Boston Chapter, N.A.A.C.P., Inc. v. Beecher, No. 74-1067

• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)
• Writing for the Court: Before COFFIN, Chief Judge, McENTEE and CAMPBELL; LEVIN H. CAMPBELL; PER CURIAM
• Citation: 504 F.2d 1017
• Parties: 8 Fair Empl.Prac.Cas. 855, 8 Empl. Prac. Dec. P 9678, 8 Empl. Prac. Dec. P 9765 BOSTON CHAPTER, N.A.A.C.P., INC., et al., Plaintiffs-Appellees, v. Nancy B. BEECHER et al., Defendants-Appellees, Director and Commissioners of Civil Service, Defendants-Appellants.
• Docket Number: No. 74-1067
• Decision Date: 08 November 1974

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504 F.2d 1017 8 Fair Empl.Prac.Cas. 855, 8 Empl. Prac. Dec.
P 9678,
8 Empl. Prac. Dec. P 9765 BOSTON CHAPTER, N.A.A.C.P., INC., et al., Plaintiffs-Appellees,
v.
Nancy B. BEECHER et al., Defendants-Appellees, Director and
Commissioners of Civil Service, Defendants-Appellants. No. 74-1067. United States Court of Appeals, First Circuit. Argued May 7, 1974.
Decided Sept. 18, 1974
Costs Allocated Nov. 8, 1974.

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Edward D. Kalman, Asst. Atty. Gen., with whom Robert H. Quinn, Atty. Gen., and Walter H. Mayo, III, Asst. Atty. Gen., Boston, Mass., were on brief, for appellants.

David L. Rose, Atty., Dept. of Justice, with whom Stanley Pottinger, Asst. Atty. Gen., Washington, D.C., James Gabriel, U.S. Atty., Boston, Mass., and James M. Fallon, Atty., Dept. of Justice, Washington, D.C., were on brief for United States, appellee.

Patrick J. King, Boston, Mass., with whom Thomas A. Mela, Boston, Mass., was on brief, for N.A.A.C.P. et al., appellees.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

For many years applicants for the position of fire fighter in the cities and towns of Massachusetts have had to pass a written multiple-choice test (the 'test'), administered by the Massachusetts Division of Civil Service. The Division appeals from a district court decision holding the test insufficiently related to a fire fighter's duties to justify its disproportionate impact upon black and Spanish surnamed applicants and ordering a preference to be given members of those minorities, in future hiring, to remedy past discrimination. 371 F.Supp. 507 (D.Mass.1974).

Two actions brought against Boston, its Fire Commissioner and Massachusetts Civil Service officials were consolidated in the district court. The first was brought late in 1972 by the Boston Chapter, N.A.A.C.P., Inc., and by black and Spanish surnamed individuals under 42 U.S.C. 1981, 1983, and the Fourteenth Amendment. ¹ Plaintiffs alleged that standards and procedures for recruiting and hiring fire fighters had the forseeable effect of discouraging minority

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employment. The test, a swim requirement, and the disqualification of those with felony records were all challenged. A second action was brought early in 1973 by the Attorney General of the United States under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., as amended by the Equal Employment Opportunity Act of 1972. Both suits sought not only orders forbidding the challenged practices but also remedial hiring of enough minority individuals to offset past discrimination.

The district court held a hearing at which evidence was introduced concerning the alleged discriminatory hiring practices and the disproportionate racial impact of the test. After the hearing the parties stipulated that it would be treated as one on the merits of the testing issue, but would cover only the 'preliminary injunction stage' of the recruiting challenge. Objections to the felony disqualification and the swim test were not pressed at the hearing, but have not been abandoned. The district court's opinion and judgment enjoined use of the test in its current form, ordered Boston and its Fire Commissioner to engage in additional recruiting of minorities, and awarded minorities a preference in hiring to ameliorate the effects of past discrimination. Boston and its Fire Commissioner took no appeal from the court's adverse rulings.

I

In Castro v. Beecher, 459 F.2d 725, 732 (1st Cir. 1972), we held that an employer may use a means of selection having a 'racially disproportionate impact' only if he can show 'that the means is in fact substantially related to job performance'. See Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). The approach is thus two-pronged: those challenging an employment test must establish its disproportionate impact by demonstrating that, for whatever reason, it is more of a hurdle for minority members than for others; once this is shown, the test's proponents acquire a burden of justification and must 'prove that the disproportionate impact was simply the result of a proper test demonstrating lesser ability of black and Hispanic candidates to perform the job satisfactorily'. Vulcan Society v. CSC, 490 F.2d 387, 392 (2d Cir. 1973).

