Appendix — City of Columbus v. Brunet
Supreme Court brief1988
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87-142] Supra Cour, US.
FILED
JAN 19 1988
. ae JOSEPH F. SPANIOL, JR,
_CLERK
IN THE SUPREME COURT OF THE UNITED STATES
October Term, 1987
THE CITY OF COLUMBUS, OHIO, et al., Petitioners,
V.
ANN BRUNET, et al., Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT
OF APPEALS FOR THE SIXTH CIRCUIT
APPENDIX TO PETITION
EILEEN A. GROVES
Assistant City Attorney
90 West Broad Street
Columbus, Ohio 43215
(614) 222- 7385
Counsel of Record
RONALD J. O'BRIEN
City Attorney
Columbus, Ohio
Of Counsel
February 15, 1988
INDEX TO APPENDIX
PER CURIAM Opinion of Court of Appeals,
filed August 25, 1987......-..cesseeeee
Denial of Petition for Rehearing
Filed Geteber 19, 1GO7... once scecccces
Opinion and Order of District Court
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Judgment Entry, filed May 14, 1986.......
Opinion and Order of District Court
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Judgment Entry, filed Nunc pro tunc
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Opinion and Order of District Court,
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Opinion and Order of District Court,
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Nos. 86-3557 and 86-3603
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ANN BRUNET, et al.,
Plaintiffs—Appellees;
Cross—Appellants,
On Appeal from the
Vv. United States District
Court for the Southern
District of Ohio.
CITY OF COLUMBUS, OHIO, et al.,
Defendants—Appellants;
Cross—Appellees.
/
BEFORE: KENNEDY, MILBURN, and NORRIS,
Circuit Judges.
PER CURIAM. Defendants—appellants/cross—ap-—
pellees the City of Columbus, et al. ("City") and plain-
tiffs—appellees/cross—appellants Ann Brunet, et al. ("ap—
plicants") appeal the District Court's interlocutory
judgments of May 11, 1986 and May 30, 1986. Because
we find that this Court no longer has jurisdiction to
hear this appeal and cross—appeal, we dismiss them.
Plaintiffs Ann Brunet, Lynn Walters, Rebecca
Schumacher and Edwina Hornung and the
= 2h
Aue.25,198
class they represent challenge the tests that the City
has used to hire firefighters since 1975. The named
plaintiffs took the tests administered in 1980 and 1984,
none of them was selected to be a firefighter. They
alleged in a two-count complaint that the 1980 and
1984 tests discriminated against women in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e et seq. ("Title VII"), and 42 U.S.C. § 1983. They
sought injunctive and back pay relief on behalf of
themselves and the women they represent.
On May 11, 1986, the United States District
court for the Southern District of Ohio entered a
judgment for the City on the section 1983 claim. The
court also filed separate judgments for the City on the
Title VII claim with respect to the 1980 test,and a
judgment for the applicants on the Title VII claim with
respect to the 1984 test even though these claims
—. 2
were not made in separate counts nor were the various
years' tests separate claims.! On June 26, 1986, the
District Court entered a judgement nunc pro tunc to
May 30, 1986 with respect to the remedy for the Title
VII violation found, ordering the parties to comply with
the following terms and conditions of the District
Court's Opinion and Order of May 30, 1986:
1) the City was enjoined from hiring any
entry level firefighters on the basis of its
new, 1986, test until it had complied with
the order;
2) the City was required to submit to the
Court a report detailing expert analysis
of the 1986 test.
3) if the Court found the 1986 test to be
content valid, then the City was required
to report to the Court the results of
administering the 1986 test to the
incumbent firefighters.
4) Once the City had formulated a
content valid test and the Court had
determined pass/fail scoring procedures,
the city was required to administer the
new test to all 1984 female applicants
who responded to notice.
S) Once*’ the City had completed the
steps outlined above, they could
— '
hire on the basis of the results of the
1986 test. However, the City must hire
males and females in proportion to the
relative proportion of males and females
achieving passing scores.
6) Since the applicants had prevailed in
part upon an issue determining the rights
of the parties, they could apply for
interim fees.
The City and the applicants each appealed from
these judgments. However, since the time of these
orders the City has complied with the May 30, 1986
(June 26, 1986 nunc pro tunc order) order and the
District Court has approved a new, 1986 test. Opinion
and Order of June 12, 1987 at 3.2
At the time of these judgments the District
Court had not rendered a final decision. Indeed the
litigation is still pending before the District Court. A
final decision is one which "ends the litigation on the
merits and leaves nothing for the court to do but
execute the judgment." Catlin sv. United
- 48 —
States, 324 U.S. 229, 233 (1945). Since the District
Court had not yet determined the legality of the City's
new, 1986 test at the time of these appeals, it had not
yet ended the litigation on the merits. Thus this Court
has jurisdiction to hear these appeals only if they are
from “interlocutory orders [s] . . . granting, continuing,
refusing or dissolving injunctions or refusing to dissolve
or modify injunctions" under 28 U.S.C. § 1292(a)(1), if
they fall within the collateral order doctrine, or if they
are from judgments on separate counts and the District
Court has certified in accordance with Fed. R. Civ. P.
54(b) that there is no just reason for delay. The
District Court has not made any such certification. As
to section 1292(a)(1), "because § 1292(a)(1) was
intended to carve out only a limited exception to the
final judgment rule, ‘[ujmless a litigant can show that
an interlocutory order of the district
a SA
court might have a serious, perhaps irreparable,
consequence, and that the order can be effectually
challenged only by immediate appeal, the general
congressional policy against piecemeal review will
preclude interlocutory appeal."' Gillis v. United States
Dep't of Health & Human Serv's., 759 F.2d 565, 567
(6th Cir. 1985) (quoting Carson _v. American Brands,
Inc., 450 U.S. 79, 84 (1981)). A collateral order is
appealable only if it conclusively determines the
disputed question, resolves an important issue
completely separate from the merits of the action and
is effectively unreviewable on appeal from a final
judgment. Stringfellow _v. Concerned Neighbors in
Action, 107 S. Ct. 1177, 1181-82 (1987).
The judgment of May 11, 1986 that the City's
1984 test violated Title VII is neither an injunction nor
a collateral order. The District Court, by its judgment
=
of May 30, 1987, enjoined the City from hiring on the
basis of its new, 1986 test until it had complied with
the order of May 30, 1986. That order required the
City to develop a new, content-valid test, have the
Court approve it, and administer it to the 1984
applicants. Once they had done that, the City could
hire on the basis of the 1986 test, but they had to hire
males and females in proportion to their presence in
the group of candidates who had passed the test. This
injunctive order was appealable. However, it is now
moot. The City has complied with part of the order by
developing a test which the District Court has found to
be content-valid and by administering it to the 1984
applicants. At oral argument this Court inquired of the
City as to whether there was any part of the order
which had not already been performed. The City
conceded that the only portion of the order which is
not moot is the requirement that they hire a certain
a Te ws
proportion of women. However, the _ present
requirement to hire a certain proportion of women
arises from the District Court's Opinion and Order of
May 21, 1987. That later provision would require
present hiring even if the court were to vacate the
injunction of May 30, 1986. Thus the entire May 30th
injunction is moot.
The City also appeals that portion of the
District Court's Opinion and Order of May 30, 1987
which holds the applicants had prevailed "in part" for
the purpose of interim fees. Since the District Court
has not in fact awarded interim fees to the applicants,
this appeal is premature. See, Myers v. Ace Hardware,
Inc., 777 F.2d 1099, 1104-05 (6th Cir. 1985).
The applicants cross-appeal the District Court's
finding that the City had not violated Title VII with
respect to the 1980 test, the judgment for the City on
the section 1983 claim, and subsidiary issues decided by
—
the District Court in finding that the City had violated
Title VII with respect to the 1984 test. Neither the
‘judgment nor the findings meet the requirement for
pealability and the applicants conceded this at oral
argument.
Arguably the judgment that the City had not
violated Title VII with respect to the 1980 test is an
order refusing an injunction since the applicants
requested relief in the form of an injunction. However,
the applicants have not attempted to show that the
order could have irreparable consequences, thus section
1292(a)(1) does not provide this Court with jurisdiction
with respect to this claim. The collateral order
doctrine is not relevant to any of these claims because
they all relate directly to the merits of the action.
The appellants may not appeal the District Court's
findings on issues subsidiary to the judgment on the
Title VII claim with respect to the 1984
ea ae
test. The applicants cannot appeal the district Court's
reasoning in reaching the judgment; appellate courts
review judgments, mot statements in opinions.
California v. Rooney, No. 85-1835, slip op. at 3 (U:S.
1987) (per curiam).
Accordingly, the appeal is dismissed as moot.
Each party will bear its own costs.
ds The District Court filed an opinion and order
discussing these claims on May 13, 1986.
a In its Opinion and Order of May 21, 1987 the
District Court repeated its order to hire males and
females in proportion to their relative pass ratio on a
revised 1986 test. Opinion and Order of May 21, 1987
at 43.
ISSUED AS MANDATE: November 17,
1987
Costs: None
- 10a -
Nos. 86-3557
86-3603
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ANN BRUNET, ET AL.,
Plaintiffs—Appellees,
Cross—Appellants,
Vs. ORDER
CITY OF COLUMBUS, OHIO: ET AL.,
Defendants-Appellants,
Cross—Appellees
Upon consideration of the appellants,
cross—appellees' petition for rehearing,
IT IS ORDERED that the petition for
rehearing be, and it hereby is, DENIED.
ENTERED BY ORDER OF THE
COURT
John P. Hehman, Clerk
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UNITED STATES DISTRICT COURT
SOUTHERN OHIO DISTRICT
EASTERN DIVISION
ANN BRUNET, et al.,
Plaintiffs,
Vv. Case No. C-2-84-1973
CITY OF COLUMBUS, et al.,
Defendants.
OPINION AND ORDER
In this action, the named plaintiffs and the class of
similarly situated women that they represent challenge
certain parts of the tests used by the City of Columbus
to select entry-level firefighters since 1979. Plaintiffs
Ann Brunet, Lynn Shearrow, Rebecca Schumacher and
Edwina Hornung took the tests administered in 1980
and 1984. None of the plaintiffs was selected as a
firefighter. Plaintiffs contend in this litigation that
they were subjected to discriminatory tests in 1980 and
1984. The defendants are the City of Columbus; the
Columbus Civil Service Commission; Dana Rinehart,
Mayor of Columbus; and Alphonso Montgomery, Safety
Director. For convenience, the defendants
-12a-
are often referred to as "the City". This action was
originally brought under Title VII of the Civil Rights
Act of 1964, 29 U.S.C. §s 2000e et seq.; later the
complaint was amended to include a claim under 42
U.S.C. § 1983. Plaintiffs seek injunctive and backpay
relief on behalf of themselves and the class of women
they represent.
Plaintiffs Shearrow, Schumacher and Hornung
applied for and took the firefighter selection tests in
1980. Based upon their scores on the exam, plaintiffs
were placed on a rank-ordered list of white applicants,
to be selected for further consideration in order from
that list. Pursuant to this Court's Decree in Dozier v.
Chupka, 395 F. Supp. 836 (S.D. Oh. 1975) (Kinneary, J.),
the City has hcihabiiniale dual hiring lists for black and
white applicants for firefighter and one-for-one hiring
from those lists to remedy past racial discrimination.
Of a total of 626 applicants ranked = on
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the 1980 list, Shearrow ranked 193, Hornung ranked
319, and Schumacher ranked 571. Jt. Ex. 1. Plaintiffs
Shearrow and Schumacher timely filed charges of
discrimination with the Ohio Civil Rights Commission,
Jt. Ex. 30-31, and received right-to-sue letters from
the Equal Employment Opportunity Commission. Tr.
214.1
Plaintiff Ann Brunet took the entry-level
firefighter test held in 1984. She was ranked 464 on
the list of non-black applicants. Jt. Ex. 5. Like the
other plaintiffs, she was not selected as a firefighter.
She timely filed a charge of discrimination and
received a right-to-sue letter. Jt. Ex. 32, 26.
In both 1980 and 1984, the firefighter
examination consisted of a written examination and a
physical test. In 1980, the written test consisted of
four sub-tests: a reading comprehension test, a
mechanical reasoning test, and two
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psychological profiles. Stip. #11. The reading
comprehension test was pass/fail; the remaining three
tests were scored, and weighted equally to make up
70% of an applicant's total score. Stip. #12. The
physical test consisted of seven events, six of which
were scored. Timed scores were used to compute a
physical exam score which constituted 30% of an
applicant's total score. -Stip. #15. In 1984, a few
changes were made, but the general approach remained
the same. The written test consisted of a reading
comprehension test and mechanical reasoning test,
both of which were scored, and weighted equally to
constitute 70% of an applicant's total score. Stip.
#31. The physical test was composed of the same
events as in 1980 with the exception of one event,
which was dropped. As in 1980, the score on the
physical test constituted 30% of an applicant's total
score. Stip. #35. -
- 15a -
In both years, applicants were ranked in order of
their total score on separate eligibility lists for white
and black applicants. Stip. #23, 36. From time to
time, applicants were taken from the lists in order of
their rank to be certified to the Columbus Director of
Public Safety for consideration for appointment as
firefighters. Before being so certified, however, in
both 1980 and 1984, applicants were required to pass a
ladder test--which involved climbing a ladder to a
height of five stories and descending--and a bicycle
ergometer test--whicn measured heart rate in response
to physical stress. Stip. #24-26, 37. In addition,
applicants were required to pass a medical examination
and a background check, and to undergo an interview
with a board comprised of members of the Division of
Fire. Stip. #27, 37. Applicants who met these
requirements were then appointed as firefighters,
= 6a -
as necessary, in the order of the ranking upon the dual
lists. Stip. #28, 38. During the life of the 1980 lists, a
total of 109 applicants were appointed as firefighters,
four of whom were female. Stip. #29. One hundred
and twenty-six appointments, including two females,
were made from the 1984 list. Stip. #39.
Plaintiffs challenge two components of the
firefighter examination: the physical test and the
mechanical reasoning test, as discriminatory against
female applicants. Plaintiffs contend that the lower
scores earned by female applicants on these two
components contributed substantially to lower total
scores, with the result that fewer female applicants
were ultimately selected. Further, they contend, these
test components have not been shown by the City to
reflect accurately the actual requirements of the job
of firefighter.
-17a-
In their amended complaint, plaintiffs set forth
two legal theories. First, they contend that the tests
employed by the City have an adverse impact upon
female applicants and are not job related. First
Amended Complaint, Paragraph 6. This is a theory of
prohibited disparate impact under Title VII. Second,
plaintiffs contend that the discriminatory acts of the
defendants are intentional and violate § 1983.
Plaintiffs did mot seriously pursue the claim of
intentional discrimination at trial or in their post-trial
memorandum. In Part I of this Opinion, the Court
briefly states its reasons for concluding that plaintiffs
have failed to produce sufficient evidence to justify a
finding that the defendants engaged in intentional
discrimination against women in connection with
recruitment of firefighters.
This leaves plaintiffs' adverse impact theory for
consideration. In Albemarle Paper Co. v. Moody,
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422 U.S. 405 (1975) the Supreme Court described the
burdens of the parties in such a disparate impact case
as follows:
In Griggs v. Duke Power Co., 401 U.S.
424 (1971), this Court unanimously held
that Title VII forbids the use of
employment tests that are
discriminatory in effect unless the
employer meets “the burden of showing
that any given requirement [has] ... a
manifest relationship to the employment
in question.” Id., at 432. This burden
arises, of course, only after the
complaining party or class has made out
a prima facie case of discrimination,
i.e., has shown that the tests in question
select applicants for hire or promotion
in a racial pattern significantly
different from that of the pool of
applicants. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802
(1973). If an employer does then meet
the burden of proving that its tests are
“job related," it remains open to the
complaining party to show that other
tests or selection devices, without a
similarly undesirable racial effect,
would also serve the employer's
legitimate interest in “efficient and
trustworthy workmanship.” Id., at 801.
Id., at 425; accord, Harless _v. Duck, 619 F.2d
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611, 616 1.6 (6th Cir.), cert. denied, 449 U.S. 872
(1980). The burdens are identical in a case involving
alleged discrimination on the basis of sex. Dothard v.
Rawlinson, 433 U.S. 321, 329 (1977).
