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THOMAS v. CITY OF EVANSTON

February 26, 1985

BRENDA THOMAS, INDIVIDUALLY AND ON BEHALF OF A CLASS, PLAINTIFFS,
v.
CITY OF EVANSTON, DEFENDANT.



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

  MEMORANDUM OPINION AND ORDER

This is a Title VII class action in which the plaintiffs challenge the City of Evanston's ("the City") use of physical agility tests to screen job applicants for the Police Department ("the Department"). These tests allegedly worsened the female applicants' chances of being hired. Before being elevated to the Seventh Circuit, Judge Joel M. Flaum certified a class consisting of "all women who, from October 2, 1976 until the present, have been adversely affected by the physical agility test. . . ." The parties have now completed discovery and have filed cross-motions for summary judgment, relying mostly on a stipulation of uncontested facts. For the reasons stated below, we grant the plaintiffs' motion for summary judgment and deny the City's.

I.

This case centers around the hiring practices of the City's police department. Specifically, the plaintiffs challenge the Department's use of a physical agility test to cull out applicants for vacancies on the force. The parties have stipulated that the test administered in 1976 and 1979 had a disparate impact on female job applicants.

As of December 31, 1983, the Department employed 112 officers, only four of whom were women. These women perform their jobs satisfactorily.*fn1 This recent state of affairs represents little change from the time period relevant to this suit, the late 1970's. Employing only two women officers in 1975, the Department created an affirmative action plan which set a goal of hiring twenty women by 1980. However, over the next several years the Department hired very few women. In 1978, the Department had four female officers out of 106; in October 1980, three out of 121 officers were women.

Before 1980, the City filled vacancies from a "list of eligibles" which ranked applicants according to their performance on a competitive examination.*fn2 The City gave these exams and drew up a list of eligibles in 1976, 1979 and 1982.*fn3 The first phase of the exam was a "physical agility test," administered by the "Bureau of Testing Services" ("BOTS"). Those who failed this test were rejected automatically; those who passed took a written exam. To create the list of eligibles, the City combined the scores of those who had passed both tests and ranked the applicants by their performances on the exam. The total score was the sum of 30% of the physical test grade and 70% of the written test grade. Those with a resulting score below 70 did not make the final list. Finally, when vacancies arose in the Department, applicants on the list would receive a polygraph test, a psychological test, a background check and an interview. Those who passed these tests would be hired according to their rank on the list of eligibles.

Both the 1976 and 1979 physical agility tests had an adverse impact on female applicants. In 1976, 293 applicants took the physical test, of whom 85.32% were men and 14.68% were women. 90.40% of the men passed, while 16.28% of the women passed. Thus, 226 out of 250 men were eligible for the rest of the application process, but only 7 out of 43 women so advanced. The City ultimately hired twenty of these men and none of the women. In 1979, 317 applicants took the test — 86.75% men and 13.25% women. The City had lowered the passing score from 70 to 60. 98.95% of the men passed, while 73.8% of the women passed. Thus, only 3 out of 275 men flunked, while 11 out of 42 women failed. The final list was made up of 114 (89.76%) men and 13 (10.24%) women. The City ultimately hired 14 men and one woman from this list.

The physical agility test itself contained several events, such as a stair-climb, 1/4-mile run and an obstacle course. Applicants would receive an integer score ranging from one through five for each event, depending on their performance as compared to a table of "norms." The City and BOTS assert that the test was scaled to create a passing score of 70, and that an applicant who scored below 70 could not perform physically as an officer. The City and BOTS also assert that the norms it used were based upon the performance on the test of a representative sample of incumbent police officers. Plaintiffs dispute both of these contentions. The parties do agree, however, that BOTS has no empirical evidence to support a contention that those who received high passing scores would be better police officers than those who received low passing scores.

Of those men and women who passed the exams, the men received a disproportionate number of the higher scores. For the 1979 test, 28 of the 273 men tested (10.25%) scored 79 or better, while 1 of 44 women tested (2.27%) did so. One woman ranked in the top 81 scores. 80 of 273 males (29.30%) scored better than 74. 7 of 44 women (15.90%) did so.

