Louisville Black Police Officers Organization Inc. v. City of Louisville Plaintiffs' Reply Brief

    WESTERN DISTRICT CE IT 
AT LOUISVILLE

CIVIL ACTION NO. 
C 74-106 L (A)

LOUISVILLE BLACK POLICE OFFICERS 
0 RQ AN H A T  TEN , INC., e t a 1. ,

CITY OF LOUISVILLE, et al.,

Defendants.

PLAINTIFFS' REPLY 3RIEF

WILLIAM H. ALLISON, JR.
PAUL SOREFF

3208 West Broadway 
Louisville, Kentucky 40211

JUANITA LOGAN CHRISTIAN
Suite 240, Hart Block Building 
730 West Main Street 
Louisville, Kentucky 40202

FREDERIC J. COWDEN
1300 West Broadway 
Louisville, Kentucky 40203

JACK GREENBERG 
PATRICK 0. PATTERSON

10 Columbus Circle 
Suite 2030
New York, New York 10019

Attorneys for Plaintiffs



INDEX

Table of Authorities .........................  iv

Table of Abbreviations........................  x
Cross Reference Table ....................................  xi
ARGUMENT .................................................. 1

I. THE DEFENDANTS' POST-TRIAL BRIEFS AND 
PROPOSED FINDINGS AND CONCLUSIONS 
CONTAIN NUMEROUS ERRORS AND MISSTATEMENTS 
OF THE FACTS AND THE LAW .....................  1
A. Defendants Have Made Serious Factual 

Errors and Misstatements of the
Record ....................................  1
1. Major Statistical Errors ............. 2
2. Misstatements on Minority

Recruitment ..........................  3
3. Misstatements and Errors on Tests

and Test Validation .................  6
4. Contradictory Statements ............. 6

B. Defendants Have Made Many Errors
of Law ....................................  3

II. PLAINTIFFS ARE NOT REQUIRED TO PROVE 
INTENTIONAL RACIAL DISCRIMINATION TO 
ESTABLISH A VIOLATION OF EITHER TITLE VII 
OR SECTION 1981 ................................ 10
A. The Extension of the Title VII Effect 

Rule to Public Employers Was a Valid 
Exercise of Congressional Power Under 
Both the Commerce Clause and Section 5 
of the Fourteenth Amendment .............. 12
1. The Commerce Clause ..................  13
2. Section 5 of the Fourteenth

Amendment ............................  14

Page

- i -



Page
B. Evidence of Discriminatory Intent Is Not 

Required to Prove a Violation of
Section 1981 .............................  19

C. The Record Shows, in any Event, that 
Defendants Engaged in Intentional
Discrimination ...........................  22

III. PLAINTIFFS HAVE ESTABLISHED A PRIMA FACIE 
CASE OF INTENTIONAL DISCRIMINATION WHICH
DEFENDANTS HAVE FAILED TO REBUT ............... 23
A. Plaintiffs Have Established a Prima 

Facie Case of Intentional
Discrimination ...........................  24
1. Defendants have misconstrued

Hazelwood ............................  24
2. Even under defendants' theory of 

the relevant labor market, 
plaintiffs have established a
prima facie case .....................  28

B. Defendants Have Failed To Rebut Plaintiffs'
Prima Facie Case of Intentional
Discrimination ...........................  33
1. When defendants' computational errors 

and arbitrary assumptions are corrected, 
their labor market analysis for the 
statutory liability periods provides 
further support for plaintiffs'
prima facie case .....................  34
a. §§ 1981, 1983 and the Fourteenth

Amendment ........................  3 4
b. Title VII ........................  39

2. When defendants' computational errors 
and arbitrary assumptions are corrected, 
their applicant flow analysis provides 
further support for plaintiffs'
prima facie case .....................  41

3. Defendants have applied an incorrect 
legal standard to plaintiffs' 
testimonial evidence that black 
applicants were treated in an arbitrary, 
subjective, and discriminatory
manner ................................ 45

- ii -



IV. DEFENDANTS HAVE NOT CARRIED THEIR BURDEN OF
SHOWING THAT TEST 165.1 IS MANIFESTLY RELATED 
TO PERFORMANCE OF THE JOB OF A LOUISVILLE
POLICE OFFICER ................................. 50

* A. Federal Guidelines on Employee Selection
Procedures Are Entitled to Great Deference
and Should Be Followed in this Case .......  50

B. Defendants Have Not Demonstrated that
Test 165.1 Is Valid for Use in Selecting 
Louisville Police Officers ...............  56
1. Construct Validity ...................  58
2. Content Validity .....................  62
3. Concurrent Validity ................. 70
4. Predictive Validity ..................  75
5. Cutoff Score and Ranking ............. 7 7
6. Elimination of Adverse Impact ......... 80

V. THE COURT SHOULD GRANT AFFIRMATIVE HIRING
RELIEF AND AN INTERIM AWARD OF COUNSEL FEES 
TO PLAINTIFFS .................................. 85

CONCLUSION ...............................................  89

Appendix A: Brief Amicus Curiae for the
NAACP Legal Defense and Educational Fund, Inc., 
in County of Los Angeles v. Davis, No. 77—1553

*

g a g e

- iii -



TABLE OF AUTHORITIES

Cases p age

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) .....  10,11,50,51,
54,55,58,71,

81,85
Allen v. City of Mobile, 18 FEP Cases 217 (S.D.

Ala. 1978) .........................................  51,56,77,79,
80,82,83

Association Against Discrimination v. City of 
Bridgeport, 19 FEP Cases 115 (2d Cir.
1979) ..............................................  78,83

Bridgeport Guardians, Inc. v. Bridgeport Civil
Service Commission, 354 F. Supp. 778 (D. Conn.),
aff'd in pertinent part, 482 F.2d 1333 (2d Cir.1973),
cert, denied, 421 U.S. 991 (1 975) ................. 70

Bridgeport Guardians, Inc. v. Bridgeport Civil Service
Commission, 497 F.2d 1113 (2d Cir. 1 974)..........  86

California v. Taylor, 353 U.S. 553 (1 957) .............. 13
Castaneda v. Partida, 430 U.S. 482 (1977) .............. 27,30,37,39,

42,43
Christiansburg Garment Co. v. EEOC, 434

U.S. 412 (1 978) .................................... 85
County of Los Angeles v. Davis, 47 U.S.L.W. 4317

(March 27, 1 979) ................................... 1 1,20
Davis v. County of Los Angeles, 566 F.2d 1334

(9th Cir. 1977), vacated as moot, 47 U.S.L.W.
4317 (March 27, 1 979) .............................  1 1 , 1 2

Detroit Police Officers Association v. Young,
446 F. Supp. 979 (E.D. Mich. 1 978) ................ 27,29

Donnell v. General Motors Corp., 576 F.2d 1292
(8th Cir. 1 978) .................................... 42

Dothard v. Rawlinson, 433 U.S. 321 (1977) ..........  10,11,15,42,48
Douglas v. Hampton, 512 F.2d 976 (D.C.

Cir. 1 975) .........................................  60
EEOC v. Local 14, Operating Engineers, 553 F.2d

251 (2d Cir. 1 977) ..................................  29
Euclid v. Ambler Realty, 272 U.S. 365 ( 1 926) ..........  18
Evans v. United Air Lines, Inc., 431 U.S. 554

(1 977) .............................................  26
IV



Page

Firefighters Institute for Racial Equality v. City 
of St. Louis, 549 F.2d 506 (8th Cir.),
cert. denied, 434 U.S. 819 (1 977) ................. 19

Fitzpatrick v. Bitzer, 427 U.S. 445 ( 1 976) ............. 1 5
Franks v. Bowman Transportation Co., 424 U.S. 747

( 1 976) .............................................  45
Friend v. Leidinger, 446 F. Supp. 361 (E.D. Va. 1977),

aff'd, 588 F . 2d 61 (4th Cir. 1 978) ................ 27,29

Fry v. United States, 421 U.S. 542 ( 1 975) .............. 13
Furnco Construction Corp. v. Waters, 57 L.Ed. 2d 957

(1978) .............................................  11,46,80
Gaston County v. United States, 395 U.S. 285 (1969)....  17
Griggs v. Duke Power Co., 401 U.S. 424 (1971) .........  10,12,17,23,

46,47,50,51,
81

Guardians Association v. Civil Service Commission,
490 F . 2d 400 (2d Cir. 1973) .......................  54

Harrington v. Vandalia-Butler Board of Education,
418 F. Supp. 603 (S.D. Ohio 1976) ................ 19

Hazelwood School District v. United States, 433
U.S. 299 (1 977) .................................. 8,1 5,22-28

30,32,33,38,
40,41,44

Hutto v. Finney, 437 U.S. 678 ( 1 978) ...................  86,88
International Brotherhood of Teamsters v. United

States, 431 U.S. 324 (1977) ....................  11,12,23,24,27,
28,33,42,45,46,

47,49
Jenkins v. United Gas Corp., 400 F.2d 28

(5th Cir. 1 968) .................................... 43
Johnson v. Railway Express Agency, Inc., 421

U.S. 454 ( 1 975) ....................................  1 9
Jones v. Milwaukee County, 13 FEP Cases 307 (E.D.

Wis. 1 976) ........................................  1 9
Katzenbach v. Morgan, 384 U.S. 641 (1966) ............. 15,16,18

- v -



Kirkland v. New York State Dept, of Correctional 
Services, 374 F. Supp. 1361 (S.D.N.Y. 1974), 
aff'd in pertinent part, 520 F.2d 420 (2d
Cir. 1975), cert, denied, 429 U.S. 974 (1976) ....  79

Lassiter v. Northampton Election Board, 360 U.S.
45 ( 1 959) ..........................................  15

l
Long v. Ford Motor Co., 496 F .2d 500 (6th Cir. 1974) ... 20
McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973) .............................................  11,46,47,80
National League of Cities v. Usery, 426 U.S.

833 (1976) .........................................  12,13,14
Oregon v. Mitchell, 400 U.S. 1 12 (1 970) ................ 15,1 6,1 8
Parden v. Terminal Railway Co., 377 U.S. 184

(1964) .............................................  13
Regents of the University of California v. Bakke,

438 U.S. 265 ( 1978) ................................ 1 9,82
Rich v. Martin Marietta Corp., 522 F.2d

333 (1 0th Cir. 1 975) ................................ 43
Richardson v. McFadden, 540 F.2d 744 (4th Cir. 1976) ... 21
Rogers v. International Paper Co., 510 F .2d 1340, 

vac'd and rem'd on other grounds, 423
U.S. 809 (1 975) .................................... 74

Senter v. General Motors Corp., 532 F.2d 511
(6th Cir. 1 976) ....................................  46

Smith v. Union Oil Co., 17 FEP Cases 960 (N.D. Cal.
1977) ..............................................  29

South Carolina v. Katzenbach, 383 U.S. 301
(1966) .............................................  15,16,18,70

Stamps v. Detroit Edison Co., 365 F. Supp. 87 (E.D.
Mich. 1973), aff'd in pertinent part sub nom EEOC v.
Detroit Edison Co., 515 F.2d 301 (6th Cir. 1975), 
vac'd and rem'd on other grounds, 431
U.S. 951 (1 977) ........ ........................... 29

Trustees of Keene State College v. Sweeney, 58 L.Ed. 2d
21 6 ( 1 978) .........................................  1 1

United States v. California, 297 U.S. 175 (1936) .......  13

vi



Page

United States v. City of Chicago, 573 F.2d 416
(7th Cir. 1 978)....................................  19,54

United States v. Georgia Power Co., 474 F.2d 906
(5th Cir. 1 973) ...................................  53,54,77

United States v. Ironworkers Local 86, 443 F.2d 
544 (9th Cir.), cert, denied, 404 U.S. 984
(1971) ........ 7777................................  28

United States v. South Carolina, 445 F. Supp. 1094 
(D.S.C. 1977), aff'd mem, sub nom National 
Education Association v. South Carolina, 434 U.S.
1026 (1978) ........................................  52,67,68,69

United States v. Virginia, 454 F. Supp. 1077
(E.D. Va. 1 978) ...................................  75

Village of Arlington Heights v. Metropolitan 
Housing Development Corp., 429 U.S. 252 
(1977), on remand, 558 F.2d 1283 (7th Cir.
1977), cert, denied, 434 U.S. 1 025 ( 1 978) ........  20

Vulcan Society v. Civil Service Commission, 490
F. 2d 387 (2d Cir. 1 973) ...........................  61

Washington v. Davis, 426 U.S. 229 (1976) ............... 12,13,15,25,
52

Constitutional Provisions, Statutes, Rules, and Regulations

United States Constitution, Fourteenth Amendment .......  passim
United States Constitution, Art. I, § 8, cl. 3 .........  13
42 U.S.C. § 1981 ........................................  passim

42 U.S.C. § 1983 ........................................  passim
Title VII of the Civil Rights Act of 1964, 42

U.S.C. §§ 2000e £t seq.............................. passim
Voting Rights Act of 1965, 79 Stat. 438 ................  1 6
Voting Rights Act Amendments of 1970, 84

Stat. 315, 42 U.S.C. § 1973a ......................  16
Equal Employment Opportunity Act of 1972,

86 Stat. 103 .......................................  12
- vii -



Page

Equal Employment Opportunity Commission Guidelines 
On Employee Selection Procedures, formerly
29 C.F.R. § 1607 ................................... 52, 53,54,55,

70,76
Federal Executive Agency Guidelines on Employee 

Selection Procedures, 41 Fed. Reg.
51734 (1976) .......................................  51,54,55,60,

61,73,76 ,
Uniform Guidelines on Employee Selection

Procedures (1978), 43 Fed. Reg. 38290
(Aug. 25, 1978), 43 Red. Reg. 40223 (Sept. 11,
1978) .............................................  51,55,56,57,

58,60-68,75,
76,78,80,82,

83

Federal Rules of Civil Procedure, Rule 33 ...............  86

Federal Rules of Civil Procedure, Rule 34 ...............  87
Federal Rules of Civil Procedure, Rule 37 ...............  87

Legislative History

H.R. Rep. No. 92-238, 92d Cong.
1st Sess. (1971) .................................... 12,16,17,18

S. Rep No. 92-415, 92dCong., 1st Sess. (1971) .........  12,16,17,18
118 Cong. Rec. 790 (1 972) ................................ 17

Other Authorities

American Psychological Association, Standards for
Educational and Psychological Tests ( 1 974) ...... 50,53,54, 59,63,

; 69,70,71,76
APA Division of Industrial-Organizational Psychology,

Principles for the Validation and Use of
Personnel Selection Procedures ( 1 975) 77..........  50,53,60,61 ,
----- -------------------------  70,76

Cohen, Congressional Power to Interpret Due Process 
and Equal ProtectionT 2 7 Stan. L. Rev. 603
(1 975 ) .............................................  1 8

Finkelstein, The Application of Statistical Decision 
Theory To Jury Discrimination Cases, 513
Harv. L. Rev. 338 ( 1 966) .........................  38

- viii -



Page

F. Mosteller, R. Rourke & G. Thomas, Probability
with Statistical Applications (2d ed. 1 97 0") ......  38

Note, Federal Power to Regulate Private Discrimination:
The Revival of the Reconstruction Era Amendments,
74 Colum. L. Rev. 449 ( 1 974) ................... .... 18

i
Orloski, The Enforcement Clauses of the Civil War 

Amendments: A Respository of Legislative
Power, 4 9 St. John's L. Rev. 4 93 ( 1 975) ..........  18

An Overview of the 1978 Uniform Guidelines on 
Employee Selection Procedures, 43 Fed.
Reg. 38290 (Aug. 25, 1 978) .......................  55

Questions and Answers on the Uniform Guidelines,
44 Fed. Reg. 11996 (March 2, 1979) ............. 14,48,76,83-84

U.S. Commission on Civil Rights, For All The People
. . . By All The People (1969) .... ...............  16,17

Yackle, The Burger Court, "State Action" and
Congressional Enforcement of the Civil War
Amendments, 27 Ala. L. Rev. 479 ( 1975) ............ 18

I X



TABLE OF ABBREVIATIONS

"City Brief" Defendants' Post-Trial Brief

"City FOF"; "City COL" Defendants' Proposed Findings
of Fact and Conclusions of Law

"FOP Brief" Intervening Defendants' Post- 
Trial Brief

"FOP FOF"; "FOP COL" Intervening Defendants' Proposed 
Findings of Fact and 
Conclusions of Law

"Plaintiffs' Brief" Plaintiffs' Post-Trial Brief
"Plaintiffs' FOF"; 
"Plaintiffs' COL" Plaintiffs' Proposed Findings of 

Fact and Conclusions of Law

For other abbreviations, see Plaintiffs' Brief at xii.

x -



CROSS REFERENCE TABLE

The following table lists the pages in this reply 
brief where plaintiffs' responses to many of defendants' 
proposed findings of fact can be found. Plaintiffs have not 
attempted to respond to every factual error or to each mis­
statement of the record. See pp. 1-8, infra.

City Defendants' Proposed 
Findings of Fact 

____ (City FOF Numbers)

Plaintiffs' Reply Brief 
(Page Numbers)

Section IV 
25A . .
25G ............................  5
28 ............................  7
34   7
48   48
79   7
84   80
91   37
91-92 ........................... 7-8

Section V
96-260 (also,
FOP FOF 3-4, 11-17)............. 45

Section VI
262-287 .........................3-4
298 ............................  4
327-328 ........................  4
345 ............................. 4

Section VIII
412 .................  2,3,8,35,36,37
413-422 ........................  42
413-414 ........................  34
41 6-420 ........................  43
420 ............................. 43
421 ............................. 7
422 ............................  34
424 . . ...........................  5
425 ............................  43

xi



City Defendants' Proposed 
Findings of Fact 

____ (City FOF Numbers)
Plaintiffs' Reply Brief 

(Page Numbers)

Section VIII (cont'd.)
433
434-435
435
436-438
438-440
439
442___
447 ...

. . . 42
2,36,40 
6-7,39 
. . . 34
. . . 42

7
8

. . . 42

Section IX
459   7-8
461    80
464-478   57
468-472   74
484   80
492-494   63
522   63
523-546   64
531   65
556   66
559   66
561-562   66
568-570   72
573   63
580 . 73
581 . 80
587-588   63
590   62
594   54
602 ............................  62
610   70
612 .6,71
613 . 72
619   65
622 . 77
623 . 77
625 . 79
626 . 78
627 . 78
629 . 78
630 . 79
635   73
639   76
649   76
652-657   54

- x n



UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF KENTUCKY 

AT LOUISVILLE
CIVIL ACTION NO.
C 74-106 L (A)

LOUISVILLE BLACK POLICE OFFICERS 
ORGANIZATION, INC., et al.,

Plaintiffs,
vs.

CITY OF LOUISVILLE, et al.,

Defendants.

PLAINTIFFS' REPLY BRIEF

I. THE DEFENDANTS' POST-TRIAL BRIEFS AND PROPOSED 
FINDINGS AND CONCLUSIONS CONTAIN NUMEROUS 
ERRORS AND MISSTATEMENTS OF THE FACTS AND THE LAW.

A * Defendants Have Made Serious Factual Errors 
and Misstatements of the Record.

The trial of the issues presently before the Court in 
this case took approximately five weeks; it generated more 

than 4,000 pages of recorded testimony and thousands of addi­
tional pages of documentary exhibits. In plaintiffs' proposed 
findings of fact and in our principal brief, we set forth and 
substantiated in careful detail the relevant facts contained in 
this record.



1/ 2/
The defendants and the intervening defendants, in

more than 350 pages of post-trial briefs and proposed findings of 
fact and conclusions of law, have not identified a single erroneous 
reference to the record by plaintiffs. In contrast, the defen­
dants have made a substantial number of serious factual errors

2/and misstatements of the record. Although plaintiffs have 

not attempted to list every such error and misstatement, we have 
compiled a cross reference table, pp. , supra, which collects
references from throughout this reply brief to the defendants' 

proposed findings. Some of the more glaring examples are discussed 
below.

