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June 30, 1998

ERNEST T. BROWN, et al., Plaintiffs,

The opinion of the court was delivered by: GETTLEMAN



 Did the defendant City of Chicago ("City") discriminate against minority Chicago police sergeants when it decided to make promotions to the rank of lieutenant based on an examination which the City developed with the acknowledged intention of avoiding an adverse impact on minorities? This case continues a series of attacks on successive attempts by the City to make police promotions based on criteria that would pass muster in the courts.

 Plaintiffs are 44 minority (African-American and Latino) Chicago Police Department ("CPD") sergeants who took the 1994 lieutenant examination and were not promoted based on their scores. They claim that the City deprived them of equal employment opportunity in violation of Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. § 2000e, et seq. In light of the City's stipulation that the examination had an adverse impact on minority candidates, plaintiffs contend that, (a) the City has not met its burden of proving that the examination was a job related, content valid selection device, and (b) even if the test were valid, plaintiffs have demonstrated there was an equally valid, less discriminatory alternative selection method available which the City refused to use.

 The case was tried to the court in November 1997. Extensive expert testimony and other evidence was presented. Thereafter, the parties submitted voluminous post-trial briefs and proposed findings and conclusions, and argued the matter to the court on March 6, 1998. Finally, on March 31, 1998, the parties submitted supplemental memoranda on the issue whether there existed an available, less discriminatory selection method than the rank order test. For the reasons set forth below, the court finds that the examination was content valid, but that the City had available a less discriminatory equally valid method of promotion utilizing merit selection along with rank order promotions.


 In a Title VII case alleging discrimination in the promotion process, once the plaintiff proves a prima facie case by showing that the promotional method had an adverse impact on minorities--as is stipulated in the instant case--the burden shifts to the employer to prove that the test is valid. If the employer meets this burden, the plaintiff must prove that there was an available, equally valid, less discriminatory method for promotion that the employer refused to use. Albemarle Paper v. Moody, 422 U.S. 405, 425, 45 L. Ed. 2d 280, 95 S. Ct. 2362 (1975). Thus, the first issue presented is whether the City met its burden of proving that the test was valid, or "job related." Id.; 42 U.S.C. § 2000e-2(k)(1)(A).

 In Griggs v. Duke Power Co., 401 U.S. 424, 28 L. Ed. 2d 158, 91 S. Ct. 849 (1971), the Supreme Court held that the employer must demonstrate that the test has "a manifest relationship to the employment in question" that reasonably measures job performance. Id. at 432, 436. "A test is job related if it measures traits that are significantly related to the applicant's ability to perform the job." Gillespie v. State of Wisconsin, 771 F.2d 1035, 1040 (7th Cir. 1985) (citing Griggs).

 The Equal Employment Opportunity Commission ("EEOC") has promulgated Uniform Guidelines on Employee Selection Procedures ("EEOC Guidelines"), 29 C.F.R. § 1607, et seq., which draw upon current psychological literature on psychometrics as well as standards for test validation established by the American Psychological Association. Gillespie, 771 F.2d at 1040. Under the EEOC Guidelines (§ 1607.5B), an employment test may be validated under any one of three methods: criterion related; content validity; or construct validity. No one method is preferred; any of the three may be used by the employer to establish validity and shift the burden back to the employee.

 In Gillespie (Id. at n.3), Judge Coffey succinctly described these three methods:

A criterion-related validation study determines whether the test is adequately correlated with the applicant's future job performance. Wollack, Content Validity: Its Legal and Psychometric Bases, Personnel Management, Nov-Dec 1976, 397 at 402 (hereinafter "Wollack"). Criterion-related tests are constructed to measure certain traits or characteristics thought to be relevant to future job performance. Id. at 403. An example of an employment test that would be validated by the criterion-related validation method is an intelligence test. The content validation strategy is utilized when a test purports to measure existing job skills, knowledge or behaviors. Id. "The purpose of content validity is to show that the test measures the job or adequately reflects the skills or knowledge required by the job." Id. For example, a typing test given to prospective typists would be validated by the content validation method. Construct validity is used to determine the extent to which a test may be said to measure a theoretical construct or trait. Anastasi, Psychological Testing, 144 (1982) (hereinafter "Anastasi"). For example, if a psychologist gave vocabulary, analogies, opposites and sentence completion tests to a group of subjects and found that the tests have a high correlation with one another, he might infer the presence of a construct--a verbal comprehension factor. Anastasi at 146.

 In the instant case, the City has sought to establish the validity of the 1994 lieutenants' examination by showing that the test was content valid. Section 1607.14(c)(4) of the EEOC Guidelines provides:

To be content valid, a selection procedure measuring a skill or ability should either closely approximate an observable work behavior, or its product should closely approximate an observable work product. If a test purports to sample a work behavior or to provide a sample of a work product, the manner and setting of the selection procedure and its level and complexity should closely approximate the work situation. The closer the content and the context of the selection procedure are to work samples or work behaviors, the stronger is the basis for showing content validity. As the content of the selection procedure less resembles a work behavior, or the setting and manner of the administration of the selection procedure less resemble the work situation, or the result less resembles the work product, the less likely the selection procedure is to be content valid, and the greater the need for other evidence of validity.

