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September 29, 1997


The opinion of the court was delivered by: BUCKLO


 The African-American plaintiffs, Sheila Bew, Rainier Conley, Walter Griffin, Sergintha Will-Pratt, Samuel Ingram, Barbara Muse, Jean Moore, *fn1" and Vicki Shy, were Chicago probationary police officers. *fn2" The City discharged them because of their inability to pass the Illinois Law Enforcement Officers Certification Examination ("Certification Examination"). The plaintiffs claim that the exam has a disparate impact on the minority probationary police officers, in violation of Title VII of the Civil Rights Act. 42 U.S.C. § 2000e et seq. The defendant has moved for summary judgement, arguing that some of the plaintiffs have failed to exhaust administrative remedies and that all have failed to provide statistical evidence sufficient to establish a prima facie case of disparate impact. For the following reasons, the motion is denied.


 Prior to filing a Title VII suit, the plaintiff must exhaust administrative remedies. First, she must file a charge with the Equal Employment Opportunity Commission (EEOC) within 300 days of the alleged unlawful employment practices. Gilardi v. Schroeder, 833 F.2d 1226, 1229-32 (7th Cir. 1987). Upon receipt of an EEOC Right-to-Sue letter, the plaintiff must file suit within 90 days. Id. at 1233; 42 U.S.C. § 2000e-5(f)(1).

 The defendant asserts that Mr. Conley and Ms. Bew never filed EEOC charges. However, the plaintiffs have submitted copies of the EEOC charges filed by these individuals on May 11, 1995 and May 5, 1995, respectively, within the required period after their employment was terminated. The plaintiffs have also submitted a copy of a June 30, 1996 Request for Notice of Right to Sue, transmitted by the Chicago EEOC office to the U.S. Department of Justice, listing Mr. Conley and Ms. Bew as charging parties. The present suit was filed on March 14, 1996. Therefore, the plaintiffs timely exhausted their administrative remedies. *fn3"


 To make out a prima facie case of disparate impact, the plaintiff must show "that the tests in question select applicants for hire or promotion in a racial pattern significantly different from that of the pool of applicants." Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S. Ct. 2362, 45 L. Ed. 2d 280 (1975). The plaintiff "'must begin by identifying the specific employment practice that is challenged'." Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 656, 109 S. Ct. 2115, 104 L. Ed. 2d 733 (1989) (quoting Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994, 108 S. Ct. 2777, 101 L. Ed. 2d 827 (1988)). The employment practice at issue is the Certification Examination; upon failing this exam, a probationary police officer is fired.

 "Once the employment practice . . . has been identified, causation must be proved; that is, the plaintiff must offer statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants for jobs or promotions because of their membership in a protected group." Watson, 487 U.S. at 994. *fn4" The plaintiff may demonstrate that "statistical disparities [are] sufficiently substantial [to] raise . . . an inference of causation" through standard deviation analysis. Id. at 995 & n.3. This analysis determines whether the disparity at issue is likely to have resulted from chance. Coates v. Johnson & Johnson, 756 F.2d 524, 536-37 n.11 (7th Cir. 1985). For statistical evidence to be probative, it must be drawn from the correct pool or sample. Wards Cove Packing Co., 490 U.S. at 650-51. When a test operates as a pass-fail barrier, as is the case here, the proper pool consists of those taking the test. See Connecticut v. Teal, 457 U.S. 440, 442-44, 452, 102 S. Ct. 2525, 73 L. Ed. 2d 130 (1982). The parties agree that the pool here properly consists of 4071 majority and minority probationary police officers who took the Certification Examination between 1990 to 1996. The undisputed data in the present case are summarized in the following table: Pass Fail Total Pass Rate Fail Rate Minorities 1965 28 1993 1965/1993 28/1993 Whites 2077 1 2078 2077/2078 1/2078 Total 4042 29 4071 4042/4071 29/4071

 Relying on Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 308 n.14, 97 S. Ct. 2736, 53 L. Ed. 2d 768 (1977), and Castaneda v. Partida, 430 U.S. 482, 496-97 n.17, 97 S. Ct. 1272, 51 L. Ed. 2d 498 (1977), the plaintiffs employed standard deviation analysis and compared the observed and the expected number of minority failures. *fn5"


Unfortunately, the particular statistical technique employed by the Court in Castaneda and Hazelwood cannot be applied to cases [such as the one at bar] concerning . . . differences in pass-fail rates in employment tests. The [plaintiffs' method] is appropriate when evaluating the likelihood of a result composed of a series of events, each with only two possible outcomes, such as the selection of either a black or a white from the relevant population . . . .