1. Major Statistical Errors
Defendants have substantially undercounted the number 

of police officers selected between March 14, 1969, and the time 
of trial. They entirely excluded three classes of police recruits 
(City FOF 412, 434; City Brief at 49); they incorrectly identified 
another recruit class as having been selected before the beginning 
of the Title VII liability period (City FOF 435; City Brief at 51); 
they improperly classified many post-March 14, 1974, selections

j_/ The defendants are the City of Louisville, the Mayor, 
the Chief of Police, the Civil Service Board and its members, 
and the Personnel Director. See Plaintiffs' FOF 3. Defendants 
are collectively referred to herein as "the City".
2/ The intervening defendants are the Fraternal Order of 
Police, Louisville Lodge No. 6 and its president. Intervening 
defendants are collectively referred to herein as "the 
FOP" .

3/ The factual errors made by the intervening defendants are 
for the most part similar to those of the defendants and are 
not treated separately here.

2



as having occurred before this suit was filed (City FOF 412;
City Brief at 49); and they erroneously used the number of whites 
selected as the total number selected in each of three years 
(City Brief at 49; but cf. City FOF 412). See pp. 34-37, 
infra. This astonishing string of errors has invalidated their 
attempt to rebut plaintiffs' statistical evidence of discrimina­
tion. See section III B, infra.

2. Misstatements on Minority Recruitment
When defendants were asked shortly after the filing of 

this lawsuit in 1974 whether they have "now or ... ever had any 
program to actively seek black or other minority persons as 
officers for the purpose of increasing the numbers of minority 
group officers in the Department," they responded as follows:

There is presently an agreement in this respect 
with the Louisville Urban League. Also, pursuant 
to EEOC guidelines, an affirmative action program 
for minority recruitment is presently being drafted.

★ ★ *

The thrust of the program will be active 
minority recruitment; it is too early yet to 
evaluate any results. (Defendants' Answers to 
Plaintiffs' Interrogatories No. 13-14; PX 3).
Defendants now claim that they made substantial efforts

to attract minority applicants for jobs as police officers
between 1969 and 1974. See City Brief at 41; City FOF 263-87.
But the record supports their prior admission that they did not;

until defendants were sued, virtually all significant minority
recruiting was done by the Urban League and by the plaintiff
Louisville Black Police Officers Organization. Coleman, Vol. IV,
9/29/77 at 614-15, 623. See Plaintiffs' FOF 22.

3



Defendants' attempt to take credit for the Urban League's 
recruitment efforts and advertising (City FOF 267, 284) is
refuted by the record. See Hughes, Vol. I, 3/9/77 at 130-31,

4/
137-44; Holt, Vol. II, 3/10/77 at 402-403. And, contrary to 
defendants' assertion that three black officers were "actively 
involved" in minority recruitment on behalf of the Police Depart­
ment (City FOF 283), the record shows that Officer Lyons was 

assigned in late 1973 to Major Johnson and Sergeant Walters, that 
they shot films of him walking two beats and made some posters, 
and that this effort "ended in early '74, didn't last too long." 
Lyons, Vol. IV, 4/28/77 at 652. Major Johnson "made a couple of 
trips out of town to college campuses ...." Ponder, Vol. I,
3/8/77 at 71. This entire effort, such as it was, took place only 
after plaintiffs had filed charges of discrimination with the EEOC. 
See Plaintiffs' FOF 55, 57; Ponder, Vol. I, 3/8/77 at 72.

Defendants claim that the Civil Service "encouraged the 
efforts of the Urban League during this time and did everything 
it could to assist in those efforts" (City FOF 269). But this 
and other factual assertions based on the testimony of Jack 
Richmond (City FOF 262-66, 269-71, 282) are entitled to no weight 
whatsoever. Richmond, the Director of Civil Service from 1965 
through late 1974, repeatedly contradicted himself in sworn state­

ments concerning the numbers of applicants for jobs as police 
officers between 1965 and 1972 (compare Richmond Dep., 5/11/77 at 
87-88, 102-103, 5/23/77 at 210 and City FOF 264, 282 with PX 5,

£/ Other radio and television advertising claimed by defendants 
(City Brief at 41, citing City FOF 298, 327-28, 345) did not 
begin until 1974.

4



Defendants' Answer to Interrogatory No. 19(i) ); concerning the 
issue of how many applicants failed the written tests (compare 
Richmond Dep., 5/23/77 at 226-27 with PX 5, Defendants' Answer to 
Interrogatory No. 19(i) ); and concerning the question whether his 
office maintained records of the race of applicants (compare 
Richmond Dep., 5/11/77 at 61—62 and 5/23/77 at 230 with Defendants' 
Answer to Interrogatory No. 20). He also testified that applicants 
who passed the oral examination were placed on a certification 
list in a rank order determined by their scores on the written 

examination. (Richmond Dep., 5/11/77 at 91-92; City FOF 25G, 424). 
But Jerry Lee, an employee in Richmond's office since 1964, 
testified that before 1975 there were no official eligibility 

lists and that as applicants completed each step in the selection 
process they "got closer and closer to the front of the drawer" 
until they were given an oral examination, after which they were 
appointed. Lee, Vol. II, 6/21/77 at 260-67. See also, Coleman, 
Vol. IV, 9/29/77 at 629; Arnold, Vol. IV, 9/29/77 at 767.

Contrary to Richmond's testimony and defendants' asser­
tions, the record shows that Richmond was asked and refused to 
assist the Urban League in recruiting black applicants. Arnold, 
Vol. IV, 9/29/77 at 771. The testimony not only of plaintiffs' 
witnesses but also of the former Director of Safety, James 

Thornberry, establishes that Richmond was biased against blacks 
and that he put his personal prejudice into effect in excluding 
blacks from the Louisville Division of Police. Thornberry, Vol.
Ill, 6/22/77 at 409-413; Coleman, Vol. IV, 9/29/77 at 634-35; 
Arnold, Vol. IV, 9/29/77 at 771. See Plaintiffs' Brief at 30-32.

5



3. Misstatements and Errors on Tests and Test Validation
Defendants have displayed a pattern of misrepresenting

the testimony of plaintiffs' expert, Dr. Richard Barrett, con­
cerning the validity of Test 165.1. See p. 63 n.67, p. 65 n.69 ,
and p. 79 n.82, infra. They have erroneously claimed that 
Examination No. 0044 did not have an adverse impact on blacks (p. 48 
n.50 , infra); that there was empirical evidence demonstrating a 
relationship between the abilities purportedly measured by Test
165.1 and the job performance of police officers (p. 62 n.65, 
infra); that they conducted a local content validation study of 
Test 165.1 (p. 66 n.73 , infra); that their expert Terry Talbert 
regarded Test 165.1 as the best police officer test he had 
seen (p. 80 n.83, infra). They have made self-contradictory 

statements as to whether or not they are asserting construct 
validity (pp. 58-59, infra); they have given four conflicting 
definitions of content validity (p. 63 and n.67, infra); and 

they have variously claimed that a statistical correction for 
racial bias was made at two of the four concurrent validity study 
sites, City Brief at 92, or only at one of the sites, City FOP 
612 (p. 71 n.74, infra).

4. Contradictory Statements
In addition to their contradictory assertions with 

respect to the validity of Test 165.1, defendants have made 

conflicting statements on a number of other significant issues.
For example:

(a) They variously claim that the beginning date of the 
statutory liability period under Title VII is August 8 (City FOF

6



435), August 22 (City Brief at 51), and August 26, 1 972 (id. ) .
The correct date is June 1, 1972. See p. 39, infra.

(b) They state that in 1965 applicants could not 
secure an application form unless they had "no felony convictions 
and no more than 2 misdemeanor convictions" (City FOF 25A), but 
they later admit that until 1971 persons were "automatically 
disqualified for arrests ..." (icL 28). The record shows that 
applicants were subject to discretionary disqualification on the 
basis of arrest records even after 1971 (PX 21E, 21F). See 

Plaintiffs' Brief at 21; Plaintiffs' Supplemental Post-Trial 
Brief.

(c) They assert that they abandoned specific height 
and weight requirements in 1975 (City FOF 34, 79), yet they claim 
that Sandra Richardson and Ora Seay were disqualified in October 
1975 because their weight was too great for their height. See 
Plaintiffs' Brief at 44-45.

(d) Defendants claim in their brief that a total of 
197 police officers were appointed between July 1973 and January 
1977, of whom 35 (or 17.7%) were black (City Brief at 52). But 
In DX 63 (cited in City FOF 421 and 439) they state that a total 
of 243 police officers, of whom 43 were black, were appointed 
during this same period. The record shows that a total of 261 
officers were appointed during this period, and that 37 of them 
(14.2%) were black. See p. 36 and p. 44 n.49, infra.

(e) Defendants state that "no person has been hired 
to begin police recruit school from among the Louisville police 
officer applicants who were administered Test 165.1 in January of 

1977" and that "[n]o police recruit training classes have been
7



held since December of 1 976" (City FOF 459; see also, _id. 91-92). 
But they also claim that ”[i]n 1977, the last person selected 
from the eligibility list in effect after the MPOE examination 
was number 48" (City FOF 442; see also, _id. 412; City Brief at 
49). In fact, a total of 53 whites and one black were selected 
in 1977 from the eligibility list reflecting applicants' scores 
on Test 165.1 (75%) and an oral examination (25%). see p. 36 
and n.37, infra.

B. Defendants Have Made Many Errors of Law.
5/

Defendants and intervening defendants have also made 
many errors and misstatements of law which are discussed in the 
following sections of this reply brief. Defendants have erred in 
arguing that the Title VII effect rule is unconstitutional 
as applied to state and local government employers and in arguing 
that proof of discriminatory intent is required under § 1981. 
(Section II.) They have misconstrued the decision in Hazelwood 

School District v. United States, 433 U.S. 299 (1977), and then 
have relied on their misconstruction both in attacking plain-

5/ The intervening defendants raise two issues which this 
Court has decided before: whether there is a proper class repre­
sentative (FOP Brief at 1-8) and whether the Court has jurisdic­
tion over plaintiffs' Title VII claims (i_d. at 9-13). The Court 
has rejected the arguments of defendants and intervening defen­
dants on these issues in the past. See Orders of June 27, 1975; 
Jan. 28, 1976; March 8, 1977 (oral order); April 22, 1977. The 
Court should reject these arguments again. See Plaintiffs' 
Memorandum in Response to Defendants' Renewed Joint Motion to 
Dismiss Title VII Claims and in Response to Other Motions to 
Dismiss Title VII Claims, dated March 8, 1977; Memorandum of 
Plaintiffs in Opposition to Defendants' "Renewed Motion to 
Decertify Class," dated Oct. 12, 1977.

8



tiffs' prima facie case of discrimination and in attempting to
rebut it. (Section III A and B.) They have applied the incorrect
legal standard to plaintiffs' proof of arbitrary, subjective, and
discriminatory treatment of black applicants. (Section III
B(3).) On the one hand, they have erroneously rejected the
applicable federal guidelines and professional standards on

employee selection procedures and test validation, while on the
other they have misapplied those guidelines and standards in

^^9uing that Test 165. 1 is valid. (Section IV. ) The intervening
defendants have applied an erroneous legal standard to the
question whether plaintiffs are entitled to an interim award of

6/
counsel fees. (Section V.)

The evidence demonstrates the following violations 
of the rights of the plaintiffs and the classes they represent:

(1) A conspicuous and longstanding pattern of inten­
tional discrimination against blacks in recruitment, testing, 
selection, and hiring for jobs as police officers, in violation 
of Title VII, § 1981, and § 1983 and the Fourteenth Amendment.
See Plaintiffs' Brief at 11-45; sectipn III, infra.

(2) The disproportionate exclusion of blacks from the 
police force by the use of selection procedures and criteria 
which are not related to job performance —  including unvalidated 
written tests, juvenile and adult arrest records, maximum weight 

standards,and financial status —  in violation of Title VII and
§ 1981. See Plaintiffs' Brief at 19-25, 40-41.

W  The City defendants have not presented any argument on this 
question or on the other forms of relief requested by plaintiffs. 
See Plaintiffs' Brief at 104-120; Plaintiffs' Proposed Order and Judgment.

9



(3) The use of Test 165.1 in a manner which has an 
extreme adverse impact on black applicants and does not validly 
measure their qualifications for the job, in violation of Title 
VII and § 1981. See Plaintifs' Brief at 46-103; section IV, infra.

In order to remedy these violations, the Court has the power 
and the duty to require the defendants to hire qualified blacks 
as police officers on an accelerated basis until the effects 
of defendants' past discrimination have been eliminated. See 
Plaintiffs' Brief at 104-117. Once the Court determines that 
defendants have engaged in unlawful discrimination, plaintiffs 
should also be granted an interim award of counsel fees. See 

Plaintiffs' Brief at 118-20; section V, infra.

II. PLAINTIFFS ARE NOT REQUIRED TO PROVE INTENTIONAL 
RACIAL DISCRIMINATION TO ESTABLISH A VIOLATION 
OF EITHER TITLE VII OR SECTION 1981.

While proof of a racially discriminatory intent or purpose
is necessary to show a violation of the Fourteenth Amendment's
Equal Protection Clause and of 42 U.S.C. § 1983, such proof is
not a prerequisite for establishing a violation of either Title
VII or 42 U.S.C. § 1981. See Plaintiffs' Brief at 6-10. Under
the latter statutes, a prima facie case may be established by
evidence that facially neutral practices have a disproportionate
racial impact; the burden then shifts to the employer to prove

7/
that the practices are job related. Griggs v. Duke Power Co.,

!_ / If the employer meets this burden, the plaintiff may show 
that other selection devices without a similar discriminatory 
effect would also serve the employer's legitimate interests. 
Dothard v. Rawlinson, 433 U.S. 321, 329 (1977); Albemarle 
Paper Co. v. Moody, 422 U.S. 405, 425 (1975).

1 0



401 U.S. 424, 431-32 (1971) (Title VII); Davis v. County of Los
Anqeles, 566 F.2d 1334, 1338-40 (9th Cir. 1977), vacated as moot,

8/
47 O.S.L.W. 4317 (March 27, 1979) (§ 1981).

Defendants concede that, at least under Title VII, "[a]n 

unrebutted prima facie case can ... result in a final judgment
for the plaintiff in the absence of an actual finding of discrimi-

9/
natory intent." City Brief at 3. But they contend that 
Title VII as interpreted by Griggs cannot constitutionally be 
applied to public employers, and that proof of a discriminatory 
motive is required to show a violation of § 1981. Defendants are 

wrong on both counts, and their arguments in any event have 
little or no practical significance for this case because the

8/ While the Supreme Court majority in Davis stated that its 
decision vacating the judgment of the court of appeals "deprives 
that court's opinion of precedential effect," 47 U.S.L.W. at 4320 
n.6, Justice Powell, joined in his dissent by the Chief Justice, 
noted that the opinion of the court of appeals "will continue 
to have precedential weight and, until contrary authority is 
decided, is likely to be viewed as persuasive authority if not 
the governing law of the Ninth Circuit," î d. at 4323 n.10.
9/ Although the quoted statement is correct, defendants 
Have applied the wrong legal standard to the question of 
what an employer must prove to rebut a prima facie disparate 
impact case. The decisions in McDonnell Douglas Corp. v. Green, 
411 U.S. 792 (1973), Furnco Construction Corp. v. Waters,
57 L.Ed. 2d 957 (1 978Ti and Trustees of Keene State College v. 
Sweeney, 58 L.Ed. 2d 216 (1978), concern "the order and alloca­
tion of proof in a private non-class action . . .," McDonnell 
Douglas, 411 U.S. at 800. As the Court noted in Furnco, 57 L.Ed. 
2d at 966 n.7, different principles govern the establishment and 
rebuttal of a prima facie case involving, for example, employ­
ment tests (Griggs and Albemarle Paper, supra), particularized 
job requirements such as height and weight standards (Dothard 
v. Rawlinson, supra), or a pattern or practice of discrimina­
tion (International Brotherhood of Teamsters v. United States,
431 U.S. 344, 358 (1977)). See pp. 45-47, 80-81, infral



evidence clearly establishes a pattern or practice of intentional
10/

racial discrimination.

A. The Extension of the Title VII Effect Rule 
to Public Employers Was a Valid Exercise of 
Congressional Power Under Both the Commerce 
Clause and Section 5 of the Fourteenth 
Amendment.

In amending Title VII by enactment of the Equal Employment 
Opportunity Act of 1972, 86 Stat. 103, Congress intended to extend 
the effect rule of Title VII to state and local government employers. 
The statutory language makes no distinction between the employment 
practices which are proscribed for public employers and those pro­
scribed for private employers; the legislative history shows that the 
statute was meant to prohibit public as well as private employers 
from using invalid selection techniques which have a dispropor­
tionately adverse effect on blacks. See S. Rep. No. 92-415, 92d 
Cong., 1st Sess. 10 (1971); H.R. Rep. No. 92-238, 92d Cong., 1st 
Sess. 17 (1971). Defendants appear to concede that this was the 

intent of Congress, but they argue that in the light of the Supreme 
Court's decisions in National League of Cities v. Usery, 426

10/ Defendants' use of Test 165.1 in 1977 had an extreme adverse 
impact on blacks and was not shown to be job related. See Plaintiffs' 
Brief at 46-103 and section IV, infra. The record also shows that, 
both before and after the filing of this lawsuit, defendants used 
other written tests and selection procedures which had an adverse 
impact on blacks and were not job related. See Plaintiffs' Brief at 
19-25, 40-41. This evidence, standing alone, might not prove inten­
tional discrimination but would prove a violation of Title VII and 
§ 1981 under the standards of Griggs and County of Los Angeles v.
Davis, supra. In this one respect, therefore, the question whether 
these statutes require proof of discriminatory intent may be signifi­
cant. However, if this evidence is viewed, as plaintiffs contend it 
should be, as part of the "totality of the relevant facts," Washington 
v. Davis, 426 U.S. 229, 242 (1976), it not only proves independent 
disparate impact violations but also constitutes relevant evidence of 
disparate treatment. See Teamsters, suora, 431 U.S. at 335 n.15.



U.S. 833 (1976), and Washington v. Davis, 426 U.S. 229 (1976), 
Congress did not have the power to effectuate its intent 
under either the Commerce Clause, Art. I, § 8, cl. 3 of the 
Constitution, or Section 5 of the Fourteenth Amendment. See City 

Brief at 4-13. Defendants have overdrawn the scope of National 
League of Cities and the impact of Washington v. Davis. Both 
the Commerce Clause and the Fourteenth Amendment support Title 
VII as amended in 1972.

1• The Commerce Clause

National League of Cities established that Congress 
does not have the same unfettered control over state and local 

government activities affecting interstate commerce that it has 
over private business, and that a statute proper as to private 
industry may be invalidated if it interferes excessively with the 
"integral governmental functions" of states or cities. 426 U.S. 
at 851. The constitutionality of such legislation depends upon 
"the degree of intrusion upon the protected area of state 

sovereignty" and the extent to which its object is, as a legal or 
practical matter, an area of substantial federal interest. Id. 
at 852-53. Contrary to defendants' contentions, the

Jja.tlQnal League of Cities does not indiscriminately bar 
all federal legislation enacted pursuant to the Commerce 
Clause that would regulate state agencies in their role 
as employers. The Court specifically declined to overrule 
Fry v. United States, 421 U.S. 542 (1975) (sustaining 
congressional power to apply a wage freeze to employees 
of state government); Parden v. Terminal Railway Co., 377 
U.S 184 (1964) (sustaining congressional power"to apoly 
the Federal Employers Liability Act to state-owned rall- 
r°ads)? P.aM fornia v. Taylor, 353 U.S. 553 (1 957) (sustainina 
congressional power to apply the Railway Labor Act to state-'
( m V f c lr?adSh' °r United States v. California. 297 U.S. 175 io) (sustaining congressional power to apply "the Safety 
Appliance Act to state—owned railroads).

13



federal interest in protecting racial minorities is well estab­
lished in our constitutional system, and it transcends the type 

of concern at issue in National League of Cities. Conformity 
with Title VII's effect rule, unlike the minimum wage in National 

League of Cities, will not increase the payroll costs of complying 
jurisdictions. Since Title VII prohibits selection practices 
which have an adverse impact and are not job related, compliance 
will not interfere with any legitimate state or local policies 
and may well contribute significantly to the efficacy of defendants' 

personnel methods.

