Appendix — Berkman v. City of New York

87-6 6 |

Ne. 87-

sree Ea. .

4HOSEPH F. SPANIOL, JR.

= CLERK

Supreme Court of the United

OCTOBER TERM, 1987

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tates

BRENDA BERKMAN, on behalf of herself and

a class consisting of all similarly situated women,

Petitioner,

—V.—

THE CITY OF NEW YORK; EDWARD I. KOCH, individually and as Mayor of

the City of New York; NEW YORK CITY FIRE DEPARTMENT; AUGUSTUS

BEEKMAN, individually and as Fire Commissioner of the City of New

York; NEW YORK CITY DEPARTMENT OF PERSONNEL; MICHAEL NaA-

DEL, individually and as Director of Personnel of the City of New York;

THOMAS ROCHE, individually and as former Director of Personnel of

the City of New York; CIVIL SERVICE COMMISSION OF THE CITY OF

NEW YORK, Respondents,

—and—

UNIFORMED FIREFIGHTERS ASSOCIATION and

FIREFIGHTER ELIGIBLES ASSOCIATION, LIST No. 1162, INC.,

Intervenor-Respondents.

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

ROBERT L. KING

LAURA SAGER Debevoise & Plimpton

Washington Square 875 Third Avenue

Legal Services, Inc. New York, New York 10022

40 Washington Square South (212) 909-6000

Room 321B Counsel of Record for

New York, New York 10012 Petitioner Brenda Berkman

(212) 998-6176

Of Counsel

July 13, 1987

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR

HARD COPY AT THE TIME OF FILMING.

If AND WHEN A BETTER COPY CAN BE

OBTAINED, A NEW FICHE WILL BE

ISSUED.

TABLE OF CONTENTS

Opinion of the United States

Court of Appeals for the

Second Circuit, February 17,

TOGT CEG IVE cece cevesswses

Opinion of the United States

District Court for the Eastern

District of New York,

October 8, 1985

ne ea we wes

Order of the United States

District Court for the Eastern

District of New York, Febru-

APY £6, 1FGS asacstatrevesncseveves

Opinion of the United States

Court of Appeals for the

Second Circuit, March 29,

Pe Re Rs ar ae

Opinion of the United

States District Court for

the Eastern District of New

York, March 4, 1982

a” Re Bae ea ee

Mandate of the United

States Court of Appeals

for the Second Circuit,

PeEnCuary 17, SFGT sescttesevenetds

PAGE

Al

A5S1l

A102

A109

Al69

Order of the United States

Court of Appeals for the

Second Circuit denying

petition for rehearing,

MTL L 14, L967 sceccceccsscseces

Opinion of the United

States District Court

for the Eastern

District of New York,

i ha Le Cee enecseccesosces

Civil Rights Act of 1964,

as amended, 42 U.S.C.

Ome A@MCOEDEE) 2. ccccccccs

Uniform Guidelines on

Employee Selection

Procedures, 29 C.F.R.

Dome SOMROEEE) 2c ccccvesecs

11

PAGE

ues

ot ital —

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Nos. 1307, 1308, 1309,

1310--August Term, 1985

(Argued: May 28, 1986

Decided: February 17, 1987)

Docket Nos. 86-7157, -7159, -7167, -7201

BRENDA BERKMAN, on behalf of herself and

a class consisting of all similarly-

Situated women,

Plaintiff-Appellee-

Cross-Appellant,

— » —

THE CITY OF NEW YORK; EDWARD I. KOCH,

individually and as Mayor of the City

of New York; NEW YORK CITY FIRE DEPART-

MENT, AUGUSTUS BEEKMAN, individually

and as Fire Commissioner of the City of

New York; NEW YORK CITY DEPARTMENT OF

PERSONNEL; MICHAEL NADEL, individually

and as Director of Personnel of the

City of New York; THOMAS ROCHE, indi-

vidually and as former Director of

Personnel of the City of New York;

CIVIL SERVICE COMMISSION OF THE CITY OF

NEW YORK,

Defendants-Appellants-

Cross-Appellees,

-and-

Al

UNIFORMED FIREFIGHTERS ASSOCIATION,

LOCAL 94, FIREFIGHTERS ELIGIBLES ASSO-

CIATION, LIST NO. 1162, INC.,

Defendants-Intervenors-

Appellants-Cross-Appellees,

-and-

JAMES T. AHRENS,

Defendant-Intervenor.

Before:

FEINBERG, Chief Judge, NEWMAN and KEARSE,

Circuit Judges.

Appeal and cross-appeal from orders of

the District Court for the Eastern Dis-

trict of New York (Charles P. Sifton,

Judge) providing supplemental relief in

connection with a Title VII lawsuit al-

leging gender discrimination in entry-

level hiring of New York City fire-

fighters. 626 F. Supp. 591 (E.D.N.Y.

1985).

Affirmed in part, reversed in part, and

remanded.

Norma Kerlin, New York, N.Y. (Fred-

erick A.O. Schwarz, Jr., Corp.

Counsel, Francis F. Caputo, Eliz-

abeth Dale Kendrick, Robin M.

Levine, New York, N.Y., on the

brief), for municipal defendants-

appellants-cross-appellees.

A2

John F. Mills, Mineola, N.Y.

(Colleran O'Hara & Mills, Min-

eola, N.Y., on the brief), for

defendant-intervenor-appellant-

cross-appellee Firefighter Eligi-

bles Ass'n, List No. 1162, Inc.

Michael N. Block, New York, N.Y.

(H. Adam Prussin, Cheryl Eisberg

Moin, Lipsig, Sullivan &

Liapakis, New York, N.Y., on the

brief), for defendant-intervenor-

appellant-cross-appellee Uni-

formed Firefighters Ass'n

Laura Sager, Washington Square

Legal Services, Inc., New York,

N.Y. (Robert L. King, Jonathan E.

Richman, Debevoise & Plimpton,

New York, N.Y., on the brief),

for plaintiff-appellee-cross-

appellant.

JON O. NEWMAN, Circuit Judge:

This is an appeal and cross-

appeal from orders of the District Court

for the Eastern District of New York

(Charles P. Sifton, Judge) providing

Supplemental relief in connection with a

Title VII lawsuit alleging gender

discrimination in entry-level hiring of

New York City firefighters. In an ear-

A3

lier stage of this litigation, the Dis-

trict Court invalidated an entry-level

examination and ordered various forms of

relief, including the development of a

new non-discriminatory entry-level test.

The current round of litigation concerns

challenges to the validity of the new

test and to the District Court's orders

requiring adjustments in the sccring of

the new test and in the use of the eligi-

bility list assembled as a result of the

new test. For reasons that follow, we

affirm in part, reverse in part, and

remand for entry of a revised order.

Background

Much of the background is set

forth in our prior decision, which re-

jected challenges to certain aspects of

the relief the District Court had ordered

after invalidating the physical portion

of the original test. See Berkman v.

A4

City of New York, 705 F.2d 584 (2d Cir.

1983). The plaintiff, Brenda Berkman,

filed the suit in 1979, alleging gender

discrimination by the New York City Fire

Department and other municipal defendants

in violation of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e et

seq. The plaintiff challenged the physi-

cal test of Exam 3040, the 1978 Fire

Department entrance examination, on the

ground that this test had a disparate

impact on women and was not job-related.

On March 4, 1982, the District Court

invalidated the physical portion of Exam

3040 and ordered several forms of relief,

including "preparation of new and valid

selection procedures." Berkman v. City

of New York, 536 F. Supp. 177, 216

(E.D.N.Y. 1982). This aspect of relief,

which is customary in Title VII litiga-

tion, was not challenged on the prior

A5

appeal. The March 4, 1982, decision also

ordered as interim relief the hiring of

up to 45 women members of the plaintiff

class who passed a "qualifying test" of

physical abilities. Such a test was

developed by the defendants in coopera-

tion with the plaintiff and approved by

the District Court in August 1982. The

qualifying test consisted of two parts, a

Simulation of engine company tasks and a

Simulation of ladder company tasks, sepa-

rated by a rest interval. See 705 F.2d

at 592 n.10. The test was scored on a

pass/fail basis, with completion in four

minutes, nine seconds, considered a pass-

ing score. This test was administered in

September 1982. Thirty-eight of the

women who passed were hired as fire-

fighters.

On September 11, 1982, the

defendants administered the written por-

A6

}

tion of a new entry-level firefighter

test, Exam 1162. The written portion was

administered to 31,421 candidates of whom

566 identified themselves as females.

In October 1982 the defendants

sought the District Court's approval of

the physical test of Exam 1162. The

physical test was similar to the "quali-

fying test" used for interim hiring, with

some changes. Two additional tasks were

added -- a hose pull and a wall vault.

The rest interval between the engine

company tasks and the ladder company

tasks was reduced to two minutes. Fi-

nally, the scoring was altered from

pass/fail to a rank-ordered system based

on speed of completion. Completion in

less than four minutes was scored 100,

completion in each of the six 30-second

intervals between four and seven minutes

was scored downward from 95 to 70 in

A7

five-point steps, and completion in more

than seven minutes was considered fail-

ing. This produced seven passing grades

or “bands.” An applicant's overall score

on Exam 1162 was to be determined by

averaging the scores on the written and

physical tests.

In January and February 1983

the District Court heard testimony on

seven days concerning the validity of the

physical test of Exam 1162. That hearing

was adjourned on February 18, 1983, with-

out a specific date for resumption. Two

months later the defendants informed the

Court that they were reluctantly going to

administer Exam 1162, despite the lack of

an advance ruling on its validity, be-

cause of the need to promulgate a new

eligibility list and the unlikelihood

that the hearing would be resumed and an

advance ruling issued. Receiving no

A8

contrary indication from the District

Court, the defendants administered the

physical test of Exam 1162, at a cost of

$750,000, to more than 20,000 applicants

who had passed the written test. Prior

to administering the physical test, the

defendants obtained foundation funding

for a special training program for women

to prepare them for the test. Most of

the women who participated actively in

the training program passed the physical

test, with 40 percent scoring at least

65.

The physical test was adminis-

tered during the period from July 1983

until the spring of 1984. During that

period an episode occurred that would

prove significant to one aspect of the

remedy challenged on this appeal. In

September 1983 the named plaintiff,

Brenda Berkman, and another class member,

AS

eee

both of whom had been hired pursuant to

the District Court's interim hiring rem-

edy, were terminated at the conclusion of

their probationary period, ostensibly for

poor performance. This action precipi-

tated a motion for reinstatement, plain-

tiff contending that the terminations had

been the result of intentional discrimi-

nation. The District Court agreed and

ordered reinstatement. Berkman v. City

of New York, 580 F. Supp. 226 (E.D.N.Y.

1983).

The defendants disclosed the

results of Exam 1162 in May 1984. Of the

31,421 applicants who took the written

test, 29,113 achieved a passing score of

at least 70. The passing rates were:

men, 98.65 percent; women, 97.8 percent.

The scores were bunched at the high end:

83.21 percent of the applicants scored 90

or higher, 66.68 percent scored 94 or

Al0

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—SKVQG'

higher, and 9,788 applicants scored 98 or

higher. Of the 28,559 men who passed the

written test, 22,255 (77.93%) took the

physical test; of the 554 women who

passed the written test, 165 (29.78%)

took the physical test. The passing

rates on the physical test were: men,

95.42 percent; women, 46.67 percent. The

distribution of scores on the physical

test was as follows:

Score Males Females

100 500 0

95 6180 0

90 8529 7

85 3982 19

80 1325 18

75 451 A

70 169 8

below 70 1019 88

In June 1984 defendants dis-

closed a proposed eligibility list based

on an equal weighting of the scores on

the written and physical tests. The

District Court estimated that approxi-

mately 2,800 applicants will be hired as

All

firefighters during the four-year life of

the eligibility list, see N.Y. Civ. Serv.

L. § 56 (McKinney 1983), and that ap-

proximately 6,500 applicants must be

offered positions to obtain the needed

2,800. The 6,500 highest ranking appli-

cants received a combined score of 94.5

or better. Only two women are in this

group, which includes all applicants with

any prospect of being hired as fire-

fighters from this list.

In response to a motion by the

plaintiff, the District Court issued an

order on June 29, 1984, enjoining the use

of the proposed eligibility list "until

this Court has made a determination that

Exam 1162 is valid aid does not discrimi-

nate against women." An exception was

made for interim hiring. The plaintiff

reports that, as of March 1986, 850 fire-

Al2

fighters had been hired from the proposed

list of eligibles, all of whom are male.

Between January and June 1985

the District Court conducted hearings on

the validity of Exam 1162. The defen-

dants sought to demonstrate the validity

of the physical test of Exam 1162 on the

basis of both content validity and crite-

rion-related validity. Content validity

concerns the measurement of knowledge or

abilities needed for successful job per-

formance. Criterion-related validity

concerns the identification of criteria

that reflect successful job performance

and a determination of the extent to

which test scores correlate with the

meeting of such criteria. See Uniform

Guidelines on Employee Selection Proce-

dures (1978) of the Equal Employment

Opportunity Commission, 29 C.F.R.

§ 1607.5(B), 1.14 (1986). The criterion-

Al3

related validation was based on a concur-

rent validation study, which compared

test scores with job performances of a

sample of 133 incumbent firefighters, 104

males and 29 females. Defendants' expert

testified that his analysis showed a high

degree of correlation for both males and

females between physical test scores and

job performance criteria.

The plaintiff's experts chal-

lenged the validity of Exam 1162 essen-

tially on two grounds. First, they con-

tended that the physical test measured a

candidate's anaerobic energy system and

ignored the aerobic system. Anaerobic

energy is expended in using strength and

speed for short intervals of time, usu-

ally less than five minutes. Aerobic

energy is expended during physical exer-

tion over prolonged periods of time.

Weight-lifters and sprinters use primar-

Al4

ily anaerobic energy; long-distance run-

ners use primarily aerobic energy. In

the prior stage of this litigation, when

the District Court invalidated Exam 3040,

the physical portion of that exam had

been criticized for testing only anaero-

bic energy, disregarding the fact that

successful firefighting frequently re-

quires paced exertion over several hours

of activity. 536 F. Supp. at 207, 212.

Plaintiff complained that Exam 1162 per-

petuated this deficiency by requiring

each of the two sets of physical tasks to

be performed within 90 seconds in order

to produce a score high enough to afford

a candidate a realistic chance of being

hired. Failure to test for stamina, it

was urged, neglected a characteristic

important for successful job performance

and also slanted the scores adversely to

women, who tend to compare more unfavor-

AlS

ably with men in regard to anaerobic

energy than aerobic energy. Plaintiff's

evidence indicated, for example, that men

tend to run 40 percent farther than women

in runs lasting two minutes, but only 14

percent farther in runs lasting ten min-

utes.

Second, plaintiff's experts

challenged the use of scores from the

written portion of Exam 1162. Noting

that these scores were bunched at the

high end, they contended that, because

the written test was too easy, it did not

provide sufficient differentiation among

applicants. As a result, ranking on the

proposed eligibility list was determined

primarily by the results of the physical

test, despite the fact that Fire Depart-

ment officals had rated mental and physi-

cal abilities of equal importance for

successful job performance.

Al6

ee

In the course of presenting

testimony challenging Exam 1162, one of

plaintiff's experts suggested a way to

rescore the results of the physical test

by grouping the raw scores into three

scoring bands, instead of the seven used

by the defendants. The highest band

included all who finished in less than

four minutes 30 seconds, the second,

those finishing between four minutes 31

seconds and six minutes; and the third,

those finishing in more than six minutes

one second but less than seven minutes.

Rescoring of the physical test in three

bands produced the following distribu-

tion:

Score Males Females

95 and 100 6,780 0

80, 85, and 90 13,836 44

70 and 75 620 33

Al7

For purposes of combining physical test

scores with written test scores, the

expert suggested assigning the top band a

score of 100, the second band, 85, and

the third band, 70. The expert urged

that a three-band scoring would predict

job performance as well as the seven-band

scoring and would produce less adverse

impact on women. Subsequently, the ex-

pert made it clear that his three-band

proposal for the physical test scores

would reduce adverse impact on women only

if these scores were then combined with a

computer-generated "normal distribution”

of passing scores on the written test,

randomly assigned to those who passed the

written test.

On October 8, 1985, the Dis-

trict Court issued an opinion and order

concerning the validity of Exam 1162.

626 F. Supp. 591 (E.D.N.Y. 1985). Judge

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Sifton noted his prior criticism of Exam

3040 for its undue emphasis on anaerobic

energy performance and concluded that in

devising Exam 1162, "defendants failed

lamentably to establish a basis for the

emphasis placed on maximal strength and

speed," id. at 598, and “ignored not only

this Court's prior findings concerning

the role of aerobic energy in performing

firefighting functions but also the rec-

ommendations of the same expert whose

Philadelphia evaluators appear to have

been the principal source of both the

qualifying exam and Exam 1162 that the

test last 5 to 10 minutes without a re-

covery period,” id. at 599 (footnote

omitted). Nevertheless, the Court con-

cluded that Exam 1162 "comports in gen-

eral with the requirements of this

Court's decision of March 1982 with the

exception of its scoring which purports

Al9

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to distinguish between qualified candi-

dates to a degree of exactness not con-

sistent with the lack of precision inher-

ent in the exam." Id. at 593.