The defendants have argued that the plaintiff
class has failed to meet its initial burden of showing
adverse impact from either the 1980 or 1984
examinations. Upon consideration of the evidence and
the arguments of the parties, the Court concludes, in
Part Il of this Opinion, that the defendants’ arguments
are partially meritorious. With respect to the 1980
examination, female applicants who had completed the
testing process were selected at essentially the same
rate as were similarly situated male applicants. In the
judgment of the Court, this fact is fatal to any claim
that the 1980 testing and selection process had an
adverse impact upon female applicants. However, the
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Court further concludes that plaintiffs have carried
their initial burden of showing that the 1984 testing
and examination process had an adverse impact upon
female applicants. As a result of these determinations,
only plaintiffs' Title VII claim regarding the 1984
examination remains for consideration.
As a result of plaintiffs' demonstration of
adverse impact in the 1984 firefighter examination, it
becomes defendants' burden to show that the tests
reflect the actual requirements of the job. This burden
is often expressed by saying that the defendants must
demonstrate that the test is job-related or,
equivalently, valid. Having considered carefully the
testimony at trial, including the testimony of the
parties' respective expert witnesses, and having
reviewed the documents submitted as exhibits, the
Court concludes, in Part Ill of this Opinion, that the
- 2la-
defendants have failed to demonstrate’ the
job-relatedness of the 1984 physical examination. On
the other hand, the Court further concludes that
defendants have adequately justified the mechanical
reasoning test, which has also been challenged by the
plaintiffs.
In the Court's Opinion, there are two difficulties
with the 1984 physical examination. One problem
stems from the fact that defendants employ the test
scores to rank candidates for selection as firefighters.
“Ranking is a valid, job-related selection technique
only where the test scores vary directly with job
perforrnance." Williams v. Vukovich, 720 F.2d 909, 924
(6th Cir. 1983), citing Guardian's Association of New
York v. Civil Service Commission, 630 F.2d at 100.
Many more persons apply for the position of firefighter
than there are available. places. In these
circumstances, relatively small differences
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in scores can determine whether an individual is
selected as a firefighter. If these relatively small
differences in test scores reflect likely differences in
job performance, then the test is valid, and there is no
violation of Title VII. On the other hand, as the Court
concludes is the case here, where these differences in
scores have not been shown to reflect differences in
likely job performance, selection of applicants in
accord with such a test is impermissibie under Title VII.
In 1975, a report prepared for the City by
Battelle concerning hiring criteria for firefighters
concluded that physical strength, endurance, agility
and health were necessary to perform effectively as a
firefighter. Jt. Ex. 24, at 13. The test administered by
the City in 1984 is a reasonable test of physical
strength in a number of respects that have been shown
to reflect the actual physical demands of the job.
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It appears also to be a reasonable test of health; at
least, no one has raised an issue concerning this aspect
of the examination process. However, it is a poor test
of endurance, and there is no attempt to test agility.
The inevitable result of this narrowed focus upon
strength is that relatively small differences in strength
will tend to determine whether an individual is selected
as a firefighter. There is no guarantee, however, that
in selecting stronger individuals, individuals with
greater endurance and agility are also being selected.
Where a test is used to rank individuals for purposes of
hiring, it is important that test cover the range of
abilities that are involved in performance of the job.
The test administered in 1984 has failed on this count,
and is, therefore, invalid when used to rank-order
applicants for selection as firefighters.
~ 24a -
Having concluded that the defendants have
failed to show that the 1984 physical test is
job-related, the Court then considers, in Part IV of this
Opinion, the remedy to which the plaintiffs are
entitled. In light of the absence of _ substantial
evidence of intentional discrimination, the Court
concludes that the remedy should be precisely tailored
to eliminate the discrimination and restore any
individuals to the position they would have occupied
but for the discrimination. Accordingly, the Court will
order the City to prepare a new physical examination
for entry-level firefighters, and to demonstrate its
job-relatedness. The City must make the _ initial
decision whether to contin’: to use a scored physical
exam for purposes of ranking, or whether to adopt a
pass/fail approach. Whichever approach is adopted, the
examination must be approved by the Court before it is
administered. Further, before administration of
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the new examination, the Court will require the City to
provide notice, in a form approved by the Court, of this
new examination and the results of this decision to all
females who had applied to take the 1984 firefighter
examinations. After the new examination has been
administered and the results of the examination are
before it, the Court will consider retroactive relief and
back pay. To the extent that women perform better on
the new examination, the Court will presume that they
would have so performed on the 1984 examination but
for defendants' discrimination. In this circumstance,
the Court will fashion a remedy requiring defendants to
set aside an appropriate number of places for female
applicants in future firefighter classes, and determine
the back-pay to be awarded to these applicants. On
the other hand, if women as a group perform only as
well as, or more poorly than their performance on the
1984 examination, then no retroactive relief would be
appropriate.
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particular numbers or ratio.
It is no part of this remedy that the City be
required to select women as firefighters
the gender of an applicant should be irrelevant.
Supreme Court has explained:
Nothing in the Act [fi.e. Title VII)
precludes the use of testing or
measuring procedures; obviously they
are useful. What Congress has forbidden
is giving these devices and mechanisms
controlling force -unless they are
demonstrably a reasonable measure of
job performance. Congress has not
commanded that the less qualified be
preferred over the better qualified
simply because of minority origins. Far
from disparaging job qualifications as
such, Congress has made such
qualifications the controlling factor, so
that race, religion, nationality, and sex
become irrelevant.
Griggs v. Duke Power Co., 401 U.S. 424, 436
The issue before this Court is not whether
firefighters. Rather, the issue
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in any
Indeed, under Title VII,
As the
(1971).
women
should be firefighters, or how many women should be
is
whether the test used by the defendants to select
firefighters complies with Title VII. When the
defendants administer a valid, job-related examination,
that examination will determine how many women are
to become firefighters.
L.
Plaintiffs have alleged in their amended
| complaint that the defendants engaged in intentional
discrimination by employing the physical and
mechanical reasoning tests to select firefighters and
have also addressed this matter in a perfunctory
manner in their post-trial memorandum. Plaintiffs
contend that intent to discriminate can be inferred
from the following evidence. First, prior to 1975, job
announcements for the position of firefighter
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were restricted to males. Tr. 25. Second, only five of
832 firefighters are women. Tr. 203. Third, plaintiffs
have presented evidence about bias against women on
the part of the Director of the Training Academy. Tr.
198-202; 819-822. It appears that this led to his
removal as head of the Training Academy. Tr. 821.
Finally, plaintiffs argue that the defendants, at various
times, were aware of less discriminatory testing
methods than those they were employing, but refused
to adopt them.
However, there is substantial evidence in the
record showing that the City made efforts to
encourage women to apply as firefighters and to
complete the selection process. Marie Hardin, Equal
Employment Opportunity Administrator for the City,
testified at length about her efforts to recruit females
to participate in both the 1980 and 1984 selection
processes. Tr. 810-819. These efforts included
—- 29a -
maintaining contact with female applicants after their
appointment. Tr. 818. Further, although th> Court
heard testimony from two_ incumbent female
firefighters, Francisca Figueroa and Yolanda Stewart,
no evidence of discriminatory treatment was offered
by these witnesses. Tr. 156-184; 770-805. In addition,
there appears to be no discrimination against women in
the administration of the physical examination, as
plaintiff Shearrow admitted in her testimony. Tr. 192.
Plaintiff Brunet testified that she was permitted to
practice the physical examination before taking it and
received hints and assistance from firefighters during
those practice sessions. Tr. 224-225.
In light of the evidence before it, the Court
cannot draw the inference of intentional discrimination
suggested by the plaintiffs. Plaintiffs' evidence of
intent to discriminate is at best impressionistic.
Further, there is substantial evidence
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suggesting the absence of discrimination. Accordingly,
judgment must be rendered for the defendants on
plaintiffs' claim of intentional discrimination under §
1983.
Il.
In this section of this Opinion, the Court
considers whether plaintiffs have met their initial
burden of showing that the examinations administered
in 1980 and 1984 had an adverse impact upon the class
of women they represent. Having considered the
evidence before it and the arguments of the parties,
the Court concludes that plaintiffs have failed to show
adverse impact in the case of the 1980 examination,
but have shown adverse impact in the case of the 1984
examination. Because they present separate questions,
each examination will be discussed separately.
Prior to. trial, defendants filed a motion
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for partial summary judgment, arguing that plaintiffs
had failed to carry their initial burden of showing that
the 1980 firefighter's examination had an adverse
impact upon women. This motion was not ruled upon
prior to trial. At trial, defendants renewed their
contention at the close of plaintiffs' evidence, seeking
dismissal of plaintiffs' claims arising from the 1980
examination. The Court reserved ruling upon
defendants' motion and now renders its Opinion.
The facts pertinent to defendants’ motion are
not in dispute; indeed, they have been stipulated by the
parties. In 1980, the Columbus Municipal Civil Service
Commission received applications from a total of 1,577
individuals, of whom 83 were females and 1,494 were
males. Stip. #9. The Civil Service Commission
required all applicants to meet certain minimal
requirements, e.g., having completed tenth
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grade in school. These requirements eliminated eight
male applicants and no female applicants. Stip. #9.
Accordingly, 83 female applicants and 1,486 male
applicants were invited to the first stage of the 1980
testing process, the written test. Thirty-five female
applicants and 387 male applicants failed to appear for
the written test. Stip. #10.
In 1980, the written test consisted of four
subtests: a reading comprehension test, a mechanical
aptitude test, and two psychological tests. The reading
comprehension test was graded pass/fail, and
applicants who failed were eliminated from further
consideration. Three females and seventy-four males
failed this test. Stip. #11. The remaining three tests
were scored. All applicants who took the written test,
including those who failed the reading comprehension
subtest, were invited to the next stage,
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the physical capabilities test. Of the 48 females
invited, 20 failed to appear; 303 of the 1,099 invited
males failed to appear. Twenty-eight females
completed the physical capabilities test; of these,
twenty-five were placed on the 1980 eligibility list.
Seven hundred ninety-six males completed the test,
and 722 were placed on the eligibility list. Stip. #13.
A total of 109 applicants were appointed as firefighters
from the 1980 eligibility lists: four were females and
10S were males. Stip. #29. These appointments were
made from dual lists for black and white applicants
according to a process of one-for-
one hiring mandated by this Court's order in Dozier v.
Chupka, 395 F. Supp. 836 (S.D. Oh. 1975). Stip. #28.
All four female applicants were appointed from the
black list.
Defendants argue that, taken as a whole, the
1980 testing process did not have an adverse
— 34a -
irapact upon women. Of the twenty-eight females who
completed the testing process, four-- or 14% --were
ultimately hired. Of the 804 males who similarly
completed the process, 105--or 13% ---were hired.
Thus, defendant asserts, when the process is evaluated
from the point of view of its ultimate result, there is
no detrimental impact upon women.2 Defendants’
reliance upon hiring ratios among actual applicants
appears reasonably grounded in the relevant case law.
Berkman v. City of New York, 536 F. Supp. 177, 206 n.
19 (E.D.N.Y. 1982) aff'd, 70S F.2d 584 (2nd Cir. 1983).
In response, plaintiffs argue that the Court
should prone upon the components of the testing
process, specifically the physical test, and evaluate the
discriminatory impact, if any, of these components.
Plaintiffs contend that this approach is compelled by
the decision of the Supreme Court in Connecticut v.
Teal, 457 U.S. 440 (1982). In addition,
- 35a -
plaintiffs offer statistics to show differences in the
average scores of men and women on the 1980
firefighter examination. Plaintiffs argue that these
differences in mean scores show adverse impact.
With respect to the issue of whether the 1980
firefighter's test as a whole or its components is the
appropriate unit of analysis, it is apparent to the Court
that the central issue between the parties is the
interpretation of Connecticut v. Teal, supra. In Teal, a
state agency required that employees achieve a passing
score on a written examination in order to be promoted
to supervisor. The passing rate on the examination for
black candidates was approximately 68% that for white
candidates. It was undisputed that the examination, by
itself, had an adverse impact upon blacks. Id., at 442,
n. 4. However, the score upon the written examination
was not. the sole. criterion for promotion.
- 36a -
Rather, it was used to generate a list of eligible
candidates. Selections from the list were made by
considering past work performance, recommendations
of candidates' supervisors and seniority. The result of
this selection process was that approximately 23% of
the black candidates on the eligible list were promoted
to supervisor, while only 13.5% of the white candidates
were promoted. Id., at 444. Thus, the state
argued---and this was the sole issue before the Supreme
Court--that this “bottom line" result should be
considered a complete defense to a race discrimination
suit. Even though the state had argued that the bottom
line result was a defense, the Court construed the issue
as whether plaintiffs had made a prima facie case. Id.,
atn. 7, and p. 451.
The Supreme Court rejected the “bottom line"
approach urged by the state. The Court focused upon §
703 (a)(2) of Title VII, which provides:
- 37a -
It shall be an unlawful empioyment
practice for an employer to _ limit,
segregate, or classify his employees or
applicants for employment in any way
which would deprive or tend to deprive
any individual of employment
opportunities or otherwise adversely
affect his status as an employee,
because of such individual's race, color,
religion, sex, or national origin.
42 U.S.C. § 2000e-2(a)(2). The Court reasoned that the
statute speaks, not in terms of jobs and promotions, but
would deprive any individual of employment
opportunities." Id., at 448, emphasis in original. Thus,
the Court concluded:
When an employer uses a non-job--
related barrier in order to deny a
minority or woman applicant
employment or promotion, and that
barrier as a significant adverse effect
on minorities or women, then the
applicant has been deprived of an
employment opportunity “because of ..
race, color, reiigion, sex, or national
origin.” --- Relying on § 703(a)(2),
Griggs explicitly focused on employment
— 38a -
“practices, procedures, or tests," 401
U.S. at 430, that deny equal employment
“opportunity,” id. at 431 ... The
examination given to respondents in this
case surely constituted such a practice
and created such a barrier.
Id., at 448-449.
Teal differs from the instant case in the respect
that the challenged component of the _ selection
process, the written examination, was graded
pass/fail. Here, however, the ciallenged portions of
the testing process were given a numerical score,
which was used, along with other similar scores, to
rank candidates on eligibility lists. Thus, the written
examination in Teal constituted a "barrier" in the sense
that it precluded candidates from further
consideration. The challenged components of the
testing process here, even though lower scores on these
components may lessen a candidate's overall chance of
acceptance, do not. preclude further’ consider-
— 39a -
ation of that candidate. The question that the Court
must decide is whether this difference amounts to a
distinction.
For the following reasons, the Court concludes
that Teal is distinguishable from the instant case and,
therefore, rejects plaintiffs' contention that the
bottom line result does not negate adverse impact. In
Teal, the actual holding of the Court is:
[R]Jespondent's claim of disparate
impact from the examination, a
pass-fail barrier to employment
opportunity, states a prima facie case of
employment discrimination under §
703(a)(2), despite their employer's
nondiscriminatory "bottom line," and
that “bottom line" is no defense to this
prima facie case under § 703(h).
Id., at 452. Thus, the holding is limited by its terms to
a pass/fail barrier. Concededly, there is language in
the opinion that sweeps more broadly. It does not
appear that this language is essential to the reasoning
of the majority opinion, however. The critical premise
— 40a -
in the majority's reasoning is that the pass/fail subtest
eliminated individuals from further consideration.
In addressing the precise issue before the Court,
Schlei and Grossman, in their widely cited text on
employment discrimination, comment:
It seems probably that Teal's rejection
of the bottom line approach with
respect to components that constitute a
“pass/fail barrier" to further
consideration in the selection process
will not be applied to multicomponent
selection processes where all candidates
complete all components of the process
before the selection is made. Although
the majority did not specifically address
this issue, the Second Circuit decision
below, which was affirmed, specifically
so held, and the four Justices in dissent
so interpreted the majority opinion. “
B. Schlei & P. Grossman, Employment Discrimination
Law (2nd ed. 1983), at 1377-1378. In Teal, the Second
Circuit had written:
Where all of the candidates participate
in the. entire selection. process,
— 4la -
and the overall results reveal no
significant disparity of impact,
scrutinizing individual questions or
individual sub-tests would, indeed,
"conflict{] with the dictates of common
sense."
Teal v. State of Connecticut, 645 F.2d 133, 138 (2nd
Cir. 1981), aff'd, 457 U.S. 440 (1982), quoting Kirkland
v. New York State Dept. of Correctional Services, 374
F. Supp. at 1370.
In Smith v. Troyan, 520 F.2d 492 (6th Cir. 1975),
cert. denied, 426 U.S. 934 (1976), the Sixth Circuit held
that, where the overall examination process had no
disparate racial impact, it was error to require a
defendant to prove that a component of the overall
process was job-related, even though blacks fared less
well on that sub-test. As in the instant case, the score
on challenged subtest was added to scores on other
subtests and used to rank eligible candidates. 363 F.
