1979), petition for

cert. filed, 48 U.S.L.W. 3125 (U.S. July 12, 1979) (No. 79-54); Guar-

dians Association of the New York City Police Department, Inc. v.

Civil Service Commission of the City of New York, 431 F.Supp. 526,

548-49 (S.D.N.Y.), vacated and remanded on other grounds, 562 F.2d

38 (2d Cir. 1977). But see, United States v. Virginia, 454 F.Supp.

1077, 1100-01 (E.D. Va. 1978).

*2 The agency guidelines require that a criteria-related validity

study, such as the one at bar, show a positive relationship between the

challenged test and job performance. Uniform Guidelines, § 5B, 43

— A-21 —

Unlike the test upheld in Washington v. Davis, the tests

used by the Personnel Board are not used to predict whether an

applicant has the minimum amount of knowledge necessary to

complete training”’; rather, the tests are used to rank applicants

according to their scores. Only those at the top of the eligibility

list, those with the highest test scores, are certified for job place-

ment. Even those who score a passing grade, and are deemed by

the Personnel Board to possess the capacity to complete train-

ing, are not hired unless they are among the highest scorers. Use

of a test for such ranking purposes,*‘ rather than as a Davis-like

device to screen out candidates without minimum skills, is

justified only if there is evidence showing that those with a

higher test score do better on the job than those with a lower test

Fed.Reg. at 38298. These guidelines, while not binding on the courts,

are entitled to great deference. Albemarle Paper Company v. Moody,

422 U.S. 405, 431, 95 S.Ct. 2362, 2378, 45 L.Ed.2d 280 (1975);

Thomas v. E.I. duPont de Nemours & Company, 574 F.2d 1324, 1331

n.9 (Sth Cir. 1978); Pettway v. American Cast Iron Pipe Company,

494 F.2d 211, 221 (Sth Cir. 1973), cert. denied, 439 U.S. 1115, 99

S.Ct. 1020, 59 L.Ed.2d 74 (1979); United States v. Georgia Power

Company, 474 F.2d 906, 913 (Sth Cir. 1973).

2 Indeed, the district court found the tests inappropriate even for

the limited purpose of determining whether an applicant has the

minimum capacity to complete training. The court found that neither

test is a valid predictor of ability to pass the training curriculum. 13

E.P.D. at 6802-03. It should also be noted that the Personnel Board

has not contended on this appeal for such limited, Davis-sanctioned,

use of the tests.

** The guidelines also distinguish tests used for screening from tests

used for ranking. To validate the latter under a criterion-related study,

‘the user need show mathematical support for the proposition that

persons who receive higher scores on the [selection] procedure are like-

ly to perform better on the job.’’ Questions and Answers to Clarify

and Provide a Common Interpretation of the Uniform Guidelines on

Employee Selection Procedures, 44 Fed.Reg. 11996, 12005 (Question

& Answer 62).

= fig =

score.” Such evidence is utterly lacking here. The Board’s

validation studies show that higher test scores do not predict

better job performance.

Having accepted the district court’s finding that the Person-

nel Board did not carry its burden of showing that the two tests

are job-related, and having rejected the Board’s suggestion that

the Davis case can be extended to justify validation of these tests

against training grades without regard to job performance, we

affirm the district court’s holding that the Personnel Board’s

use of the two tests violates Title VII. We turn next to the

remedy issue and the subsidiary question of when the Board’s

Title VII liability commenced.

COMMENCEMENT OF LIABILITY

The Personnel Board became subject to the requirements of

Title VII on March 24, 1972. Equal Employment Opportunity

Act of 1972, Pub.L. No. 92-261, 86 Stat. 103. On that date, and

for several years earlier**, the Board was using the 10—C and

20—B to screen and rank applicants. However, the district

court held that use of the police test did not begin to violate Ti-

tle VII until April 25, 1975, and that use of the firefighter test

did not constitute a violation until July 8, 1976. Those were the

25 If academy grades are to be the criterion to which the tests are to

be compared, the criterion itself must be shown to be a good measure

of job performance. See Blake, supra, 595 F.2d at 1382; Vulcan

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

Commission, 490 F.2d 387, 396 n.11 (2d Cir. 1973). ‘* ‘The entire ra-

tionale of a criterion-related study requires that the criterion with

which the test results are compared be a good measure of job perfor-

mance.’’’ James v. Stockham Valves and Fittings Co., 559 F.2d 310,

340 (Sth Cir. 1977), cert. denied, 434 U.S. 1034, 98 S.Ct. 767, 54

L.Ed.2d 781 (1978), quoting United States v. City of Chicago, supra,

549 F.2d at 433.

** The Board started using the police and fire tests on August 18,

1967, and October 23, 1968, respectively.

— A-23 —

dates on which the final results of the validation studies for the

two tests (the studies were started in late 1972) were reported to

the Board. The court explained:

The preliminary reports from the consultants, made while

more trustworthy measures of job performance were being

developed [i.e., the experimental ratings], contained signs

of potential validity and recommended continued usage of

the test pending the additional studies. Not until April 25,

1975, with respect to the 10O—C, and July 8, 1976, with

respect to the 20—B were the studies using these new

criterion measures completed and reported to the Board. It

was on these respective dates that, in the court’s opinion, it

should have been concluded that provisional use of the

tests was no longer permissible. Prior thereto, the Board

was, in the court’s opinion, justified in continuing to use

the tests (and the eligibility lists generated therefrom) in

anticipation of favorable results from those studies.

13 E.P.D. at 6807.

It appears from the court’s reference to ‘‘provisional use’’

that Judge Pointer was relying on § 1607.9 of the EEOC Guide-

lines in holding the Board free from liability pending its

receipt of the final validation studies report.”’ Section 1607.9

?? It appears also that in fixing the date of Title VII liability, the

district court considered the good faith and lack of discriminatory in-

tent of the Board in adopting and using the 10O—C and 20—B. The

court observed that the Board was compelled by state law to ad-

minister employment tests to screen and rank applicants; that the

Board selected the 10O—C and 20—B in the late 1960’s ‘‘as the best

tests then available, with the hope that black applicants would fare

better than under previous tests’’; that the Board conducted a

preliminary, in-house, validity study of the tests even before it became

subject to Title VII; and that, ‘‘at least since 1965 the Board has not

intentionally discriminated against black applicants.’’ 13 E.P.D. at

6806-6807. We do not question the court’s finding that the Board

acted in good faith and without discriminatory intent. However, to

the extent that this finding influenced the court’s determination as to

—

‘*authorize[s] provisional use of tests, pending new validation

efforts, in certain very limited circumstances.’’ A/bemarle

Paper Co. v. Moody, supra, 422 U.S. at 436, 95 S.Ct. at 2380.

Section 1607.9 reads in full:

§ 1607.9 Continued use of tests.

Under certain conditions, a person may be permitted to

continue the use of a test which is not at the moment fully

supported by the required evidence of validity. If, for ex-

ample, determination of criterion-related validity in a

specific setting is practicable and required but not yet ob-

tained, the use of the test may continue: Provided: (a) The

person can cite substantial evidence of validity as described

in § 1607.7(a) and (b); and (b) he has in progress validation

procedures which are designed to produce, within a

reasonable time, the additional data required. It is ex-

pected also that the person may have to alter or suspend

test cutoff scores so that score ranges broad enough to per-

mit the identification of criterion-related validity will be

obtained.

Section 1607.7 of the EEOC Guidelines provides that where it is

not feasible to conduct a proper validation study,

evidence from validity studies conducted in other organiza-

tions, such as that reported in test manuals and profes-

sional literature, may be considered acceptable when: (a)

The studies pertain to jobs which are comparable (i.e.,

have basically the same task elements), and (b) there are no

major differences in contextual variables or sample com-

position which are likely to significantly affect validity.

when liability commenced, error was committed. Absence of discrim-

inatory intent is no defense in a Title VII disparate impact case. Griggs

v. Duke Power Co., supra, 401 U.S. at 432, 91 S.Ct. at 854;

Albemarle Paper Co. v. Moody, supra, 422 U.S. at 422, 95 S.Ct. at

2373.

— A-25 —

Any person citing evidence from other validity studies as

evidence of test validity for his own jobs must substantiate

in detail job comparability and must demonstrate the

absence of contextual or sample differences cited in

paragraphs (a) and (b) of this section.

To justify use of the 1O—C and 20—B under § 1607.9, the Per-

sonnel Board should have shown (1) that validation studies

done elsewhere, as described in § 1607.7, provided substantial

evidence of validity”* and, (2) that at ali relevant times the Board

had in progress validation procedures designed to produce,

within a reasonable time, the additional data required. The

district court did not determine whether either of these condi-

tions was satisfied. Because we believe that this determination

‘tis a matter best decided in the first instance by the District

Court,’’ Albermarle Paper Co. v. Moody, supra, 422 U.S. at

436, 95 S.Ct. at 2380, we remand to the district court to ascer-

tain whether the conditions were met.

If the district court, upon remand, finds that the use of the

tests was permissible under § 1607.9 until the Board received the

** The first condition for interim use under § 1607.9 is that ‘‘(a) The

person can cite substantial evidence of validity as described in §

1607.7(a) and (b).’’ (emphasis supplied). Thus, unless an employer

cites to other validity studies which meet the requirements of § 1607.7,

he has not satisfied § 1607.9(a). This condition lends objectivity to §

1607.9(a)’s substantial evidence requirement, and does not place an

onerous burden on employers. Compare, Friend v. Leidinger, 446

F.Supp. 361, 370 (E.D.Va. 1977) (alternative holding sustained the

City of Richmond’s use of firefighter tests under § 1607.9 where tests

had been proven job-related in a California validity study), aff'd. 588

F.2d 61 (4th Cir. 1978); Buckner v. Goodyear Tire and Rubber Co.,

339 F.Supp. 1108, 1115 (N.D.Ala. 1972), aff’d. (and district court

opinion adopted), 476 F.2d 1287 (Sth Cir. 1973) (provisional use of

tests permitted where validation studies at another Goodyear plant

were available). § 1607.9’s incorporation of the requirements of §

1607.7 is especially reasonable in light of the fact that § 1607.9 permits

use of a test, possibly under the cloak of immunity as discussed below,

which has a discriminatory impact.

—< oo

final results of the validation studies, and if the court also finds

that the Board in good faith relied upon § 1607.9, then the

district court would be correct in starting Title VII liability on

April 25, 1975 (police test), and July 8, 1976 (firefighter test).

The natural reading of EEOC Guideline § 1607.9 (as it was in ef-

fect at ail times relevant to this proceeding’’), especially when

read in light of Title VII, § 713(b), is that an employer will be

immune from liability during the period of permissible provi-

sional use of an unvalidated test. Section 713(b) of Title VII

provides a defense to an employer who complies with, and relies

in good faith upon, EEOC Guidelines, such as § 1607.9.*° Sec-

tion 713(b) provides:

In any action or proceeding based on any alleged unlawful

employement practice, no person shall be subject to any

** After the dates fixed by the district court for the commencement

of Title VII liability, two new sets of guidelines on employee selection

procedure were issued: the Department of Justice Guidelines (effective

November 17, 1976) and the Uniform Guidelines (effective September

25, 1978). See supra, n.11. Both the DOJ Guidelines and the Uniform

Guidelines contain provisions on interim use which expressly deny an

employer immunity in the event his pending validation study does not

ultimately establish validity. See DOJ Guidelines § 5(h), 28 C.F.R.

Part 50.14 (‘‘If the additional studies do not produce the data required

to demonstrate validity, the user is not relieved of or protected against

any obligations arising under federal law.’’); Uniform Guidelines,

supra, n.ll, § 5J, 43 Fed.Reg. at 38298 (‘‘If the study does not

demonstrate validity, this provision of these guidelines for interim use

shall not constitute a defense in any action, nor shall it relieve the user

of any obligations arising under Federal law’’). Had the DOJ or

Uniform Guidelines been in effect during the pendency of the Person-

nel Board’s validation studies, a different issue would be presented.

However, at all times relevant to the instant proceedings, only the

EEOC Guidelines, as they were in effect before the adoption of the

Uniform Guidelines, were in force. The EEOC Guidelines do not con-

tain a disclaimer of immunity similar to that contained in the DOJ and

Uniform Guidelines.

*° Friend v. Leidinger, 446 F.Supp. 361, 370(E.D. Va. 1977), aff'd.