2. Section 5 of the Fourteenth Amendment

Defendants suggest that the issue here is whether 
"the federal government [may] require the City of Louisville 
to validate its police officer applicant examinations in one of 
the particular ways described in the Federal Guidelines before 
it may recruit and hire more police officers." City Brief 
at 9. This statement of the issue is grossly misleading, since 
the legal obligation to validate a selection procedure arises 

only when that procedure has an adverse impact on a racial, 
sex, or ethnic group. See Plaintiffs' Brief at 46-47. Indeed, 

the Uniform Guidelines on Employee Selection Procedures, 43 Fed.
Reg. 38290 (Aug. 25, 1978) (see section IV, infra), specifically 

authorize employers to eliminate the adverse impact of their 
procedures as an alternative to demonstrating the validity of 
those procedures. Uniform Guidelines, § 6A; Questions and 
Answers on the Uniform Guidelines, 44 Fed. Reg. 1 1996, II 31 
(March 2, 1979). See pp. 83-84, infra.

- 14 -



The real issue is whether Congress acted within the scope of
its Fourteenth Amendment enforcement power when it provided in
Title VII that public employers may not use tests and other
selection practices which have an adverse imDact on blacks unless

12/
those practices are shown to be job related. Defendants 

correctly recognize (City Brief at 9 n.2) that Congress can and 
did exercise its Fourteenth Amendment power to prohibit racial 
discrimination in state and local government employment. See 
Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). They also recognize 
(City Brief at 9-10) that Congress, acting under § 5 of the 

Fourteenth Amendment, has the authority to prohibit conduct which 

is not forbidden by the Washington v. Davis interpretation of § 1 
of the Amendment? the test is whether the statute "may be regarded 

as an enactment to enforce the Equal Protection Clause, whether 
it is 'plainly adapted to that end' and whether it is not pro­
hibited by but is consistent with 'the letter and spirit of the 
Constitution.'" Katzenbach v. Morgan, 384 U.S 641, 651 (1966) 
(footnote omitted). Compare Lassiter v. Northampton Election 
Board, 360 U.S. 45 (1959), with South Carolina v. Katzenbach, 383
U.S. 301 (1966); Katzenbach v. Morgan, supra; and Oreqon v.11/Mitchell, 400 U.S. 112 (1970). Defendants' contention,

12/ Contrary to defendants' claim, in neither Hazelwood School 
District v. United States, 433 U.S. 299 (1977), nor Dothard v. 
Rawlinson, 433 U.S. 3 21 0  977), did the Court allude to this as 
an "open issue." City Brief at 5. In both cases, the Court 
merely noted that the issue was not presented. Hazelwood at 
306-307 n.12; Dothard at 323 n.1.
13/ Lassiter held that, in the absence of proof of discrimina­
tory purpose or administration, North Carolina's literacy test 
for voter registration did not violate either the Fourteenth

15



then, must be that the extension of the Title VII effect rule to
state and local governments does not satisfy this standard.

Defendants are wrong as a matter of constitutional law.
It is undisputed that Congress extended the effect rule to
public employers in order to enforce the Equal Protection
Clause. Congress found that it was necessary to prohibit "both
institutional and overt discriminatory practices" by state and
local governments, S. Rep. No. 92-415, supra at 10; H. R. Rep.

14/
No. 92-238, supra at 17; and Congress was aware that

13/ cont'd.
or the Fifteenth Amendment. Congress subsequently enacted 
the Voting Rights Act of 1965, § 4(a) of which suspended all 
literacy tests in the areas covered by the Act based upon evi­
dence of discriminatory purpose or motivation in some areas, 
while § 4(e) prohibited the use of English literacy requirements 
as a condition of voting for certain persons educated in Puerto 
Rico. 79 Stat. 438. South Carolina v. Katzenbach upheld § 4(a) a 
appropriate legislation to enforce the Fifteenth Amendment, and 
Katzenbach v. Morgan upheld § 4(e) as appropriate legislation 
to enforce the Fourteenth Amendment.

The ban on literary tests was extended nationwide by § 201 
of the Voting Rights Act Amendments of 1970, 84 Stat. 315, 42 
U.S.C. § 1973a, under which no state or political subdivision 
is permitted to use a literacy test even though it has never 
discriminated in voting in the past and has never used such a 
test in a discriminatory manner or with a discriminatory purpose 
Oregon v. Mitchell upheld this section as appropriate legisla­
tion to enforce both the Fourteenth and the Fifteenth Amendments
14/ Both congressional committee reports relied on findings 
of the U.S. Commission on Civil Rights in For All The People 
. . .By All The People (1969), indicating "that widespread 
discrimination against minorities exists in State and local 
government employment, and that the existence of this discrimina 
tion is perpetuated by the presence of both institutional and 
overt discriminatory practices. The report cites widespread 
perpetuation of past discriminatory practices through de facto 
segregated job ladders, invalid selection techniques, and 
stereotyped misconceptions by supervisors regarding minority

1 6



"[b]arriers to equal employment are greater in police and

fire departments than in any other area of State and local
government," 118 Cong. Rec. 790 (1972), reprinting excerpts
from U.S. Commission on Civil Rights, For All The People ...

11/By All The People at 71 (1969). See Plaintiffs' Brief at
108-109. Application of the Griggs rule was plainly adapted to
the solution of this problem, it was not prohibited by any

provision of the Constitution, and it was consistent with the
11/Fourteenth Amendment. Although Congress might have chosen

14/ cont'd.
group capabilities. The study also indicates that employment 
discrimination in State and local governments is more pervasive 
than in the private sector." H. R. Rep. No. 92-238, at 17.
See also, S. Rep. No. 92-415, at 10.
15/ Congress was also aware of the Commission's findings 
that "Negroes are not employed in significant numbers in police 
. . . departments"; that "Negro policemen . . . hold almost 
no positions in the officer ranks"; and that police departments 
"have discouraged minority persons from joining their ranks by 
failure to recruit effectively and by permitting unequal treat­
ment on the job including unequal promotional opportunities, 
discriminatory job assignments, and harassment by fellow 
workers." 118 Cong. Rec. 790 (1972).
16/ Congress could properly conclude that, in many cases in 
which an employer uses a test or other device which excludes 
disproportionate numbers of blacks or other minorities, but 
which is not in fact job related, the employer is intentionally 
using that procedure to discriminate. Since many tests and 
other selection procedures have an adverse impact on minorities 
because of inadequate education, Griggs, supra, 401 U.S. at 
430, and since that inadequate education is often itself due to 
past racial or other discrimination by state and local govern­
ments, Gaston County v. United States, 395 U.S. 285 (1969), the 
use of such procedures by a state or local government will 
involve a problem of past intentional discrimination not appli­
cable to private employers. Congress, rather than requiring 
detailed proof that a selection procedure fell into one of 
these categories of unconstitutional action, could reasonably 
establish a simple rule prohibiting the use of such procedures

17



an enforcement mechanism which balanced the conflicting interests
in a different way, "[i]t is not for [the Court] to review the
congressional resolution of these factors. It is enough that
[the Court] be able to perceive a basis upon which the Congress
might resolve the conflict as it did." Katzenbach v. Morgan,

11/supra, 384 U.S. at 653.

16/ cont'd.
if they were not job related. Title VII, viewed in this light, 
falls within the general rule that "the inclusion of a reason­
able margin to insure effective enforcement will not put upon 
a law, otherwise valid, the stamp of invalidity." Euclid v.
Ambler Realty, 272 U.S. 365, 388-89 (1926). This rule clearly 
applies to the congressional Fourteenth Amendment enforcement 
power. See Orloski, The Enforcement Clauses of the Civil War 
Amendments: A Repository of Legislative Power, 49 St. John' s 
L. Rev. 493, 506-507 (1975); Yackle, The Burger Court, "State 
Action," and Congressional Enforcement of the Civil War Amendments,
27 Ala. L. Rev. 479, 562-66 (1975); Cohen, Congressional Power 
To Interpret Due Process and Equal Protection, 27 Stan. Li Rev.
603, 613-16 (1975); Note, Federal Power To Regulate Private 
Discrimination: The Revival of the Enforcement Clauses of the
Reconstruction Era Amendments, 74 Colum. Li Rev. 449, 505-510 
(1974).
17/ Defendants' attempt to distinguish Katzenbach v. Morgan 
(City Brief at 11-13) is unpersuasive. In extending the Title 
VII effect rule, as in enacting the statutes prohibiting literacy 
tests for voter registration which the Court upheld in Morgan,
South Carolina v. Katzenbach, and Oregon v. Mitchell, supra, Con­
gress properly applied the prohibition across the board, without 
regard to whether a particular state or local government had 
previously used any tests or devices in a discriminatory manner 
or with a discriminatory purpose; Congress specifically determined 
that the Griggs rule should be extended; Congress sought to 
eliminate employment discrimination "in those government activi­
ties which are most visible to the minority communities (notably 
education, law enforcement, and the administration of justice)
...," H. R. Rep. No. 92-238, supra at 17, where the exclusion of 
minorities "not only promotes ignorance of minority problems in 
the particular community, but also creates mistrust, alienation, 
and all too often hostility toward the entire process of government," 
S. Rep. No. 92-415, supra at 10; Congress recognized that states 
and cities have no greater need for employment tests which do not 
predict job performance than for literacy tests which do not

18



This basis clearly is present here. As a number of courts 

have recognized, the extension of the Title VII effect rule to state
and local government employers was a proper exercise of congres­
sional power under § 5 of the Fourteenth Amendment. United 
States v. City of Chicago, 573 F.2d 416, 422-24 (7th Cir. 1978); 
Firefighters Institute for Racial Equality v. City of St. Louis, 
549 F .2d 506, 510 (8th Cir.), cert, denied, 434 U.S. 819 (1977); 
Harrington v. Vandalia-Butler Board of Education, 418 F. Supp. 
603, 607 (S.D. Ohio 1976); Jones v. Milwaukee County, 13 FEP 
Cases 307, 309 (E.D. Wis. 1976).

B. Evidence of Discriminatory Intent Is Not
Required To Prove a Violation of Section 1981.

Defendants have mischaracterized this issue as "whether the 
extension of Title VII to governmental agencies . . . implicitly 
amended Section 1981." City Brief at 17. The Supreme Court has 
held that these two statutory remedies for employment discrimi­
nation, "although related, and although directed to most of the

17/ cont'd.

guarantee an informed and intelligent electorate; Congress did 
not impose an unnecessary administrative burden on public employers 
but merely required them to show that their selection procedures 
are valid if they insist on using procedures with an adverse 
impact on minorities (an option which was not available under the 
flat prohibitions of literacy tests for voter registration); and 
Congress ratified the use of race-conscious remedies for employment 
discrimination which sometimes operate to upset the expectations of 
whites hoping to benefit from a continuation of discriminatory 
practices, just as it has approved the use of race-conscious re­
districting plans which deprive whites of bloc voting strength, see 
Regents of the University of California v. 3akke, 438 U.S. 265, 
353-54 n.28, 366 n.41 (1978) (opinion of Brennan, White, Marshall, 
and Blackmun, JJ. ) .

19



same ends, are separate, distinct, and independent." Johnson v.
Railway Express Agency, Inc., 421 U.S. 454, 461 (1975). Thus,
the real question is whether § 1981 itself should be construed

18/
as requiring proof of discriminatory intent.

Defendants appear to concede that the present answer in this 
circuit is that of Long v. Ford Motor Company: A prima facie viola­
tion of § 1981 may be established by proof of either disparate treat­
ment or disparate impact. 496 F.2d 500, 506 (6th Cir. 1974).
See City Brief at 17-18. The language and history of § 1981 
indicate that this answer is correct. See Brief Amicus Curiae 
for the NAACP Legal Defense and Educational Fund, Inc., in
County of Los Angeles v. Davis, No. 77-1553, at 9-37 (attached

19/
hereto as Appendix A).

Section 1981 was originally enacted as § 1 of the Civil 
Rights Act of 1866, 14 Stat. 27. The language of § 1 of the

18/ Contrary to defendants' contention (City Brief at 15-16), 
neither the Supreme Court nor the Seventh Circuit decided this 
question sub silentio in Village of Arlington Heights v.Metro­
politan Housing Development Corp.̂  429 U.S. 252 (1977), on 
remand, 558 F .2d 1283 (7th Cir. 1977), cert, denied, 434 U.S.
1025 Cl 978). As the Supreme Court stated in County of Los 
Angeles v. Davis, 47 U.S.L.W. 4317, 4318 (March 27, 1979), it 
had granted certiorari in that case for the express purpose of 
determining "whether the use of arbitrary employment criteria, 
racially exclusionary in operation, but not purposefully dis­
criminatory, violate [sic] 42 U.S.C. § 1981 . . . "  Had the Court 
decided this question in Arlington Heights, there would have 
been no need to address it in Davis. The Court ultimately did 
not decide the issue in Davis because it found that the case had 
become moot. 47 U.S.L.W. at 4319-20.
19/ Because the Court adopted the argument in section I of this 
amicus brief that the case had become moot, see County of Los 
Angeles v. Davis, supra, 47 U.S.L.W. at 4319, 4322, the Court did 
not reach the issues discussed in section II concerning the 
interpretation of § 1981.

20



1866 Act, unlike the language of § 2 and of some other con­
temporary statutes, was not limited to cases of intentional 
discrimination; rather, it provided that all "citizens, of 
every race and color, without regard to any previous condition 

of slavery or involuntary servitude . . . shall have the same 
right . . .  to make and enforce contracts . . .  as is enjoyed 
by white citizens." Appendix A at 14-15. When this provision 
was enacted in 1866, and when it was re-enacted in 1870 to ex­
pand the group protected from "citizens of the United States" 
to "all persons within the jurisdiction of the United States," 
Congress intended the protection of the statute to be broader 
than that of the Fourteenth Amendment in a number of respects.
Id♦ at 10-11. Indeed, the one undisputed goal of the Civil 
Rights Act was to abrogate the oppressive "Black Codes" of the 

post-Civil War South, many of which were racially neutral on 
their face but discriminatory in their effect — ■ a consequence 
of the drastically different social, educational, and economic 

status of blacks and whites, which was in turn rooted in the 
history of slavery and discrimination. Id_. at 15-29. Practices 
in the 1970s, such as the use of non-job related employment 

tests which have the same negative impact on blacks for sub­
stantially the same reasons as the practices of the 1870s, are 
not insulated from the reach of § 1981 by the mete passage of 
time. See _id_. at 29-37. Plaintiffs thus submit that § 1981, 
properly construed, prohibits employment practices which are 
discriminatory in effect and unrelated to job performance. See 

cases cited in Plaintiffs' Brief at 10.

21



C . The Record Shows, in any Event, that Defendants 
Engaged in Intentional Discrimination.

Contrary to defendants' argument (City Brief at 22-24),
not only would the record in this case support a finding of
intentional discrimination, but a finding that defendants had
not engaged in intentional discrimination would be clearly
erroneous. The statistical evidence of the exclusion of blacks,
which itself is overwhelming, is buttressed by evidence showing
the segregationist history of defendants' police employment

2 0/
practices, purposeful discrimination in recruitment and 
selection practices at least until the filing of this action in 
1974, use of tests and other selection procedures both before 
and after 1974 which adversely affected blacks and were not job 
related, and numerous instances in which black applicants were 

subjected to unexplained delays and were disqualified on the 
basis of arbitrary, subjective, and discriminatory criteria.
See Plaintiffs' Brief at 11-103 and section III, infra. Thus, 
even if Title VII and § 1981 could be construed as requiring 
proof of discriminatory intent, those requirements would be 
satisfied here. Cf. Hazelwood School District v. United States, 
supra, 433 U.S. at 306-307 n.12.

20/ This fact alone is sufficient to distinguish this case from 
Richardson v. McFadden, 540 F.2d 744 (4th Cir. 1976). See City 
Brief at 23-24. There the court found no intentional discrimina­
tion in the administration of the South Carolina bar examination, 
noting that it was "perhaps of controlling importance" that there 
had never been laws or rules of court prohibiting blacks from 
practicing law in the state or imposing different standards on 
blacks than on whites. Id. at 747. Moreover, the court found 
it "statistically clear tnat admission to the State's Bar has 
been relatively open to blacks . . . "  I_d. Here the statistical 
picture is equally clear, but what it shows is that the City's 
police force has been closed to all but a handful of blacks 
for the last 40 years.

22



III. PLAINTIFFS HAVE ESTABLISHED A PRIMA FACIE 
CASE OF INTENTIONAL DISCRIMINATION WHICH 
DEFENDANTS HAVE FAILED TO REBUT.

Defendants, misconstruing both the plaintiffs' arguments 
and the Supreme Court's decisions in International Brotherhood 
of Teamsters v. United States and Hazelwood School District v. 

United States, supra, contend that plaintiffs have failed to 
establish a prima facie case "even under the rule of Griggs."
City Brief at 26, 46. Defendants apparently do not understand 
that the Teamsters and Hazelwood decisions concern the order 
and allocation of proof in cases alleging a pattern or practice 

of intentional "disparate treatment" based on race, not in 
cases involving non-racially motivated "disparate impact" such 
as Griggs. See Teamsters, 431 U.S. at 335 and n.15; Hazelwood, 
433 U.S. at 306-307 n.12. Plaintiffs submit that the record 
here establishes a clear disparate impact violation; but, like 
the Government in Teamsters and Hazelwood, plaintiffs submit that 
the evidence also establishes disparate treatment by showing that 
the defendants "regularly and purposefully treated Negroes ... 
less favorably than white persons." Hazelwood, supra at 307 

n.12; Teamsters, supra at 335. See Plaintiffs' Brief at 8-9, 
11-45. Contrary to defendants' arguments, plaintiffs have 
satisfied the standards of these decisions for establishing 

a prima facie case of intentional and purposeful discrimination 
against blacks, and defendants have failed to rebut this prima 
facie case.

23



A. Plaintiffs Have Established a Prima Facie 
Case of Intentional Discrimination.

1. Defendants have misconstrued Hazelwood.

Defendants have conceded that under Teamsters "it
is ordinarily to be expected that nondiscriminatory hiring

practices will in time result in a work force more or less
representative of the racial and ethnic composition of the
population in the community from which employees are hired,"
and that ”[e]vidence of longlasting and gross disparity between
the composition of a work force and that of the general popula-

11/tion thus may be significant 431 U.S. at 340 n.20.
City Brief at 27. But defendants have badly misconstrued the 
Hazelwood decision and then have relied on their misconstruction 
to argue that plaintiffs have not established a prima facie case. 
See City Brief at 28-30, 48, 51.

The Government in Hazelwood brought a Title VII 
action alleging a pattern or practice of racial discrimination in 

the hiring of school teachers by a suburban St. Louis school 
district. The Government there, like the plaintiffs here, 
adduced evidence of (1) a history of racially discriminatory 
practices, (2) statistical disparities in hiring, (3) standardless

21/ Defendants seek to distinguish Teamsters on the ground 
that the Court there was faced with a case of "the inexorable 
zero" in which no blacks had been hired in a particular job 
classification. City Brief at 27 n.8. This, on the other 
hand, appears to be a case of "the inexorable two"; although 
between 15 and 82 new white officers were accepted into police 
recruit school classes which graduated in each year from 1964 
until the year this lawsuit was filed, no more than two new 
black officers were ever allowed in recruit school classes 
which graduated in any of those years. See Plaintiffs' FOF 8.

24



and subjective hiring procedures, and (4) specific instances of
22/

discrimination against black applicants. 433 U.S. at 303. The
district court found this evidence insufficient to establish
a prima facie violation of Title VII, holding inter alia that
there was not a substantial disparity between the percentage
of black teachers and the percentage of black students in

23/
the school district. Ld. at 304. The Eighth Circuit 

reversed. Id_. at 304-306. It rejected the trial court's 
comparison of black teachers to black students and held 
instead that the proper comparison was between black teachers 
employed by Hazelwood and black teachers in the relevant 
labor market area, which the appellate court found to be St. 
Louis County and St. Louis City taken together. Id. at 305.

22/ Plaintiffs here, unlike the Government in Hazelwood, also 
adduced evidence that the defendants used selection procedures 
which had an adverse impact on blacks and were not job-related. 
See Plaintiffs' Brief at 19-25, 40-41, 46-103. This evidence 
not only provides additional proof of intentional discrimina­
tion, see Washington v. Davis, supra, 426 U.S. at 253 
(Stevens, J., concurring), but also establishes an independent 
"disparate impact” violation of Title VII which is not con­
ditioned upon any proof of racially motivated discrimination, 
Teamsters, supra, 431 U.S. at 335 n.15.
23/ Defendants erroneously state that the district court 
ruled "that plaintiffs had established a prima facie case of 
employment discrimination by demonstrating that there was a 
substantial discrepancy between the black participation rate in 
Hazelwood's teacher work force and the district's black student 
population." City Brief at 28. In fact, the district court 
found that "statistics showing that relatively small numbers of 
Negroes were employed as teachers were ... nonprobative, on the 
ground that the percentage of Negro pupils in Hazelwood was 
similarly small." 433 U.S. at 304.