To remedy the scoring deficien-

cies, Judge Sifton directed three

changes. First, he required that the

physical test be scored in three bands.

This system, he concluded, shows "greater

validity” than the seven-band system and

"appears required by defendants’ own

criterion measures as well as by the

failure of defendants in their job analy-

Sis and test preparation to give due

consideration to the demands made on

aerobic energy in performing firefighting

tasks," id. at 600 (footnote omitted).

Second, Judge Sifton devised a remedy to

deal with the fact that the percentage of

those who passed the written test and

went on to take the physical test was

A20

much less for women than for men. The

District Judge attributed this fall-off

in interest to continued discrimination

within the Fire Department as evidenced

by the well-publicized efforts of the

Department to discharge the plaintiff and

another female probationary firefighter

in September 1983. On the assumption

that in the absence of the deterrent

effect of the attempted firings, the

percentage of those taking the physical

test after passing the written test would

have been the same for women as for men,

Judge Sifton estimated that 432 women

would have taken the physical test, in-

stead of the 165 who did so, or 2.62

times as many. Id. at 600-01. On the

further assumptions that, if 432 women

had taken the physical test, they wduld

have passed at the same rate as the 77

women who took and passed the test and

A21

ba

that all women who would have passed

would have achieved a distribution of

scores similar to those of the 77 who

passed the test, Judge Sifton ordered

that each woman on the eligibility list

should be afforded an increased opportu-

nity to be hired ahead of an equally

ranked male. Id. at 601. The increased

opportunity was to be achieved by use of

a "compensation ratio” of 2.62 to l.

Third, to lessen the undue differentiat-

ing power of the physical test scores

because of the bunching of the written

test scores, Judge Sifton directed the

parties to explore the validity and im-

pact on women of rescoring the written

test on either a pass/fail basis or in

three scoring bands.

Each side presented entirely

different proposals for a final order in

response to the October 8 ruling. The

A22

7

defendants presented evidence showing

that use of a three-band scoring system

for the physical test would have a more

adverse effect on women than the seven-

band system. Although only two women

would be reached on the eligibility list

for hiring with either scoring system,

they would be reached later with use of

the three-band system. Defendants there-

fore urged the District Court to permit

use of the eligibility list as proposed.

The plaintiff took the position that the

Court's findings concerning the deficien-

cies in Exam 1162 required an extensive

rescoring remedy. She proposed random

selection from among all applicants who

achieved a passing score on both the

written and physical tests, with a female

applicant accorded an increased opportu-

nity to be hired over a male applicant in

the ratio of 2.62 to l. Alternatively,

she proposed that rank-ordering of candi-

dates be permitted provided that male and

female applicants were hired in the same

proportion as would result from random

selection of those who achieved passing

scores. The plaintiff also offered a

third and fourth alternative to be used

in the event that the District Court was

satisfied that the physical test had

sufficient criterion-related validity to

permit its use. The third alternative

was to administer a new written test,

presumably one with sufficient difficulty

to produce a broader spread of test

scores, and combine the scores on such a

test with the scores from the physical

test grouped in three bands. The fourth

alternative was to generate by computer a

"normal distribution" of passing scores

for the written test, assign these scores

randomly to all candidates who passed the

A24

written and physical tests, and then

combine these assigned scores with the

scores from the physical test grouped in

three bands.!

On February 14, 1986, the Dis-

trict Court issued a final order concern-

ing Exam 1162. This order requires three

changes in the scoring of Exam 1162 and

the use of its results. First, the phys-

ical test is to be scored in three bands.

Judge Sifton accepted the three bands as

described in the testimony of one of

1 A “normal distribution" is a pattern

of the frequencies with which data

occur at points along a continuum, the

pattern resembling a bell-shaped curve

and characterized by few occurrences

at the low and high ends (in this

case, scores near 70 and 100), the

highest number of occurrences at the

mean (in this case, 85), and nearly 70

percent of occurrences within one

standard deviation of the mean (in

this case, between 80 and 90). See

R.P. Runyon & A. Haber, Fundamentals

of Behavioral Statistics 112-13 (3d

. ed. 1977).

A25

plaintiff's experts, placing scores of

100 and 95 in band A, scores of 90, 85,

and 80 in band B, and scores of 75 and 70

in band C. However, the District Judge

ordered that the scores to be combined

with the written test scores would be

95.4 for candidates in band A, 87.6 for

candidates in band B, and 73.€ for candi-

dates in band C. Second, a "normal dis-

tribution" of test scores is to be com-

puter generated for the written test and

randomly assigned to all candidates who

passed the written and physical tests.

Third, the District Judge required use of

the 2.62 compensation ratio outlined in

the October opinion. The ratio is to be

applied once a new rank-ordering of can-

didates has been compiled using the com-

bined scores resulting from the random

assignment of computer-generated written

scores weighted equally with the three-

A26

band scoring of the physical test. From

such a list the defendants are to hire

women and men as if there were 2.62 times

as many women as actually appear at each

level of the combined score.2 The com-

2 The Order details the use of the 2.62

compensation ratio as follows:

Female applicants on the list shall be

afforded an increased opportunity over

equally ranked males on the list to be

selected pursuant to a ratio of 2.62

to l. This ratio shall be known as

the compensation ratio. To apply this

compensation ratio, the defendants

shall divide the number of eligible

men assigned a particular score on the

list by the number of eligible women

receiving the same score, times the

compensation ratio of 2.62. The quo-

tient of the calculation shall deter-

mine how many men receiving a particu-

lar score on the examination may be

selected before the next woman is

selected. This ratio shall be known

as the selection ratio. Where men and

women receive the same score, a woman

shall be selected first, and the num-

ber of men determined by the selection

ratio shall be selected thereafter.

This process shall be repeated until

the score is exhausted, and the next

score shall be treated in the same

manner, provided there [are] also

women receiving that score.

A27 A

pensation ratio gives each woman at any

given score an increased chance of being

selected over male candidates at that

same score, though it does not require

that any woman be hired ahead of any man

with a higher score.

On the main appeal, the defen-

dants challenge all three changes ordered

by zhe District Court. On the cross-

appeal, the plaintiff contends that the

District Court should have required new

written and physical tests, or at least

should have required that the existing

tests be used only for random selection

from among all candidates who achieved

passing scores.

Discussion

It will be useful to begin with

consideration of plaintiff's cross-

appeal, since if she is correct that the

physical and written tests of Exam 1182

A28

[sic] may not be used at all, there would

be no need to consider the specific ad-

justments to the scoring of these tests

ordered by the District Court. With

respect to the written test, plaintiff

has made no showing that would justify

our rejection of this component of the

exam. The written test was not claimed

to have an adverse impact on women. Nor

was it claimed to test for knowledge

insufficiently related to job perfor-

mance. Plaintiff's only complaint about

the written test is that it 1s too easy.

We will return to that claim in consider-

ing the defendants' objections to the

scoring adjustments ordered by the Dis-

trict Court. At this point it suffices

to note that the content of the written

test has not been shown to be vulnerable

on any ground cognizable under Title VII.

A29

Plaintiff's challenge to the

physical test is somewhat more substan-

tial. She contends that the physical

test has a demonstrably adverse impact on

women and that it has not been adequately

validated to justify its use. Her pri-

mary complaint is that the test measures

an applicant's anaerobic energy system,

as applied to firefighters’ tasks, and

substantially ignores the aerobic energy

system. Assessment of the latter, she

alleges, would afford female applicants

an improved opportunity to achieve higher

scores compared to those of male appli-

cants. In considering this argument, we

note first that, though the District

Court expressed some criticism of the

physical test for inadequate assessment

of anaerobic [sic; aerobic] energy capac-

ity, the Court nonetheless upheld the

validity of the test. Having reviewed

A30

the record and the decision of the Dis-

trict Court made on the basis of that

record, we are not persuaded that the

decision upholding validity was errone-

ous. The test was carefully constructed

after a detailed consideration of fire-

fighters' tasks. Substantial testimony

before the District Judge supported va-

lidity on the basis of both content vali-

dation and criterion-related validation.

Though plaintiff finds fault with the

methods whereby the defendants demon-

Strated both content and criterion-

related validity, there is an insuffi-

cient basis to disregard the District

Court's conclusion upholding the valida-

tion of the test.

We do not doubt the plaintiff's

basic point that stamina, a function of a

person's aerobic energy system, is impor-

tant in the performance of a fire-

A31

fighter's tasks. The evidence of senior

officials of the Fire Department acknowl-

edged that stamina was an important

attribute for successful job performance.

It does not follow, however, that a phys-

ical test of the ability to perform simu-

lated job tasks of firefighters, without

a Specific measurement of stamina, lacks

validity to a degree that renders it

vulnerable to a Title VII challenge.

Obviously, firefighters frequently face

Situations where their anaerobic abili-

ties determine whether or not they will

save the lives of fire victims. The

firefighter arriving on the scene of a

fire will frequently be obliged to use

Strength and speed in a short amount of

time. Abundant evidence in the record

Supports this point, which in any event

would be self-evident. It may well be

that the effectiveness of a person with

A32

minimal stamina will decline if called

upon to perform firefighting tasks over a

considerable period of time. Perhaps a

person with greater stamina would perform

the tasks better after protracted activ-

ity than the firefighter who might excel

in the first few minutes of activity.

But the Fire Department is entitled to

select those who are endowed with the

physical abilities to act effectively in

the first moments of arrival at a fire

scene, where immediate speed and strength

literally concern matters of life and

death. If a person with limited stamina

tires during the course of firefighting

duties, that person can be replaced with

a fresh firefighter. However, if the

first firefighters on the scene are defi-

cient in the speed and strength necessary

to handle their tasks, those in need of

immediate rescue will not be comforted by

A33

ae - a

the fact that those first on the scene

might be able to sustain their modest

energy levels for a prolonged period of

time. See Spurlock v. United Airlines,

Inc., 475 F.2d 216, 219 (10th Cir. 1972)

(employer's burden to justify employment

criteria correspondingly lighter where

"human risks involved").

In an ideal world, a fire de-

partment might first select those appli-

cants with a high degree of speed and

Strength and from that group make a sec-

ond selection of those with relatively

greater stamina. There is nothing in

this record, however, to show that such a

selection process would have a less ad-

verse effect upon women. Indeed, since

only seven women placed in the top 15,316

applicants on the physical test, which

primarily measured speed and strength in

the performance of firefighters' tasks, a

A34

a

further selection from among these appli-

cants, giving priority to those with

relatively greater stamina, would at most

have placed only these seven women appli-

cants somewhat higher on the eligibility

list, an outcome by no means certain.

In sum, the District Court's

conclusion that the written and physical

tests of Exam 1162 are appropriate for

use to select entry-level firefighters is

entitled to be approved.

We turn then to the defendants'

challenges to the three changes in scor-

ing ordered by the District Court. The

first adjustment -- replacement of the

seven-band system for scoring the physi-

cal test with a three-band system -- is

fatally flawed. In the first place, the

defendants have demonstrated, without

contradiction by the plaintiff, that the

three-band scoring system does not ad-

vance any objective of Title VII: it

neither enhances the validity of the

physical test nor reduces the adverse

effect upon women applicants. In fact,

it operates to the detriment of both test

validity and women applicants. As we

pointed out above, speed in the perfor-

mance of a firefighter's task is highly

relevant to successful job performance;

collapsing the seven bands of test com-

pletion times into three bands serves

only to oblige the defendants to select

some applicants ahead of others who have

demonstrated the capacity to handle fire-

fighter tasks more swiftly. From the

Standpoint of women applicants, the

three-band system does not place even one

additional woman applicant high enough on

the eligibility list to have any prospect

of being reached for selection and in

fact postpones the time when the two

A36

iittala

women high enough to be selected will be

appointed. Plainly, this remedy is un-

warranted.

The second adjustment --

rescoring the written test -- arises from

a trilemma faced by the District Court

arising from two undisputed facts. The

Fire Department officials evaluated both

cognitive and physical skills as impor-

tant for successful job performance. In

addition, scores on the written test were

. bunched at the high end, according the

physical test more differentiating power

in the ultimate selection of candidates

than the written test. Since the defen-

dants were entitled to use the distribu-

tion of scores on the physical test in

the selection of applicants, there were

essentially three possibilities for use

of the written test. The first was the

plaintiff's preference for a new written

A37

test of greater difficulty, which would

produce a broader distribution of scores

reflecting the range of cognitive abili-

ties of those taking a more difficult

test. The second was rescoring the writ-

ten test to eliminate bunching of scores

at the high end; of various techniques

available, the District Court,chose gen-

erating by computer a normal distribution

of passing test scores and assigning such

scores randomly to all who passed the

written and physical tests. The third

was the defendants" preference to leave

the written scores unadjusted.

Each approach has some defi-

ciency. Use of amore difficult written

exam would encounter the substantial

argument that cognitive abilities have

been differentiated to a degree greater

than that required for successful job

performance. See Vulcan Society v. Civil

A38

Service Commission, 360 F. Supp. 1265,

1276 (S.D.N.Y.), aff'd in part, remanded

in part, 490 F.2d 387 (2d Cir. 1973).

Though cognitive ability is important for

successful performance as a firefighter,

it does not follow that extremely high

degrees of cognitive ability that might

be measured by a difficult written test

will provide a basis for selecting more

competent firefighters. Use of the Dis-

trict Court's remedy encounters a differ-

ent problem. Those who scored signifi-

cantly better on the written test than

other applicants and thereby demonstrated

somewhat better cognitive ability within

a range of abilities appropriate for

hiring selection will be deprived of the

competitive advantage they earned. More-

over, use of a normal distribution of

scores on the written test may give this

test more differentiating power than the

A39

physical test, since scores on the latter

did not follow a normal distribution

pattern. Use of the defendants' solution

also is not without a deficiency. Leav-

ing the written scores unadjusted accords

enhanced differentiating power to the

scores of the physical test.

Though the facts created a

trilemma, they did not warrant the Dis-

trict Court's remedy of random assignment

of written test scores based on a com-

puter-generated normal distribution of

scores. That remedy unfairly deprives

many male and female applicants of the

enhanced opportunity they achieved by

scoring comparatively better on the writ-

ten test than other applicants. More-

over, it burdens the Fire Department with

the prospect of hiring some applicants

who, though achieving passing scores on

the written test, ranked below other

A40

ji

My

ne = a

q

applicants and thereby demonstrated a

lesser degree of cognitive ability.

Though the one-point differences at the

high end of the score distribution proba-

bly lack significance, see Guardians

Ass'n v. Civil Service Commission, 630

F.2d 79, 100-05 (26 Cir. 1980), cert.

denied, 452 U.S. 940 (1981), the distri-

bution of written scores used by the

defendants spans scores throughout the

range from 70 to 100. Even though scores

were concentrated at the high end, what-

ever differentiating power the written

test has could not be eliminated unless

substantially justified to avoid non-

compliance with Title VII. Such was not

the case. The deficiency the District

Court sought to avoid was according

greater differentiating power to the

physical test than to the written test.

Though that outcome may have placed male

A4l

_—

lenolicents higher on the eligibility list

than they would have been had a normal

‘distribution of written test scores been

used, this consequence did not impair the

validity of the physical test nor that of Z

Exam 1162 as a whole. As discussed

above, the defendants have an entirely

legitimate interest -- a job-related

interest -- in according priority in

hiring to those with the demonstrated

ability to perform firefighting tasks

speedily. Indeed, the defendants would

have been entitled, had they chosen, to

score the written test solely on a

pass/fail basis, using its results only

as a threshold to identify the group from

which applicants would then be selected

on the basis of job-related physical

abilities. The defendants did not vio-

late Title VII by letting the results of

the written test exert some differentiat-

A42

ing power on the final eligibility list

though less than that of the physical

test. |

The third scoring adjustment --

use Of a 2.62 compensation ratio to en-

hance the hiring opportunity of women at

the same combined score on the eligibil-

ity list as men -- is also unwarranted.

Affirmative relief that accords enhanced

hiring opportunities to compensate for

the effects of past discrimination is

available only under limited circum-

Stances. See Local 28, Sheet Metal Work-

ers" tnt’i Ape'an ¢,.. 3.8.0.4. , i086 8. Ct,

3019, 3050 (1986) (plurality opinion);

Kirkland v. New York State Department of

Correctional Services, 711 F.2d 1117,

1134 (2d Cir. 1983), cert. denied, 465

U.S. 1005 (1984). In this case, Judge

Sifton adopted an affirmative remedy

because he concluded that publicity sur-

A43

rounding the Fire Department's attempt to

discharge the plaintiff and another fe-

-male probationary firefighter had de-

terred women who had passed the written

test from returning to take the physical

test. This conclusion was an inference

drawn from the facts that the termina-

tions of the two probationary fire-

fighters occurred shortly before the

September 12-13, 1983, dates during which

women applicants took the physical test,

the terminations received considerable

publicity, and the percentage of those

passing the written test who showed up to

take the physical test was much lower for

women than for men,

In assessing whether this in-

ference of deterrence may support a com-

pensating hiring ratio, we note first the

numerical context in which the ratio has

been imposed. Defendants' projections

A44

indicate that, even with all of the scor-

ing adjustments ordered by the District

Court, Only six women will be ranked high

enough on the eligibility list to be

offered appointments during the life of

the list. Since we have concluded that

the three-band scoring of the physical

test’ (which aided no women) and the ran-

dom assignment of a normal distribution

of scores on the written test are not

warranted, the number of women who will

likely be offered appointment remains at

two, the original estimate when the list

was first assembled. Since the compensa-

tion ratio applies only to increase the

hiring priority of women at the same

score on the list as men, rather than to

give women a higher score, its effect is

extremely limited. It will only enable

the two women likely to be offered ap-

pointment to join the Fire Department

A45

sooner. Thus, this is the rare case

where an affirmative remedy has an ex-

tremely minimal effect. That circum-

stance would appear to reduce both the

objection to the remedy and the need to

adopt it.