588 F.2d 61 (4th Cir. 1978) (Title VII, § 713(b) extends immunity dur-

ing § 1607.9 interim use).

ET

liability or punishment for or on account of (1) the com-

mission by such person of an unlawful employement prac-

tice if he pleads and proves that the act or omission com-

plained of was in good faith, in conformity with, and in

reliance on any written interpretation or opinion of the

[EEOC].?’

If, however, the district court, upon remand, finds that the

conditions for § 1607.9 provisional use were not satisfied or that

the Board did not in good faith rely upon that section while

awaiting the final results of the validation studies, then the court

must mark March 24, 1972, as the date of violation of Title VII,

with respect to both tests. A new remedy must then be fashioned

by the court to correct the discrimination caused by use of the

tests from that date forward.

AFFIRMED IN PART, REVERSED IN PART AND

REMANDED.

*! By holding that the Board would not be subject to liability during

the period it satisfied and relied upon § 1607.9, we are not, as plain-

tiffs contend, assuming that a grace period should be implied for

public employers similar to the one-year grace period expressly ac-

corded private employers (Title VII, § 716(a)), when Title VII was first

enacted. See Blake v. City of Los Angeles, supra, 595 F.2d at 1376-77

(refusing to imply grace period for public employers). Rather, our

holding is based on the immunity which Title VII, § 713(b) extends to

an employer who complies with, and relies in good faith upon, the

EEOC Guidelines.

— A-28 —

APPENDIX C

Ensley Branch of the N.A.A.C.P., Plaintiff v. George

Seibels, et al., Defendants. Civil Action No. 74-Z-12-S.

John W. Martin et al., Plaintiffs v. City of Birmingham et

al., Defendants. Civil Action No. CA 74-Z-17-S.

United States of America, Plaintiff v. Jefferson County et

al., Defendants. Civil Action No. CA 75-P-0666-S.

Lucy Walker et al., Plaintiffs v. Jefferson County Home et

al., Defendants. Civil Action No. CA 76-M-2047-S.

United States District Court, Northern District of Alabama,

Southern Division. January 10, 1977.

Memorandum of Opinion

POINTER, D.J.: Since 1945 the Personnel Board of Jeffer-

son County has been charged under state law with the duty of

periodically administering examinations to ‘‘fairly test the

relative capacity and fitness’’ of applicants for positions with

local governmental agencies.' 1940 Ala. Code Appx. §§645, ef

seg. (Recomp. 1958). Those who pass are ranked on an eligibil-

ity list in the order of their exam scores.” As vacancies occur, the

three persons then at the top of the list are certified to the

employing agency for final selection, the appointments being

probationary in nature for the first twelve months.’ An appli-

cant’s name may be removed from the eligibility list after having

three times been certified and refused employment.

This litigation challenges the employment practices of the

governmental agencies as discriminatory on the basis of race,

color, and sex, and includes an attack upon the examinations

administered by the Personnel Board. Presently at issue, follow-

ing a trial held December 20-22, 1976, are the tests currently

used to screen applicants for positions as police officers, deputy

sheriffs,‘ and firefighters.°

An attack upon the police and firefighters exams is certainly

understandable when one considers that, although the relevant

— A-29 —

labor pool is over 25% black, yet on June 30, 1976, only 56 (or

6.5%) of the 860 police officers were black and only 9 (or 1.4%)

of the 630 firefighters were black. These statistics may,

however, be misleading for*purposes of this lawsuit because

they include the historical results of hiring practices employed

long before passage of the Equal Employment Opportunity Act

of 1972 or, indeed, before utilization of the tests under scrutiny

at this time.

The principal focus should rather be upon the events of more

recent years, with particular attention upon practices subse-

quent to March 24, 1972, when Title VII of the Civil Rights Act

of 1964 was made applicable to the Personnel Board and the

governmental agencies which it serves. Likewise, information as

to the general labor pool in the area is of only marginal import-

ance when one has, as we do, extensive data as to actual ap-

plicants for positions and there is no evidence that minority ap-

plications have been depressed by prior employment practices.

Adoption of the Current Tests

In late 1965, following an independent study as to why no

blacks were then employed as police officers in the City of Birm-

ingham, the Personnel Board decided to replace its police and

firefighter exams with tests developed by the Public Personnel

Association, now known as the International Personnel Man-

agement Association. IPMA tests were being widely used in

other parts of the country and were considered by the Board as

superior to other tests then available. The change was part of a

multi-faceted program intended to increase black participation

in governmental positions. (See Appendix C to X-342). Police-

man Test 1O—C and Firefighter Test 20—B have been in use

since August 18, 1967, and October 23, 1968, respectively, as

the screening examinations for these positions under the state-

mandated selection procedure,* although at times other tests

have been administered for experimental purposes or for valida-

tion studies. Since April 10, 1974, a modified scoring key (based

— A-30 —

upon only 80 of the 120 test items) has been employed in grading

the 10—C test for purposes of the eligibility list. This modifica-

tion was made at the recommendation of qualified independent

consultants who, after study, concluded that the scoring change

would increase validity of the test for black applicants.

Intent

It is clear that the Personnel Board, in performing its func-

tions as an employment agency for the various local govern-

ments, has not intentionally discriminated against blacks.

Indeed, at least since 1965, the Board has not only sought to

provide non-discriminatory opportunities for black applicants,

but also attempted, within the limits of its statutory duties, to

rectify the racial imbalances in local government employment.

Some mention of these aims and efforts is appropriate.

It was the Board’s hope that adoption of the tests now in issue

would benefit black applicants, while nevertheless providing a

fair ‘‘test of the relative capacity and fitness’’ of all applicants,

as required by state law. Immediately, a study was undertaken

to ascertain whether the IPMA policemen test, although a paper

and pencil test, would correlate positively and significantly with

a widely used non-verbal performance test of general in-

telligence, the Revised Beta Examination—and it did. As suc-

cessful applicants were employed by the city of Birmingham,

were trained at the police academy, and entered performance of

their duties, information was incorporated into the Board’s on-

going validation studies—which, while lacking sufficient blacks

in the sample (only 6 in the 10—C sample) to permit full

analysis, were considered by the Board as justifying further

usage of the 10—C.’ These studies are presented by the Board

not as satisfying the requirements of the EEOC or Department

of Justice guidelines on tests, but rather as indicating its efforts

to see that its examinations were fair predictors of job perfor-

mance even at a time when it was not subject to the provisions

of Title VII. As already noted, when, in 1974, it was advised by ©

v

— A-31 --

independent consultants that a modification of the scoring of

the 10—C exam would improve the validity for black ap-

plicants, it immediately put that change into effect.

Since 1965 the Board, with the cooperation of local civic

groups and some of the employing agencies, has been actively

engaged in recruitment efforts to attract black applicants. In

1966 it began assuming the $10.00 medical examination costs

for newly hired persons; and in 1967 it was successful in spon-

soring legislation to eliminate the $1.50 examination fee

previously required and to eliminate the priority previously

given applicants who resided within an employing agency’s

jurisdiction.’ It has experimented with a lowering of the raw

score used to measure a ‘‘passing’’ grade on the exams where it

could justify that approach on the basis of ‘‘supply’’ and

**demand’’.

In short, in its selection, administration and use of the 10—C

and 20—B tests, there has been no design or intent on the part

of the Board to discriminate on the basis of race or color. How-

ever, the standard under Title VII of the Civil Rights Act of

1964 is not so limited’—rather, if the operational effect of test

usage is to discriminate against blacks, then it is proscribed

unless it is shown to be a ‘‘job related’’ requirement,'® with a

‘‘manifest relation to the employment in question.’’'' See

U.S.C.A. § 2000e-2(h). In this inquiry the court is to follow the

guidelines adopted by the EEOC and, more recently (November

17, 1976), by the Department of Justice (DOJ), absent some

‘cogent reason.’’'? See Watkins v. Scott Paper Co., 530 F.2d

1159 (CAS 1976). Also instructive are the 1974 A.P.A. Stan-

dards for Educational & Psychological Tests and the 1975 Prin-

ciples for the Validation and Use of Personnel Selection Pro-

cedures of the A.P.A.’s Division 14.

Adverse Impact

Where the total selection process has an adverse impact upon

a substantial racial group in the labor market, the individual

— A-32 —

components of that process—such as a screening test—are also

to be evaluated for adverse impact. DOJ Guidelines §4b. For

purpose of this two-step analysis, data can be extracted from the

evidence pertaining to administrations of the 10—C and 20—B

tests which have been used for employment decisions after

March 24, 1972."°

10—C 20—B

Black White Black White

Failing test 395 191 216 267

Passing test 373 1,762 69 1,263

Hired 51 455 9 215

According to the DOJ Guidelines, §4b, ‘‘A selection rate for

any racial * * * group 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 as evidence of adverse impact * * *

Greater differences in selection rate would not necessarily be

regarded as constituting adverse impact where the differences

are based on small numbers and are not statistically significant,

or where special recruiting or other programs cause the pool of

minority * * * candidates to be atypical of the normal pool of

applicants from that group.’”’

So far as the total selection process is concerned, one finds

from the above data that the hiring rates for blacks (6.6% of the

black applicants on 10—C and 3.2% of the black applicants on

20—B) are substantially less than eighty percent of the hiring

rates for whites (23.3% and 14.1%, respectively). These greater

differences in selection rates cannot be explained on the basis of

inadequate numbers and, according to the court’s calculations,

are statistically significant: the o coefficient for the 10—C test is

.193 and for the 20—B is .121, both of which are significant at

p< .001.

Looking at the data pertinent to the test component of the

selection process, one finds again that the pass rates for blacks

— A-33 —

(48.6% for 10—C and 24.2% for 20—B) are substantially less

than eighty percent of the pass rates for whites (90.2% and

82.5%, respectively). And again, according to the court’s

calculations, these greater differences in pass rates, which are

based upon samples of adequate size, are statistically signifi-

cant: the o coefficient for the 1O—C test is .46 and for the 20—B

is .48, both being significant at p< .001. Also of importance is

the fact that, of the blacks who did pass the tests, 85.4% placed

in the lower half of the initial eligibility lists for police officers

and 89.9% placed in the lower half of the firefighter lists.'*

Some concern can justifiably be expressed that the special

recruiting efforts undertaken by the Personnel Board and other

groups to attract black applicants—while commendable as an

affirmative action to overcome racial imbalance in the police

and firefighter forces—may at the same time have resulted in an

atypical pool of blacks taking the test, producing distortion in

the test performance of the black applicants. For example, the

black applicants may have included many who were not serious-

ly interested or motivated with respect to the jobs in question,

thereby affecting their test performances. Absent, however, any

hard data to support such an hypothesis or to indicate its

magnitude, the court, impressed with the substantial differences

in hire rates and pass rates for the two racial groups, must con-

clude that the overall selection procedures in effect since March

24, 1972, and as a component part thereof the tests used for

those purposes, have had an adverse impact on blacks.

Validation Studies

According to EEOC Guidelines § 1607.3, ‘‘the use of any test

which adversely affects hiring * * * of classes protected by Title

VII constitutes discrimination unless (a) the test has been

validated and evidences a high degree of utility as hereinafter

described * * *.’’ For the purpose of making such validation

studies of its many tests, the Board in 1972 contracted with Drs.

William E. Farrar and William A. McLaurin, Professors in the

—

Psychology Department of the University of Alabama at Birm-

ingham. Both had experience with personnel selection pro-

cedures in public employment systems. Priority, but not ex-

clusive attention was to be given to the police and firefighter

tests, and their work on these tests began in late 1972. Their

studies respecting the two tests continued even to the time of

trial, with various reports being made in each of the years 1973,

1974, 1975 and 1976. That their work was not complete before

trial does not suggest inattention; rather, it is indicative that

their studies were intended to be thorough and were directed to

numerous tests.'*

Psychometric Analyses

The 10—C and 20—B tests are paper-and-pencil instruments,

each consisting of 120 multiple choice items.'* The initial con-

cern of Drs. Farrar and McLaurin was directed to the reli-

ability,'’ item difficulty,'* and item discrimination’® of the tests.

