Vulcan Society of New York City Fire Department, inc. v. Civil Service Commission of the City of New York Brief of Plaintiffs as Appellees and Appellants

    S T

TABLE OF CONTENTS
Page

Preliminary Statement.............................  1
Issues Presented for Review...... ................. 3
Statement of the Case.............................  5

Proceedings in the District Court.............  5
Judge Weinfeld's opinions..................  9
The evidence at the hearing................  15

The Facts.....................................  20
The discriminatory impact..................  21
The failure of justification...............  25

Argument.........................................  35
Point 1 - The District Court's finding that 

examination 0159 had a significant and 
substantial discriminatory impact upon 
minorities was not clearly erroneous.......  35
Plaintiffs' burden.........................  35
The proven past discrimination.............  36
The sharp impact of 0159...................  39
The reliability of plaintiffs' statistics... 41

Point 2 - It was not clearly erroneous for
the District Court to find that defendants
failed to meet their heavy burden of proving, 
at a minimum, that examination 0159 was
job-related................................  49
The unprofessional manner of making up
0159 -- defendants' burden was not met..... 50
Defendants' burden was not met on the 
first 80 questions.................. 59



Page

The lack of a competitive physical 
-- strong evidence of defendants'
failure to carry their burden.................  62

Point 3 - Judge Weinfeld's interim relief 
remedy is not excessive and, in fact, 
falls short of the relief he should 
have ordered under all the "equities"; 
a remand there should be on this point, 
but only to establish a 1-to-l ratio
of appointments...............................  67
Rebutting Intervenors ' points.................  68
As to the JRC' s contentions...................  71
Our position as appellants....................  72

Point 4 - The District Court erred in not finding 
that defendants' minimum height require­
ment for firemen discriminates against 
Hispanics and is not job-related or, in 
the alternative, the Court erred in refusing
plaintiffs a hearing on this issue............  75
The facts.....................................  75
The District Court's erroneous evasion.........  78
The merits....................................  79
The denial of a hearing.......................  83

Point 5 - The District Court erred in not finding 
that defendants' high-school diploma re­
quirement for firemen and their automatic 
disqualification of candidates with criminal 
convictions discriminate against minorities 
and are not job-related or, in the alternative, 
the Court erred in refusing plaintiffs a
hearing on these issues.......  84
The high school diploma requirement...........  85
The disqualification for criminal
convictions...................................  87



The standing of plaintiffs as
class representatives........................  90
Plaintiffs' right to a hearing...............  94

Conclusion.................. -................  95

Page

TABLE OF AUTHORITIES 

Cases
Aguayo v. Richardson, 473 F.2d 1090

(2d Cir. 1973) ...................................  94
Arrington v. Massachusetts Bay

Transportation Auth., 306 F.Supp.
1355 (D. Mass. 1969) .......................  39, 40, 91

Bridgeport Guardians, Inc, v .
Bridgeport Civil Service Comm'n,
354 F.Supp. 778 (D. Conn. 1973), 
aff'd, dkt. no. 73-1356, slip opin.
No. 894, 2d Cir. June 28, 1973 .......  35-37, 39-41, 48

54, 63, 71-74
Chance v. Board of Examiners, 330 
F.Supp. 203 (S.D. N.Y. 1971),
aff'd, 458 F .2d 1167 (2d Cir. 1972) ... 12, 35-42, 45-4955-58, 65, 94

Carr v. Conoco Plastics, Inc., 423 
F.2d 57 (5th Cir.), cert, denied,
400 U.S. 951 (1970) ...............................  94

Carter v. Gallagher, 3 CCH Emp.
Prac. Dec. 118205 (D. Minn.), 
modified, 452 F.2d 315, 327 (8th 
Cir. 1971) (en banc), cert, denied,
406 U.S. 950 (1972) .................  37, 47, 73, 86-91

Castro v. Beecher, 334 F.Supp. 930 
(D. Mass. 1971), aff'd in part and 
rev'd in part, 459 F.2d 725 (1st 
Cir. 1972) .................... 38, 39, 41, 48, 49 

56, 73, 86, 91



Page
Davis v. Washington, 348 F.Supp.

15 (D.D.C. 1972) ...............................  39
Fowler v. Schwarzwalder, 351 F.Supp.721, (D. Minn. 1972) .................  38, 40, 51, 52
Gregory v. Litton Systems, Inc.,

316 F.Supp. 401 (C.D.aff1d , 5 CCH Emp. Prac., Dec.
118089 (9th Cir. 1972) .......................  81, 87

Griggs v. Duke Power Co., 401 U.S.
424 (1971) ..................................  81, 86

Hall v. Werthan Bag Corp., 251 F.
Supp. 184 (M.D. Tenn. 1966) ....................  92

Hicks v. Crown Zellerbach Corp.,
49 F.R.D. 184 (E.D. Pa. 1968) ..................  92

Johnson v. Georgia Highway Express,
Inc., 417 F. 2d 1122 (5th Cir. 1969) ...........  92

Parham v. Southwestern Bell Telephone
Co., 433 F. 2d 421 (8th Cir. 1970) ...........  37, 91

Paroli v. Bolton, 57 Misc.2d 952,
293 N.Y .S.2d 938 (Sup.Ct. Duch.
Co. 1968) ......................................  48

Pennsylvania v. O'Neill, 348 F.Supp.
1084 (E.D. Pa. 1972) , aff'd in rel. 
part by an equally divided court,
473 F .2d 1029 (3d Cir. 1973) (enbanc).................................  39, 41, 46, 47

52, 73, 89
Pennsylvania v. Sebastian, dkt. no.

72-987, W.D. Pa., filed Dec. 4,
1972 ...........................................  37

Penn v. Stumpf, 308 F.Supp. 1238
(N.D. Cal. 1970) .........................  37, 39, 91

Shield Club v. City of Cleveland, 
dkt. no. C 72-1088, N.D. Ohio, 
filed Dec. 21, 1972 ......... 39



United States v. Lathers, Local No.
46, 471 F . 2d 408 (2d Cir. 1973) ................  73

United States Equal Employment 
Opportunity Commission:
Dec. No. 72-0284 (Aug. 9, 1971), '
CCH, EEOC Decisions 116304 (1973) .............  79

Dec. No. 71-1529 (Apr. 2, 1971),
CCH, EEOC Decisions 1(6231 (1973) .............  79

Dec. No. 72-1497 (Mar. 30, 1972),
CCH, EEOC Decisions 1(6352 (1973) .............  87

Dec. No. 72-1460 (Mar. 19, 1972)
CCH, EEOC Decisions 116341 (1973) .............  87

Dec. No. 71-1418 (Mar. 17, 1971)
CCH, EEOC Decisions K6223 (1973) .............  79

Western Addition Community Organization 
v. Alioto, 330 F.Supp. 536 (N.D.
Cal. 1971) .................................  37, 39

Other authorities
Administrative Code of the City of

New York, Chapter 19, Section 487a-3.0(b)......  g7
Civil Service Commission of the 

City of New York, Rules and
Regulations, Rule IV, Section III-4.3.2(b)..... 87

G. Cooper & R. Sobol, Seniority and 
Testing under Fair Employment Laws: 
a General Approach to Objective 
Criteria of Hiring and Promotion,
82 Harv. L. Rev. 1598, 1667-68 (1969)......  49, 58

Note, The Collateral Consequences
of a Criminal Conviction, 23 Vand. L. Rev.
929 (1970)

Page

88



PagoPresident's Commission on Law Enforce­
ment and Administration of Justice,
Task Force Report: Corrections, (1967)............  88

R. L. Thorndike, Personnel Selection (1949)..........  58
Federal Rules of Civil Procedure,

Rule 23............................................  91, 92
United States Department of Health,

Education & Welfare, 10-State Nutrition
Survey 1968-70.....................................  79

United States Equal Employment 
Opportunity Commission, 
Guidelines on Employee Selection
Procedures, 29C.F.R. §1607.1-14 (1972)............ 48, 51, 54

United States Equal Employment 
Opportunity Commission,
National Origin Discrimination Guidelines,
29 C.F.R. §1606.1(b) (1972)........................  79

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UNITED STATES COURT OF APPEALS 
For the Second Circuit

Dkt. No. 73-2287

Vulcan Society of the New York 
City Fire Department, Inc., et al.,

Plaintiffs-Appellees-AppeHants
-against-

Civil Service Commission of the 
City of New York, et al.,

Defendants-Appellants-Appellees
-against-

Nicholas M. Cianciotto, et al. ,
Intervenors-Defendants,

Appellants-Appellees

Appeal from the United States District 
Court for the Southern District of New York

Brief of Plaintiffs as Appellees and Appellants

Preliminary Statement

Plaintiffs submit this brief as both appellees 
and appellants. We answer briefs submitted by defendants,



who are the various agencies and individuals responsible 
for the content and administration of entrance and promo­
tional procedures of the New York City Fire Department ("the 
NYCFD"); by intervenors, who are three individuals who took 
and passed the most recent examination for firemen for the 
NYCFD; by President Richard J. Vizzini of the Uniformed 
Firefighters Association of Greater New York ("Vizzini"), 
who appears as an amicus curiae; and by the Jewish Rights
Council ("the JRC"), which also appears as amicus curiae. And 
we make our arguments for a partial reversal of the District 
Court's order.

Defendants and intervenors have appealed from an 
order of the United States District Court for the Southern 
District of New York, entered on August 8, 1973, following 
a 7-day hearing and a 38-page opinion of United States 
District Court Judge Edward Weinfeld. Defendants and inter­
venors challenge the order insofar as it (i) declared un­
constitutional written civil service examination 0159 
("examination 0159" or sometimes just "0159") given in 1971 
to NYCFD firemen candidates, (ii) permanently enjoined the 
use of the results of that examination in making appointments 
of firemen, (iii) directed defendants to prepare a new ex­
amination "in accordance with professionally accepted methods 
of test preparation" rather than the method they had used

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before, and (iv) provided for interim relief. Amicus Vizzini
urges that the District Court lacked jurisdiction and asks 
for a reversal and dismissal; the JRC attacks the findings 
of the District Court that the examination for entrance for 
the NYCFD was unconstitutional and maintains that the in­
terim relief was "itself unconstitutional".

We appeal from Judge Weinfeld's decision insofar 
as he did not award us summary judgment and denied us a 
hearing, as an alternative, on our contention that three 
automatic grounds for disqualification of NYCFD firemen 
candidates are unconstitutional: a height of less than 5'6";
a conviction for petit larceny or any felony; and failure to 
have a high school or equivalency diploma. We also argue 
that the District Court's interim relief, including its failure 
to incorporate compensatory relief, was inadequate.

Issues Presented for Review

1. Was the District Court "clearly erroneous" in 
finding that examination 0159 had a discriminatory impact 
on blacks and Hispanics?

2. Was the District Court "clearly erroneous" in 
finding that defendants did not sustain their heavy burden 
of proof to show that 0159 fairly tested the candidates'

-3- I



relative qualifications to be firemen in the NYCFD?

3. Did the District Court err in rejecting plain­
tiffs proposal for interim relief, which would have required 
the appointment of qualified candidates to the NYCFD on a

kasis among minorities (black and Hispanics) and non­
minorities?

