Craig v. Los Angeles County

• Decision Date: 22 September 1980
• Docket Number: No. 78-1527,78-1527
• Citation: 626 F.2d 659
• Parties: 24 Fair Empl.Prac.Cas. 1105, 24 Empl. Prac. Dec. P 31,297 James CRAIG, Jr., et al., Plaintiffs/Appellants, v. COUNTY OF LOS ANGELES et al., Defendants/Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 659

626 F.2d 659

24 Fair Empl.Prac.Cas. 1105,

24 Empl. Prac. Dec. P 31,297

James CRAIG, Jr., et al., Plaintiffs/Appellants, v. COUNTY OF LOS ANGELES et al., Defendants/Appellees.

No. 78-1527.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 4, 1979.

Decided Aug. 1, 1980.

Rehearing Denied Sept. 22, 1980.

A. Thomas Hunt, Timothy B. Flynn, Walter Cochran-Bond, Center for Law in the Public Interests, Los Angeles, Cal., for plaintiffs-appellants.

William F. Stewart, Los Angeles, Cal. (argued), and John H. Larson, Los Angeles, Cal., on brief, for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before GOODWIN, and WALLACE, Circuit Judges, and FITZGERALD, ^* District Judge.

GOODWIN, Circuit Judge:

After finding that the Mexican-American plaintiffs ¹ had proved a prima facie case of discrimination in the use of certain hiring tests for the position of deputy sheriff by Los Angeles County, the district court went on to find that validation of the challenged tests was sufficient to rebut any charge of a violation of federal law. Consequently, the court entered judgment dismissing the action. Plaintiffs appeal. We reverse in part and affirm in part.

This class action challenged the defendants' use of two written examinations plus the minimum height requirements of the sheriff's department as violations of Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. §§ 2000e, et seq.), and the Civil Rights Act of 1870 (42 U.S.C. § 1981) ².

The trial court considered two written verbal and cognitive ability tests. Statistics demonstrated that the ET4-1 test, administered between 1973 and 1975, had a substantial adverse impact on Mexican-Americans, requiring validation of the test. ³ We will examine the sufficiency of that validation in due course.

The district court did not reach the validation issue for the second test (CPS Form 51X) employed by the sheriff. Based on its finding that 53% of the Mexican-Americans failed the test compared to approximately 50% of the whites, the court concluded that use of that test did not adversely affect Mexican-Americans. The court's finding on impact is clearly erroneous. Stipulated statistics in the record reveal that 33% of the Mexican-Americans who took the 51X test failed while only 13% of the whites failed. ⁴ This difference is sufficient to establish a prima facie case of discrimination under Title VII. On remand, the defendants will have an opportunity to attempt to validate the CPS Form 51X examination, if they wish to continue to use it.

I. Validation

Once the plaintiff has established a prima facie case of discrimination, the burden shifts to the employer to justify the challenged selection device as a business necessity by showing that it is significantly job-related. Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977); Blake v. City of Los Angeles, 595 F.2d 1367, 1378 (9th Cir. 1979). This process is generally referred to as "validation." Id. at 1377. The validation burden compels the employer to show that the preemployment selection device has "a manifest relationship to the employment in question." Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S.Ct. 849, 854, 28 L.Ed.2d 158 (1971). The Supreme Court elaborated on the legal standard governing this inquiry as follows:

"(D)iscriminatory tests are impermissible unless shown, by professionally acceptable methods, to be 'predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated.' 29 CFR § 1607.4(c)." Albemarle Paper Co. v. Moody, 422 U.S. 405, 431, 95 S.Ct. 2362, 2378, 45 L.Ed.2d 280 (1975).

The validation process thus involves three distinct steps. The employer must first specify the particular trait or characteristic which the selection device is being used to identify or measure. The employer must then determine that that particular trait or characteristic is an important element of work behavior. Finally, the employer must demonstrate by "professionally acceptable methods" that the selection device is "predictive of or significantly correlated" with the element of work behavior identified in the second step. Id.

We turn now to the defendants' attempted validation of the ET4-1 test. The sheriff's department uses this test to determine whether the job applicant is likely to succeed in the required academic training program for the position of deputy sheriff.