The following findings were made:

reliability items items

satisfactorily satisfactorily

‘sp ‘kr difficult _ discriminating

10—C total (N=479) .95 .95 88 116

10—C black (N=176) .90 .9 77 106

10—C white (N=303) .95 .93 70 115

20—B total (N=507) .92 .91 64 115

20—B black (N = 108) .85 .85 61 66

20—B white (N=399) .86 .86 53 108

Inquiry into reliability is a proper first step, because, while no

test is perfectly reliable, a test which is not reliable is not valid

for any purpose. The consultants found the reliability coeffi-

cients for both tests to be of sufficient magnitude to indicate

satisfactory reliability. They did acknowledge that the methods

selected for this purpose were essentially measures of internal

consistency (and with the KR-20 formula, of content homo-

— A-35 —

geneity), but apparently believed it either not feasible or not

necessary to investigate error variance due to time sampling.

The court agrees as to reliability and notes that possible lack of

stability over time is, in a sense, mitigated by the fact that ap-

plicants may take an exam on more than one administration.

Analyses of item difficulty and discrimination have no direct

bearing upon the validation studies before the court. However,

they do reflect an investigation into possible modification or

supplementation of the tests to improve their utility and reduce

the extent of adverse impact, which is a recommended pro-

cedure.”® See DOJ Guidelines, § 3c.

Documentation and Methodology

The EEOC Guidelines, at §§1607.5(b)(2,3,5) and 1607.6, re-

quire that various items of information (e.g. copies of tests,

manuals, rating forms and instructions and representations of

Statistical data) be included in the report of the study or other-

wise available for inspection. Following the 1974 A.P.A. Stan-

dards, a more extensive list of documentation requirements is

specified in the DOJ Guidelines at §§4a and 13b, involving some

twenty-four ‘‘essential’’ items and several other desirable items.

The Farrar-McLaurin studies satisfy the EEOC requirements,

which were the only ones in effect when their studies were con-

ducted and (so far as then feasible) completed and, indeed,

when supplemented by evidence presented immediately before

and during trial, they also substantially satisfy the DOJ re-

quirements, which became effective on November 23, 1976.?'

The studies include presentations of the following statistics:

For the 10—C test:

@ intercorrelation coefficients, r and r,, for 109 Birming-

ham police officers (without separation by race) respecting their

10—C scores, police academy scores (school average and course

grades) and latest efficiency ratings.

— A-36 —

@ means, standard deviations, and ¢ tests for difference in

means for 10—C scores of 38 black and 101 white Birmingham

police officers.

@ means, standard deviations, and r coefficients for 59

Birmingham police officers (without separation by race) respec-

ting their 10O—C scores, academy scores (average and courses)

and latest efficiency ratings.

@ means, standard deviations, r coefficients, and ¢ tests for

the following:

@ @ 20 black and 76 white Birmingham police officers

respecting their 10O—C scores, academy averages, and latest effi-

ciency ratings.

@ @ 8 black and 140 white Birmingham police officers

respecting their 10—C scores, academy scores (average and

courses), latest efficiency ratings (overall and by sub-parts), and

experimental ratings weighted average and by components.

@ @ 49 black and 140 white police officers respecting their

10—C scores and academy scores (average and courses). (Also

included are data for analyzing significance of differences in

correlation coefficients through z transformations.)

@ @ 83 Jefferson County deputy sheriffs (without separa-

tion by race) respecting their 10—C scores and academy

averages.

@ @ 77 police officers (without separation by race) from

other cities served by the Personnel Board respecting their

10—C scores and academy averages.

For the 20—B test: means, standard deviations, and r coeffi-

cients for the following:

@ 162 Birmingham firefighters (without separation by race)

respecting the 20—B scores, training academy average, and

latest efficiency ratings (overall and by sub-parts).

on eT on

@ 196 Birmingham firefighters (without separation by race)

respecting their 20—B scores, academy averages, latest efficien-

cy ratings, and experimental ratings (overall and by com-

ponents). Statistics are reported separately for short-tenure and

long-tenure firefighters, using three years of experience as the

point of division.

Statistics found to be significant at p < .05 and p < .01 are so

identified in the report.

Some commment should be made about selection and com-

position of the different samples. Each sample contained all the

persons for whom, so far as was known at the time by the con-

sultants, the data needed for that study was available. The dif-

ferent studies were, however, conducted over a period of several

years as either the need was recognized or the particular inquiry

became technically feasible; and during the time intervals the

work force had changed. Some of the studies involved concern

with additional factors (e.g., performance on the Raven and

PAS tests, which have been under consideration for use as sup-

plemental or alternative screening instruments), for whom the

data existed only for a limited number of applicants or em-

ployees. The result is that a particular sample may contain

some, but not necessarily all, of the persons in another sample

and may also contain some persons who were not in the other

sample. This lack of autonomy or consistency complicates

somewhat the process of analysis, but, under the circumstances,

is acceptable. There is no hint of contrivance in selection of the

samples or of lack of representatives of the sample subjects.”?

Criteria

The several criterion-measures (academy grades, efficiency

ratings, and experimental ratings) have certain common factors:

(1) None appears to be ‘‘contaminated’”’ (i.e., affected by know-

ledge by the rater or scorer of prior score on the 10—C or

20—B). (2) None has been subjected to special statistical

— A-38 —

scrutiny to detect or control possible bias among raters or

graders.”? (3) None has been subjected to special statistical

scrutiny for reliability.** (4) Each has been analyzed by the con-

sultants for relevancy (i.e., the extent to which it may be con-

sidered as a measure of critical or important work behaviors).

Each of the measures has, of course, its own special character-

istics and limitations, which will be described separately. It must

be emphasized that, in a criterion-related validation study, one

is attempting to estimate the extent to which a score on a

‘*predictor’’ (e.g., 10—C test) can predict job performance

(i.e., as a police officer) through evaluating its ability to predict

scores or ratings on a ‘‘criterion’”’ (e.g., academy average)—and

hence the study is subject to any limitations which those same

criteria have in either predicting or assessing job performance.

(1) Academy Grades.—Where, as here, new employees are

required to complete special training before performing their

duties, successful completion of that training may properly be

used as a criterion-measure, if, that is, the training is intended

to, and does, provide skills or knowledge needed for perfor-

mance of the job. Based upon the evidence presented, including

testimony of the directors of the Birmingham police and fire

academies, the court finds that the two schools do serve that

purpose and function.

Relative standing or ranking among students who successfully

complete such training is not, however, as such, an appropriate

criterion.**’ Rather, to be relevant as a criterion, such measures

must be shown, empirically or otherwise, to be themselves ap-

propriate predictors of job performance. This, in essence,

means a two-step correlation study; and, in a situation where

one has data on test scores, academy grades, and measures of

job performance for the same group of persons, the more direct

inquiry (correlation between test scores and measures of job

performance) would be preferred to the two-step approach.

Grades on particular courses in the academy must also be

— A-39 —

analyzed for compatibility with findings respecting grades on

other courses.

So far as the evidence indicates, academy grades—provided

they are passing scores—have no impact on job opportunities,

benefits, etc. If this be the case, then, while helpful in prevent-

ing ‘‘contamination’’ during validity studies, academy grades

are likely to be influenced by motivational considerations not

present in actual job performance. The emphasis in the

academies on paper-and-pencil multiple choice items, while pro-

viding objectivity, may also reflect a relationship to the paper-

and-pencil screening exam not found in job performance. These

concerns should cause one to be cautious in making non-

empirical judgments about the usefulness of relative academy

grades as a criterion-measure.

(2) Efficiency Ratings.—The efficiency ratings given

periodically on all employees by their supervisors are direct and,

ostensibly, appropriate measures of job performance. Drs. Far-

rar and McLaurin have, however, acknowledged that these

ratings 2re not trustworthy assessments of the employees’ actual

performance. In addition to other problems, the ratings must be

discussed between the rating supervisor and the employee and

can have important consequences for the employee. These

ratings were, it seems, used in the early studies because of their

availability, in the anticipation that other measures could be

developed and administered in due course.

(3) Experimental Ratings.—By review of existing job descrip-

tions, by interviews to determine ‘‘critical incidents’’ of the

jobs, and by technical assistance and consultation with advisory

committees consisting of representative incumbents and super-

visory personnel, new ‘‘experimental’’ rating forms were

developed for use in the Farrar-McLaurin studies. The forms

consist of twelve rating categories for each of the two jobs, the

categories relating to personality characteristics, job knowledge,

and abilities found through the process to be relevant to job per-

ye

formance. Each is rated on a seven-point scale (poor = 1 to

outstanding = 7), with 3 being fixed as adequate. For the

police form, weights were developed by the advisory committee

to indicate relative importance of the categories to overall job

performance.

Raters—the employees’ supervisors—were given, in person

and in writing, standardized instructions for use of the forms.

To prevent the ‘‘halo’’ effect, supervisors rated all their subor-

dinates on one category before proceeding to rate them on the

next, etc. The raters were told that their evaluations were con-

fidential and would not be used for any purpose other than the

evaluation of the tests.

The court is impressed that the experimental rating method so

developed represents an appropriate criterion measure for the

jobs in question. These jobs are not ones which lend themselves

to some objective measure, such as the sales produced by a sales

representative. The principal limitations with the ratings so ob-

tained are the lack of evidence as to reliability and the lack of

special steps to detect or control possible bias.

— Atl =

Study Findings

Key findings from the Farrar-McLaurin studies are tabulated

below. Correlations are shown only where presented in the body

or exhibits of their reports. Statistically significant differences

in means between two sub-groups (blacks and whites; short-

terure and long-tenure firefighters) are indicated by so

de. .gnating the lower of the two means.

Police

Applicants

T =479

W =33

B=176

Officers

T=109

Officers

T=139

W=101

B=38

Officers

T=59

Officers

T=%

W=76

B=20

Officers

T=148

W=140

B=8

(B= 49)

Deputies

T =83

Officers

T=77

Firefighters

Applicants

T=507

Employees

T = 162

Employees

T=1%

ST = 103

LT =93

test academy ave efficiency rating experimental rating

mean mean r mean r acad fr mean r acad f

65.70

75.21

49.33°*

82.20 .46** ole

69.35

75.03

54.24°*

81.00 88.66 779° 81.73 319°

80.46 87.94 -72°* 81.10 .20 9

84.54 89.00 .64°* 81.44 .0S .08

64.95** 83.90°* 46° 79.81° 17 ~ 05

82.35 87.38 .45°* 84.06 .08 433.79 ale

83.11 87.58 .42°* 84.11 434.75

69.12%* 83.90°° 83.18 417.00

66.78°* 83.82°* .47°*

82.58 87.36 .729°

79.71 87.50 Or"

70.99

83.90 90.60 .43°* 78.27 12 —.23°°

81.99 91.27 .45°* 79.45 ° .20°* -.06 61.24 .08 - .09

81.01 91.98 379° 77.149° 249° Al $8.65°° .259° 21%

83.09 90.47* .62°* 82.02 .05 -.01 64.11 -.20° - .20

*pe .0S

ee

—s on

Fairness and Differential Validity

If members of one racial group generally obtain lower test

scores than members of another group and those differences are

not reflected in differences in measures of job performance,

there is a need, where technically feasible, to investigate for

possible unfairness of the test to the first group. See DOJ

Guidelines, § 12b(7) (noting that this need increases the greater

the severity of the adverse impact on the lower-scoring group).

As the tabulation indicates, the Farrar-McLaurin studies do

show that blacks as a group have scored lower on the 10—C

than have whites. Indeed, in each of their studies where those

scores are reported separately for the two racial groups, the dif-

ferences are significant as p< .O1.

One possibility is that the predictive validity of the test for

one racial group is significantly different than for the other

group. The inquiry here, as emphasized in A.P.A. Standard E9,

is not whether there are differences in the correlation coeffi-

cients or whether one coefficient is statistically significant while

the other is not. Rather, the proper statistical procedure is to

test for significant differences in the coefficients.

In the one study in which a sufficient?* number of both blacks

and whites are involved, Drs. Farrar and McLaurin have per-

formed such an analysis. Using the report of test scores and

academy scores for 140 whites and 49 black police officers, they

tested the correlation coefficients (where the coefficient for

either subgroup was significant at p< .05) after z transforma-

tions, for significance of difference. None was significant at

p< .05, and with respect to only one course (accident investiga-

tion) was the coefficient significant even at p< .10.

Failure, however, to reject the hypothesis that the correlation

coefficients are the same for both groups is not by itself suffi-

cient to demonstrate fairness. Where, as in the present case, test

scores by two groups are used in the same manner for members

of both groups, it is on the assumption that in general an in-

= Akg =

dividual’s test score will appropriately predict his standing on

the criterion whether he is a member of one group or the other.