4. Did the District Court err in not finding 
that the minimum height requirement for candidates was an 
unconstitutional feature of the entrance procedures of the 
NYCFD on the record before it; and, if the record was in­
complete on this issue, was it error for the District Court 
to refuse plaintiffs a hearing on the issue?

5. Did the District Court err in not finding 
that the requirement that candidates possess a high school 
or equivalency diploma was an unconstitutional feature of 
the entrance procedures of the NYCFD on the record before it; 
and, if the record was incomplete on the issue, was it error 
for the District Court to refuse to allow plaintiffs a 
hearing on the issue?

6. Did the District Court err in not finding 
that the automatic disqualification for certain criminal 
convictions was an unconstitutional feature of the entrance 
procedures of the NYCFD; and, if the record was incomplete

I

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on the issue, was it error for the District Court to refuse 
to allow plaintiffs a hearing on the issue?

Statement of the Case 

Proceedings in the District Court

Plaintiffs filed a class-action complaint in this 
case on January 11, 1973; the complaint (Doc. 1)* sought in­
junctive relief to change civil service selection procedures 
used for the appointment and promotion of firemen and officers

fin the NYCFD. Plaintiffs challenged the procedures on the 
grounds that they have had and will continue to have a dis­
criminatory impact on blacks and Hispanics ("minorities") 
and cannot be justified since they do not fairly measure the 
relative abilities of candidates for appointment and promotion.

*Citations to numbered documents in the record on appeal are 
shown by the abbreviation "Doc." followed by the document's 
number.

-5-



Plaintiffs include five black and Hispanic indivi­
duals who took civil service entrance examination 0159 for 
firemen administered on September 18, 1971, but either did 
not receive a passing score or did not receive a passing 
score that was high enough to make it likely that they would 
be appointed firemen. Plaintiffs also include the Vulcan 
and Hispanic Societies of the NYCFD, whose memberships 
include most of the black and Hispanic firemen and officers 
of the NYCFD. Defendants are all of the administrative 
agencies of New York City and their heads who are responsible 
for promulgating and administering the challenged selection 

procedures.

When we filed the complaint, we also moved 
by order to show cause for a preliminary injunction 
(pendente lite) against appointments of firemen based on 
the results of examination 0159 and against the establish­
ment of any eligible list of candidates based on the results 
of that examination.

Prior to the hearing we engaged in two skirmishes 
with our opponents over requests for stays to try to stop the

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appointment of some 120 firemen. We lost them both; and, 
eventually, prior to the District Court's opinion,
302 fireman appointments were made from the 0159 eligible 
list. Of this group of 302, only 8 were minorities.

Judge Weinfeld heard evidence at the preliminary 
injunction hearing on three days in January and four in 
early February, 1973. This hearing was concerned exclusively 
with plaintiffs' claim that examination 0159 had a discrimina­
tory impact on minorities and could not be shown to be job- 
related. While some of the proof at the hearing was also 
relevant to other issues in the complaint, plaintiffs did 
not purport to put in their case on any other issue. For 
example, plaintiffs did not offer any expert testimony 
relating to the minimum height or high school diploma re­
quirements for NYCFD firemen.

After the hearing was over and during argument 
Judge Weinfeld suggested that he would like to know our 
views concerning whether we would accept the 7-day hearing 
on the preliminary injunction as a complete and final hearing 
on all entrance requirement procedures (1043-50). In

^Numbers in parentheses refer to pages in the transcript of 
proceedings on our motion for a preliminary injunction.

-7-



a letter dated February 12, 1973, we voiced our qualified 
acceptance of that suggestion —  proposing to leave for 
future hearings the several issues on entrance procedures 
on which there was little, if any, evidence offered (P.App. la). 
On May 1st, Judge Weinfeld heard oral argument on the question. 
Over our objection, he ruled that the hearing was closed 
and his ruling would be final on all issues on entrance 
procedures, although he would accept any written material 
on these issues so long as he received them before he 
ruled on the merits of plaintiffs' motion for preliminary 
injunction (P.App. 11a—12a). We then duly put in affidavits 
to support a motion for summary judgment on the issues of the 
legality of the minimum height and education requirements 
and the automatic disqualification because of petit larceny 
or felony convictions (Doc. 27). Those affidavits went un­

contradicted .
Judge Weinfeld handed down his 38-page opinion on 

June 12, 1973 (8a-37a).** After an order and counter­
order had been proposed intervenors successfully

^Citations to pages of our photostated appendix are made by 
the abbreviation "P.App." followed by the page number. 
**Numbers in parentheses followed by the letter a refer to 
pages of the appendix filed by defendants and intervenors.

-8-



entered the case, on motion and without opposition, only 
for the purposes of commenting on the proposed orders and 
participating in any appeal. After several sessions with 
counsel, Judge Weinfeld issued an order, entered on August 
8, 1973, awarding interim relief and endorsed a memorandum 
opinion that explained the basis for it (41a-44a).

Judge Weinfeld1s opinions

This Court will find that much of our oppo­
nents' arguments are based on a misreading of Judge 
Weinfeld's opinion-in-chief (8a-37a) and a total refusal 
to read his memorandum opinion relating to interim 
relief. What our opponents say is that Judge Weinfeld 
found that only twenty questions were non-job related 
and the rest of 0519 was fine; they concede he was 
right as to those twenty questions, but wrong as to the 
consequences.

We review the two opinions of Judge Weinfeld 
briefly to prove our opponents' error.

In his 38-page opinion Judge Weinfeld found, 
on uncontroverted evidence, that examination 0159 had

-9-



a substantial discriminatory impact on minorities (14a- 
23a). Once that impact was found, Judge Weinfeld —  

following the mandate of the case law —  said the bur­
den had shifted to the defendants and that they bear 
"a heavy burden of justifying [their] contested ex­
aminations by at least demonstrating that they were 
job-related" (23a).

Next, Judge Weinfeld reviewed the three 
generally accepted principles of psychological test­
ing, after stating that satisfying those methods 
appeared to be "precisely the correct response to a 
prima facie showing of discriminatory impact" (25a).
He observed that defendants and their predecessors 
had never used or attempted to use the two most

reliable ways to "validate" examinations and that 
some courts have deemed this fatal (26a). But he 
found it unnecessary to reach that issue because 
defendants failed to justify the examination on the 
single ground they claimed it could be (27a).

As Judge Weinfeld noted, defendants based

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their justification solely on the ground that the ex­
amination had "content validity." But for an examina­
tion to be valid on the basis of its "content," the 
first requisite required by professionals is a thorough 
study of the job and the preparation of a "job analysis" 
(29a-30a), "a thorough survey of the relative importance 
of the various skills involved in the job in question 
and the degree of competency required in regard to each

skill" (28a).

No job analysis was ever done by defendants 
or their predecessors; and, indeed, Judge Weinfeld cata 
logued exactly how amateurishly 0159 was prepared (28a- 

29a). He concluded (29a):

"The record compels the conclusion that the 
procedures employed by defendants to construct Exam 
0159 did not measure up to professionally accepted 
standards concerning content validity."

Judge Weinfeld then alluded to the cases that 
take the view that without a careful job analysis there 
could be no content validity. Again, however, he found 
it unnecessary to go that far. And what he next said is a 
clear holding in this case: that even if defendants did 
not have to conform precisely to professional standards,

-11-



the manner in which they prepared the examination was so 
unsatisfactory under the decisional law in this Circuit 
that defendants had not met their burden of establishing 
strong "probabilities" of job-relatedness. In a sentence, 
he simply could not find that there was content validity 
in this examination in view of the procedures followed by 
defendants. Here are Judge Weinfeld's words in reliance on 
this Court's decision in Chance v. Board of Examiners,
458 F. 2d 1167 (2d Cir. 1972) (30a-31a):

"Even if defendants were not required to conform pre­
cisely to all the requirements of a professional job 
analysis, it is clear that the methods actually em­
ployed were below those found unsatisfactory in 
Chance, where defendants made a much more extensive 
inquiry into the nature of the job in question. In­
deed, the most which Mr. McCann was willing to state 
was that it was 'possible' to prepare a job-related 
examination by the means Mr. Scheinkman described. 
Defendants' burden, however, is not to establish pos­
sibilities but to demonstrate strong probabilities."

Next, Judge Weinfeld met defendants' contention 
that, regardless of the inadequacies of the means which 
were employed, 0159 still could be valid as to content. He 
then gave further grounds for his decision. He said that 
the testimony of "defendants 1 expert *** not only failed to 
meet *** [defendants'] burden but even acknowledged the pre­
sence of a major flaw in the examination which is in itself

-12-



fatal" (31a). It was in this context that Judge Weinfeld 
spoke at length about the conceded failure of 20% of the 
examination, the 20 questions that dealt with New York 
City government and current events. Still in this con­
text, he went on to spell out another glaring failure: 
the omission of a competitive physical test in view of the 
substantially physical nature of a fireman's job (32a-33a).

Thus, a reading of Judge Weinfeld's opinion, be­
fore his summary, establishes that, in view of the way the 
examination was prepared, he cannot find that examination 
0159 was job-related; but, even if he were to adopt the 
argument of defendants, he would have to find against them 
on the very face of the examination for two reasons: the 
conceded erroneous 20 questions and the lack of a compe- 
tive physical test. Judge Weinfeld's summary puts the 
matter far beyond cavil (33a-34a):

"In view of the unprofessional manner in which the 
written examination was prepared, the inclusion of 
a section on current events and City government 
which constitutes 20% of the examination without any 
showing of its relation to the job of fireman and 
the refusal to include a competitive physical ex­
amination component despite the request of the 
Commissioner or to provide a satisfactory explana­
tion for its elimination, defendants have failed to 
sustain their burden of demonstrating job-related- 
ness; indeed, the evidence strongly indicates that 
Exam 0159 was not sufficiently related to the job of 
fireman to justify its use."

-13-



Whatever lingering doubts one could have —  

based on wishful thinking imposed on Judge Weinfeld's em­
phasis on the 20 questions and the lack of a competitive 
physical —  have to be set at rest by his memorandum op­
inion on interim relief.

On the date for the settlement of an order, Judge 
Weinfeld was presented with three competing proposals for 
interim relief. Ours would have allowed appointments pen­
dente lite by creating two lists, a list of minorities who 
passed 0159, and a list of non-minorities who passed. We 
asked that, for every one appointment from one list, there 
should be an appointment of one from the other list. The 
Corporation Counsel for defendants proposed a ratio of two- 
to-one. Intervenors, on the other hand, urged what they 
now suggest to this Court: they asked Judge Weinfeld
simply to eliminate the 20 questions on City government 
and current events and regrade the tests and create a new 
list; and they argued in their supporting affidavit to 
Judge Weinfeld that all he did was to pass on the 20 
questions. Judge Weinfeld adopted the two-list proposal, 
but, sua sponte, with a ratio of three-to-one. In the 
accompanying memorandum the trial court made it clear 
that intervenors had misinterpreted its opinion. Judge 
Weinfeld wrote (43a):

"The intervenors would keep the list intact so that

-14-



appointments would be made in the order of ran"k. This 
they propose to accomplish by eliminating the twenty 
questions, 20% of the total examination, which the 
Court found impermissible and regrading the papers 
•with appointments made thereafter according to order 
of rank. However, this procedure eliminates from 
consideration other factors relating to the written 
examination, as well as the factor of competitive 
rating of the physical examination, the lack of which 
the Court also took into account in reaching its deter­
mination . "

Of course, Judge Weinfeld's opinion did not ex­
plore every avenue of proof over seven days of trial on a 
record of over 1,000 pages; nor can we do it here. What 
we feel this Court ought to have is a picture of how the 
hearing progressed and some of the "compelling" facts, to 
which Judge Weinfeld alluded, and which truly mandated a 
finding that 0159 was bad in toto —  no matter how much 
leeway defendants would be allowed on the governing law.