Supp. at 1134-1135, 1144-1145. In these
circumstances, the Court concluded, the plaintift had
— 42a -
failed to demonstrate prima facie that the test was
unlawfully discriminatory. Id. at 497. The Court
observed:
though general ability, or intelligence, tests have
often been invalidated for their racially
disproportionate impacts ... (cites omitted) ..., the
disproportionate impacts have been in the hiring,
rather than in the test results in and of
themselves.
Id., at 497-498. Teal does not squarely overrule this
result, which must, therefore, be considered to be
controlling law in this Circuit.
The Uniform Guidelines on Employee Selection
Procedures_("Guidelines"), 29 C.F.R. §s 1607.1 et seq.,
also support the view that individual components of a
testing procedure need not be justified by an employer
where the entire testing procedure does not have an
adverse impact. Where the total selection process does
not have any adverse impact,
{t]he Federal enforcement agencies
will not expect a user to evaluate the
individual components for adverse
— 43a -
impact, or to validate such individual
components, and will not take
enforcement action based upon adverse
impact of any component of that
process, including the separate parts of
a multipart selection procedure ...
29 C.F.R. § 1607.4(C). Although not binding upon this
Court, the Uniform Guidelines are entitled to
substantial deference as the interpretation of the Act
by the enforcing agency. Albemarle Paper Co. v.
Moody, 422 U.S. 405, 431 (1975).
Furthermore, there is some question whether
Teal should be applied in case, like the instant case,
which is brought as a class action. In Coser v. Moore,
587 F. Supp. 572 (E.D. N.Y. 1983), aff'd, 739 F.2d 746
(2nd Cir. 1984), the district court construed Teal to be
inapplicable in the case of a class action by women
diane system-wide discrimination on the basis of
sex. The court interpreted Teal as involving a claim by
— 44a -
individuals who failed a written examination with a
proven adverse impact.
The error of the district court in Teal
was to foreclose proven and unrebutted
individual claims of discrimination by
looking to an employer's treatment of a
group.
Id. at 588, emphasis in original. The case before the
Coser court involved an attempt by a class of women
to prove sex discrimination in hiring and promotions on
a university-wide basis. To prove their case, the
plaintiff class presented evidence of under-utilization
of women in specific departments and divisions of the
university. In response, the university presented
evidence of lack of discrimination in university—wide
hiring. The plaintiffs argued that this evidence was no
defense under Teal. The issue was thus analogous to
the issue presented by the instant case.
The court rejected this reliance on Teal,
reasoning as follows:
Unlike the individual plaintiffs in Teal,
plaintiffs here are a class of
— 45a -
women seeking to prove by disparate
impact analysis that Stony Brook has a
pattern and practice of discrimination
against women. If successful, that
finding would then enable individual
plaintiffs to rely on an inference of
discrimination when they seek to prove
their individual claims ... [TJhe issue is
whether Stony Brook's neutral criteria
have an adverse impact upon a group,
and upholding Stony Brook's defense
against plaintiffs' class action claims
would not foreclose valid individual
claims of discrimination, as the “bottom
line" defense did in Teal.
Id. at 588, emphasis in original. In the instant case as
in Coser, plaintiffs are asserting a group claim. It
follows that their proof of adverse impact necessarily
depends upon the fortunes of the group. Thus, Teal's
focus upon the individual appears misplaced in the
context of the instant case.
Alternatively, plaintiffs propose to demonstrate
adverse impact of the entire examination and selection
process by focusing upon the differences in average
scores of men and women on _ the_ 1980
- 46a -
firefighter exam. According to calculations ae by
plaintiffs' expert Dr. Joseph Cranny, the average (or
mean) total score of females on the 1980 examination
was 80.13, while the average score for males was
85.21. Jt. Ex. 6. On the physical agility test alone,
females averaged 36.00 while males averaged 49.98.
Cranny also calculated a correlation of .36 between the
score on the physical test and the overall test score.
This showed, in his words, that there is a “slight
tendency” for people who do well on the physical test
to do well on the total test. Cranny Depo. of Dec. 21,
1984, at 27; Tr. 260. Finally, Cranny calculated that
the statistical likelihood of these differences in scores
arising by chance was extremely small.
Plaintiffs argue that the difference in average
scores means that women have less chance of being
selected as firefighters than men. This
- 47a -
lessened opportunity arises because candidates are
selected in order of their scores upon the tests.
Furthermore, a significant part of these differences in
scores arise from the physical tests challenged in this
litigation. Accordingly, plaintiffs conclude that women
have been denied an equal opportunity to be considered
for the position of firefighter.
Upon consideration, the Court declines to draw
the inference of denial of equal opportunity from the
differences in average scores. It is surely relevant to
note that the actual result of the 1980 selection
process was that women were hired at a slightly higher
rate than men. It is difficult to ascribe any meaning to
the notion of denial of equal opportunity when it is
considered in light of this fact. Title VII does not
require employers to equalize the probabilities of
hiring of the average members of two groups. Rather,
- 48a -
it requires that actual individuals enjoy opportunities
for employment free from discriminatory barriers.
The reliance upon differences in mean scores is
misplaced for an additional reason. There are far more
applicants than there are available jobs in the
Columbus Fire Department. Consequently, only the
applicants earning the highest scores have any realistic
chance of being hired. Thus, it is the impact of the
examination upon the highest scorers, not the average
impact that is significant. See United States v. City of
Chicago, 549 F.2d 415, 429 (7th Cir.), cert. denied, 434
U.S. 875 (1977). Plaintiffs' statistical expert admitted
at trial that it was possible that there be significant
differences in average scores for men and women on a
test and yet that selection ratios be essentially the
same due to the fact that all selections would occur
from only a small region of the
— 49a -
distributions. Tr. 376-377.
Plaintiffs contend that the use of
mean-difference analysis to show adverse impact was
approved by Judge Duncan in Police Officers for Equal
Rights v. City of Columbus, No. C-2-78-394 slip op.
(S.D. Oh. 1985). One issue in that case was whether
the sergeants promotional examinations administered
by the. Columbus Police Department had an adverse
impact upon blac. police officers. Dr. Joseph Cranny
appeared as an expert witness for the plaintiffs. He
sought to show adverse impact by three methods:
examination of selection ratios under the 4/5's rule of
the Guidelines, mean difference analysis, and analysis
of pass/fail ratios. The Court concluded that plaintiffs
had proven adverse impact under the 4/5S's rule. Id. at
88. The Court also noted that plaintiffs had shown a
difference in mean scores. Id. at 89. Thus, the case
cannot properly be relied upon to _ support
— 50a -
the contention that mean-difference analysis alone can
be relied upon to prove adverse impact. The same is
true of Walls v. Mississippi State Dept. of Public
Welfare, 542 F. Supp. 281, 293 (N.D. Miss. 1982), aff'd
in relevant part, 730 F.2d 36 (Sth Cir. 1984) and
Thomas v. City of Evanston, 610 F. Supp. 442, 427
(N.D. Ill. 1985), both of which are also cited by
plaintiffs.
One case that does support the plaintiffs’
reliance on differences in average scores is Burney v.
City of Pautucket, 559 F. Supp. 1089 (D. R.I. 1983).
One issue in the case was whether physical agility
requirements of a police academy had an adverse
impact upon women. In order to graduate from the
police academy, a recruit was required to score at
least a "C" in each course, including a physical test.
The score in the physical test was based equally upon
performance upon certain physical tests and the
- Sla-
‘ , ; ‘ . _— : : oe
subjective Stimate by instructors of the recruits
achievement and attitude. Id., at 1095-1096. Women
earned lower scores on the test than did men. The
defendants argued, however, that, notwithstanding
their lower scores on the physical tests, all of the
women who had entered the academy had graduated.
Further, their scores on the physical test did not
prevent women from graduating at or near the top of
their classes. Id., at 1099. The Court rejected these
argument, citing Teal for the proposition that such
"bottom-line" arguments were no defense.
This Court is unpersuaded by the reasoning of
the Burney court. The plaintiff in Burney had been
dismissed from the police academy for accumulating
excessive demerits in the physical training program.
Id., at 1100. Thus, as to her, adverse impact was
established by the fact of her dismissal. The average
- 52a -
scores of women on the physical tests are irrelevant to
this. More generally, the Burney court, perhaps
because it was faced with a case involving an individual
claim, appears to have confused the theories of
disparate impact and disparate treatment. In any
event, it appears that Burney is out of line with the
great weight of authority.
Plaintiffs also assert that hiring ratios are
unreliable in the instant case due to existence of dual
hiring lists for black and white firefighters. The four
women hired in 1980 were all selected from the black
list. The list of black candidates was substantially
shorter than the white list, and thus the process of
one-for-one hiring led to hiring from further down the
black list. Had there been only one list in 1980,
plaintiffs contend, no women would have been hired.
Thus, but for the dual lists, no women would have been
S3a -
hired from the 1980 lists. Ks
This argument is beside the point, even though it
may well be factually correct. It is beside the point
because the narrow issue presently before the Court is
whether plaintiffs, as representatives of a class, have.
proven adverse impact by the 1980 firefighter
examination. This is plaintiffs' initial burden, and must
be carried before defendants are required to justify the
examination by showing that it is job-related. Whether
plaintiffs would more easily have been able to carry
their burden had things been different in 1980 is
irrelevant. If the class of female applicants in 1980
was not adversely affected by the firefighter
examination, then defendants are not liable for their
acts connected with the 1980 exam and plaintiff are
not entitled to a remedy with respect to that exam.
The Court must decide a case such as instant one upon
- S4a -
the facts before it, not upon theoretical possibilities.
See Schlei and Grossman, supra, at 102 n. 94.
In his testimony at trial, plaintiffs' expert
witness suggested that the equivalence of the hiring
ratios in 1980 for male and female applicants was a
“complete statistical artifact." Tr. 282. This artifact
arose because selection ratios for both males and
females derive from large numbers of applicants and
small numbers of appointments. Tr. 281-282. Even if
this is correct, it is of no consequence for this case. It
is the plaintiffs' burden to prove adverse impact, not
the burden of the defendants to prove absence of
adverse impact.
The Court also declines to assign any
significance to the fact that 20 of 48 --or
42%--female applicants failed to appear from the
physical exam, while only 303 of 1099 males-—-or
- 55a -
about 28%- -failed to appear. It is true that courts
must be mindful of the possibility of deterrence of
applicants before relying upon data regarding actual
applicants. Dothard v. Rawlinson, 433 U.S. 321, 330
(1977). While these numbers might suggest that some
female applicants are deterred from appearing for the
physical examination, compare Tr. 286-287 and Jt. Ex.
8, this suggestion is not supported by the evidence
produced at trial. At trial, Dr. Gerald Barrett testified
that he had made an informal survey of fire testing
dropouts in the City of Akron. He found that women
and blacks tend to drop out of the testing process at a
higher rate than white males. He attributed this to a
variety of factors, including change of career
orientation and increased knowledge about the job of
firefighter. Tr. 663-664. This testimony was
corrobrated by the testimony of Marie Hardin based
upon her experiences in Columbus, Tr. 817,
- $6a -
as well as the statement of named plaintiff Hornung
that she is no longer interested in becoming a
firefighter. Tr. 188.
For these reasons, the Court concludes that
plaintiffs have failed to prove adverse impact from the
1980 firefighter's examination. Accordingly,
defendants' motion to dismiss plaintiffs' Title VII
claims regarding the 1980 examination must be
GRANTED. Fed. R. Civ. P. 41(d).
As in the case of the 1980 examination, the
facts relevant to adverse impact in the 1984
examination have largely been stipulated. In 1984, a
total of 2,886 males and 354 females appeared for the
written test. Stip. #32. Four hundred and fifteen
males and fifty-two females failed the written test.
Consequently, 2,471 males and 302 females were
invited to take the physical test. Stip. #33. Of those
invited, 1,343 males and 83 females appeared and
~- 57a -
completed the physical test. Stip. #35. Two females
and 124 males have been selected from the 1984
eligibility lists; no further selections from the 1984 list
are anticipated. Stip. #39.
In 1984, the selection ratio for women was two
out of 83, or 2%; for men, it was 124 out of 1,343, or
9%. The Guidelines have suggested as a rule of thumb
that if the selection ratio of the protected group is less
than 80% of the selection ratio of the non-protected
group, there is likely to be adverse impact in the
selection process. 29 C.F.R. § 1607.4(D). Here, the
selection rate for female applicants is only about 22%
that for male applicants. Further, Dr. Cranny testified
at trial that he had performed a chi-square analysis
upon these selection ratios, to determine the
probability that these observed differences in selection
ratios arose by chance. He testified _ that,
— $8a -
using a one-tailed test, the observed difference was
significant at the .0S level, that is, that there is only
one chance in twenty that it was the mere result of
chance. Tr. 285. Dr. Cranny admitted that the
chi-square test was not significant if a two-tailed test
was employed. Id. Although defendants question this
use of a one-tailed test, the. Court concludes that it is
appropriate where, as here, the raw numbers indicate
that women are selected at a lesser rate than men. In
these circumstances, the question being asked is
whether this apparent difference is real or a statistical
artifact. This question is appropriately answered by a
one-tailed test. There is no indication in this record
that in reality women are being selected a higher rate
than men in 1984.
The Court concludes from this showing of
violation of the 80% rule and the chi-square analysis
that there was adverse impact upon
- 59a -
women in the 1984 firefighter examination taken as a
whole. This conclusion is corroborated by plaintiffs’
evidence regarding differences in mean scores of men
and women upon the exam. Tr. 266-271; Jt. Ex. 7. As
explained above, differences in mean scores may
properly be relied upon to corroborate a showing of
adverse impact by the 80% rule or chi-square analysis.
Police Officers for Equal Rights v. City of Columbus,
supra, at 88-89. Thus, plaintiffs have met their initial
burden with respect to the 1984 § firefighter
examination.
Il.
Because plaintiffs have shown adverse impact
upon women in the 1984 examination, it becomes the
defendants' burden to show that the test has a
“manifest relationship to the employment in question.”
Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971). In
making this showing, "(tyhe touchstone is
- 60a -
business necessity." Id., at 431. The standard of proof
of job-relatedness has been stated by the Supreme
Court as follows:
[D]iscriminatory tests are impermissible
unless shown, by professionally
acceptable methods, to be “predictive of
or significantly correlated with
important elements of work behavior
which comprise or are relevant to the
job or jobs for which candidates are
being evaluated.” 29 CFR § 1607.4(c).
Albermarle Paper Co. v. Moody, 422 U.S. 405, 431
(1975S). In this section of this Opinion, the Courts
makes its findings of fact and conclusions of law in
support of its determination that defendants have
failed to carry their burden.
The 1984 Examination
As has been noted, the 1984 firefighter
examination consisted of a written test and a physical
test. The written test had two components,
- 6la -
a reading comprehension test and a mecnanical
reasoning test. Plaintiffs' expert, Dr. Cranny,
performed a statistical analysis of the scores of men
and women on the 1984 examination and its various
components. This analysis is not challenged by the
defendants. On the total examination, men, as a group,
achieved an average score of 78.5, while the average
score of women, as a group, was 65.0. Jt. Ex. 7, at S.
Womens’ scores ranged from about 46 to about 82.45
while mens’ scores ranged from 0 to about 93. Jt. Ex.
7, at 5; Tr. 267-269. These total scores were the result
of a series of statistical manipulations to standardize
the raw scores on the various component tests. Stip.
#36. No issue has been raised regarding the propriety
of these statistical manipulations.
The highest score earned by a woman on the
i984 examination was 82.4. Three hundred and
- 62a -
fifty-five white males and twenty-one black males
earned higher scores. A total of 126 individuals were
ultimately hired as firefighters from the 1984 lists.
Had there not been dual hiring lists mandated by Court
order, consequently, no ‘emales would have been hired
as firefighters. In fact, two females were hired, both
from the black eligibility list.
The differences in male and female total scores
resulted primarily from lower female scores on two
components of the total test: the physical test and the
mechanical reasoning test. Plaintiffs' challenge is
directed to these two components. There was no
significant difference between the sexes on the reading
comprehension test. Jt. Ex. 7, at 5; Tr. 270. On the
mechanical reasoning test, men earned an average
score of 19.6, while womens' scores averaged 15.1. Jt.
Ex. 7, at S. The greatest disparity occurred on the
physical test, where men averaged 76.1,
- 63a -
while women averaged 44.5. A statistical analysis of
test scores by defendants' expert, Dr. Frank Landy,
confirmed what is apparent from the raw numbers: the
differences in male and female total scores are due
primarily to the differences in scores upon the
mechanical and physical tests. Jt. Ex. 11; Tr. 275-278.
