Western Addition Community Organization v. Alioto

• Decision Date: 09 May 1973
• Docket Number: No. 70 1335.,70 1335.
• Citation: 360 F. Supp. 733
• Court: U.S. District Court — Northern District of California
• Parties: WESTERN ADDITION COMMUNITY ORGANIZATION et al., Plaintiffs, v. Frank N. ALIOTO et al., Defendants.

360 F. Supp. 733

WESTERN ADDITION COMMUNITY ORGANIZATION et al., Plaintiffs, v. Frank N. ALIOTO et al., Defendants.

No. 70 1335.

United States District Court, N. D. California.

May 9, 1973.

Robert L. Gnaizda, Mario Obledo, Miguel A. Mendez, Mexican-American Legal Defense and Educational Fund, San Francisco, Cal., for plaintiffs.

Thomas M. O'Connor, City Atty., Michael C. Killilea, Asst. City Atty., San

Francisco, Cal., Barry S. Jellison, Davis, Cowell & Bowe, San Francisco, Cal., for Fire Fighters Union.

William J. Murphy, San Francisco, Cal., for Intervenors Robert Cutone and others.

MEMORANDUM OF DECISION

SWEIGERT, District Judge.

Pursuant to this court's previous orders of January 8, 1971, D.C., 330 F. Supp. 536, February 7, 1972, D.C., 340 F.Supp. 1351, February 17, 1972, March 7, 1972, July 20, 1972, and the court's most recent order of January 18, 1973, hearings were held on February 1st, 12th and 13th to determine whether defendants have now complied with the requirements of the Civil Rights Act of 1964 (Title VII) and the Guidelines on Employee Selection Procedures (Fed. Reg. Title 29, Chap. XIV, §§ 1607.1-1607.14) issued thereunder¹ in the preparation of a proposed written Civil Service examination² for the position of Fireman H-2.

This issue is presented because the Supreme Court of the United States in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), a case in which the employer contended that, absent an intent to discriminate, a "professionally developed ability test" could not be held to be an unlawful employment practice, rejected that contention and interpreted the Civil Rights Act of 1964 to the effect that, even when the employment test has been professionally developed without any intent to discriminate, the test is not to be given controlling force if it in fact operates to disproportionately exclude a racial group—unless it is "demonstrably a reasonable measure of job performance," adding "more than that, Congress had placed upon the employer the burden of showing that any given requirement must have a manifest relationship to the employment in question (p. 432, 91 S.Ct. p. 854). . . . If an employment practice which operates to exclude Negroes, cannot be shown to be related to job performance it is prohibited (p. 431, 91 S.Ct. p. 853). . . . The Equal Employment Opportunity Commission, having enforcement responsibility, has issued guidelines interpreting § 703(h) to permit only the use of job related tests. The administrative interpretation of the Act by the enforcing agency is entitled to great deference . . . Since the Act and its legislative history support the Commission's construction, this affords good reason to treat the guidelines as expressing the will of Congress." (p. 433, 91 S.Ct. p. 854). (See also, the recent case of United States v. Georgia Power Co., 474 F.2d 906 (5th Cir. 1973); Bridgeport Guardian v. Bridgeport Civil Service, 354 F.Supp. 778 (D.C.Conn.1973).

It should be emphasized that the issue thus presented is not whether the City has the right to give an examination on some subject or other to applicants for Fireman H-2; certainly the City has that right; the narrower issue here is only whether the City has shown the presently proposed written examination to be "demonstrably a reasonable measure of job performance," as required by Griggs, i. e., whether it has been "validated" as "job related" within the meaning of the Guidelines issued pursuant to the Civil Rights Act of 1964.

This issue must be considered and resolved in the light of this court's earlier findings of January 6, 1971, that the City's 1968³ selectivity testing for Fireman H-2 (resulting as of 1971 in a Department of 1800 men with only 4 Negroes—although Negroes comprise over 14% of the City population)⁴ has been presumptively discriminatory against minorities within the meaning of Griggs, supra.

The present issue must also be considered in the light of the fact that on February 17, 1972, this court was obliged to again hold that a subsequent written examination given for Fireman H-2 in September, 1972, purporting to correct the situation, did not do so because the City's own witnesses conceded that it had been prepared without the job analysis required by the federal Guidelines.