The plaintiffs assert that it is not permissible under Title VII to test for predicted performance at the Sheriff's Academy; they would limit the sheriff to testing directly for predicted performance on the job. The law is somewhat ambiguous on this issue. This court has recently suggested by way of a footnote that Title VII does not permit correlation between a selection device and academy performance to substitute for validation of the device vis-a-vis actual job performance. Blake, 595 F.2d at 1382-83 n.17. The court there required the defendant police department to demonstrate a significant relationship between the challenged physical abilities test and important aspects of actual job performance as a police officer. The court recognized that one way the defendant might satisfy the requirement would be to show that the selection test correlates with measures of success in training and that those measures in turn are significantly related to job performance.

Prior to Blake, the Supreme Court had addressed the question of validation of a preemployment selection test by demonstrating relationship with an academic training program. Washington v. Davis, 426 U.S. 229, 249-52, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). The Court there approved the defendant police department's use of a verbal abilities test to determine whether applicants possessed the minimum skills necessary to understand and succeed in the academic portion of police officer training. In the circumstances before it, the Court agreed with the "sensible construction of the job-relatedness requirement" advanced by the three-judge district court to the effect that "training-program validation may itself be sufficient" to validate a selection device which impacts heavily on a protected group. Id. at 250-51, 96 S.Ct. at 2052-2053. (Emphasis added.)

The Supreme Court later summarily affirmed a case which found the validation of national teacher certification examinations against academic teacher training programs, rather than against job performance, sufficient to satisfy the job-relatedness requirement of Title VII. National Education Ass'n v. South Carolina, 434 U.S. 1026, 98 S.Ct. 756, 54 L.Ed.2d 775 (1978), aff'g United States v. South Carolina, 445 F.Supp. 1094 (D.S.C. 1977).

In neither Washington v. Davis nor National Education Ass'n does it appear that the Supreme Court considered a potential danger this circuit identified in Blake :

"If employers were permitted to validate selection devices without reference to job performance, then non-job-related selection devices could always be validated through the simple expedient of employing them at both the pre-training and training stage." 595 F.2d at 1382 n.17.

The facts in the cases before the Supreme Court suggest that this danger was minimal or nonexistent. The preemployment test in Washington v. Davis was " 'designed to test verbal ability, vocabulary, reading and comprehension,' " 426 U.S. at 235, 96 S.Ct. at 2045, and was used by the police department to assure that candidates possessed "some minimal verbal and communicative skill" necessary to enter the police training program. Id. at 250, 96 S.Ct. at 2052. The Supreme Court not unjustifiably assumed that those same skills were relevant to actual job performance. In National Education Association, the validation study demonstrated that the certification tests correlated with the content of courses at teacher training institutions in South Carolina. In that situation, there is little danger that both the qualifying test and the academic program would be manipulated to defeat the purposes of Title VII. Academic training, which there precedes the testing, is not in the hands of the immediate employer.

However, the instant case does not demonstrate similar safeguards. Both the selection procedures and the training program are under the control of the employer. And the ET4-1 aptitude test is utilized to measure, not just minimum communication skills, but also cognitive and writing skills.

Thus, we hold that the skill, characteristic or ability which the ET4-1 test purports to measure must be important to the requirements of the job. The sheriff's department may show the requisite relationship by demonstrating that the test correlates significantly with important elements of academy performance and that those elements of academy performance are important to actual job performance.

As specified earlier, the second stage in the validation process requires the defendant to show that the skill or characteristic which the challenged selection device is used to identify or measure is an important element of work behavior comprising or relevant to the job for which applicants are being screened. Albemarle Paper Co., 422 U.S. at 431, 95 S.Ct. at 2378. A specific skill or characteristic is an important element of job or training program performance when a significant portion of the employee or candidate time and energy on the job or in the training program calls for utilization of that skill or characteristic or when its absence would significantly impair the employee's or candidate's effectiveness.

In the instant case, the sheriff's department has shown only that the ET4-1 test correlates with performance on the academic portion of academy training. Specifically, the ET4-1 test measures the applicant's reading, writing and reasoning skills. These skills are considered...