The 1984 firefighter physical capability test
consisted of seven events. All seven events had pass
levels, and it was necessary that a candidate pass in
order to be considered for hiring. However, the pass
levels were set very low, and it appears very few
persons failed the physical exam. Five of the six
events were scored. Jt. Ex. 52, 53. The events were
administered to groups of applicants, at approximately
ten minute intervals.
1) Beam Walk: Applicants were required to
walk the length of a twenty foot beam that
- 64a -
was four inches wide while carrying a roll of hose. The
event was pass/fail only, and was not timed. Three
tries were allowed. In 1984, one male failed the beam
walk. Stip. #36. Because virtually everyone passed
this event, it is of the little consequence in this
litigation.
2) Manual Dexterity: Applicants were required
to screw three metal plugs into three threaded intakes
on a piece of fire equipment, a multiversal, and then
unscrew them. The event was timed, and a higher
score was earned by completing the event more
quickly. At a minimum, the event had to be completed
in two minutes. In 1984, women scored about the same
on this test event than did men. The average time of
women was 26.8 seconds, while that of men was 25.5
seconds. Jt. Ex. 7, at 5; Tr. 272. This difference,
however, was not statistically significant. Tr. 272.
This event had been recommended for
- 65a -
inclusion on the test by the Five Training Academy
staff, who had experienced problems with recruits who
lacked manual dexterity. The suggestion of plaintiffs’
expert, Dr. John Magel, an exercise physiologist, that
women might be disadvantaged on this event due to
less experience with tools than men, Tr. 467-468, is
contradicted by the essential equality of average
scores. See also Tr. 735-736. This event is a direct
simulation of a common firefighting task, as firefighter
Yolanda Stewart testified. Tr. 779-780. Francisca
Figueroa suggested that there could be a problem with
failing to line up the threads properly if one tried to
work too fast on the job. Tr. 164-165. This does not
appear to be a serious problem, however.
3) Sandbag Drag or Carry: Applicants were
required to carry or drag a sand dummy through a
designated serpentine course defined by a line
- 66a -
on the floor running around a number of poles. The
dummy was the approximate size of a small duffle bag,
with straps to grip, and weighed 125 pounds. The event
was timed. Further, if the applicant chose to drag the
dummy, or dropped it on any part of the course, the
time was doubled. Also, if a pole was knocked over, a
two-second penalty was imposed.
Men performed substantially better than women
on this test event. The mean time for men was 19.5
seconds, while that of women was 38.2 seconds.
Because the event was timed, the lower score is
better. This difference is statistically significant. Jt.
Ex. 7, at 5; Tr. 272-273.
The event was designed to test an applicant's
ability to drag or carry adults or children. Jt. Ex. 23.
The event is an imperfect simulation. It appears from
both expert and firefighter testimony that the weight
- 67a -
of the bag is reasonable. Tr. 718-723; 784. However,
the shape of the bag makes it awkward to carry,
depriving individuals of the opportunity to use lifting
techniques and leverage. Tr. 468-471; 786-787. An
articulated dummy could readily have been used. Tr.
324. There is little sense to be made of doubling the
score if the bag was dragged; the testimony at trial
was that victims are typically dragged from a building,
due to the presence of smoke. Tr. 69; 169; 827-828.
No rationale appears for placing a premium on extreme
speed; the testimony at trial indicates that the speed
necessary depends on the circumstances. Tr. 108-169;
827. This event measures primarily upper body
strength and anaerobic capacity.
4) Pike Pole Pull: The applicant pulls on a
handle attached to a rope which runs through pulleys
and is attached to a 75 pound weight. A repetition
consists of pulling down the handle until it
— 68a -
strikes a stand, and then returning the handle back to
its original position; this, of course, involves lifting and
lowering the 75 pound weight the distance of travel of
the handle. The entire event lasts one minute. To
pass, five repetitions must be completed in that time.
The event is also scored: the more repetitions
completed, the higher the score.
The scores of males were substantially better
than those of females. On the average, men
accomplished 58.2 repetitions, while women performed
38.9 repetitions. Jt. Ex. 7, at 5. Unlike the other
timed events, here the higher raw score is better. Tr.
273-274.
The pike pole pull is a rough simulation of the
actual use of pike poles, a rod with a hook on the end,
to rip out walls and ceilings to search for fires. From
the testimony at trial, the Court concludes that the
seventy-five pound weight reasonably’ reflects
— 69a —
the physical demands of the job. Jt. Ex. 21; Tr.
708-717. However, the simulation of the job is
questionable, in a number of respects. Actual use of a
pike pole involves both push and pull phases; the event
tests only the pull phase. No rationale appears for the
requirement of hitting the stand with the pole; this
appears to be merely a device for score-—keeping
without any analogue in the actual use of the pike
pole. It also appears that shorter persons--women tend
to be shorter than men--were slightly disadvantaged by
the event, because they could use their entire body to
less advantage. Tr. 475; 715-716. This bias could have
been eliminated by making the apparatus adjustable.
And, the test appears to over-emphasize speed as
compared with actual practice. The experts agree that
the event measures upper body strength and the
anaerobic capacity of the upper body. Jt. Ex. 20, at
3-4; Tr. 474. :
- 70a -
5) Equipment Hoist: The applicant pulls a rope
that runs over a roller to lift a sixty-five pound weight
to a third-story window. The event is timed, and the
more quickly the weight is raised, the better the
score. After it is raised, the weight must be gently
lowered to the ground. The lowering is not timed;
however, if the weight is dropped, a penalty is
assessed. In this timed event, the mean score for men
was 10.7 seconds; the mean score for women was 26.9
seconds. Jt. Ex. 7, at S.
The event was designed to simulate raising
ladders and hose by means of a hose roller, an actual
piece of fire equipment. Jt. Ex. 23. It does not
appear, however, that hoisting is done very often in
actual firefighting, mainly because the roller takes too
long to set up. Tr. 160-161, 175-176, 778. There is no
- Tila -
indication why the weight of sixty-five pounds was
chosen. Taller persons appear to enjoy a slight
advantage in the event. Tr. 729. The experts agree
that the test measures primarily muscular strength and
anaerobic capacity of the arms. Jt. Ex. 20, at 4; Tr.
476-477.
6) Stairway Climb: The applicant was required
to climb six flights of stairs and descend as rapidly as
possible while wearing fire gear and _ carrying
equipment, a roll of hose. The fire gear and equipment
weighed about forty-seven pounds. The event was
timed, and the score depended upon how quickly the
event could be completed.
The mean score for men was 65.7 seconds, while
that of women was 102.2 seconds. Jt. Ex. 7, at 5. The
standard deviation of the men's score was 12.6; this
means that approximately two-thirds of the male
applicants in 1984 completed the event in a time
ranging between 53.1 seconds and 78.3 seconds.
~- 72a -
The standard deviation of the womens' score was 22.6,
so that the comparable range was 79.6 to 124.8 seconds.
Firefighters must frequently climb stairs,
though it appears that in tall buildings they use
elevators when possible. Sometimes firefighters must
climb six or more stories. Tr. 763; 788-789. When
equipment must be carried up many stories, it is
shuttled up two or three flights of stairs at a time in a
relay; this operation, called staging, is more efficient.
Tr. 887. Firefighters infrequently run up stairs, both
for safety reasons and to marshall their energy to
perform when they arrive at the fire. Tr,. 162-164;
789; 843-844. This test measures anaerobic power to
sprint; performance does not depend primarily upon
cardiovascular endurance or aerobic capacity. Tr.
SOS-510, 512; 547; 766-767.
Three events on the test--the sandbag drag
— 73a -
or carry, the pike pole pull, and the equipment
hoist- -measure primarily upper body — strength.
Further, the test tends to measure anaerobic capacity
of the various muscles used. No event measures
primarily aerobi> capacity. The ten minute resting
period between events contributed to the overall
anaerobic character of the test. This observation that
the various test events tend to measure similar
physical abilities is confirmed by the statistical
analysis performed by defendants’ expert, Dr. Landy.
This shows quite substantial statistical correlations
among scores on the various events. Jt. Ex. 11.
Two of these events--the beam walk and manual
dexterity test-- had no significant impact upon the
relative scores of men and women. Thus, the issues in
this case turn upon the job-relatedness of four test
events: the sandbag drag or carry, pike pole pull,
equipment hoist, and stairway climb. These events
- 74a -
were timed, with the exception of the pike pole pull,
where the number of repetitions determined the score.
In all cases, speed was of the essence. On the three
timed events, the average time of women was roughly
twice that of men. In the pike pole pull, men
completed approximately 50% more repetitions, on the
average. These differences determined the differences
in total score between men and women upon the
physical portion of the examination. And, to a
substantial extent, they determined the differences
between men and women in total score upon the
written and physical examinations. Accordingly, the
fairness of 1984 physical test stands or falls upon the
validity of these four test events.
There is a very scanty record regarding the
other component of the 1984 firefighter examination
under challenge here, the mechanical reasoning test.
In 1984, it consisted of thirty written
— 75a -
questions, and was scored by adding the number of
questions answered correctly. Stip. #31. It constituted
35% of an applicant's total score. Id. There is no
indication in the record why this 35% weighting was
selected. Nor is there any indication of the content of
the mechanical reasoning test, other than that
conveyed by its name.
As noted above, women scored less well than
men on the mechanical test, averaging 15.1 as against
19.6, respectively. Jt. Ex. 7, at 5. The range of men's
scores from 9 to 29 was somewhat higher than women’s
score range, which was from 8 to 23. Scores upon the
mechanical reasoning test were highly correlated with
total test scores; the correlation coefficient was .85.
Jt. Ex. 11.
Test Development
An event that looms large over the test
- 76a -
devzlopment process is this Court's judgment and
decree in Dozier v. Chupka, 395 F. Supp. 836 (S.D. Oh.
1975). In Dozier, this Court concluded that the division
of fire had employed standards and criteria for the
selection of firefighters that had a racially
discriminatory impact upon members of the plaintiff
class, black male applicants for the position of
firefighter. In 1973, the fire department had
administered a written aptitude test to applicants. The
Court considered the validation attempts undertaken
by the defendants and concluded that the written
examination had not been validated. 395 F. Supp. at
854. On April 16, 1975, the Court entered a remedial
decree enjoining the defendants from further
discrimination on the basis of race. Further, the Court
ordered the defendants to develop criteria for selection
of firefighters and to validate these criteria in
compliance with the Equal Employment
- 77a -
Opportunity Guidelines on Testing as set forth in 26
C.F.R. §s 1607.1 et seq. Id. at 859-860.
In 1973, prior to the entry of the Dozier decree,
a two-step selection process had been used by the fire
department. First, all applicants took a _ written
examination; to be considered further, an applicant
must pass that examination. The next step was a
physical agility test, which also was initially graded
pass/fail. Applicants who passed both tests were then
ranked on an eligibility list, their relative position
being determined by adding their two test scores and
certain bonus points, if any, for military service. Then,
a background investigation were conducted. 395 F.
Supp. at 840-841. Candidates who were not removed
from the eligibility list on the basis of the background
investigation were appointed on the basis of total
-scores. Id., 844; Jt. Ex. 16, at 1-4.
- 78a -
With some modifications, this same general approach
to firefighter selection, i.e., ranking applicants
according to scores on written and physical exams, was
used in the 1980 and 1984 firefighter selection process.
At the time the remedial decree was entered in
Dozier, the City had hired Battelle to conduct an
analysis of the job of firefighter. The City had
informed the Court at the time of the Dozier decree of
its intention of doing so, and the Court noted this fact.
395 F. Supp. at 859. Battelle submitted a document
entitled "Final Report of Hiring Selection Criteria for
the Entry-Level Firefighter" to the Civil Service
Commission on June 20, 1975. Jt. Ex. 24. The report
proposed hiring selection criteria pertaining to physical
abilities, sensory abilities, communication _ skills,
reasoning and judgment skills, and personal and
interpersonal characteristics. Id., at 15-22.
—- 79a -
The report included an assessment of the physical
demands of job. This involved weighing equipment,
determining hose recoil pressures, and measuring the
size of windows through which firefighters must
sometimes crawl. The Battelle study did not propose
tests for selecting firefighters; rather, it set forth
criteria that tests should be developed to measure.
The study—concluded that strength, endurance and
agility were the most important physical
characteristics of firefighters. Id., at 9.
Testing of applicants for firefighter was
conducted by the Civil Service Commission in 1975 and
1978. Stip. #1. These were the first tests that were
open to female applicants. Prior to 1975 the job
announcement for firefighters restricted applicants to
males. Tr. 25. In both 1975 and 1978, the Civil Service
Commission used a written reading test, a physical
agility test, and a battery of tests. selected
- 80a -
by Dr. Gerald Barrett to determine mechanical
comprehension, math ability and certain personality
characteristics. Jt. Ex. 16, at 1-7. The physical
agility examinations in 1975 and 1978 were graded
pass/fail. Tr. 26; Jt. Ex. 48. Candidates were chosen
from the dual hiring lists ordered in Dozier vs. Chupka
in order of their written test scores. Stip. 4-5. In 1978
two females were appointed as firefighters, the first
fernales to be so appointed. Stip. #7.
At trial, the Court received into evidence
certain documents pertaining to the 1975 firefighter
examination. The 1975 test consisted of the following
events: bent-knee_ sit-ups; ladder climb; driver
capability (to determine if person is of a size to drive a
fire truck); weight lift and twist; stairway climb;
ladder raise; push-ups; beam walk with hose; and
dummy dodge run. Jt. Ex. 48. It does not
- $la -
appear that the job analysis performed by Battelle
played any role in developing these test events. The
Battelle study had recommended that the physical test
should dur'icate actual physical activities performed
by firefighters. Jt. Ex. 24, at 23, which is not apparent
in this test. Further, the test scoring procedures are
dated June 1975 and appear to derive largely from
recommendations made by the Bureau of Training of
the Division of Fire in March of 1975. Jt. Ex. 47. The
Battelle report was dated June 20, 1975S. There is no
evidence in the present record about the content of the
1978 examination.
In late 1978, the City began to develop a new
physical test for firefighter. Tr. 28. The impetus for
this development was the decision of Judge Duncan in
Brandt v. City of Columbus, Case No. C-2-75-425
(S.D. Oh. Oct. 5S, 1978), a class action alleging sex
discrimination in the Columbus Police
— 82a -
Department. In that decision Judge Duncan concluded
that the physical agility test used by the police
department for selection of recruits failed to meet the
validity standards set forth in the Uniform Guidelines,
and, therefore, was unlawful under Title VII. Because
of the similarities between the testing procedures
struck down in Brandt and those used by the fire
department, the City reexamined the test procedures.
Tr. 29. as
In November 1978, Dr. S. David Kriska, who is in
charge of personnel testing for the Civil Service
Commission, drafted a memorandum reviewing the
adequacy of the current firefighter physical
examination in light of Brandt. Jt. Ex. 22. Kriska
examined the various test events in light of the
Battelle job analysis; this appears, from the record, to
be the first time that this was done. He recommended
that three test events--the sandbag lift and carry,
push-up and _ sit-up events--be eliminated for
— 83a -
lack of job-relatedness. Also, Kriska proposed new
events to test upper body strength and endurance, both
of which were found relevant by the Battelle study.
Plaintiffs' Ex. 3, at 2; Tr. 40. Kriska also noted that
setting of passing scores was likely to be a problem,
since there was likely to be an adverse impact upon
women. Kriska proposed that a modified test should be
given to a random sample of firefighters of various
ages as well as a group of women likely to be
representative of the probable applicant population to
determine pass points. Id., at 4; Tr. 34-35. However,
neither the 1980 nor 1984 physical tests has been
administered to incumbent firefighters. Tr. 43-45.
Indeed, it is unclear whether any of the physical tests
from 1975S forward has ever been administered to
incumbent firefighters.
— 84a -
In May 1979, Julia Ingram, an employee of the
Civil Service Commission, and David Kriska issued a
report proposing a physical test for firefighter. Jt. Ex.
49. In preparing the report, they had consulted with
Dr. Edward Fox, an exercise physiologist and expert
witness in Brandt. Id., at 2; Tr. 28. The proposed test
included seven events: a beam walk with hose; ladder
climb; ladder draw and carry; hose drag; blind hose
follow (crawling in fire gear wearing an opaque face
mask, following a hose through a _ predetermined
course); stairway climb; and bicycling. Jt. Ex. 49, at
1-4. Each test event was to be graded pass/fail; failing
any event would eliminate the candidate from further
consideration. This 1979 proposal represents the
culmination of efforts to rethink physical testing of
firefighters in light of the Brandt decision.
However, before these 1979 suggestions were
- 85a —
were accepted, a critical change in thinking and
approach occurred. In 1980, a job analysis was
performed by Ingram for the Civil Service
Commission. Jt. Ex. 18. Based upon this job analysis,
Ingram and Kriska concluded that the work of
firefighting was largely physical, and that better
firefighters were distinguished by the ability to excel
while performing physical tasks. Jt. Ex. 50, at 23.