The predictive relationship between the test score and the

criterion can be represented by a regression line?’ formula for

converting a test score into a predicted criterion score. While

regression lines can be calculated separately for the two groups

and will almost always be somewhat different, it is important to

know whether the slopes or intercepts (or both) of the lines are

sufficiently different to call for abandonment of a common line

for two groups. Otherwise, the common regression line (which

is the effect of using test scores in the same way for both groups)

may systematically underpredict for members of one group

(while overpredicting for the other) their criterion score from a

particular test score. The method for this inquiry, called

analysis of variance, involves use of the F distribution tables for

statistical significance. If desired, one can determine for what

test scores the common regression line should, and should not,

be abandoned.

Significantly, different regression lines may have the same or

similar correlation coefficients. In such a situation comparison

of the coefficients will not reveal the inappropriateness of using

a common regression line. Thus, with the sample containing 76

white and 20” black police officers, comparison of the coeffi-

cients respecting 10—C scores (and modified 10—C scores) and

either academy averages or efficiency ratings does not, as to any

comparison, lead to rejection of the hypothesis of the coeffi-

cients being the same. Yet, when the same data are reviewed by

analysis of covariance, as the court has done”’ for the hypo-

thesis that a common regression line fits both whites and blacks,

the obtained F ratios are 18.38 (1O—C and academy average),

3.97 (10O—C and efficiency rating), 26.91 (modified 10—C and

academy average), and 4.18 (modified 10—C and efficiency

rating), each of which (with n, = 1 and n=93) is significant at

p< .05. It is interesting that in the development of the

modified 80-item scoring key for the 10O—C, adopted to increase

— = le

the validity coefficient for blacks, the evidence becomes

stronger that a common regression line should not be used for

both groups.

In view of the fact that covariance analysis suggests rejection

of acommon regression line for both racial groups, one is temp-

ted—since the differences between white and black means ap-

pear to be far greater on test scores than on the criterion-

measures—to conclude that the performance of blacks is being

underpredicted by the 10—C. However, if regression lines are

computed separately for blacks and whites using the results of

any of the studies where their test scores and criterion scores are

reported separately, it will be found that the lines cross and that

for test scores below that crossing point the criterion scores

thereby predicted for blacks are less than for whites for the same

test scores. Above that point there would be underprediction for

blacks, but the intersections occur at such high test scores (the

lowest point from any of the data is at a raw test score of 87)

that few blacks would actually be affected. If one looks to see

where any overprediction or underprediction is statistically

significant, it is found that the only significant range of scores is

for lower scores, where blacks are being overpredicted by the

10—C.”*°

The net result is that use of 10—C test scores in the same

menner for both blacks and whites does not appear to be under-

predicting the performance of blacks at the academy or on effi-

ciency ratings. This analysis does not, of course, deal with the

possibility of bias affecting the scores blacks obtain at the

academy or on efficiency ratings; it only serves as a foundation

for concluding that the 10—C is not to be criticized on the basis

of differential validity inquiries. The 20—B cannot be subjected

to these inquiries at the present time for lack of sufficient blacks

in any study group.

— Ads =

Operational Utility

It is not, however, sufficient that, as here, a test is shown to

have a statistically significant relationship to one or more

criteria and not to be differentially unfair to the adversely af-

fected racial group. In addition, in words of the EEOC Guide-

lines, § 1607.5(c), the relationship between the test and the

criterion must have ‘‘practical significance’’ or, in the words of

the DOJ Guidelines, § 12b(5), the usage of the test must be

evaluated ‘‘to assure that it is appropriate for operational use.’’

With different words, the two Guidelines are raising the same

concern.

In concluding that the 1O—C and 20—B tests are valid screen-

ing instruments, Drs. Farrar and McLaurin have emphasized

their significant relationship to grades in the training academies,

and this relationship cannot be doubted. However, as already

indicated, it is the court’s couclusion that relative standing in

the academies, as distinguished from successful completion of

academy training, is not an appropriate criterion unless it also »

be demonstrated that those academy grades are themselves valid

predictors of job performance. The studies reflect, however,

that for the most part the correlation between academy grades

and measures of job performance are not significant and, in the

few instances where significant correlations are found, the find-

ings are mixed—some being positive and other being negative.

A negative correlation, of course, indicates that the higher the

academy grades, the lower the performance ratings tend to be.

Although an employer is permitted to select the best person for

the job despite resulting impact on a racial group, it is not per-

mitted to engage in such selection procedures merely to employ

the best person for training.

Nor has it here been demonstrated that either test is a valid

predictor of successful completion of the required training

courses. According to the director of the policy academy, only

11 of the 733 cadets attending the academy since 1962 have

on Dt

failed to complete the training because of inadequate grades—

and no data has been presented as to their 10O—C test scores. Ac-

cording to the director of the firefighters academy, no student

has failed because of poor grades, of course, since historical use

of screening tests (whether the present ones or their predeces-

sors) has imposed a restriction of range, the conclusion does not

necessarily follow that every applicant could complete the train-

ing no matter how low his 10—C or 20—B score. However, it

should be noted that on ocassion the raw test scores used to

determine hiring eligibility have been substantially reduced,

without apparent impact on their successful completion of the

academies. And--while recognizing that, as noted by Dr.

McLaurin, this is not the regression lines developed from any of

the studies would predict passing academy averages even for

persons scoring zero on the 10O—C and 20—B tests.

As earlier discussed, the regular efficiency ratings are not

trustworthy criterion-measures of actual job performance. Even

if they were, the studies provide inconclusive findings with

respect to the 20—B (a significant correlation with a group of

196 firefighters, though only of a magnitude of .20, and an in-

significant correlation of .12 with a group of 162 firefighters),

and even more dubious results with respect to the 10—C.*?

The experimental ratings are, as previously indicated, con-

sidered by the court as an appropriate criterion measure. The

correlation, however, between the 20—B and these ratings is

found to be .08, which is, of course, not significant; and, while

a significant positive correlation is found with respect to the 103

firefighters having less than 3 years service, a significant

negative correlation is found for the 93 having at least 3 years of

tenure. Presumably, higher scores on the 20—B (which carried

over to higher scores during academy training) resulted in better

job performance for the first few years. Had this advantage

merely been erased after more time on the job, this would be

one matter—but, as stated, the findings actually showed a

significant negative correlation for the longer tenured fire-

—_ Pe

fighters, suggesting that over time the lower scoring applicants

made the better employees. Absent any indication that during

the first few years the lower scoring applicants had been inade-

quate on the job, one is hard pressed to conclude that the higher

scoring 20—B applicants are in fact the better persons to hire.

Further study might, of course, lead to other interpretations,

such as a determination that recent improvements in the training

given at the firefighters academy will result in better employees

not only initially but also over time—but no such conclusions

can be supported on the present evidence.

The correlation between 10—C and the experimental ratings

is, with 148 in the sample, significant at p< .05, but has a

magnitude of only .21. What do these figures mean? To begin

with, it should be understood that for a correlation coefficient

to be found significant at p< .05 is equivalent to saying that, if

in fact no relationship between the two variables exists for the

‘*population’’, the obtained results could be expected to occur

only one¢ in twenty such samples—and that therefore one can

be 95% confident that for the population (of applicants) there is

some correlation (or relationship) between the two variables. It

does not mean that one can be 95% confident that the popula-

tion coefficient is .21. Indeed, to state the population coeffi-

cient with only a 5% chance of error (i.e., # < .05) requires use

of a confidence interval: here, with a sample of 148, that the

true coefficient lies somewhere between .0504 and .3592. The

coefficient obtained from the sample is but an estimate of that

true population coefficient.

A second consideration is to look at the test scores in the par-

ticular sample in comparison with the scores of all persons in the

population. Where, as here, there is a restriction in the range of

test scores of those in the sample because of prior use of the test,

a statistical technique, called correction for restriction of range,

may be appropriate for determining the magnitude of the cor-

relation. This ‘‘corrected’’ coefficient, as reported by Drs. Far-

rar and McLaurin, is .36. It may be noted that utilization of the

—_

correlation involves the assumption that the two variables (test

scores and experimental ratings) are for the total population

‘*normally distributed;’’ and, insofar as rating scores are con-

cerned, it is just that—an assumption. Hence, it involves the

same type of risk as does the use of a regression formula for

values beyond the sample on which based—a technique which,

during the trial, provoked Dr. McLaurin’s criticism.

In general, other factors remaining the same, the greater the

magnitude of the coefficient the more likely it is that the test will

be appropriate for use. See DOJ Guidelines, §12b(5). The im-

portance of the size of the correlation coefficient can perhaps

best be understood by reference to certain basic statistical con-

cepts. The square of the correlation coefficient, called the

‘coefficient of determination,’’ gives the proportion of the

variance of the criterion scores which is accountable by

reference to variance of scores on the predictor test. Thus, with

a cori elation coefficient of .21, the study indicates that 4.4% of

the variance among experimental ratings is explainable by

reference to the variance in test scores, while 95.6% is not. Us-

ing the ‘‘corrected’’ coefficient of .36, still only 13% of the

variance among experimental ratings could be accounted for by

test score variance. By another formula, the correlation coeffi-

cient can be converted into a ‘‘coefficient of alienation’’, which

gives the size of the error in a‘ empting to predict experimental

rating scores from test scores relative to the error that would

result from a mere guess, i.e., by not using the test. This calcula-

tion, based on a correlation coefficient of .21, reflects that use

of the test predicts experimental rating scores with a margin of

error that is only 2% smaller than it would be without the test,

and, if based on the ‘‘corrected’’ coefficient of .36, indicates

that the margin of error is only 6.7% less than what would occur

by mere guess.

Anastasi comments, and quite properly so, that evaluation of

a test in terms of the error of estimate will for many testing pur-

poses be unrealistically stringent. Anastasi, PsyCHOLOGICAL

— A-49 —

TESTING, p. 166 (4th Ed. 1976).*? She notes that even tests with

an unusually high validity of .80 would appear to be inefficient

if used to predict individuals’ relative standing on some

criterion, but that most tests are merely used to determine which

individuals will exceed a given minimum standard of perfor-

mance or cutoff point in the criterion. The 10O—C, of course, is

utilized here both to screen applicants (cutoff scores) and to

rank those passing applicants.

While the magnitude of the correlation coefficient is obvious-

ly of great importance, there is no minimum coefficient ap-

plicable to all employment situations. See DOJ Guidelines §

12h(5). ‘‘Under certain circumstances, even validities as low as

.20 or .30 may justify inclusion of the test in a selection pro-

gram.’’ Anastasi, op. cit., p. 166.

Another approach towards evaluation of the relationship

found is to investigate the meaning of differences in test scores

in relation to the differences in criterion scores thereby

predicted. This involves use of the regression formula, which

cam be calculated from the correlation coefficient and the means

and standard deviations of the two variables. Thus, Dr. Roland

Ramsey, the plaintiffs’ expert witness, questioned the practical

value of the 1O—C by noting, from the Farrar-McLaurin study

involving 140 whites and 49 blacks, that an increase in raw test

scores of 40 points produced, under the regression lines given,

less than 5 points increase in predicted academy averages.

The common regression line computed for the 148 officers

with both test scores and experimental ratings is y =

300 + .162x, where x represents a given test score and y is the

rating predicted thereby. At first glance, this regression line

does not appear to be subject to the criticism made by Dr.

Ramsey respecting the other study, for it will be seen that, for

example, a test score difference of 10 will predict an experimen-

tal rating difference at 16. However, it should be understood

that the linear regression formula (as well as the criterion

— A-50 —

mean and criterion standard deviation, although not the cor-

relation coefficient) varies in direct proportion to any factor by

which criterion scores in the sample have been multiplied. The

Farrar-McLaurin study reports the overall experimental rating

as the summation of weighted components which comprise the

rating. For example, a sample subject rated as 5 (very good) on

each of the 12 rating components would, because of the

method, be reported as having a rating score of 499, while

another subject identically rated except for scores of 4 (good) on

the appearance and dependability components would receive an

overall rating of 483, with 698 representing a ‘‘perfect’’ score of

7’s on all components.

