Hamer v. City of Atlanta
| Decision Date | 23 May 1989 |
| Docket Number | 86-8788,Nos. 86-8607,s. 86-8607 |
| Parties | 50 Empl. Prac. Dec. P 39,046 William H. HAMER, et al., Plaintiffs-Appellants, v. CITY OF ATLANTA, et al., Defendants-Appellees. UNITED STATES of America, Plaintiffs, v. CITY OF ATLANTA, et al., Defendants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Antonio L. Thomas, Thomas & Dotson, Atlanta, Ga., for plaintiffs-appellants.
Marva Jones Brooks, W. Roy Mays, III, Deborah McIver Floyd, Atlanta, Ga., for City of Atlanta et al.
Anthony J. McGinley, Carter & Ansley, Atlanta, Ga., for D. Stewart, G. Rioux, R.G. Bickford, B. Poss and L. Miller.
Appeals from the United States District Court for the Northern District of Georgia.
Before RONEY, Chief Judge, CLARK, Circuit Judge, and MORGAN, Senior Circuit Judge.
This is an appeal from an order issued by the United States District Court for the Northern District of Georgia determining that a written examination given by the City of Atlanta for the purpose of promoting candidates in the Bureau of Fire Services from the rank of firefighter to fire lieutenant was properly validated. The appellants fault the decision of the district court in two respects: (1) the district court failed to recognize that the validation study on which the City of Atlanta relied was flawed; and (2) the district court erred in not determining whether alternative selection procedures would have had less of an adverse impact on the racial composition of those promoted.
The issue in this lawsuit is a narrow one. Although the City conceded that the promotions had an adverse impact on race, the appellants do not assert that the examination was racially biased. Instead, they attack the validation of the test. As will be discussed infra, if business necessity requires employees to perform certain specified skills, an employer is not guilty of violating Title VII of the Civil Rights Act if promotions are made pursuant to testing applicants for those skills by a procedure that is properly validated. 29 C.F.R. Sec. 1607.2(C) states:
Nothing in these guidelines is intended or should be interpreted as discouraging the use of a selection procedure for the purpose of determining qualifications or for the purpose of selection on the basis of relative qualifications, if the selection procedure had been validated in accord with these guidelines for each such purpose for which it is to be used.
The Guidelines do consider the subject of adverse impact under the heading of "Fairness," which is set forth in 29 C.F.R. Sec. 1607.14(B)(8) and is discussed infra at pages 1531-1532. We affirm.
The history of this case properly begins on September 18, 1975, when black firefighters filed a complaint in the United States District Court for the Northern District of Georgia, alleging that certain employment practices of the City of Atlanta were unlawfully discriminatory and violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e and 42 U.S.C. Secs. 1981, 1983 and 1985 (). The district court allowed the International Association of Firefighters to intervene on behalf of white firefighters employed by the Bureau of Fire Services of the City of Atlanta. Thereafter, on December 12, 1975, the United States of America, as plaintiff, filed its own action against the City of Atlanta, (district court civil action C75-2315, in this court 86-8788). The district court consolidated the two actions and eventually all parties to this case entered into a consent order resolving all allegations of discrimination and reverse discrimination. In this consent order, the City of Atlanta agreed not to discriminate against any person in its Bureau of Fire Services on account of race. The consent order also included a provision stipulating that the district court retained jurisdiction over this matter and reserved the right to initiate, on its own motion, appropriate proceedings in the event a question arose as to any party's compliance with the provisions of the agreement. The consent order was approved by the district court on November 9, 1979. (R. 5 at 119).
The consent decree implicitly ratified City of Atlanta Ordinance Sections 11-3041 to 11-3048 (Defs.Exh. 1) which provided in part: "A candidate shall first take a written examination of knowledge that has been validated for content by a professional tester consulted in accordance with Title VII of the 1964 Civil Rights Act, as amended (42 U.S.C. Sec. 2000e et seq)." The general purpose of the ordinance "is to establish a promotional system for the bureau that provides for the selection of superior officers based solely on merit and qualifications." (Sec. 11-3041). The ordinance makes clear that a written examination is the sole component in making promotions to the rank of lieutenant. Promotion to captain, however, includes both a written examination and an oral examination.