Several considerations persuade

us that the use of the affirmative remedy

of a compensation ratio is not warranted

in this case. There is no testimony from

any female who passed the written test

that she was deterred from taking the

physical test by discriminatory conduct

of the Fire Department. In this respect,

the circumstances are quite unlike those

that we previously found sufficient to

Support interim preferential hiring after

Exam 3040 was invalidated. Several women

testified that the difficulty of that

test, later invalidated, had deterred

them from taking it. Moreover, prior to

A46

any publicity concerning the two termina-

tions, the defendants provided a special

training program to assist female appli-

cants in scoring well on the physical

test. The approximately 300 women who

chose not to participate in this program

could not have been deterred by any pub-

licity concerning the two terminations,

since the training program began two

months before the publicity. In addi-

tion, the fact that the defendants made

the training program available and se-

cured foundation funding to support it

militates against a conclusion that an

affirmative remedy is warranted to over-

come a demonstrated hostility to female

candidates. Finally, it is significant

that the defendants have offered to af-

ford female candidates who passed the

written test an additional opportunity to

take the physical test and have further

A47

offered to provide a training program to

enhance their chances of success. If, as

Judge Sifton concluded, some women were

jeterred from taking the physical test

necause of the two terminations, the

jefendants' offer is a more promising

remedy than the 2.62 compensation ratio.

Providing training for the approximately

300 women who did not take the physical

test and giving them a second chance to

take the test offers at least the pros-

pect that some may score high enough to

secure a combined score that will enable

them to join the only two women now high

enough on the list to be appointed. This

is a more useful remedy than simply ad-

vancing the time of appointment for the

two women now likely to be hired.

A48

Conclusion

For all of these reasons, we

affirm the October 8, 1985, and the

February 14, 1986, orders of the District

Court to the extent that they uphold the

validity of Exam 1162; we reverse the

orders to the extent that they require

three-band scoring of the physical test,

random assignment of computer-generated

scores for th? written test, and use of a

compensation ratio; the defendants may

promptly issue and make appointments from

an eligibility list compiled from the

combined scores on the written and physi-

cal tests, without adjustments; that list

shall be supplemented with the combined

scores of any women who have passed the

written test and accept the defendants'

offer to participate in a training pro-

gram and take the physical test again.

A49

The orders of the District

Court are affirmed in part, reversed in

part, and remanded for entry of a revised

order consistent with this opinion.

A50

Brenda BERKMAN, Plaintiff,

V e

The CITY OF NEW YORK et

alia, Defendants.

Mo. CV¥-79-16513

United States District Court

E.D. New York

October 8, 1985

Women's Rights Clinic, Washing-

ton Square Legal Services, by Laura

Sager, and Debevoise & Plimpton, by Rob-

ert L. King, Bart Schwartz, New York

City, for plaintiff.

Booth, Lipton & Lipton, by

Charles J. Hynes, New York City, for

plaintiff-“‘ntervenor Ahrens.

Frederick A.O. Schwarz, Corp.

Counsel of the City of N.Y., by Norma

Kerlin, Elizabeth Dale Kendrick, New York

City, for City defendants.

Colleran, O'Hara & Mills, P.C.,

by John F. Mills, Mineola, and Lipsig,

Sullivan & Liapakis, by Michael N. Block,

New York City, for defendant-intervenor

UFA Local 94.

Salles & Danzig, by Stuart

Salles, New York City, for defendant-

intervenor Firefighters Eligibles Ass'n

List #1162, Inc.

AS1l

AMENDED MEMORANDUM

AND ORDER

SIFTON, District Judge.

This action was commenced in

1979 to remedy alleged discrimination

against women in the selection of New

York City Firefighters in violation of

Title VII of the Civil Rights Act of

1964, as amended, 42 U.S.C. § 2000e et

seg.; the Civil Rights Act of 1871, as

amended, 42 U.S.C. § 1983; the fourteenth

amendment to the United States Constitu-

tion; and the New York Human Rights Law.

Plaintiff sued on her own be-

half and as representative of a class of

women who took and passed the written

portion of the qualifying entry-level

test for firefighters administered in

1977 ("Exam 3040") and, thereafter, ei-

ther took and failed or were deterred

from taking the physical portion of that

test. On July 10, 1980, this Court de-

A52

aa

Ya en ee ee en ee

2>rmined that the action could be main-

2ined by plaintiff on behalf of a class

f women so described.

Trial of the action occurred in

381, and on March 4, 1982, this Court

>termined that Exam 3040 violated Title

II. Berkman v. City of New York, 536

Supp. 177 (E.D.N.Y. 1982), aff'd, 705

.2d 584 (2d Cir. 1983). As a result,

ne Court directed defendants to hire up

0 45 class members found to be qualified

ursuant to a special qualifying examina-

ion to be agreed upon between the par-

ies or, in the absence of agreement, to

e determined by the Court. In addition,

ne Court directed defendants to commence

orthwith preparation of a new qualifying

xam that did not discriminate against

omen. On March 25, 1982, the Court

ntered a supplemental order directing

he parties to cooperate in an effort to

AS?

each an accord as to the new selection

rocedure.

In August of 1982 the court

pproved an agreement between the parties

ith respect to the qualifying test to be

sed as a basis for selecting the class

embers to be appointed to the fire de-

artment pursuant to the Court's prior

ecision. This test was administered to

nterested class members in September

982, and from the class members passing

he examination, some 38 women became

ilrefighters.

Efforts to reach agreement with

‘egard to the content of a new physical

est for all entry-level firefighters

rere less successful. Accordingly, in

ctober 1982, defendants presented a

rroposed new test to the Court for ap-

roval, and in January and February 1983

vidence was presented with respect to

-he validity of the new test. At the

-onclusion of seven days of testimony on

-he subject, the Court adjourned proceed-

ings without a date to permit the parties

-o explore further the possibilities of

arriving at an agreement as to the con-

rents of the new test. By May 1983, with

10 agreement reached, defendants, out of

concern for the age of the list of per-

sons eligible for appointment created

from the previous Exam 3040,! proposed to

Sroceed with the administration of the

new test (Exam 1162), which thereafter

\ccurred over a period of several months.

During this same period of

rime, in September 1983, plaintiff and

Pending the creation of a new exam,

appointments of male firefighters

continued to be made from the eligi-

bility list created from Exam 3040,

with corresponding increases in the

number of positions open to females

who passed the qualifying exam.

AS5

nother class member, Zaida Gonzalez,

ere terminated at the conclusion of

heir probationary period ostensibly

ecause of their poor performance as

robationary firefighters. A motion made

y plaintiff to compel both class mem-

ers' reinstatement was heard by this

ourt in October 1983, which, on December

, 1983, found that the two women had

een subjected to intentional discrimina-

ion on account of their sex and directed

heir reinstatement. Berkman v. City of

ew York, 580 F. Supp. 226 (E.D.N.Y.

963).

Following the completion of the

dministration of the new test, plaintiff

oved in June 1984 to enjoin‘the promul-

ation of a new eligibility list derived

rom it pending the completion of hear-

ngs with regard to the validity of the

xam. On July 6, 1984, this Court en-

A56

ered an order restraining the promulga-

-ion of the eligibles list and appoint-

ents from it without prior court order,

pon a showing of compelling necessity,

mending determination of the validity of

vhe exam. After further efforts to re-

solve the issues presented by the new

‘est were aborted, hearings resumed and

sontinued through the spring of 1985.

Based on the evidence adduced

it the hearings with respect to the new

>xam, I conclude that it comports in

jeneral with the requirements of this

fourt's decision of March 1982 with the

>xception of its scoring which purports

-O distinguish between qualified candi-

lates to a degree of exactness not con-

Yn

sistent with the lack of precision inher-

ant in the exam. Accordingly, defendants

ire authorized to promulgate an eligibles

-lst created from Exam 1162 and to make

A57

ippointments therefrom in the manner set

‘orth below. What follows sets forth the

‘indings of fact and conclusions of law

yn which these determinations are based

is required by Rule 52(a) of the Federal

tules of Civil Procedure.

1. Standing. The first issue

‘equiring consideration is the standing

1§ plaintiff to seek a determination that

sxam 1162 does not comply with this

‘ourt's orders directing the preparation

ind use of a new physical exam for entry

evel firefighters which does not dis-

‘riminate against women. I conclude

Mlaintiff has standing.

The decree which plaintiff

seeks to enforce is one she obtained in

yrotracted litigation in which she has

‘onsistently taken an active role both to

secure her own rights and those of other

‘lass members. No suggestion has been

A58

ade that she lacked standing to obtain

he portions of the decree she now seeks

o enforce, see Allen v. Wright, [468

S$. 737,)] 104 S$. Ct. 3315 (1974);

ilmore v. City of Montgomery, 417 U.S.

56, 570 n.i0 (1974). Nor has any argu-

ent been advanced that this Court lacks

he jurisdiction retained in the original

ecree "to secure compliance with [the

ourt's original] order .. . [and] for

onsideration of such further interim or

emedial relief as may be necessary and

ppropriate." See, e.g., Green v. County

chool Board, 391 U.S. 430, 439 (1968);

uardians Ass'n of New York City Police,

nce. v. Civil Service Commission of New

ork, 630 F.2d 79, 109 (2€ Cir. 1960),

ert. denied, 452 U.S. 940 (1981); Davis

Board of Education, 674 F.2d 684, 680

8th Cir.), cert. denied, 459 U.S. 881

1982).

AS9

Both objectively and subjec-

ively, plaintiff has demonstrated a real

nd concrete interest in assuring that

he and her fellow class members have a

on-discriminatory work environment in

hich to carry out their functions as New

ork City firefighters, an environment

hich would be substantially undermined

f the next class of women applicants for

he position of entry-level firefighters

re deprived of an opportunity to join

he ranks because of their sex.

As already noted, there are now

ess than 40 women firefighters in New

ork City out of a total of approximately

en thousand. Because of the nature of

he department's organization, no more

han one women firefighter has been as-

igned to any firehouse. As also previ-

uSly noted, plaintiff herself and at

east one other female firefighter were,

A60

after their appointment, subjected to

intentional discrimination based on their

sex in the all-male firehouses to which

they were assigned. See Berkman v. City

of New York, supra, 580 F. Supp. 226.

Thus, plaintiff and the class she repre-

sents face the prospect of losing much if

not all they gained if, as a result of

discrimination in further hiring, they

are left as an insular minority of women

firefighters who "slipped through the

[Department's] allegedly discriminatory

screening practices." See Gray v. Grey-

hound Lines East, 545 F.2d 169, 173, 175-

76 (D.C. Cir. 1976); Chicano Police Offi-

cers' Ass'n v. Stover, 526 F.2d 431, 437

(10th Cir. 1975), vacated on other

grounds, 426 U.S. 944 (1976), standing

artt‘'d,. S22 F.2d 918, 921 (10th Cir.

L977}.

A6él

Contrary to the argument of

defendants and intervenors, this is not a

case like Allen v. Wright, supra, 104

S. Ct. at 3331, in which a plaintiff

asserts no more than the stigmatic injury

which she shares with any other woman

seeking to work for the New York City

fire department. Here, plaintiff has

suffered injury not only in being denied

appointment by virtue of a prior dis-

criminatory entrance exam, but thereafter

by discrimination in the essentially

male-only workplace in which she func-

tions, resulting in her termination. By

her efforts to ensure that Exam 1162 is

non-discriminatory, she seeks to ensure

that she will prserve the gains she has

won aS a result of the earlier trial.

The presence of increased numbers of

qualified women in the workplace will

demonstrate, in a fashion in which no

A62

udicial decree can be expected to, that

ostility towards women firefighters is

isplaced and furnish witnesses ready and

illing to speak out against continued

iscrimination by defendants and their

mployees.

2. Disparate Impact. This

ourt's earlier decree required defen-

ants to prepare a new physical exam for

ntry-level firefighters which did not

iscriminate against women. Accordingly,

t iS appropriate to consider whether the

esults of the exam present a prima facie

ase of sex discrimination and, if so,

hether that prima facie appearance of

iscrimination may be explained by the

equirements of the job. See Griggs v.

uke Power Co., 401 U.S. 424, 432 (1971);

lbemarie Paper Co. v. Moody, 422 U.S.

05, 425 (1975); Guardians Ass'n, supra,

30 F.2d at 88.

A63

Here, the undisputed facts

concerning the hiring that may be ex-

pected to result from the administration

of Exam 1162 demonstrate a disparate

impact on women directly attributable to

the physical portion of the facially

neutral test instrument because of the

statistically disproportionate results

for men and women.

The written portion of Exam

1162 was administered on September ll,

1982, to 31,421 candidates of whom 28,946

identified themselves as males and 566

identified themselves as females. 30,474

candidates or 98.58 percent passed the

test, representing 98.65 percent of the

male applicants (28,559) and 97.8 percent

of the female applicants (554). In this

connection, it bears noting that, despite

a determination that the cognitive abili-

ties tested by the written portion of the

A64

PE FAIS YOO!

xam should be weighted equally with the

esults of the physical exam in determin-

ng which applicants were most qualified

o be firefighters, the written exam

ailed lamentably to distinguish between

he varying cognitive abilities of the

pplicants passing the exam. 83.21 per-

ent of the candidates received a score

f£ 90 or higher; 66.68 percent received a

core of 94 or higher; the median score

as between 96 and 97. 9,788 candidates

eceived a score of 98 or above.

The physical portion of Exam

162 was administered over several months

o those candidates passing the written

est with all female applicants being

ested on two days, September 12 and 13,

983. Unfortunately, the testing of the

omen applicants coincided with extensive

ublicity concerning discrimination on

he job against plaintiff and her fellow

A65

lass member Gonzalez, which eventually

esulted in what this Court found, after

earings, to be retaliatory discharges on

eptember 21, 1983 of the two women.

As occurred with respect to the

rior physical exam, 3040, a surprisingly

mall proportion of the women passing the

ritten exam presented themselves to take

he physical exam. Thus, while 22,255

en, or 77.93 percent of those eligible,

ook the physical exam, only 165 women,

r 29.78 percent of the eligible women,

id so. Had women candidates eligible to

ake the exam presented themselves in the

ame proportion as did their male coun-

erparts, 432 women, rather than 165,

Ould have taken the test.

Out of the total of 21,313

andidates, both men and women, taking

hw

he physical exam, 21,236 men and 77

omen passed it. The pass rate for men

was 95.42 percent; the pass rate for

women was 46.67 percent. Thus, the pass

rate for women on the physical exam was

less than 80 percent, i.e., less than

four-fifths of the pass rate for men, and

the pass rates for the two groups were

separated by at least 27 standard devi-

ations. Accordingly, it is clear that

the physical exam had a disparate impact

on women. See Castenada v. Partida, 430

30S, 482, 497 n.17 (1977): EEOC Uniform

Guidelines on Employee Selection Proce-

dures (the "Guidelines"), 29 C.F.R.

§ 1607.4(D).

3. Relation to the Job. As

was the case in the trial of the underly-

ing action, the parties have not at-

tempted to prove all that the job of

firefighting in New York City consists of

SO as to compare it with the test to

establish whether the test is, in fact,

A67

job related. Instead, the parties have

concentrated their efforts on the issue

of test preparation in order to argue

whether the methods of test preparation

engaged in by the parties were or were

not of the sort from which a job-related

test could be reasonably expected to

result. The distinction is significant

pecause in the case of Exam 1162, unlike

Exam 3040, all parties to a greater or

lesser extent participated in the test

oreparation and did so with substantial

amount of job knowledge and sophistica-

tion about job testing, acquired as a

result of months of involvement in this

litigation. Plaintiff's efforts to mea-

sure the validity of Exam 1162 solely by

reference to defendants' compliance with

iA variety of standards for the prepara-

tion of neutral tests, including the EEOC

suidelines, the American Psychological

A68

Association's Standards for Educational

and Psychological Tests (1974) (the "APA

Standards") and its Principles for the

Validation and Use of Personnel Selection

Procedures (2d ed. 1980) (the so-called

"Division 14 Principles") ignores the

very substantial role she and her experts

and attorneys played in the preparation

of Exam 1162. And, while plaintiff

points to the drawbacks of preparing Exam

1162 in the context of ongoing litigation

in terms of the antagonism she and women

applicants for employment faced as a

result of her role in bringing to light

sex discrimination in the fire depart-

ment, she fails to place proper emphasis

on the opportunities she enjoyed as a

result of the adversarial process to

prevent discriminatory impulses from

realizing themselves in any blatant way

in the process of test preparation.

