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BEW v. CITY OF CHICAGO

September 29, 1997

SHEILA BEW, RAINIER CONLEY, WALTER GRIFFIN, SERGINTHA HILL-PRATT, SAMUEL INGRAM, BARBARA MUSE, JEAN A. MOORE, and VICKI SHY, Plaintiffs,
v.
CITY OF CHICAGO, Defendant.



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.

 I.

 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).

 II.

 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 ...


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