In the summer of 1979, the City of Atlanta entered into a relationship with McCann Associates, Inc. of Huntingdon Valley, Pennsylvania, a professional test-developing firm. After preliminary studies and consultations, it was decided in 1980 that McCann was to provide the Bureau of Fire Services with a written, multiple-choice examination, to be used in promoting individuals to two company officer ranks--fire lieutenant and fire captain. The test would be based on a thorough job analysis, be reliable and valid, and would conform to the requirements of the Uniform Guidelines for Employee Selection Procedures. 29 C.F.R. Sec. 1607.
After completion of a job analysis, McCann developed a pool of 250 questions from which three alternative examinations could be drawn. In order to demonstrate the job relatedness of the potential exams, McCann subjected them to a criterion related validity study using the concurrent model. As part of the validation process, McCann asked shift commanders and battalion chiefs in the Bureau of Fire Services to give job performance ratings to 78 existing fire captains, using criteria developed by McCann. Forty-two captains were white and 36 were black. McCann trained the shift commanders and battalion chiefs in the rating procedure and the ratings for the 78 fire captains were taken in January, 1981. In March 1981, the pool of 250 questions was administered to the fire captains in the form of a written examination. Prior to taking the exam, McCann provided the fire captains with a test study guide and, after scoring the 78 exams, McCann compared each individual's test score with the performance rating given that individual by his supervisors.
The Uniform Guidelines for Employee Selection Procedures ("Guidelines") require a sufficiently high correlation between test scores and performance ratings in order to establish the criterion related validity of a promotion exam. In other words, an employer desiring to use a certain exam must first show that those performing well on the exam are also given high job performance ratings and those performing poorly are given lower job performance ratings. If a statistically significant relationship is indicated, then the examination is considered to be valid because a high grade on the examination is predictive of satisfactory performances.
When McCann compared the 78 test scores with their corresponding performance ratings, the correlation proved insufficient to meet the requirements of the Guidelines. Accordingly, none of the three alternative exams were validated. After analyzing the information that had been gathered up to that point, McCann Associates decided that the reason for the poor correlation was the relative inexperience of the shift commanders and battalion chiefs. Most of the supervisors had been promoted to their current positions only nine months previously. Not only did they lack experience at their own job, they had only had nine months to observe their subordinates. McCann concluded that this period of time was insufficient for the supervisors to adequately rate the performance of the fire captains. McCann and the City of Atlanta decided to have the supervisors rate the fire captains once again and compare the new ratings with the original test scores from March 1981. In June 1982, after fifteen months had passed since the exam had been given and after twenty-four months of supervision of those being rated had accrued, the rating was repeated, using the same training and techniques. Eleven new fire captains participated by taking the 250 question exam, raising the number of subjects to 89, 49 of whom were white, 40 of whom were black. When McCann compared the new ratings with the test scores, they found a correlation that was sufficient to satisfy the Guidelines for each of the three alternative forms of the exam.
After McCann reported the successful validation of the examination, the City of Atlanta decided to have McCann test the candidates in order to rank them for promotion to fire lieutenant. (R. 23-440). In October of 1984 the Bureau of Fire Services administered a written, multiple-choice examination for the purpose of promoting ten persons to the rank of fire lieutenant in the Bureau. Of the 270 firemen who took the test, 156 were black, 113 were white, and one was of "other" racial origin. (See Def.Exh. 2.) The persons who achieved the ten 1 highest scores consisted of nine whites and one oriental. Because this result manifested a statistical adverse racial impact against black persons, the City engaged Dr. John Veres and Dr. Chester Palmer of the University of Auburn at Montgomery, Alabama, to determine whether the examination was validated in accordance with the Uniform Guidelines for Employee Selection Procedures (1978), 29 C.F.R. Sec. 1607 (1982).
Although satisfied that the test examination was properly validated, the City informally requested the district court to conduct a hearing for the purpose of determining that the examination was...
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