Some courts, including the court below, describe the showing plaintiffs must make as a 'prima facie case' of 'racial discrimination'. We use 'racially disproportionate impact' because it is a neutral and seemingly more accurate description. A means of selection may disqualify proportionally more minority candidates than others and thus have a racially disproportionate impact, yet not be discriminatory in the constitutional sense. In Castro, for example, we approved a high school diploma requirement for police even while recognizing a disparity between blacks and Spanish surnamed candidates and others in respect to a high school education. ² We thought a high school education was a 'bare minimum for successful performance of the policeman's responsibilities'. Castro, supra 459 F.2d at 735. But we disapproved a paper-and-pencil test which also bore more heavily on blacks and Spanish than others because it was not proven 'convincingly' that there was a 'fit between the qualification and the job'. Id. at 732.

Plaintiffs usually meet their initial burden by demonstrating that minority candidates have a higher test failure rate; defendants are then put to their proof of job-relatedness. Here, however, the district court found inadequate the only available sampling showing how blacks and Spanish have fared on the test, ³ although it found much evidence

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that blacks and Spanish have held disproportionately few jobs in the fire departments of the major Massachusetts cities where most of them reside. ⁴ Until recently relatively few minority members applied for fire fighting jobs, resulting in a very small sample from which to draw conclusions about their comparative test performance.

The district court concluded that the census figures, especially those for Boston and Springfield, when used 'in support of the meager exam statistics', established a prima facie case of the test's discriminatory effect. The court correctly noted that

'such a finding is not determinative of the issue but merely shifts the burden to the defendant to justify the use of the exam. This is a burden a public employer should not be unwilling to assume.' 371 F.Supp. at 514.

We need not decide whether census figures showing a gross disproportionality in the employment of black and Spanish surnamed fire fighters and others are enough, standing alone, to shift the burden of justification to defendants. In Castro, when dealing with a relatively innocuous height requirement, we declined to impose a burden of justification upon defendants in the absence of any evidence that the height requirement adversely affected minority candidates. On the other hand, the present test, given for more than half a century, is a far more salient selection device, and it can be argued that a showing of significant disproportionality in minority employment, coupled with even minimal proof of a higher minority failure rate, is enough to shift to the Division of Civil Service the burden of justification. ⁵ Cf. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Disproportionate impact or prima facie discrimination are simply labels that aid in singling out qualifications which it is reasonable to ask an employer to justify; 'complete mathematical certainty' is not required. Vulcan Society, supra 490 F.2d at 393. When widespread minority underemployment is shown to exist in a given occupation, primary selection devices should not be immunized

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from study by placing an unrealistically high threshold burden upon those with least access to relevant data. This seems especially so when the small size of the sample may be traceable to the test's discouraging effect as well as to unequal recruitment practices. ⁶

But we do not decide on this issue alone. What in our view conclusively tips the scale in plaintiffs' favor is the uncontroverted testimony, from experts called by both sides, that black and Spanish surnamed candidates typically perform more poorly on paper-and-pencil tests of this type. See Cooper & Sobol, Seniority & Testing Under Fair Employment Laws: A General Approach to Objective Criteria of Hiring & Promotions, 82 Harv.L.Rev. 1589, 1640 (1969). (Cf. Castro, supra, where black and Spanish police candidates were shown to have performed more poorly than did whites on a test of similar design.) In light of the expert testimony, we cannot say that the district court was clearly erroneous in its ultimate fact finding that plaintiffs had established a prima facie case. ⁷ The burden thus shifted to the defendants to justify the test by showing that it was job-related.

That Massachusetts did not intentionally discriminate is immaterial. Title VII proscribes 'standardized testing devices which, however neutral on their face, operated to exclude many blacks who were capable of performing effectively in the desired positions'. McDonnell Douglas Corp., supra, 411 U.S. at 806, 93 S.Ct. at 1826. See Griggs, supra, 401 U.S. at 431-432, 91 S.Ct. 849. Equitable relief under the Civil Rights Act and the Fourteenth Amendment requires no proof of malice or 'fault'. 'The result, not the specific intent, is what matters'. Rozecki v. Gaughan, 459 F.2d 6, 8 (1st Cir. 1972). See Inmates of the Suffolk County Jail v. Eistenstadt, 494 F.2d 1196 (1st Cir. 1974), application for cert. filed, No. 73-1992 (U.S. July 8, 1974). The question is whether the test denied applicants equal protection of the laws by creating 'built-in headwinds' for those who, although qualified to perform the job, cannot pass the test. If it did, the inequality may be remedied without regard to...