Consequently, they recommended to the Civil Service
Commission that the physical capability test be made
part of the ranking of job candidates. This
recommendation was adopted by the Commission in
May 1980. There is no indication in the record before
the Court that possible greater adverse impact upon
women from a scored physical exam was considered.
At approximately the same time, a new
firefighter physical examination was proposed for
administration in 1980. Development of the test and
the Ingram job analysis occurred
— 86a -
simultaneously; the job analysis did not precede test
development. Tr. 57-59. With one change--the
elimination of a furniture push event--the 1984
examination was identical to that administered in
1980. Three of the six events on the 1984 physical
test: the beam walk, stairway climb, and sandbag
carry, had previously been used in 1975 through 1978 on
a pass/fail basis. The stairway climb and sandbag carry
were now to be timed and scored. One event, the
manual dexterity test, had been suggested by the Fire
Training Academy. Jt. Ex. 50, at 1. The remaining
two events: the pike pole pull and the equipment hoist
were new in 1980. They appear to have been developed
as simulations of firefighting tasks; both are tests
primarily of upper body strength.
In summary, the 1984 firefighter physical
examination evolved from previous physical
examinations with the addition of several events
— 87a -
T ~ -
In three respects, test
to test upper body strength.
developmer. departed from reasonable professional
standards and practices. First, despite the emphasis
upon endurance and agility in the Battelle study, events
were not developed to test specifically for these
abilities. Second, it is both striking and surprising that
the various physical tests since 1975 were never
administered to incumbant firefighters in any
systematic way. This means that, to a large extent,
test development proceeded in a vacuum. Third, a
major change in approach from a pass/fail to a scored
physical examination occurred in 1980 without any
apparent consideration being given to possible greater
adverse impact upon women. This change was
purportedly justified by the Ingram job analysis, which
will be examined in detail in the next section of this
Opinion. In broader perspective, the City had
readopted the approach used in 1973 prior to
- 88a -
| Dozier and Brandt after having experimented briefly
with alternative approaches in 1975 and 1978. It
appears that Dozier and Brandt had caused little
change of approach.
The record contains relatively little detail
regarding the development of the mechanical reasoning
test used in 1984. Dr. Gerald Barrett, an industrial
psychologist, testified that he developed a written test
for entry-level firefighters for the City of Akron in
1974 connection with employment discrimination
litigation. The test has been used since then under
court supervision. Tr. 652-653. The City of Columbus
| adopted Barrett's test for use in 1980. Jt. Ex. 16, at
| 1-7.
Job Anal
The Uniform Guidelines require that any validity
study, i.e., any demonstration of the job-relatedness
— 89a -
of a selection procedure, should be based upon a jo
analysis, that is, "a review of information about the jo
for which the selection procedure is to be used." 2
C.F.R. §. 1607.14(A). The job analysis need not b
conducted by any particular method, provided that i
yields the information required for the _ specifi
validation strategy used. Id. In the instant case
defendants have, of necessity, relied primarily upo
content validity studies. Regarding such studies, th
Guidelines state:
There should be a job analysis which
includes an analysis of the important
work behavior(s) required for successful
performance and ___—i their relative
importance ... Any job analysis should
focus on the work behavior(s) and the
tasks associated with them.... The work
behavior(s) selected for measurement
should be critical work behavior(s)
and/or important work behavior(s)
constituting most of the job.
29 C.F.R. §. 1607.14(C) (2).
90a -
In addition to the Battelle study discussed supra.
the City has conducted two analyses of the job of
firefighter - the 1980 Ingram and Kriska job analysis
("Ingram report"), Jt. Ex. 18; and a report prepared
specially for purposes of this litigation by Landy,
Jacobs and Associates ("Landy study"), Jt. Ex. 17.
There is no issue in this case regarding the adequacy of
the job analyses. Plaintiffs' expert Dr. Cranny
testified that he saw no major problems with these two
analyses. Tr. 289, 314-315. Based upon this testimony
and its own examination of the relevant exhibits, the
Court concludes that the City has complied with the
requirements of the Guidelines. Accordingly, these job
analyses will be summarized in this section of the
Opinion only to the extent necessary to evaluate the
validity studies performed by the City, which is the
subject of the next section of this Opinion.
- 9la-
’ ashe we
: ae — 2
The research underlying the Ingram report was
conducted in five stages. In the first stage, a
comprehensive list of job tasks was compiled through
questionnaires given to incumbent firefighters. At
stage two, this list of job tasks was shown to a sample
of firefighters who were asked to score the tasks
according to frequency of occurrence, consequence of
error and probability of error. Based upon these
scorings by firefighters, a ranking of job tasks by "task
value" was derived. The highest "value" tasks, which
were ranked "5S", were those that occurred frequently,
where error was likely, and, if an error occurred, it
would likely have serious consequences. The lowest
"value" tasks were scored one.
The Court has examined this aspect of the
Ingram report in detail. It appears that firefighters
rank as most important-and consequently scored
"S"_.job tasks involving judgment and _= safety
- 92a -
procedures. Of the fourteen tasks ranked "4", only
several: manipulating and working from ladders, and
immediate response, appear to be predominantly
physical in character. None of these physical tasks was
directly simulated in the scored part of the physical
test in 1984. Most of the tasks ranked "4" appear tc
involve primarily judgment and safety.*
In stage three of the study, Ingram presented
firefighters with the task list she had formulated, with
each task tentatively matched with knowledges, skills
and abilities ("traits") needed to perform the task. The
firefighters were asked to add or delete traits
necessary to perform the job. Eleven traits were
added. The product of this stage of the research was a
matching of tasks and traits. In his testimony at trial,
Dr. Cranny questioned this attempt to determine the
abilities required by various tasks. Tr. 290-291.
Having examined the Ingram report, the Court is
- 93a -
satisfied with the trustworthiness of these inferences.
The abilities are described concretely, and in térms
that appear comprehensible to ordinary persons. The
Court is satisfied that incumbent firefighters can make
reasonable judgments about the knowledges, skills and
abilities they must use daily.
In stage four of the research, firefighters were
asked to rank these “traits” on three bases: the extent
to which the trait must be possessed by a firefighter to
perform on a “barely acceptable” level; the extent to
which the trait may distinguish a superior from an
average firefighter; and the extent to which applicants
may be expected to possess the trait. In order to gain
some idea of the beliefs of incumbent firefighters
about what traits are indications of superior
firefighting ability, the Court compiled a list of all
traits that received ‘a score of 2.2 or higher on the
~ 94a -
three point scale employed in the study. The cut-off
of 2.2 was chosen arbitrarily to include a reasonable
number of traits; 17 of 142 traits were scored 2.2 or
above.» Most of these traits are knowledges of various
sorts. Also, traits include abilities to function under
adverse environmental conditions or to deal with
stress. None of these traits appears to involve, in any
direct fashion, physical abilities. The sole apparent
exception is remaining oriented and functioning
without sight.
However, when attention is turned to those
traits that firefighters regard as necessary to a barely
adequate job performance, a_ different picture
emerges. These results are reported on a scale of "0"
to "1", with "1" representing "yes" and "0" representing
"no." Nineteen traits received scores of "1.000."6
These abilities are predominantly, although not
exclusively, physical in nature. Thus, the Ingram |
report tends to support the conclusion
- 9Sa -
that, while physical abilities are highly important as
minimal qualifications, they are not particularly good
indicators of superior firefighting ability.
In the fifth and final stage of the research,
ratings were developed to indicate the relative
importance of each trait. These ratings were derived
by summing the values——as determined at stage two of
this project--of the tasks that were associated with
the particular trait. To gain an understanding of the
judgments of firefighters, the Court examined all traits
that were awarded task value scores pee than or
equal to twenty. / Again, knowledges of various kinds,
e.g., of proper lifting techniques, tend to predominate
on this list. The physical ability to use fire department
equipment, such as pike poles, also ranks prominently
on this list. On the whole, however, this section of the
study reinforces the general conclusion that knowledge
—~ 96a -
distinguishes the better firefighter.
Ingram also sought to determine what traits
should be considered for testing purposes. A trait was
inappropriate for testing purposes if it could only be |
learned on the job or if all applicants already possessed
the trait. Of particular interest are those traits that
were labelled "degree" traits. These were those traits
that not only met the minimum criteria for inclusion in
a test, but also tended to indicate superior workers.
Ingram recommended that any test should measure for
the amount of the degree trait that each applicant
possessed. Jt. Ex. 18, at 7-8. Im all, there were
thirty-three such degree traits. Physical traits were
prominent, comprising eighteen of the total. However,
with several exceptions, the task values associated
with these physical degree traits tended to be
relatively low.8 The exceptions are: physical ability
to use firefighting equipment, such as pike poles
- 97a -
and axes;
physical ability to work from ladders.
ability to crawl on hands and knees; and
The report draws a number of conclusions
regarding testing for physical abilities.
In many instances, a superior worker
would possess more of a given physical
ability than other workers. That is, the
ability to lift more, work longer or
climb faster was generally the mark of a
better fighter.
Id., at p. 10. The report also recommended
applicants with respect to physical abilities.
[Slince in many instances the possession
of a higher degree of a physical ability
is better, there is justification for
awarding points for the performance of
certain physical activities and including
the physical capability scores in the
ranking process.
ranking
Id. The report recommends that candidates be ranked
in the 1980 examination process on the basis of their
combined scores on the written and physical test.
~ 98a —
It appears that these conclusions are, at least in
part, unsupported by the report. It is an overstatement
to assert that superior physical ability was generally a
mark of a superior firefighter. Rather, as noted above,
firefighters themselves rated knowledge and judgment
much more highly in evaluating superiority of a
firefighter. Further, the conclusion that rarking by
physical test scores is appropriate neglects the value of
the tasks associated with various physical abilities. The
associated task values vary widely; in many cases, they
tend to be quite low. Tr. 295-303; Plaintiff's Ex. 2.
Thus, the Court concludes that the Ingram
report only weakly supports one of its central
conclusions: that superior physical ability distinguishes
superior from average firefighters. Despite this
failing, the Ingram report contains substantial, detailed
~- 99a -
information about the job of firefighter in Columbus,
and a wealth of information about firefighters'
understanding of their job.
The second job analysis, the Landy report, was
designed specifically to be used as basis for a
validation study, which will be discussed in the
following section. It contains less detailed information
and a higher degree of aggregation of data because of
this linkage to a specific validation strategy. In this
section of the Opinion, it will be discussed briefly as
background to the Landy validation study, and to
resolve certain factual issues that have arisen.
Landy began his job analysis with a list of tasks
that was emteoauted into twenty-eight functional
categories. Examples are: firefighting - operates and
advances hose lines and fire extinguishers; forcible
entry - pries open or breaks down doors or windows
using appropriate tools while wearing full firefighting
gear; and extrication ~ extricates victims
~ 100a -
from buildings or cars using appropriate tools. Jt. Ex.
17, App. B. This list of grouped tasks was then shown
to incumbent ancaieen firefighters, who were asked to
rate its verisimilitude on a one (for poor) to five (for
very good) scale. The incumbents awarded an average
score of 4.06. Id., p. 6. Landy concluded that the task
list was a good representation of the job. Id., p. 6. No
attempt was made, however, to correct the list in light
of the responses of incumbent firefighters.
Next, Landy asked incumbent firefighters to
rate the importance of the various task groups. They
were asked to distribute one hundred points among the
various groups to reflect their importance in preserving
life and property. Jt. Ex. 17, App. E. This yielded an
average importance score for each of the twenty-eight
functional *asks groups. The most highly
- 10la -
rated tasks, and their associated scores were:
firefighting (8.1), rescue (7.3), search (5.9), emergency
medical treatment (5.8), driving (5.0), engine operation
(4.4), apparatus operation (4.3), and extrication (4.1).
Firefighters were also asked to rate the various task
groups according to how frequently they were
performed. Id., App. G, H. The most important tasks,
in terms of saving life and property, tend to occur
infrequently, whereas less important tasks, e.zg.,
equipment maintenance, occur daily. Landy elected, in
light of this inverse relation between importance and
frequency, to ignore frequency for the remainder of
the study. This judgment is questionable, for the two
measures could have been combined. Ingram had done
so in her job analysis. However, this does not appear to
the Court to be a fundamental problem with the Landy
job analysis.
— 102a -
The next step in the Landy job analysis is more
controversial. Landy sought to determine the physical
abilities that were necessary to perform the various job
tasks. To do this, he used a taxonomy of hurnan
abilities developed by Dr. Edwin Fleishman, an
industrial psychologist. Fleishman sought to devise a
list of abilities that underlay all human performance;
the list was to be comprehensive and its elements were
to be independent of one another. The list of abilities
was created by reliance on a statistical technique,
factor analysis. As this suggests, the Fleishman
abilities are abstract concepts that are linked to a
theory of human performance.
For instance, Fleishman distinguished three
kinds of strength. Static strength refers to the amount
of force that a person can exert against an immovable
or very heavy object. This is similar to the everyday
concept of strength. Explosive strength, on the other |
- 103a -
hand, refers to the ability to use energy in one or a
series of explosive muscular acts. An example would
be the strength used in jumping over a barrier.
Dynamic strength is the ability to use one's arms and
trunk repeatedly to move one's body weight over a
distance, e.g., climbing a rope. The Fleishman terms
are not everyday ones and it was necessary to training
firefighters in their meaning. Further, the distinctions
drawn in the Fleishman classification are not
common-sense ones, as is illustrated by the three kinds
of strength.
Landy asked incumbent firefighters to rate the
extent to which the various Fleishman abilities were
involved in performance of the tasks involved in the
various task groups. For this purpose, the twenty-eight
task grouping previously defined were aggregated into
sixteen groups. Id., App. J. Prior to making the
ratings, the firefighters were instructed in the
— 104a -
Fleishman classification, and discussions were held.?
Then, the firefighters completed the task ratings by
distributing one hundred points across the various
Fleishman abilities to reflect their relative role in
performance of a particular group of tasks. The scores
assigned to each ability were then averaged across the
various task areas. Finally, values were recalculated
to reflect the relative importance of each of the task
areas, as previously determined.
At trial, plaintiffs' expert Dr. Cranny criticized
the reliance upon the Fleishman abilities in the Landy
study. He testified that the inferences about the
abilities involved in a task were inherently unreliable,
even when made by job incumbents. Tr. 321-323; Jt.
Ex. 10. Concerns about whether firefighters
understood the abstract categories of Fleishman's
taxonomy were also expressed by the court in Berkman
v. City of New York, 536 F. Supp. 177, 189-190
- 105a -
(E.D. N.Y. 1982), aff'd, 70S F.2d 584 (2nd Cir. 1983),
where the Fleishman taxonomy had also been used in
the job analysis. In the instant case, although the
Court feels some _ skepticism about reliance on
terminology so distant from ordinary experience, the
use of the experience, the use of the Fleishman
abilities does not appear to cause major problems.
Landy calculated intra-—class correlations for
firefighters using the Fleishman categories. This
statistic measures the amount of agreement of the
various individuals about the extent to which the
various task groups involve a particular ability. In the
case of firefighters, the intra—class correlation was
~quite high, equalling .95. Jt. Ex. 13; Tr.982-983. In
addition, Dr. Landy also presented at trial certain
exhibits summarizing the judgments of firefighters
about particular tasks and abilities. These exhibits
showed a good deal of variability and discrimination,
- 106a -
Suggesting that the (firefighters were making
reasonably accurate judgments. Tr. 984-987.
The results of the abilities analysis of incumbent
firefighters are presented in Appendix M of Jt. Ex. 17.
One conclusion reached in the report is that physical
abilities account for one half of the job of firefighter.
That is, of ratings assigned to all thirty-five Fleishman
physical and cognitive abilities, the ratings assigned to
physical abilities amount to about 50 of a possible 100
points. The seven physical abilities rated highest by
firefighters with their accompanying ratings are:
stamina (8.17); static strength (8.11); explosive
strength (4.86); dynamic strength (4.81); multi-limb
coordination (2.74); manual dexterity (2.67); and
gross—body coordination (2.63). Together, these
abilities account for 63% of the total physical ability
composition of the job of firefighter. This information |
constitutes the basis for Landy's attempt to validate |
the 1984 physical examination.
- 107a -
As noted in the introduction to this section of
the Opinion, there was no real dispute regarding the job
analyses that had been performed by the City. It is
plain that adequate descriptions of the job of
firefighter in Columbus have been formulated. Several
general conclusions can be reached here. First, neither
the Ingram report nor the Landy report justifies the
conclusion that possession of more of a particular
ability is, in all circumstances, better. For all these
reports show, it may well be true that a firefighter
requires enough of a particular ability to do the job
well, and that any more of that ability is merely
redundant. Further, neither report contains any data
on how quickly firefighters perform particular tasks.
