# Appendix — Berkman v. City of New York > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_2333%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1987 - **Citation:** 484 U.S. 848 ## Text 87-6 6 | Ne. 87- sree Ea. . 4HOSEPH F. SPANIOL, JR. = CLERK Supreme Court of the United OCTOBER TERM, 1987 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 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 com- panies in the City, one assigned to each borough, except Staten Island. Rescue companies respond to multiple alarm fires and unusual emergencies. A marine company is responsible for extinguishment of fires on the water- front and in New York Harbor. A marine company consists of a captain, three lieutenants, four pilots, eight marine engineers, One wiper, and either ten to twenty firefighters. Forty-five fire- fighters are assigned to the marine divi- Sion, Under Section 487a-3.0a. of the New York City Administrative Code (the "Administrative Code"), a member of the Fire Department must be a citizen of the United States, must be able to read and write the English language with under- standing, and must have passed his or her eighteenth, but not twenty-ninth, birth- day on the date of the filing of an application for civil service examina- tion. No person will be appointed unless twenty-one years of age at the time of appointment. There is at present no restriction on the sex of applicants. There are four grades of fire- fighter. Section 487a-7.0 of the Admin- istrative Code provides in this connec- tion: "Members of the uniformed force, upon appointment shall be assigned to the fourth grade; after one year of service in the fourth grade, they shall be advanced to the third grade; after one year in the third grade, they shall be advanced to the second grade; after one year in service in the second grade, they shall be advanced to the first grade; and they shall in each in- stance receive the annual pay or compensation of the grade to which they belong." A182 The basic starting salary for firefighter fourth grade is currently $17,949. Under Section 487a-4.0 of the Administrative Code, preliminary to a permanent appointment as a firefighter, there is a period of probation of one year. Probationary firefighters undergo a six-week training program in the funda- mentals of firefighting at the beginning of their probationary period. The Department of Personnel of New York City has responsibility for the hiring of Fire Department personnel. When staffing needs arise for the posi- tion of entry-level firefighter, the Fire Department advises the Department of Personnel and requests the scheduling of an entrance examination. The examination is prepared by the Department of Person- nel with the assistance of the Fire De- partment. Scheduling, notification, A183 receipt of applications, and administra- tion of the examination are the respon- sibility of the Department of Personnel. The examination produces an eligible list of individuals who have passed the exami- nation. Thereafter, the Department of Personnel and the Fire Department conduct further investigations, including back- ground investigation, medical examina- tion, and interviews, of sufficient mem- pers of the eligible list to satisfy projected hiring requirements. Candi- dates who satisfactorily complete the post-examination investigations are deemed qualified. In order to fill va- cancies, the Fire Department will request certification of qualified eligible can- didates from the Department of Personnel. Upon issuance of such certification, the Fire Department appoints candidates from the qualified eligible list. A184 gxaminations for the Position of Fireman Prior to Exam 3040 — From 1960 to 1971 the Depart- Bnent of Personnel administered five examinations for the position of fireman. None of these was open to women. These were the five examinations which immedi- F ately preceded Exam 3040, which is at B issue in this lawsuit. From October 5, 1960, to Janu- Bary 31, 1961, pursuant to Notice of ® Examination 9010, the Department of Per- B sonnel accepted applications for che I position of fireman. A written test for } 9010 was administered March 3, 1961, and the eligible list was promulgated Janu- ary 1, 1962. No physical test appears to tues been administered. From July 5, 1962, to Octo- Eber 2, 1962, pursuant to Notice of Exami- | nation 9606, the Department of Personnel F accepted applications for the position of A185 fireman. A written test for 9606 was 3dministered December 1, 1962, followed by a qualifying physical test. The phys- ical test was graded on a pass/fail ba- sis; the written test had a passing score of 70%. The eligible list reanteing from this process was promulgated June 26, 1963. From December 3, 1963, to Janu- ary 27, 1964, pursuant to Notice of | Examination 9984, the Department of Per- ' sonnel accepted applications for the | position of fireman. A written test for 9984 was administered on May 19, 1964, followed by a competitive physical test from which an eligible list was promul- gated. The written examination and the competitive physical examination were given equal weight. An average of 70% was required on the results of both writ- A186 B+en and physical tests in order to qual- ify for appointment. From April 3, 1968, to May 31, £1968, pursuant to Notice of Examination P7060, the Department of Personnel again accepted applications for the position of * fireman. The competitive written test for 7060 was administered June 15, 1968, followed by a qualifying (pass/fail) B ohysical test from which an eligible list f vas promulgated August 20, 1968. A 70% B score on the written test was required to F pass. From February 3, 1971, to Au- gust 18, 1971, pursuant to Notice of | Examination 0159, the Department of Per- sonnel accepted applications for the position of fireman. The written test for 0159 was administered on Septem- ; ber 18, 1971, followed by a qualifying (pass/fail) physical test, and an eligi- A187 ple list was promulgated January i8, 1973. Again, a 70% score on the written test waS required to pass. The Vulcan Society Litigation On January 12, 1973, immedi- ately preceding the promulgation of the eligible list resulting from Exam 0159, the Vulcan and Hispanic Societies, repre- senting black and Hispanic firefighters, commenced an action in the United States District Court for the Southern District of New York pursuant to 42 Y.S.C. §§ 1981 and 1983 and sought a preliminary injunc- tlon to restrain the New York City Per- sonnel Department, Civil Service Commis- sion, and Fire Department from appointing firemen from List No. 0159. Vulcan Soci- ety v. Civil Service Commission, 73 Civ. 201 (Weinfeld, J.). Thereafter, on June 12, 1973, Judge Weinfeld issued an opinion declar- A188 ing Examination 0159 unconstitutional under the equal protection clause because of its discriminatory impact on blacks Band Hispanics and enjoining defendants Biron making further appointments based on the examination's results, except upon a Bshowing of compelling necessity. 