25



The substantial disparity oetween the percentage of black 
teachers in this area and the percentage of black teachers 
on Hazelwood's staff, together with the evidence showing the 

school district's history of discrimination, its subjective 
hiring procedures, and instances of discrimination against 
individual black applicants, established a prima facie case 
which the school district had failed to rebut. The court of 
appeals therefore directed judgment for the Government. Id. 
at 305-306.

On certiorari, the question addressed by the Supreme Court 
was not whether a prima facie case had been established but 
whether the court of appeals had improperly relied upon "undif­
ferentiated work force statistics to find an unrebutted prima 
facie case of employment discrimination." Id_. at 306 (emphasis 
added). Neither Hazelwood nor any of the other Title VII cases 
cited by defendants (City Brief at 46-48) holds that statistics 
showing the racial composition of an employer's work force must 
be disregarded merely because those statistics reflect pre-Act as 
well as post-Act employment decisions. In Evans v. United Air 
Lines, Inc. , 431 U.S. 554 (1 977), the Court simply held that a 
charge of discrimination must be filed with the EEOC within the 
statutory period following the occurrence of a violation; it is 
undisputed that this requirement was satisfied here. See Plain­

tiffs' FOF 55-57. In Hazelwood, the Supreme Court specifically 
approved the view of the court of appeals that, for the purpose 
of establishing a prima facie case, "a proper comparison was 
between the racial composition of Hazelwood's teaching staff and 
the racial composition of the qualified public school teacher

26



population in the relevant labor market." Id. at 303 (footnote 

omitted). A number of defendants' other cases also expressly 
hold that work force statistics reflecting the results of both 
pre- and post-Act employment decisions may properly be con­
sidered in determining the existence of a prima facie case.
See Teamsters, 431 U.S. at 340 n.20; Friend v. Leidinger, 446 F. 
Supp. 361 , 368 (E.D. Va. 1 977), aff 'd, 588 F .2d 61 (4th Cir.
1978); Detroit Police Officers Association v. Young, 446 F. Supp. 
979, 996 (E.D. Mich. 1978).

In deciding whether a prima facie case had been established, 
there was no need for the Court in Hazelwood to choose between 
the 15.4% comparison figure suggested by the Government and the 

5.7% figure urged by the employer; "even assuming, arguendo, that 
the 5.7% figure ... is correct, the disparity between that figure 
and the percentage of Negroes on Hazelwood's teaching staff would 
be more than fourfold for the 1972-1973 school year, and threefold 
for the 1973-1974 school year." 433 U.S. at 309 n.14. The 
significance of this disparity was confirmed by the statistical 
analysis explained in Castaneda v. Partida, 430 U.S. 482, 496-97 
n.17 (1977). See Plaintiffs' Brief at 16-17.

Thus, the court of appeals in Hazelwood had correctly 
held that the evidence established a prima facie case of 

intentional discrimination, but it had erred in disregarding 
"the possibility that this prima facie statistical proof in 

the record might at the trial court level be rebutted by 
statistics dealing with Hazelwood's hiring after it be­
came subject to Title VII." 433 U.S. at 309. As the Supreme

27



Court noted, the selection of the relevant labor market area 
might well have a bearing on the strength of the defendant's 
rebuttal evidence. Id. at 310-11 and n.17. In addition, the 
defendant could come forward with post-Act applicant flow 
data. _Id. at 310, 313 n.21; see also i_a. at 314 (Brennan, J. , 
concurring). The case therefore was remanded to give the 
employer an opportunity to rebut the Government's prima facie 
case by showing that "the claimed discriminatory pattern is a 

product of pre-Act hiring rather than unlawful post-Act dis­
crimination." Id. at 310; Teamsters, supra, 431 U.S. at 360.

2. Even under defendants' theory of the
relevant labor market, plaintiffs have 
established a prima facie case.

Plaintiffs submit that the proper figure to use in
determining whether the evidence here establishes a prima
facie case, as well as in setting an appropriate goal for
affirmative hiring relief, is the general population of the
City of Louisville, which was 23.8% black in 1970. See

24/
Plaintiffs' Brief at 14-15 n.4, 107-114. But here, as

24/ Defendants' cases (see City Brief at 30-48) do not 
support their argument that the only appropriate figure is the 
10% black proportion of the 1970 civilian labor force in the 
Louisville SMSA who were between the ages of 20 and 34 and who were 
high school graduates or above in educational level. See DX 28; 
Spar. Vol. Ill, 6/22/77 at 354-55. These cases indicate instead, 
as conceded by the intervening defendants (FOP Brief at 42), 
that courts have compared the racial composition of a defendant's 
membership or work force to the racial composition of a wide 
variety of arguably relevant populations. See, e.g., United 
States v. Ironworkers Local 86, 443 F.2d 544, 551 and n.19.
(9th Cir.), cert, denied, 404 U.S. 984 (1971) (city which has 
the single largest population within unions' jurisdiction and 
in which unions' main offices, hiring halls, and training

28



in Hazelwood, it is not necessary for the Court to choose
between the figure suggested by plaintiffs and the figure 
suggested by defendants; even if defendants' 10% figure is 
used, the disparity between that figure and the percentage 
of blacks on the Louisville police force is so substantial 
that it creates an inference of intentional discrimination.

The comparison which the Court made in Hazelwood for the 
purpose of determining a prima facie case was between the 
racial composition of the defendant's work force on and after 
the effective date of Title VII and the racial composition 
of the labor market area suggested by the defendant. 433 U.S. 
at 309 n.14. If the same comparison is made here, it reveals a

25/disparity of 3.1 standard deviations as of January 1, 1970, 
between the actual number of black officers on the Louisville

24/ cont'd.
facilities are located); EEOC v. Local 14, Operating Engineers, 
553 F.2d 251, 254 (2d Cir. 1977) (labor pool in the region from 
which unions draw their members); Stamps v. Detroit Edison Co., 
365 F. Supp. 87, 111 (E.D. Mich. 1973), aff'd in pertinent part 
sub nom EEOC v. Detroit Edison Co., 515 F .2d 301 (6tn Cir.
1975), vac'd and rem'd on other grounds, 431 U.S. 951 (1977)
(area from whieh employees are drawn); Friend v. Leidinger, 
supra, 446 F. Supp. at 368 (general population of the SMSA); 
Detroit Police Officers Association v. Young, supra, 446 F.
Supp. at 994-96 (E.D. Mich. 1978) (persons possessing minimum 
requirements and residing in tri-county area in which the bulk 
of all applicants are found); Smith v. Union Oil Co., 17 FEP 
Cases 960, 967-68 (N.D. Cal. 1977) (court finds it appropriate 
to consider three different figures: clerical SMSA labor force, 
overall SMSA labor force, and weighted overall SMSA labor force). 
See also, cases cited in Plaintiffs' Brief at 14-15 n.4; FOP 
Brief at 42-48.

25/ Under the applicable statute of limitations, KRS § 413.120, 
defendants here are liable for violations of §§ 1981 and 1983 and 
the Fourteenth Amendment occurring on and after March 14, 1969. 
See City COL 666.

29



police force (39) and the number one would expect to find on the
force as the result of nondiscriminatory hiring practices (62).
See Plaintifs' FOF 6. Castaneda v. Partida, supra, 430 U.S. at 

26/
496-97 n.17. The disparity in 1970 was even greater in com­
parison to the black proportion of the population of either Jefferson 
County or the City of Louisville. Moreover, the disparities 
steadily increased in relation to all three comparison figures 
from 1970 until 1974, when this lawsuit was filed, and they 
remained significant even after defendants had been sued.
Because "a fluctuation of more than two or three standard 
deviations would undercut the hypothesis that decisions were 
being made randomly with respect to race," Hazelwood, supra,
433 U.S. at 311 n.17, these disparities indicate the existence of 
intentional discrimination against blacks, id. at 308-309 n.14.
These figures are summarized in the following table (see Plain­
tiffs' FOF 5-6).

26/ The Castaneda statistical model measures fluctuations
from the expected value in terms of the standard deviation,
which is defined as the square root of the product of the
total number in the sample (here, 621) times the percentage
of blacks one would expect to find in the sample (.10) times
the percentage of whites one would expect to find in the
sample (.90). Thus, the standard deviation -- based on
defendants' January 1, 1970, work force and on defendants'
view of the relevant labor market —  is 7.48. The difference
between the expected and observed numbers of blacks on the
force at that time is 3.1 standard deviations ( [6 2-39]/7.48 = 3.1).
See Plaintiffs' Brief at 16 n.5.

30



CASTANEDA ANALYSIS 
Louisville Police Force, 1970-1974

Number of Standard Deviations 
Between Expected and Observed 
Numbers of Black Officers

Total
Date Officers

Black
Officers

10% SMSA 
Figure 27/

13.8% County 
Population 
Fiqure 28/

23.8% City 
Population 
Fiqure 29/

1/1/70 621 39 (6.3%) 3. 1 5.4 10.3

1/1/71 624 38 (6.1%) 3.3 5.6 10.4

1/1/72 664 37 (5.6%) 3.8 6.1 11.0

1/1/73 692 39 (5.6%) 3.8 6.2 11.2
1/1/74-^/ 765 43 (5.6%) 4.0 6.6 11.8

Plaintiffs' proof of intentional discrimination goes 
far beyond these substantial disparities. The record contains 
additional statistical evidence of discrimination (see

27/ This is the comparison figure suggested by defendants. See 
City Brief at 45, 50-51.
28/ This was the percentage of blacks in the general popula­
tion of Jefferson County in 1970. See Plaintiffs' FOF 5. The 
disparities remain significant if the data are qualified by 
age and educational restrictions. The intervening defendants 
have suggested the use of either Louisville SMSA or Jefferson 
County data for comparisons. FOP Brief at 63.
29/ This was the percentage of blacks in the general popula­
tion of the City of Louisville in 1970. See Plaintiffs'
FOF 5. Plaintiffs submit that this is the most appropriate 
comparison figure. The disparities remain significant if the 
data are qualified by age and educational restrictions.
30/ The disparities decreased somewhat but remained significant 
even after this lawsuit was filed. The numbers of standard 
deviations as of January -1, 1 975, and March 1 , 1 977, respectively, 
are as follows: using defendants' SMSA figure, 2.8 and 2.2;
using the county population figure, 5.6 and 4.9; and using the 
city population figure, 11.1 and 10.3.

31



Plaintiffs' Brief at 11-17, 35-39); proof of the segregationist
history of Louisville's police employment practices (id.

11/at 33-35); evidence showing purposeful discrimination 
in recruitment and selection practices at least until the 
filing of this action in 1 974 (i_d. at 1 3-20, 30-32); evidence 
showing the use of tests and other selection procedures both 
before and after 1974 which had an adverse impact on black 
applicants and which were not job-related (id_. at 21-25, 40-41 , 
46-103); evidence showing that, until well after this suit was 
filed, defendants used a subjective and unstructured selection 
process which concentrated almost total authority in the hands of 
one man, Jack Richmond, who was known "to come down the hardest 
on the black applicants" (î d. at 30-32); and proof of numerous 
instances in which black applicants were subjected to unexplained 
delays and were disqualified on the basis of arbitrary, subjective, 
and discriminatory criteria (i_d. at 27-31 , 41-45). This evidence 
is more than sufficient to establish a prima facie case of 
intentional discrimination under Hazelwood. See 433 U.S. at 
303.

31/ As the Court stated in Hazelwood, proof that an employer 
engaged in racial discrimination before the effective date of 
Title VII may "support the inference that such discrimination 
continued, particularly where relevant aspects of the decision­
making process had undergone little change. ... And, of 
course, a public employer even before the extension of Title 
VII in 1972 was subject to the command of the Fourteenth 
Amendment not to engage in purposeful racial discrimination." 
433 U.S. at 309-310 n.15.

32



B . Defendants Have Failed To Rebut Plaintiffs'
Prima Facie Case of Intentional Discrimination.

Once plaintiffs have established a prima facie case, the 
burden shifts to defendants to rebut that case by demonstrating 
that the plaintiffs' proof is either inaccurate or insignificant. 
Teamsters, supra, 431 U.S. at 360. Under Hazelwood, defendants 
may carry this burden by proving that "the claimed dis­
criminatory pattern is a product of pre-Act hiring rather than 
unlawful post-Act discrimination." 433 U.S. at 310. Such 
rebuttal evidence may consist of a comparison of the employer's 
post-Act hiring statistics either with the racial composition 
of the relevant labor market, id. at 310-11 and n.17, or with 

reliable data showing the racial composition of the pool of 
actual applicants for the job, î d. at 310, 313 n.21; see also 
id. at 314 (Brennan, J., concurring).

Both the labor market comparison and the applicant flow com­
parison offered by the defendants here are invalidated by serious 
computational errors and by unexplained assumptions which are not 
supported by the record. When the errors are corrected and the 
arbitrary assumptions are eliminated, these comparisons support 
rather than rebut plaintiffs' prima facie case. Defendants' 
attempt to rebut the testimonial evidence of arbitrary, subjec­
tive, and discriminatory treatment of black applicants is 
also misconceived; individual witnesses are not required to 
prove independent violations of their personal rights at this 

stage of the litigation. Since defendants have not rebutted

33



the prima facie case of classwide discrimination, plaintiffs are 
entitled to judgment on the issues of liability and prospective 
injunctive relief.

1 .
and arbitrary assumptions are corrected
their labor market ,analysis for the
statutory liability periods provides
further supoort for plaintiffs' prima

a. §§ 1981, 1983 and the Fourteenth Amendment

Defendants concede that their hiring statistics for 
the period March 14, 1969, to March 14, 1974, are "legally 
significant" because these dates mark the beginning of the 
statutory liability period for plaintiffs' claims under §§ 1981 
and 1983 and the Fourteenth Amendment (see n.25, supra) and the 
filing of this suit. City Brief at 49. They contend, however, 
that these statistics indicate that selections during this 
period were random. I_d. at 49-50.

Defendants have seriously miscounted the number of 
persons selected since March 14, 1969, and this miscalculation

32/
permeates and invalidates their entire analysis. In the 
chart on page 49 of their brief, under the column entitled 
"Selections," defendants have correctly stated the total number 
of selections (black and white) for the years 1970-1972 and 
1976. But, for the year 1969, defendants have improperly excluded 
selections which should be included on the basis of the record.

32/ These errors also invalidate the following proposed findings 
of fact: City FOF 413, 414, 422, 436, 437, and 438.

34



For the year 1973, they have failed to count an entire recruit
class which began in 1973 and graduated on March 22, 1974. For
the year 1974, they have not accurately divided the appointments
made before March 14 from those made after March 14, and their
"Selections" column does not include the total number selected

33/
but only the number of whites selected in that year. For 
the years 1975 and 1977, the "Selections" column again does not 

include the total number selected but only the number of whites 
selected in each of those years. See Plaintiffs' FOF 32; City 
FOF 412. And for the year 1977, defendants have improperly 

excluded selections which should be included on the basis of the 
record.

The data which defendants attempted to report in their 
chart (City Brief at 49), with defendants' computational errors 
and unjustified assumptions corrected, are set forth in the 
following table.

33/ In transposing the data from the chart in their proposed 
finding no. 412 to the chart on page 49 of their brief, defen­
dants have also dropped one black selected in 1974.

35



SELECTION STATISTICS 
1969-1977

Total White Black
Year Selections Selections Selections

1 969H/ 25 24 1
1970 24 24 0
1 971 36 36 0
197235/1973—

30 28 2
1 12 108 4

1974 (before
3/14/74)— 7

26 22 4

SUBTOTALS ........ . 242 1 1
1974 (after 73 56 1 7

3/14/74)
1975 42 31 1 1
197637/ 1 977— 7

1 1 
54

1 1 
53

0
1

TOTALS ............ ___ 433 393 40

34/ Defendants' chart excluded these 24 whites and one black 
on the theory that they were hired before March 14, 1969. See 
City Brief at 49 n.1. Defendants correctly state that these 
persons completed the recruit school on August 8, 1969 (see PX 7); 
but defendants assume, without citing any specific support in the 
record, that this 1969 recruit class lasted 21 weeks. See City 
FOF 434-35. Plaintiffs have reviewed the record and have found 
evidence that the recruit school took 12 weeks in 1939 (Haendiges, 
Vol. II, 9/27/77 at 281), 18-24 weeks in 1974 (Defendants' Answer 
to Plaintiffs' Interrogatory No. 34, Oct. 15, 1974), 21 weeks in 
1975 (DX 40, "Narrative —  police officer," at 1), and 18-20 
weeks in 1977 (Nevin, Vol. IV, 6/23/77 at 523-24). Plaintiffs have 
found no evidence to support defendants' assumption that it 
lasted 21 weeks in 1969.
35/ Defendants' chart (see also, City FOF 412) excluded 26 
whites and 2 blacks who were accepted for the recruit class which 
graduated on March 22, 1974. See PX 7. Since this class ran 18 
weeks or longer (see n.34, supra), it had to begin in 1973.
Persons in this class were therefore appointed in 1973 and were 
not among the total of 99 appointments made in 1974. See PX 54.
36/ Defendants' chart lists only 78 total selections in 1974. But 
the official eligible list for 1974 (PX 54) shows that a total of 
99 appointments were made; 78 of these appointments were whites and

36



Defendants' errors were carried over into their Castaneda
calculations. See City Brief at 50. When these errors are 
corrected, the Castaneda analysis shows that, even using defen­
dants' theory that only 10% of the persons in the relevant 
comparison area are black, there is a difference of three 
standard deviations between the expected number and the actual
number of black officers selected between March 14, 1969, and

38/
March 14, 1974. The disparity is even greater in compari­
son to the black proportion of the population of either Jefferson 
County or the City of Louisville. The following table contains 
the corrected version of the Castaneda analysis which defendants 
attempted to perform (City Brief at 50), as well as an analysis 

using the city and county comparison figures.

36/ cont'd.
21 were blacks. See PX 54; City FOF 412. The members of the 
recruit class which graduated on May 17, 1974, were selected 
before March 14; the remaining 56 whites and 17 blacks were not 
appointed until after this suit was filed. See PX 7, PX 54.
37/ Defendants' chart (see also, City FOF 412) excluded the 25 
whites who were selected in April 1977 for an all-white recruit 
class which was scheduled to begin in May 1977. Only after 
plaintiffs filed a motion for a preliminary injunction did 
defendants "voluntarily" agree see City FOF 91) not to proceed 
with the class. See Plaintiffs' FOF 39. Defendants have offered 
no explanation for excluding these selections from their analysis.
38/ Defendants' incorrect figures yielded a difference of 2.83 
standard deviations. City Brief at 50.

37



CASTANEDA ANALYSIS
Louisville Police Selections
March 1969 - March 1974

10% SMSA
13.8% County 
Population

23.8% City 
Population

Figure Figure Fiqure
Total Selections 253 253 253
Anticipated Black
Selection Ratio 10% 13.8% 23.8%
Number of Anticipated
Black Selections 25.3 34.9 60.2
Number of Actual
Black Selections 1 1 1 1 1 1
Number of Standard 
Deviations Between 
Anticipated and 
Actual Black 
Selections 3.00 4.36 7.27

As defendants have acknowledged, a difference of "three 
standard deviations ... support [s] an inference that the selec­
tions were other than random, i.e., discriminatory." City Brief

39/
at 52. See Hazelwood, 433 U.S. at 311 n.17. This statisti­
cal evidence does not satisfy defendants' burden of proof; 
on the contrary, as the Court found in Hazelwood, "each of 

these statistical comparisons would reinforce rather than rebut 
the [plaintiffs'] other proof." 433 U.S. at 311 n.17.