A69

As plaintiff concedes the

qualifying test pursuant to which she and

a sizeable portion of the class inter-

ested in becoming firefighters in fact

did so “established the framework for

Exam 1162." Given the remarkable degree

of success with which the class members

performed on the qualifying test and the

opportunities afforded plaintiff to im-

prove upon it in developing a new en-

trance exam, it is difficult to accept

plaintiff's position that so much of Exam

1162 as derives from the qualifying test

is not job-related and valid.

The qualifying test proposed by

the City to this Court on May 25, 1982,

consisted of two parts, a simulation of

engine company tasks and a simulation of

ladder company tasks, separated by a 5-

Minute rest interval. The engine company

Simulation consisted of two tasks: drag-

A70

ging a length of 3-1/2 inch hose and

lifting a roll of 2-1/2 inch hose from

the ground and carrying it upstairs. The

ladder company simulation consisted of

five tasks: raising a portable ladder,

climbing a preset portable ladder with a

hook, entering a window and climbing

stairs to the fifth floor, hitting an 80

pound rolled hose with an 8 pound maul

down the length of a 6 foot table, and

dragging a 145 pound dummy around a

marked course. The City proposed a cutoff

time of 4 minutes, 9 seconds to complete

the test.

There can be little doubt that

the qualifying test was developed under

the pressures of litigation without great

attention to the guidelines, standards

and principles available to test prepar-

ers proceeding on amore leisurely basis,

and, yet, there is little reason to think

A71

that the test proposed did not, in the

main, adequately test for the important

behavioral requirements of the job.

For one thing, the qualifying

test, unlike Exem 3040, did not purport

to test for the abstract physical endow-

ments necessary to do firefighting work.

Instead, it was founded on tasks in many

important respects like those engaged in

by firefighters on the job.2? Whatever

the merits of a test of this sort in

situations in which only one or none of

2 In fact, the principal source of the

City's proposed test appears to have

. been a criterion test used by the City

of Philadelphia to measure performance

by incumbent firefighters. While

there are, of course, dangers in using

a job performance measure to choose

between applicants for entry-level

employment, those dangers appear to

have been in the main eliminated here

because of the simplicity of the test

as modified and the familiarization

program afforded applicants prior to

the test's administration.

A72

the parties has previously studied the

important work behaviors representative

of the job, in a situation such as that

presented here in which all involved had

been studying that subject exhaustively

as a result of ongoing litigation, a job-

sample test had the advantages of both

facial validity (securing acceptance of

test results both from those who take it

and those for whose benefit it is taken)

and recognized content validity for those

who have become job experts in the course

of ongoing litigation.

In fact, the City's proposed

qualifying examination was speedily con-

tent-validated in this sense shortly

after its initial presentation. Plain-

tiff's expert, Dr. Raymond Mendel, after

a week of revisiting City firehouses and 7

observing job behavior with particular

attention to the tasks identified as

A73

ceil 5 eee adiote ~~ -

er ag SS <aieahe Jer byw «

| important in the City's proposed test,

| criticized several aspects of the City's

‘proposal including the forcible-entry

simulation, the rolled-hose carry, and

the pace at which the test was to be

performed. As a result of these criti-

cisms, the parties agreed to modifica-

tions of the test by having the candi-

- dates lift the 2-1/2 inch rolled hose

from shoulder height, rather than from

the ground; reducing the weight of the

rolled hose in the forcible-entry simula-

tion from 80 to 60 pounds; and increasing

the length of the rest period from 5 to

7-1/2 minutes.

The qualifying test became Exam

1162 with two additions and two modifica-

tions. A wall vault and hose pull were

added. In addition, the 7-minute rest

interval was converted to a 2-minute rest

interval. Finally, instead of being a

A74

Iqualifying test rated on a pass/fail

‘basis, Exam 1162 became a competitive

= rated on the basis of a candi-

ldate's time to complete the series of

evolutions.

The wall event originally pro-

posed by the City was the 5 foot wall

climb which formed the crucial part of

Exam 3040 and had been the subject of

l extensive Criticism in connection with

the proceedings leading to the invalida-

tion of that exam. Accordingly, the

defendants not surprisingly acceded to

plaintiff's demand that the height of the

wall be reduced:to 4-1/2 feet in order to

conform more closely to the tasks of

firefighters in climbing over obstruc-

tions in the course of responding to a

fire. At the same time, defendants also

acceded to plaintiff's demands that a

Somewhat duplicative walk through or over

‘tires, initially proposed as an addi-

;

;

‘tional test, be eliminated, in part at

least because of plaintiff's argument

-that such a test, drawing on the experi-

ence of men in the military and in train-

ing for competitive athletic contests,

would adversely impact women who lacked

such a background.

The hose pull was added because

it had been part of the set of job per-

formance evaluators used in Philadelphia

from which other essential elements of

the qualifying test had been drawn, which

had been eliminated only because of a

misunderstanding on the part of a repre-

sentative of the City's Department of

Personnel as to the manner in which a

hose pull was performed by firefighters

in New York City. According to credible

testimony of Dr. Phillip Siegel of the

Jepartment of Personnel, the hose pull

A76

—————

‘cause of his understanding that, when the

task of pulling an uncharged length of

hose to an upper story of a building over

a hose roller attached to a window or

roof was performed in New York City, it

was done by two or more firefighters

working together. When this misunder-

standing was corrected, the hose pull

using a hose roller was restored to the

series of evolutions used in Philadelphia

to measure job performance. While plain-

tiff correctly faults defendants for the

somewhat ad hoc manner in which the hose

roller subtest was added and argues that

its adverse impact on women was not ade-

quately studied, she does not offer any

persuasive evidence to answer defendants'

proof that the task does, in fact, re-

flect an important firefighting activity

and calls upon physical capacities,

A77

’

namely, upper body strength, required by

la number of other firefighting tasks not

Lotherwise tested in the battery of physi-

cal tests developed.;3 Moreover, plain-

tiff's complaints concerning the inade-

quacy of the job analysis performed by

the City as a basis for adding the hose

pull are considerably undercut by her

acknowledgement that the subtest had its

origin in the same series of job evalu-

ators from which the other subtests re-

| flecting a representative group of impor-

tant job tasks were selected. Nor is the

subtest as actually administered, after a

familiarization program, of such complex-

ity or difficulty as to justify fears

> For example, it appears undisputed

that overhauling and pulling of ceil-

ings form an important part of fire-

fighting in New York City and call

upon reserves of upper body strength

not otherwise tested in Exam 1162.

A78

—

ae

ithat it tested learned behavior as op-

posed to a candidate's capacities to be

trained to be a New York City fire-

fighter.

The principal ground for con-

tention between the parties relates to

their differing approaches to an issue

_ which first arose in connection with Exam

3040, namely, the issue as to the role of

speed versus pacing in the performance of

firefighting or, to put it another way,

the need for anaerobic as opposed to

aerobic energy in performing important

firefighting tasks. On this issue, this

Court had previously rejected the City's

position that firefighting is an all-out

sprint event performed at maximal heart

rate, calling on reserves of [an]Jaerobic

A7S

-satnlll

‘energy in connection with Exam 3040,4 and

plaintiff's arguments that defendants

failed to develop an adequate job analy-

sis with respect to this issue carry

considerable force.

In its opinion invalidating

Exam 3040, this Court found:

"Few jobs making large physical

demands, least of all firefighting,

are properly performed at maximum

speed or at the limits of one's

strength-or endurance. As [plain-

tiff's] witnesses testified, what

must be identified are not those who

are strongest or fastest but, in-

stead, those who, with the benefit

of training in pacing or because of

their natural capacities of endur-

ance, can perform the punishing

tasks of firefighting as they are

actually required to be performed.

According to these witnesses, fire-

* As previously noted, the facts that

the qualifying exam included a 7-

minute rest period and was rated on a

pass/fail basis militate-against any

finding that the successful perfor-

mance of plaintiff and other class

members on the qualifying exam demon-

Strates that all-out speed as opposed

to pacing is of the essence in fire-

fighting.

A80

fighting takes its toll, not as a

result of failures of maximum

strength or speed, even at critical

moments, but rather through the

physical demands extending over long

periods of time which necessitate

paced performance at less-than-

maximum levels. This explanation

makes sense of a number of otherwise

puzzling features of firefighting,

namely, the ability of firemen to

continue to do their work compe-

tently over an entire working career

and the results of physical testing

of incumbent male firemen which show

that on a variety of measures of

maximum physical capacity firemen

rate no better than the average

American male. It also makes sense

in terms of the recognized dangers

of firefighting and their unpredict-

ability which, as numerous witnesses

testified, make hazardous in the

extreme performance at top speed or

at the limits of strength or capac-

ity. Not only does maximal perfor-

mance compromise the firefighter's

ability to pace performance over the

long periods of time during which

physical demands are being made on

the body, in addition, the very

unpredictability of fire and the

instability of burning structures

call upon qualities of foresight,

endurance, and pacing not examined

by tests of maximum physical

strength."

Berkman v. City of New York, supra, 536

Supp. at 212 (footnotes omitted).

A81

espite these findings and this Court's

tated readiness to hear additional proof

E |

‘on the issue, defendants failed lamenta-

spp ssasci

ri ia

bly to establish a basis for the emphasis

Laced on maximal strength and speed in

Exam 1162.

Three separate aspects of the

physical portion of Exam 1162 are princi-

pally responsible for the test's emphasis

on speed and anaerobic energy as the

distinguishing cha#wacteristics of appli-

cants meriting selection as a New York

City firefighter: first, the notice to

applicants that performance would be

measured on time to complete the physical

tests; second, the brevity of the test;

and, third, the relatively narrow banding

of the ranks from which appointments will

De made. With respect to these three

notly contested aspects of the exam,

‘defendants performed an inadequate job

Ef

;

A

~

‘analysis.

The principal basis for the

exam's emphasis on speed was a question-

naire distributed to a small group of job

experts on October 18, 1982. Since de-

fendants had already, in June 1982, dis-

tributed a job-analysis questionnaire to

approximately 2,000 firefighters which

could have but did not address the key

issue Of pacing, and since the distribu-

tion of the October questionnaire fol-

lowed rather than preceded the defen-

dants' application to this Court in Octo-

ber 1982 for approval of Exam 1162 ona

rank ordered time to complete basis,

there is considerable substance to plain-

tiff's contention that the questionnaire

was conceived of as an effort to ratio-

nalize a decision to emphasize speed and

anaerobic energy, rather than as a neu-

A83

teral inquiry to determine the role of

Jpacing in the performance of actual fire-

ifighting tasks.

} However, quite apart from the

‘circumstances giving rise to the distri-

Ibution of-the questionnaire, its content

hardly permits a conclusion that it con-

stituted a neutral inquiry into the ques-

tion of the pace at which firefighting is

actually performed. Instead, the ques-

tions appear designed to lead respondents

to answers that are supportive of defen-

dants' oft-expressed contention that

firefighting tasks are performed at top

speed and at maximal energy levels.

Thus, rather than ask the respondents to

describe the pace (or even speed) at

which various firefighting tasks are

performed, the questionnaire describes

the proposed new physical test for entry-

level firefighters and then baldly asks

A84

a

whether firefighters performing those

tasks should complete them in the "fast-

est possible time," assuming only that

they are not hindered by smoke or ob-

structions. Quite apart from the dangers

of alerting respondents to the signifi-

cance of their answers in terms of con-

structing a rating system for a new phys-

ical exam and the ambiguity of the phrase

"fastest possible time” in terms of what

factors, if any, other than smoke and

obstructions should be taken into account

in framing an answer, the leading nature

of the question quite obviously suggests

its answer, and not surprisingly the

largest number of respondents answered

"yes." Nevertheless, the obvious quali-

tative common sense of a number of the

comments offered by those able to resist

the invitation to respond affirmatively

should have indicated to a neutral ob-

A85

‘server both the ambiguity of the question

= the need for further inquiry. Thus,

among the responses from incumbent fire-

fighters (on a questionnaire which did

not even leave space for comments) were

the following:

"What is considered maximum

possible speed? On the fire scene

most is done walking, not running,

for safety reasons"; "Hose stretch-

ing at fire operations is never

performed at maximum speed (or to

point of exhaustion) because the

truly arduous task begins at the

apartment door"; "If operating at

maximum speed one would tend to get

emotional and emotions could inter-

fere with clear thought"; "(FJire

operations require speed, tempered

with safety and corrections of ac-

tions. The terms fastest possible

time and maximum possible speed seem

to represent an overemphasis on

speed.”

Essentially the questionnaire

responses which form the basis for the

exam's emphasis on speed and anaerobic

activity do no more than reveal the obvi-

ous, that all else being equal everyone

would like fires to be extinguished and

A86

victims extricated in the shortest time

possible given the constraints of the

job. However, it is precisely the ques-

tion as to what the constraints of the

job are that remained unexplored, with

the exception of smoke and obstructions

on stairs, together with the effect of

those constraints on the speed with which

firefighters actually do their work. The

defendants' failure to explore in a neu-

tral and above-board fashion this well-

identified issue can only confirm this

Court's earlier conclusion that a test

that places undue emphasis on anaerobic

energy and speed invidiously discrimi-

nates against women.

It 1S also the case that defen-

dants failed to pay reasonable attention

in constructing the test to the degree of

emphasis placed on anaerobic energy by

the manner in which the test was adminis-

A87

eRe cn nn nee ean env ee

’

‘tered. Essentially, the physical test

consisted of two bouts of violent physi-

cal exercise which applicants were en-

couraged to perform at maximum speed (and

which, if performed at a pace meriting

selection according to the City's rating

scheme, had to be performed in approxi-

mately 90 seconds) separated by an en-

forced 1 minute 40 second recuperation

period. As plaintiff points out, the

effect of inserting the rest period be-

tween two episodes of anaerobic exercise

converts the test into the equivalent of

"wind sprints" in which persons who ex-

haust themselves by a maximum expenditure

of anaerobic energy on the engine company

Simulation are given a recovery period

permitting them to rely again principally

On anaerobic energy to complete the lad-

der company portion of the physical exam.

Defendants appear never to have consid-

4 A88

Bored that a test taking the same time to

‘administer, but filled completely with

Lt renuous physical activity, might not

lonly resemble more closely the level of

physical activity actually required of

firefighters at fires, but also might

enforce pacing on the candidates, giving

some reading of the candidate's aerobic

energy. In structuring the test, defen-

dants appear to have ignored not only

this Court's prior findings concerning

the role of aerobic energy in performing

firefighting functions but also the rec-

ommendations of the same expert whose

Philadelphia evaluators appear to have

been the principal source of both the

qualifying exam and Exam 1162 that the

| A839

a

‘covery period.’

test last 5 to 10 minutes without a re-

What has been said concerning

the demands of firefighting should not be

taken as a finding that firefighting is

entirely an aerobic activity, making no

demands for the expenditure from time to

time of anaerobic energy at maximal oxy-

gen levels, but only that defendants'

exam, including in particular their pro-

posed rating system, places too great an

emphasis on the anaerobic capacities of

candidates with too little regard for

those aspects of firefighting that call

> Significantly, Chief Homer Bishop

testified that firefighters need at

least 5 to 10 minutes to get a one-

room fire “under control," not count-

ing additional time needed for over-

hauling and take-up operations. Other

evidence established that the average

time spent by firefighters at a "good

job" is 40 to 60 minutes with a range

from 25 minutes to 2 hours or, in

unusual cases, 7 hours.

A390

jupon prudent, paced performance. Ironi-

wi Tali

‘cally, this finding is confirmed by de-

/fendants’ criterion study which shows a

lower correlation between raw scores

| cpiewed on the physical test and the

performance of persons taking the test as

evaluated by defendants' criterion mea-

sures than when a banding system was

» used, a subject discussed more at length

below.

Finally, defendants appear to

have paid singularly little attention to

the emphasis placed on anaerobic energy

by the narrow thirty-second banding of

the scoring system selected and its ex-

traordinary adverse impact on women.

serene

Indeed, the scoring system selected by

the City, given the realities of the

hiring process, appears to have virtually

assured that no women would be appointed

from the eligibility list created for

A91

Exam 1162, despite the substantial number

of women who passed the exam.

Based on past experience with

other eligibility lists, defendants pre-

‘dict that they can reasonably expect to

hire only some 2,800 firefighters from

the total of 21,313 candidates who passed

the exam. Again, based on past experi-

ence, the City predicts that offers of

employment may be expected to be extended

to approximately 6,500 applicants on the

list in order to find the 2,800 candi-

dates needed to fill the fire depart-

ment's needs over the expected life of

the eligibility list. To reach these top

6,500 candidates using the rank order

proposed by the City, the City would get

no farther down the list than to those

candidates with a combined score on the

written and physical tests of 94.5 or

above. There are, however, 7,344 persons

A92

is the current list with a score of 94.5

or above, and, of this group, only two

are women. Accordingly, the City's rank

ordering decision appears of crucial

significance in determining the adverse

impact of the physical exam on women.

This Court's earlier decision

directed defendants in their preparation

of a new exam to validate the exam in

general- accord with the Uniform Guide-

lines including the Guidelines' require-

ment that alternative measures with equal

validity but with less adverse impact on

the protected group be explored and used

where available. 29 C.F.R.