There is much conflicting testimony in the record
about the speed at which firefighters work; neither of
these reports addresses this issue.
- 108a -
Test Validation Studies
In this section, the Court summarizes the twc
test validation studies undertaken by the City. The
first was authored by Dr. Kriska and Constance Hines
and was intended to fulfill one of the requirements of
this Court's Order in Dozier v. Chupka, supra. Jt. Ex.
16 ("Kriska/
Hines report"). Although it is based upon data from the
1980 firefighter examination, it is relevant to the 1984
examination by virtue of the substantial overlap
between the two examinations. The second study was
that undertaken by Landy, Jacobs and Associates
specially for purposes of this litigation. It involved
solely an analysis of the 1984 physical test. Jt. Ex. 17
("Landy report").
Validation refers to the process of gathering
evidence to show the. job-relatedness of a test or
selection device. Validity may be demonstrated by
different kinds of studies: criterion related studies,
content validity studies, or construct validity studies.
~ 109a -
29 C.F.R. §. 1607.5(A); Harless v. Duck, 619 F.2d 611,
616 n.S (6th Cir.), cert. denied, 449 U.S. 872 (1980).
Only the first two approaches are relevant to this
litigation. The Kriska/Hines report is primarily a
criterion-related validity study. The Landy report, on
the other hand, is an example of a content validity
study.
In the criterion-related validity study, an
attempt is made to collect data to show that the test
predicts important aspects of actual job performance.
In such a study, thus, evidence is sought to show the
association of test scores and measures of actual
performance n the job, the criteria. There are two
kinds of such studies. In a predictive validity study, an
applicant's test scores and subsequent performance on
the job as an employee are compared. In a concurrent
validity study, on the other hand, the test scores of
present employees are compared with their present job
~ 110a -
performance. Both approaches were used in the
Kriska/Hines study. Where it is possible, a
criterion-related study is preferable, because it is the
most direct approach to showing job-relatedness.
However, due to problems with measuring job
performance, a criterion approach is not always
feasible. Tr. 241-243.
In a content validation study, evidence is
gathered to show that the content of the test, i.e., the
questions or tasks comprising the test, are
representative of the content of the job, i.e., the
important or critical tasks comprising the job. An
attempt is made to determine the degree to which test
items are representative of the job. 29 C.F.R. §.
1607.14(c)(4); Jt. Ex. 44, at 11. Although a content
validation approach is less’. direct than a
criterion-related approach, it is nonetheless a
permissible method for demonstrating validity.
Firefighters institute for Racial Equality v. City of St.
-llla-
Louis, 549 F.2d 506, 511 (8th Cir. 1977). It should also
be pointed out that criterion-related approaches and
content approaches are not mutually exclusive in any
respect; they are simply different strategies for
collecting evidence regarding job-relatedness. Jt. Ex.
44, at 9-11; Tr. 243.
As noted above, the Kriska/Hines report sought
to demonstrate criterion-related validity by both
predictive and concurrent studies. Kriska/Hines used
two categories of variables as measures of on-the-job
performance. Two measures were derived from ratings
of firefighters by their supervisors based upon
observation of the firefighters over a period of time.
These two scales were measures of performance at the
fire scene, and overall performance. Jt. Ex. 16, at 4-2
to 4-14. The other category of measures of job
performance derived’ from testing programs that are
used in the Fire Division to evaluate training success.
One was the Training Academy Final Average, a
- 112a -
composite score consisting of instructor ratings and
scores on written exams during initial firefighter
training. The other training measures were written
examinations used in post-Academy training; these are
called the Firefighter I, Firefighter II and Journeyman
examinations. Id., at 4-14 to 4-18.
In the predictive study, Kriska/Hines sought to
find significant and substantial correlations between
scores upon the physical capability test and these
criterion measures. The results were disappointing.
The correlation of the physical test scores with
supervisor's ratings of performance at the fire scene
was .0O, that is, there was no association at all. The
correlation of the physical test with supervisor's
overall ratings was --.03, that is, there was a very slight
negative association. Jt. Ex. 16, at 5-19. The only
statistically significant correlation found with the
training measures was with the Training Academy
-ll3a-
Final Average; this correlation was .32. Neither the
Firefighter I or II examinations were significantly
correlated with the physical test. Id.
Kriska/Hines noted a number of statistical
problems that might be causing their reported
correlations to underestimate the actual
correlation.19 Jt. Ex. 16, at 5-27. Dr. Landy
corrected statistically for these problems, and
recalculated the correlations between physical test
scores and the various criterion measures. Landy's
calculations have the effect of doubling the correlation
between the physical test and the Training Academy
Final Average; it is variously reported as being
between .60 and .72. Defendant's Ex. E, Tables 1, 4,
6. Otherwise, nothing else changes, that is, all other
attempted correlations with criterion measures remain
nonsignificant. The ‘correlations with supervisor's
ratings remain essentially zero, as before. Id., Tables
| 2
-~llta-
Kriska/Hines also report results of a predictive
study of Barrett's mechanical test, which is also under
challenge in this litigation. They found significant
correlations of mechanical test scores with Training
Academy Final Average (.54) and the Firefighter |
examination (.38). Jt. Ex. 16, at 5-19. Correlations
with the performance measures were not significant.
As before, Landy's recalculations tended to increase
these reported correlations somewhat.
Kriska/Hines did not examine the physical test
in their concurrent validity study. They expressed the
view that it was possibie that training and performance
of firefighting tasks made applicants and incumbent
firefighters different from one another. Also,
administering the test to incumbents would increase
the cost of the study. Jt. Ex. 16, at 6-4. Thus, the
City was no more willing to administer its physical test
to incumbent firefighters to validate its test than it
was in the process of developing the test.
- 115a-
The Kriska/Hines study did report the results of
administering the Barrett mechanical test to
incumbent firefighters. The scores of incumbents were
then correlated with certain of the criteria measures
previously discussed. There were __ significant
correlations as follows: with Training Academy Final
Average: .53; with Firefighter | examination: .31; with
supervisor's ratings of performance at the fire scene;
.30; and with supervisors’ ratings of overall
performance: .32. Jt. Ex. 16, at 6-17. This section of
the report concluded that the mechanical aptitude
tests were significantly correlated with training
success and on-company performance and, therefore,
should be retained as part of the test for selecting
firefighters. Id., at 6-29.
The other validation study was the Landy study,
which pertained solely to the physical examination.
This study was an attempt to demonstrate
job-relatedness through a content validation strategy.
- ll6a-
In the previous section, Landy's job analysis was
discussed. As will be recalled, the culmination of that
analysis was a rating, by incumbent firefighters, of the
relative importance of the Fleishman physical abilities
in the job as a whole. This rating had been derived by
averaging across the various task groups formulated in
the job analysis, and weighting for importance of the
tasks. Landy's validation strategy was direct, yet
elegant. He asked a group of industrial and
organizational psychologists to make an evaluation of
the 1984 firefighter test similar to that made by the
firefighters of the job. Like the firefighters,the
psychologists were given the Fleishman abilities with
explanatory and_ illustrative material, and were
presented with information, including a videotape,
about the 1984 firefighter test. For each event, they
-llva-
were asked to distribute one hundred points across the
various abilities to reflect the extent to which the
ability was tested by the particular event. These
results were then averaged across the various events to
yield an overall measure of the extent to which a given
ability was important in the 1984 examination. Values
were recalculated to omit the beamwalk event; this is
reasonable because only one person failed that event.
The seven highest rated abilities accounted for
approximately 80% of the total points awarded by the
psychologists to all eighteen abilities. These highest
rate abilities were:
-1}8a-
Ability score” lop 7 in *** Score in **
Firefighters Firefighters
Rating Rating
Speed of Limb 17.9 no 2.4
Movement
Dynamic 14.5 no 3.8
Flexibility
Static 13.4 yes 16.2
Strength
Explosive 10.0 yes 9.8
Strength
Stamina 9.8 yes 16.4
Manual wat yes 5.4
Dexterity
Wrist-Finger 6.1 no 1.8
Speed
*Source: Jt. Ex. 17, App. R.
**Source: Jt. Ex. 17, App. M.
physical abilities were assigned only 49.9 points out of
a possible total of 100 points, the scores reported in
Appendix M are doubled for purposes of comparison
with the results reported in Appendix R. The
remaining points in Appendix M were assigned to
cognitive abilities.
***The seven highest rated physical abilities in
Appendix M with their associated (corrected) scores
Strength
were: Stamina (16.4), Static
=m 1%
Because
(16.2),
Explosive Strength (9.8), Dynamic Strength (9.6),
Multi-Limb Coordination (5.4), Manual Dexterity (5.4),
and Gross-Body Coordination (5.2). These seven
abilities account for 63% of the total physical points
awarded by firefighters.
From the Landy study, it is possible to offer a
qualitative appraisal of the job-relatedness of the 1984
firefighter test from the point of view of the
underlying physical abilities purportedly measured.
First, the test appears to overemphasize certain
abilities. This is quite extreme in the case of speed of
limb movement and dynamic flexibility. (Dynamic
flexibility is defined as the ability to make repeated
arm or leg flexing movements with some speed, e.g.,
pulling in a rope, hand over hand. Jt. Ex. 17, App. I.)
There is also substantial overweighting of wrist-finger
speed in the test. This overweighting appears to result
from the timed nature of the test. The emphasis on
extreme speed that, of necessity, character
- 120a -
izes such a timed test does not appear to be reflected
in firefighters' appraisals of their jobs.
The test also underweights certain abilities that
were thought to be important by firefighters. This is
most striking in the case of stamina, the physical
ability most highly rated by firefighters. Dynamic
strength also appears to be under weighted, having
been rated 5.8 by the psychologists, but a higher
(corrected) 9.6 by the firefighters. Finally, the 1984
test appears to have achieved a reasonable fit with the
static strength, explosive strength and manual
dexterity required by the job; the relative ratings
appear sufficiently comparable to justify this
conclusion.
Dr. Landy testified that there was a "good
match" between the test and the job. Tr. 961. He
based this conclusion upon the observation that
- 12la-
the abilities most highly rated by the firefighters:
endurance, static strength, explosive strength, and
dynamic strength, were also important in the test. Tr.
1010; Jt. Ex. 17, at 21. Dr. Cranny disagreed with this
conclusion. He calculated a correlation coefficient to
measure the extent to which the relative abilities for
the job and that the test were rated in the same order
by the respective judges. The correlation was .45, a
“rather low degree of correspondence." Tr. 338;
Plaintiffs' Ex. 1. Although this calculation was
questioned by Dr. Landy, Tr. 1009, it appears
reasonable. Tr. 336-339. It appears that the experts
are choosing to characterize the fit between test and
job in different ways, rather than contradicting one
another. The test does reflect certain abilities that
are important to the job; this is especially true in the
case of the various kinds of strength. On _ the
-120a-
other hand, there are other abilities that are not
reflected in the test proportionally to their apparent
importance in the job, and yet other abilities that are
overemphasized in the test. The controlling question is
whether the degree of fit achieved by the test is
sufficient; this question will be addressed in the
following section.
Legal Discussion
The Court having concluded that plaintiffs have
demonstrated adverse impact from he 1984 firefighter
examination, it becomes the defendants' burden to
show that the test "bears a manifest relationship to
successful and efficient job performance." Harless v.
Duck, 619 F.2d 611, 616 (6th Cir.), cert. denied, 449
U.S. 872 (1980); Griggs v. Duke Power Co., 401 U.S.
424, 432 (1971). The test of manifest relationship looks
to whether the discriminatory employment
-1Ra-
practice is "necessary to safe and efficient job
performance." Chrisner v. Complete Auto Transit,
Inc., 645 F.2d 1251, 1252 (6th Cir. 1981). "Necessary"
here does not mean _ indispensable, but rather
“substantially promote[{s] the proficient operation of
the business." ld. Nonetheless, manifest relationship is
intended to set a “high standard." E.E.O.C. v. Ball
Corp., 661 F.2d 531, 541 (6th Cir. 1981). If, but only if,
the employer meets the burden of establishing manifest
relationship, the burden shifts back to the plaintiff to
show that there is an alternative selection device with
less disparate impact that would also serve the
employer's legitimate interests. Chrisner _v. Complete
Auto Transit, Inc., supra, at 1263. Because the Court
concludes that the defendants have not met their
burden, the issue of alternative selection devices is not
reached here.
- {Ma .
In the instant case, the Court concludes that the
defendants must demonstrate manifest relationship by
showing that the 1984 test was validated in conformity
with the standards set forth in the Uniform Guidelines,
29 C.F.R. §s. 1607.1 et seq. Although the Guidelines
are not substantive regulations promulgated as law,
they are entitled to "great deference." Albermarle
Paper Co. v. Moody, 422 U.S. 405, 431 (1975). The
Guidelines have been followed by those courts that
have decded cases involving discrimination in testing in
fire departments. Berkman v. City of New York, 536
F. Supp. 177 (E.D. N.Y. 1982), aff'd, 705 F.2d 584 (24
Cir. 1983); Fire Institute for Racial Equality v. City of
St. Louis, 549 F.2d 506, 510-511 (8th Cir.), cert.
denied, 434 U.S. 819 (1977); Vulcan Society v. Civil
Service Commission, 360 F. Supp. 1265, 1273 n. 23
(S.D. N.Y.), mod., 490 F.2d 387 (2d Cir. 1973). An
additional reason for applying the Guidelines is
- 125a -
that in Dozier v. Chupka, 395 F. Supp. 836 (S.D. Oh.
1975), this Court ordered the City to validate its hiring
criteria for firefighters in compliance with the
Guidelines. Id., at 859-860. In so concluding, the
Court is mindful that the Guidelines are meant to be
consistent with professional standards for testing, and
that these are not unchanging. 29 C.F.R. §. 1607.5(C),
(A). Thus, the Court considers it appropriate to
consider also the standards set forth in Standards for
Educational and Psychological Testing, published by the
American Psychological Association in 1985 ("Division
14 Standards"). Jt. Ex. 44.
Relying upon Spurlock v. United Airlines, Inc.,
475 F.2d 216 (10th Cir. 1972), the City argues that it
should be held to a lower quantum of proof of
job-relatedness because the job of firefighter
implicates public safety. In Spurlock, the Court held:
-12@-
when the job clearly requires a high
degree of skill and the economic and
human risks involved in hiring an
unqualified applicant are great, the
employer bears a correspondingly lighter
burden to show that his employment
criteria are job-related.
Id., at 219. The Sixth Circuit adopted this doctrine in
Chrisner_v. Complete Auto Transit, Inc., supra.
Subsequently, the Court of Appeals explained that the
doctrine was restricted to the “narrow catergory of
jobs which greatly implicate human safety, e.g., airline
piloting and over-the-road trucking.” E.E.O.C. v. Ball
Corp., supra, at 541 n. 20.
For the following reasons, the Court concludes
that the Spurlock doctrine does not alter the
defendants’ burden of showing compliance with the
Guidelines. First, the Spurlock Court relied upon an
E.E.0.C. regulation, then existing 29 C.F.R. §.
1607.S(c)(2)(iii) as the basis ffor its holding.
- 127a -
However, when the Guidelines were revised in 1978,
this provision was not included. The natural
assumption is that this provision has been incorporated
into or superseded by the standards presently set forth
in the Guidelines. In addition, the Spurlock doctrine
has been applied mainly in cases involving education or
experience requirements or other non-scored objective
criteria. See B. Schlei and P. Grossman, Employment
Discrimination Law (2d ed. 1976), at 167-173. It has
been frequently been applied in cases involving scored
tests, where distinct standards have been developed by
the courts.
Turning now to the merits of defendants’ case,
the Court first concludes that defendants have met
their burden with respect to the mechanical reasoning
test. There is no evidence before the Court about the
content of this test- as administered in 1984. The
plaintiffs have done little more than raise the
- 128a-
issue by showing adverse impact; they virtually
abandoned the claim at trial and in their brief.
Nevertheless, the defendants have produced evidence
of validation of this test, which, under the
circumstances, the Court can only conclude is
sufficient to meet their burden.
Defendants' evidence is of two sorts. First, in
the Kriska/Hines concurrent validation study,
significant correlations with both training performance
and supervisor's ratings of on-the-job performance
were shown. Jt. Ex. 16, at 6-17. Plaintiffs’ contention
that the correlations in this study are too low to
validate the test is unpersuasive. See, e.g., B. Schlei &
P. Grossman, supra, at 129; also 1983-1984 Supp., at
18. The Guidelines set no minimum standards for
correlation coefficients in criterion-related studies. 29
C.F.R. §. 1607.14(B)(6). The Court considers it
appropriate to rely upon both training performance and
a tae a
on-the-job performance as_ validating criteria.
