Aguilera v. Cook County Police and Corrections Merit Bd., 84-1409

• Decision Date: 28 May 1985
• Docket Number: No. 84-1409,84-1409
• Citation: 760 F.2d 844
• Parties: 37 Fair Empl.Prac.Cas. 1140, 36 Empl. Prac. Dec. P 35,160, 53 USLW 2563 Marcus AGUILERA, Plaintiff-Appellant, v. COOK COUNTY POLICE AND CORRECTIONS MERIT BOARD, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 844

760 F.2d 844

37 Fair Empl.Prac.Cas. 1140,

36 Empl. Prac. Dec. P 35,160, 53 USLW 2563

Marcus AGUILERA, Plaintiff-Appellant, v. COOK COUNTY POLICE AND CORRECTIONS MERIT BOARD, Defendant-Appellee.

No. 84-1409.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 10, 1985.

Decided April 30, 1985.

Rehearing and Rehearing En Banc Denied May 28, 1985.

Alan I. Becker, Bowles, Becker & Levine, Chicago, Ill., for plaintiff-appellant.

Iris E. Sholder, Asst. State's Atty., Chicago, Ill., for defendant-appellee.

Before ESCHBACH, POSNER, and COFFEY, Circuit Judges.

POSNER, Circuit Judge.

The plaintiff, Aguilera, claims that Cook County violated Titles VI and VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000d-2000e, by refusing to hire him as a corrections officer (guard) of the Cook County Jail back in 1976. After earlier proceedings unnecessary to dwell on here, the district court granted summary judgment for the County, 582 F.Supp. 1053 (N.D.Ill.1984), and Aguilera appeals.

Aguilera is Hispanic, and contends that the County's requirement that its corrections officers have a high school diploma or high-school-equivalency certificate bears disproportionately against Hispanic people (defined as people who have Spanish last names). The district court was skeptical about whether the statistics that Aguilera had presented to show this disproportionate effect ("disparate impact," in the jargon of job-discrimination law) were any good, but held that in any event a high school education is a reasonable qualification for being a corrections officer. The County argues that it had other nondiscriminatory reasons for not hiring Aguilera, but we find these unpersuasive. Pursuant to an earlier order of the court, Aguilera was permitted to take the mental-ability test that is the next hurdle the applicant must jump after presenting his high school diploma or equivalency certificate--and he failed it. The County argues that since Hispanics have a higher pass rate than whites--38 versus 32 percent--the test cannot discriminate against them, and therefore provides a lawful ground for the refusal to hire Aguilera. But if the requirement of a high school education is discriminatory, the mental-ability test may indeed be a further, and discriminatory, barrier to Hispanics. Suppose (to take an extreme example) that Cook County required black people applying for positions as corrections officers to have Ph.D.'s but whites to have only high school diplomas, and suppose the pass rate on the mental-ability test was 38 percent for blacks and 32 percent for whites. The closeness of these figures would be quite suspicious, as the black applicants would be a much better educated group than the whites and ought to have a much higher pass rate. Similarly, if it is true as Aguilera contends that requiring a high school education of Hispanics imposes a more stringent qualification on them than on others because Hispanics through no fault of their own have found it difficult to obtain such an education in Chicago, the higher pass rate of those Hispanics who do succeed in obtaining such an education does not prove that the mental-ability test is not also slanted against Hispanics. All this is not to say that Aguilera has proved that either the educational requirement or the test has a disproportionate impact on his group; but he has put in enough evidence to withstand summary judgment on the ground of no impact.

The County also points out that Aguilera had a significant criminal record. Quite possibly it would not have hired anyone with such a record. But this is a contested question of fact and therefore cannot be resolved in a summary-judgment proceeding. It is not as if the County had a flat rule against employing guards with criminal records. Such a rule might be reasonable (an issue we need not decide), and if so it would be a nondiscriminatory ground for not hiring Aguilera. But the County has no such rule, and it was only after this suit was brought that it decided that Aguilera should be disqualified by his criminal record.

