Officers for Justice v. Civil Service Com'n of City and County of San Francisco

• Decision Date: 05 November 1992
• Docket Number: No. 91-16519,91-16519
• Citation: 979 F.2d 721
• Parties: 62 Fair Empl.Prac.Cas. (BNA) 868, 60 Empl. Prac. Dec. P 41,860, 61 USLW 2305 OFFICERS FOR JUSTICE, et al., United States of America, Plaintiffs, and San Francisco Police Officers Association, Intervenor-Appellant, v. The CIVIL SERVICE COMMISSION OF the CITY AND COUNTY OF SAN FRANCISCO, et al., City and County of San Francisco, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 721

979 F.2d 721

62 Fair Empl.Prac.Cas. (BNA) 868,

60 Empl. Prac. Dec. P 41,860, 61 USLW 2305

OFFICERS FOR JUSTICE, et al., United States of America, Plaintiffs, and San Francisco Police Officers Association, Intervenor-Appellant, v. The CIVIL SERVICE COMMISSION OF the CITY AND COUNTY OF SAN

FRANCISCO, et al., City and County of San

Francisco, et al., Defendants-Appellees.

No. 91-16519.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 13, 1992.

Decided Nov. 5, 1992.

Duane W. Reno, Davis, Reno & Courtney, San Francisco, California, for intervenor-appellant.

George A. Riley, Sp. Asst. to the City Atty., California, Civ. Service Com'n, Laura J. Schulkind, Public Advocates, Inc., San Francisco, Cal., Officers for Justice, for defendant-appellees.

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

Before WALLACE, Chief Judge, POOLE, Circuit Judge, and MARSH, ^* District Judge.

WALLACE, Chief Judge:

The San Francisco Police Officers' Association (Union) appeals from a district court order approving the City and County of San Francisco's (City) proposal to "band" scores from the 1989 promotion examinations for police sergeant and assistant inspector. The Union challenges this scoring procedure on the grounds that it employs racial preferences in violation of (1) Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e-2000h-6, as amended by the Civil Rights Act of 1991, Pub.L. No. 102-166, 105 Stat. 1071 (1991 Act), (2) the equal protection clause of the Fourteenth Amendment, and (3) the consent decree entered earlier in this action. The Union also contends that banding is not a "substantially equally valid" alternative to rank order promotions under the Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. § 1607 (1990) (Uniform Guidelines ). The district court had jurisdiction pursuant to 42 U.S.C. §§ 2000e, 1981, 1983. We have jurisdiction over this interlocutory appeal pursuant to 28 U.S.C. § 1292(a)(1). We affirm.

I

This appeal arises out of the district court's August 21, 1991, order declaring "banding" a legally valid scoring procedure for promotion examinations to certain ranks in the San Francisco Police Department (Department). The order permits the City to treat scores that fall within a statistically derived "band" as substantively equivalent for purpose of the knowledge, skills, and abilities measured by the examination. The City proposes to use banding in connection with the last 15 of 115 appointments in order to promote a higher percentage of minority officers to sergeant and assistant inspector positions than would be promoted under a strict rank order system.

The City seeks to band some test scores as a means of complying with the consent decree entered earlier in this action. The consent decree settled two race and sex discrimination actions brought by the Officers for Justice and the United States pursuant to 42 U.S.C. §§ 1981 and 1983, and Title VII. The Union intervened as a defendant in both of these actions. All parties later entered into the consent decree, which the district court approved in March 1979. See Officers for Justice v. Civil Serv. Comm'n, 473 F.Supp. 801 (N.D.Cal.1979) (Officers for Justice), aff'd, 688 F.2d 615 (9th Cir.1982), cert. denied, 459 U.S. 1217, 103 S.Ct. 1219, 75 L.Ed.2d 456 (1983).

The consent decree, which is based upon an undisputed history of discrimination, prohibits the City from unlawfully discriminating against any employee or applicant for employment with the Department on the basis of race, sex, or national origin. Id. at 811. It also provides for "specific, definable and good faith efforts to be made [by the City] to achieve certain goals for employment of women and minorities" within a specified time period. Id. at 810. It establishes as a target the appointment of minorities and women to sergeant and assistant inspector positions in proportion to their representation in the qualified applicant pool and sets a long term goal of 45 percent minority representation in the Department. Id. at 813-15. In addition, the consent decree prohibits the use of selection procedures that have an adverse impact on minorities and women unless they are proven to be valid under the Uniform Guidelines. Id. at 812.