To prevent potential misinterpretation, it is well to consider

the regression line not only in the form in which.expressed in the

Farrar-McLaurin studies, but also in a form which does not

contain the inflation caused by the weighting procedure. This

can be done, while still retaining the concept of the components

having differing weights, by expressing the weights in a manner

in which the average weight is 1. That is, instead of the ‘‘com-

munication’’ component having a weight of 8.78 (as reported in

the study), of ‘‘problem solving’’ a weight of 9.44, of

‘‘learning’’ a weight of 8.22, etc., they can be shown as having

weights of 1.056, 1.136, and .989, etc., respectively. Then, a

summation of weighted component scores for a ‘‘perfect’’ score

of 7 on all 12 components would result in 84, identical with a

‘*perfect’’ score if not weighted. Not only does this method re-

tain the concept of weighing the different components, but the

transformation (whether of means, standard deviations, or

regression line) can simply be made by dividing the reported

results by a constant, here 8.31333. The obtained regression line

is y = 36.087 + 195x, where x represents the test score and ¥ is

the predicted rating (using the new method of expressing

weights). It will now be seen that, as with the other studies

criticized by Dr. Ramsey, a large difference in test scores pro-

duces only a small difference in predicted (un-inflated) ex-

— A-51 —

perimental rating scores, e.g., a 40 point raw score difference on

the test gives less than 8 poinis difference on the rating score.

Another method for evaluation, which is not complicated by

the weighting procedure, is to consider the ‘‘standard error of

estimate’’, which, for the data analyzed, is computed to be

92.63. Use of this statistic is demonstrated as follows: while a

raw test score of 70 through the regression formula predicts an

experimental rating of 413, one can through use of the standard

error of estimate determine, at p< .05, the experimental rating

actually to lie within the range of 231 to 595. Similarly, the

predicted experimental rating, at p.< .05, from a raw test score

of 40 is found to be in the range of 183 to 547. Obviously, there

is a potential overlap, where persons with raw scores of 40 and

70 on the test may nevertheless obtain the same experimental

rating score. It is, furthermore, possible to determine how much

of a difference in test scores is required for one to be able to

predict, atp< .05, that the higher-scoring applicant will receive

an experimental rating which also is higher’*—and this calcula-

tion results in a finding that a difference in test scores of over 86

raw points is necessary for such a conclusion to be reached. It

should be noted that the total range of raw test scores to this

date used to rank successful applicants (/.e., from a low raw

score of 48 to the perfect score of 120, which has not been ob-

tained by any) is yet too limited to enable one to say, at the .05

level, that the highest-scoring applicant would be predicted to

obtain a higher experimental rating than the lowest-scoring

applicant.

Since the 10—C is utilized not only in an attempt to rank the

successful candidates, but also to screen the unsuccessful, it is

appropriate to analyze the study results with respect to

minimum experimental ratings and to predictions for persons

scoring at, and below, the test cut-off scores. A test score of 48,

the lowest used as a cut-off, yields a predicted experimental

rating of 378, or an average unweighted rating on each com-

ponent of the experimental rating of 3.78 (3 = adequate,

aw ASE =

4 = good).’*. Common regression lines can, of course, also be

computed separately for each of the twelve components of the

rating. When this is done, one finds that a test score of 48 will as

to each component predict an unweighted rating of 3 or above,

i.e., at least ‘‘adequate.’’ While recognizing the risk in ex-

trapolation beyond the range of sample scores,’* but having lit-

tle else available for comparable analysis, one can look to

estimates of experimental ratings predicted by the regression

lines for test scores below 48. If this is done, it appears that even

with a test score of 0 the predicted rating is ‘‘adequate’’ or

above for the rating as a whole and for seven of the twelve com-

ponents. Even as to the five components for which the

estimated unweighted experimental rating from a 0 test score

would be less than 3, the predicted rating cannot be said to be

less than ‘‘adequate’’ at p< .0S5.

A technique for evaluating tests which employ cut-off scores

for screening purposes is to consider ‘‘false positives’ (persons

scoring below the cutoff but nevertheless scoring above the ac-

ceptable level of performance on the criterion) in relation to

‘‘false acceptances’ (persons scoring above the cutoff but

below the acceptable level of performance), thereby leading to a

comparison between the relative percentage of successful em-

ployees above and below the cut-off scores. However, neither

this method nor the Taylor-Russell tables (used to estimate net

gain in selection accuracy through test usage) can be directly us-

ed in the present case because all employees for whom

‘*success’’ data are available have been screened by the test. It is

possible to project the ‘‘base rate’’ (through use of the regres-

sion line, standard error of estimate, and normal distribution

curves) and then to conduct such inquiries, and, if this be done,

one finds any incremental validity to be negligible.

Still another approach is to estimate the effect of the test not

on the percentage of persons exceeding minimum performance,

but on overall performance of the selected persons. A table

— A-53 —

given by Anastasi, op. cit. at p. 173, gives the expected rise in

criterion scores through test usage in relation to its validity coef-

ficient and the selection ratio. In the present case, with a .21

coefficient and a selection rate of .19 (506 officers hired from

2721 applicants), and with a standard deviation of known

criterion scores of 94.74, one finds from the table that use of the

test (had the applicants actually been hired in the order of the

test scores) would probably have produced an average gain of 27

points in the total weighted experimental rating (over the rating

expected had the test not been used). This gain is equivalent to

being rated one point higher on three of the 12 rating com-

ponents. The average unweighted rating on each of the com-

ponents would, without the test, have been 4.07 (4 = good),

which compares to 4.35, using the test.

The assessment of utility of a test which, like the 1O—C, has a

statistically significant validity, albeit of very low magnitude,

must include certain value judgments. One of these involves

consideration of the nature of the job in question and the conse-

quences of a faulty hiring decision. There can be little dispute

that police officers perform a vital, and sensitive, function in

our society. The desirability of ‘‘upgrading’’ of law enforce-

ment has been emphasized in two reports received in evidence,

the 1967 Task Force Report on the Police, issued by the Presi-

dent’s Commission on Law Enforcement and the Administra-

tion of Justice, and the 1973 Report on Police, issued by the Na-

tional Advisory Commission on Criminal Justice Standards and

Goals. Economic costs are also involved, particularly in view of

the cost of academy training of officers and the restraints placed

upon discharge of marginal officers under the civil service laws.

Without demeaning the importance of law enforcement of-

ficials, however, it can hardly be said that the possibility of oc-

casional selection of an inept officer presents the same type of

daily economic and human risk factors as is involved, for exam-

ple, in the employment of airline pilots or bus-drivers. Cf.

Spurlock v. United Airlines, Inc., [5 EPD 4 7996] 475 F.2d 216,

— AS =

219 (CA7 1972); Usery v. Tamiami Trail Tours, Inc., [11 EPD

910,916] 531 F.2d 224 (CAS 1976) (Age Discrimination in

Employment Act case, with somewhat related question). A

twelve months’ probationary period is provided, during which

time the occasional incompetent may be detected and dismissed

and during part of which time the employee is undergoing train-

ing rather than being ‘‘on the street’’. The principal public con-

cern, it would appear, is not so much that the most able officers

be employed (though that. certainly, would be desirable) as that

the emotionally unfit not be employed. In this context, it is

perhaps noteworthy that the 1967 Presidential Commission’s

report contained a recommendation for use of psychological

tests to detect applicants with personality defects (but no such

recommendation respecting aptitude tests); and the 1973 Na-

tional Advisory Commission’s report, while acknowledging the

desirability of valid aptitude tests, was skeptical as to the results

of research to that date. So far as the court has been informed,

the 10O—C was not designed, and has not been validated, for use

in detecting emotional disorders or defects.

The DOJ Guidelines § 12b(b), provide that, in determining

operational appropriateness, one should consider ‘‘the degree

of adverse impact of the procedure, the availability of other

selection procedures of greater or substantially equal validity,

and the need of an employer, required by law or regulation to

follow merit principles, to have an objective system of

selection.’’ Obviously this latter factor (requirement under civil

service law to give some ubjective test) cannot by itself suffice as

justification for a test which has, as here, substantial adverse

impact on a racial group. While it can be said that no other

available’’ selection with greater validity than the 10—C has

been found, yet it must also be said—considering the minimal

benefits resulting from the 10—C in the context of this employ-

ment situation—that no-test-at-all has ‘‘substantially’’ the same

practical validity as the 10O—C.

In summary, the 20—B Firefighter test has not been shown to

be a valid predictor of a job-relevant criterion measure and the

— A-55 —

10—B Policeman test, while having a statistically significant

relationship of a very low magnitude with a job-relevant

criterion measure, has not been shown to be appropriate for

operational use in screening or ranking applicants.**

Violation and Remedy

Having concluded that use of the 10O—C and 20—B has hadan

adverse impact upon black applicants and that the studies

presented fail to demonstrate job-relatedness, the court must

nevertheless determine when the requirements of law were

violated and what relief is appropriate therefor. This inquiry

should involve no less care then consideration of the tests

themselves.

The requirements of Title VII first became applicable to the

Personnel Board in March 1972. At that time, and for many

years earlier, the Board was required by state law to administer

appropriate tests to screen and rank applicants—a requirement

which continues to the present time, subject to any over-riding

proscriptions of Title VII. It had several years earlier selection

the 10O—C and 20—B tests as the best tests then available, with

the hope that black applicants would fare better than under

previous tests. By March 1972 a preliminary, in-house validity

study had been conducted, which reflected some improvement

in hiring of blacks and the indication of appropriate validity

based upon relationship with existing criterion measures. An in-

depth independent validation study was immediately under-

taken, including investigation of alternative or supplemental

selection procedures to improve the predictive validity or

decrease adverse impact upon blacks. At least since 1965 the

Board has not intentionally discriminated against black ap-

plicants but, to the contrary, has attempted to increase black

employment within the options available under state law, in-

cluding modification of the scoring key for the 10—C when

recommended by the consultants as a method for increasing

validity of the test for black applicants.

— A-56 —

The preliminary reports from the consultants, made while

more trustworthy measures of job performance were being

developed, contained signs of potential validity and recom-

mended continued usage of the test pending the additional

studies. Not until April 25, 1975, with respect to the 10—C, and

July 8, 1976, with respect to the 20—B, were the studies using

these new criterion measures completed and reported to the

Board. It was on these respective dates that, in the court’s opin-

ion, it should have been concluded that provisional use of the

tests was no longer permissible. Prior thereto, the Board was, in

the court’s opinion, justified in continuing to use the tests (and

the eligibility lists generated therefrom) in anticipation of

favorable results from those studies. Use of the tests (or of the

eligibility lists therefrom) was thereafter, however, contrary to

the requirements of Title VII, which override state law inconsis-

tent therewith.

The remedy should be appropriate to the violation found. In

this case, from X-11, it is found that, for the two administra-

tions of the 10O—C from which eligibility lists used after April

25, 1975, were formed, 658 (or 88%) of the 747 white applicants

were placed on the eligibility lists. Had a like percentage of

black applicants been so placed, a total of 252 would have been

on the lists—128 more than actually placed on the list. Accord-

ingly, to the extent they are still interested, an additional 128

blacks from the prior administrations of the test should be

added to the present eligibility lists. This remedy only relates to

prohibited use of the 10O—C as a screening instrument. An addi-

tional measure is needed to correct for the improper use of the

test as ranking procedure. Had the eligibility lists been represen-

tative of the applicant group and had certifications from the list

likewise been representative of the racial composition of the list,

approximately 28% of the persons certified would have been

black. It is clear that there has been ‘‘under-certification’’ of

blacks by this standard, although the precise degree cannot be

determined from evidence before the court, which gives such in-

formation only by calendar years. The Board is directed to

oe

ascertain the extent of such under-certification and in future

certifications to include at least 1 black candidate for every 3

certified until such time that, considering the certifications after

April 25, 1975, total number of blacks certified becomes 28% of

the total number of persons certified. Thereafter (and until

some new selection procedures are adopted which are sufficient-

ly job-related or which have no adverse impact upon blacks) at

least 2 of every 7 persons certified by the Board from the revised

present list shall be black, provided there be a sufficient number

of black applicants interested.

A similar investigation of X-11 with respect to the 20—B,

where only one eligibility list has been in effect since July 8,

1976 (the date of the report involving the experimental ratings),

results in a conclusion that 91 black applicants should be added

to the present eligibility list for firefighters, that at least 1 of

every 3 persons hereafter certified shall be black until such time

that (considering certifications after July 8, 1976) the total

number of blacks certified becomes 14%** of the total number

of persons certified, and that thereafter (pending adoption of

some other valid or nondiscriminatory selection instrument) at

least 1 of every 7 certified by the Board from the revised current

list shall be black.