39/ The Court in Hazelwood, 433 U.S. at 311 n.17, and in 
Castaneda, 430 U.S. at 496-97 n.17, also used a more precise 
method of analyzing such statistics. See F. Mosteller, R.
Rourke, & G. Thomas, Probability with Statistical Applications 
494 (2d ed. 1970). When this method is applied to the disparity 
between the actual number of blacks hired during this period 
(11) and the expected number based on defendants' 10% SMSA theory 
(25.3), it shows a probability of only 0.00075, or less than 1 in 
1,332 times, that this disparity would occur by chance. This is 
far below the generally accepted 0.05 (1 in 20 times) level of 
statistical significance. See 'Finkelstein, The Application of 
Statistical Decision Theory to the Jury Discrimination Cases, 80 
Harv. L. Rev. 3 38, 3 59 (1 966) .

38



b. Title VII

Defendants concede that they are liable for violations of 
Title VII occurring on and after a date 300 days before the 
filing of plaintiffs' EEOC charges. City Brief at 50. See 42 
U.S.C. § 2000e-5(e). But defendants variously misstate this date 
as August 8 (City FOF 435), August 22 (City Brief at 51), and 
August 26, 1972 (id.). In fact, the correct date for the begin­
ning of this statutory liability period is June 1, 1972: 300
days before March 28, 1973, when plaintiff Lanier filed his

40/
charge with the EEOC. See Plaintiffs' FOF 55.

Defendants' Castaneda analysis of the data for the Title VII
liability period (City Brief at 51) is also infected with the
fundamental errors in the chart on page 49 of their brief. The
following table contains the corrected version of defendants'

11/analysis as well as an analysis for the city and county 

comparison figures.

40/ One week later, on April 4, 1973, plaintiff Hearn filed a 
separate charge with the EEOC. See Plaintiffs' FOF 57.
41/ Defendants' incorrect figures yielded a difference of 
1.54 standard deviations. City Brief at 51.

39



CASTANEDA ANALYSIS
Louisville Police Selections

June 1972 - March 1974

10% SMSA 
Figure

13.8% County
Population
Figure

23.8% City 
Population 
Figure

42/Total Selections— 168 168 1 68
Anticipated Black 
Selection Ratio 10% 13.8% 23.8%
Number of Anticipated 
Black Selections 16.8 23.2 40.0
Number of Actual 
Black Selections 1 0 1 0 1 0
Number of Standard 
Deviations Between 
Anticipated and 
Actual Black 
Selections 1.75 2.95 5.43

Because both the city and the county comparisons yield 
differences greater than two or three standard deviations, these 
statistical comparisons provide further support for plaintiffs' 
prima facie case. Hazelwood, supra, 433 U.S. at 311 n.17.
Even if defendants' theory of the relevant labor market is used, 
there is a difference of 1.75 standard deviations between the 17 
black officers one would expect to have been hired during this 
period and the 10 black officers who were in fact hired. While 
this statistical disparity, standing alone, would not establish a

42/ Defendants' chart excluded 28 whites and 2 blacks who 
completed recruit school in October 1972. See PX 7. The 
exclusion of this recruit class appears to be based on the 
combined effect of defendants' error in computing the beginning 
of the Title VII liability period (see p. 39, supra) and their 
unsupported assumption as to the length of the recruit school 
in 1972 (see n.34, supra). See City FOF 434-35. The persons in 
this class are included in the table above.

40



prima facie case of intentional discrimination, it "obviously is 
of no aid to [defendant] in meeting its burden of proof."
Hazelwood, supra, 433 U.S. at 314 (Brennan, J., concurring)
(emphasis in original). Indeed, when the more precise statisti­
cal analysis discussed in n.39, supra, is applied to this disparity, 

it yields a probability of only 0.045, or less than 1 in 22 
times, that the disparity would have occurred by chance.

2. When defendants 1 computational errors and 
arbitrary assumptions are corrected, their 
applicant flow analysis provides further 
support for plaintiffs' prima facie case.

43/Reliable applicant flow data showing that the
racial disparities on the Louisville police force are the product
of discrimination before rather than after the start of the
applicable statutory liability periods might also weaken
plaintiffs' prima facie case. Hazelwood, supra, 433 U.S. at
310, 313 n.21; see also _id. at 314 (Brennan, J. , concurring).

44/
Where reliable applicant flow data are available, and

43/ Plaintiffs believe that the data on applicants contained 
in defendants' log books (PX 71) are unreliable, inaccurate, 
and incomplete. See Affidavit of Joshua Tankel dated Sept. 11, 
1978, appended to Plaintiffs' Brief. However, since defendants 
have based certain arguments on these data, plaintiffs have found 
it necessary to use the same data to respond.
44/ There are no data available showing the race of persons 
who applied before July 1973. See PX 71, Books 1-6.

41



where those data are not biased, a comparison of the
racial composition of the persons hired with that of the actual
applicant pool would be relevant.

Defendants contend that a Castaneda analysis of applicant 
flow data from July 1973 to January 1977 shows no significant 
disparity between the proportion of black applicants and the 
proportion of black selections during this period. City Brief 
at 52. Defendants have not explained why in this instance 
they have chosen to include applications and selections made 
until nearly three years after this suit was filed, while their 
labor market comparisons are more properly limited to the period 
before they were sued. Defendants' desire to include the 
post-suit statistics (see City FOF 413-22, 433, 438-40, 447) is 
understandable; they hired more black officers in one year 
following the filing of this lawsuit than they had hired in the 
previous five years taken together. See p. 36, supra. But the 
courts have recognized that "[s]uch actions in the face of

46/
litigation are equivocal in purpose, motive and permanence,"

45/

45/ "The application process itself might not adequately 
reflect the actual potential applicant pool, since otherwise 
qualified people might be discouraged from applying" by the 
defendants' discriminatory practices. Dothard v. Rawlinson,
433 U.S. 321, 330 (1977). See Teamsters, supra, 431 U.S. at 
364-67; Donnell v. General Motors Corp., 576 F.2a 1292, 1298-99 
(8th Cir. 1978). The Louisville Division of Police and the Civil 
Service Board have a longstanding negative reputation in the 
black community which has deterred many blacks from applying 
for jobs as police officers. See Plaintiffs' FOF 20-21.
46/ The record shows that these improvements were only temporary. 
By December 1976, 83% of the whites who had been hired in 
1974 and 1975 (91 of 109) were still on the force, but only 
53% of the blacks hired during this period (17 of 32) were 
still on the force. See Plaintiffs' Brief at 38-39. After 
1975, the defendants' hiring of blacks came virtually to a 
complete halt: out of 65 officers who were selected in 1976 and 
1977, only one was black. See p. 36, supra.

42



400 F .2d 23, 33 (5th Cir. 1963), andJenkins v. United Gas Coro., 

that such dramatic post-filing changes, far from rebutting a 
prima facie case, "tend to show the existence of prior discrimina­
tion and an effort to repair the harm after discovery," Rich v. 

Martin Marietta Corp., 522 F.2d 333, 346 (10th Cir. 1975). See 
Plaintiffs' Brief at 37-38.

Thus, in evaluating defendants' applicant flow statistics,
the appropriate period to consider is from July 1973, when
defendants began to keep records of the race of applicants,
until March 14, 1974, the date this suit was filed. During
this period, approximately 18% of the applicants for the

47/
job of police officer were black. PX 71, Books 6-8.

When the data included by defendants for this period are
adjusted to correct the errors which defendants have carried

over from the chart on page 49 of their brief (see pp. 34-37,
supra), the Castaneda analysis which they attempted to perform

48/
on page 52 of their brief yields the results shown in the 
following table.

47/ Defendants put forth several estimates of the percentages 
of black applicants during various time periods. See City 
FOF 416-20; City Brief at 52. They have not presented an 
estimate for the most relevant period of time —  i.e., July 1973 
to March 14, 1974. Their estimates appear to be based on the 
unreliable, inaccurate, and incomplete data contained in their 
log books (PX 71) and on DX 62, which also is based on PX 71.
The problems with these data are well illustrated by defendants' 
differing estimates of the percentage of black applicants during 
the same time period (compare City 3rief at 52 (18.4%) with City 
FOF 420 (18.7%)) and by defendants' inability to determine the 
race of many of the applicants (see City FOF 425). Despite 
these problems, plaintiffs are compelled to use the same data for 
the relevant time period in order to respond to defendants' 
arguments. See n.43, supra.
48/ Defendants' incorrect figures yielded a difference of 0.22 
of a standard deviation. City Brief at 52.

43



CASTANEDA ANALYSIS
Applicant Flow Data

July 1973 - March 1974

Total Selections —  81
Anticipated Black
Selection Ratio (Percentage of
Black Applicants) 18%
Number of Anticipated
Black Selections 14.6
Number of Actual
Black Selections 8
Number of Standard 
Deviations Between 
Anticipated and 
Actual Black
Select ions 1.91

While this disparity, standing alone, would not be suf­
ficient to prove a prima facie case of intentional discrimina­
tion, it clearly is of no help to defendants in meeting their 
burden of proof. See Hazelwood, supra, 433 U.S. at 314 (Brennan, 
J., concurring). In fact, the more precise statistical analysis 
discussed in n.39, supra, indicates a probability of only
0.033, or less than 1 in 30 times, that this disparity would have 
occurred by chance.

49/ This total includes the following selections: 25 whites and 
2 blacks who were accepted into the recruit class which graduated 
December 21, 1973; 26 whites and 2 blacks who were accepted into 
the recruit class which graduated March 22, 1974; and 22 whites 
and 4 blacks who were accepted into the recruit class which 
graduated May 17, 1974. These are all the recruit classes which 
began between July 1973 and March 14, 1974. PX 7. See nn.35-36, 
supra.

44



3. Defendants have applied an incorrect legal 
standard to plaintiffs1 testimonial evidence 
that black applicants were treated in an 
arbitrary, subjective, and discriminatory manner.

Plaintiffs presented, as part of their prima facie case 
of classwide discrimination, the testimony of a number of black 

persons who had applied or attempted to apply for jobs as 
police officers and who were subjected to unexplained delays or 
were disqualified on the basis of arbitrary, subjective, and 

discriminatory criteria. See Plaintiffs' Brief at 26-30, 41-45. 
Defendants have responded to this proof with the irrelevant 
argument that these witnesses have not each established 
a prima facie case of individualized discrimination which, if 
unrebutted, would entitle them to personal relief. See City 
Brief at 53-70, City FOF 96-260; FOP FOF 3-4, 11-17.

The Supreme Court has squarely held that the initial burden 
on the plaintiffs in a class action such as this is to demon­
strate "the existence of a discriminatory hiring pattern and 
practice," not to prove that identifiable plaintiffs and class 
members are entitled to relief as individuals. Franks v.
Bowman Transportation Co., 424 U.S 747, 772 (1976). As the 

Court stated in Teamsters, supra,
At the initial, "liability " stage of a pattern 

or practice suit the [plaintiff] is not required 
to offer evidence that each person for whom it 
will ultimately seek relief was a victim of the 
employer's discriminatory policy. Its burden is 
to establish a prima facie case that such a 
policy existed. The burden then shifts to the 
employer to defeat the prima facie showing ....
431 U.S. at 360.
If the defendants fail to rebut the plaintiffs' showing, 

the court "may then conclude that a violation has occurred and
45



determine the appropriate remedy." Id_. at 361. Decisions as to 
individual relief are not made at the first stage but rather at 
the second, "remedial" stage of the trial; "the question of 
individual relief does not arise until it has been proved that 
the employer has followed an employment policy of unlawful 

discrimination." Id.
Even when the time comes to resolve the questions of 

individual relief in this case, the plaintiffs and class 
members will not each be required to come forward with prima 
facie proof under the standards of Griggs v. Duke Power Co. 
or McDonnell Douglas Corp. v. Green, supra. Defendants' assertion 
to the contrary (City Brief at 53-54) is clearly in error. As 
the Court stated in McDonnell Douglas and reiterated in Furnco 
Construction Corp. v. Waters, supra, 57 L.Ed. 2d at 966 and n.7, 
the McDonnell Douglas principles apply to "the order and alloca­
tion of proof in a private non-class-action challenging employ­
ment discrimination." 411 U.S. at 800 (emphasis added). See 
also, Senter v. General Motors Corp., 532 F.2d 511, 526 (6th 
Cir.), cert. denied, 429 U.S. 870 (1976). The principles which 
will apply to the claims for individual relief in this class 
action were described in Teamsters: Once it has been proven that
the employer followed a policy of unlawful discrimination, the 
individual plaintiffs and class members who unsuccessfully 
applied for jobs, and those who would have applied but for 
defendants' unlawful practices, will be presumptively entitled to 

relief, and the burden will rest upon defendants to demonstrate

46



that any given individual was denied the job for nondiscrimina- 
tory reasons. See Teamsters, 431 U.S. at 362. Neither at the 
remedial stage nor at the liability stage of the litigation are 
individual plaintiffs or class members required to prove 
independent Griggs or McDonnell Douglas violations.

The testimony of plaintiffs' witnesses in this case shows a 
pattern of discriminatory conduct by defendants. Black appli­
cants were subjected to unexplained delays in the processing of 

their applications. See Plaintiffs' Brief at 27-28 (David 
Lyons); _id. at 28-30, 41-42 (Ronald Jackson, who was "unfor­
tunately ... lost in the shuffle," City Brief at 67). They were 

disqualified on the basis of arbitrary and subjective criteria. 
See Plaintiffs' Brief at 26-27, 42-43 (Norma Boyd, who defendants 

claim was the victim of mere "administrative error," City Brief 
at 58); Plaintiffs' Brief at 26 n. 1 1 (James Brown); _id. at 28-30 
(Ronald Jackson); _id. at 43-44 (Mary Gaines); id. at 44-45 (Ora 
Seay, Sandra Richardson); id. at 30 and Plaintiffs' Supplemental 
Post-Trial Brief (Gary Hearn). They were excluded by the use of 
selection procedures and criteria which had an adverse impact 
on blacks and were not job related. See Plaintiffs' Brief at
23-24 and Boyd, Vol. I, 4/25/77 at 50-51 (Norma Boyd excluded by

50/
Examination No. 0044); id. at 44-45 (Ora Seay, Sandra

50/ Although defendants did not keep adequate data to make a 
precise determination of the adverse impact of this test, the 
available evidence indicates that it had an adverse impact on 
black applicants. See Plaintiffs' Brief at 23-24. Defendants, 
misapplying the "80% rule" of § 4D of the Uniform Guidelines on

47



Richardson excluded by discriminatory height and weight require- 
51/

ments); Thornton, Vol. Ill, 4/27/77 at 372-77, 434-35 (Wesley
52/

Thornton excluded by Test 165.1); see also, Plaintiffs' 
Supplemental Post-Trial Brief. They were disqualified on the basis

50/ cont'd.

Employee Selection Procedures, argue on the basis of their 
inadequate data that the difference between black and white 
passing rates was not large enough to indicate adverse impact.
City POF 48; City Brief at 60, 64. First, defendants fail to 
note that this is a "rule of thumb" which is intended as a guide 
to the federal agencies in the allocation of their enforcement 
resources, and that it is "not intended to be controlling in all 
circumstances." Questions and Answers on the Uniform Guidelines,
1M( 1 9-20, 44 Fed. Reg. 1 1996, 1 1999 (March 2, 1979). Moreover, 
defendants fail to comprehend that the 80% rule applies to 
selection rates, not passing rates, see Uniform Guidelines, § 4D; 
defendants' unjustified use of Examination No. 0044 as a ranking 
device (see Plaintiffs' Brief at 23) made the effective passing 
score considerably higher than the score on which they have 
relied in calculating their passing rates. See Uniform Guidelines,
§ 5H. Finally, defendants ignore the fact that under the very 
section of the Uniform Guidelines on which they rely, the 
federal agencies "may draw an inference of adverse impact of the 
selection process from the failure of the user to maintain such 
data [on adverse impact], if the user has an underutilization of 
a group in the job category, as compared to the group's represen­
tation in the relevant labor market...." Idi. , § 4D.
51/ Defendants argue that the evidence of adverse impact is 
not sufficient because it is based on a nationwide sample.
City Brief at 66. The Supreme Court, in a case holding certain 
height and weight standards for state prison guards unlawful., 
under Title VII, has rejected this argument: "There is no require­
ment ... that a statistical showing of disproportionate impact 
must always be based on analysis of the characteristics of 
actual applicants. ... The application process itself might 
not adequately reflect the actual potential applicant pool, 
since otherwise qualified people might be discouraged from 
applying because of a self-recognized inability to meet the very 
standards challenged as being discriminatory." Dothard v. Rawlinson, 
supra, 433 U.S. at 330.
52/ The issues concerning Test 165.1 are discussed in Plaintiffs' 
Brief at 46-103 and in section IV, infra.

48



of inaccurate information which defendants refused to correct 
unless the applicants demonstrated extraordinary perseverance and 

persistence. See Plaintiffs' Brief at 27-28 (David Lyons); id. 
at 28-30, 41-42 (Ronald Jackson); _id. at 26-27, 42-43 (Norma 
Boyd); id_. at 43-44 (Mary Gaines); id. at 30 and Plaintiffs' 

Supplemental Post-Trial Brief (Gary Hearn).
The record demonstrates that "racial discrimination was the 

[defendants'] standard operating procedure —  the regular rather 
than the unusual practice," Teamsters, supra, 431 U.S. at 336, in 
violation of Title VII, § 1981, and § 1983 and the Fourteenth 
Amendment.

49



IV. DEFENDANTS HAVE NOT CARRIED THEIR BURDEN OF
SHOWING THAT TEST 165.1 IS MANIFESTLY RELATED 
TO PERFORMANCE OF THE JOB OF A LOUISVILLE 
POLICE OFFICER.

A. Federal Guidelines On Employee Selection 
Procedures Are Entitled To Great Deference 
and Should Be Followed in this Case.

Plaintiffs proved at trial that Test 165.1, as used by
the defendants in 1977, had an overwhelming adverse impact on

53/
black applicants. Plaintiffs' Brief at 50-52. Defen­
dants concede for the purpose of this argument that, under 
Title VII, a showing of adverse impact shifts to them the burden 
of demonstrating that the test has a manifest relationship to the 
job. City Brief at 72. But defendants argue that they have met 
this burden, and that their failure to comply with elementary
requirements for test validation —  recognized not only by the

54/ 55/
psychological profession but also by the federal courts,
the Equal Employment Opportunity Commission, the Office of
Personnel Management (formerly the Civil Service Commission), and

53/ Defendants, while refusing to concede this point, have 
Failed to present any evidence or argument to the contrary.
See City Brief at 71.

54/ American Psychological Association, "Standards for Educa­
tional and Psychological Tests" (1974) (PX 98) (hereinafter 
"APA Standards"); APA Division of Industrial-Organizational 
Psychology, "Principles for the Validation and Use of Personnel 
Selection Procedures" (1975) (PX 101) (hereinafter "Division 
14 Principles").
55/ Griggs v. Duke Power Co., supra, 401 U.S. at 433-34; 
Albemarle Paper Co. v. Moody, supra, 422 U.S. at 430-31.

50



the Departments of Justice, Labor, and the Treasury — is a 
mere technicality which this Court should overlook. Id_. at 71, 
73-78. Defendants are wrong.

The Supreme Court has held that the guidelines promul­
gated by the EEOC on employee selection procedures and test 
validation "constitute ' [t]he administrative interpretation 
of the Act by the enforcing agency,' and consequently they 
are 'entitled to great deference. '" Albemarle Paper Co. v.
Moody, supra, 422 U.S. at 430-31; Griggs v. Duke Power Co.,

57/
supra, 401 U.S. at 433-34. In an effort to undercut these 
decisions, the defendants misread a number of cases which, 
in fact, also indicate that the enforcing agency's interpretation 
is entitled to great deference.

56/ The Uniform Guidelines on Employee Selection Procedures 
(1978), 43 Fed. Reg. 38290, 40223 (hereinafter "Uniform Guide­
lines"), were adopted on August 25, 1978, by the EEOC (29 C.F.R. 
Part 1607), the Civil Service Commission (5 C.F.R. § 300.03(c)), 
the Department of Justice (28 C.F.R. § 50.14), and the Department 
of Labor (41 C.F.R. Part 60-3), and on September 11, 1978, by the 
Department of the Treasury (31 C.F.R. § 51.53(b). The Uniform 
Guidelines are based upon and supersede the EEOC Guidelines on 
Employee Selection Procedures, 29 C.F.R. Part 1607 (D. Greenberg 
Affidavit, 4/20/77, Ex. L) (hereinafter "EEOC Guidelines"), and 
the Federal Executive Agency Guidelines, 41 Fed. Reg. 51734 
(1976) (D. Greenberg Affidavit, 4/20/77, Ex. M) (hereinafter "FEA 
Guidelines"), which were in effect at the time of the trial of 
this action. Defendants have not identified any differences 
between the EEOC and the FEA Guidelines, or between these and the 
Uniform Guidelines, which are material to any of the issues in 
this case.
57/ One court recently found that the Uniform Guidelines 
may have "additional clout" because four federal agencies 
(now five) "adopted this successor to the E.E.O.C. Guidelines 
after both an exhaustive study and input from numerous profes­
sional organizations as well as interested parties." Allen v. 
City of Mobile, 18 FEP Cases 217, 222 (S.D. Ala. 1978).