The evidence at the hearing

Plaintiffs' case and cross-examination took most 
of the time in the District Court. We put on four witnesses 
who dealt principally with the nature and relative impor- 
ance of various traits and abilities that make for good 
firemen and the difficulties minorities had in taking and 
passing examination 0159. We put on four other witnesses 
to talk about statistic-gathering on examination 0159; the 
defendants —  ably represented in the District Court by the 
Corporation Counsel's office —  had full opportunity to 
examine these witnesses. It was one of our witnesses who

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gave the only detailed view in the record of the training 
school and the picture of teaching methods used at the school.

We also called Edward Schenkman, an adverse witness 
employed by defendant Department of Personnel. It was his 
testimony that furnished the story of the manner in which 
examination 0159 was prepared. We went further and called 
Commissioner Robert O. Lowery of the NYCFD; and he testified 
concerning the nature of a fireman's job, the urgent need of 
the NYCFD to increase the number of minorities in its ranks 
and how the achievement of this objective has been frustrated 
by the disadvantage of minorities on written civil service 
examinations such as 0159.

Plaintiffs also offered the testimony of two expert 
witnesses. Professor Edward Option, an expert in the field 
of psychological testing and assessment, gave evidence of 
the professionally recognized standards for preparing and 
validating employment examinations; he demonstrated the ob­
vious, that these standards had been ignored on 0159 and 
that, as a result, 0159 clearly lacked content validity.
Then Professor David Siegmund of Columbia University, an 
expert in mathematical statistics, showed how the presently 
available statistical evidence established the discrimina­
tory impact on minorities of examination 0159. His testi­
mony was uncontradicted.

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In answer, defendants first called Chief John T.
O'Hagan of the NYCFD. He testified about the nature of a 
fireman's job and stated, based on his knowledge of the job, 
that he favored a competitive physical examination for fire­
men. In contrast, Captain James Meyers, who had been located 
somewhere out of the NYCFD and recommended as a witness by 
defendants' examination expert (969), testified for defend­
ants that a qualifying physical examination was sufficient.

The defense's chief witness was its examination ex­
pert, Forbes McCann. No question: Mr. McCann has a personal 
stake in the outcome of this and similar litigation since 
a large part of his business consists of preparing and sel­
ling civil service examinations (783-86).

Mr. McCann's testimony was confusing and at times 
contradictory, perhaps because he had only an "extremely ... 
short" time to review 0159 (926). He was very uncertain con­
cerning the meaning (924-25) and content (1025-26) of the only 
professionally recognized written standards on test valida­
tion revealed by the record (Exh. 6). He first denied 
(898-902) then later admitted (1024-25) that the results of 
tests of verbal comprehension in written form can differ 
significantly from those of tests given in oral form. He 
seemed at a loss to explain whether the vocabulary words in 
0159 should or should not have been taken from "firemanic" 
materials (955-60).

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Nearly all of Mr. McCann's testimony concerning
examination 0159 was based on the result of his one-day 
"brief job analysis" of NYCFD firemen (830, 986). Mr.
McCann said that a thorough job analysis would have taken 
him between three days and two weeks "depending on what 
[he] found" (968-69). He also acknowledged that before 
he even started his "job analysis" he had agreed to testify as 
an expert witness for the defense in support of examination 
0159 (966-68).

The bias inherent in Mr. McCann's litigation-con­
scious methodology revealed itself in his testimony. His 
list of the ten traits "necessary for success as a fireman" 
(835-36) omits some traits which were identified as very 
important by the NYCFD firemen and officers who testified, such 
as the willingness to follow orders and the ability to func­
tion under stress (13-14, 693, 707, 776-77). His highly 
qualified description of the physical trait necessary —  

"sufficient" strength for "moderate" periods (835-36) -- 
bears little resemblance to the description of a fireman's 
job by NYCFD officials as highly physical in nature, but 
correlates very well with some defendants' desire to retain 
a qualifying physical examination. There can be little 
wonder that Judge Weinfield found Mr. McCann's testimony 
"totally unpersuasive" (33a).

Nonetheless, Mr. McCann in many respects gave
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testimony favorable to plaintiffs. He acknowledged that he 
"would not have used" examination 0159, "God forbid" he had 
prepared it (1026-27), and that fully one-fifth of the ex­
amination was not sufficiently job-related to have been in­
cluded in his judgment (850).

One further observation: almost as damaging to de­
fendants' cause as the testimony of their expert was their 
failure to call the witnesses most vital to a claim of con­
tent validity. Absent from the stand were:

Chief Hartnett, the only member of the NYCFD ap­
parently contacted in connection with the preparation 
of 0159 (88-89, 439-40);

the examiners in the Department of Personnel who 
actually prepared the questions used in 0159 (97, 802-03);

Morris Brownstein, a retired employee of the De­
partment of Personnel, who edited the questions included 
in 0159 as the chief of the responsible examining di­
vision (88, 98);

Herbert L. White, the current head of the examin­
ing division responsible for firemen entrance examina­
tions (86) ;

Chief Lewis J. Harris, the current supervisor of 
the probationary fireman training school (432-33, 702- 
03, 712, 976), whose non-appearance was especially sur­
prising in view of defendants' claim that the purpose 
of 0159 was to measure the areas of knowledge neces­
sary to absorb the training given at the school (94- 
96, 131, 135-36);

any instructor or former instructor at the pro­
bationary fireman training school;

Chief Bernard Muller, the current head of the 
NYCFD's Bureau of Personnel and administration, who 
together with Chief Harris was identified by Chief

f*

!

i

i

-19-



O'Hagan as a man whom he would consult concerning the 
manpower needs and requirements of the NYCFD (702-04);

any person in the Department of Personnel familiar 
with the manner in which the fireman's examinations pre­
vious to 0159 had been prepared; and

any statistical expert to deny or rebut the show­
ing made by plaintiffs and their expert of the discrim­
inatory impact of 0159.

The extent of this missing cast of characters sug­
gests that it had to be the trial strategy of defendants to 
provide Judge Weinfeld with as little information as possible 
concerning the preparation of examination 0159 and the na­
ture of the probationary fireman's training experience. Surely 
that was the effect.

From the witnesses at trial and a welter of documen­
tary material the facts emerged that could only lead to the 
result that Judge Weinfeld reached. We now look at those 
facts, citing not only to our own case but to the testimony 
offered by defendants.

The Facts

The entry level civil service position in the 
NYCFD is that of fireman. Under civil service regulations 
a fireman candidate must first take a written entrance 
examination formulated by the Department of Personnel and 
administered approximately once every four years. The ex­
aminations are graded, all candidates scoring below the 
passing grade of 70 are eliminated from further consideration

-20-



and the remaining candidates are ranked in order of their 
scores (18,587-89). The resulting "eligible list" remains 
in force until the next entrance examination is administered 
and a new eligible list established (627-29) .

As positions of firemen become available they are 
filled by the candidates at the top of the current eligible 
list, provided that these candidates survive a subsequent 
qualifying stage of the selection procedure —  including 
a medical examination, a physical examination and a charac­
ter review.

The discriminatory impact

On September 18, 1971, defendants administered 
examination 0159 for firemen to a group of 14,168 candidates. 
After a lengthy delay caused principally by a freeze on 
fireman appointments imposed by the City's Mayor (457-61), 
defendants established an eligible list on January 18, 1973, 
ranking in the order of their scores on examination 0159 
the 12,049 candidates who passed it (175-77). During the 
job freeze, the top ranking 7,987 men had been called for 
the qualifying physical and medical examinations; a total of
4,462 men appeared for and passed this process (177-93; Exhs. 
8, 8A).

Throughout its entire history the NYCFD has been

-21-



predominantly white (410-11, 417-18). At present minorities 
comprise less than 5% of the firemen and officers of the 
NYCFD (457-58). In contrast, the percentage of minorities 
among the male population of New York City between the ages 
of 19 and 28 (the age group qualified to become firemen in 
the NYCFD) is approximately 32% and may be even higher 
(633-36; Exh. 23, pp. 34-108; Exh. 24, pp. 34-429).

Because plaintiff Vulcan Society had actively re­
cruited minority applicants for 0159, we had statistics 
available to present to Judge Weinfeld. Various members of 
plaintiff Vulcan Society took a visual "headcount" at the 
0159 examination sites of the number of minority candidates 
who took examination 0159 (398-401, 403-04). These black 
firemen stationed themselves at the doorways and, using 
counting machines, clicked off all the recognizable blacks 
and Hispanics; they were instructed to be, and were, conser­
vative: when in doubt, they didn't click. Thus, if there
are errors in their count, it could only be in an under­
counting (397, 401, 506-07, 612-13, 620). The headcount 
showed that, at the least, 1,646 minorities took examination 0159. 
On a percentage basis this was 11.5%. The evidence suggests 
that many eligible minorities were deterred from taking the 
examination by their fear of failing it (19) and by the 
resentment in minority communities toward the predominantly



I

.

white NYCFD (429-31; Exh. 13, p. 3).
I

The NYCFD itself made racial categorizations of 
the 4,462 candidates on the 0159 eligible list who appeared 
for and passed the qualifying stage of the selection process 
—  the physical examination and medical examination (177-83, 
425). Of those finally qualified candidates only 249 or 
5.6% were minorities -- 223 blacks and 26 Hispanics (Exhs.
8 and 8A).

In view of the number of firemen appointments 
planned and prior experience the only candidates with a real 
chance of appointment were those in roughly the top ranked 
pool of 2,418 candidates -- of which 2,310 (95.5%) were 
white and 108 (4.5%) were minorities (423, 625-31, 539-41). 
The decline in the percentage of minorities from the 11.5% 
who took examination 0159 to the 4.5% in this pool of fin­
ally qualified candidates (523-25; Exh. 19) is statistically 
significant (571-73) to an overwhelming degree: as Profes­
sor Sigmund testified, it would have occurred by chance less 
than one time out of 10,000 (526-28). Thus the selection 
procedure as a whole had a sytematic, clear and substantial 
discriminatory impact on minorities (528-29, 539). For ex­
ample, 18.4% of the whites who took the examination attained 
a place in the top finally qualified pool of 2,418 candidates 
but only 6.6% of the minority takers did so —  a disparity

-23-



of almost 3 to 1 (529-31; Exh. 19).

There can be no serious argument against the pro­
position that written examination 0159 itself -- not the later 
qualifying tests —  must have been responsible for the maior 
portion, if not all, of the discriminatory impact of the 
whole procedure; the opposite view is illogical and runs 
against all reasonable probabilities (531-36, 541-47).