 Elaine W. Shoben, Differential Pass-Fail Rates in Employment Testing, 91 Harv. L. Rev. 793, 795-96 (1978). The present problem, however, has four possible outcomes--a majority probationary police officer passing and failing and a minority passing and failing. Therefore, a statistical technique known as the test for differences between independent proportions is appropriate. Mack A. Player, Employment Discrimination Law at 365 (1988) (citing Shoben, supra).

 The test for differences between independent proportions yields a Z-score of over five standard deviations. *fn6" The disparity between the minority and the majority pass rates is statistically significant. Therefore, the data support a prima facie case of disparate impact. See Castaneda, 430 U.S. at 496 & n.17 (prima facie case established where Z-score is greater than two or three standard deviations).

 The City counters by comparing the pass rates of minorities and nonminorities using the "4/5th rule." The EEOC guidelines provide that "[a] selection rate for any race . . . which is less than four-fifth (4/5) (or eighty percent) of the rate for the group with the highest rate will generally be regarded . . . as evidence of adverse impact." 29 C.F.R. § 1607.4(D). The defendant's results, which the plaintiffs do not dispute, are as follows: the pass rate for the majority probationary police officers taking the exam is 99.95 percent. The pass rate for African-Americans is 98.11 percent. The pass rate for Latinos is 99.50 percent. The ratio of the African-American to the majority pass rate is 98.16 percent. The ratio of the Latino to the majority pass rate is 99.55 percent.

 The "4/5th rule" is merely a "rule of thumb." Watson, 487 U.S. at 995-96 n.3. The EEOC guidelines are not binding on the courts. Aguilera v. Cook County Police & Corrections Merit Bd., 760 F.2d 844, 847 (7th Cir. 1985). The "4/5th rule" has been criticized by the courts and commentators, Watson, 487 U.S. at 995-96 n.3 (citing sources), as "insensitive . . . to the magnitude of the difference in treatment of the two groups[, and] . . . quite sensitive to the particular framing of the issue and, as a result, . . . easily . . . misunderstood and misapplied." Paetzold & Willborn, supra, § 5.06, at 5-10 to 5-11. The EEOC itself recognizes that "smaller differences [than twenty percent] in selection rate may nevertheless constitute adverse impact, where they are significant in both statistical and practical terms." 29 C.F.R. § 1607.4(D).

 In the present case, the analysis adopted by the court is designed to determine whether the disparity between the minority and the majority pass rates, yielded by the "4/5th rule," is statistically significant or, put another way, likely to be due to chance. The fact that the difference between the minority and the majority Certification Examination pass rates exceeds three standard deviations argues against chance. See Hazelwood Sch. Dist., 433 U.S. at 308 n.14 (citing Castaneda, 430 U.S. at 496-97 n.17) (hypothesis that disparity is due to chance is suspect if Z-score is greater than two or three standard deviations). "Plaintiffs should have the option . . . of demonstrating [disparate] impact by statistical significance instead of the four-fifth rule. . . . [and] where the four-fifth rule indicates lack of [disparate] impact[,] but the disparity is statistically significant, the plaintiff should be able to establish [disparate] impact on the evidence of statistical significance." Paetzold & Willborn, supra, § 5.07, at 5-19 to 5-20.


 For the reasons stated above, the defendant's motion for summary judgment is denied. Ms. Bew and Mr. Conley are given 20 days to submit copies of their Right-to-Sue letters.


 Elaine E. Bucklo

 United States District Judge

 Dated: September 29, 1997

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