This order does not preclude use of the 10O—C or 20—B as a

device for ranking one white as against another white, or one

black as against another black. Such a use may be invade by the

Board, if it so desires, without any discriminatory impact on a:

racial group. The order does not prevent the Board from new

administrations of the 10—C or 20—B (or other tests) or from

forming new eligibility lists from time to time; provided,

however, that, unless and uatil a selection instrument is found

which either has no adverse impact racially or is sufficiently

valid, the test results shall be used in a manner consistent with

this opinion, i.e., the eligibility list and certifications to be

representative racially of the applicant group regardless of test

scores.

— A-58 —

APPENDIX C

Footnotes

' Fourteen separate county and municipal employers are covered by

the law. Cities with a population of under 5,000 are excluded.

? With multiple vacancies, the number of persons certified is two

more than the number of vacancies to be filled.

> Not presently at issue are requirements (such as age or education)

which may be imposed as conditions to taking an examination, nor are

specifications (such as residence within Jefferson County) which may

give preference to certain applicants.

* Unless otherwise noted, reference to police officers in the balance

of this opinion will also refer to deputy sheriffs.

* Under F.R.Civ.P. Rule 42, the four actions were consolidated

with respect to challenges to Personnel Board tests and a separate trial

was scheduled respecting the attacks on the Policeman 10—C, Fire-

fighter 20—B, and Office Worker 30—B tests. At the trial the plain-

tiffs indicated that the attack on the Office Worker 30—B test was

dropped for lack of evidence of adverse impact and that any attack on

the 1O—C and 20—B tests based on sex was likewise dropped for lack

of evidence.

* The 10—C and 20—B tests were adopted by the Board after ini-

tially experimenting, commencing in January 1966, with alternate

forms of the IPMA tests.

’ The Board’s studies resulted in selection of the 10—C form

because of its significant and positive correlation with a greater

number of the selected criteria measures than did the alternate IPMA

form. The study indicated a significant and positive correlation be-

tween 10—C scores and training academy average (a. well as several

course grades in the academy) and between the training academy

average and the officers’ latest efficiency ratings.

* Not until 1968 was the residency requirement of the City of Birm-

ingham removed by the city ordinance. A Jefferson County

preference remains in effect, but this can hardly disadvantage blacks,

who constitute a larger portion of the Jefferson County population

than of neighboring counties.

— A-59 —

* An intent to discriminate would presumably be required for there

to be a violation of 42 U.S.C. § 1983, if not of 42 U.S.C. § 1981. See

Washington v. Davis,.—U.S.—(June 7, 1976).

‘© Albemarle Paper Co. v. Moody, [9 EPD 4 10,230) 422 U.S. 405,

425 (1975).

'' Griggs v. Duke Power Co., (3 EPD 48137] 401 U.S. 424, 432

(1971).

'2 There are some conflicts between the EEOC and the DOJ Guide-

lines. However, it is not necessary as to the issues presently before the

court that a choice be made between the two.

' Information for this table has been taken from X-11 and from

data respecting hires supplied by the parties at the court’s request

following formal close of the evidence. Certain caveats should be

noted: The results of the 1O—C exam administered on April 29-30,

1971, have been eliminated because it was not used for employment

decisions after March 24, 1972. The results of the 1O—C exam ad-

ministered on September 30 and October I, 1971 and of the 20—B

exam administered on May 26-27, 1971, have been included in the

tabulation, even though in part the eligibility lists taken therefrom

would have been used prior to March 24, 1972. The number of hires

_ includes those hired in 1972 prior to March 24, 1972. As the Board

points out, the number of hires is affected by voluntary choices of the

candidates (such as declining job offers or waiving consideration),

but, lacking reliable data on such matters for both whites and blacks,

the court has looked to actual hires as the measure of the overall selec-

tion ratios. Finally, it should be noted that, since persons are permit-

ted to take exams more than once, the applicant figures do not com-

pletely accurately reflect the number of different individuals involved.

These limitations do not, in the court’s opinion, prevent meaningful

usage of the data for the purposes indicated.

'* These figures are derived from X-12 and are subject to the ap-

propriate caveats indicated in fn. 13, supra. Moreover, X-12 does not

have any information for one eligibility list and does not contain

percentile information as to several lists. In a very real sense, ‘‘pass-

ing’’ an exam is measured not by obtaining a derived score of at least

70 (and thereby being entered on the eligibility list), but by obtaining a

score sufficiently high to be placed on the eligibility list at a position

where, during use of that list, the candidate will actually be certified to

an employing agency.

ye

'S Until a couple of months prior to trial, the litigation was being

prepared with the anticipation that all tests under challenge were to be

considered at a single hearing. When the decision was made by the

court that the first trial would only concern the 10—C, 20—B, and

30—B tests, counsel and witnesses were freed to shift their attention to

‘““loose-ends’’ on these three tests.

'6 Some items on each test elicit knowledge which apparently would

be needed for performance of job functions; others do not. Some ef-

fort has been made by the test developer to give ‘‘face validity’’, as by

expressing an item involving numerical problem solving in the context

of information with which job occupants would be dealing. Face

validity does not affect validity for usage as a selection procedure so

much as it may overcome motivational resistance by those taking the

test.

'? **Reliability refers to the consistency of scores obtained by the

same persons when reexamined on the same test on different occa-

sions, or with different sets of equivalent items, or under other

variable examining conditions.’’ Anastasi, PsycHOLOGICAL TESTING, Pp.

103 (4th Ed. 1976). The methods used in this study to estimate

reliability were the split-half technique (corrected by the Spearman-

Brown prophecy formula) and the Kuder-Richardson formula 20.

'* A test item correctly answered by too high a proportion of the

applicants is considered not difficult enough; correctly answered by

too low a proportion, it is considered too difficult. In this study items

correctly answered by 30 to 70% of the applicants were considered

satisfactorily difficult.

'? Item ‘‘discrimination’’ is in essence a comparison between scores

made on an individual test item and scores made on the total test,

thereby ascertaining whether particular items ‘‘discriminate’’

significantly in predicting success on the test as a whole. In the study,

significance was established at p< _ .05.

2 As previously indicated, the 10O—C exam was in fact modified

through use, effective April 10, 1974, of an 80-item answer key, which

had the effect of eliminating for scoring purposes 40 of the items. This

particular change was done to improve correlation with an academy

average criterion for blacks (rather than to improve item difficulty or

discrimination levels), but it indicates the search for increased test

utility. The consultants also recommended consideration of possible

modification (or supplementation) of 20—B to improve levels of item

difficulty and discrimination. Only one administration of the 20—B

was given after this recommendation, and that was done when the ex-

isting eligibility list had almost been exhausted but mass administra-

tion of an additional test (the PAS) had not yet become feasible.

— A-61 —

21 Neither the EEOC nor the DOJ Guidelines require reporting of

raw data statistics for € x, © x’, € y, Ey’, or € xy. Such information

would, however, be helpful, permitting application of statistical

measures not chosen by authors of the report without the loss of ac-

curacy which results from derivation of such items from means, stan-

dard deviations and correlation coefficients.

22 The study of the sample 59 police officers for whom Raven and

PAS test scores were available is subject to question for voluntarism.

See A.P.A. Standard E6.1.2.

?* The possibility of bias is of particular concern where subjective

evaluations are used as criteria and there are significant differences in

those measures for different racial groups. See DOJ § 12b(2). In each

study where means and standard deviations are presented separately

for blacks and whites with respect to one or more of the basic

criterion-measures (academy average, efficiency rating, or experimen-

tal rating), the means for blacks is less than for whites, and only in the

study which involved but 8 blacks were any of these differences not

Statistically significant at least at p <.05. It may be argued that the

academy grades should be treated as objective (being based in major

part upon multiple-choice exams), but a substantial part of those

grades is apparently dependent upon instructors’ subjective appraisal

of students’ performance. (This latter comment is not intended to sug-

gest that more paper-and-pencil tests should be used in the academies,

but rather that even academy grades are at least in part subjective

measures.)

** See fn. 17, supra. Inquiry into the reliability of a criterion is not a

trivial consideration. See A.P.A. Standards E4.4. That the various

techniques for estimating such reliability have their own limitations

affects the interpretatian to be reached, not the desirability of making

the effort.

?* Of course, relative standing or grades in the academy may,

depending upon the statistical technique employed, be of use in cor-

relating test scores with successful completion of the training.

*° The DOJ Guidelines, § 12b(7)(v)(1), GO not require analysis

where less than thirty persons are in either of the subgroups.

?? Scattergrams in the present case do indicate, within the ranges of

scores available, that relationships between the predictors and criteria

for both racial groups are essentially linear.

~ Aa

2* One should view with caution differential studies where either

group has less than 30 members. However, the principal concern is

that true differences will not appear to be significant with smaller

sample numbers.

2 The court has analyzed the 96-subject sample rather than the

189-subject sample because the report of the former includes deviation

and correlation data not only for the two racial groups but also for the

sample as a whole, facilitating analysis. It should be recognized that

analysis from such statistics are subject to rounding errors which

could have been avoided had raw data summations been provided.

3° Absent ‘‘adverse impact’’ on whites as a whole, the ‘‘under-

predicted’’ whites cannot challenge the test under Title VII.

*' Regression lines should not generally be used for prediction

based on predictor scores which are beyond the range of predictor

scores found in the sample, for beyond such known scores the rela-

tionship may cease to be significant, may cease to be linear, or may

have a slope change. Of course the same possibilities exist when one

attempts to justify non-selection based upon correlation coefficients

developed through the subjects selected or when one attempts to

modify coefficients for restriction of range, such as Drs. Farrar and

McLaurin have done.

*? The correlations between the 1O—C and efficiency ratings were

significant only with respect to the volunteer group of 59 officers.

*» The Anastasi volume was qualified during trial as a recognized

treatise under F.R.E. 803(18). Additional standard texts used by the

court for the purpose of taking judicial notice of basic statistical for-

mulae are Guilford & Fruchter, Fundamental Statistics in Psychology

and Education (Sth Ed. 1973); Walker & Lev, Statistical Ineference

(1953); Burrington & May, Handbook of Probability and Statistics

(2nd Ed. 1970); and Mehrens & Lehamann, Standard Tests in Educa-

tion (2nd Ed. 1975).

** A note should bé made of this technique since not directly given

in most texts. Using the normal curve, the possibility of scores ex-

ceeding y/o = + .76 is .2236 and likewise the possibility of scores

being less than y/o = + — .76 is .2236. The possibility of both

events occurring is .2236’, or .05. Accordingly, there must be a separa-

tion of 2(.76) x standard error of estimate for two predicted scores to

be different at p.< .05. One can then determine the difference in

predictor scores necessary to produce this separation in predicted

scores.

— A-63 —

> By comparison, a raw-test score of 106 (the highest reported in

‘the study for any subject) yields a predicted experimental rating of

472, or an average unweighted rating on each component of 4.73

(5 = very good).

36 See fn. 31, supra, and the discussion on page 21 of this opinion

respecting assumption of normal distribution when a correlation coef-

ficient is corrected for restriction of range.

7 Studies of the PAS, developed by Drs. Farrar and McLaurin,

show extremely high correlations with experimental ratings, as well as

with academy training and efficiency ratings. Ironically, the results

are sO promising as to causé some concern as to a spurious relation-

ship which may not be replicated. In any event, technical difficulties,

unresolved to date, have prevented its administration on a wide-scale

basis such as for all applicants, so that for practical purposes it is not

‘*available’’.

** Correlation studies respecting efficiency ratings and ‘‘experimen-

tal’’ ratings were conducted only for officers employed by the City of

Birmingham. However, the evidence is persuasive that job re-

quirements for deputy sheriffs and for police officers employed by

other municipalities are essentially the same as for Birmingham of-

ficers. The higher correlations found with respect to academy training

are not of themselves sufficient to justify a conclusion as to onera-

tional validity for these officers different from that reached respe-ting

Birmingham.

** Blacks constituted only 14% of the applicants on the only ad-

ministration of the 20—B invoived.

ait! a ante

APPENDIX D

Ensley Branch of the N.A.A.C.P., Plaintiff v. George

Seibels, et al., Defendants. Civil Action No. CA 74-Z-12-S.

John W. Martin et al., Plaintiffs v. City of Birmingham et

al., Defendants. Civil Action No. CA 74-Z-17-S.