Moreover, there was powerful direct confirmatory 
evidence of what the laws of probability dictated. First, 
minorities appeared in greater numbers as you went down the 
eligible list (595-99). Second, the NYCFD and the United 
States Department of Labor conducted a special tutorial 
program for certain minority persons planning to take ex­
amination 0159 (420-21, 426; Exh. 13), yet they fared badly. 
Even the 119 tutorial students who managed to pass examination 
0159 (427-28, 549) tended to rank significantly lower on the 
0159 eligible list than the candidate, population as a whole; 
their performance on the examination was definitely inferior 
(563-66, 556-62; Exhs. 20 and 21). Indeed, only 18 of the 
119 passing tutorial students ranked in the first 4,000 of 
the eligible list. This number is disproportionately low 
as compared to the size of this passing group, and there is 
less than once chance out of 1,000 that such a low number 
could have been the result of chance (556-59).

-24-



The failure of justification

The fact that minorities were disadvantaged in 
competing against non-minorities on 0159 hardly comes as a 
surprise. Written civil service examinations such as 0159 
and the similar previous NYCFD fireman exams (88-89, 423)
"are almost certain to have discriminatory impact" on min­
orities (430-31; Exh. 13, p. 3). As both plaintiffs' and 
the defendants' examination experts agreed, minorities and 
blacks in particular score significantly lower than whites 
on nearly all kinds of written examinations (240-43; 1041-42; 
Exh. 13, p. 3). In particular they have been shown to score 
significantly lower than whites on written tests supposedly 
aimed at testing ability to learn, of which examination 
0159 is claimed to be an example (1041-42).

Examination 0159 (Exh. 2) was a written multiple 
choice examination consisting of five sections, each with 
20 questions. Its purpose was to determine which applicants 
had the capacity to learn and perform the functions of a 
fireman and, within this qualified group, to rank the appli­
cants in an order which predicted their relative likeli­
hood of job success (792-93, 912-13; Exh. 4). As defendants' 
expert told us, the examination is "valid" if it achieved 
its "goal of predicting competence" (806, 886-87): that is,
if the test scores attained by applicants, and thus their

-25-



ranks on the 0159 eligible list, accurately predict the 
relative quality of their job performance (192-93; Exh. 6, 
pp. 12-13). If the test scores lack demonstrable and sub­
stantial predictive significance for job performance the 
examination is invalid and should not be used to select 
firemen (194, 792-93).

The procedures used to prepare 0159 ensured —  
as Judge Weinfeld found —  that it could not achieve its goal. 
These procedures did not meet the standards recognized by 
professionals as necessary to prepare a valid examination 
(209-12, 891, 1026-27); and they went far below them. As 
the experts tell us, an examination intended to predict 
training and job performance should be prepared with "the 
greatest care" so that the skills, abilities and traits 
measured by the test accurately reflect those necessary to 
effective training and job performance (Exh. 6, p. 3; 794). 
Examination 0159, to the contrary, was prepared in a most 
casual manner and with minimal attention devoted to the 
nature of a fireman's training and job (88-110, 126-40,
209-12, 297, 1026-27). Not even an attempt was made to per­
form a thorough and systematic "job analysis" (99-104), 
which is the basic starting point for the creation of a 
valid examination (199, 202, 324-25; 989; Exh. 6, pp. 12-13; 
Exh. 6, C3 and Comment, p. 15).



I
j

Examination 0159 was composed in this way: I
Edward Scheinkman, then assistent chief of the examining 
division of the Department of Personnel of the City of New 
York, gathered up the file on previous fireman examinations, 
form notices of examination including the class specifica­
tions, some firemen's magazines and unspecified material 
from the NYCFD (88, 101-03, 135). Mr. Scheinkman believed, 
wrongly (792-93, 912-13), that the sole purpose of 0159 was 
to measure the areas of knowledge necessary to enter the 
probationary firemen training school (94-96, 131, 135-36).
He had only a "general knowledge" concerning the content of 
the training program; he did not know the relative use of 
written materials, lectures and demonstrations in the pro­
gram (129-31). He called upon the NYCFD's Chief of Personnel 
who referred him to a Chief Hartnett, whom Mr. Scheinkman, 
although no one else, remembers as having then been in 
charge of the training division of the NYCFD (88; but see 
441, 725-26). The purpose of that contact was to get an 
opinion as to the areas of knowledge that should be included 
in the written test (88).

Chief Hartnett thought that the areas that were 
covered in the last test should be covered again and, in 
addition, that there should be an area on city government 
and current events. The Department of Personnel felt that

-27-



there was "no reason to dispute him" (89)• Thus the areas 
of the last examination were covered in 0159 and in addition 
some 20 questions in the area of city government and current 
events were included (89).

The actual drafting of the questions was en­
trusted by Mr. Scheinkman to more junior examiners of the 
Department of Personnel (97). There is no indication that 
any of these examiners possessed any knowledge (794, 1034- 
35) about a fireman1s training or job, or that they had ever 
prepared a previous examination for firemen (97-98).

Commissioner Robert Lowery of the NYCFD was not 
consulted about the proposed content of examination 0159, 
and he knows of no one else with the NYCFD who was con­
sulted (439-40) . While he and various members of the NYCFD 
were concerned about the impact that such examinations may 
have on minorities (423; Exh. 13), no one in the Department 
of Personnel appears to have considered whether the areas 
or questions of 0159 were culturally biased or would have 
a discriminatory impact on minorities (112-20, 122).

The only discussions Commissioner Lowery had 
with the Department of Personnel relating to the 1971 selec­
tion procedure concerned his unsuccessful attempt to have 
a competitive physical examination reinstituted. Commissioner

-28-



Lowery and many senior officers of the NYCFD now believe 
and believed in 1971 that the physical examination should 
be competitive (439-41, 451-52, 704-06). He was told that 
it was too expensive and time consuming to have a competi­
tive physical examination (441-42). But competitive physical 
examinations had been conducted over the years until they 
were eliminated prior to the 1968 examination (440-41).

|
After the examiners prepared a draft of 0159 

it was reviewed by their superiors, but not by Mr. Scheinkman 
(98). Nor does it appear that this draft or the final pro­
duct was shown to or discussed with Chief Hartnett or any­
one else in the NYCFD (98, 430-40).

As a result of all this, not even defendants' 
own expert witness, Forbes McCann, would have used the 
examination produced by the Department of Personnel (1027).
He would have omitted entirely fully one-fifth of the ex­
amination's questions —  because he did not feel confident 
that they were job-related (850). At one point he gave the 
court a true reading of his feelings about the quality of 
examination 0159 as a whole in this manner: "If I had
written such an examination, God forbid * * (1026).

Moreover, under professionally recognized 
standards even a properly prepared examination is presumed

-29-



to be invalid unless and until its job-relatedness has been 
verified by a proper "validation" study (235-37; Exh. 6, 
p. 12, fourth para.). Defendants admitted (105-06, 206) 
that they never subjected 0159 or its predecessors to any 
of the three types of professionally recognized validation 
processes: (i) predictive validation; (ii) concurrent
validation; and (iii) construct or "content" validation.

The most preferable method of demonstrating 
validity is by a predictive validation study in which the 
test scores of job applicants are compared with their later 
job performance (193-95, 315, 814, 828-30). The second
best method is by a concurrent validation study in which 
the examination is administered to present employees and 
compared with either their past or future job performance 
(193-96, 826).

Contrary to the arguments in this appeal, def­
endants could have performed a predictive validation study 
of one or more of the fireman examinations prior to 0159 
to determine the appropriateness of the subject matter area 
covered by these exams and 0159 (88-89, 817, 878-79). It 
was also feasible for defendants to perform a concurrent

-30-



validation study of examination 0159 itself (193-96). All 
that has been needed is initiative and competence. Indeed, 
New York City recently let bids for a citerion-related 
validation study in connection with examinations for police­
man and two other positions (987-89).

As to the less preferable "content" validation 
studies of 0159 or any of its similar predecessors, defend-

I
ants did not even attempt an explanation at the hearing for 
their failure; their inaction is inexcusable in view of 
the sturm and drang about validation of civil service ex­
aminations in urban communities.

The evidence at the hearing actually established 
that examination 0159 was not even in the ballpark of "con­
tent validity. "

A fireman's job is principally a physical job, once 
a man understands the nature of the position. Above-average 
strength, ability, dexterity and stamina are essential (7, 
13-14, 440-41, 452, 705-06, 766, 771-72). In addition to 
physical ability, experienced officers regard as among the 
most important traits needed to be an effective fireman 
these: ability to understand and willingness to follow oral
orders (13, 776-77); ability to function as a member of a 
team and get along with fellow firefighters (769, 774);

-31-



ability to function under stress while performing extremely 
demanding physical work (13-14, 693, 707); and job interest 
—  a willingness to do the job (13, 690).

An adequate level of common sense intelligence is 
also necessary (440, 690), but this common sense usually 
is called for in the form of action in firefighting situa­
tions , and not in any great measure in the form of reading 
comprehension (40-44, 477-85, 668-75, 731-36, 740-44, 751- 
58). A fireman must be able to "profit by experience" in 
these situations (726).

A fireman does not need a large or sophisticated 
vocabulary. Nor does he need much mathematical or scienti­
fic aptitude —  the few positions that require a measure of 
such aptitudes, such as motor pump operator, are filled 
solely by firemen who are selected and attend a special 
training program (18, 71-72, 498-502, 776). Knowledge of 
current events and the structure of city government is un­
related to the work of a fireman (13-14, 690, 850).

The NYCFD is a "semi-military organization" (373, 
972) and, as such, the emphasis of its training program is 
on learning through the constant repetition of drills and 
manual evolutions (29-31, 375-76, 395, 469-70, 914-15).
Only a small portion of the fireman's training curriculum

-32-



involves reading or writing (375-80, 489-90). Retesting 
and drills apparently insure that no one who really wants 
to be a fireman ever fails to graduate from the probationary 
fireman training school (388-89).

After graduation from probationary school, the 
emphasis is still on repeated drilling in manual evolutions, 
both individually and as a company, supplemented by lectures 
and question and answer sessions (368-71, 376-77, 498-99, 
696-97, 768, 772-73). Written materials play a very small 
role in a fireman's on-the-job training (687-89, 723, 779- 
80) .

The content of 0159 bears scant relation to the 
content of a fireman's job or training experience (219-30, 
238-39, 281-82, 323-26). Among the more obvious incongrui­
ties between the content of 0159 and the nature of a fire­
man's job are these:

its section on city government and current 
events, a full one-fifth of the examination, is 
plainly and concededly not job-related (850; see 
209-10, 293-94);

the "word meaning" section includes words 
(such as "attest" and "destitute") which obviously 

** play no part in a fireman's working vocabulary;
fully one-fifth of 0159 is taken up with 

"mechanical, scientific and mathematical" ques­
tions , thus measuring knowledge and skills which 
play a very minor role in a fireman's learning 
and job experience; and, perhaps most importantly,

-33-



the examination tests knowledge, skills and 
traits only through a written medium, yet by far 
the largest portion of a fireman's training, both 
at the probationary school and on the job, takes 
the form of oral communication, visual demonstra­
tions and drilling.