This is not the first time we have examined the Department's promotion procedures. See San Francisco Police Officers' Ass'n v. City and County of San Francisco, 812 F.2d 1125, 1132 (9th Cir.1988), op. withdrawn, on reh'g, 842 F.2d 1126, 1128 (9th Cir.1988), amended, 869 F.2d 1182 (9th Cir.1988) (Police Officers' III), cert. denied, 493 U.S. 816, 110 S.Ct. 68, 107 L.Ed.2d 35 (1989). In Police Officers' III, we disapproved of a scoring system that changed the relative weight of different components of an examination as a means of minimizing its adverse impact on minorities. We held that result-oriented reweighting of examination results unlawfully discriminated against candidates on the basis of race and gender. 869 F.2d at 1184. We decided, however, not to penalize those individuals who had been promoted under the reweighting plan. Id.

On remand, the district court ordered the City to administer new examinations and to appoint 100 sergeants and 60 assistant inspectors on the basis of the results. The examinations were administered in November and December 1989. Despite the City's efforts to administer a fair examination, which included the hiring of outside professional test developers, the 1989 examinations again produced an adverse impact on minorities.

Rather than discard the examination results, or administer a new examination, the City proposed to "band" the scores in an effort to meet the requirements of the consent decree. The "band" is a statistically derived confidence range that is applied to the examination results. Differences between scores within the band are considered to be statistically insignificant due to measurement error inherent in scoring the examination. The City proposed to treat scores within the band as identical for purposes of determining promotion eligibility. For those within the same band, the City could then consider secondary criteria, not measured by the examination, in selecting candidates for promotion. When the top scorer within a band is selected for promotion, the band would "slide" down and the next highest score would serve as the reference point. In this way, no candidate would be denied a promotion in favor of another whose score is statistically significantly lower than his or hers.

Banding is premised on the belief that minor differences in test scores do not reliably predict differences in job performance. It also recognizes that an individual is unlikely to achieve an identical score on consecutive administrations of the same examination. Because some measurement error is inevitable, strict rank order promotions will not necessarily reflect the correct comparative abilities of the candidates. The smaller the difference between observed scores, the more likely it is a result of measurement error, and not a variance in job-related skills and abilities.

Through the application of a statistical measurement of reliability, the City determined the width of the bands to be applied to the examination results in this case. The City computed the standard error of measurement by multiplying the standard deviation of scores from the examination by the square root of one minus the reliability coefficient. The City's application of two standard deviations established a confidence factor of 1.96 which, when multiplied by the standard error of measurement, produced a band of 4.0 points for the sergeant's examination and 5.48 points for the assistant inspector's examination. The sergeant band encompassed 52 of 747 candidates, the assistant inspector's 71 of 831.

The City then sought a declaratory judgment from the district court that its banding proposal was legal. The City proposed to make the 100 promotions ordered by the district court in strict rank order and 15 additional promotions pursuant to its banding proposal. The City also indicated that it would use race as the sole criterion for promoting candidates whose scores were within the same band. Minority candidates would be selected first from within each band. When no minorities remained, the highest scorers would be selected until the band "slid" down to encompass additional minority candidates. Race would thus be the paramount consideration in the selection of candidates from within the band.

The district court heard two and one-half days of testimony from five experts on the validity of banding as a selection method. The court ruled that the City's plan violated the restrictions on race conscious remedies set forth by the Supreme Court in University of California Regents v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), and by this court in Higgins v. City of Vallejo, 823 F.2d 351 (9th Cir.1987) (Higgins), cert. denied, 489 U.S. 1051, 109 S.Ct. 1310, 103 L.Ed.2d 579 (1989). The district court indicated, however, that banding was an appropriate use of test scores and that the City's computation of the band was acceptable. The court also suggested that a modified proposal, along the lines approved in Bridgeport Guardians, Inc. v. City of Bridgeport, 933 F.2d 1140 (2d Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 337, 116 L.Ed.2d 277 (1991), would be considered. The City then proposed three criteria in addition to race--professional conduct, education, and training and experience--to be used in selecting candidates for promotion from within the band. The district court accepted this modification and declared banding and the proposed selection criteria "legally sound."

II

We first consider whether the use of racial preferences as a "plus" factor in promotion decisions violates Title VII as amended by the 1991 Act, the equal protection clause, and the...