§ 1607.14(B)(9). Accordingly, it is of

particular significance that the alterna-

tive three-band scoring system proposed

Dy plaintiff shows greater validity than

the seven-band rating system proposed by

the City. Use of the three-band rating

A393

4

isystem accordingly appears required by

defendants' own criterion measures® as

well as by the failure of defendants in

é Plaintiff launches a considerable

attack on the defendants' criterion

measures, relying principally on her

concerns that the "highly polarized"

atmosphere prevailing within the de-

partment at the time the criterion

studies were performed and the small

sample of women available within the

department to be evaluated render the

results of the criterion studies sus-

pect or worse. In ideal circum-

Stances, certainly such concerns are

well-founded: a more neutral atmo-

sphere and a larger sample of female

firefighters would, of course, be

desirable to ensure reliability of the

City's criterion studies. However,

test preparation and the application

of the Guidelines must go forward in

the real world including situations

such as that presented here where a

charged and contentious atmosphere

results from ongoing litigation and

the Limited number of female incum-

bents results from the relatively

recent interest of women in firefight-

ing work. What the Guidelines enjoin

are reasonably competent efforts to

prepare a non-discriminatory exam, not

perfection. Plaintiff's arguments

that the criterion studies were delib-

erately rigged to validate Exam 1162

are not borne out by the evidence of

record.

A94

-

Itheir job analysis and test preparation

to give due consideration to the demands

made on aerobic energy in performing

firefighting tasks. Finally, the selec-

tion of firefighters from among broader

rating bands will serve to redress the

undue emphasis placed on the physical

portion of Exam 1162 as a result of the

extraordinarily indiscriminate written

portion of the exam.

There remains for consideration

what steps, if any, should be taken be-

cause of the extraordinary fall off of

interest on the part of women candidates

who passed the written exam when called

on to present themselves for physical

testing. Had women passing the written

exam presented themselves for the physi-

cal exam in the same proportion as their

male counterparts who passed the written

test, some 432 women would have taken the

A95

Physical exam as opposed to the 165 who

kctually did so. Here, even more obvi-

busly than was the case with respect to

xan 3040, it may be inferred that con-

i inued discrimination within the fire

department in the form of highly publi-

Icized events leading to the termination

of plaintiff and class member Gonzalez

served to discourage women applicants

from joining the fire department ranks.

For this consequence of the fire depart-

ment's continued discrimination against

women some remedy appears appropriate.

While counsel for defendants

has proposed offering the women deterred

from taking exam 1162 a new chance to do

so, a number of considerations weigh

against this course of action. First, a

substantial time lapse has occurred be-

tween the time the physical portion of

Exam 1162 was administered to women and

A96

; jnow, so that age and lack of conditioning

will undoubtedly continue to deter a

substantial number of women once inter-

“ested in taking the test from taking it

fat this time. Equally important, nothing

| defendants have done in the interim since

September 1983 has served to allay the

fears generated at the time that the fire

department has failed to correct the

-intentional discrimination against women

in its ranks which this Court found ex-

isted in its decision restoring plaintiff

and class member Gonzalez to the ranks.

Finally, no women who passed the written

exam but did not take the physical have

come forward to express an interest in

this alternative. Accordingly, it seems

more appropriate to consider the inter-

ests of plaintiff and the class she rep-

resents, namely, the group of approxi-

mately 38 who are currently women fire-

‘fighters, in fashioning a remedy that

affords them colleagues who are committed

A. becoming firefighters and not easily

akcwee by the department's failure to

Ffeliminate discrimination in the ranks.

| With these considerations in

mind, it seems appropriate that, in the

random selection process within each of

the ranks to be established pursuant to

this decision with respect to the physi-

cal portion of Exam 1162, each woman who

passed the exam will be afforded a some-

what greater chance of selection than her

male counterparts. This will reflect the

likelihood that, had 432 women presented

themselves to take the exam, the number

of women passing the exam would presum-

ably have increased correspondingly from

77 (out of 165) to 201 (out of 432).

_ Assuming that the 124 additional women

would have been spread over the ranks in

A98

i: pattern corresponding to the 77 women

Juho actually took the exam and passed,

Teach woman on the eligibility list should

Ibe afforded an increased opportunity over

ia equally ranked male to be selected in

a ratio of 2.62 to l.

The parties have apparently not

explored the impact on women of using a

three-band system with respect to the

physical portion of Exam 1162 in combina-

tion with the results of the extraordi-

narily indiscriminate written exam.

Since the written exam fails to make

meaningful distinctions between various

candidates’ cognitive ability, it may be

that rating the written exam on a

pass/fail basis or in bands will result

in a test with equal validity but less

adverse impact on women. The parties are

accordingly directed to address them-

selves to this issue and to settle an

A99

ae

=.

@prder on ten days notice together with

B upporting briefs and, if necessary,

| #dditional evidence that is consistent

ith this opinion.

In summary, defendants have

ay

Constructed and administered a physical

*

:

-

examination that tests for the important

physical capacities necessary to be a

successful firefighter. However, the

Loring system used by defendants places

undue emphasis on certain physical capac-

ities not required for the job. Accord-

Bingly, defendants are directed to develop

-anew scoring sytem, using the three-band

“division of the raw scores on the physi-

cal portion cf Exam 1162 proposed by

Bplaintiff in combination with the results

of the written portion of the exam scored

on a basis that has equal or greater

validity than the present scoring system

; and the least adverse impact on women.

A100

selection of women passing Exam 1162

Busing this scoring system shall compen-

A cate for the impact of defendants' dis-

“criminatory conduct in deterring quali-

B tied women candidates in the manner out-

lined above.

The clerk is directed to mail a

P copy of the within to all parties.

SO ORDERED.

| Dated: Brooklyn, New York

October 8, 1985

s/Charles P. Sifton

United States District Judge

Al0l

PAUNITED STATES DISTRICT COURT

| JEASTERN DISTRICT OF NEW YORK

> -_ — _

— BRENDA BERKMAN, etc.,

#4 Plaintiff, :

CV-79-1813

- against - :

ORDER

CITY OF NEW YORK et alia,

Defendants.

Upon the findings of fact and

conclusions of law set forth in this

court's Amended Memorandum and Order

dated October 8, 1985, it is hereby

| ORDERED:

: 1. Defendants, their attor-

-neys, officials, agents, servants, em-

| ployees, and attorneys, and their succes-

sors and all persons in active concert or

-participation with them or any of them

‘hereinafter collectively referred to as

"defendants") are hereby permanently

A102

Senjoined from publishing or promulgating,

‘sending notices of appointment to, or

Staking any steps to appoint, any persons

to the job of entry-level firefighter on

ra

the basis of any eligibility list derived

| from Exam 1162, except pursuant to this

‘order.

ve "stil Nag EPA ene a ‘sd foabaisbic: Vs neue shes Sar eg ges 5 hey

¥ ne a big ut

2. Defendants shall forthwith

promulgate an eligibility list from the

D results of Exam 1162 and make appoint-

ements therefrom, as needed, in the manner

™ forth below:

(a) Defendants are directed to

develop a new scoring system using

the three-band division of the raw

scores on the physical portion of

| Exam 1162 proposed by plaintiffs on

. June 20 and 21, 1985. This scoring

system shall place in the top band

("Band A") candidates who received a

100 or 95 on the physical test; in

A103

DARLENE? eS

the second band ("Band B") candi-

dates who received a 90, 85 or 80;

and in the third band ("Band C")

candidates who received a 75 or 70.

Candidates in Band A shall be as-

Signed a score of 95.4; candidates

in Band B shall be-assigned a score

of 87.6; candidates in Band C shall

be assigned a score of 73.6.

(b) A normal distribution of

test scores for the written portion

of Exam 1162 shall be computer gen-

erated and randomly assigned to all

candidates who passed the written

and physical portion of the examina-

tion. These randomly assigned

scores shall be combined with the

results of the three-band scoring of

the physical portion of Exam 1162

described above.

A104

(c) Selection from this new

4 eligibility list shall occur in the

a following manner: Female applicants

q on the list shall be afforded an

L increased opportunity over equally

. ranked males on the list to be se-

¢ lected pursuant to a ratio of 2.62

k to 1. This ratio shall be known as

the compensation ratio. To apply

this compensation ratio, the defen-

dants shall divide the number of

i a Wii lt

aman

Al ghadoah

eligible men assigned a particular

score on the list by the number of

eligible women receiving the same

score, times the compensation ratio

fab aig peeree

eo Rl PRE RE AR WO.

of 2.62. The quotient of the cal-

—

PEE

culation shall determine how many

Absa

men receiving a particular score on

Mp sths 2

we Ea Bi

the examination may be selected

before the next woman is selected.

Fe ee Tee

DAS ROA Bek RTM AL EO

This ratio shall be known as the

% A105

selection ratio. Where men and

women receive the same score, a

woman shall be selected first, and

the number of men determined by the

selection ratio shall be selected

thereafter. This process shall be

CN ee ee

repeated until the score is ex-

hausted, and the next score shall be

treated in the same manner, provided

Aiea 2 tad certian hc RR AS

there is [sic] also women receiving

that score.

3. To ensure that the ratio of

| male to female candidates appointed as a

s result of Exam 1162 is the same as if a

F*non-discriminatory scoring plan had been

'in operation since the defendants' use of

Ethe results of Exam 1162 began, the eli-

F gibility list described above shall be

| developed including the names of candi-

“dates already hired. All female candi-

ey

“dates who would have been heretofore

A106

“appointed from the eligibility list cre-

“ated pursuant to this order, had such

list been in effect at the time candi-

available openings for appointment of an

“entry-level firefighter in the order in

which their names appear on the eligibil-

ity list created pursuant to this order.

BRACE AAR TERE AS.

‘In order to ensure that no male candidate

or Luana

Spreviously appointed from the results of

B this Court loses his position as a result

Dof this order, all male candidates previ-

‘ously appointed based on the results of

such examination shall be deemed to have

"been entitled to priority of appointment

'with respect to any higher ranked male

F candidate (but not with respect to any

* higher ranked female candidate) on the

, list created pursuant to this order.

A107

4, The Court shall retain

sation of such further interim or remedial

| -elief as may be necessary and appropri-

late, and for consideration of any appli-

Seat ton by plaintiff for attorneys' fees

‘and expenses and for costs, pursuant to

42 U.S.C. § 2000e-5(k).

-The Clerk is directed to mail a

copy of the within to all parties.

SO ORDERED.

Dated: Brooklyn, New York

February 14, 1986

s/ Charles P. Sifton

United States District Judge

:

K

E Al08

Rad women, Plaintiff-Appellee,

— v » —

‘The CITY OF NEW YORK; Edward Koch, indi-

“widually and as Mayor of the City of New

Work; New York City Fire Department;

Augustus Beekman, individually and as

‘Fire Commissioner of the City of New

"york; New York City Department of Person-

“nel; Michael Nadeo, individually and as

“Director of Personnel of the City of New

‘york; Thomas Roche, individually and as

'former Director of Personnel of the City

"of New York; Civil Service Commission of

s the City of New York, Defendants-

Appellees.

Uniformed Firefighters Association

Local 94, Defendant-Intervenor-Appellant.

No. 526. Docket 82-7654.

United States Court of Appeals,

Second Circuit.

Argued Oct. 8, 1982.

Decided March 29, 1983.

/Norman Eric Teitler, Rego Park, N.Y., for

defendant-intervenor-appdellant.

Laura Sager, New York City (Women's

Rights Clinic of the Washington Square

uegal Services, Inc., Robert L. King,

pJeffrey N. Drummond, Debevoise &

A109

Plimpton, New York City, on brief), for

P'plaintiff-appellee.

“wBefore FRIENDLY, NEWMAN, and KEARSE,

Circuit Judges.

a Was epee

&

yy

Li

2

na

*

-¥

y

KEARSE, Circuit Judge.

yi

aN Ais

This appeal by defendant-

F intervenor Uniformed Firefighters Associ-

Za

APE

F ation Loca. 94 ("UFA") questions the

Doropriety of certain injunctive relief

P granted by the United States District

F court for the Eastern District of New

Pork, Charles P, Sifton, Judge, in favor

Dof plaintiff Brenda Berkman and a class

Bof women who sought to become fire-

F fighters in the New York City Fire De-

Po vartment, against defendants City of New

E York and certain individuals responsible

B for hiring firefighters for the City of

j New York (hereinafter collectively "the

F City"), to remedy unlawful employment

6 discrimination on the basis of sex, in

PViolation of Title VII of the Civil

A110

Rights Act of 1964 ("Title VII"), 42

H.S.C. §§ 2000e to 2000e-17 (1976 & Supp.

xv 1980). Berkman contended that the

Bephysical part of a 1978 Fire Department

entrance examination called "Exam 3040"

[was not job-related and had a disparate

ee

F impact on women. After a bench trial,

the district court ruled, in an opinion

reported at 536 F. Supp. 177 (1982), that

“the City's use of the physical portion of

Pexam 3040 violated Title VII. The court

T therefore enjoined further use of the

Biigipilicy list compiled pursuant to the

Pexam ("Eligibility List 3040") "except

Fupon a showing of compelling necessity,"

Bia. at 218, directed the City to develop

Be valid physical test, and ordered the

icity in the interim to appoint as entry-

level firefighters up to 45 of those

eclass members "who are found to be quali-

ified for appointment and willing to be

Alll

B pointed,” id. (footnote omitted). The

BD ourt directed the parties to attempt to

“parece upon procedures for determining

nich of the class members were qualified

Be or appointment. Id. Thereafter, the

rity and Berkman agreed on an interim

qualifying physical test to be adminis-

| red to the class members, and the dis-

trict court approved their agreement.

The present appeal is taken by

PFA, an employee organization represent-

fing current firefighters, which was al-

lowed to intervene below in order to

Hparticipate in the remedy phases of the

proceedings. Pursuant to a preargument

F agreement among UFA, Berkman, and the

aCity, and approved by the Court,! the

The preargument order embodying the

Stipulation provided, in pertinent

Part, as follows:

IT IS HEREBY ORDERED that in accor-

dance with the consent of the par-

(Footnote continued)

All2

Paissues on this appeal are limited to the

PYpropriety of the remedial measures or-

(Footnote 1 continued from previous page)

ties herein, the issues to be

raised on this appeal are:

Pad

Pe

4

=

a

*

A. Issues to be Raised by Appel-

lant

1. Defendant-intervenor appellant

appeals from paragraph 4 of the

District Court's Order of March 25,

1982-on the grounds that:

a. The remedy of ordering the

City to hire up to 45 women from

the class members found to be

qualified for the job of fire-

fighters, by means of a special

qualifying procedure to be

agreed upon by the parties or

determined by the Court, consti-

tutes affirmative relief rather

than compliance relief.

b. The Court should have

ordered the City either to give

a special qualifying test to all

men and women who failed Exam

3040 and to hire them on a rank

order basis or to allow the

women who failed Exam 3040 to

take the next entry-level exam

for firefighter and to be hired

on a competitive basis with all

Other candidates for the posi-

tion.

(Footnote continued)

All3

Bered by the district court.? For the

Hreasons below, we affirm.

AFootnote 1 continued from previous page)

c. The Court erred in order-

ing the City to hire up to 45

qualified women because the

number 45 is based on a calcula-

tion that included all women who

took and passed the written test

for Exam 3040, regardless of

whether or not they took the

physical exam.

2. Appellant appeals from the

District Court's Order of August 3,

1982 on the grounds that:

a. The maximum qualifying

time of 4 minutes 9 seconds was

based on testing a group of

firefighters that included per-

sons over the age of 29, which

is the maximum age for applying

for the job.

b. The qualifying exam does

not test for upper body strength

in the manner or to the extent

to which the record shows it is

required for the job.

c. The qualifying test sets

lower physical standards than

the physical test of Exam 3040.

Although the City was party to the

Stipulation embodied in this order, it

(Footnote continued)

All14

I. BACKGROUND

—_—_—

p (Footnote 1 continued from previous page)

has elected not to participate in the

appeal either by brief or by oral

argument.

©? Notwithstanding the stipulation and

order limiting this appeal to issues

regarding relief, see note 1 Supra,

UFA appears to press in its brief on

appeal certain challenges to the dis-

trict court's decision as to the mer-

its of Berkman's claims. In light of

the parties' limiting stipulation, we

do not address UFA's arguments of the

merits except to note in passing that

perhaps its challenges on the merits

were well foregone. Its major such

challenge appears to be essentially

that Title VII analysis is inapplica-

ble to physical examinations. Thus,

UFA states:

ee Tey ee ee

SR Lite Es ie OFS Gi 66 8 Ki

A physical examination is an

unbiased examination. An indi-

vidual is either strong enough

to pass the examination or he is

not strong enough.

(UFA brief on appeal at 10.) UFA's

premise ignores the law. If a physi-

cal test or criterion is not job-

related and its application in employ-

ment decisions has a disparate impact

On persons protected by Title VII,

Title VII is violated. E.g. Dothard

v. Rawlinson, 433 U.S. 321 (1977);

Blake v. City of Los Angeles, 595 F.2d

1367, 1374-75 (9th Cir. 1979), cert.

