Between January and March 2004, the CSB held five public meetings to consider the proper course. At the first meeting, New Haven’s Corporation Counsel, Thomas Ude, described the legal standard governing Title VII disparate impact claims. Statistical imbalances alone, Ude correctly recognized, do not give rise to liability. Instead, presented with a disparity, an employer “has the opportunity and the burden of proving that the test is job-related and consistent with business necessity.” CA2 App. A724. A Title VII plaintiff may attempt to rebut an employer’s showing of job-relatedness and necessity by identifying alternative selection methods that would have been at least as valid but with “less of an adverse or disparate or discriminatory effect.”
Ibid. See also id., at A738. Accordingly, the CSB Commissioners understood, their principal task was to decide whether they were confident about the reliability of the exams: Had the exams fairly measured the qualities of a successful fire officer despite their disparate results? Might an alternative examination process have identified the most qualified candidates without creating such significant racial imbalances?
Seeking a range of input on these questions, the CSB heard from test takers, the test designer, subject-matter experts, City officials, union leaders, and community members. Several candidates for promotion, who did not yet know their exam results, spoke at the CSB’s first two meetings. Some candidates favored certification. The exams, they emphasized, had closely tracked the assigned study materials. Having invested substantial time and money to prepare themselves for the test, they felt it would be unfair to scrap the results.
See, e.g., id., at A772–A773, A785–A789.
Other firefighters had a different view. A number of the exam questions, they pointed out, were not germane to New Haven’s practices and procedures.
See, e.g., id., at A774–A784. At least two candidates opposed to certification noted unequal access to study materials. Some individuals, they asserted, had the necessary books even before the syllabus was issued. Others had to invest substantial sums to purchase the materials and “wait a month and a half for some of the books because they were on back-order.”
Id., at A858. These disparities, it was suggested, fell at least in part along racial lines. While many Caucasian applicants could obtain materials and assistance from relatives in the fire service, the overwhelming majority of minority applicants were “first generation firefighters” without such support networks.
See id., at A857–A861, A886–A887.
A representative of the Northeast Region of the International Association of Black Professional Firefighters, Donald Day, also spoke at the second meeting. Statistical disparities, he told the CSB, had been present in the Department’s previous promotional exams. On earlier tests, however, a few minority candidates had fared well enough to earn promotions.
Id., at A828.
See also App.218–219. Day contrasted New Haven’s experience with that of nearby Bridgeport, where minority firefighters held one-third of lieutenant and captain positions. Bridgeport, Day observed, had once used a testing process similar to New Haven’s, with a written exam accounting for 70 percent of an applicant’s score, an oral exam for 25 percent, and seniority for the remaining five percent. CA2 App. A830. Bridgeport recognized, however, that the oral component, more so than the written component, addressed the sort of “real-life scenarios” fire officers encounter on the job.
Id., at A832. Accordingly, that city “changed the relative weights” to give primacy to the oral exam. Ibid. Since that time, Day reported, Bridgeport had seen minorities “fairly represented” in its exam results.
Ibid. The CSB’s third meeting featured IOS representative Legel, the leader of the team that had designed and administered the exams for New Haven. Several City officials also participated in the discussion. Legel described the exam development process in detail. The City, he recounted, had set the “parameters” for the exams, specifically, the requirement of written and oral components with a 60/40 weighting.
Id., at A923, A974. For security reasons, Department officials had not been permitted to check the content of the questions prior to their administration. Instead, IOS retained a senior fire officer from Georgia to review the exams “for content and fidelity to the source material.”
Id., at A936. Legel defended the exams as “facially neutral,” and stated that he “would stand by the[ir] validity.”
Id., at A962. City officials did not dispute the neutrality of IOS’s work. But, they cautioned, even if individual exam questions had no intrinsic bias, the selection process as a whole may nevertheless have been deficient. The officials urged the CSB to consult with experts about the “larger picture.”
Id., at A1012.
At its fourth meeting, CSB solicited the views of three individuals with testing-related expertise. Dr. Christopher Hornick, an industrial/organizational psychology consultant with 25 years’ experience with police and firefighter testing, described the exam results as having “relatively high adverse impact.”
Id., at A1028. Most of the tests he had developed, Hornick stated, exhibited “significantly and dramatically less adverse impact.”
Id., at A1029. Hornick downplayed the notion of “facial neutrality.” It was more important, he advised the CSB, to consider “the broader issue of how your procedures and your rules and the types of tests that you are using are contributing to the adverse impact.”
Id., at A1038.
Specifically, Hornick questioned New Haven’s union prompted 60/40 written/oral examination structure, noting the availability of “different types of testing procedures that are much more valid in terms of identifying the best potential supervisors in [the] fire department.”
