We first reported on this case in an Alert on August 12, 2010.  The case is interesting because it is a long-running adverse impact case that ultimately morphed into a disparate treatment case.  Originally, the DOJ challenged two entry-level exams used by the NYC Fire Department (NYFD) on grounds of adverse impact and the Vulcan Society, which was permitted to intervene, also challenged on grounds of disparate treatment.  All told, there were three major rulings by Judge Nicholas G. Garufis of the District Court for the Eastern District of New York and an appeals ruling by the 2nd Circuit.  The settlement was agreed to after the 2nd Circuit ruling.


Regarding the first ruling [see 637 F.Supp. 2d 77], there was clear-cut evidence of adverse impact.  Among 5,300 firefighter appointments between 1999 and 2007 only 184 blacks (out of 3,100) and 461 Hispanics (out of 4,200) were appointed. Judge Garufis evaluated the job relatedness of the two tests of the based on Guardians v. CSC (1980) [see [630 F.2d 79], a case that established five major steps for proving content validity that has since been accepted in all the circuit courts.  He ruled that the NYFD did not show a sufficient relationship between firefighters' tasks and the tested abilities, the tests were written at an inappropriate reading level, and that testing professionals were not used to develop or validate the tests. He also ruled that pass/fail scores were arbitrary and unrelated to the job qualifications, and that differences in test scores were unrelated to differences in the qualifications of the candidates.


Regarding the second ruling, Judge Garufis permitted the NYFD to use a new exam that also produced adverse impact, pending proof of its job relatedness.  However, he once again found the test was not valid [see 681 F. Supp. 2d 274], and this became a major issue in the disparate treatment claim.  That led to the third ruling [683 F. Supp. 2d 225] in which Judge Garufis granted summary judgment for the plaintiffs on the disparate treatment claim on grounds that the NYFD did not successfully rebut prima facie evidence that it had acted with discriminatory intent when it failed to comply with acceptable test methods.


Had the third ruling stuck, it would have marked (at least in my opinion) the first ever successful disparate treatment challenge on grounds of intentional use of an invalid test known to produce adverse impact.  However, the 2nd Circuit overturned the summary judgment [see 717 F.3d 72] and the settlement, reported by various sources on March 18, 2014 ensued.  The 98 million dollar agreement applies to Black and Hispanics who took exams between 1999 and 2002 and did not get hired or were delayed in being hired because of the adverse impact of those tests.

By Art Gutman Ph.D, Professor, Florida Institute of Technology

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