United States of America, Plaintiff v. Jefferson County et

al., Defendants. Civil Action No. CA 75-P-0666-S.

Lucy Walker et al., Plaintiffs v. Jefferson County Home et

al., Defendants. Civil Action No. CA 76-M-2047-S.

United States District Court, Northern District of Alabama,

Southern Division. January 10, 1977.

ORDER

Pursuant to the findings and conclusions contained in the

Memorandum of Opinion filed herewith, unavoidably pro-

tracted because of the need to detail the findings of fact and the

reasons therefor, it is ordered as follows:

1. Use by the Personnel Board of Jefferson County of the

30-B Office Workers test has not violated Title VII or other ap-

plicable law.

2. Use by the Personnel Board of Jefferson County of the

10-C Policeman Test and the 20-B Firefighter Test has violated

Title VII since April 25, 1975, and July 8, 1976, respectively.

3. To the current eligibility list for police officers and deputy

sheriffs the Personnel Board shall add the names of 128 black

applicants from prior administrations of the 10-C to the extent

‘such number are still interested. In future certifications, at least

1 black on the revised eligibility list shall be certified for each 3

persons certified until such time that the total number of blacks

certified after April 25, 1975, shall be 28% of the total number

so certified. Thereafter during use of the current eligibility list as

so revised, at least two persons of every seven certified shall be

— A-65 —

black. Pending adoption of some selection procedure which

either has no adverse effect upon black applicants or is suffi-

ciently job-related, the number of blacks on any new eligibility

list (and certified therefrom) shall be representative of the

number of the black applicants.

4. To the current eligibility list for firefighters, the Personnel

Board shall add the names of 91 black applicants from prior ad-

ministrations of the 20-B to the extent such number are still in-

terested. In future certifications, at least 1 black on the revised

eligibility list shall be certified for each 3 persons certified until

such time that the total number of blacks certified after July 8,

1976, shall be 14% of the total number so certified. Thereafter,

during use of the current eligibility list as so revised, at least one

person of every seven certified shall be black. Pending adoption

of some selection procedure which either has no adverse impact

upon black applicants or is sufficiently job-related, the number

of blacks on any new eligibility list (and certified therefrom)

shall be representative of the number of black applicants.

5. In accordance with F.R.Civ.P. Rule 55(b), the court ex-

pressly determines that there is no just reason for delay and ex-

pressly directs entry of judgment as to the issues here involved,

namely, whether use by the Personnel Board of the 10-C, 20-B,

and 30-B tests are proscribed by law and, if so, the appropriate

remedy therefor.

— Ss pe

APPENDIX E

Civil Rights Act of 1964, As Amended.

42 U.S.C. §2000(e)

DEFINITIONS

For the purposes of this title—

(a) The term ‘‘person’’ includes one or more individuals,

governments, governmental agencies, political subdivisions,

labor unions, partnerships, associations, corporations, legal

representatives, mutual companies, joint-stock companies,

trusts, unincorporated organizations, trustees, trustees in

bankruptcy, or receivers.

(b) The term ‘‘employer’’ means a person engaged in an in-

dustry affecting commerce who has fifteen or more employees

for each working day in each of twenty or more calendar weeks

in the current or preceding calendar year, and any agent of such

a person, but such term does not include (1) the United States, a

corporation wholly owned by the Government of the United

States, and Indian tribe, or any department or agency of the

District of Columbia subject by statute to procedures of the

competitive service (as defined in section 2102 of Title 5 of the

United States Code), or (2) a bona fide private membership club

(other than a labor organization) which is exempt from taxation

under section 501(c) of the Internal Revenue Code of 1954, ex-

cept that during the first year after the date of enactment of the

Equal Employment Opportunity Act of 1972, persons having

fewer than twenty-five employees (and their agents) shall not be

considered employers.

(c) The term ‘‘employment agency’’ means any person

regularly undertaking with or without compensation to procure

employees for an employer or to procure for employees oppor-

tunities to work for an employer and includes an agent of such a

person.

on AG? =

(d) The term ‘‘labor organization’’ means a labor organiza-

tion engaged in an industry affecting commerce, and any agent

of such an organization, and includes any organization of any

kind, any agency, or employee representation committee,

group, association, or plan so engaged in which employees par-

ticipate and which exists for the purpose, in whole or in part, of

dealing with employers concerning grievances, labor disputes,

wages, rates of pay, hours, or other terms or conditions of

employment, and any conference, general committee, joint or

system board, or joint council so engaged which is subordinate

to a national or international labor organization.

(e) A labor organization shall be deemed to be engaged in an

industry affecting commerce if (1) it maintains or operates a hir-

ing hall or hiring office which procures employees for an

employer or procures for employees opportunities to work for

an employer, or (2) the number of its members (or, where it is a

labor organization composed of other labor organizations or

their representatives, if the aggregate number of the members of

such other labor organization) is (A) twenty-five or more during

the first year after the date of enactment of the Equal Employ-

ment Opportunity Act of 1972, or (B) fifteen or more

thereafter, and such labor organization—

(1) is the certified representative of employees under

the provisions of the National Labor Relations Act, as

amended, or the Railway Labor Act, as amended;

(2) although not certified, is a national or international

labor organization or a local labor organization recognized

or acting as the representative of employees of an employer

or employers engaged in an industry affecting commerce;

or '

(3) has chartered a local labor organization or sub-

sidiary body which is representing or actively seeking to

represent employees of employers within the meaning of

paragraph (1) or (2); or

— A-68 —

(4) has been chartered by a labor organization repre-

senting or actively seeking to represent employees within

the meaning of paragraph (1) or (2) as the local or subor- —

dinate body through which such employees may enjoy

membership or become affiliated with such labor organiza-

tion; or

(5) is a conference, general committee, joint or system

board, or joint council subordinate to a national or inter-

national labor organization, which includes a labor

organization engaged in an industry affecting commerce

within the meaning of any of the preceding paragraphs of

this subsection.

(f) The term ‘‘employee’’ means an individual employed by

an employer, except that the term ‘‘employee’’ shall not include

any person elected to public office in any State or political sub-

division of any State by the qualified voters thereof, or any per-

son chosen by such officer to be on such officer’s personal staff,

or an appointee on the policy making level or an immediate ad-

viser with respect to the exercise of the constitutional or legal

powers of the office. The exemption set forth in the preceding

sentence shall not include employees subject to the civil service

laws of a State government, governmental agency or political

subdivision.

(g) The term ‘‘commerce’’ means trade, traffic, commerce,

transportation, transmission, or communication among the

several States; or between a State and any place outside thereof;

or within the District ot Columbia, or a possession of the United

States; or between points in the same State but through a point

outside thereof.

(h) The term ‘‘industry affecting commerce’’ means any ac-

tivity, business, or industry in commerce or in which a labor

dispute would hinder or obstruct commerce or the free flow of

commerce and includes any activity or industry ‘‘affecting com-

merce’’ within the meaning of the Labor-Management Repor-

= Te

ting and Disclosure Act of 1959 and further includes any

governmental industry, business, or activity.

(i) The term ‘‘State’’ includes a State of the United States,

the District of Columbia, Puerto Rico, the Virgin Islands,

American Samoa, Guam, Wake Island, the Canal Zone, and

Outer Continental Shelf lands defined in the Outer Continental

Shelf Lands Act.

(j) The term ‘‘religion’’ includes all aspects of religious

observance and practice, as well as belief, unless an employer

demonstrates that he is unable to reasonably accommodate to

an employee’s or prospective employee’s religious observance or

practice without undue hardship on the conduct of the

employer’s business.

(k) The terms ‘‘because of sex’’ or ‘‘on the basis of sex’’ in-

clude, but are not limited to, because of or on the basis of

pregnancy, childbirth or related medical conditions; and women

affected by pregnancy, childbirth, or related medical conditions

shall be treated the same for all employment-related purposes,

including receipt of benefits under fringe benefit programs, as

other persons not so affected but similar in their ability or in-

ability to work, and nothing in section 703(h) of this title shall

be interpreted to permit otherwise. This subsection shall not re-

quire an employer to pay for health insurance benefits for abor-

tion, except where the life of the mother would be endangered if

the fetus were carried to term, or except where medical com-

plications have arisen from an abortion: Provided, that nothing

herein shall preclude an employer from providing abortion

benefits or otherwise affect bargaining aezreements in regard to

abortion.

EXEMPTION

This title shall not apply to an employer with respect to the

employment of aliens outside any State, or to a religious cor-

poration, association, educational institution, or society with

— A-70 —

respect to the employment of individuals of 2 particular religion

to perform work connected with the carrying on by such cor-

poration, association, educational institution, or society of its

activities.

DISCRIMINATION BECAUSE OF RACE,

COLOR, RELIGION, SEX, CR

NATIONAL ORIGIN

(a) It shall be an unlawful employment practice for an

employer—

(1) to fail or refuse to hire or to discharge any individu-

al, or otherwise to discriminate against any individual with

respect to his compensation, terms, conditions, or

privileges of employment, because of such individual’s

race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or

applicants for employment in any way which would

deprive oc tend to deprive any individual of employment

opportunities or otherwise adversely affect his status as an

employee, because of such individual’s race, color,

religion, sex; or national origin.

(b) It shall be an unlawful employment practice for an

employment agency to fail or refuse to refer for employment, or

otherwise to discriminate against, any individual because of his

race, color, religion, sex, or national origin, or to classify or

refer for employment any individual on the basis of his race,

color, religion, sex, or national origin.

(c) It shall be an unlawful employment practice for a labor

organization—

(1) to exclude or to expel from its membership, or

otherwise to discriminate against, any individual because

of his race, color religion, sex, or national origin.

— A-71 —

(2) to limit, segregate, or classify its membership or

applicants for membership, or to classify of fail or refuse

to refer for employment any individual, in any way which

would deprive or tend to deprive any individual of employ-

ment opportunities, or would limit such employment op-

portunities or otherwise adversely affect his status as an

employee or as an applicant for employment, because of

such individual’s race, color, religion, sex, or national

origin; or

(3) to cause or attempt to cause an employer to dis-

criminate against an individual in violation of this section.

(d) It shall be an unlawful employment practice for any

employer, labor organization, or joint labor-management com-

mittee controlling apprenticeship or other training or retraining,

including on-the-job training programs to discriminate against

any individual because of his race, color, religion, sex, or na-

tional origin in admission to, or employment in, any program

established to provide apprenticeship or other training.

(e) Notwithstanding any other provision of this title, (1) it

shall not be an unlawful employment practice for an employer

to hire and employ employees, for an employment agency to

classify, or refer for employment any individual, for a labor

organization to classify its membership or to classify or refer for

employment any individual, or for an employer, labor organiza-

tion, or joint labor-management committee controlling appren-

ticeship or other training or retraining programs to admit or

employ any individual in any such program, on the basis of his

religion, sex, Or national origin in those certain instances where

religion, sex, or national origin is a bona fide cccupational

qualification reasonably necessary to the normal operation of

that particular business or enterprise, and (2) it shall not be an

unlawful employment practice for a school, college, university,

or other educational institution or institution of learning to hire

and employ employees of a particular religion if such school,

om A?

college, university, or other educational institution or institu-

tion of learning is, in whole or in substantial part, owned, sup-

ported, controlled, or managed by a particular religion or by a

particular religious corporation, association, or society, or if the

curriculum of such school, college, university, or other educa-

tional institution or institution of learning is directed toward the

propagation of a particular religion.

(f) As used in this title, the phrase ‘‘unlawful employment

practice”’ shall not be deemed to include any action or measure

taken by an employer, labor organization, joint labor-

management committee, or employment agency with respect to

an individual who is a member of the Communist Party of the

United States or of any other organization required to register

as a Communist-action or Communist-front organization by

final order of the Subversive Activities Control Board pursuant

to the Subversive Activities Control Act of 1950.