Examination 0159, of course, wholly failed to 
assess the candidates' relative possession of such import­
ant traits as the willingness to follow orders and the 
ability to function in physically taxing situations while 
under stress.

As Judge Weinfeld noted, the lack of job related­
ness of any series of questions in 0159 was exaggerated in 
effect by the lack of a good spread among the scores. Missing 
five questions could mean a difference of over a thousand 
places on the eligible list (32a).

In sum, examination 0159 emphasizes some areas 
wholly irrelevant to a firemanfe job and some having only 
minimal significance, while taking no account of other skills 
and traits at the heart of the job. On the record of this 
case, Judge Weinfeld had no basis to find examination 0159 
"job-related" -- with or without the concededly bad 20% on 
City affairs and current events and even if the preparation 
of the examination had been done in some tolerably profes­
sional way.

-34-



Argument 

POINT 1
The District Court's finding that exam­
ination 0159 had a significant and 
substantial discriminatory impact upon 
minorities was not clearly erroneous.*

Plaintiffs' burden

Contrary to the apparent belief of the amici 
(Vizzini's Brief pp. 4, 7 and JRC's Brief pp. 15, 19) it 
was no part of plaintiffs' burden to show that defendants, 
in establishing and administering 0159, acted with a con­
scious intent to discriminate against minorities. Rather 
than the usually fruitless search for motives, the test is 
one of effect: Did 0159 exclude from appointment a signi­
ficantly higher percentage of minority than non-minority 
candidates and potential candidates? Chance v. Board of 
Examiners, 458 F.2d 1167, 1175-76 (2d Cir. 1972), aff'g 330 
F.Supp. 203 (S.D.N.Y. 1971) ("Chance"). Bridgeport Guardians,
Inc, v. Bridgeport Civil Service Comm'n, dkt. no. 73-1356, 
slip opin. no. 894 at 4554-56 (2d Cir., June 28, 1973), 
aff'g in rel. part, 354 F.Supp. 778 (D. Conn. 1973) ("Bridge­
port" ). Once plaintiffs showed that impact, their prima

* Answering Intervenors' Brief, Point I (pp. 7-13), JRC' s 
Brief, Point I (pp. 9-15); Vizzini's Brief,(pp. 4, 7J

-35-



facie case was made out and the "heavy burden" shifted to 
defendants to show, at a minimum, that the discrimination 
resulted from use of a true merit examination, one that 
fairly measured the candidates' relative possession of the 
skills and abilities necessary to perform the duties of a 
fireman. Chance, 458 F.2d at 1176.

Apparently, defendants have been sufficiently 
persuaded by Judge Weinfeld's thorough analysis of the evi­
dence and their familiarity with the record and Chance and 
Bridgeport not to challenge here (def. brief, p. 3) Judge
Weinf eld' s finding that "there can be no doubt" of the discrim­
inatory impact of examination 0159 (22a). Intervenors do 
challenge this finding, but their arguments cannot with­
stand analysis.

The proven past discrimination

First, intervenors wholly ignore the facts that 
the evidence established 0159 to be but the latest in a 
long series of similar discriminatory civil service examin­
ations which have resulted in the present gross underrep­
resentation of minorities in the NYCFD in comparison with 
their presence in the general population (88—89, 423, 430—
31; Exh. 13, p. 3). There is a startling disparity: 5%

-36-



of NYCFD are minorities; the City's general population of 
minorities is over 30%.

As Judge Weinfeld noted, some courts have viewed 
such disparities as self-sufficient prima facie proof of 
discriminatory impact. See Pennsylvania v. Sebastian, dkt. 
no. 72-987 (W.D. Pa., filed Dec. 4, 1972) (0% minorities
in police department versus 4.5% in population)*; Western 
Addition Community Organization v. Alioto, 330 F.Supp. 536, 
538-39 (N.D. Cal. 1971) ("Western Addition”) (.22% minorities 
in fire department versus 14% in city's population); Penn
v. Stumpf, 308 F.Supp. 1238, 1243 n.7 (N.D. Cal. 1970) (2 to4% 
Negroes in police department versus 32 to 45% in the
population; motion to dismiss complaint denied) ; cf_. Parham 
v. Southwestern Bell Telephone Co., 433 F.2d 421, 426 (8th 
Cir. 1970) (Title VII litigation), and cases there cited.

Here, Judge Weinfeld, as have other courts, re­
garded the population statistics as confirmatory of plain­
tiffs' other evidence of discriminatory impact (Opin. 16a). 
See Carter v. Gallagher, 452 F.2d 315, 323 (8th Cir. 1971), 
adopted in rel. part, 452 F.2d 327, 331 (8th Cir.) (en banc), 
cert, denied, 406 U.S. 950 (1972) ("Carter") (0% minorities 
in fire department versus 6% in population); Bridgeport,
354 F.Supp. at 785 (3.6% minorities in police department

♦Document 28 in the record on appeal contains a copy of all 
unreported opinions cited in this brief.

-37-



versus 25% in population); Fowler v. Schwarzwalder, 351 F.Supp.
721, 723 (D. Minn. 1972) ("Fowler") (1 to 2% minorities in fire
department versus 4 to 8% in the population).

We submit that the extreme population-fireman 
disparity in this case is especially persuasive proof of 
the discriminatory impact of the similar previous examina­
tions when added to two other factors: (i) the admissions
of defendants attributing the disparity largely to these 
examinations (417-30, 1041-42; Exh. 13, p. 3); and (ii) 
the fact that the position of fireman is not one whose nature 
suggests that few minorities possess the necessary job 
skills and traits (16a). See Castro v. Beecher, 334 F.Supp. 
930, 936, 939, 943 (D. Mass. 1971), aff'd in part and rev'd 
in part, 459 F.2d 725, 732-33 (1st Cir. 1972) ("Castro"); 
of. Chance, 330 F.Supp. at 214 (declining use of population 
statistics in context of supervisory educational positions).

Defendant Lowery, perhaps in the best position of 
all the defendants to know, admitted that civil service 
examinations such as 0159 have proven to be a significant 
stumbling block for minorities seeking appointment as fire­
men (417-30). Defendants' expert agreed with ours (240-43, 
1041-42) that minorities almost invariably are disadvantaged 
in competing on written tests which emphasize verbal ability.

-38-



See Castro, 334 F.Supp. at 943; Arrington v. Massachusetts 
Bay Transportation Auth., 306 F.Supp. 1355, 1358 (D. Mass, i 
1969) ("Arrington"); Bridgeport, 354 F.Supp. at 791-92.

|

The sharp impact of 0159

Second and more important, we have here direct 
evidence of discriminatory impact: "hard statistical
data showing that [minorities] * * * fared demonstrably 
worse than others" on the challenged examination. Castro, 
459 F .2d at 731.

Examination 0159 was used to compile a competi­
tively ranked eligible list of applicants; it was not ad­
ministered on a simple pass-fail qualifying basis, as has 
been true of nearly all the written civil service examina­
tions challenged in prior litigation. Chance; Castro; 
Shield Club v. City of Cleveland, dkt. no. C 72-1088 (N.D. 
Ohio, filed Dec. 21, 1972) ("Shield Club"); Davis v . 
Washington, 348 F.Supp. 15 (D.D.C. 1972) ("Davis"); Western 
Addition; Pennsylvania v. O'Neill, 348 F.Supp. 1084 (E.D. 
Pa. 1972) ("O'Neill"), aff'd in rel. part by an equally 
divided court, 473 F.2d 1029 (3d Cir. 1973 (en banc);
Penn v. Stumpf, supra. Furthermore, only the highest
ranking candidates on the eligible list stand a real 
chance of being reached for appointment before the list
expires.

-39-



It follows that, contrary to intervenors' asser­
tion (brief , pp. 10-12), -the statistics most probative of 
the discriminatory impact of 0159 are not pass/fail ratios, 
such as were used in Chance, but rather the proportion of 
minorities among the candidates who succeeded in placing 
high enough on the eligible list to have a realistic chance 
of appointment. Contrary to defendants' statement (brief, 
pp. 15-16), in the few cases involving ranked eligible 
lists, the courts have recognized this important distinction 
between competitive and qualifying examinations. Bridgeport,
354 F.Supp. at 788 & n. 5, 792 & n. 8a; Fowler, 351 F.Supp. at 723; 
Arrington, 306 F.Supp. at 1357-58.

The evidence established that of the group of 
candidates on the 0159 eligible list with a realistic 
chance of appointment —  roughly the highest ranking finally 
qualified group of 2,418 candidates —  only 4.5% are minor­
ities as distinguished from the 11.5% of minorities in the 
total candidate population. Although 18.4% of the non­
minorities who took the examination attained a place among 
this group of top ranking candidates, only 6.6% of the 
minority takers did so —  a disparity of almost 3 to 1.

Judge Weinfeld was correct in holding (15a-17a)

-40-



that this severe disparity more than meets the test of "a 
significant and substantial" discriminatory impact. Chance, 
458 F.2d at 1175. It is almost identical to the quantum 
of impact shown in Bridgeport. Bridgeport, 354 F.Supp. at 
784-87 (minorities 11% of applicants but only 3.6% of police 
force, and whites passed exam at a rate 3-1/2 times that 
of minorities). It is noticably more severe than the im­
pact shown in other cases, including Chance itself. Chance, 
330 F.Supp. at 210-13 (average passage rate for minorities 
was 31.4% versus 44.3% for whites and on seven examinations 
minorities passed at a higher rate than whites); 0 1 Neill,
348 F.Supp. at 1089-90 (whites passed at a rate less than 
twice that of minorities); Castro, 334 F.Supp. at 942 (whites 
passed at a rate about 2-1/2 times that of blacks).

The reliability of plaintiffs' 
statistics____________________

The statistics on which Judge Weinfeld's finding 
of discriminatory impact is based are reliable both as 
to the method used to collect them and their completeness; 
his finding of reliability was hardly "clearly erroneous".

Intervenors seem to question the bona fides of 
plaintiff Vulcan Society's headcount, the source of the 11.5% 
minority 0159 participation statistic (Int. brief, p. 8).

-41-



But this headcount could not have been somehow rigged 
to affect this litigation. Its results were reported to def­
endants on September 20, 1971 (Exh. 12), long before this 
litigation was contemplated and well prior to the NYCFD's 
own 1972 ethnic study of the highest ranking group of candidates 
(Exh. 8). Thus at the time the headcount was conducted and 
its results reported the Vulcans could not have known what

i
statistics would aid a Chance type complaint.

Moreover, the headcounters were subject to rigorous 
cross-examination at the hearing, and Judge Weinfeld had full 
opportunity to assess their credibility and the reliability of 
their count. Similar methods have been accepted in this kind 
of litigation, and to deny the use of this type of evidence is 
to place an insuperable obstacle to assertions of constitutional 
rights. O'Neill, 348 F. Supp. at 1088-89.