The County also argues that (as the district judge thought but did not hold) Aguilera failed even to show that the requirement of a high school education affects Hispanics disproportionately. Aguilera put in census data showing that in 1980, 70 percent of the white residents of Cook County aged 25 and older had a high school education compared to only 35 percent of the Hispanics. There is no suggestion that Aguilera picked the data to help his case. They were the only data available. The County argues that they are no good because they exclude persons 21 through 24 years old and include persons over 44, though the eligible group for appointment as Cook County corrections officers was 21 to through 44. Younger Hispanics are more likely to have completed high school than older ones, so leaving out 21 through 24-year-olds biases the census data in Aguilera's favor. But by the same token including everyone over 44 biases the census data against Aguilera; and there must be more Hispanics in Chicago above the age of 44 than between 21 and 24. In any event the disparity between the completion of high school by whites and by Hispanics is so great that it is out of the question that more complete statistics would eliminate it. Statistics no more refined than those presented by Aguilera have often been relied on to establish a prima facie case of racially or ethnically disproportionate impact. See, e.g., Walls v. Mississippi State Dept. of Public Welfare, 730 F.2d 306, 315 and n. 8 (5th Cir.1984); Hameed v. International Ass'n of Bridge, Structural & Ornamental Iron Workers, Local Union No. 396, 637 F.2d 506, 510-11 and n. 4 (8th Cir.1980). They were good enough to make out a prima facie case for Aguilera in the absence of any contrary statistical evidence.

The district court held, however, that a high school education is an appropriate credential to require of a Cook County corrections officer; and if the court could properly find, without a trial, that such a credential "bear[s] a demonstrable relationship to successful performance" of such a job, or, what we take to be the equivalent, "fulfill[s] a genuine business need," then we must affirm. Griggs v. Duke Power Co., 401 U.S. 424, 431-32, 91 S.Ct. 849, 853-54, 28 L.Ed.2d 158 (1971). But what exactly is the standard that we are to apply to this question? The key words in the passages we have quoted from the Griggs case, "need" and "demonstrable relationship to successful performance," are not synonyms; and, surprisingly, the later cases do not converge on a definite and clear standard. For example, compare Zahorik v. Cornell University, 729 F.2d 85, 95 (2d Cir.1984), with Zuniga v. Kleberg County Hospital, 692 F.2d 986, 991-92 (5th Cir.1982), and Wright v. Olin Corp., 697 F.2d 1172, 1185 n. 21 (4th Cir.1982). One popular formulation--"essential to safe and efficient" conduct of the employer's business, which originated in the Supreme Court's decision in Dothard v. Rawlinson, 433 U.S. 321, 331 n. 14, 97 S.Ct. 2720, 2728 n. 14, 53 L.Ed.2d 786 (1977)--seems very stringent indeed, but is not. It would be if it just said "essential" to the employer's business or "essential to safe" conduct of the business; but "essential to ... efficient" is just another way of saying "efficient," which is pretty much the same thing as "reasonable." In any event, actions speak louder than words; and we shall see that the cases support a tolerant standard for requirements such as the one in issue here. Our circuit has been content to require "a reasonably tight fit between the challenged criterion and the actual demands of the job," Caviale v. Wisconsin Dept. of Health & Social Services, 744 F.2d 1289, 1294 (7th Cir.1984), and we reaffirm this formulation.

True, the Equal Employment Opportunity Commission has issued detailed guidelines for validating procedures for the selection of employees (see 29 C.F.R. Part 1607 for the current guidelines); the guidelines are applicable to educational requirements as well as to tests, see 29 C.F.R. Sec. 1607.16(Q); and such requirements have sometimes been rejected because they had not been validated in accordance with the guidelines, see, e.g., Carpenter v. Stephen F. Austin State University, 706 F.2d 608, 622 (5th Cir.1983). But the guidelines have never been promulgated as regulations, and do not have the force of law, see, e.g., Guardians Ass'n of New York City Police Dept., Inc. v. Civil Service Comm'n, 630 F.2d 79, 90-91 (2d Cir.1980); and their exacting criteria are more applicable to tests than to educational requirements. Tests are made and scored by the employer, hence easily misused; degrees are awarded by schools that are independent of the employers who use the degrees as job qualifications. Vuyanich v. Republic Nat'l Bank, 505 F.Supp. 224, 372 (N.D. Tex.1980), vacated on other grounds, 723 F.2d 1195 (5th Cir.1984).

Sometimes the appropriateness of an educational requirement is sufficiently obvious to allow dispensing with empirical validation. No one would insist that a law school validate statistically the "business need" behind requiring that its faculty members have law degrees (which might, indeed, be quite difficult to do), or that a hospital validate a...