51



For instance, defendants cite Washington v. Davis,
supra, as a case in which compliance with EEOC guidelines 

was not required. City Brief at 73-74. This is true but 
irrelevant; the Court had no occasion to apply Title VII test 

validation guidelines because there the defendants' testing 
practices were not challenged under Title VII. As the Court 
noted,

Under Title VII, [unlike the Constitution,]
Congress provided that when hiring and promotion 
practices disqualifying substantially dispropor­
tionate numbers of blacks are challenged, dis­
criminatory purpose need not be proved, and that 
it is an insufficient response to demonstrate 
some rational basis for the challenged practices.
It is necessary, in addition, that they be "validated" 
in terms of job performance in any one of several 
ways .... 426 U.S. at 246-47.

The Court then specifically cited the APA Standards and 
the EEOC Guidelines as appropriate sources for test valida­
tion principles in Title VII cases. Id_. at 247 n.13.

Defendants also cite United States v. South Carolina, 445 F. 
Supp. 1 094 (D.S.C. 1 977), affd mem, sub nom National Education 

Association v. South Carolina, 434 U.S. 1026 (1978). City Brief 
at 74. However, the court there said nothing to indicate that it 
was disinclined to follow the appropriate legal and professional 
guidelines. While stating that, if the EEOC Guidelines conflicted 
with well-grounded expert opinion and accepted professional stan­
dards they would not be controlling, 445 F. Supp. at 1113 n.20, the 

court found no conflict whatever with respect to the issues in that 
case. Indeed, the court found that the three experts called by the

52



defendants, one of whom was the principal author of the APA
Standards, testified "in an unqualified fashion" that the
validity study design in that case met all the requirements of
the APA Standards, the Division 14 Principles, and the EEOC
Guidelines. _Id. at 1113. In contrast, none of the experts
called by the defendants in this case was willing to give such

unqualified testimony; on the contrary, they testified that
many of the requirements of the applicable guidelines and

58/
standards had not been satisfied here.

Finally, defendants cite United States v. Georgia Power 
Co., 474 F.2d 906, 915 (5th Cir. 1973), as stating that the 
EEOC Guidelines "must not be interpreted or applied so rigidly 

as to cease functioning as a guide and become an absolute 
mandate or proscription. " However, defendants fail to quote 
the court's full statement of its holding on this issue:

We do not read Griggs as requiring com­
pliance by every employer with each technical 
form of validation procedure set out in 29
C.F.R., Part 1607. Nevertheless, these 
guidelines undeniably provide a valid frame­
work for determining whether a validation study 
manifests that a particular test predicts rea­
sonable job suitability. Their guidance value 
is such that we hold they should be followed 
absent a showing that some cogent reason exists 
for noncompliance. 474 F .2d at 913.

Finding no justification for noncompliance, the court in Georgia
Power proceeded to apply the EEOC Guidelines and determined that

58/ See Plaintiffs' Brief at 59-61 (Drs. Rosenfeld and Crosby); 
id. at 63, 67 (Dr. Helms); _id. at 70-73 (Drs. Rosenfeld, Crosby, 
and Helms and Mr. Talbert); id_. at 80 (Dr. Tyler); _id. at 84,
86 (Dr. Rosenfeld); _id. at 91 (Drs. Tyler and Rosenfeld); id. 
at 93 (Mr. Talbert); _id. at 93 (Dr. Rosenfeld); _id. at 
96-97 (Drs. Helms and Rosenfeld); id_. at 98 (Drs. Crosby and 
Tyler).

53



the employer had not proDerly validated its tests in a number of
59/

respects. Id. at 913-17. See also, United States v. City
■ of Chicago, 573 F.2d 416, 427 (7th Cir. 1 978).

Defendants in the instant case have not offered any cogent
reason for noncompliance with the applicable guidelines. They
rely on the fact that, prior to the adoption of the Uniform
Guidelines in 1978, the EEOC had one set of guidelines and the
Departments of Justice and Labor had another. See City Brief at 60/
75-78. But they have not demonstrated substantial compliance 
with either the EEOC Guidelines or the FEA Guidelines, nor have 

they even identified any differences between the EEOC and the FEA 
Guidelines, or between these and the Uniform Guidelines, which 
have any bearing on this case. See City FOF 652-53. Plaintiffs, 
on the other hand, have shown that defendants' evidence is not 
sufficient to demonstrate compliance with basic requirements for 
test validation which have been recognized by all the federal 
agencies, the psychological profession, and the federal courts. 
See Plaintiffs' Brief at 53-100.

Defendants also rely on Justice Blackmun's concurring 
opinion in Albemarle Paper Co. v. Moody, supra, which criticized

59/ Defendants also rely on Guardians Association v. Civil 
Service Commission, 490 F.2d 400 (2d Cir. 1973), which 
quotes and follows the decision in United States v. Georqia 
Power Co.

60/ Defendants take an inconsistent position in their proposed 
findings, arguing that Test 165.1 has been shown to be valid under 
the EEOC Guidelines (City FOF 654) and the FEA Guidelines (id. 
655), that it meets "all the other guidelines" (id. 656), and that 
its developers followed the APA Standards (id. 594, 657). These 
proposed findings are not supported by the record. See Plain­
tiffs' Brief at 53-100.

54



"the Court's apparent view that absolute compliance with the EEOC 
Guidelines is a sine qua non of pre-employment test validation." 
422 U.S. at 449. His criticism was based on two grounds: that 
"the guidelines in question have never been subjected to the test 
of adversary comment"; and that "the theories on which the 
guidelines are based [are not] beyond dispute." Id.

However, in adopting the Uniform Guidelines in 1978 and

eliminating whatever discrepancies had existed between the
EEOC and the FEA Guidelines, the agencies removed the bases

for Justice Blackmun's criticism. The Uniform Guidelines
are based upon and supersede previously 
issued guidelines on employee selection 
procedures. These guidelines have been 
built upon court decisions, the previously 
issued guidelines of the agencies, and the 
practical experience of the agencies, as 
well as the standards of the psychological 
profession. These guidelines are intended 
to be consistent with existing law.
Uniform Guidelines, § 1C.

The purpose of the Uniform Guidelines is "to assist 
employers [and] labor organizations ... to comply with require­
ments of Federal law ...," and "to provide a framework for 

determining the proper use of tests and other selection proce­
dures." Id_., § 1B . These guidelines are the result of years 
of effort by the agencies and extensive consultation with 

employers, unions, state and local governments, psychologists, 
and other interested groups and individuals. See "An Overview 

of the 1978 Unform Guidelines on Employee Selection Procedures," 
43 Fed. Reg. 38290, 38292-93 (Aug. 25, 1978). Preliminary drafts 
were circulated and published in the Federal Register; more 
than 200 organizations and individuals submitted written

55



comments? a public hearing was held; the agencies considered 
the comments and testimony and modified the guidelines 
accordingly. Id_. at 38292-95. These guidelines were adopted 
"after both an exhaustive study and input from numerous pro­
fessional organizations as well as interested parties."
Allen v. City of Mobile, supra, 18 FEP Cases at 222. The 
procedures that were followed in adopting the Uniform Guide­
lines, including extensive opportunities for and consideration 
of adversary comment, ended any dispute among the enforcement 
agencies about the validation requirements of federal law. Thus 

the Uniform Guidelines may even have "additional clout" over 
the great deference accorded the prior EEOC Guidelines. Allen v 
City of Mobile, supra at 222.

B. Defendants Have Not Demonstrated that Test 165.1 
Is Valid for Use in Selecting Louisville Police 
Officers.

In our principal brief, we showed that defendants' claims 

of content and criterion-related validity are materially 
defective in several specific respects. See Plaintiffs' Brief 
at 53-103. Defendants and intervening defendants have attempted 

to refute only a select few of these specifically identified 
deficiencies, leaving the following defects undisputed:

(1) Test 165.1 is not a sample or approximation 
of observable work behaviors but merely a verbal representation 
of some parts of a highly physical and interpersonal job. 
Therefore, the test cannot be justified by content validity. 

Plaintiffs' Brief at 62-66.
56



(2) Since Test 165.1 represents neither a critical 

work behavior nor work behaviors which constitute most of the 
important parts of the job, it cannot be supported on the basis 
of content validity. Plaintiffs' Brief at 69-74.

(3) Because the sample subjects in the ETS criterion- 
related validity study were not reasonably representative of 
actual applicants for the job, this study does not establish the 
validity of the test. Plaintiffs' Brief at 79-82.

(4) The criterion measures against which test scores 
were alleged to be validated (supervisory ratings of job per­

formance) were affected by racial and ethnic bias at three of 
the four ETS study sites, thus calling into serious question 
whether these measures reflected any real differences in job 

performance. Plaintiffs' Brief at 83-84.
(5) Despite the failure of the Educational Testing 

61/
Service (ETS) to conduct an adequate investigation of test 
fairness, there are substantial indications of differential 
validity which suggest that differences in the scores of blacks 
and whites on Test 165.1 do not fairly measure differences in 
their performance as police officers. Plaintiffs' Brief at 
85-88.

(6) The ETS criterion-related validity study produced 

an odd patchwork of results which did not demonstrate that Test
165.1 is valid for use in selecting police officers in every 
city. Plaintiffs' Brief at 88-91.

61/ The reputation of ETS and of other organizations and indi­
viduals involved in developing and publishing Test 165.1 (see 
City FOF 464-78) is not an acceptable substitute for a proper 
validation study. Uniform Guidelines, § 9A. See Plaintiffs' 
Brief at 54-55.

57



(7) The accepted standards for supporting the use 

of Test 165.1 in Louisville on the basis of a validity study 
conducted elsewhere have not been satisfied; there has been no 
showing that the characteristics of the applicant population in 
Louisville are similar to the characteristics of the applicant 
population in any of the ETS study sites, and there has 
been no adequate investigation of test fairness. Plaintiffs' 
Brief at 91-95.

These undisputed deficiencies are fatal to defendants' 
claim of validity. Cf. Albemarle Paper Co. v. Moody, supra,
422 U.S. at 430-35. The relatively limited issues disputed 
by the defendants are discussed below.

1. Construct Validity

Defendants have demonstrated continuing confusion as to

whether or not they are claiming that Test 165.1 is supported
62/

by construct validity. In supplemental answers to inter­
rogatories which they filed during the trial, defendants said 
that Dr. Wayne Helms, one of their experts, would testify 
"that in his opinion a construct validation study was carried 
out." Defendants' supplemental answers to interrogatories, 
6/15/77 at 3. But at the trial, counsel for defendants proposed 
to prove only that content and concurrent criterion-related

62/ Construct validation requires "data showing that the 
Tselection] procedure measures the degree to which candidates 
have identifiable characteristics which have been determined 
to be important in successful performance in the job for 
which the candidates are to be evaluated." Uniform Guidelines, 
§ 5B.

58



validation studies had been conducted. Statement of counsel, Vol. 
IV, 6/23/77 at 528. And Dr. Helms testified as follows:

I have never read, and I have never 
known of anyone going to the defense of 
a selection procedure based on a con­
struct validity study. It does not answer 
the question of, is the test job related, and 
it also does not necessarily address, does the 
test predict job performance. Helms, Vol.
IV, 7/14/77 at 609-610.
In their post-trial findings of fact, defendants have 

confirmed the statements of trial counsel and Dr. Helms by 
including a section entitled, "Construct Validity Not Present." 
City FOF at 153. But in their post-trial brief defendants have 

asserted that, "The Evidence Establishes That The MPOE Has 
Been Both Content Validated And Construct Validated," City Brief 
at 78, and they have argued that in the context of this case 

construct and content validation techniques are essentially 
the same, id_. at 80 n. 44, 82.

If defendants are making a claim of construct validity, 
their claim is utterly unsupported. Plaintiffs have estab­
lished that the "intellectual abilities" which Test 165.1 
purports to measure —  paired associate memory, semantic ordering, 
induction, problem sensitivity, etc. —  are in fact "constructs," 
i.e., ideas "developed or 'constructed' as a work of informed, 
scientific imagination," APA Standards at 29. See Plaintiffs' 
Brief at 59-62. Construct validity might be an appropriate 

strategy for such a test, whereas content validity would not.
See pp. 62-70, infra. But contrary to defendants' new argument, 
construct validation does not involve simply a showing of content 

validity plus a psychologist's guess that the traits or constructs
59



which the test purports to measure underlie certain opera­
tionally defined abilities. See City Brief at 82. Rather,

Construct validity is a more complex 
strategy than either criterion-related or 
content validity. Construct validation is 
a relatively new and developing procedure 
in the employment field, and there is at 
present a lack of substantial literature 
extending the concept to employment prac­
tices.... [T]he effort to obtain sufficient 
empirical support for construct validity is 
both an extensive and arduous effort involving 
a series of research studies, which include 
criterion related validity studies and which 
may include content validity studies.
Uniform Guidelines, § 14D (1 ) .

*  *  *

The user should show by empirical 
evidence that the selection procedure is 
validly related to the construct and that 
the construct is validly related to the 
performance of critical or important work 
behavior(s). The relationship between the 
construct as measured by the selection pro­
cedure and the related work behavior(s) 
should be supported by empirical evidence 
from one or more criterion-related studies 
involving the job or jobs in question which 
satisfy the provisions of section 14B above.
Id. , § 1 4D(3 ) . 63/
The cases cited by defendants contain nothing which contra­

dicts the guidelines on construct validity. Defendants correctly 
cite Douglas v. Hampton, 512 F.2d 976 (D.C. Cir. 1975), as 
stating that

construct validity does not conclusively 
establish that test results are directly 
related to job performance. It merely 
means that the test accurately measures 
certain constructs; in determining whether 
a showing of construct validity satisfies 
Griggs, the court must also determine whether 
the constructs are themselves related to jOD 
performance. Id_. at 986.

63/ See also, FEA Guidelines, § 12d; Division 14 Principles 
at 9.

60



Similarly, the Second Circuit in Vulcan Society v. Civil Service
Commission, 490 F.2d 387 (2d Cir. 1973), stated as follows:

"[C]onstruct validity" ... is plainly 
distinguishable from "content validity." ...
[The former] requires identification of general 
mental and psychological traits believed nec­
essary to successful performance of the job 
in question. The qualifying examination must 
then be fashioned to test for the presence of 
these general traits. To design a "construct 
valid" test for typists, the examiners would 
first determine that a typist's job requires, 
for instance, the ability to concentrate, 
perseverance, and attention to detail. 64/
Assuming that the identification of necessary 
traits was accurate, an examination that 
properly tested for those traits would have 
construct validity. Id_. at 395 
(footnote added).
Both courts recognize that a showing of construct validity 

requires proof both that the test accurately measures the 

constructs and that the constructs are demonstrably related 
to job performance. As the Uniform Guidelines, the FEA Guide­
lines, and the Division 14 Principles all plainly indicate, 
both of these relationships must be demonstrated by proper 
empirical evidence, not by the unsupported speculation of 
psychologists, however well trained and competent they might 

be. Constructs are by definition merely theoretical explanations 
for observable behaviors; whether they are in fact related to 
those behaviors is a question to be answered by empirical evidence. 
Helms, Vol. IV, 7/14/77 at 609-610; Barrett, Vol. Ill, 7/13/77 at

64/ Defendants omitted this sentence from their quotation of 
the Vulcan Society opinion (City Brief at 81). Plain­
tiffs suggest that this omission may be attributable to the 
similarity between the constructs cited as examples by the 
court and the constructs which Test 165.1 purports to measure.

61



394-98. Defendants have not offered such evidence here, and 
any claim on their part of construct validity must therefore be 
rejected.

2. Content Validity

a. Elements of Content Validity. Defendants have seriously 
mischaracterized plaintiffs' position with respect to the nec­
essary elements for a showing of content validity. We have never 

claimed that the content of a test "must precisely replicate job 
content in order to be amenable to a content validation strategy." 
City Brief at 82. On the contrary, we expressly noted in 
our principal brief that content validity requires a showing 
either "that the behavior(s) demonstrated in the selection 
procedure are a representative sample of the behavior(s) of the 
job in question ...," or that the selection procedure measures 
and is a representative sample of knowledges, skills, or abilities 
which are "operationally defined in terms of observable aspects 
of work behavior" and which are "used in and ... [are] necessary 
prerequisite[s] to performance of critical or important work 
behavior(s)." Uniform Guidelines, § 14C(4). See Plaintiffs'
Brief at 62, 58. Nor have we ever claimed that "each selection 

hurdle [must] test for 100% of the job," City Brief at 86;

65/

65/ Defendants state at one point that the "abilities identified 
by ETS as underlying the job tasks ... were not, in fact, abilities 
necessary to learn and perform the job of police officer" (City 
FOF 590), but elsewhere they claim there was "empirical evidence 
which demonstrated that the abilities measured by the test 
related to actual job performance of police officers" (id_. 602).
In fact, the record contains no empirical evidence whatsoever 
either that the test measures the ETS "intellectual abilities" or 
that these "abilities" are related to job performance.

62



instead we specifically stated that a test which is supported on

the basis of content validity "may be used for a job if it
represents a critical work behavior ... or work behaviors which
constitute most of the important parts of the job," Uniform
Guidelines, § 14C(8). See Plaintiffs' Brief at 69-70.

Defendants, citing no authority whatsoever, claim that the
"more important" elements of a content validity study are a job
analysis, an identification of the abilities underlying job tasks,
and verification that test items fairly measure those abilities.

66/
City Brief at 83. Defendants are correct with respect to the

67/
importance of an adequate job analysis; but the content of Test

66/ Defendants make three additional attempts at defining 
content validity in their proposed findings, and they define it a 
different way each time. (1) They define it as a strategy "which 
involves looking at the test to see if it is related to the job" 
(City FOF 492); but such "face validity" is not an acceptable 
substitute for a proper validation study. See Plaintiffs' Brief 
at 53-54. (2) They state that content validity is "based on the
extent to which the test material measures abilities which are 
judged to be necessary for success in the job" (City FOF 
494); but a content strategy is appropriate for abilities which 
are operationally defined in terms of observable work behaviors, 
not for the psychological constructs which Test 165.1 purports to 
measure. See Plaintiffs' Brief at 56-62. (3) Finally, referring
to the APA Standards, defendants correctly define content validity 
as requiring "a demonstration that the behaviors shown in testing 
constitute a representative sample of behaviors to be exhibited 
in a desired performance domain" (City FOF 493); but defendants 
have not made this demonstration. See Plaintiffs' Brief at 
55-74.
67/ Dr. Richard Barrett, who testified as an expert for plain­
tiffs, agreed that the job analysis here was adequate. See 
Barrett, Vol. Ill, 7/13/77 at 522-23. Apparently recognizing^ 
the weakness of their legal arguments, both the defendants and 
the intervening defendants have repeatedly misrepresented the 
facts by stating that Dr. Barrett had never examined a job 
description for the Louisville police officer job. See City FOF 
522, 573, 587, 588; City Brief at 84; FOP Brief at 57. In fact, 
the record shows that Dr. Barrett, when called by defendants as a 
surprise adverse witness, had not examined any materials relating 
to this case for approximately two weeks and had simply forgotten 
that he had previously reviewed the job description; he made this 
clear in subsequent testimony. Barrett, Vol. Ill, 7/13/77 at 
379-80.