Intervenors also attack another aspect of plain­
tiffs' proof: the use of the NYCFD ethnic survey of the
highest ranking finally qualified group of candidates, 
which established that only 4.5% of this group were minori­
ties. Intervenors argue, as defendants did at length before

42-



Judge Weinfeld, that the observed sharp decline in the per­
centage of minorities from the 11.5% in the entire candidate 
population to the 4.5% in the finally qualified group should 
be attributed to factors other than poor minority perform­
ance on 0159. Like defendants below, intervenors offer 
nothing besides implausible conjecture in support of this 
thesis (brief, pp. 8-12).

Intervenors list eight possible ways a candidate 
could have been barred from the finally qualified group 
even though he had scored well on 0159 (brief, pp. 2, 9-10). 
Of these, the latter five can be quickly dismissed for they 
relate to automatic grounds of disqualification. It is 
inconceivable that more than a miniscule number of candi­
dates bothered to take examination 0159 when the notice of 
examination (Exh. 4) clearly told them they would be dis­
qualified automatically regardless of their test performance 
because they did not have the minimum height, or had been 
convicted of petty larceny, or lived in Connecticut, and 
so on. The possibility that defendants' character investi­
gation of candidates could have influenced the percentage 
of minorities in the finally qualified group must also be 
dismissed for defendants tell us that the NYCFD ethnic count 
was performed prior to the character investigation (def. 
brief, p. 2). Moreover, defendants' counsel informed the

-43-



Icourt that only four 0159 candidates had been disqualified 
on grounds of character (P. App. 3a).

This leaves only the qualifying physical and 
medical examinations as possible eliminators of high scor­
ing minority candidates. There is no reason to presume 
that black and Hispanic candidates failed either of these 
examinations at rates much higher than non-minority candi­
dates. Defendants possess the name and address of every 
0159 candidate who did fail these tests. However, despite 
every opportunity at the hearing to do so, they did not 
even attempt to show that minorities were disproportionately 
disqualified by these examinations. That they have or 
could have performed such a study is clear from the record, 
which contains a study relating to the 1968 examination 
(Doc. 27, Exh. F).

Intervenors raise another "possibility": in a city
with a high unemployment rate among minorities they ask the 
Court to believe that a large number of minority candidates 
who performed well on 0159 simply "dropped out", choosing 
not to appear for the later qualifying steps in the selec­
tion procedure (brief, p. 10). The proposition is absurd 
on its face. Again, defendants knew the name and address 
of each dropout yet abstained from any attempt to demonstrate

-44-



that a disporportionate number were minorities.

Moreover, there is a statistical flaw that infects 
this whole notion that the subsequent qualification factors, 
and not the written examination, might account for the 
whole discriminatory impact. Intervenors just cannot ignore 
the consequences of the sharp 3 to 1 disparity in minority 
versus non-minority survival. Our expert, Dr. Siegmund,

i
|proved that this 3 to 1 disparity could be said not to re­

flect minority disadvantage on the written examination only 
if it be assumed that minorities were eliminated during 
the subsequent qualifying procedure at a rate 2.7 times 
that of non-minorities (531-36). Such a 2.7 to 1 elimina­
tion factor is scarcely conceivable as a matter of proba­
bilities, and no evidence has been presented to support it. 
The only admissible conclusion is Judge Weinfeld's (22a):

"Here ftiere can be no doubt, whatever the 
relative impact of component parts, that 
in end result there was a significant and 
discriminatory impact upon minorities 
attributable in considerable part to the 
written examination."

This Court's Chance case was decided on the basis 
of statistics which were less reliable and complete than 
those that were before Judge Weinfeld. This Court in Chance 
considered the job-relatedness of only the written examin­
ation component of a selection procedure that also involved

I

-45



an oral examination and an assessment of training and ex­
perience. All three components were weighted in determin­
ing a candidate's final score on the entire procedure, and 
the trial court had available only statistics based on these 
cumulative final scores. Chance, 330 F.Supp. at 217, 223 
n. 25. In the absence of any evidence that the oral test 
or the training-experience component discriminated against 
minorities, this Court and the District Court had no diffi­
culty invalidating the written examination as discriminatory. 
So here, there being no evidence that the qualifying stage 
of the procedure eliminated a significant number of high 
scoring minority candidates, the demonstrated impact of 
the entire procedure must be attributed to its only other 
component —  examination 0159. See O'Neill, 348 F.Supp. at 
1088-90, 1094; Chance, 458 F.2d at 1172.

Intervenors raise one final quibble to plaintiffs' 
proof of discriminatory impact. They say that Professor 
Siegmund's analysis of the first 4000 rank positions on the 
eligible list is invalid since as many as several hundred 
candidates ranking below 4000 received the same grade score 
on the examination (brief, p. 12). But plaintiffs' proof 
was not limited to sorn artificially restricted portion of 
the eligible list. Professor Siegmund extended his analysis 
of the eligible list down to position 7987,thus including

-46-



all candidates that defendants called for the qualifying 
process (182-83). Professor Siegmund found the same clear 
picture of discriminatory impact among the candidates ranked 
below 4000 as he did for those ranked above 4000 (593-94). 
Furthermore, his analysis of the entire group of candidates 
established an unmistakable trend for the proportion of 
minorities to increase the further down the eligible list 
one progresses, although even in the 7,000 to 8,000 rank 
minorities are clearly underrepresented in proportion to 
their presence in the total candidate population (595-99; 
Exh. 19).

All the evidence confirms and none rebuts the 
fact that written exam 0159 discriminated against minorities. 
The total failure of defendants even to attempt a rebuttal 
of plaintiffs' evidence buttresses the standing of our proof. 
Carter, 452 F.2d at 323; O'Neill, 348 F.Supp. at 1094 
(failure of defendants to rebut plaintiffs' "imperfect 
statistics" supports reliance on them).

It is true that statistical proof of this nature 
concerning discriminatory impact depends on an assessment 
of the probabilities that the demonstrated varying levels 
of performance of minorities and non-minorities could not 
have been the result of chance. But all fact-finding in­
volves an assessment of probabilities, and the statistical

-47



probabilities demonstrated in this case were overwhelming 
—  never less than 100 to 1 and up to 10,000 to 1 (527-58 ,
599-600). See United States Equal Employment Opportunity 
Commission, Guidelines on Employee Selection Procedures 
§1607.5(c)(1), 29 C.F.R. §1607.1-14 ("EEOC Guidelines"),
at §1607.5 (c) (1) (probability of occurrance by chance of more 
than 20 to 1 is statistically significant); Chance, 330 F.Supp. 
at 210-13; Bridgeport, 334 F.Supp. at 784. When the 0159 
statistics are confirmed by the general population statistics, 
it becomes frivolous to urge that Judge Weinfeld's finding that 
0159 had a substantial discriminatory impact upon minorities 
was "clearly erroneous." Bridgeport, slip opin. at 4558.*

*As to Vizzini's claim that the District Court had no jurisdic­
tion because we did not exhaust the administrative remedy by 
taking our complaints of discrimination to the Civil Service 
Commission (brief, pp. 3-4): our complaint is not directed against 
the accuracy of specific answers in an "answer key", and thus there 
is no administrative review offered or required. Paroli v. Bolton, 
57 Misc. 2d 952, 959, 293 N.Y.S. 2d 938, 945 (Sup. Ct. Duch. Co. 
1968). This is a civil rights case under the 14th Amendment to 
the United States Constitution and the Civil Rights Act and the 
best and primary place for such a case is in the federal courts. 
Chance; Castro; Bridgeport; etc.

-48-



I I

It was not clearly erroneous for the 
District Court to find that defendants 
failed to meet their heavy burden of 
proving, at a minimum, that examination 
0159 was job-related. *________________

All our opponents —  save it appears Vizzini at 
one point (brief, p. 4) -- concede that once a discriminatory 
impact is shown the "heavy burden" shifted to defendants to 
justify the impact by demonstrating, at a minimum, that 0159 
has a demonstrable and substantial relation to job perform­
ance: that it succeeds in ranking candidates in accordance
with their actual capacities to perform the job and not in 
accordance with irrelevant factors such as test-taking 
abilities. Chance, 458 F.2d at 1176; Bridgeport, slip opin. 
at 4557; Castro, 459 F.2d at 732-33. Defendants had to 
show, in short, that 0159 was "reasonably capable of measur­
ing 'what it purports to measure'" and that it was so good 
as to be given 100% weight in the weeding and ranking pro­
cess. Chance, 330 F.Supp. at 216; Bridgeport, 354 F.Supp. 
at 792; G. Cooper & R. Sobol, Seniority and Testing Under 
Fair Employment Laws: A General Approach to Objective
Criteria of Hiring and Promotion, 82 Harv. L. Rev. 1598,

* Answering Defendants' Brief, Points I and II (pp. 8-28) 
and Intervenors' Brief, Point II (pp. 13-30); Vizzini's 
Brief, (pp. 5-8); JRC Brief, Point One (pp. 9-16) .

I
t
*

-49-



1667-68 (1969).

Our opponents say, however, that defendants met 
their burden at the hearing on 80% of the examination and 
the District Court was wrong in finding that the entire 
examination was "unconstitutitonal". In various ways, they 
would make three points:

1. Judge Weinfeld was wrong in suggesting that 
the unprofessional manner of making up 0159 was a ground 
for ruling out 0159.

2. Judge Weinfeld only affirmatively found that 
20 questions were bad and, as to the balance, he made no 
finding at all; the consequence, they say, is that the re­
lief ought to be merely a discarding of the 20 questions
and a regrading of the candidates based on the 80 questions 
that are left.

3. The lack of a competitive physical was no 
ground to rule out 0159, in part or in toto, because plain­
tiffs did not prove that the physical examination had a 
discriminatory impact.

All three points ignore settled law, misread 
Judge Weinfeld's opinion and ignore the record.

The unprofessional manner of making 
up 0159 —  defendants' burden was not met

Judge Weinfeld, as we have observed, gave def-

-50-



endants every benefit of the doubt on the law and yet they 
failed (pp. 9-13, supra)♦

First, he did not require defendants to meet the 
"compelling necessity" test left open by this Court in Chance; 
that is, he did not require defendants to show, even if their 
questions were job-related, that there was no other way to measure 
the worth of candidates that would, at the same time, avoid a 
discriminatory impact.

Second, he did not rule out defendants' case simply 
because over the years they have eschewed the two best ways of 
establishing valid examinations: by doing a "predictive validity" 
study or a "concurrent validity" study. Judge Weinfeld did not 
bar defendants on this ground, even though there is case law 
that holds that in the absence of these two professionally 
recognized best ways, no examination can be validated. See 
Fowler v. Schwarzwalder, 351 F.Supp. at 725-26; cf. EEOC 
Guidelines, 29 C.F.R. § 1607.5(a).

And let there be no mistake, defendants had ample 
opportunity over the years to do one of these two so-called 
"criterion-related" validation tests.