(Footnote continued)

A115

The history of the City's use

=

=

Bend development of tests for the selec-

BB ion of its firefighters is fully set out

Fin the district court's comprehensive

RM cinion, 536 F. Supp. at 180-204, fa-

Miiterity with which is assumed. At

- issue in the present case was the physi-

cal portion of Exam 3040 given by the

'City in 1978. The written portion of

Pcxam 3040 had been taken in December 1977

PF by 24,758 men and 410 women. Nearly 98%

of the men (or 24,252), and 95% of the

women (or 389), passed this portion, and

| all who had done so were eligible to take

P the physical portion. Of the men so

© eligible, 74%, or 18,060, took the physi-

fF cal test. Of the eligible women, only

} (Footnote 2 continued from previous page)

denied, 446 U.S. 928 (1980); Officers

for Justice v. Civil Service Commis-

Sion, 395 F. Supp. 378, 382 & nl

(N.D. Cal. 1975).

All6

23%, or 88, took the physical test. Of

Bethe men who took the physical exam,

6,925 completed it and 7,847, or 46% of

Mthose who completed it, passed. Of the

'e8 women who took the physical exam, 79

The present action was com-

| nenced by Berkman in 1979. In 1980 the

Bdistrict court certified a plaintiff

Bclass consisting of women who took the

Puritten portion of Exam 3040 and either

p took and failed the physical portion of

Fixam 3040 or were deterred from taking it

Nes a result of sex discrimination by the

Pity. Berkman thereafter moved for pre-

bliminary injunctive relief prohibiting

-the City pendente lite from hiring addi-

F :ional-firefighters from Eligibility List

F3040; this motion was denied after the

eCity agreed to reserve 50 entry-level

‘irefighter positions for members of the

All?

ra

Piolaintiff class in the event Berkman

Pishould prevail on the merits. In April

F 1981, UFA moved to intervene in the ac-

E tion, and its motion was granted to the

r

®

>

extent of permitting it to participate at

Ne

x

a

“the remedy stage of the case, as well as

sith

ot cz

INCE

)in earlier proceedings having a bearing

Hon the nature of the remedies to be

SD ranted.

) After extensive discovery, a

F bench trial consuming several weeks was

held between September and November 1981.

p the district court rendered its decision

»in an opinion dated March 4, 1982. See

536 F. Supp. 177. The court found, inter

“alia, that Berkman had established a

Borina facie case of discriminatory impact

ponder both the Uniform Guidelines on

"Employee Selection Procedures ("Guide-

lines"), 29 C.F.R. § 1607.4(D) (1981),

»2romulgated by the Equal Employment

A118

Popportunity Commission ("EEOC"), and the

B statistical test stated by the Supreme

Bicourt in Castaneda v. Partida, 430 U.S.

322, 497 n.17 (1977). 536 F. Supp. at

g205- 06. The court found that the City

Dad failed to rebut plaintiff's case

Ns Senne Leieiie caseastose

“since it did not establish that the phys-

i portion of Exam 3040 was job-

E related. The City had failed to produce

Batches "data showing that the content of

the selection procedure [was] represen-

J tative of important aspects of perfor-

: mance on the job for which the candidates

; (were] to be evaluated," 29 C.F.R.

Bs 1607.5(B) (sometimes referred to as

e "content validation"), 536 F. Supp. at

F 206-07, or "empirical data demonstrating

; that the selection procedure [was] pre-

“dictive of or significantly correlated

: with important elements of job perfor-

Pnance," 29 C.F.R. § 1607.5(B) (called

Scriterion validation"). 536 F. Supp. at

208. On the basis of these findings the

Udistrict judge concluded that the physi-

cal portion of Exam 3040 violated Title

"vil, and he granted the injunctive relief

&

that is the subject of this appeal in

i

Eder"), and August 3, 1982 ("August Or-

The March Order granted immedi-

Bate, long-term, and interim relief. Ef-

E fective immediately, the court perma-

Bently enjoined further use of Eligibil-

pity List 3040 except upon a showing of

E compelling necessity. As long-term re-

lief, the court directed the City to

/Degin preparation of new, properly vali-

dated selection procedures that would

Bhave the least adverse impact on women.

for the interim, the court ordered the

A120

City to reserve entry-level firefighter

positions for the hiring of up to 45

Inembers of the plaintiff class who re-

fnained interested and were adequately

Pqualified.

My

Bs

The court arrived at the number

Bis with respect to interim hiring as

ke

H follows. It found that some women who

Bad passed the written portion of Exam

E3040 had been deterred from taking the

B ohysical portion by pre-test publicity

suggest ing that no woman could pass the

Fohysical test.3 536 F. Supp. at 217.

Prior to administering Exam 3040, the

City had attempted to recruit women to

take the test and offered a booklet to

familiarize candidates with each com-

ponent of the physical test and with

preparatory exercises. City firemen

conducted informal training sessions

Privately for a fee. 536 F. Supp. at

200. One result of these training

programs was publicity predicting that

no woman could pass the physical test.

For example, the lead sentence of one

New York Daily News article reported

that "la] practice test by two dozen

(Footnote continued)

Al21

*.

Marne district court correctly concluded

hat a "Sex-neutral exam would have been

Mtollowed by an equal decline (26%) in

Bs aterest between both groups." Id. The

3

| ourt reasoned that absent the actual and

Panticipated disparate impact of the phys-

a

mical test, the decline in interest among

=

a

Pevomen who had passed the written portion

Pcould reasonably have been expected to be

‘proportionately no greater than the de-

Pcline in interest among the men who had

“passed the written portion. Since 74% of

ethe men who had passed the written por-

Ption of Exam 3040 took the physical por-

f ‘Footnote 3 continued from previous page)

would-be women firefighters through

the Fire Department's training course

. . »« Showed that the physical test

seems to rule out women.” New York

Daily News, Dec. ll, 1977, at 4. “

There was trial testimony from several

members of the plaintiff class as to

the discouraging effect of the public-

ity.

Al22

ion, the court estimated that 74% of the

89 women who passed the written portion,

r 288, would have taken a sex-neutral

hysical test. Then, noting that 16% of

he men who had taken the physical test

ad been called up for appointment, and

aking 16% of 288, the court arrived at

a figure of close to 45 women who one

ould expect to have been called up under

sex-neutral exam." Id.

The March Order directed the

arties to attempt to agree upon a proce-

ure for determining which members, "if

"

ny," of the plaintiff class were ade-

As of the date of the court's deci-

Sion, 2,666 men, or 16% of the 16,925

who completed the physical exam, hac

been called up for appointment. See

note 13 infra. Subsequently the City

obtained permission from the court to

appoint additional firefighters from

Eligibility List 3040, and the number

of places to be reserved for women was

also increased.

A123

B quately qualified to become entry-level

© firefighters and hence to be appointed to

D tne reserved positions. Paragraph 4 of

B the order provided, in pertinent part, as

Mt follows:

4. In order to determine

which, if any, members of the plain-

tiff class are entitled to further

remedial relief, the parties shall

forthwith determine which members of

the plaintiff class (a) continue to

be interested in the position of

firefighter, and (b) are adequately

qualified for that.position. In

this connection plaintiff shall, on

or before April 2, 1982, serve and

file on 3 days' notice to all par-

ties its proposed form of notice to

the class, directing members to

notify plaintiff's counsel of their

intent to qualify for appointment

within a reasonable period of time

to be specified in the notice. In

the event that the parties are un-

able to agree expeditiously upon

procedures for the determination of

which class members responding to

such notice are adequately quali-

fied, then the procedures for deter-

mination of whether interested class

members are adequately qualified for

the position shall be, on notice to

the parties, established by the

Court. In the event that more than

45 memhers of the plaintiff class

are found to be interested in and

adequately qualified for appointment

Al24

to the position of entry-level fire-

fighter, notices of appointment

shall be sent to 45 of those quali-

fying, selected by lot. In the

event that 45 or fewer members of

the plaintiff class are found to be

interested in and adequately-_quali-

fied for appointment, notices of

appointment shall be sent to all

those qualifying.

The Court refused to order that

he City affirmatively recruit women to

‘ill the 45 reserved places, finding that

jerkman had failed to prove either a

vaattern of significant prior discrimina-

ion or that the City's discrimination

igainst women had been intentional. 536

Supp. at 217.

}. The August Order

The August Order approved a

tipulation between Berkman and the City

greeing on an interim physical test to

e used to determine which members of the

laintiff class were “adequately quali-

ied" to be firefighters and hence could

e@ appointed to the reserved positions.

A125

The events leading to the August Order

began in the wake of the March Order.

Berkman and the City had different ideas

as to the most appropriate procedure for

determining which members of the plain-

tiff class were adequately qualified to

become firefighters. The City favored

development of a new physical exam,

whereas Berkman sought a training program

in which interested class members would

participate and have their fitness to be

firefighters evaluated solely on the

basis of their performance in that pro-

gram. Each side proceeded to develop its

own proposal.

The City's Department of Per-

sonnel undertook a review of the litera-

ture regarding firefighter testing, ex-

isting analyses of che New York City

firefighter's job, and the district

‘court's Opinion in the present case.

syventually, after consultation with mem-

bers of the Fire Department, UFA, and

outside consultants, the City devised a

two-part physical exam, as described in

the margin.5 This exam was itself tested

5 The description of the interim test

devised by the City was as follows:

Part I--Engine Simulation Subtest

A. Hose Stretch: Candidate holds

one length of 3-1/2" hose weighing

80 pounds and stretches it 145

feet.

B. Hose Carry: Candidate picks up

a folded 2-1/2" hose weighing 46

pounds and carries it from the

building entrance to the fifth

floor by way of the stairs.

--Five Minute Rest--[see note 6

infra]

Part II--Ladder Simulation Subtest

C. Ladder Raise: Candidate raises

a 20 foot ladder that weighs 58

pounds and is lying on the ground

from the horizontal to the vertical

position.

D. Ladder and Stair Climb: Candi-

date climbs a pre-set supported

ladder up to the second story and

then enters the building through an

open window, picks up an 8 pound

mallet and a halligan tool, and

runs up to the fifth floor.

E. Forcible Entry: On the fifth

floor, candidate hits a rolled 3-

(Footnote continued)

A127

on a group composed of 37 incumbent fire-

fighters, selected to be representative

of members of the Fire Department with

respect to assignment, age, and years on

the force. The testing was supervised by

20 superior officers, who were instructed

as to what constituted acceptable and

unacceptable performance on each subtest.

A score of 4:09 minutes for performance

of all the tests was eventually set as

the cutoff passing score.® This was

(Footnote 5 continued from previous page)

1/2" hose weighing 80 pounds that

is placed at one end of a table and

drives it 12-1/2 feet to the other

end of the table.

F. Rescue Drag: Candidate drags a

145 pound articulated dummy from a

position on the fifth floor to a

door leading to the stairs.

In performing all tasks, candidates

were to wear a 24-pound "Scott Pak"

and full firefighter uniform.

‘ A preliminary group of eight fire-

fighters was tested on May 1l, 1982.

After the first four had completed the

test, the officer-observers recom-

(Footnote continued)

A128

erived from the distribution of the test

cores of the incumbent test-testers, the

ecommendations of the Fire Department

fficers who had supervised the incum-

ents in the test, and the recommenda-

ions of a psychometrician retained as a

onsultant by the Personnel Department.

In the meantime, Berkman, who

new the City was working on an interim

est but did not know its contents, con-

inued to press for a physical training

rogram. The City met with Berkman's

Junsel several times to discuss the

Footnote 6 continued from previous page)

mended that the rest period between

Parts I and II be shortened from one

hour to five minutes, and the recom-

mendation was adopted immediately.

The remaining four firefighters who

took the test on May 11, and the main

group of 29 firefighters who took the

test on May 14, performed the various

Subtests on the revised schedule. The

performances of the first four tryouts

were not considered in the computation

of the recommended cutoff score.

A129

Se=nature and cost of Berkman's proposal,

but did not disclose any information

‘regarding its interim test prior to

‘may 21, when the test was finalized. It

ee

» did not invite Berkman to participate in

the test development.

On May 21, in an effort to have

interim hiring qualification procedures

commenced without further delay, Berkman

moved to have the district court approve

her proposed physical training program.

The City quickly cross-moved to have its

proposed interim test approved. On

May 26, the district court held a hearing

on the applications, at which Berkman,

the City, and UFA were represented.

The City urged approval of its

proposed interim test, arguing that it

was job-related and would permit the City

to select persons who would be able to

perform firefighting duties in New York

A130

Scity. Berkman adhered to her preference

for a training program, citing her lack

7

i

igs

Peas

pes y

of participation in the development of

oo

%

e

ropa

eB peve,

~the City's proposed test, her consequent

uncertainty as to the validity of the

: Dprpinusies an ak

Be Oe TN Secret

p test, and her desire to end delay in

© gaining the interim relief granted by the

B arch Order.

The court expressed concern

over the secrecy with which the City's

BE test had been prepared, stated its pref-

erence for a qualifying procedure based

on "observations over a substantial

training period” (May 26, 1982 Tr. at

32), and questioned the fairness of ask-

| ing class members to take a physical test

Bon short notice and without training

procedures. The court reserved decision

és to each side's proposal and encouraged

the parties to attempt to compromise.

Al3l

At the end of this hearing,

UFA, which had offered no proposal of its

own and had submitted no papers, testi-

mony, Or argument either for or against

either proposed qualifying procedure,

appeared to favor the City's proposed

test. When the court indicated that it

would reserve decision and asked counsel

to return the next day, counsel for UFA

suggested that perhaps a decision by the

court could be obviated if Berkman's

experts were to review the City's pro-

posed exam and find it acceptable:

MR. TEITLER [counsel for UFA]:

Your Honor, before a determination

is made by the bench, the plaintiffs

have indicated that they haven't had

their experts have time to go over

the exam broached by the City.

Wouldn't it be more advanta-

geous to see if between us, if their

experts review the exam proposed by

the City and find it acceptable that

it might give a little more leeway

as to what the result might be?

THE COURT: I don't have any

problem at all with you discussing

A132

with any resolution you can. I

| it amongst yourselves and coming up

. would encourage it. .

:

:

. If you can take the prob-

lem out of my hands, I would be

happy to have you do it.

(rd. at 60-61.)

| Compromise was not quickly

forthcoming, however, and the parties so

notified the court. Accordingly, on

‘June 3, 1982, the court ruled orally, in

essence, that it would approve the City's

‘proposed interim test if it could be

validated.’ It ordered the City (1) to

The court expressed its concerns with

respect to validation and the need for

expedition as follows:

I certainly do not propose to ap-

prove this proposed qualifying

physical examination that has been

presented to me by the City without

an opportunity for [plaintiff] to

be heard, and also an opportunity

for [plaintiff] to find out more

about circumstances under which it

was prepared, administered, and

what its impact, validity and fair-

ness may be, but I am also im-

pressed as I was at the time I

(Footnote continued)

Al33

prepare to administer the proposed exam

to interested members of the plaintiff

————

(Footnote 7 continued from previous page)

asked you to proceed expeditiously

to come to some resolution of this

qualifying exam, with the need to

get started in some direction, and

I have been presented with a quite

concrete proposal for a qualifying

physical examination which is along

the lines which during the trial of

the matter seemed to be the kind of

work based examination, which the

plaintiff thought most appropriate.

. . . CIJ£ this examination has

been administered to people of

substantial experience as incum-

bents in the Fire Department, there

is a real question in my mind as to

the degree that their times are a

factor of their skill and training,

and I am also concerned that the

examination appears to, from the

papers that have been presented to

me, appears to have been prepared

and administered with little atten-

tion as far as I can see to equally

available alternatives with a less

adverse impact on women, and with-

out any effort to determine how

serious, if it's serious at all,

the adverse impact on women of this

examination might be

(June 3, 1982 Tr. at 4-5, 6.)

A134

court in early August for a hearing on

2 in September, (2) to appear in

:

‘the validity of the proposed exam, (3) to

disclose to the plaintiff class all in-

i ornation on the validity, fairness, and

l aoaree impact of the exam, and (4) to

conduct, beginning on June 7, familiar-

ization and training programs for members

of the plaintiff class who wished to take

the interim exam.% Berkman and the City

were directed to cooperate in developing

‘the familiarization and training pro-

grams. This order was embodied in a

’ The court declined to adopt Berkman's

proposal for qualification solely by

means of a training program, stating

that that proposal would be more ap-

propriate for "a situation in which

affirmative action on the part of the

City was required because of inten-

tional discrimination in the past."

(June 3, 1982 Tr. at 9.) In its rul-

ing on the merits the court had de-

clined to find intentional discrimina-

tion. 536 F. Supp. at 217.

A135

written order filed on June 9 ("June 9

horde"). UFA immediately appealed. 9

. Berkman and the City neverthe-

less continued to negotiate, and eventu-

ally they agreed upon a qualifying physi-

cal test that differed only in minor

respects from the interim test proposed

by the City in May. The agreement was

embodied in a stipulation dated July 12,

1982, which described the physical test

as set forth in the margin,.!°

? UFA had previously appealed from the

March Order; that appeal had been

withdrawn, without prejudice, by

Stipulation dated June 7, 1982.

19 The interim test agreed to by plain-

tiff and the City was as follows:

The candidate will wear

full turnout gear, including a

turnout coat, gloves, boots,

Scott Air Pak and helmet.