63



165.1 is not "representative of important aspects of performance 
on the job" as described by defendants' job analysis. Uniform 
Guidelines, § 5B. See Plaintiffs' Brief at 62-66, 69-74.
The remainder of defendants' description of content validity 
is completely wrong; identification of "underlying abilities" 

and speculation as to whether test items measure those "abilities" 
are not components of a professionally and legally acceptable
content validity study and in any event have not been demonstrated

68/
here. Defendants have not satisfied the actual requirements 
for content validity. See Plaintiffs' Brief at 55-74. Their 
attempt to lead the Court away from the real issues neither 
justifies nor excuses their failure to satisfy these require­
ments.

b. Psychological Constructs. A basic misconception 
underlying defendants' argument is their assumption that content 
validity is an appropriate strategy for a test purporting to 
measure "intellectual abilities" such as serial recall, paired 

associate memory, semantic ordering, induction, and the like.

68/ Defendants have misstated our position by asserting that 
plaintiffs "do not contest that the third element of this verifica­
tion study was adequately performed." City Brief at 83. As we 
indicated in our principal brief (at 55 n.28, 56-62), and 
as we have reiterated here, the only acceptable proof of the 
necessary correlation between this kind of test and the "intel­
lectual abilities" which it purports to measure, as well as the 
necessary correlation between these "abilities" and actual job 
performance, is empirical proof. See pp. 59-61, supra. Since 
defendants have presented no such proof but have relied instead 
on speculation, we strongly contest both their claim that Test
165.1 has been shown to measure "intellectual abilities" and 
their claim that these "intellectual abilities" have been shown 
to be related to job performance. Their proposed findings 
reflecting these claims (City FOF 523-46) are not supported by 
any empirical evidence and therefore should be rejected.

64



See Defendants' Brief at 84-86. Plaintiffs recognize that
certain kinds of "ability" tests may be justified by content
validity. See Plaintiffs' Brief at 58. But, as required by
the Uniform Guidelines on which defendants themselves rely
(City Brief at 84-85), the abilities being measured must
be "operationally defined in terms of observable aspects of work

behavior of the job." Uniform Guidelines, § 14C(4). The
generalized "intellectual abilities" purportedly measured by
Test 165.1 do not fall within this definition; rather, they
are psychological constructs. See Plaintiffs' Brief at 56-62.
The test is "based upon inferences about mental processes [and
therefore] cannot be supported solely or primarily on the basis

69/
of content validity." Uniform Guidelines, § 14C(1). Defendants' 
unproven assumptions that the test is related to the constructs, 
and that the constructs are related to job performance, have

69/ Defendants, seizing upon an obvious mistake in punctuation 
in the transcript (Vol. I, 7/11/77 at 79, line 3), imply that Dr. 
Barrett supported the use of content validity for tests purporting 
to measure "intellectual abilities." See City FOF 531, 619. The 
record shows that he did not. The relevant question and answer, 
with the correction indicated, are as follows:

"Q [Mr. Cox] You can't quarrel with the fact 
that we can content validate these intellectual 
abilities as to some police officer's job?

"A [Dr. Barrett] It might be possible[, a]s 
I said, to show some correspondence between the items 
and the behavior required by the ... job performance.
When you talk about abilities in the sense that it's 
generally used, abilities are not subject to content 
validation because they are defined as not being 
specific behavior but as a characteristic of a person 
that underlies],] presumably],] behavior." Barrett,
Vol. I, 7/11/77 at 78-79.

65



nothing to do with establishing content validity.
c. Reliance on External Validity Studies. Defendants admit

that their reliance on the ETS validity study is not supported
11/by the guidelines. City Brief at 87 n.47. Even assuming 

that the work behaviors of a Louisville police officer had been 
shown to be the same as the work behaviors identified in the 
ETS study, and that the ETS study had shown Test 165.1 to beIn­valid, defendants did not establish that the characteristics

of Louisville applicants were substantially the same as those
of the applicant populations in the study sites, and the question

of test fairness was not adequately investigated either by ETS
or by the defendants. Uniform Guidelines, §§ 7B, 7D. Thus,
defendants have not demonstrated that Test 165.1 is valid for use 

73/
in Louisville. See Plaintiffs' Brief at 91-93.

70/

70/ Since defendants have not offered the empirical evidence 
which would be necessary to prove their assumptions to be true, 
they also have failed to establish construct validity. See 
pp. 58-62, supra.
71/ Defendants' conflicting contention that they followed "appro 
priate procedures to establish transferability" (City FOF 559) is 
not supported by the record.
72/ Plaintiffs contest both assumptions. See Plaintiffs'
Brief at 92-93.
73/ Defendants claim that they conducted a "local content valida 
tion study" of Test 165.1 in Louisville (City FOF 556, 561-62). 
But their own expert, Dr. Thomas Tyler, testified that the 
document to which they refer (DX 34 and 51) did not even call for 
a job analysis, much less a complete content validity study; he 
was the author of the document, and he identified it only as a 
"job content, to test matching things." Tyler, Vol. IV, 6/23/77 
at 615.

66



d. United States v. South Carolina. Defendants rely

heavily on the decision in United States v. South Carolina, 
supra, to support their claim of content validity. For 
the following reasons, their reliance is misplaced.

(1) Unlike Test 165.1, the National Teacher Examina­
tions ("NTE") at issue in the South Carolina case were designed 
"to disclose the minimum amount of knowledge necessary to effec­
tive teaching" by measuring "the extent to which prospective 
teachers have mastered the content of their teacher training 

programs." 445 F. Supp. at 1107-1108. As defendants acknowledge 
(City Brief at 88), the South Carolina validity study accordingly 
was not designed to demonstrate that the NTE measured intellectual 

abilities which in turn were alleged to be related to job 
performance, but rather was intended to determine "the degree to 
which the content of the tests matches the content of the teacher 
training programs in South Carolina." 445 F. Supp. at 1112.

Content validity was appropriately used in the South 
Carolina case to determine whether the tests measured the 
"body of learned information which is used in and is a necessary 
prerequisite for observable aspects of work behavior of the job" 
of a teacher. Uniform Guidelines, § 14C(4). Test 165.1, on the 
other hand, is not designed to assess the candidates' mastery of 

specific prerequisite job knowledge which was learned in a prior 
training program; on the contrary, the defendants here assert 

that "specific knowledge of police procedures is not necessary 
for successful test performance." City Brief at 86. Test
165.1 instead purports to measure generalized "intellectual

67



abilities" which are said to be related to job performance; 
it is "based upon inferences about mental processes [and there­
fore] cannot be supported solely or primarily on the basis of 
content validity." Uniform Guidelines, § 14C(1). See Plaintiffs' 
Brief at 56-62.

(2) In the South Carolina case, there was an effort 
to set the minimum score requirements for the NTE "so as to be 
reasonable and consistent with normal expectations of acceptable 
proficiency within the work force." Uniform Guidelines, § 5H. 
Panelists consisting of experienced faculty members from teacher 
training institutions reviewed each test item and estimated the 
percentage of minimally qualified students in South Carolina 
teacher education programs who would know the correct answer. 
These estimates were statistically combined and analyzed "to 
generate scaled scores that reflected, for each test, the 
level that would be achieved by the minimally knowledgeable 
candidate." 445 F. Supp. at 1112. The State Board of Education 

then considered "a variety of statistical and human factors" and 
decided to use lower minimum scores than those recommended as a 

result of the study. Id. at 1113.
Here, by contrast, the ETS study did not include any 

specific inquiry or finding as to an appropriate cut-off score 
for Test 165.1. The developers of the test stated, however, that 
a score of 139 correct answers (or 77.2%) on the 180-item test 
which was the subject of their study "might represent a cutting 
score somewhat higher than would be used in an actual selection 
context." DX 31 at 48. See Rosenfeld Dep., 5/26/77 at 155-59. 
The independent University of Delaware study of the 150-item test

68



which was used in Louisville concluded that a score of 120
correct answers (or 80%) was "a technically justifiable cut-off 
score" because this "appeared to be the point at which a notice­
able demarcation occurred with respect to officer performance on 

the job." DX 32 at 35. The defendants, however, decided to 
set the cut-off score for use in Louisville at 128 of the 
150 items on the test, or 85.3%, which was substantially higher 
than any passing point suggested in either of the validity 
studies. See Gavin-Wagner, Vol. II, 7/12/77 at 349; Vol. Ill, 
7/13/77 at 361. Even defendants' experts conceded that there was 
no basis for believing that applicants who scored below 128 on 
the test were not qualified to be Louisville police officers. 
Helms, Vol. IV, 7/14/77 at 624; Rosenfeld Dep., 5/26/77 at 
160-65.

Thus, unlike the defendants in the South Carolina case, the 
defendants here have made no showing whatsoever that their use of 
Test 165.1 eliminates applicants who do not meet "certain minimum 
standards which are demonstrably related to job performance."
City Brief at 90. On the contrary, the record shows that defen­
dants have substantially increased the adverse racial impact of 
Test 165.1 by setting an arbitrarily high passing point, by 
using the test as a ranking device without adequate justifica­
tion, and by improperly using the test at an early stage of 
the selection process. See Plaintiffs' Brief at 95-100, and pp. 
77-80, infra.

(3) In the South Carolina case, Dr. Robert M. Guion, 
the principal author of the APA Standards and "a nationally

69



recognized authority in the field of testing and measurement 
[/] ... testified in an unqualified fashion that in his 
expert opinion the ETS study design [in that case] met all 
of the requirements of the APA standards, the Division 14 
Principles, and the EEOC Guidelines." 445 F. Supp at 1113 
(footnotes omitted). Two other experts testified similarly.
Id.

Of all the experts who testified in the case at bar, 
only Dr. Barrett is recognized as "a nationally known 

industrial psychologist with special expertise in testing." 
Bridgeport Guardians, Inc, v. Bridgeport Civil Service 
Commission, 354 F.Supp. 778, 790 (D. Conn.), aff'd in 

pertinent part, 482 F.2d 1 333 (2d Cir. 1 973), cert. denied,
421 U.S. 991 (1975). He testified that the defendants' 
evidence of validity did not meet the requirements of the 
applicable legal guidelines and professional standards.
None of the defendants' experts was willing to state in an 
unqualified fashion that these requirements were satisfied, 
and in fact they acknowledged that many specific requirements 
had not been fulfilled. See pp. 52-53 and n.58, supra.
Thus the record here, unlike the record in the South Carolina 
case, would not support a finding of content validity.

3. Concurrent Validity

a. ETS Study. Defendants contend that the ETS 
concurrent validity study "found test performance to be posi­
tively correlated to a statistically significant degree" in two 
of the four sites studied. City Brief at 91; see City FOF 610.

70



But plaintiffs have shown, and defendants have not disputed, that
the 180-item test which was the subject of this study was not the
same as the T50-item test used in Louisville; that the reported
correlation coefficients were not recomputed on the basis of the
test which was used in Louisville; that the supervisory ratings
with which test scores were correlated were affected by racial

74/
and ethnic bias at three of the four study sites; and that
the total test score had significant positive correlations
with only 13 out of 60 rating dimensions across all four ETS

21/sites as a whole. Plaintiffs' Brief at 84, 88-91. This 

"odd patchwork of results" does not demonstrate that Test 165.1 
is valid; rather, it "appear[s] to compel the opposite conclu­

sion." Albemarle Paper Co. v. Moody, supra, 422 U.S. at 432.

21/ Dr* Rosenfeld, who conducted the study, testified that there 
were "extreme criterion problems in several of the sites."
Rosenfeld Dep. , 5/26/77 at 133—34. The only site where super­
visory ratings were not found to be affected by rater bias 
was the site with the smallest number and proportion of minority 
officers. Id_. at 137-38; DX 31 at 31, 41. Defendants claim in 
their brief that some unspecified statistical correction for this 
bias was made at two of the sites. City Brief at 92. However,
Dr. Rosenfeld testified that he was unable to correct for the 
bias in two of the three sites where it occurred, Rosenfeld 
Dep., 5/26/77 at 49, thus indicating that a correction was made 
in only one site. Cf. City FOF 612. Under these circumstances, 
there is "simply no way to determine whether the criteria actually 
considered were sufficiently related to the [defendants'] 
legitimate interest in job-specific ability to justify a testing 
system with a racially discriminatory impact." Albemarle Paper 
Co. v. Moody, supra, 422 U.S. at 433 (emphasis in original).
7_5/ Defendants claim in their proposed findings that there was 
a significant relationship between test scores and performance 
ratings on 25 of the 60 rating dimensions. City FOF 612. This 
conclusion is based on improper tests of statistical signficance 
on correlation coefficients which had been corrected for restric­
tion in range. APA Standards, K E8.2.1, at 41. See Plaintiffs' 
Brief at 89 n.56.

71



b. Delaware Study. Defendants also rely on an 
independent University of Delaware concurrent validity study, DX 

32, as evidence that Test 165.1 is valid. City Brief at 92;
City FOF 613. Defendants correctly state that this study, unlike 
the ETS study, was based on Test 165.1 and that it found signifi­

cant positive correlations between total test score and nine 
performance rating dimensions. DX 32 at 23. But defendants fail 
to mention this study's conclusion that a score of 120 correct 
answers was an appropriate cut-off score and that there was no 
adequate justification for using the test as a ranking device.
DX 32 at 35-36. Contrary to these findings, defendants arbitrarily 
set the passing point at 128 and they improperly ranked candidates 
on the basis of their test scores. See Plaintiffs' Brief at 
95-99. Defendants are not free to rely on some parts of the 
Delaware study as evidence that the test is valid while disregard­

ing other parts of the study which show that they substantially 
increased the test's adverse impact by using it in an improper 
manner.

c. Reliance on External Validity Studies. Defendants 
concede that they have not satisfied the requirements for reliance 
on external validity studies, City Brief at 87 n.47, but they 
nevertheless contend that they should be permitted to do so 
because these studies "pertain to a job having substantially
the same job duties as the job in question," id. at 92. See 
also, City FOF 568-70. As indicated by the guidelines which 
defendants cite to support this proposition, far more is required: 

the evidence must clearly demonstrate that the test is valid

72



(Uniform Guidelines, § 7B(1); FEA Guidelines, § 6b(1)); the
studies must include a study of test fairness if technically

feasible (Uniform Guidelines, § 7B(3)); FEA Guidelines, § 6b(3))?
there must be data showing the similarity between important
characteristics of the study samples and those of the user's
applicant pool, as well as data comparing the race, sex, and
ethnic composition of the user's relevant labor market with the
composition of the samples in the original studies (Uniform
Guidelines, §§ 7D, 15E(1)(c); FEA Guidelines, § 13e(1)(iii)); and
there must be a showing that the use of the test is consistent
with the findings of the original studies (Uniform Guidelines,
§ 15E(1)(d); FEA Guidelines, § 13e(1)(iv)). Defendants have

76/
satisfied none of these requirements and therefore are not 
entitled to rely on either the ETS study or the Delaware study to 
support their claim that the test is valid for use in Louisville. 
See Plaintiffs' Brief at 91-93.

d. Test Fairness. Defendants, while acknowledging 
that the guidelines require a study of test fairness where 
feasible, contend that they should be excused from this require­
ment because they relied on "the representations of ... experts" 

that such a study was not feasible. City Brief at 93; City FOF 
635. The evidence does not support the representations of 
defendants' experts. Instead, the record shows that no effort

76/ Defendants state that their expert Terry Talbert "concluded 
that the standards for transportability of the validation study 
for the MPOE had been met for the City of Louisville." City FOF 
580. However, Talbert admitted that similarities in the demo­
graphic characteristics of the two applicant populations must 
be demonstrated in order to generalize validity from the study 
site. Talbert, Vol. V, 6/24/77 at 739-40. No such demonstra­
tion was made here.

73



was made to include specific numbers of minority officers in the 
ETS concurrent validation samples for the purpose of conducting a 
study of test fairness. Rosenfeld Dep. , 5/26/77 at 129-30.

In Rogers v. International Paper Co., 510 F.2d 1340 (8th 
Cir.), vacated and remanded on other grounds, 423 U.S. 809 
(1975), a similar claim of technical infeasibility was rejected 
where "balance in the racial composition of the samples could 
seemingly have been achieved, as well as differential validation, 

by selecting validation samples from other ... [of the employer's] 
mills or even other companies within the industry where similar 
tests were employed and minority representation was adequate."
510 F.2d at 1350. The Educational Testing Service —  with its 
$75 million annual budget, its expertise in test development, 
and the added resources of the IPMA and the IACP at its disposal 
(see City FOF 468-72) —  was in a substantially better position 
than the employer in Rogers to conduct a proper study of test 
fairness, yet it failed to do so and it failed to explain why.
This failure is especially significant in view of ETS's recogntion 
that there were indications that the test was racially unfair —  
i.e. , that differences in the test performance of black and white 
officers might not be indicative of differences in their job 
performance. See DX 31 at 47. Plaintiffs' Brief at 85-88.

Defendants' asserted reliance on the misrepresentations of 

their experts does not excuse their violation. While employers 
may, under certain circumstances, support the use of selection 

procedures by validity studies conducted by test publishers,

74



"users are cautioned that they are responsible for compliance 
with these guidelines." Uniform Guidelines, § 7A. Nor may 
defendants' escape their obligation to inquire into the question 
of test fairness by asserting that the small number of black 
officers in the Louisville Division of Police renders an internal 
study technically infeasible. See Plaintiffs' Brief at 87 n.54.
The exclusion of blacks from the Louisville police force is 
the result of a long history of both intentional discrimination 
and facially neutral practices with discriminatory effects. Id_. 
at 11-45. "Technical infeasibility" is not an acceptable
excuse where it has resulted from such past discrimination.

77/
Uniform Guidelines, § 14(B)(8)(f).

4. Predictive Validity

Contrary to defendants' argument, City Brief at 78-79, they 
are not presented with a "Hobson's choice" [sic) in determining 
how to validate a test. If they had chosen to use a selection 
procedure which, unlike Test 165.1, was designed to measure job 
behaviors or operationally defined knowledges, skills, or abilities 
which candidates were not expected to learn in recruit school or 
on the job, defendants could properly have used a content validity 
strategy. See Plaintiffs' Brief at 56-62, 66-69. However, since

77/ The decision in United States v. Virginia, 454 F. Supp. 1077 
(E.D. Va. 1978), is not to the contrary. Defendants cite this case 
without noting either that the Title VII claims there had been 
dismissed, id. at 1081, or that the question decided by the court 
was not whether a test with an adverse impact was valid under 
Title VII standards but whether the test "was used by the State 
Police as a subterfuge for the purpose of excluding Blacks," id. 
at 1102. See City Brief at 93-94. This is not the primary 
issue under Title VII. See Plaintiffs' Brief at 46-50.

75



they have chosen to use a test which purports to measure psycho­
logical constructs, they must instead demonstrate either con­
struct or criterion-related validity by means of proper empirical 

evidence.
On the facts of this case, a concurrent strategy was not 

appropriate for demonstrating criterion-related validity because 
the job-experienced incumbents serving as sample subjects

78/
were not representative of actual applicants for the job.
There were wide differences not only in training and job
experience but also in age, geographic region, preselection,

79/
motivation, and race, sex, and ethnic characteristics between 
the study samples and the applicant pool in Louisville. See 

Plaintiffs' Brief at 76-82.
But a predictive strategy —  which defendants mysteriously 

reject as "out of the question" because it would involve testing 
the same persons both at the time of their application and later 
after experience and evaluation on the job (City Brief at 79) —  
would be not only feasible but also very desirable. See Plain­
tiffs' Brief at 93-95. Indeed, "(t]he most accurate way to 
validate an employment test is to administer the test to be 
validated to all applicants but proceed to select new employees

78/ Contrary to defendants' apparent assertion, City Brief at 91 
n.50, the applicable legal and professional guidelines fully 
support this view. See Uniform Guidelines, §§ 14B(4), 5F; FEA 
Guidelines, §§ 5e, 12b(4); EEOC Guidelines,§ 5(b)(1); APA Standards, 
1111 E6.1.1 and E6.1.2 at 37, E7.4.4 at 39; Division 14 Principles 
at 5-6; Questions and Answers on the Uniform Guidelines, 44 Fed. Reg. 
1 1996, 1( 65 (March 2, 1 979). See Plaintiffs' Brief at 76-82.
79/ Defendants have asserted that motivation is an important factor 
due to the use of a pre-examination booklet. See City FOF 639, 649.

76



without regard for their test achievement, and then, after an 
appropriate period of work experience, compare job performance 
with test scores." United States v. Georgia Power Co., supra,
474 F .2d at 912. Contrary to defendants' suggestion (City Brief 
at 91 and n.49; City FOF 623), a predictive study is not in­

feasible merely because it does not aid the employer in the
80/

current selection of employees. While such a study is being 
conducted, the employer simply uses some procedure other than 
the test being studied —  e.g., a physical fitness test and/or an 
oral interview examination —  to make actual selection decisions. 
See Barrett, Vol. III. 7/13/77 at 382-83.