Id., at A1032. He suggested, for example, “an assessment center process, which is essentially an opportunity for candidates. . . to demonstrate how they would address a particular problem as opposed to just verbally saying it or identifying the correct option on a written test.”
Id., at A1039–A1040. Such selection processes, Hornick said, better “identif[y]the best possible people” and “demonstrate dramatically less adverse impacts.”
Ibid. Hornick added:
“I’ve spoken to at least 10,000, maybe 15,000 firefighters in group settings in my consulting practice and I have never one time ever had anyone in the fire service say to me, ‘Well, the person who answers—gets the highest score on a written job knowledge, multiple-guess test makes the best company officer.’ We know that it’s not as valid as other procedures that exist.” Id., at A1033.
See also id., at A1042–A1043 (“I think a person’s leadership skills, their command presence, their interpersonal skills, their management skills, their tactical skills could have been identified and evaluated in a much more appropriate way.”).
Hornick described the written test itself as “reasonably good,”
id., at A1041, but he criticized the decision not to allow Department officials to check the content. According to Hornick, this “inevitably” led to “test[ing] for processes and procedures that don’t necessarily match up into the department.”
Id., at A1034–A1035. He preferred “experts from within the department who have signed confidentiality agreements . . . to make sure that the terminology and equipment that’s being identified from standardized reading sources apply to the department.”
Id., at A1035.
Asked whether he thought the City should certify the results, Hornick hedged: “There is adverse impact in the test. That will be identified in any proceeding that you have. You will have industrial psychology experts, if it goes to court, on both sides. And it will not be a pretty or comfortable position for anyone to be in.”
Id., at A1040– A1041. Perhaps, he suggested, New Haven might certify the results but immediately begin exploring “alternativeways to deal with these issues” in the future.
Id., at A1041.
The two other witnesses made relatively brief appearances. Vincent Lewis, a specialist with the Department of Homeland Security and former fire officer in Michigan, believed the exams had generally tested relevant material, although he noted a relatively heavy emphasis on questions pertaining to being an “apparatus driver.” He suggested that this may have disadvantaged test takers “who had not had the training or had not had an opportunity to drive the apparatus.”
Id., at A1051. He also urged the CSB to consider whether candidates had, in fact, enjoyed equal access to the study materials.
Ibid. Cf. supra, at 7.
Janet Helms, a professor of counseling psychology at Boston College, observed that two-thirds of the incumbent fire officers who submitted job analyses to IOS during the exam design phase were Caucasian. Members of different racial groups, Helms told the CSB, sometimes do their jobs in different ways, “often because the experiences that are open to white male firefighters are not open to members of these other under-represented groups.” CA2 App. A1063–A1064. The heavy reliance on job analyses from white firefighters, she suggested, may thus have introduced an element of bias.
Id., at A1063.
The CSB’s fifth and final meeting began with statements from City officials recommending against certification. Ude, New Haven’s counsel, repeated the applicable disparate-impact standard:
“[A] finding of adverse impact is the beginning, not
the end, of a review of testing procedures. Where a
procedure demonstrates adverse impact, you look to
how closely it is related to the job that you’re looking
to fill and you also look at whether there are other
ways to test for those qualities, those traits, those po
sitions that are equally valid with less adverse im
pact.” Id., at A1100–A1101.
New Haven, Ude and other officials asserted, would be vulnerable to Title VII liability under this standard. Even if the exams were “facially neutral,” significant doubts had been raised about whether they properly assessed the key attributes of a successful fire officer.
Id., at A1103.
See also id., at A1125 (“Upon close reading of the exams, the questions themselves would appear to test a candidate’s ability to memorize textbooks but not necessarily to identify solutions to real problems on the fire ground.”). Moreover, City officials reminded the CSB, Hornick and others had identified better, less discriminatory selection methods–such as assessment centers or exams with a more heavily weighted oral component.
Id., at A1108–A1109, A1129–A1130.
After giving members of the public a final chance to weigh in, the CSB voted on certification, dividing 2 to 2.By rule, the result was non-certification. Voting no, Commissioner Webber stated, “I originally was going to vote to certify. . . . But I’ve heard enough testimony here to give me great doubts about the test itself and . . . some of the procedures. And I believe we can do better.”
Id., at A1157. Commissioner Tirado likewise concluded that the “flawed” testing process counseled against certification.
Id., at A1158. Chairman Segaloff and Commissioner Caplan voted to certify. According to Segaloff, the testimony had not “compelled [him] to say this exam was not job-related,” and he was unconvinced that alternative selection processes would be “less discriminatory.”
Id., at A1159–A1160. Both Segalhoff and Caplan, however, urged the City to undertake civil service reform.
Id., at A1150–A1154.
{In sum, to say the City considered only the racial impact of the tests and not whether the test measured qualifications is a LIE!!!]