Mechanical reasoning ability, it would appear, is
necessary both to successful completion of training and
performance on the job.
In addition, defendants presented testimony
from Dr. Gerald Barett, the developer of the
mechanical reasoning test. He testified that the test
had been developed to use in selecting firefighters in
Akron, and that a test validation study had been
performed on the tests as used there. Tr. 652-657; Jt.
Ex. 19. He further testified that, based on his review
of data about the job of firefighter in Columbus, his
knowledge of the job of firefighter in Akron, and the
general literature on firefighting, the job of firefighter
was similar in both cities. Tr. 658, 660. This
testimony is uncontradicted. In fact, plaintiffs' expert,
~ 130a -
Dr. Magel, testified that evidence regarding
firefighting in one city was applicable to another city,
in his words, “firefighting is firefighting." Tr. 461.
The Court concludes that requirements of the
Guidelines for reliance upon validity studies conducted
by other users have been met. 29 C.F.R. §. 1607.7.
The Court further concludes that defendants
have failed to show that the 1984 firefighter physical
examination is valid by means of the Kriska/Hines
predictive criterion-related validity study. That study
found a significant and substantial correlation between
physical test scores and the Training Academy Final
Average, but no other meaningfully correlation with
the other training measures or, more important, with
on-the-job measures. In Dozier v. Chupka, supra, this
Court rejected a contention that a correlation of test
scores and training academy scores was sufficient to
- 13la-
validate a test. Id., at 853. The Court sees no reason
to abandon this proposition here. It is true that the
Supreme Court has held that a positive correlation of a
test with training course performance may be enough
to validate a test apart from a possible relationship to
on-the-job performance. Washington v. Davis, 426
U.S. 229, 250 (1976). However, courts of appeals have
interpreted this holding to apply only in the case of
minimal standards necessary to successful completion
of a training program. Guardian's Association v. Civil
Service Commission, 633 F.2d 232 (2d Cir. 1980), aff'd,
463 U.S. 582 (1983); Ensley Branch of NAACP v.
Seibels, 616 F.2d 812, 819-822 (Sth Cir. 1980); Craig v.
County of Los Angeles, 626 F.2d 659, 662-663 (9th Cir.
1980). Physical ability, of course, is not something
that is merely needed to train as a firefighter; it is
necessary on the job. Thus, the absence of any
non-zero correlations with on-the-job measures of
- 132a-
performance is fatal to any claim of criterion-related
validity.
The more important issue, to which the parties
have devoted the most attention, is whether the
defendants have shown that the 1984 physical
examination is content-valid. More particularly, the
controlling question is whether the Landy study, Jt. Ex.
17, constitutes such a demonstration. Plaintiffs raise a
number of objections to the design and execution of the
Landy study: the study improperly relied upon abstract
physical abilities; the study failed to provide
operational definitions; and the ratings of relative
importance of various physical abilities by firefighters
and psychological were unreliable. Plaintiffs also
contend that, even ignoring these alleged problems of
the study, it does not demonstrate content validity for
two reasons: the test events did not accurately reflect
the complexity of actual job tasks, and _ the
-133a-
results of the Landy study did not show sufficient
proportionality between test and job to permit
rank-ordering of applicants on the basis of test scores.
The Court concludes that, except for the last, these
contentions are without merit. However, the last
point, by itself, compels the conclusions that the 1984
physical exam is not content-valid and, therefore, its
use in the 1984 firefighter selection process
constituted impermissible discrimination.
Plaintiff's objection to the design and execution
of Landy study itself are readily disposed of. The
Guidelines expressly permit selection procedures that
measure knowledges, skills or abilities to be justified
by content validity. 29 C.F.R. §. 1607.14(C)(1).
However, they require that the knowledge, skill or
ability be operationally defined. 29. =C..F-.R.
§1607.14(C)(4). The Court concludes that this
= 134a -
requirement was met by the Landy study. Jt. Ex. 17,
App. I. Finally, for reasons discussed supra, the Court
concludes that judgments of firefighters and
psychologists are not so unreliable as to undermine the
study.
Plaintiffs also object that the test events fail to
approximate actual job tasks. The Guidelines provide:
[T]o be content valid, a _ selection
procedure measuring a skill or ability
should closely approximate an
observable work behavior ... If a test
purports to sample a work behavior ...,
the manner and setting of the selection
procedure and its and complexity should
closely approximate the work situation.
29 C.F.R. §. 1607.14(C)(4). On the whole, the 1984
firefighter examination was a reasonable
approximation of the actual tasks.
The more telling objection to the 1984 physical
examination is not that the events comprising
- 13a -
it fail to approximate actual job tasks; it is that, taken
as a whole, the test fails to reflect accurately the
content of the job. The Guidelines provide:
A selection procedure can be supported
by a content validity strategy to the
extent that it is a representative sample
of the content of the job.
29 C.F.R. §. 1607.14(C)(1). The Division 14 Standards
also speak of representativeness. Jt. Ex. 44, at 10-11.
This has been interpreted to require that a test, to be
content valid, must reflect all or nearly all the
important aspects of the job. Firefighters Institute for
Racial Equality v. City of St. Louis, 549 F.2d 506,
511-512 (8th Cir.), cert. denied, 434 U.S. 819 (1977);
accord, Guardian's Association v. Civil Service
Commission, 630 F.2d 79, 98-100 (2nd Cir. 1980), cert.
denied, 452 U.S. 940 (1981); Berkman v. City of New
York, supra, at 195; Burney v. City of Pawtucket,
-~ 136a-
559 F. Supp. 1089, 1101-1103 (D. R.I. 1983); see
generally, B. Schlei and P. Grossman, supra, at 130 n.
135-137. Based upon the Landy study, the Court
concludes that the 1984 physical examination does not
meet this standard of representativeness. As discussed
in the preceding section, the test overemphasizes speed
of limb movement and dynamic flexibility, while it
underemphasizes itearenes. The fact that the test
appears to reflect, more or less accurately, the
strength necessary for the job does not, by itself,
validate the test. Although there was testimony at
trial that stronger firefighters would have more
endurance, Tr. 970-972, such generalized testimony
cannot be accepted as a _ substitute for concrete
evidence based upon a job analysis.
In addition, if a test is to be used to rank-order
applicants, it must be more than merely content valid.
The Guidelines provide:
a 137a -
If a user can show, by a job analysis or
otherwise, that a higher score on a
content valid selection procedure is
likely to result in better job
performance, the results may be used to
rank persons who score above minimum
levels. Where a _ selection procedure
supported solely or primarily by content
validity is used to rank job candidates,
the selection procedure should measure
those aspects of performance which
differentiate among levels of job
performance.
29 C.F.R. §. 1607.14(C)(9). The Guidelines recognize
that a test which may be valid as a pass/fail test, may
not be valid as a ranking test, because of likely greater
adverse impact. 29 C.F.R. §. 1607.5(G).
The courts have followed these _ special
requirements for ranking tests. In Williams v.
Vukovich, 720 F.2d 909 (6th Cir. 1983), the Court of
Appeals stated:
Ranking is a valid, job-related selection
technique only where the test scores
vary directly with job performance.
— 13a -
Id., at 924, citing Guardian's Association of New York
v. Civil Service Commission, 630 F.2d 79, 100 (2nd Cir.
1980), cert. denied, 452 U.S. 940 (1981). In Guardian's
Association, the Second Circuit had held:
Permissible use of rank-ordering
requires a demonstration of such
substantial test validity that it is
reasonable to expect one- or two-point
differences in scores to_ reflect
differences in job performance.
Id., at 100-101. So far as the Court's research
discloses, this appears to be the unanimous view of the
courts. See generally, B. Schlei & P. Grossman, supra,
at 155 n. 17; 1983-1984 Supp. at 18 n. 42.
In Berkman v. City of New York, 536 F. Supp.
177 (E.D. N.Y. 1982), aff'd, 705 F.2d 584 (2nd Cir.
1983), the Court struck down a physical test for
firefighters on a number of grounds, among them that
- 139a =
it was insufficiently precise to justify ranking of
candidates. Id., at 210-212. The Court objected
especially to the premium placed on maximum speed
and all-out effort on the test, which, like the instant
test, was timed. The Court concluded that such a test
failed to reflect the actual demands of firefighting
which, in many circumstances, requires endurance and
pacing. Id., at 212. The court is aware of no case, and
the defendants cite none, in which a ranking test has
been upheld as a selection device for firefighters. See
also Firefighters Institute for Racial Equality v. City
of St. Louis, 616 F.2d 350, 357-360 (8th Cir. 1980).
The Landy report briefly addressed the issue of
the justifiability of ranking candidates by their scores
on the physical test. To determine this, firefighters
were asked to estimate the level of each ability
necessary to do the job of firefighter at three
-~ 14)a -
performance levels: minimum competence, average
competence, and outstanding performance. For this
purpose, the seven most important physical abilities
were selected. Groups of firefighters were asked a
series of questions, of which the following is
representative: Does a firefighter need to be very low,
below average, average, above average or well above
average in this ability to perform at an outstanding
level: Jt. Ex. 17, App. S. The results are predictable,
given the question format. It is hardly surprising that
firefighters who are asked how much-—-below average,
average, or above average--of an _ abstractly
characterized ability is necessary to perform at, say, a
ildiaaaite competent level, will tend to answer: below
average. This exercise well illustrates the reasons why
the law has developed rules against leading questions;
it has no apparent bearing on any of the actual issues in
this case, however.
-lda-
At trial, the defendants presented testimony
that firefighters frequently work as quickly as possible,
going all-out to attack a fire agressively. In fact,
there was a great deal of testimony at trial about
firefighters working at an all-out pace versus
firefighters pacing themselves. The clear import of
the testimony, taken as a whole, is that sometimes
firefighters work all-out, and sometimes they pace
themselves; it depends on the task at hand. Anecdotal
evidence regarding the speed at which firefighters
must work is not sufficient to justify a timed,
competitive examination. There must be systematic
evidence based upon a job analysis. The Battelle
researchers weighed actual pieces of firefighting
equipment to determine the strength necessary to
perform the job. Jt. Ex. 24, at 6-8. It is hard evidence
such as this that is necessary to justify an examination
with adverse impact.
- 142a -
The defendants also presented evidence that
women, on the whole, lack the upper body strength of
men, and have lower levels of aerobic capacity. This is
undisputed; indeed plaintiffs‘ expert Dr. Magel stated
at trial: "[W]e know for a fact that women perform
less well in most fitness measures other than tests of
flexibility or balance." Tr. 457. Firefighting is
physically demanding work, defendants argue, and men
are better equipped to perform this work than women.
From the evidence at trial, there appears to be some
truth to this. However, this argument is based upon a
misconception of the role of the Court in a Title VII
case. It is not the province of the Court to determine
whether women should be firefighters, or how many
women should be firefighters. Rather, it is the Court's
duty to evaluate a test in light of the standards set
forth in Title VII. How many women should be
- 142 -
firefighters can be decided only by the administration
of a validated examination.
Accordingly, the Court concludes that the
defendants have failed to show that the 1984
firefighter physical test is content valid. This
conclusion is based upon two reasons: that the test,
taken as a whole, does not represent the physical
demands of the job, and that there is no evidence that
higher scores on the test vary directly with job
performance to justify ranking. Consequentiy, the
defendants engaged in discrimination on the grounds of
sex when they used the 1984 examination to
firefighters can be decided only by the administration
of a validated examination.
Accordingly, the Court concludes that the
defendants have failed to show that the 1984
firefighter physical test is content valid. This
conclusion is based upon two reasons: that the test,
taken as a whole, does not represent’ the
- l44a-
physical demands of the job, and that there is no
evidence that higher scores on the test vary directly
with job performance to justify ranking. Consequently,
the defendants engaged in discrimination on the
grounds of sex when they used the 1984 examination to
select firefighters. Thus, the plaintiffs are entitled to
judgment on their Title VII claims regarding the 1984
physical exam.
IV.
The Court having concluded that defendants
have failed to show that the 1984 firefighter physical
examination was job-related, plaintiffs are entitled to
relief. This relief has two aspects: prospective relief
to assure future compliance with Title VII, and
retrospective relief to remedy the effects of past
discrimination.
The Court understands that no further hiring
from the 1984 eligibility lists will occur. However, the
City will at some point have to administer
—- 14:1-
new examinations and generate new eligibility lists
from which future training classes will be selected.
Thus, the critical aspect of prospective relief is to
ensure that the next examination and selection process
complies with the requirements of Title VII.
Accordingly, the City will be ordered, prior to
administration of any future firefighter physical tests,
to modify the test so as to eliminate the problems
found with the 1984 test by this Court.
Those problems are two fold: lack of
representativeness, and the use of rank-ordering. To
eliminate the former, the City must redesign the test
so that it reasonably reflects the physical abilities
actually used on the job. For this purpose, the Court
may rely upon the approach used in the Landy study,
and the results of the Landy analysis of the job of
firefighting, as reported in Appendix M of Jt. Ex. 17.
To eliminate the problems stemming from
rank-ordering, the City must make a _ choice.
-1%a-
If defendants wish to continue to _ rank-order
candidates, they must be prepared to show that
rank-ordering complies with the Uniform Guidelines.
Specifically, they must produce evidence to show that
a higher score on the examination is likely to result in
better job performance. 29 C.F.R. §.1607.14(C)(9).
That evidence should be sufficient to justify any
additional adverse impact that rank-ordering may have
over a pass/fail test; for this purpose, defendants must
determine the likely adverse impact from a pass/fail
examination, the passing points of which are validated
according to the standards of the Uniform Guidelines.
Alternatively, defendants may choose to design and
administer a pass/fail examination. In this event, the
problem of representativeness of the test must be
resolved, and pass points must be justified consistently
with the Guidelines.11
-147a-
Turning to the matter of retrospective relief,
the fact that a non-—job-related physical examination
was administered by the defendants in 1984 raises the
inference that there are females who would have been
hired but for the discriminatory examination.
However, it is impossible to determine how many of
the female applicants are qualified to be firefighters,
or how many, if any, would have been hired in a
nondiscriminatory examination. The Court will resolve
this problem by requiring the defendants to administer
a nondiscriminatory examination, and to provide notice
of that examination, in a form approved by the Court,
to all female applicants for the 1984 examination. If
women succeed upon the new examination in greater
numbers than upon the 1984 examination, the Court
will order the defendants to set aside a sufficient
number of places in future firefighter classes to rectify
any past discrimination thus revealed. On _ the
mi & Ba
other hand, if female applicants do not succeed in
greater numbers than before, then no set aside would
be appropriate.
The parties are DIRECTED to file with the
Court no later than May 23, 1986 their suggestions
regarding the decree by which this remedy will be
implemented. The Court will then issue its decree.
WHEREUPON, having considered the evidence
and the arguments of the parties, the Court renders its
decision on liability as follows: Plaintiffs have failed
to prove their claim of intentional discrimination under
§.1983, and their claim under Title VII with respect to
the 1980 firefighter selection process; however,
plaintiffs have prevailed on their claim with respect to
the 1984 firefighter selection process. The Clerk shall
enter JUDGMENT: on liability only in favor of the
defendants on the §. 1983 claim and the Title VII claim
—-149a-
pertaining to the 1980 examination,and JUDGMENT in
favor of the plaintiffs on the Title VII claim pertaining
to the 1984 examination.
IT IS SO ORDERED.
UNITED STATES DISTRICT JUDGE
The evidence in this case comprises the
testimony taken in open Court, cited to the transcript
as "Tr.__"; stipulations of the parties filed in open
Court, cited as
"Stip.# _"; exhibits presented jointly by the parties,
cited as "Jt. Ex. _"; and exhibits received into evidence
on behalf of only one party, cited as, e.g., "Plaintiffs'
Ex. _." In addition, the defendants made available a
number of pieces of firefighting equipment for
examination by the Court.
2
Defendents also assert that females passed the
1980 selection process at a rate of 89% (25 of 28),
while males passed at the rate of 90% (772 of 796).
The sole component of the overall testing process that
was graded pass/fail was the reading comprehension
test, which is not challenged in the litigation. All
other components of the test were used to rank order
candidates. Thus passing ratios are irrelevant.
-150a-
Jt. Ex. 5 shows a female total score of 87.1 for
Lawrence Livingston. This appears to be an error in
coding for sex of applicants. The same error is
repeated in Dr. Cranny's analysis, Jt. Ex. 7, at 5, and
his testimony at trial. tr. 269.