PART I-Engine Simulation

1. Hose Stretch. Candidate

holds one length of 3-1/2" hose

weighing 80 pounds and stretches

it 145 feet

2. Hose carry. Candidate

(Footnote continued)

A136

UFA refused to join in the

& ;

stipulation, however, and the City moved

F (Footnote 10 continued from previous page)

transfers one folded length of

2-1/2" hose, weighing 46 pounds,

from shoulder-height stand to

shoulder, and carries it from

the entrance of Building 1 to

the fifth floor.

Seven and one-half minute

rest.

PART II-Ladder Simulation

(Rescue)

3. Ladder raise. Candidate

raises a 20-foot ladder that

weighs 58 pounds from the ground

to a vertical position.

4. Ladder and stair climb. Can-

didate climbs a pre-set sup-

ported ladder up to the second

story and enters the building

through an open window; picks up

a bar weigh ing [sic] 16 pounds,

and climbs to the fifth floor.

5. Forcible entry. On the

fifth floor, candidate, using a

sledge type hammer weighing 8

pounds, hits a rolled 3-1/2"

hose, not to exceed 60 pounds in

weight, the length of a 12'6"

table; the resistance factor of

the hose on the table shall be

no greater than nine kilograms

of horizontal force as measured

on a device to be supplied by

Dr. William McArdle.

6. Simulated rescue. Candidate

drags a 145-pound articulated

(Footnote continued)

A137

Dh nave the district court compel UFA to

tas, At a hearing on August 3, the

bdistrict court stated that it had no

P authority to order a party to sign a

E stipulation but that it would construe

> the City's application as a request that

ura "show cause why, if there is any

"reason, why this qualifying test

F shouldn't be approved.” (Aug. 3, 1982

Bor, at 3.) The court then put that ques-

F tion to UFA's counsel:

' (Footnote 10 continued from previous page)

dummy along a marked path on the

fifth floor.

SCORING

All tasks are performed in

sequence.

Maximum satisfactory time for

performance of the test, not

counting the rest period, shall

be four minutes, nine seconds.

A138

THE COURT: ...

Mr. Teitler[{,] (plerhaps you

could tell me what your position is?

MR. TEITLER: My position is

very Simple, your Honor.

We are in the midst of appeal-

ing Court Order dated June 9th, and

we feel if we sign any stipulation,

it would prejudice our rights under

the appeal.

THE COURT: All right. Well,

I'll note your opposition, your note

that you don't consent to the relief

that's being requested and otherwise

approve the qualifying test... .

F (Id. (emphasis added).) UFA's counsel

" proffered no other objection and made no

' other statements.

After further discussion of

' minor details, the court so-ordered the

stipulation Signed by Berkman and the

A139

City. This was the August Order that is

Bone of the subjects of this appeal.!!

4 After filing its notice of

| appeal from the August Order, UFA applied

Sto the district court for a stay of the

E holding of the interim physical test

© pending the outcome of its appeal. In

E support of its application, UFA submitted

ldtiaevite by its counsel and its presi-

F dent asserting, inter alia, that the

4 interim physical test approved by the

- court on August 3 was inadequate to es-

| tablish whether candidates were qualified

| to be firefighters.!2 At a hearing on

11 On August 5, 1982, UFA withdrew, with-

out prejudice, its appeal from the

June 9 Order and on August 27 filed

its present appeal, which seeks review

of both the August Order and the March

Order. See note 9 supra.

'2 The affidavit of UFA's president

stated that "(t]he thrust of [UFA's]

appeal is that the bulwark of this

department has been built on esprit de

corps." (Affidavit of Nicholas

(Footnote continued)

A140

mseptember 2, the court denied UFA's

Sapplication, stating as follows:

' (Footnote 12 continued from previous page)

Mancuso, sworn to Sept.-l, 1982, at

5), and was filled with predictions of

the erosion of firefighter morale and

public confidence:

Lowering the standards to allow the

members of the class in will cause

irreparable harm in opening the

floodgates and enable future candi-

dates of both sexes to enter the

department with substandard quali-

fications. The high caliber of the

men who have been members of this

department and have epitomized to

the world at large that the members

of the New York City Fire Depart-

ment are the best there is [sic],

will hereinafter be undermined.

This will have a direct effect on

the conceptions of the public and

will shake the faith of the comnu-

nity at large. No longer will the

Fire Department symbolize unflinch-

ing devotion to duty and the ideal

of putting ones [sic] life before

that of the publics [sic] will fade

in the light of this decision.

The unit as an entity will be

weakened and discipline thrown to

the wind. Firefighters will have

the seeds of doubt sown in their

minds and fear will gnaw at their

beings, wondering if those behind

them will have the strength and

(Footnote continued)

Al4l

as

THE COURT: You are raising

questions about [this] qualifying

examination, which I asked someone

from your office whether they in-

tended to raise back, as I recall,

in the beginning of this month [sic:

last month?], at a time when I said

I wanted to hear those, so that

these people who are preparing to

take this test would not spend a

month o[r] more preparing to take

the test which was subject to com-

plaints, and the only answer I got

from your representative there was

that simply because they felt it

would be inconsistent with the posi-

tion that they were taking on the

[appeal] that they were not going to

consent to the test, test form. I

didn't get a pray [sic] of an ex-

planation of any deficiencies that

you found in this test. As a result

people have gone out and literally,

I assume, sweated through a month in

preparation, and I really wonder,

that you come in on the eve of the

time when these people are going to

go out and match their physical

Capacities with a test of this sort,

and start to raise questions about

the adequacy of the exam.

(Footnote 12 continued from previous page)

fortitude to shoulder the burdens

and responsibility for the lives of

each-other [sic].

(Id. at 2-3)

Al42

; I'm going to deny the

request for a stay pending the ap-

peal. I find I can only conclude

that it's being brought for the

purposes of delay.

(Sept. 2, 1982 Tr. at 11, 13 (emphasis

added).) A Similar motion to this Court

' was likewise denied.

II. DISCUSSION

UFA challenges both the March

' order and the August Order on several

grounds. It challenges the March Order's

requirement that places be reserved for

up to 45 women who may be hired as fire-

fighters on the grounds (1) that the

' order granted "affirmative" relief, which

_was improper in the absence of a finding

of intentional discrimination or an egre-

gious past history of discrimination, (2)

that this relief discriminated against

men who failed the physical portion of

Exam 3040, and (3) that the number 45 was

too high. UFA contends that the August

Al43

Order should not have approved the stipu-

Plated interim physical test because that

Beene (1) improperly set a passing grade

by reference to the performances of per-

sons too old to qualify as entry-level

| firefighters, (2) did not provide an

F adequate test of upper body strength, and

(3) lowered the standards, as reflected

in Exam 3040, for becoming a New York

City firefighter, thereby endangering

public safety. We find no merit in any

of UFA's contentions.

A. The Propriety of Reserving 45 Places

for Interim Hiring

Once a violation of Title VII

has been established, the district court

nas broad, although noc unlimited, power

to fashion the relief it believes appro-

Priate. The bounds of the court's dis-

cretion are set by the purposes of Title

VII, which are to prevent discrimination

and achieve equal employment opportunity

A144

Bin the future, see International Brother-

Bnood of Teamsters v. United States, 431

Bu.s. 324, 364 (1977); Albemarle Paper Co.

Rv. Moody, 422 U.S. 405, 417 (1975);

| criggs v. Duke Power Co., 401 U.S. 424,

5429-30 (1971), and to make whole the

victims of past discriminatory practices,

Psee, e.g., International Brotherhood of

Teamsters v. United States, supra; Franks

4 v. Bowman Transportation Co., 424 U.S.

4 747, 764 (1976); Albemarle Paper Co. v.

: Moody, Supra, 422 U.S. at 418. Our in-

j quiry with respect to the March Order is

whether, in requiring the City to hire up

; to 45 members of the plaintiff class who

are found to be qualified, the court

F abused its discretion. Id. at 421-22;

F Association Against Discrimination in

’ Employment v. City of Bridgeport, 647

Sf.2d 256, 279 (24 Cir. 1981), cert. de-

Pp oied, 455 U.S. 988 (1982) ("ADE v. City

A145

Sof Bridgeport"); cf. Kirkland v. New York

Estate Department of Correctional Ser-

B ices, 520 F.2d 420, 429-30 (2d Cir.

£1975) (employment discrimination action

brought under the Fifth and Fourteenth

F anendments to the Constitution and 42

bu.S.C. §§ 1981 and 1983), cert. denied,

429 U.S. 823 (1976). We conclude that it

E did not.

1. The Number 45

We begin by considering the -

Epropriety of the court's selection of the

| number 45 for interim hiring, since that

SD avestion has relevance not only to UFA's

contention that that number was improp-

' erly inflated by the court's consider-

F ation of women who did not take the dis-

'criminatory physical test, but also to

B UFA's contention that this provision

improperly granted affirmative relief in

- the nature of a quota.

A146

We see no impropriety in the

P-ourt's selection of the number 45. The

SvMarch Order was linked precisely to the

‘disparate impact that the court had found

in the physical portion of Exam 3040.

B che court found not only that women had

' failed because the test was discrimina-

cory, but also that women had been de-

s -erred from even taking the test because

/of the advance publicity predicting that

/ no woman could pass. Those who have been

B deterred by a discriminatory practice

| from applying for employment are as much

victims of discrimination as are actual

applicants whom the practice has caused

| to be rejected. E.g., Dothard v. Rawlin-

son, 433 U.S. 321, 330 (1977); Interna-

- tional Brotherhood of Teamsters v. United

F States, supra, 431 U.S. at 365-66 ("When

a person's desire for a job is not trans-

lated into a formal application solely

A147

Specause Of his unwillingness to engage in

fa futile gesture he 1s as much a victim

F of discrimination as is he who goes

©’ -hrough the motions of submitting an

B application"); ADE v. City of Bridgeport,

FP supra, 647 F.2d at 281-82 & n.23. It was

Bac iss

asi o.,

thus well within the court's discretion

to fashion interim relief that took into

; account the entire discernible impact of

the City's discriminatory test, and not

F just its most obvious effect, i.e., that

all women who actually took the test

failed.

It was also reasonable for the

court to estimate the number of women

deterred from taking the discriminatory

physical test by referring to the per-

| centage of eligible men who took the

test, rather than seeking an actual de-

terrence census of the 301 eligible women

who elected not to take the physical

A148

Pportion of Exam 3040. Accordingly, we

find no abuse of discretion in the dis-

Berict court's selection of the number 45

Pwith respect to the interim hiring re-

P quirement imposed on the City.?:3

©13 In setting the interim number at 45,

* the court did not purport to find the

' exact number of women who would have

' been called up for appointment absent

discrimination, but found only that 45

4 was "Close to” that number. In chart

. form, the statistics discussed in Part

I.A above are as follows:

. Men Women

c % of % of

Prior Prior

Cate- Cate-

Number gory Number gory

24,252 98% Passed 389 95%

Written

18,060 74% Took 88 23%

Physical

16,925 94% Completed 79 90%

Physical

7,847 46% Passed 0 0%

Physical

7 The court's own calculation of the

number of women who would have been

called up, see text accompanying note

Footnote continued)

A149

2. The Nature of the Relief

Title VII remedies ordinarily

| (Footnote 13 continued from previous page)

4 supra, would have yielded a total of

46 (74% of 389 = 288, 16% of 288 =

46).

We find one slight flaw in the

district court's calculation, which we

regard as harmless. The court arrived

at its 16% figure by dividing 2,666,

the number of men by thel[n] called up

for appointment from Eligibility List

3040, by 16,925, which the court mis-

takenly stated was the number of men

who presented themselves to take the

physical exam. 536 F. Supp. at 217.

The actual number of men who so pre-

sented themselves was 18,060 and

16,925 represented the number of men

who completed the exam. Id. at 204.

Thus, the court's calculation did not

take into account the likelihood that

even without the test's sex-

discriminatory impact, a certain num-

ber of women would normally be ex-

pected not to complete the exam, and

hence not qualify for appointment.

The more appropriate calculation would

have reduced the number 288 (i.e., 74%

of women who passed written test) to

°4% of that figure (percentage of men

taking but not completing physical

test) to reach 271 as the number of

women who could have been predicted to

complete a sex-neutral exam. Applying

the 16% call-up figure to 271, one

would arrive at 43 as the number of

(Footnote continued)

A150

may be described as compliance relief,

> compensatory relief, or affirmative re-

lief. ADE v. City of Bridgeport, supra,

P47 F.2d at 278; Guardians Associazion of

(the New York City Policy Department v.

PCivil Service Commission, 630 F.2d 79,

P08 (2d Cir. 1980), cert. denied, 452

©u.S. 940 (1981) ("Guardians IV"). The

'three types of relief differ to some

F extent in purpose, effect, and justifica-

tion.

Compliance relief is designed

to erase the discriminatory effect of the

| challenged practice and to assure compli-

ance with Title VII in the future. Such

relief may include prohibiting the use of

(Footnote 13 continued from previous page)

women to be called up. Given the fact

that the court was not striving for a

precise quantification, as discussed

in the first paragraph of this foot-

note, we regard this slight variance

as immaterial.

Al51

In invalid test or criterion, restricting

ppointments from an eligibility list

ompiled by reference to the results of

Pan invalid test, ordering that_new and

Byalia selection procedures be adopted,

| and authorizing interim hiring that does

Brot have a disparate impact on any group

Borotected by Title VII. An interim hir-

-ing order does not have a disparate im-

F pact on any such group when (a) it orders

the hiring of members of the plaintiff

class whom the court has found to be

victims of the defendant's discrimina-

tion, and (b) it calculates the number of

victims to be so hired -- in relation to

the total number of interim hirees -- by

reference to the percentage the victims

constituted of the total applicant pool.

Such an order does not go beyond the

simple elimination of the disparate im-

pact of the practice found to be dis-

A152

Bcriminatory and is properly regarded as

E compliance relief. Compliance relief is

F appropriate whenever a Title VII viola-

D tion has been found, irrespective of any

E history of prior discriminatory practices

Dor the intent of the defendant. See ADE

By. City of Bridgeport, supra, 647 F.2d at

E278; Guardians IV, supra, 630 F.2d at 108

Bin. 25.

4 Compensatory relief is designed

to "make whole" the victims of the defen-

| dant's discrimination. To the extent

i that an order requires the hiring of a

| member of the plaintiff class -- i.e., a

victim of the discrimination -- it con-

stitutes both compliance relief and com-

' pensatory relief. Compensatory relief

may also be granted in the form of

backpay, payment of the value of past

fringe benefits, and retroactive senior-

ity. These forms of relief are generally

A153

a

aoe

a

\e

ie

Ps

f designed principally to remedy the ef-

by

appropriate under the same circumstances

as compliance relief. See ADE v. City of

Bridgeport, supra, 647 F.2d at 278-80.

Affirmative relief is that

© fects of discrimination that may not be

cured by the granting of compliance or

» compensatory relief. It may include the

P setting of long-term hiring targets or

F the imposition of a requirement that the

-defendant actively recruit or train mem-

P bers of the Title VII-protected group.

F Such relief may be required where, for

| example, the defendant has intentionally

or egregiously engaged in a practice of

| discrimination that is likely to have

' discouraged members of the protected

' group from becoming members of the appli-

-cant pool at any stage. Affirmative

relief may also include interim hiring

relief that is extended to persons other

A154

Behan members of the plaintiff class and

fin proportions exceeding the ratio of

Plaintiff class members to the total

B applicant pool. See id. at 278, 282;

BGuardians IV, supra, 630 F.2d at 108-09.

; Affirmative relief is normally

p justified only if the defendant's

S discrimination has been intentional, see,

Pe.g., id. at 109, or there has been a

fF long-cont inued pattern of egregious

| discrimination, see id.; ADE v. City of

f Bridgeport, supra, 647 F.2d at 286; Rios

: v. Enterprise Association Steamfitters

B tocal 638, 501 F.2d 622, 631 (2d Cir.

i974). We have indicated, however, that

| affirmative relief for Title VII-type

f violations may be upheld even in the

absence of these factors if it is limited

to an interim stage and does not require

the hiring of persons who are not members

of the plaintiff class. Thus, in Kirk-

A155

Band v. New York State Department of

Mcorrectional Services, supra, in which

‘

the members of the plaintiff class com-

prised approximately 10% of the appli-

Bcants who took a discriminatory promo-

tional exam, we reviewed a provision that

E forbade interim promotions without court

a

B approval and required that at least one

\

pout of every four persons so promoted be

/a menber of the plaintiff class. Al-

F though we struck down other provisions of

| the court's order that imposed permanent

F quota restrictions, we upheld this in-

Pterim provision, stating as follows:

Since this portion of the decree is

interim in nature, does not mandate

the making of any promotions, does

not disregard an existing civil

service eligibility list, and since

its benefits are limited to the

members of the plaintiff class, we

affirm it as not being an abuse of

the District Court's discretion.

/ 520 F.2d at 429-30; see also Guardians

iv, supra, 630 F.2d at 109 (hiring order

A156

to assure Title VII compliance on interim

ipasis May properly “select[] from among

fadequately qualified applicants...