 In determining whether an employment test is content valid, the court in Gillespie (771 F.2d at 1043) held that,

. . . the court must evaluate the test for: (1) the degree to which the nature of the examination procedure approximates the job conditions; (2) whether the test measures abstract or concrete qualities; and (3) the combination of these factors, i.e. whether the test attempts to measure an abstract trait with a test that fails to closely approximate the working situation. [Citing Guardians Ass'n of New York City v. Civil Service Commission, 630 F.2d 79, 93 (2d Cir. 1980); Wollack at 405.06.]

 Should the employer meet its burden of proving validity, the statute provides that the employee can succeed if he or she proves that there was an available, equally valid, less discriminatory method of promotion that the employer refused to use. 42 U.S.C. § 2000e-k(1)(A)(ii). In such an event, the plaintiffs would be entitled to injunctive and affirmative relief. Franks v. Bowman, 424 U.S. 747, 770, 47 L. Ed. 2d 444, 96 S. Ct. 1251 (1976), Sheet Metal Workers' v. EEOC, 478 U.S. 421, 448, 92 L. Ed. 2d 344, 106 S. Ct. 3019 (1986).


 Before addressing the facts and the application of the facts to the law, it is useful to understand the basic positions of the parties. Plaintiffs' argument rests to a large extent on a syllogism:

(a) The results of the 1994 lieutenants' examination had a gross adverse impact on minority applicants;
(b) Minorities as a group are as equally qualified as whites to be Chicago Police Department lieutenants;
(c) Therefore, the examination is, perforce, invalid because it eliminated applicants who were admittedly qualified.

 The City defends its examination as content valid, claiming that it was designed to and did in fact measure knowledge, skills and abilities ("KSAs") required for the job of police lieutenant. Once having established that, the City contends that it need not explain why the test might have resulted in the failure to promote qualified applicants (a criterion-related method of proving validity that need not be employed once content validity is established).

 Plaintiffs' argument that there was an available, equally valid, less discriminatory method of promotion that the City refused to use, relies on the City's own attempt to adopt a proposal to promote 20% of lieutenants based on a merit selection system rather than solely on the 1994 examination. The City argues (1) (without much conviction) that this method was not equally valid, and (2) (which much conviction) that even if it were equally valid, the addition of a merit selection component to promotions was unavailable because the state courts enjoined the City from using that method.


 A. Agreed Facts

 The following facts have been stipulated to by the parties, and, with certain stylistic changes, are hereby adopted by the court:

 1. This case involves the 1994 lieutenants' promotional test prepared for the Chicago Police Department.

 2. Plaintiffs are 44 African-American or Latino present or former member of the Chicago Police Department who hold the career service rank of sergeant and participated in the 1994 lieutenant promotional examination.

 3. Plaintiffs have not been promoted to the rank of police lieutenant based on the results of the 1994 Chicago police lieutenant examination.

 4. On March 28, 1995, plaintiffs filed a complaint in this action challenging the 1994 Chicago police lieutenant examination process under 42 U.S.C. § 1981 and 42 U.S.C. § 1983. On December 5, 1995, plaintiffs filed their First Amended Complaint, adding a Title VII disparate impact claim. On February 9, 1996 plaintiffs abandoned their 1981 and 1983 claims.

 5. Plaintiffs contend that the test has a disparate impact upon African-American and Hispanic police sergeants and is an unlawful employment practice under Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e.

 6. Plaintiffs do not claim that the City intentionally discriminated against plaintiffs or subjected them to disparate treatment.

 7. Defendant City of Chicago concedes that the test had a disparate impact on African-American and Hispanic sergeants and contends that the test is job related and consistent with business necessity.

 8. The 1994 lieutenants' test was taken by 765 police sergeants: 184 (or 24%) of those who took the test were African-American; 55 (or 7%) were Hispanic.

 9. The City has made 108 promotions from the list. Six of those promotions (or slightly less than 6%) of those promotions have gone to minorities (5 of those promoted are African-American and 1 is Hispanic).

 10. The parties agree that the statistical evidence makes out a prima facie case of disparate impact discrimination.

 11. The 1994 promotional test consists of three subtests which shall be referred to in this order as follows: a written job knowledge test, an in-basket simulation, and an oral briefing exercise.

 12. Scores on each component were combined to produce a final score.

 13. Each component of the test had a disparate impact on minorities:

a. White sergeants received 193 of the top 207, 282 of the top 316, and 350 of the top 413 scores on the job knowledge test,
b. White sergeants received 181 of the top 203, 271 of the top 313, and 356 of the top 442 scores on the in-basket simulation.
c. White sergeants received 171 of the top 195, 303 of the top 383, and 412 of the top 540 scores on the oral briefing exercise.
d. White sergeants received 102 of the top 108 scores.

 14. The parties agree that the statistical evidence makes out a prima facie case of disparate impact discrimination for each component of the 1994 lieutenant's test.

 15. The CPD has promulgated a comprehensive set of departmental directives which establish CPD policy and procedure.

 16. General Orders set forth CPD policy. A full set of the CPD General Orders that were in effect as of the date of the 1994 Chicago police lieutenant examination is contained in Defendant's Exhibit 7, which is in evidence.

 17. Special Orders set forth CPD procedures. A full set of the CPD Special Orders that were in effect as of the date of the 1994 Chicago police lieutenant examination is contained in ...

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