This case must also be considered in light of the fact that at this point the burden of proof that the City's selection test for Fireman H-2 has been validated as not discriminatory against minorities rests, not upon plaintiffs herein, but now upon the City itself. Griggs, supra.

In February of this current year the City presented its most recent proposed written examination which it now claims to be based on a proper job analysis and, further, properly "validated."

The City gives to applicants for Fireman H-2 three kinds of tests: two of them, one an athletic (physical) test (weighted 50%) and the second test an oral examination (weighted 50%) are called rating tests because on the basis of their passing scores on these two tests (and only these two tests) applicants advance to, are positioned on and are called from the Fireman H-2 Civil Service eligible list.

A third test, a written examination, which is the only part of the selection procedure challenged by plaintiffs in these proceedings, is required by the city but is used, not as a rating test like the athletic and oral tests upon which applicants proceed to the eligible list, but as a so-called pass-fail cut-off test under which applicants who fail to correctly answer an arbitrarily fixed number of questions, e. g., 70 out of 100 questions, are wholly disqualified from even taking the athletic and oral tests upon which other applicants are rated for the Fireman H-2 Civil Service eligible list. The presently proposed pass-fail, cut-off written examination consists of 100 questions—60 questions claimed to test "written communication" and 40 questions claimed to test mechanical aptitude.

THE HEARING

At the hearings three witnesses called by the City—all members of the faculty, Department of Psychology, University of California and all claiming to be knowledgeable in the field of employee selection and the requirements of the Civil Rights Act and Guidelines—testified in substance and effect that they were engaged by the San Francisco Civil Service Commission to conduct a job analysis concerning the job of Fireman H-2 and to prepare a written examination to be given to applicants for that position in addition to other athletic and oral tests; that they did conduct such a job analysis and found that 10 traits or skills were essential to the Fireman H-2 job; that they chose two of these skills —written communication and mechanical aptitude—as appropriate for testing by means of written examination; that they then prepared the proposed written examination which in their opinion is "content validated" (as distinguished from "empirical validation" (see footnote (5)), within the meaning of the Act and the Guidelines for the two skills it is designed to test; that they made no attempt at "empirical validation" because in their opinion "empirical validation" was not "feasible."

Three other claimed expert witnesses testified: one the Chief Research Study Director, Equal Employment Opportunity Commission, Washington, D. C., called by the court upon request of both sides (this witness, under agreement of the parties, had read the proposed written examination); also two other witnesses on behalf of plaintiffs, a Senior Psychologist, Graduate School of Psychology, University of California, and another, an associate with Educational Testing Service, a private non-profit service.

All three of these last mentioned witnesses testified in substance and effect that they had familiarized themselves with the affidavit testimony of the City's experts; that in their opinion the job analysis conducted by the City's professionals was for variously stated reasons wholly inadequate and, further, that so-called "content validation" of the proposed written examination was impermissible because "empirical validation" was "feasible" and any written examination of the kind in question should be "empirically validated;" further, that in any event said written examination could not be deemed to be even properly "content validated" within the meaning of the applicable Guidelines.

On the issue of the adequacy of the job analysis, the evidence is in conflict but the court finds from the evidence, considered as a whole, that the "job analysis" was conducted by the City's professionals substantially in accordance with the Guidelines.

On the remaining question, i. e., whether the proposed written examination, prepared on the basis of that job analysis, has been properly validated as job related, within the meaning of the Guidelines, the evidence is also conflicting.

On this subject of validation the Guidelines provide (Section 1607.4) that "where technically feasible a test should be validated for each minority group with which it is used, that is, any differential rejection rates that may exist based on a test must be relevant to performance on the job in question" and, further, (Section 1607.4) that "evidence of a test's validity should consist of `empirical' data demonstrating that the test is productive of or significantly co-related with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated;" also (Section 1607.5) that this "empirical" evidence in support of a test's validity "must be based on studies employing generally accepted methods for determining criterion related validity." (emphasis added).

Although the Guidelines (Section 1607.5) provide that evidence of "content" validity alone may be acceptable for well-developed tests (See, Davis v. Washington, 352 F.Supp. 187 (D.C.D.C. 1972), they also provide that this method of validation is appropriate only "where...