360 Fr, supp. 1265, aff'd in part and re- fnanded, 490 F.2d 387 (2d Cir. 1973). Subsequently, on August 2, ©1973, Judge Weinfeld issued an order directing defendants, inter alia, to proceed expeditiously to prepare a new examination for the position of fireman pwhich did not discriminate against blacks and Hispanics in accordance with profes- ‘sionally accepted methods of test prepa- ration. Retention of AIR The City had previously placed itself in a position from which it was A189 gble to commence compliance with Judge weinfeld's direction with some rapidity. in 1970 Congress had enacted Public Law 91-648, known as the Intergovernmental Personnel Act ("IPA"), 84 Stat. 1909 (1970), which described itself as fol- lows: "An Act to reinforce the federal system by strengthening the person- nel resources of State and local governments, to improve intergovern- mental cooperation in the adminis- tration of grant-in-aid programs, to provide grants for improvement of State and local personnel adminis- tration, to authorize Federal assis- tance in training State and local employees, to provide grants to State and local governments for training of their employees, to authorize interstate compacts for personnel and training activities, to facilitate the temporary assign- ment of personnel between the Fed- eral Government, the State and local governments, and for other pur- poses." Pursuant to Title II of the IPA, "Strengthening State and Local Per- sonnel Administration," the United States ivil Service Commission was authorized ito make grants to state and local govern- ments to enable them to strengthen their staffs by improving personnel administra- tion. Pub. L. No. 91-648, § 201, 84 Stat. 1911 (1970). In January 1973, the City's Personnel Department had determined to cake advantage of this federal program by applying for and receiving IPA funding for development of personnel tests and personnel test validation procedures. With the promise of such funding, the City, in January 1973, entered into two contracts with a Washington, D.C. con- Sulting firm named American Institutes for Research ("AIR") -- one directed towards developing a method of construct- ing valid physical selection tests for Dhysically demanding city jobs, the other A191 directed towards the development of suit- able written examinations. Since IPA grants are awarded to support broad research projects and not to pay for the development of an opera- tional selection procedure to select employees for a particular job, the 1973 City contracts looked to the development of generalizé le approaches to job analy- sis, test development, and validation which could be applied to a wide variety of city jobs. In accordance with IPA requirements, both contracts were for one year only. However, each contract was thereafter renewed annually for the fol- lowing two years. Although general in their over- all objectives, both contracts provided that AIR would study three job titles in particular in order to develop more | Droadly applicable methods. In March A192 1973 the decision was made that the three s to be studied would be fireman, -~sAnm a) a nman , and parking enforcement ® t ’ { Specifically, as of January l, 273, the City contracted with AIR for the "Development of Physical Test Valida- m ‘ion Procedures” to be applied to jobs th physical demands. The contract was thorized under IPA Grant No. 72-14. The full amount of the contract ($37,476) was to be paid with funds received from ‘the U.S. Civil Service Commission. The term of the contract was January 1, 1973, through December 31, 1973, later extended to March 31, 1974. The second year of the City’s contract with AIR for the "Development of Physical Test Validation Procedures" was carried out under IPA Grant No. 73-NY-27c. The full amount of the contract ($22,500) was to be payable A133 with funds received from the U.S. Civil service Commission. The term of the contract was April 1974, through Decem- per 31, 1974, later extended to Febru- ary 15, 1975. Also, as of January 1, 1973, the City entered into a contract with AIR to develop written test procedures. Pro- grams were to be developed which, with a minimum number of modifications, might be utilized for most entry-level City posi- tions and some promotional positions. The contract was authorized under IPA Grant No. 72-5, and the full amount of the contract ($59,992) was to be payable ~ with funds received from the U.S. Civil Service Commission. The term of the contract was January 1, 1973, to Decem- der 31, 1973, but was extended to March 31, 1974. The second year of the City's contract with AIR for the develop- A194 ment of written test validation proce- dures waS Carried out under IPA Grant No. 73-NY-28c. The full amount of the contract ($19,956) was to be payable with funds received from the U.S. Civil Ser- vice Commission. The term of the con- tract was April 1, 1974, through Decem- ber 31, 1974, later extended to Febru- ary 15, 1975. While the parties to the con- tracts had contempicated that the overall term of the projects undertaken by AIR would last three years and while IPA grants (No. 75-NY-04c and No. 75-NY-05c in the amounts of $19,922 and $15,000 for the physical and written projects, re- spectively) to be paid in full by the U.S. Civil Service Commission had been issued, both contracts were cancelled by the City, effective September 30, 1976. These cancellations were explained by witnesses for the City at trial as attributable to the City's fiscal cr [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_2333%3A2. Public record. Not legal advice.