5. Cutoff Score and Ranking

Defendants' burden is to "clearly show the job-related- 
ness of the test as well as the manner in which it is employed in 
the [selection] process." Allen v. City of Mobile, supra, 18 
FEP Cases at 221. But defendants have failed to demonstrate 
that either their cutoff score of 128 or their use of Test 165.1 
as a ranking device was justified. See Plaintiffs' Brief at 95-100.

80/ Defendants also state that there are three "problems" 
with predictive validation studies: "A reasonable size sample is 
needed; reliable performance ratings are necessary; and, generally, 
if only two or three applicants are hired a year, the job has 
probably changed before there is a large enough sample to do such 
a study." City FOF 622. However, a reasonable sample size 
and reliable performance ratings are just as necessary for a 
concurrent as for a predictive study; and the record here shows 
that defendants customarily hire many more than two or three new 
police officers every year (see Plaintiffs' FOF 6, 8, 21) and 
that there are not substantial changes in the job from year to 
year (see PX 21).

77



Defendants assert that they adopted the cutoff score of
128 because a Civil Service board rule provided that the number
of applicants passing a written test may be based on the
number of vacancies anticipated for the following year (City
FOF 626); because this score was 5 points below the mean score

(id. 627); and because "there were 900 applicants and 400 were
passed in order to select 50 officers during the year and also

81/
... there were additional selection hurdles" (_id. 629).

These assertions do not prove that defendants' cutoff score 
was "reasonable and consistent with normal expectations of 
acceptable proficiency within the work force." Uniform Guidelines, 
§ 5H. A local ordinance or rule providing that an arbitrary 
number of candicates shall pass civil service tests cannot 
justify a cutoff score which has no relation to job proficiency. 
Association Against Discrimination v. City of Bridgeport, 19 FEP 
Cases 115, 120 (2d Cir. 1979). There is substantial evidence' 
that defendants' cutoff score of 128 was unjustifiably high 

and had no relation to acceptable job performance. See Plain­
tiffs' Brief at 96-97; pp. 68-69, supra. Even defendants' 

experts conceded there was no basis for believing that applicants 
scoring below 128 were unqualified. Helms, Vol. IV, 7/14/77 at

81/ Defendants also claim that "an effort was made to lower 
the passing point to include as many minority applicants as 
possible." City FOF 626. But only 49 of the 207 blacks who 
took the test in Louisville passed at the point set by 
defendants. PX 35. If the passing point had been set at 120 
as recommended by the University of Delaware validity study, 
DX 32 at 35, approximately 30 additional black applicants 
would have passed the test. Gavin-Wagner, Vol. Ill, 7/13/77 
at 365.

78



624; Rosenfeld Dep., 5/26/77 at 160-65. It is thus apparent that
defendants unlawfully "subordinate[d] the goal of job-relatedness
to that of administrative convenience ..." in using an arbitrary
cutoff score which substantially increased the adverse impact of 

82/
the test. Kirkland v. New York State Department of Correc­
tional Services/ 374 F. Supp. 1361, 1377 (S.D.N.Y. 1974), aff1d in 

pertinent part, 520 F.2d 420 (2d Cir. 1975), cert. denied, 429 
U.S. 974 (1976). See also, Allen v. City of Mobile, supra, 18 

FEP Cases at 223.
Defendants' use of Test 165.1 as a ranking device was equally 

unjustified. They argue that "any test which is valid implies that 
higher scores on the test predict superior performance on the job." 
City FOF 625. Putting aside the fact that this test was not 
shown to be valid, defendants' own experts have rejected this 

proposition: Dr. Crosby admitted that the ETS validity study pro­
vides no basis for using the test as a ranking device (Vol. II, 
7/12/77 at 289), and Dr. Tyler testified that "[a] bigger, higher 
score doesn't mean better ..." (Vol. IV, 6/23/77 at 669). The 
University of Delaware validity study specifically concluded that 
there was no adequate justification for ranking applicants on the

82/ Defendants have misrepresented Dr. Barrett's testimony 
concerning the effect of administrative convenience in setting a 
cutoff score. See City FOF 630. In fact, Dr. Barrett testified 
that "the only factor to be considered from the psychological 
point of view is the likelihood of success of the people who
score lower___ " Vol. I, 7/11/77 at 124. The fact that there may
be many more applicants than jobs "does influence people in their 
decision from the point of view of the administrative considera­
tion. That doesn't influence the psychological consideration.
The psychological consideration is the same. The point is that 
the cutting score should be established where it is likely to 
begin to cut off a fairly large number of potential failures."
Id. at 125.



basis of test scores above the recommended passing point of 120. 

DX 32 at 36. See Uniform Guidelines, §§ 5G, 5H. Defendants' 
use of Test 165.1 as a ranking device greatly increased its 
adverse impact, was not shown to be related in any way to the 
prediction of successful job performance, and was therefore 
unlawful. See Plaintiffs' Brief at 96-98. See also, Allen 
v. City of Mobile, supra, 18 FEP Cases at 223.

6. Elimination of Adverse Impact

Defendants argue that Test 165.1 was the "best choice" of
83/

the tests available for use in Louisville. City FOF 
84, 461, 484. But they have at their disposal at least two 
readily available alternatives to their use of Test 165.1 which 
would reduce or eliminate the adverse impact on black applicants. 
See Plaintiffs' Brief at 100-103. Defendants do not contend that 
these alternative procedures would be any less effective in 
selecting capable police officers. Rather, they appear to argue 

that Title VII permits them to ignore these alternatives and 
to continue instead to use a test whch excludes virtually all 
black applicants from consideration. City Brief at 24—26.

This is not the law.
To support their argument, defendants have again misapplied 

the principles of McDonnell Douglas Corp. v. ureen and Furnco

83/ Defendants incorrectly cite their expert Terry Talbert as 
stating that Test 165.1 "was the best police officer test he had 
seen." City FOF 581. In fact, Talbert testified that, based on 
his study of a number of police selection procedures in the Atlanta 
area, a physical fitness test was superior to written tests, level 
of education, age, experience, and all other criteria studied in 
predicting supervisory ratings. Vol. V, 6/24/77 at 701-704,
763-65.

80



Construction Corp. v. Waters, supra. Those decisions con­
cern the order and allocation of proof in non-class actions 
challenging intentional discrimination. See p. 11, n.9 and 

pp. 44-47, supra. Contrary to defendants' contention, the Court in 
Furnco did not excuse employers from their obligation under Griggs v. 
Duke Power Co. and Albemarle Paper Co. v. Moody, supra, to eliminate 
the adverse impact of unvalidated selection procedures. Rather, 
the Court held that in order to rebut an individual plaintiff's 
prima facie case of intentional discrimination, an employer need 
only prove "that he based his employment decision on a legitimate 
consideration," not "that he pursued the course which would both 
enable him to achieve his own business goal and allow him to 
consider the most employment applications." Furnco Construction 
Corp. v. Waters, supra, 57 L.Ed. 2d at 968 (emphasis in original). 
The Court expressly noted that the Furnco case "did not involve 

employment tests, which we dealt with in Griggs ... and in 

Albemarle Paper Co. ..." Id.. at 966 n.7.
When the appropriate principles are applied, it becomes 

clear that defendants are the ones who have "misread the law" on 
this question. Where, as here, an employment test having an 
adverse impact has not been shown to be a valid predictor of job 
performance, an employer has two choices: either adopt a job-

84/ Defendants also appear to have misplaced this argument in 
section II of their brief, under a heading concerning intentional 
discrimination, rather than putting it in section V where it 
belongs with the other issues concerning Test 165.1.

84/

81



related selection procedure or remove the adverse impact.
Defendants' simplistic citation of the multiple opinions in the

86/
Bakke case, supra, provides no support for their argument.
Indeed, four of the Justices in Bakke expressly recognized that
Title VII requires employers "to use test criteria that fairly
reflect the qualifications of minority applicants vis-a-vis
nonminority applicants, even if this means interpreting the
qualifications of an applicant in light of his race." 438 U.S at
363-64 (opinion of Brennan, White, Marshall, and Blackmun,

87/
JJ.). See Plaintiffs' Brief at 85-86.

None of the Bakke opinions suggests that the Court has 
retreated from the principles of Griggs and Albemarle Paper.

85/

85/ Even if Test 165.1 had been shown to be valid as used 
by defendants, they would be required to use alternative selec­
tion procedures with less adverse impact, so long as those 
procedures served their legitimate interest in the selection of 
capable police officers and were substantially equally valid for 
this purpose. Uniform Guidelines, § 3B; Allen v. City of Mobile, 
supra, 18 FEP Cases at 222-23. See Plaintiffs' Brief at 100.
86/ In the Bakke case, Justices Brennan, White, Marshall, and 
Blackmun held that a race-conscious medical school admissions 
program was permissible under Title VI and the Fourteenth 
Amendment, 438 U.S. at 324-408; Justice Powell held that the 
program which was before the Court was impermissible but that 
he would uphold such programs where they are supported by a 
compelling state interest, id̂ . at 269-324; and Justice Stevens, 
joined by Chief Justice Burger and Justices Stewart and 
Rehnquist, found that the question whether race can be used as 
a factor in admissions decisions was not presented, but that 
the school had violated Title VI by excluding the individual 
plaintiff because of his race, id_. at 408-421 .
87/ In addition, Justice Powell stated that the use of a racial 
classification to counter-balance inaccuracies in predicting 
performance may be an appropriate way to make a "fair appraisal 
of each individual's academic promise in the light of some 
cultural bias in grading or testing procedures." 438 U.S. at 306 
n. 43.

82



Two recent circuit court opinions reaffirm and apply those 
principles. In Association Against Discrimination v. City of 
Bridgeport, supra, the Second Circuit remanded a Title VII 
testing case to the district court based in large part on the 
city defendants' proposal to eliminate most of the adverse impact 
of its written test for firefighters by lowering the cutoff score 
to a justifiable level. 19 FEP Cases at 120-21. The court 
further noted that the adverse impact of the test could be 
completely "eliminated by random selection of appointees from the
group of passing candidates, rather than use of rankings." Id.

88/  ’ 
n.19. In EEOC v. Navajo Refining Co., 19 FEP Cases 184, 185
(10th Cir. 1979), the Tenth Circuit noted with approval the
employer's use of "statistical adjustments" on aptitude test
results "to equalize the raw scores of Spanish surnamed Americans
(SSA) and Anglo applicants.... [T]he result is less than a one

per cent difference in the average scores of Anglo and SSA
applicants which insures neutrality in the impact of the test."
The court held that, because this racial factor adjustment
eliminated the test's adverse impact on minorities, the burden
did not shift to the employer to demonstrate that its selection
procedures were job related. Id_. at 186.

Like these decisions, the Uniform Guidelines explicitly 
authorize the use of "alternative selection procedures in order 
to eliminate adverse impact ...." § 6A. The five federal agencies 
which adopted the guidelines explained this provision as follows 
in their recent "Questions and Answers" on the Uniform Guidelines:

88/ This is similar to the alternative use of Test 165.1 described 
Tn our principal brief at 102-103. See also, Allen v. City of 
Mobile, supra, 18 FEP Cases at 224.

83



31. Q. Section 6A authorizes the use of 
alternative selection procedures to eliminate 
adverse impact, but does not appear to address 
the issue of validity. Thus, the use of alterna­
tive selection procedures without adverse 
impact seems to be presented as an option 
in lieu of validation. Is that its intent?

A. Yes. Under Federal equal employment 
opportunity law the use of any selection pro­
cedure which has an adverse impact on any race, 
sex or ethnic group is discriminatory unless 
the procedure has been properly validated, or 
the use of the procedure is otherwise justified 
under Federal law. Griggs v. Duke Power Co.,
401 U.S. 424 (1971); Section 3A. If a selection 
procedure has an adverse impact, therefore,
Federal equal employment opportunity law 
authorizes the user to choose lawful alterna­
tive procedures which eliminate the adverse 
impact rather than demonstrating the validity 
of the original selection procedure.... 44 Fed.
Reg. 11996, 12001 (March 2, 1979).

Defendants have not demonstrated that their use of Test 165.1 

is job related, nor have they adopted appropriate alternative pro­
cedures or uses which would eliminate its adverse racial impact. 

Thus, defendants have violated Title VII and § 1981.

84



V. THE COURT SHOULD GRANT AFFIRMATIVE HIRING 
RELIEF AND AN INTERIM AWARD OF COUNSEL 
FEES TO PLAINTIFFS.

As plaintiffs have demonstrated, the Court should enter 
a race-conscious remedial hiring order (Plaintiffs Brief at 

104-117) and should grant plaintiffs an interim award of reason­
able attorneys' fees (id. at 118-20). The defendants have not 
presented any arguments in opposition to either form of relief. 
The intervening defendants have argued only that plaintiffs 
should not be awarded interim counsel fees. FOP Brief at 

58-61.
The intervening defendants' contention is based on their 

application of an incorrect legal standard to a misunderstanding 
of the record. They suggest that fees should be awarded to 
prevailing plaintiffs in civil rights cases only where the 
litigation was compelled by the defendants' "unreasonable, 
obdurate obstinacy." FOP Brief at 58. This is not the law. 
Under Title VII and other sections of the Civil Rights Act of 
1964, Congress has provided for awards of counsel fees "not 
simply to penalize litigants ... but, more broadly, to encourage 

individuals injured by racial discrimination to seek judicial 
relief ..." Newman v. Piggie Park Enterprises, Inc., 390 U.S. 
400, 402 (1968) (Title II); Christiansburg Garment Co. v. EEOC, 

434 U.S. 412, 416-17 (1978) (Title VII); Albemarle Paper Co. v. 
Moody, supra, 422 U.S. at 415 (Title VII). Thus, prevailing 
plaintiffs in Title VII cases ordinarily are to be awarded 
counsel fees "in all but special circumstances." Christiansburg

85



Garment, supra, 434 U.S. at 417. The same standard now applies 
to awards to prevailing plaintiffs in § 1981 and § 1983 employment 

discrimination cases. The contrary decision in Bridgeport 
Guardians, Inc, v. Bridgeport Civil Service Commission, 497 F.2d 
1113 (2d Cir. 1974) (see FOP Brief at 58-59), was overruled by 

Congress when it enacted the Civil Rights Attorneys' Fees Awards 
Act of 1976, Pub. L. No. 94-559, 90 Stat. 2641, codified in 42 

U.S.C. § 1988. See S. Rep. No. 94-1011, 94th Cong., 2d Sess. 4 
(1976). See also, Hutto v. Finney, 437 U.S. 678, 693 (1978).

There are no special circumstances which would justify 
the denial of fees in this case. Intervening defendants cite 

one instance in which the Court expressed its concern that 
information on the defendants' use of training and experience 
criteria had not yet been made a part of the record. See FOP 
Brief at 60; Transcript Vol. II, 6/21/77 at 208-214. As the 
Court stated,

This is a lawsuit that involves very serious 
issues. It should have been tried with the highest 
degree of competence, and the plaintiffs should 
have had all this information available to it long 
ago. They should have gone through these, gotten 
it by request for admissions, interrogatories, 
depositions, through a million different ways ....
Id. at 212.
In fact, plaintiffs sought this information through discovery 

from the beginning of the litigation, but defendants' evasive and 
misleading answers to interrogatories and their refusal to comply 
with requests for production prevented plaintiffs from obtaining 

it until long after the trial had begun. As early as 1974, 
plaintiffs asked defendants, pursuant to Rule 33, Fed. R. Civ.

P., to list all "tests, evaluations or other criteria used as
86



factors in determination of suitability for employment, the 

relative weight of each, the grade, analysis or other indicia 
requisite to acceptability for employment...." Plaintiffs' 
Interrogatory No. 18. Defendants' answer contained no mention 
whatsoever of training and experience. See Defendants' Answer to 
Plaintiffs' Interrogatory No. 18, dated Oct. 15, 1974. Plaintiffs 
subsequently filed a request for production pursuant to Rule 34, 
Fed. R. Civ. P., which included a request for the "certified exam 
results" for each examination from 1965 through 1976. Plaintiffs' 
Request for Production of Documents No. 19, dated May 4, 1976.
These documents, as we later learned, indicated that credit was 
given for training and experience. But defendants refused to 
produce these documents; instead, they made an evasive response 
in which they agreed to produce a different set of documents 
(eligibility lists, which did not include any indication that a 
training and experience criterion was a factor in police selection) 
which was the subject of a separate request for production, No.
20. See Defendants' Response to Plaintiffs' Request for Production 
No. 19, dated June 7, 1976. Plaintiffs moved to compel produc­
tion of the examination results lists pursuant to Rule 37, Fed.
R. Civ. P. (see Plaintiffs' Motion for Order for Production of 
Documents dated July 12, 1976, at 7-8); but the Court denied this 
part of plaintiffs' motion (see Order entered Aug. 16, 1976). It 
was not until June 20, 1977, during the trial, that defendants 

finally agreed to produce the examination results lists for the 
period preceding March 1975, at the direction of the Court. See 
Priebe, Vol I, 6/20/77 at 41-60.

87



Plaintiffs also sought and were denied records showing the 

race of applicants; those records, if accurate and reliable, 
would have permitted us to assess the racial impact of defendants' 
training and experience criteria and other selection procedures.

In response to plaintiffs' interrogatory asking whether such 
records were kept, defendants stated as follows: "The Louisville
Division of Police does not maintain such records nor does the 
Civil Service Board." Defendants' Answer to Interrogatory No. 20, 
dated Oct. 15, 1974. This answer was signed, under oath, by 
Jack B. Richmond, then Director of the Civil Service Board.
But when Richmond's deposition was taken in May 1977, he admitted 
that the defendants did in fact keep records of the race of 
applicants. Richmond Dep., 5/11/77 at 61-62. These records 
(defendants' log books, PX 71) finally were produced at the trial 
in June 1977 pursuant to a subpoena duces tecum. See Priebe,
Vol. II, 6/21/77 at 196-98.

Thus, the plaintiffs did everything within their power and 

resources to make proper use of the procedures provided for 
discovery under the Federal Rules, but defendants responded in an 
evasive, misleading, and outright dishonest manner which prevented 
plaintiffs from obtaining the full discovery to which they were 
entitled. This course of conduct by defendants does not justify 
a denial of counsel fees to plaintiffs. On the contrary, it 
provides an independent basis for an additional award of fees 
against defendants as a penalty for their bad faith in obstruc­
ting this litigation. Hutto v. Finney, supra, 437 U.S. at 689 

n. 1 4.

88



CONCLUSION

For the reasons stated here and in Plaintiffs' Post-Trial 
and Supplemental Post-Trial Briefs, plaintiffs urge the Court to 

grant the relief requested in our Proposed Order and Judgment.
Respectfully submitted,

WILLIAM H. ALLISON, JR.
PAUL SOREFF

3208 West Broadway 
Louisville, Kentucky 40211

JUANITA LOGAN CHRISTIAN
Suite 240, Hart Block Building 
730 West Main Street 
Louisville, Kentucky 40202

FREDERIC J. COWDEN
1300 West Broadway 
Louisville, Kentucky 40203

JACK GREENBERG 
PATRICK 0. PATTERSON

10 Columbus Circle 
Suite 2030
New York, New York 10019 

Attorneys for Plaintiffs

Dated: May 18, 1979
New York, New York

89



CERTIFICATE OF SERVICE
I hereby certify that copies of the foregoing plaintiffs'

reply brief were served by depositing same in the United
States mail, postage prepaid, this 18th day of May, 1979,

addressed as follows:
Laurence J. Zielke, Esq.
City Law Department 
200 City Hall
Louisville, Kentucky 40202
William A. Carey, Esq.
Richard A. Gladstone, Esq.
John F. Sherlock, III, Esq.
Barnett, Alagia Sc Carey 
1627 K Street, N.W.
Suite 900
Washington, D.C. 20006

Joseph M. Day, Esq.
Barnett Sc Alagia 
P. 0. Box 1179 
Louisville, Kentucky 40201

Richard Frockt, Esq.
Karen Arnett Carter, Esq.
1212 Kentucky Home Life Building 
Louisville, Kentucky 40202