(g) Notwithstanding any other provision of this title, it shall

not be an unlawful employment practice for an employer to fail

or refuse to hire and employ andy individual for any position,

for an employer to discharge any individual from any position,

or for an employment agency to fail or refuse to refer any in-

dividual for employment in any position, or for a labor

organization to fail or refuse to refer any individual for employ-

ment in any position, if—

(1) the occupancy of such position, or access to the pre-

mises in or upon which any part of the duties of such posi-

tion is performed or is to be performed, is subject to any

requirement imposed in the interest of the national security

of the United States under any security program in effect

pursuant to or administered under any statute of the

United States or any Executive order the President; and

(2) such individual has not fulfilled or has ceased to

fulfill that requirement.

wees ee

(h) Notwithstanding any other provision of this title, it shall

not be an unlawful employment practice for an employer to ap-

ply different standards of compensation, or different terms,

conditions, or privileges of employment pursuant to a bona fide

seniority or merit system, or a system which measures earnings

by quantity or quality of production or to employees who work

in different locations, provided that such differences are not the

result of an intention to discriminate because of race, color,

religion, sex, or national origin, nor shall it be an unlawful

employment practice for an employer to give and to act upon

the results of any professionally developed ability test provided

that such test, its administration or action upon the results is not

designed, intended or used to discriminate because of race, col-

or, religion, sex or national origin. It shall not be an unlawful

employment practice under this title for any employer to dif-

ferentiate upon the basis of sex in determining the amount of

the wages or compensation paid or to be paid to employees of

such employer if such differentiation is authorized by the provi-

sions of section 6(d) of the Fair Labor Standards Act of 1938, as

amended (29 U. S. C. 206(d)).

(i) Nothing contained in this title shall apply to any business

or enterprise on or near an Indian reservation with respect to

any publicly announced employment practice of such business

or enterprise under which a preferential treatment is given to

any individual because he is an Indian living on or near a reser-

vation.

(j) Nothing contained in this title shall be interpreted to re-

quire any employer, employment agency, labor organization, or

joint labor-management committee subject to this title to grant

preferential treatment to any individual or to any group because

of the race, color, religion, sex, or national origin of such in-

dividual or group on account of an imbalance which may exist

with respect to the total number or percentage of persons of any

race, color, religion, sex, or national origin employed by any

employer, referred or classified for employment by any employ-

— A-74 —

ment agency or labor organization, admitted to membership or

classified by any labor organization, or admitted to, or

employed in, any apprenticeship or other training program, in

comparison with the total number or percentage of persons of

such race, color, religion, sex, or national origin in any com-

munity, State, section, or other area, or in the available work

force in any community, State, section, or other area.

OTHER UNLAWFUL EMPLOYMENT

PRACTICES

(a) It shall be an unlawful employment practice for an

employer to discriminate against any of his employees or ap-

plicants for employment, for an employment agency, or joint

labor-management committee controlling apprenticeship or

other training or retraining, including on-the-job training pro-

grams, to discriminate against any individual, or for a labor

organization to discriminate against any member thereof or ap-

plicant for membership, because he has opposed any practice

made an unlawful employment practice by this title, or because

he has made a charge, testified, assisted, or participated in any

manner in an investigation, proceeding, or hearing under this ti-

tle.

(b) It shall be an unlawful employment practice for an

employer, labor organization, employment agency, or joint

labor-management committee controlling apprenticeship or

other training or retraining, including on-the-job training pro-

grams, to print or publish or cause to be printed or published

any notice or advertisement relating to employment by such an

employer or membership in or any classification or referral for

employment by such a labor organization, or relating to any

classification or referral for employment by such an employ-

ment agency, or relating to admission to, or employment in, any

program established to provide apprenticeship or other training

by such a joint labor-management committee, indicating any

preference, limitation, specification, or discrimination, based

a *

on race, color, religion, sex, or national origin, except that such

a notice or advertisement may indicate a preference, limitation,

specification, or discrimination based on religion, sex, or na-

tional origin when religion, sex, or national origin is a bona fide

occupational qualification for employment.

a lh

APPENDIX F

Uniform Guidelines On Employee Selection Procedures (1978)

28 C.F.R. §50.14 (1978)

29 C.F.R. §1607 (1979)

GENERAL PRINCIPLES

1607.1. Statement of Purpose

A. Need for Uniformity—Issuing Agencies

B. Purpose of Guidelines

C. Relation to Prior Guidelines

1607.2. Scope

A. Application of Guidelines

B. Employment Decisions

C. Selection Procedures

D. Limitations

E. Indian Preference Not Affected

1607.3. Discrimination Defined: Relationship Between Use of

Selection Procedures and Discrimination

A. Procedure Having Adverse Impact Constitutes

Discrimination Unless Justified

B. Consideration of Suitable Alternative Selection Pro-

cedures

1607.4. Information on Impact

A. Records Concerning Impact

B. Applicable Race, Sex and Ethnic Groups For Record

Keeping

J

K.

ie Ries

Evaluation of Selection Rates. The ‘‘Bottom Line’’

Adverse Impact And The ‘‘Four-Fifths Rule’’

Consideration of User’s Equal Employment Oppor-

tunity Posture

. General Standards for Validity Studies

Acceptable types of Validity Studies

Criterion-Related, Content, and Construct Validity

Guidelines Are Consistent with Professional Stan-

dards

Need For Documentation of Validity

Accuracy and Standardization

Caution Against Selection on Basis of Knowledges,

Skills or Abilities Learned in Brief Orientation Period

Method of Use of Selection Procedures

Cutoff Scores

Use of Selection Procedures for Higher Level Jobs

Interim Use of Selection Procedures

Review of Validity Studies for Currency

1607.6. Use of Selection Procedures Which Have Not Been

Validated

A.

Use of Alternate Selection Procedures to Eliminate

Adverse Impact

Where Validity Studies Cannot or Need Not Be Per-

formed

(1) Where Informal or Unscored Procedures Are Used

(2) Where Formal And Scored Procedures Are Used

—s yon

1607.7. 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 Mu'ti-Unit Study

D. Other Significant Variables

1607.8. Cooperative Studies

A. Encouragement of Cooperative Studies

B. Standards for Use of Cooperative Studies

1607.9. No Assumption of Validity

A. Unacceptable Substitutes for Evidence of Validity

B. Encouragement of Professional Supervision

1607.10. Employment Agencies and Employment Services

A. Where Selection Procedures Are Devised by Agency

B. Where Selection Procedures Are Devised Elsewhere

1607.11. Disparate Treatment

1607.12. Retesting of Applicants

1607.13. Affirmative Action

A. Affirmative Action Obligations

B. Encouragement of Voluntary Affirmative Action

Programs

— A-79 —

TECHNICAL STANDARDS

1607.14. 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) Representativeness 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

(f) Continued Use of Selection Procedures When

Fairness Studies not Feasible

C. Technical Standards for Content Validity Studies

(1) Appropriateness of Content Validity Studies

(2) Job Analysis for Content Validity

— ye

(3) Development of Selection Procedure

(4) Standards For Demonstrating Content Validity

(5) Reliability

(6) Prior Training or Experience

(7) Training Success

(8) Operational Use

(9) Ranking Based on Content Validity Studies

D. Technical Standards For Construct Validity Studies

(1) Appropriateness of Construct Validity Studies

(2) Job Analysis For Construct Validity Studies

(3) Relationship to the Job

(4) Use of Construct Validity Study Without New

Criterion-Related Evidence

(a) Standards for Use

(b) Determination of Common Work Behaviors

DOCUMENTATION OF IMPACT AND VALIDITY

EVIDENCE

1607.15. Documentation of Impact and Validity Evidence

A. Required Information

(1) Simplified Recordkeeping for Users With Less Than

100 Employees

(2) Information on Impact

(a) Collection of Information on Impact

(b) When Adverse Impact Has Been Eliminated in The

Total Selection Process

— A-81 —

(c) When Data Insufficient to Determine Impact

(3) Documentation of Validity Evidence

(a) Type of Evidence

(b) Form of Report

(c) Completeness

B. Criterion-Related Validity Studies

(1) User(s), Location(s), and Date(s) of Study

(2) Problem and Setting

(3) Job Analysis or Review of Job Information

(4) Job Titles and Codes

(5) Criterion Measures

(6) Sample Description

(7) Description of Selection Procedure

(8) Techniques and Results

(9) Alternative Procedures Investigated

(10) Uses and Applications

(11) Source Data

(12) Contact Person

(13) Accuracy and Compieteness

C. Content Validity Studies

(1) User(s), Location(s), and Date(s) of Study

(2) Problem and Setting

(3) Job Analysis—Content of the Job

~ ie —

(4) Selection Procedure and its Content

(5) Relationship Between Selection Procedure and the

Job

(6) Alternative Procedures Investigated

(7) Uses and Applications

(8) Contact Person

(9) Accuracy and Completeness

D. Construct Validity Studies

(1) User(s), Location(s), and Date(s) of Study

(2) Problem and Setting

(3) Construct Definition

(4) Job Analysis

(5) Job Titles and Codes

(6) Selection Procedure

(7) Relationship to Job Performance

(8) Alternative Procedures Investigated

(9) Uses and Applications

(10) Accuracy and Completeness

(11) Source Data

(12) Contact Person

E. Evidence of Validity from Other Studies

(1) Evidence from Criterion-Related Validity Studies

(a) Job Information

(b) Relevance of Criteria

— A-83 —

(c) Other Variables

(d) Use of the Selection Procedure

(e) Bibliography

(2) Evidence from Content Validity Studies

(3) Evidence from Construct Validity Studies

F. Evidence of Validity from Cooperative Studies

G. Selection for Higher Level Jobs

H. Interim Use of Selection Procedures

DEFINITIONS

1607.16. Deiinitions

APPENDIX

1607.17. Policy Statement on Affirmative Action (see Section

13B)

1607.18. Citations

AUTHORITY: Secs. 709 and 713, Civil Rights Act of 1964

(78 Stat. 265) as amended by the Equal Employment Oppor-

tunity Act of 1972 (Pub. L. 92-261); 42 U.S.C. 2000e-8,

2000e-12.

SOURCE: 43 FR 38295 and 43 FR 38312, Aug. 25, 1978.

GENERAL PRINCIPLES

§1607.1 Statement of purpose.

A. Need for uniformity—Issuing agencies. The Federal

government’s need for a uniform set of principles on the ques-

tion of the use of tests and other selection procedures has long

been recognized. The Equal Employment Opportunity Com-

mission, the Civil Service Commission, the Department o1

— en

Labor, and the Department of Justice jointly have adopted

these uniform guidelines to meet that need, and to apply the

same principles to the Federal Government as are applied to

other employers.

B. Purpose of guidelines. These guidelines incorporate a

single set of principles which are designed to assist employers,

labor organizations, employment agencies, and licensing and

certification boards to comply with requirements of Federal law

prohibiting employment practices which discriminate on

grounds of race, color, religion, sex, and national origin. They

are designed to provide a framework for determining the proper

use of tests and other selection procedures. These guidelines do

not require a user to conduct validity studies of selection pro-

cedures where no adverse impact results. However, all users are

encouraged to use selection procedures which are valid,

especially users operating under merit principles.

C. Relation to prior guidelines. These guidelines are based

upon and supersede previously issued guidelines on employee

selection procedures. These guidelines have been built upon

court decisions, the previously issued guidelines of the agencies,

and the practical experience of the agencies, as well as the stan-

dards of the psychological profession. These guidelines are in-

tended to be consistent with existing law.

§ 1607.2 Scope.

A. Application of guidelines. These guidelines will be applied

by the Equal Employment Opportunity Commission in the en-

forcement of title VII of the Civil Rights Act of 1964, as

amended by the Equal Employment Opportunity Act of 1972

(hereinafter ‘‘Title VII’’); by the Department of Labor, and the

contract compliance agencies until the transfer of authority con-

templated by the President’s Reorganization Plan No. 1 of

1978, in the administration and enforcement of Executive Order

11246, as amended by Executive Order 11375 (hereinafter ‘‘Ex-

ecutive Order 11246’’); by the Civil Service Commission and

— A-85 —

other Federal agencies subject to section 717 of Title VII; by the

Civil Service Commission in exercising its responsibilities

toward State and local governments under section 208(b)(1) of

the Intergovernmental-Personnel Act; by the Department of

Justice in exercising its responsibilities under Federal law; by the

Office of Revenue Sharing of the Department of the Treasury

under the State and Local Fiscal Assistance Act of 1972, as

amended; and by any other Federal agency which adopts them.

B. Employment decisions. These guidelines apply to tests and

other selection procedures which are used as a basis for any

employment decision. Employment decisions include but are

not limited to hiring, promotion, demotion, membership (for

example, in a labor organization), referral, retention, and licen-

sing and certification, to the extent that licensing and certifica-

tion may be covered by Federal equal employement opportunity

law. Other selection decisions, such as select

This text is long and has been trimmed here. Open the source document for the complete record.