A "predictive validity" test is one that compares 
results on tests to job performance. The "truncation-of- 
sample" problem that defendants say makes it unfeasible

-51-



to do a predictive study is not a real problem in this case.
There is truly nothing to this claim, which is essentially 
that you cannot adjudge the merits of the examination 
because you cannot tell how people who failed would have 
performed on the job. The tests for firemen are not merely 
pass-fail; they are graded and ranked. Over the years, 
tests such as 0159 have been given to many thousands, who 
passed and then went on to the job. The NYCFD actually has 
graded examination records of people who went through the 
training program and has all sorts of performance records
(290, 309-12, 381-94 823, 997-1004, 1029-33). The raw
material is there. As to "security" problems, they have been 
overcome elsewhere; it requires only a jot of energy and a 
little imagination.

fThe short answer to the unfeasibility claim is that 
up to now defendants have never even attempted to try either 
kind of criterion-related studies. Moreover, criterion-related 
validation studies are in process for the New York City Police 
Department and for two other areas; they have been made all 
over the country; and defendants have admitted that only recently 
they hired a consultant to determine whether criterion-related 
studies were, in fact, feasible (987-89; P. App. 10a). See Fowler, 351 
F.Supp. at 726-27 (reviewing use of concurrent validation in 
Minneapolis for firemen); O'Neill, 348 F.Supp. at 1091 (reviewing

-52-



use of predictive validation in Detroit and Chicago for 
policemen).

Third, Judge Weinfeld accepted arguendo the pro­
position that defendants could rest on "content" validity; but 
even here Judge Weinfeld relaxed the rules, and still defendants 
could not pass muster.

Content validation involves a determination of 
whether the content of the employment test (that is, the 
types of skills it requires to give correct answers or the 
types of characteristics it assesses) reflect accurately 
the skills, abilities and characteristics actually necessary 
to perform well on the job. In a content valid, or "job- 
related/' examination the relevant job skills or characteri­
stics are represented on the examination in the same rela­
tive weight and at the same level of difficulty as called 
for on the job (197-98, 314, 849-50, 867).

As Judge Weinfeld observed, the experts and the 
case law tell us that there is a prerequisite for determining 
content validity: a job analysis that thoroughly and care­
fully explores the content of the job. The logic is simply 
that without a job analysis it is impossible for a test~ 
preparer to construct an examination which faithfully re-

-53-



j

fleets that job content (199-202, 234-35, 895,899). EEOC 
Guidelines, § 1607.5(a); see Bridgeport, slip opin. at 4558-59.

j
Defendants have never proposed a job analysis; 

none has ever existed (99-104). Defendants prepared an 
examination which not even their own expert would have used 
to select firemen (1027) . Their expert, for his part, was 
not able to compensate for defendants' failure. He was un­
able to conduct a proper content validation study of 0159 
because of the extremely short time he had available to 
review the examination (926). He devoted less than one day 
to what he termed a "brief job analysis" (830, 968), while 
acknowledging that a through analysis would take from a 
minimum of three or four days to one or two weeks, depending 
"on what I found as I proceeded" (968-69).

The absence of professionally accepted validation 
procedures could have been the be-all and end-all. But Judge 
Weinfeld offered to let the defendants deviate somewhat from 
professionally recognized procedures and looked to the evidence 
in the record to see if there was anything that could ensure 
the reliability of 0159.

-54-



As advocates, we do not avoid the characterization 
that Judge Weinfeld, out of consideration, chose to avoid: 
the procedures adopted by defendants were horrendously un­
professional; they were amateurish. Defendants followed 
none of the safeguards that would give a court the slightest 
confidence that any part of this examination or the relative 
importance given to parts was job-related. This is perhaps 
best shown by comparing the 0159 procedures with the far 
more careful method of test preparation that still gave 
inadequate results in Chance. The evidence in Chance showed 
that the Board of Examiners had prepared their examinations 
by:

(1) obtaining a statement of the duties of 
the position from the Board of Education;

(2) appointing a panel of experts to specify 
the most significant responsibilities of the 
position;

(3) consulting well-known educators and 
informed laymen with respect to the qualities 
for which candidates should be tested; and

(4) constructing the actual questions with 
the aid of these experts, educators and laymen.

(330 F.Supp. at 218).

In Chance, defendants submitted affidavits from 
respected test and education experts stating that the Board 
appeared to be "following testing methods that reasonably 
assured content valid examinations." 458 F.2d at 1174.

-55-



Indeed, the District Court found that the "Board has adopted 
procedures designed for content validity", although it con­
cluded that the goal of validity had not been attained.
330 F.Supp. at 220.

Here, in startling contrast, the examiners who 
prepared 0159 and their supervisors:

had available only a cursory and legalistic 
description of a fireman's job (Exh. 4) which 
was of no use in identifying the skills, traits 
and abilities necessary in the job and their re­
lative importance;

prepared 0159 under the misapprehension that 
its purpose was to test the areas of knowledge 
relevant to performance only at the probationary 
fireman training school (94-96,313, 135-36);

did not consult with a single outside expert 
or informed layman, much less a panel of them;

consulted no one in the NYCFD concerning the 
content of 0159 save Chief Hartnett, whose sugges­
tion that a civics section be included was accep­
ted uncritically since "we had no reason to dispute 
him" (89);

not only disputed but rejected outright the 
request of Commissioner Lowery for the NYCFD that 
a competitive physical examination be made a part 
of 0159 and given a 50% weight in the ranking of 
the candidates (439-42);

arbitrarily selected a passing grade of 70 
simply because it is used for other civil service 
examinations (129) [£f. Castro, 459 F.2d at 729] ;
and

gave no consideration to whether 0159 con­
tained culturally biased questions or would have a dis­
criminatory impact on minorities [cf. Fowler, 351 F.Supp. 
at 724-25 (defendants made a good faith attempt to

-56-



avoid cultural or educational bias by elimina­
ting some questions used on prior examinations)].

Judge Weinfeld was eminently justified in not 
crediting the only evidence defendants offered of the job­
relatedness of 0159: the testimony of an expert "who was
without practical experience in the field and who admitted 
that he had not sufficient time to perform a thorough job 
analysis (33a; 830, 926, 968-69). Unlike the Chance def­
endants , the defendants here were unable to find any expert 
willing to testify that their method of test preparation 
procedure had "reasonably assured" a content valid examina­
tion. Chance, 458 F.2d at 1174. Their Mr. McMann would 
say only that it was "possible" —  presumably meaning by 
accident —  that defendants' procedures could have resulted 
in a job-related examination (798-99). Yet Mr. McCann also 
testified that he himself "would not have used" 0159 to 
select firemen, "God forbid" that he had prepared it (1026- 
27) .

i

The fact is that Mr. McCann conceded that 20% of 
0159 was bad and his attempts to justify the rest of the 
examination procedures, including its omission of a competi­
tive physical, suffered from a complete absence of empirical 
support; but the fault was not his. Without statistical 
proof of validity and without the safeguard of careful test

-57-



preparation procedures any attempt to establish job-relatedness 
is bound to be speculative. The experts for each side can 
only look at the "face" of the examination and proceed to 
give the court their predictably conflicting "it-seems-to- 
me" opinions. That is what happened here. While we believe 
that a reading of the record demonstrates that plaintiffs' 
expert was far more convincing than Mr. McCann on the question 
of "face" validity, the important point is that expert testi­
mony alone seldom will satisfy a careful judge that an 
examination is job-related. See G. Cooper & R. Sobol, supra,
82 Harv. L. Rev. at 1657-58; R. L. Thorndike, Personnel 
Selection 5-6 (1949), quoted in Chance, 330 F.Supp. at 216.

In sum, defendants introduced no empirical evidence 
of 0159's validity and they did not follow minimal procedures 
designed to achieve validity in preparing 0159. Thus, 
they gave no assurance whatsoever to Judge Weinfeld that 
0159 was a job-related merit examination, and we submit that 
on the record he had no real choice but to strike down the 
entire examination. To do otherwise with respect to any 
part of this carelessly prepared examination would have been 
to make a mockery of the rule that defendants may not use 
a demonstrably discriminatory examination unless they meet 
their heavy burden of proving its job-relatedness by "per­
suasive proof". Castro, 459 F.2d at 732-33.

-58-



Defendants' burden was not met 
on the first 80 questions_____

The record will not support the argument that 
defendants met their burden on the first 80 questions.
The evidence and Judge Weinfeld's findings are to the con­
trary.

First, the entire examination, not just the 20 
questions in the civics section, was infected by the fatal 
defect of careless preparation. Not one question on the 
examination was based upon any kind of job analysis (care­
ful or careless), much less validated through a criterion- 
related or content study. The only evidence in the record 
supporting the first 80 questions was the "total[ly] un­
persuasive" and "vigorously controverted" testimony of 
defendants' paid expert (31a, 33a).

Second, the record before Judge Weinfeld demon­
strates, in fact, the absurdity of treating the first 80 
questions on 0159 as a fair and complete examination for 
firemen or as one giving proper relative weight to the re­
quired skills for the job. Fully 25% of this examination 
structure would test only for math and science ability, 
while the record shows that these skills comprise only a 
very small part of the jDb (18, 71-72, 498-502, 776). The 
record also shows that low scorers were at a greater dis­

-59-



advantage in that section than they were in the civics 
section (Exhs. 22 and 27) . Furthermore, no account would 
be taken in the ranking of candidates on the eligible list 
of their relative physical-athletic qualifications for the 
job, their ability to follow oral instructions under stress, 
and their ability to learn from demonstration —  the essence 
of the fireman's job and training (p.18, supra).

iThen there is nothing in the record to indicate 
how the examiners selected the 20 words included in the 
"word meanings" section (questions 21-40) of the examination, 
and Mr. McCann's testimony on the wisdom of using words 
from firemanic materials hardly clarified matters (955-60). 
What is clear is that of the four words on which low scor­
ing candidates were at the greatest competitive disadvan­
tage —  "raze," "attest," "apex" and "destitute" (961; Exhs. 
22 and 27) —  only "raze" seems to have any relation to a 
fireman's vocabulary,* or indeed to the working vocabulary 
of any other non-professional position. And "raze" presents 
a spelling ambiguity problem that would vanish if the word 
were used on the job in sentence context (900-01).

* It develops that the word "apex" does have a firemanic 
usage but one that would be known only to persons on 
the job (9 56) .

-60-



All parts of 0159 tested verbal comprehension 
only in a very narrow and selective manner, through written 
multiple choice questions. Defendants' expert acknowledged 
(1024-25) that a candidate's demonstrated verbal compre­
hension ability might vary significantly when tested orally, 
as distinguished from written multiple choice questions 
(1024-25). Minority candidates are at a greater disad­
vantage on written as distinguished from oral tests of 
comprehension in light of the low reading levels prevalent 
in the New York City public schools in minority areas (423, 
437-38); yet the fireman's training is not communicated 
so much in written form as it is orally and through con­
stant visual demonstrations and drilling (29-31, 469-70,
779-80). Thus 0159 —  with or without the last 20 questions 
on physics —  at once measures an ability which is infre­
quently called upon on the job and as to which minorities are 
at a distinct disadvantage.

The total emphasis of 0159 on written verbal 
skills as demonstrated on a written examination, heedless 
of the actual nature of the job and contrary to the NYCFD's 
own request for a competitive physical (439-42, 451-52, 704-06) 
just cannot be rectified by recognizing an examination 
comprising the first 80 questions of 0159. Judge Weinfeld 
was far from erroneous in rejecting any proposal to regrade

-61-



0159 on the basis of the first 80 questions.

