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February 16, 1984


The opinion of the court was delivered by: Marovitz, District Judge.


Motion for Summary Judgment

Aguilera originally charged that the defendant discriminated against him on the basis of national origin in refusing to hire him as a correctional officer. The original complaint alleged that defendant rejected his application solely because he did not possess a high school education or an equivalency certificate, and that because that requirement operates to disqualify a disproportionate amount of Spanish Surnamed Americans ("SSA's"), it violates Title VII. Judge Crowley granted summary judgment for plaintiff. Aguilera v. Cook County Merit Board, 21 F.E.P. Cases 732 (N.D.Ill. 1979). The Seventh Circuit reversed and remanded, in an unpublished order, holding that Judge Crowley erred by comparing the number of hirees over a five month period to the number of applicants over a twelve month period, and by not considering defendant's evidence of business necessity. While the case was pending in the Court of Appeals, Aguilera was allowed to take the mental ability examination which is the next step in the application process. After failing this test, Aguilera amended his complaint to add a claim charging that the mental ability test also discriminates against SSA's. Finally, on August 11, 1983 plaintiff Aguilera added a third count to his complaint charging that defendant's employment practices violate Title VI of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000d et seq. See Guardians Association v. Civil Service Commission of the City of New York, ___ U.S. ___, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983). Presently pending before the Court are cross motions for summary judgment. After full review of the record and the memoranda on file, as well as the relevant case law, for the reasons set forth below, defendant's motion for summary judgment is granted.


The thrust behind Title VII is "the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissable classifications."

  Congress did not intend by Title VII, however, to
  guarantee a job to every person regardless of
  qualifications. . . . the Act does not command that
  any person be hired simply because he was formerly
  the subject of discrimination, or because he is a
  member of a minority group.

Griggs v. Duke Power Company, 401 U.S. 424, 430-431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971). Aguilera's claim that the high school education requirement discriminates against SSA's does not involve an allegation of purposeful discrimination. Rather, Aguilera claims that the facially neutral qualification of a high school education or its equivalent operates to disproportionately exclude SSA's from eligibility for employment as a correctional officer.

To establish a prima facie case of discrimination, Aguilera need only show that the facially neutral employment standard selects applicants for hire in a significantly discriminatory pattern. Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S.Ct. 2720, 2726, 53 L.Ed.2d 786 (1977). This prima facie case may be established by statistics alone, but statistical evidence must be regarded with a substantial degree of caution. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 339, 97 S.Ct. 1843, 1856, 52 L.Ed.2d 396 (1977). As the Court stated in Teamsters, "statistics are not irrefutable; they come in infinite variety and, like any other kind of evidence, they may be rebutted. In short, their usefulness depends on all the surrounding facts and circumstances." Id. at 340, 97 S.Ct. at 1856-1857.

This analytical approach is to be followed whether the decision is made upon a motion for summary judgment, or after trial on the merits. Talev v. Reinhardt, 662 F.2d 888 (D.C.Cir. 1981). "But since summary judgment is appropriate only where `there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law', the Court must ascertain at each successive stage whether any fact essential to the claim or defense is disputed and, if not, whether on the basis of the proffered evidence a summary disposition is legally demandable." Id. (footnotes omitted).

Applicants for the positions of correctional officer must be between 21 and 45 years old. The Court has not been presented with or found any statistics which accurately reflect the percentages of whites, blacks and SSA's in the Chicago Standard Metropolitan Statistical Area (or Illinois) between the ages of 21 and 45 who are thus qualified by age to hold the position and who have a high school education or its equivalent. Thus, it is not entirely clear to this Court that plaintiff can demonstrate that the high school education requirement has a disproportionate impact upon SSA's, especially in light of the fact that SSA's have the same educational opportunities as whites. Plaintiff relies upon the 1980 census data which indicates that 70% of all whites over the age of 25 and living in Cook County meet the education requirement and that 64% of the general population of Cook County over 25 meet the requirement, but that only 35% of all SSA's over 25 and living in Cook County meet it. Thus the number of SSA's meeting the requirement is only 54% of that for the general population.

Defendant maintains that because the relevant age period is between 21 and 45, the use of statistics for persons 25 years and older is impermissible. First, the statistics do not include persons 21-24 years old, and, amongst minorities, this age group is most likely to have a high school education. See Vulcan Society v. Fire Department, 505 F. Supp. 955, 966 n. 6 (S.D.N Y 1981). Second, the statistics include persons over 45 and defendant argues that older persons (especially minorities) are less likely to meet the education requirement. Id. This argument is supported by the 1970 census which is broken down into age brackets. However, the 1970 statistics do not include persons with a GED equivalency certificate, and thus cannot be used to determine if the requirement has a disproportionate impact upon SSA's. Therefore, if this Court was writing upon a clean slate, it would conclude that plaintiff has failed to present appropriate statistics sufficiently conclusive to prove a prima facie case of disparate impact.

However, the Court is not writing on such a clean slate. In its unpublished order reversing Judge Crowley, the Seventh Circuit stated that it was undisputed that SSA's are significantly less likely to possess high school degrees than are whites. The Court reached this conclusion by reviewing the 1970 census data for persons in the Chicago area over the age of 25. Based on the 1970 census, 31.3% of SSA's over 25 years of age are high school graduates while 53.9% of all persons over 25 are high school graduates and 58% of whites are high school graduates. As already stated, this Court is not convinced that statistics that consider persons outside the age qualifications for the position is conclusive as to whether SSA's have been disproportionately excluded by the educational requirement, especially in light of the fact that the 1970 statistics do not ...

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