P according to some appropriately non-

ES compensatory ratio, see, e.g., Kirkland,

supra, 520 F.2d at 429-30").

| Within this framework, we think

E plain that in the present case the

Bcourt's order that up to 45 members of

B che plaintiff class be hired, if found

I qualified, constituted compliance relief

p rather than affirmative relief.!4 As

discussed in the previous section, the

number 45 was determined strictly by the

- court's estimate of the approximate num-

ber of women who had been the victims of

‘+ The interim hiring provision has com-

pensatory features as well since vic-

tims who are able to pass the interim

test will be hired, and the City has

agreed to pay them backpay and bene-

fits with respect to a period prior to

their actual appointment.

Al57

mthe City's discriminatory use of Exam

3040. Since only women who had passed

he written portion of Exam 3040 were

| nade eligible to take the interim test,

Bethe relief focused solely on the pool of

S applicants as 1t existed just prior to

"the discriminatory phase of Exam 3040.

The March Order neither imposed

a quota -- i.e., the relatively permanent

use of a specified hiring ratio -- nor

F established a hiring goal for the City.

The order imposed no numerical long-range

hiring requirements whatever; the only

' long-range relief ordered was the devel-

opment of properly validated selection

procedures that would not have a dispa-

rate impact on women. Further, the in-

terim number 45 represented simply the

maximum number of the plaintiff class

members that the City would be required

to hire. If more than 45 class members

A158

5, saga

ftook and passed the interim test, only 45

Bwere to be hired. Nor was the City or-

dered to take any affirmative steps to

Riceract women to the Fire Department. If

B tever than 45 members of the class re-

F nained interested in taking the interim

F physical test, the City was not required

Bio seek out others. If fewer than 45

F passed the interim test, the City was to

“hire only the lesser number. If no women

B® passed the interim test, the order did

F not require that any be hired.

Thus, the interim hiring provi-

; sions of the March Order simply provided

an opportunity for the victims of the

'discrimination!5 to qualify by means of a

> We find no merit in UFA's contention

that the provision for an interim test

for interested members of the plain-

tiff class should be set aside unless

it also is extended to men who failed

the physical portion of Exam 3040.

The provision was designed to remedy

discrimination in violation of Title

(Footnote continued)

A159

sex-neutral interim physical test. The

B district court properly regarded this as

Scompliance relief, 536 F. Supp. at 216-

Bis, which was justified by its finding of

B ritle VII violation, and we find in it

B no abuse of the court's discretion.

S 3. Approval of the Interim Test

In enacting Title VII, Congress

b expressed a preference for achieving

F compliance by voluntary means. See,

;e.g., Alexander v. Gardner-Denver Co.,

» 415 U.S. 36, 44 (1974); United States v.

F city of Alexandria, 614 F.2d 1358, 1362

(Sth Cir. 1980); Patterson v. Newspaper &

(Footnote 15 continued from previous page)

E VII. There was no showing that the

: test had had any disparate impact on

any group of men on the basis of their

gender. Accordingly, there was no

basis for awarding men, as well as

women this interim Title VII relief.

See, e.g., Patterson v. Newspaper &

Mall Deliverers' Union, 514 F.2d 767,

772-73 (2d Cir. 1975); cert. denied,

427.U.8. 911 (i976).

A160

Mail Deliverers' Union, 514 F.2d 767, 771

——

B (2d Cir. 1975), cert. denied, 427 U.S.

f911 (1976). In general, therefore, when

the parties to the litigation have agreed

Son a means of achieving compliance, the

Pdistrict court should normallyapprove

yr tee

ithe settlement unless it contains provi-

Psions that are unreasonable, unlawful, or

Fagainst public policy. On appeal, the

s district court's approval of a settlement

F should be upheld unless it constituted an

fabuse of discretion.

We find no abuse of discretion

| by the district court in entering the

F August Order approving the agreement

_Detween Berkman and the City to the terms

» of the interim qualifying test. We note,

F to begin with, that when the City com-

B nenced, following the March Order, to

'design an interim test, it appears to

nave done so with a proper concern for

Al6él

public safety. The record babs eacunthen

E the City sought expert advice throughout,

Tt anputred the Fire Department repeatedly,

e and received and implemented advice from

pura.

Moreover, prior to entry of the

E august Order, UFA never suggested that

E either the agreed-upon test or its City-

; prepared predecessor was in any way inad-

equate. UFA plainly had no quarrel with

j the adequacy of the proposed interim test

D tvelocea by the City prior to May 26,

1982. UFA came forward with no criticism

of that test, and indeed, indicated its

own approval by suggesting that if

Berkman's experts would review and could

approve it, a court decision would be

unnecessary. There appears to be little

difference between that initially pro-

posed test and the one that was eventu-

ally agreed on by Berkman and the City,

Al62

compare note 5 supra with note 10 supra;

and when the court asked UFA why the

Fagreed-upon test should not be approved,

UFA gave no indication that it thought

ithe test was inadequate. It stated oly

I that it opposed the test because it had

f an appeal pending from the court's June 9

Border. The court stated it took this to

B nean that UFA challenged the nature of

: relief that had been granted but that it

' “otherwise approve[d] the qualifying

B test." (Aug. 3, 1982 Tr. at 3.) UFA

— gave no indication that this was not an

' accurate interpretation of its position.

S rhus, the district court was not pre-

sented with any basis for believing that

it should not approve the interim test on

grounds of inadequacy.

Nor do the particular criti-

cisms of the interim test voiced by UFA

on appeal suggest to us that it would

A163

Bhave been unreasonable for the district

Bcourt to approve the test if UFA had

timely voiced these criticisms below. We

are unpersuaded by the complaint that

S incumbent firefighters over the age of

©29 -- the maximum age for entrance into

I the Fire Department -- were used to test

I the test and that their scores were used

Ss: dereve the passing grade of 4:09 min-

B utes. To be sure, the performance times

of the incumbent test-testers indicated

‘that those over the age of 29 generally

f performed less swiftly than those who

}were younger. Two countervailing consid-

F erations, however, suggest that this

| pattern may have no substantial signifi-

} cance. First, the trial testimony sug-

| gested that fighting real fires requires

B pacing and caution rather than continuing

exertion at maximum physical capacity,

536 F, Supp. at 212 & nn. 23-24, and it

A164

%

» be that the relatively slower times

A

G

fof those older than 29 reflected to some

I extent their greater experience. Second,

bas suggested by the district court in

F expressing its reservations as to whether

Bs test tested by incumbents might not be

Sunfair to the plaintiff class, see note 7

Fsupra, it may be that as a result of the

f incumbents’ firefighting experience, the

performance times of all of the test-

F testers were faster, even without maximum

| exertion, than would be the times of

| persons of comparable ages without any

' experience. In any event, it does not

seem to uS unreasonable for the City to

have sought to determine the average

performance of actual job incumbents, and

we note that the EEOC Guidelines ex-

pressly recommend that a cutoff score

"should normally be set so as to be rea-

sonable and consistent with normal expec-

Al65

tations Of acceptable proficiency within

M the work force." 29 C.F.R. § 1607.5(H).

We are similarly unmoved by

Bura's claim that the interim test does

not adequately measure upper body

strength. We note, preliminarily, that

» the evidence suggested, and the court

B found, that the most important physical

| attribute for a firefighter is not

a, but stamina. 536 F. Supp. at

138, 191 n.6, 204, 212. Moreover, it is

D icin thse the interim test does require

upper body strength. It requires, for

=r that candidates raise a 58-

E pound, 20-foot ladder from the ground to

a vertical position, lift and stretch an

80-pound hose, and drag a 145-pound dummy

for some distance. The 145-pound dummy

1s 82 pounds heavier than the 63 pounds

that the record indicated was the average

weight that firefighters were most often

A166

required to drag and, indeed, is 20

pounds heavier than the average extreme

weight that firefighters were only occa-

isionally required to drag. See id. at

F191. The 80-pound hose is 17 pounds

heavier than the weights the record indi-

cated firefighters were most often re-

fguired to lift. Id. Thus, the interim

p test required, during a short amount of

Ptime (mot more than 4:09 minutes), the

fuse of greater upper body strength than

| is required on the average in fighting

real fires.

Finally, we need not dwell on

UFA's contention that the interim test is

inadequate because it sets lower stan-

dards than did Exam 3040. Exam 3040 was

found to be discriminatory and not job-

related. It cannot rationally be used as

a benchmark against which other tests may

be judged.

Al67

The orders appealed from are

Baffirmed.

A168

grenda BERKMAN, on behalf of herself and

3 class consisting of all similarly situ-

sted women, Plaintiff,

Vv.

The CITY OF NEW YORK; Edward Koch, indi-

yvidually and as Mayor of the City of New

york; New York City Fire Department;

Augustus Beekman, individually and as

Fire Commissioner of the City of New

York; New York City Department of Person-

nel; Michael Nadel, individually and as

Director of Personnel of the City of New

York; Thomas Roche, individually and as

of New York; Civil Service Commissicn of

~*-

the City of New York, Defendants.

No. 79 C 1813.

United States District Court,

E.D. New York

March 4, 1982

Women's Rights Clinic of the

Washington Square Legal Services, Inc.,

by Laura Sager, and Debevoise & Plimpton,

by Robert L. King, Bart R. Schwartz,

Jeffrey N. Drummond, Kathryn Quirk, New

York City, for plaintiff.

Frederick A.O. Schwarz, Corp.

Counsel of the City of New York, by Norma

Kerlin, Thomas C. Crane, Gary P.

Shaffer, Asst. Corp. Counsels, New York

City, for defendants.

Al69

Norman Teitler, Rego Park,

Y., attorney for intervenor, Uniformed

Firefighters Association.

MEMORANDUM DECISION

AND ORDER

ESIFTON, District Judge.

This is an action brought

F oursuant to Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C.

Fs 2000e et seq.; the Civil Rights Act of

fie71, 42 U.S.C. § 1983; the fourteenth

| amendment to the United States Constitu-

Ftion; and Section 296 of the New York

P #uman Rights Law (Executive Law), seeking

§ declaratory and injunctive relief and

damages to redress alleged sex-based

f discrimination against plaintiff and the

i class she represents in connection with

I the physical test portion of New York

city's Examination 3040 ("Exam 3040") for

the entry level position of firefighter

in New York City.

A170

Plaintiff, Brenda Berkman, is

3g twenty-nine year old woman who passed

the written portion of Exam 3040, but

failed the physical test portion, which

she took on February 22, 1978. The class

she represents consists of 410 women who

took the written portion of Exam 3040 and

are alleged either to have taken the

physical portion of Exam 3040 and failed

it or to have been deterred from taking

it as a result of sex discrimination by

defendants. Defendants are the City of

New York, its Mayor, the City's Fire

Department and its Commissioner, the

City's Personnel Department, its Director

and former Directors, and the Civil Ser-

vice Commission of the City of New York.

Appearing as Intervenors pursuant to this

Court's Order of April 10, 1981, are the

Uniform Firefighters Association ("UFA")

and the Uniform Fire Officers Association

Al71

ee

("UFOA"), both employee organizations

representing current job incumbents.

The trial of this case was

sicoiliertall before the undersigned, sitting

without a jury, over several weeks be-

tween September and December 1981. For

the reascns set forth herein, I conclude

‘that the physical portion of Exam 3040

‘discriminated against plaintiff and the

class she represents on the basis of

their sex and that injunctive relief is

appropriate prohibiting further use of

the eligibility list established pursuant

to Exam 3040 except on a showing of com-

pelling necessity, directing the prepara-

tion of a new physical exam which does

not discriminate against women, and

awarding plaintiff interim and other

relief to secure compliance with the

requirements of the Civil Rights Act of

1964, as amended. What follows sets

Al72

fe

Pforth the findings of fact and conclu-

fsions of law on which these determina-

rions are based, as required by

PRule 52(a) of the Federal Rules of Civil

| procedure.

Jurisdiction over plaintiff's

PTitle VII action exists under 42 U.S.C.

Fs 2000e-5. Plaintif‘, by filing her

| complaint with the Equal Employment

f opportunity Commission on May 16, 1978,

e has complied with the time limitations

7 imposed by that section with respect to

Fall of the named defendants except the

| defendant Fire and Personnel Departments

and the Director of the latter Depart-

F ment, who were not named in plaintiff's

"administrative complaint. As to those

| defendants not named in plaintiff's ad-

ministrative complaint jurisdiction ex-

ists since there is substantial identity

| Detween those defendants who were named

Al73

in the conciliation proceeding and those

not named and since those not named had

notice of the pendency of the concilia-

tion proceedings. Vulcan Society of

Westchester County v. City of White

—_—_—

Plains, 82 F.R.D. 379 (S.D.N.Y. 1979).

Jurisdiction exists over plain-

tiff's claim under 42 U.S.C. § 1983 and

the fourteenth amendment by virtue of 28

U.S.C. § 1343. Pendant jurisdiction

‘exists over plaintiff's claim under New

York State's Human Rights Law.

Background

As of the end of 1980, New York

City employed in excess of 285,000 per-

isons. Of these, approximately 175,000

(including those in the City's Fire De-

partment) were hired by the Department of

Personnel. The balance were employed by

independent agencies such as the Board of

Al74

ducation and the Off-track Betting Cor-

poration.

Of the approximately 175,000

employed by the Department of Personnel,-

approximately 168,000 (including those in

)

the City's Fire Department) were in the

competitive class, & class including all

opositions for which it is practicable to

determine the merit and fitness of candi-

dates by competitive examination.

Employment statistics for the

uniformed force of the New York City Fire

Department for the period 1973 through

1981 were as follows:

Year Firemen Officers Total

1973 10,720 2,548 13,394

1974 10,426 2,538 13,091

1975 9,089 2,347 11,548

1976 8,304 2,267 10,662

1977 8,847 2,329 £4,472

1978 8,513 2,075 10,979

1979 8,966 2,404 11,466

1980 8,765 2,460 11,048

1981 9,042 2,563 11,616

The Fire Department of the City

of New York is charged with responsibil-

A175

a

yy for extinguishment, prevention and

westigation of fires occurring in the

ty. The most recent available statis-

cs for operational firefighting inci-

nts (1979) indicate a total of close to

0,000 incidents annually requiring Fire

partment attention. The largest number

these incidents have been false alarms

62,529). A total of 43,072 of these

cidents involved structural fires, of

ich the largest number occurred in

sidential buildings (31,504), the next

rgest, in vacant buildings (5,698),

llowed by fires in commercial (4,227)

d public structures (1,643). Non-

ructural fires (71,298) exceeded struc-

ral fires. In addition to its ordinary

refighting duties; the Fire Department.

S, in 1979, called upon to respond to

ose to 72,250 other emergencies of

rious types.

A176

The Fire Commissioner is the

head of the Department, responsible for

policy decisions. The Chief of Depart-

ment is charged with operational respon-

sibility. Under the Chief of Department

the uniformed force of the Department

consists of the assistant chiefs, deputy

‘assistant chiefs, deputy chiefs, battal-

ion chiefs, chief medical officer, medi-

‘cal officers, chaplains, captains, lieu-

'tenants, marine engineers, pilots, and

firemen.

The uniformed force is orga-

nized into divisions, battalions, compa-

nies, and other operational units. A

division is composed of one or more bat-

talions and is commanded by a battalion

chief. A company is composed of its

captain, one or more lieutenants, and the

firefighters assigned to it.

Al77

The command structure of De-

Ppartment operations consists of borough

=——- in each of the five boroughs of

Few York City. Each borough command

A with the exception of Staten Island) is

B composed of several divisions, the number

varying in each borough. The borough

P commanders report to the Chief of Opera-

B+ions.

Companies are divided into

/engine companies, ladder companies, res-

cue companies, and marine companies. An

Fengine company consists of a pumper appa-

ratuSs and an assigned complement of per-

sonnel (typically, one captain, three

lieutenants, and 20 or 25 firefighters).

One platoon (typically, one officer and

four or five firefighters) is assigned to

the apparatus on each tour of duty. The

bumper apparatus consists of pumping

equipment and carries lengths of

A178

hoselineé, nozzles, and other equipment.

The engine company is primarily responsi-

ble for the extinguishment of fires.

A ladder company consists of a

ladder truck apparatus and an assigned

complement of personnel (typically, one

captain, three lieutenants, and 25 fire-

fighters). One platoon (typically, one

officer and five firefighters) is as-

signed to the apparatus on each tour of

duty. The ladder truck apparatus in-

cludes an extension ladder, portable

ladders, tools and equipment for entry

and ventilation of burning buildings, and

a variety of other equipment. The mem-

bers of the ladder company perform opera-

tions at a fire scene exclusive of extin-

guishment, including forcible entry,

ventilation, search and rescue, and over-

hauling, the process of seeking hidden

A179

sources Of fire after the visible fire is

extinguished.

There are at present 208 engine

companies and 138 ladder companies in the

Department. These are currently housed

in 233 firehouses, most of which quarter

one ladder company and one engine com-

pany.

In addition to engine companies

and ladder companies, there are rescue

and marine companies. A rescue company

consists of the rescue apparatus and an

assigned complement of personnel (one

captain, three lieutenants and 25 fire-

fighters). A platoon (one officer and

five firefighters) is assigned to the

apparatus on each tour of duty. The

members of a rescue company are assigned

on an ad hoc basis at fires to augment

ladder or engine company personnel. They

also perform specialized search and

A180

extrication tasks, utilizing special

tools carried on the apparatus for use in

emergencies. There are four rescue c

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