4
Seven tasks were ranked "5". They were:
surveying structure for possible hot spots after fire has
been knocked down; using appropriate safety
procedures; observing smoke and fire conditions and
locating source of fire; sizing up fire and identifying
appropriate extinguishing and ventilation techniques;
driving apparatus according to state and local
regulations; selecting shortest route to emergency
scene; and maneuvering apparatus at scene to occupy
best position and avoid interfering with other
companies.
Fourteen tasks were rated "4". These were:
locating hidden fires by seeing, feeling or smelling fire
or opening walls; manipulating ladders; climbing and
working from ladders with equipment or carrying
people; obtaining and donning proper protective
equipment; applying knowledge of heat and fluid
mechanics to anticipate fire behavior; identifying and
saturating potential exposures; identifying and
removing flammable or hazardous materials; locating
hydrant or water source with best access to fire;
computing necessary line pressure; pumping water to
supply hoses or sprinkler systems; responds
immediately to emergency to save lives; interacts with
distraught persons to obtain information; checking vital
-~15la-
Signs of victim; and preplanning fires in industrial and
commercial buildings to locate fire prevention and
fighting equipment.
5
The seventeen traits and the scores they were
awarded by firefighters are: knowledge of hydrant
locations (2.440); knowledge of occupancy, use, and
structural composition of buildings (2.379); knowledge
of firefighting tactics (2.370); knowledge of methods of
fire extinguishment (2.328); knowledge of safe
treatment of hazardous substances (2.310); ability to
receive, comprehend and follow orders (2.308);
knowledge of ventilation techniques (2.283); ability to
learn and improve performance (2.259); skill at
remaining oriented at emergency scenes, e.g., dense
smoke (2.250); ability to function without sight (2.250);
knowledge of streets and addresses in district (2.241);
knowledge of CFD regulations regarding positioning of
apparatus at scene (2.241); knowledge of size-up
procedures (2.241); ability to deal with emotional
supervision (2.241); knowledge of CFD hose evolutions
(2.204)); ability to put knowledge of proper use of
rescue equipment into practice (2.200).
6
These traits are: physical ability to use ladders;
physical ability to use hydrant wrench; physical ability
to drag empty hose lines; physical ability to advance
charged hose lines; physical ability to lift and operate
fire extinguishers; physical ability to use CFD
equipment, e.g., pike poles; physical ability to climb
and work from ladders; ability to crawl on hands and
-152a-
knees; ability to drag or carry adults or children;
ability to detect higher temperatures by feel; ability to
detect smoke or fire by smell; manual dexterity; ability
to remain alert; ability to hear or read and follow
instructions; physical ability to assist in loading of hose
bed; ability to learn; ability to write legibly; ability to
comprehend and follow orders; ability to work from
heights without fear.
7
These were, in order of their scores: ability to
wear mask which covers entire face (88); ability to
withstand high temperatures (84); ability to function
without sight (81); skill at moving around in structures
weakened by fire (36); knowledge of proper lifting
techniques (35); knowledge of proper use of tools (35);
physical ability to use CFD equipment, e.g. pike poles
(33); ability to crawl on hands and knees (29);
knowledge of operation of CFD apparatus (26);
communication skills-hearing and understanding speech
in person (25); knowledge of search patterns used in
CFD (24); knowledge of smell of materials while
burning (23); communication skill--speaking (22);
knowledge of proper use of CFD rescue equipment (21);
ability to put knowledge of proper use of rescue
equipment into practice (21); and skill at remaining
oriented at emergency scenes (20). Jt. Ex. 18,
Appendix 5.
8
The physical: degree traits and their associated
task values are: physical ability to use ladders (9);
-153q-
physical ability to carry out duties of "hydrant man"
(3); physical ability to use hydrant wrench (3); physical
ability to drag empty hose lines (2); physical ability to
advance charged hose line (4); ability to mount and
operate master stream device (11); physical ability to
lift and operate fire extinguishers (1); physical ability
to use CFD equipment, e.g. pike poles (33); physical
ability to use equipment to shore up unsound structures
(3);physical ability to sue tools and equipment in
removing water from floors (4); physical ability to work
from ladders (19); ability to crawl on hands and knees
(29); ability to drag or carry adults or children (13);
ability to push or lift heavy objects (14); manual
dexterity (3); physical ability to perform first aid and
cardiopulmonary resuscitation (15); physical ability to
assist in loading of hose bed (2); physical ability to
participate in physical training (2).
9
In meeting with firefighters in this context,
Landy identified himself as someone hired by the City
to help defend this lawsuit, Tr. 1001, which was
criticized at trail by Dr. Cranny. Tr. 359-361. This
approach strikes the Court as ill-advised and
unnecessary.
10
These problems are from three potential sources
of bias in the correlations: restriction of range,
measurement errors in the criteria and the use of dual
eligible lists for hiring. These are discussed in Jt. Ex.
16, at S-4 to S-16. Kriska/Hines resolved these
problems in a highly ee manner.
-154a-
ll
At trial, Dr. Landy testified regarding possible
rescoring of the 1984 examination on a pass/fail basis.
Passing levels were set at the mean score for all
female applicants on the 1984 physical examination.
Virtually no females scored above the mean, thus
determined, on all five test events; on the other hand,
a very large number of males scored above the means.
Hence, Landy testified, a pass/fail examination would
have even greater adverse impact than a _ scored
examination. Tr. 1029-1032, The problem with this is
that the pass points are simply arbitrary; there is no
attempt to base them on a job analysis.
United States District Court
SOUTHERN DISTRICT OF _ OHIO
ANN BRUNET, et al., JUDGMENT IN A CIVIL CASE
V.
CASE NUMBER: C-2-84-1973
CITY OF COLUMBUS, et al.,
U
7
Jury Verdict. This action came before the
Court for a trial by jury. The issues have been
tried and the jury has rendered its verdict.
Decision by Court. This action came to trial or
hearing before the Court. The issues have been
tried or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED that on the
issue of liability JUDGEMENT is for the
defendents on the §. 1983 claim and the Title VII
claim pertaining to the 1980 examination, and
JUDGMENT is for the plaintiffs on the Title VII
claim pertaining to the 1984 examination.
Mav 14, 1986 Kenneth J. Murphy
Date
Clerk
(By) Deputy Clerk
-15¢a-
UNITED STATES DISTRICT COURT
SOUTHERN OHIO DISTRICT
EASTERN DIVISION
ANN BRUNET, et al.,
Plaintiffs,
Vv. Case No. C-2-84-1973
CITY OF COLUMBUS, et al.,
Defendants.
OPINION AND ORDER
This matter comes before the Court to consider
the remedial decree to be entered in this case. In an
Opinion and Order entered May 13, 1986, the Court
concluded that the defendents discriminated against
the plaintiffs--a class of past, present and future
female applicants for firefighter--when they used the
1984 firefighter examination to select firefighters. In
light of this conclusion, the Court directed the parties
to file their suggestions regarding a remedial decree.
Having considered these suggestions, the Court now
-1S7a-
renders its decision regarding a remedy.
Under Title VII, hiring by use of an examination
with adverse impact on women _ constitutes
impermissible discrimination unless that examination
has been proven to be job-related. The Court
concluded that defendants had failed in two respects to
show that the 1984 firefighters’ test was job-related.
First, the physical abilities measured by the physical
test, taken as a whole, did not reflect the physical
abilities actually used on the job. Second, defendants
used test scores to rank-order applicants who were to
be hired in order from eligibility lists. The practice of
ranking is permissible only if there is evidence that
scores on the test vary directly with job performance.
The Court concluded that the defendants had failed to
present such evidence. The Court stated that to
-15 2a-
eliminate the problem of lack of representativeness of
the physical test, defendants must redesign the test.
The Court further stated that, to eliminate the
problems associated with ranking, the defendants must
produce the requisite evidence or, alternatively,
eliminate ranking.
While this case was. pending, the City
administered a new firefighters' entrance
examination. In December 1985, a new written
examination was administered. And, in March 1986,
after this case had been tried, but prior to the
submission of briefs by the parties, a new physical test
was administered. The new physical test included two
new events; in addition, some of the events on the 1984
physical test were modified in various ways before they
were administered to applicants in 1986. The
defendants state that the grading and scoring of the
1986 firefighter's examination has been suspended
_59 a-
pending _ this Court's istorii of the
job-relatedness of the test and acceptance of a scoring
method. They also state that, for the first time, the
firefighters' examination was administered to
incumbent firefighters. The defendants refused any
discovery to plaintiffs regarding the nature of
administration of the 1986 physical test. Thus, the
court has before it only the assertions of defendant's
counsel regarding the 1986 test.
In their submission to the Court, plaintiffs have
made a number of suggestions regarding particular
events that were included in the 1984 physical test.
For the moment, these suggestions are moot, because
defendants have already redesigned the physical test.
Some of the changes proposed by plaintiffs have
already been introduced. Plaintiffs also propose
certain changes in the scoring of the test.
-160a-
In particular, they propose that all timed test events
and all ranking based on physical test scores be
eliminated. They also propose that defendents be
required to administer any new test to incumbent
firefighters, a demand that has already been met by
the defendants. Further, plaintiffs demand timely
access to information regarding the new test. And,
they request an interim award of attorney's fees.
In their submission to the Court, defendants set
forth a remedial plan in some detail. First, to address
the Court's concerns regarding representativeness of
the test, defendants propose to employ the same
strategy used in the Landy, Jacobs study, Jt. Ex. 17, to
evaluate the content validity of the 1984 physical test.
In the Landy report, incumbent firefighters were asked
to evaluate the physical abilities used on the job. A
panel of industrial’ psychologists assessed the physical
abilities measured by the test. The judgments of the
-16la-
firefighters were than compared with those of the
industrial psychologists to determine the
representativeness of the test. The Court relied upon
the results of this analysis to conclude that the 1984
test did not accurately reflect the requirements of the
job. Defendants propose to present information
regarding the 1986 physical test to a panel of industrial
psychologists. They believe that the modifications
introduced in 1986 have produced a valid, job-related
test. Defendants also suggest that the scores of
particular test events can be reweighted, if necessary
to ensure representativeness. Defendants estimate
that such a study of the 1986 physical examination
could be completed by August 1986.
To address the Court's concern regarding use of
test scores to rank-order applicants, defendants state
that they have been discussing with their expert, Dr.
Landy, a criterion-related validity study to address
-162a-
issues concerning the scoring of the examination.
Because the 1986 physical examination was
administered to incumbent firefighters, defendants
propose a concurrent validity study to compare the job
performance of these incumbents with their test
performance. Also, defendants point out, test scores
of incumbent firefighters can be used to calculate cut
scores for administration of a pass/fail physical
examination, it necessary. In addition, defendants
express interest in conducting a predictive validity
study. If they are permitted to hire on the basis of the
1986examination, defendants could follow. the
development of applicants who are hired, comparing
test scores with training success and job performance.
A predictive criterion-related validity study provides
the best and most direct evidence of job-relatedness.
-162-
In light of the proposals of the parties and the
present circumstances, the Court concludes that the
following remedial plan would most directly eliminate
the discrimination and protect the interests of the
defendants in a safe and efficient fire division.
Defendants will be permitted to hire on the basis of the
1986 examination only when the content validity of the
modified examination has been proven. The Court
considers the proposal to duplicate the Landy study of
the 1984 examination to be a reasonable way of making
this showing. If the 1986 examination is shown to be
content valid—-or, if it is not, some further modified
examination has been shown to be_ content
valid——defendants must notify all female applicants for
firefighter in 1984 of the new examination and
administer it to all such applicants who are still
interested in being considered for the position of
firefighter.
-16 4a-
When the content valid test has been
formulated, and administered to 1984 female
applicants, defendants may hire on the basis of the
1986 examination. At this point, the 1986 examination
may be used only on a pass/fail basis, where the
cutpoints defining passing scores are determined by the
performance of incumbents on the examination in
accord with the standards of the Uniform Guidelines,
29 C.F.R. §. 1607.1 et seg. Persons achieving pass
scores on the test as a whole will be available for hire;
if there are more passing applicants than positions
available, candidates shall be considered for hiring so
that the percentages of females and males considered
for hire reflects the relative proportions of male and
female applicants achieving passing scores.
Defendants may determine the particular method by
which this result is achieved. Further, before hiring
from the 1986 examination, defendants must determine
-16 R-
the number of females who would have been hired in
1984 and the 1984 examination included a
content-valid physical test and the test as a whole had
been scored on a pass/fail basis. To the extent that
there are such females, a set-aside of places in the
firefighter classes hired on the basis of the 1986
examination must be created. Females applicants in
1984 who have taken the new firefighter examination
will then be considered to fill these set-aside positions
in the order of their total test scores. When hiring
from the 1986 list occurs, defendants will then perform
their proposed predictive criterion-related validity
study. If defendants can show, on the basis of the
predictive and concurrent criterion-related validity
studies they propose, that the test as a whole is
sufficiently precise to be used for ranking, they may
then apply to the Court for an Order permitting
ranking.
-16 fa-
The Court is satisfied that this remedy achieves
a reasonable accommodation of plaintiffs' interest in
freedom from discrimination and relief from any
effects of past discrimination, and the defendants'
strong interest in safe and efficient staffing of the
division of fire. Through this remedial process, the
Court believes that the central goal of Title VII--to
make job qualifications the controlling factor and
factors such as sex irrelevant--can best be realized.
For these reasons, the Court makes the following order:
1) The defendants are enjoined from any hiring
of entry-level firefighters on the basis of the 1986
firefighter examination until here has been compliance
with this Order.
2) As soon as practicable, defendants shall
submit to the Court a report detailing the results of an
analysis of the 1986 physical test comparable to that
underlying Appendix R of the Landy, Jacobs
-167_
report, Jt. Ex. 17. No members of the Landy, Jacobs
firm or any employee of the City of Columbus may
serve as a member of the panel of industrial
psychologists that is to evaluate the test. Prior to the
analysis of thel986 test by the expert panel, all
relevant materials and the design of the study shall be
made available to an expert to be chosen by the
plaintiffs, who will review these materials and file a
written report to accompany the City's proposed
report. The fees of this expert will be paid by the
defendants. Further, the defendants shall provide
discovery regarding the content and administration of
this study; plaintiffs shall file their objections, if any,
contemporaneously with defendants' report. The Court
shall then determine whether the 1986 physical
examination is content valid. If it is not, the
defendants must redesign the test and again
demonstrate its content validity. If the test must be
—16 8a-
remodified, it must again be administered to incumbent
firefighters.
3) If the 1986 physical test if found to be
content valid by the Court, the defendants shall then
submit promptly to the Court a report on the results of
the administration of the 1986 physical examination to
incumbent firefighters. If the 1986 physical test
already administered is found not to be valid, the
defendants shall then remodify the test, and, when the
test has been determined to be content valid, shall
administer the test to incumbent firefighters and
report on the results. The report shall describe fully
the details of administration of the test to incumbents
and provide data regarding the incumbents. The report
shall include a proposal regarding cutoff scores to be
used to grade the test as a whole pass/fail. These
cut-off scores shall "be set so as to be reasonable and
consistent with normal expectations of acceptable
—16%-
proficiency within the work force." 29 C.F.R. §.
1607(H). Defendants shall provide discovery to
plaintiffs regarding the test of incumbents and all
relevant information regarding characteristics of
incumbents. The parties shall present to the Court
their proposals regarding appropriate cutoff scores.
The City shall show the number of males and females
that would be hired under each proposal. The Court
will then determine appropriate scoring procedures.
4) When defendants have formulated a content valid
physical test and pass/fail scoring procedures have
been determined by the Court, defendants shall notify
all female applicants for firefighter in 1984 that they
may reapply to take the firefighter examination as a
result of this Court's decision. The form of notice
must be approved by the Court. Only female
applicants on the 1984 eligibility list who were
considered for hire and rejected for reasons
-170a-
other than the physical test are excepted from
receiving notice. Defendants shall then administer the
new physical test to all applicants who appear in
response to the notice. Defendants shall devise a
training program for applicants, and shall notify all
1984 applicants of the availability of this program.
Plaintiffs shall make their suggestions to defendants
regarding the content of this training program in
writing in a timely manner. The test results will then
be scored in the manner previously approved by the
Court; defendants may use 1984 written test scores to
determine the total score of female applicants who
retake the physical test. Defendants shall determine
the number of female applicants who would have been
hired in 1984 had a content valid test been
administered and had the test as a while been graded
pass/fail. For this purpose, the defendants shall
assume that, if a greater number of male and female
applicants achieve passing scores than were in fact
-17 la—
hired from the 1984 eligibility lists, male and female
applicants would have been considered for hiring in
proportion to the relative propor
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