BOTS established its norms by computing the "mean" and "standard deviation"*fn4 of actual scores on the events of the test. For the 1976 and 1979 tests, BOTS tested incumbent police officers to set these norms. An applicant who scored within one standard deviation of the mean set by these incumbents received a "3" for that event; one who scored more than one standard deviation from the mean received a "4." The test was thus scaled so that about 16% of incumbent officers would have received a "2" or less (a failing score for that event) had they taken the test as applicants. BOTS assumed that some 16% of incumbent officers were physically incapable of performing their jobs.

BOTS developed the physical agility test following a "job analysis" of the type of work done by police officers in various Illinois cities. As part of the job analysis, BOTS surveyed police chiefs. The survey listed seven questions,*fn5 and was completed and returned by three police chiefs. BOTS and the City have no other papers regarding this survey.

Another part of the "job analysis" involved observing the work actually performed by police officers. The only documented observations BOTS has consist of two reports written by a graduate student who went on a few "ride-alongs" with the Markham police department. BOTS and the City lack additional documentation of observation of work actually performed by police officers. Moreover, no documentation describes how the survey and observation were used to create the tasks used on the physical agility test.

The class representative, Brenda Thomas, applied with the Department on February 19, 1976. Her application contained a certificate from her doctor that she was physically capable of taking a strenuous physical aptitude test. Thomas took the 1976 test and flunked, thereby being rejected from further consideration. On February 4, 1977, she filed a timely charge with the Equal Employment Opportunity Commission ("EEOC"). The EEOC investigated her charge, and three years later, on February 19, 1980, found "reasonable cause" to believe that her charge was well founded because the test "has an adverse impact on the consideration of females for employment" and "has not been properly validated." The EEOC and the City entered into a conciliation agreement under which the City agreed to revise and rescore the exam. However, Thomas and the City refused to enter into a conciliation agreement, and on July 3, 1980, the EEOC issued a "right to sue" letter. Thomas brought this action pro se, and after retaining counsel, she amended the complaint to add the class claims.

On February 28, 1983, as noted earlier, Judge Flaum certified the class. On September 18, 1984, we approved a consent decree which settled the case in part. Under the decree, the City must hire at least four class members within the next year. Still unresolved however are the issues of liability and appropriate relief. On the basis of stipulated facts, the parties have submitted cross-motions for summary judgment with well-written supporting memoranda. We turn now to these motions.

II.

This is not the first challenge to a police department's use of a physical agility test. Several other courts have ruled that similar tests violated Title VII.*fn6 In analyzing the test at issue here, we follow the traditional approach to disparate impact cases set forth in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), and its progeny. To establish a prima facie case of discrimination, "a plaintiff need only show that the facially neutral standards in question select applicants for hire in a significantly discriminatory pattern." Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S.Ct. 2720, 2726-27, 53 L.Ed.2d 786 (1977). When a plaintiff makes this threshold showing of disparate impact, the employer bears the burden of showing that its discriminatory policy or practice is necessary and manifestly related to job performance. Id.; Griggs, 401 U.S. at 431-32, 91 S.Ct. at 853-54. If the employer satisfies its burden, the plaintiff may show that less discriminatory alternatives would also "serve the employer's legitimate interest in `efficient and trustworthy workmanship.'" Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975), quoting, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801, 93 S.Ct. 1817, 1823, 36 L.Ed.2d 668 (1973); see Harless v. Duck, 619 F.2d 611, 616 n. 6 (6th Cir. 1980), cert. denied, 449 U.S. 872, 101 S.Ct. 212, 66 L.Ed.2d 92 (1980).

A.

The undisputed facts plainly show that plaintiffs have made out a prima facie case of disparate impact. The 1976 test eliminated about 85% of the women applicants, but only about 10% of the men, from further consideration. The 1979 test, which lowered the passing score, eliminated about one-fourth of the women but only about 1% of the men. Indeed, it can fairly be said that only a woman could have failed the 1979 test. This is clearly a "significantly discriminatory pattern" of selection.

This disparate impact is apparent from more than the relative pass rates. As the parties have agreed, the men received a disproportionate number of higher scores. Because the final list was drawn up in rank order, the men who passed fared better as a group than the women who passed. Only one woman in 1979 ranked in the top 81 scores. About ...


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