The lack of a competitive physical 
—  strong evidence of defendants' 
failure to carry their burden_____

Defendants and intervenors attack Judge Weinfeld's 
finding that the lack of a competitive physical examination 
proved —  even to his lay mind —  that 0159 did not fairly 
measure and rank the applicants for firemen of the NYCFD.
One principal argument is offered by both: since we could
not show that minorities would do better than non-minorities 
on a competitive physical, it matters not to us whether the 
test for physical prowess was on a competitive or a non­
competitive basis. In addition, defendants seem to suggest 
that "although physical ability is important to a fireman's 
job" (brief, p. 17) there is discretion in the Civil Service 
Commission to keep it un-competitive (brief, pp. 14-16).

Defendants and intervenors' principal argument 
here confuses the two major issues in the case and imposes
on plaintiffs a burden that no case forces upon them and 
that logic dictates should not be forced on them.

Defendants and intervenors misconceive the rele­
vancy of the physical aspects of the entrance procedure to 
Judge Weinfeld's holding. The trial judge rightly considered

-62-



the lack of a competitive physical on the issue of whether 
0159 was job-related, once we had established by other 
evidence that written 0159 had a discriminatory impact.
It was on the question of whether 0159 was job-related the 
proof came in that the firemen's job was largely physical 
(7, 13-14, 440-41, 452, 705-06, 766, 771-72). When 0159 
failed to include a competitive physical, although many 
examinations had in the past (440-41), it was clear that 
it was not properly testing one of the important skills 
and characteristics necessary in the making of a good fire­
man. Examination 0159 was just not doing what it was sup­
posed to do: rank candidates according to their ability
to do the fireman's job. The resulting eligible list was 
one that did not fairly estimate the relative qualifications
of the candidates for the job. See Bridgeport, 354 F.
Supp. at 702.

To require that we show that a missing link in 
a truly job-related examination would have a discriminatory 
impact is to ask us to do what is impossible for us. At 
this juncture we do not know the competitive weight which 
defendants will assign to a future physical component -- 
after, hopefully, performing a criterion-related validation 
study or a proper job analysis. It could be that 100% will 
be assigned to a competitive physical, with a written test

-63-



as only qualifying; that has recently happened for tests 
for sanitationmen in New York City. Maybe competitive 
physical examinations will be given 50% weight, as defend­
ant Commissioner Lowery favored (737-38); 25% weight as 
Chief O'Hagan recommended (711); or some other weight. It 
may be that competitive physicals may have to be something 
entirely different from what they have been in the past in
order properly to test candidates. The point is that 
Judge Weinfeld quite properly did not place defendants in
a "straight jacket" (JRC brief, p. 14) by dictating every 
detail of the next fireman examination. Rather, he simply 
ordered defendants to prepare the new examination "in > 
accordance with professionally accepted methods of test
preparation" (Order, Aug. 2, 1973, 5[3; Doc. 32).
Only after defendants do their duty will we know what a
job-related examination looks like, and then we can judge 
the results.

Of course, we hope that a job-related examination 
will demonstrate that minorities are no less qualified 
than non-minorities to be firemen. But this is not our 
burden, and to impose it would be to ask minorities to do 
what they cannot possibly be equipped to do make up a job- 
related examination. Our opponents would turn Chance in­
side out: despite a proven discriminatory impact, a non

-64-



job-related examination can be used, because of the inability
j

of plaintiffs to show that a job-related test would eliminate
ithe discriminatory impact upon minorities.
i

Defendants' present selection procedure discrimin­
ates against minorities and is not job-related. Defendants 
must now do their constitutional duty and develop a proper 
examination. If it, too, proves to have a discriminatory 
impact upon minorities, there will be time enough for the 
Court to address the hitherto unresolved question of whether 
defendants must search for the least discriminatory fea­
sible job-related examination. See Chance, 458 F.2d at 1177.

We don't really understand defendants' argument 
about the need to give discretion to a civil service commis­
sion and that it does not matter that rank on the 0159 
eligible list was determined solely on the basis of a written 
examination (brief, pp. 14-18). Defendants apparently 
believe that you can arbitrarily select any portion of 0159 
—  the math and science section, for example -- and make 
the candidates1 performance on that portion the sole deter­
minant of rank on the eligible list while making all the 
others qualifying. In the example, such an approach would 
give a grossly unfair advantage to those candidates skilled 
in math and science and, at the same time, unfairly preju­
dice other candidates whose overall qualifications for the

-65-



job were far superior. The public interest would be damaged 
by the selection of firemen on such a slanted basis.

Yet this is precisely the situation that prevails 
with respect to examination 0159, as Judge Weinfeld held.
By treating the physical component of the job as requiring 
only a minimum level of competency and turning the candi­
dates' chance of appointment entirely on a competitive 
written examination, defendants grant an unfair advantage 
to verbally skilled candidates and all but ignore the 
abilities of an outstanding athlete with sufficient, but 
not outstanding, verbal skills. We might have a good many 
scholars in the NYCFD, but we might be sacrificing such 
things as, say, life-saving.

In sum, the only way relative skills to do the 
job can be found out is by testing and grading performances 
on all important tasks relevant to the job. Without a 
competitive physical, no one can say we choose the best 
qualified applicants for firemen.

i

- 6 6 -



POINT 3
Judge Weinfeld's interim relief remedy 
is not excessive and, in fact, falls 
short of the relief he should have 
ordered under all the "equities"; 
a remand there should he on this point, 
but only to establish a 1-to-l ratio 
of appointments* **_______________________

Intervenors and the JRC complain about Judge
Weinfeld's interim relief. Intervenors say that Judge
Weinfeld's interim relief should have been to regrade 0159
without the 20 questions on civic events and simply make
appointments from that list; if a two-list system were used,
however, they say that the appointments should be made on
the basis of 7 non-minorities to 1 minority. The JRC says
that any appointments on a "quota" basis are unconstitutional

**•—  even as interim relief in an emergency.

We say that intervenors are wrong, that the JRC 
is wrong and that Judge Weinfeld, too, was wrong. We urge 
that Judge Weinfeld —  if he had to grant interim relief —  

should have ordered relief that appointed one minority for every 
appointment of a non-minority. Thus, we are on this point 
both quasi-appellees and full-force appellants.

* Answering Intervenor1s Brief, Point III (pp. 30 46) and 
JRC1s Brief, Point Two (pp. 16-25).
** As far as defendants are concerned, they have no grounds 
for complaint because they suggested a 2-to-l ratio for 
appointments and Judge Weinfeld did better for them.

-67-



Rebutting Intervenors1 points

Intervenors' first contention that the appointments 
should be made on the basis of regrading the first 80 ques­
tions has already been answered (pp. 59-62, supra). There
would be no justice to it, for there is no way we can say 
that those 80 questions were job-related; we submit that
the evidence at the hearing was quite the other way.

Intervenors' second point that a "proper calcula­
tion of the quota leads to a 7 to 1 ratio" contains several 
fallacies and overlooks salient facts. Intervenors say 
that 11-1/2% of the examination-takers were minorities and 
the aim should then only be that 11-1/2% of all appointments 
from 0159 in the interim period should be minorities. Cal­
culating that 912 appointments will be made under the 
Court's order to the cut-off date of June 30, 1974, and 
adding the 302 appointments made already (of which 8 were 
minorities), Intervenors say that the matters will be set 
aright if 132 minorities are appointed out of the 912 
appointments to be made henceforth a ratio of approxi­
mately 7-to-l.

We list briefly the factors that this argument
ignores;

1. Judge Weinfeld was ordering relief on an

-68



"equitable basis" in light of "all the factors" shown at a ] 
7-day hearing to meet an emergency; and he was doing so

|reluctantly.
2. There is no guarantee that defendants will 

make all the appointments that can possibly be made every 
two months; they can cut it off at any time under a job freeze
or because of some sort of drying up of the budget; indeed, 
it was that very possibility that played a part in defend­
ants' own proposal for a 2-to-l ratio.

3. In doing equity, Judge Weinfeld had to be 
mindful of the testimony in the record that written examina­
tions like 0159 over the years have created a "chilling 
effect" on getting minorities to come out to 'take examina­
tions such as 0159 (19, 422-26).

4. Judge Weinfeld had to be mindful, too, of the 
fact that the 95% white NYCFD has caused resentment in the 
minority communities, which has also had a "chilling effect 
on appointments; and, importantly, the testimony of officials 
of the NYCFD underlined the need to get black and Hispanic 
firemen into the force to dissipate resentment —  for the 
good of the City (407-18, 429-30; Exh. 13).

5. The composition of the NYCFD is 5% minorities, 
while the population as a whole shows a 32% minority com­
position for NYC in the age group that is eligible to be 
firemen (457-58, 633-36).

-69-



6. Creating a two-list situation and some sort 
of significant ratio can act as a spur to a lethargic 
bureaucracy seemed bent on taking its time to prepare a new 
examination and administering it.

7. In doing equity, the trial court had to con­
sider the fact that examinations similar to 0159 over the 
years obviously had a discriminatory impact.

8. In point of fact, even if all appointments 
were made through June 30, 1974 under the District Court's 
25% minority allocation (one out of every four), there 
would be the most imperceptible corrective effect on the 
under representation of minorities in the NYCFD. Even 
assuming all possible appointments were made up to the 
June-of-1974 cut-off date, there would be 228 minorities 
appointed and 684 non-minorities. When these totals are 
added to the approximately 500 minorities and 9,500 non­
minorities now in the NYCFD, the resulting minority percent­
age in the job is 6.7% as opposed to the present 5% (457-58).

In view of all other factors, it is impossible 
to say that Judge Weinfeld abused his discretion in favor 
of plaintiffs.

70-



As to the JRC's contentions

The JRC argues that all quota systems are uncon­
stitutional , without citing a case to help it. The short 
answer is that none of us is arguing for quotas; we simply

responded to an emergency while trying to do justice to 
those that have litigated, until a new fireman's examina­
tion can be fashioned.

Plaintiffs are unhappy with using 0159 in any way 
and would be happy to stop all appointments right now. Examina­
tion 0159 just couldn't be used as it stands; surely that 
would be unjust. The fact is that courts have allowed this 
type of interim adjustment in response to emergencies and in 
balancing the public need against some possible injury.
Moreover, this Court has approved real quotas in order to 
reach an equitable result for minorities that have been 
excluded by unfair civil service examinations. See Bridgeport, 
slip opin. at 4561-65 and the cases there cited.

Furthermore, no one has been deprived of any rights; 
none of the takers of 0159 has a right to demand appointment 
from an unconstitutional eligible list. Thus, a two-list

-71-



system violates no one's constitutional rights; and it is 
a recognized, rational response —  albeit a reluctant re­
sponse —  to the apparent needs of the public.

Our position as appellants

We submit the equities called for something more 
than what Judge Weinfeld did. Examination 0159 is an ille­
gal examination; the evidence is that it followed the pattern 
of past examinations. It is no accident that the minority 
population of the NYCFD is 5% and the minority population 
of the City's relevant age group is 32%. Indeed, Judge 
Weinfeld used those figures as confirmatory of the impact 
of 0159 itself. At least, Judge Weinfeld should have used 
the interim relief, as so many courts have done,to help 
eradicate some effects of past discriminatory practices.
Judge Weinfeld seems to have ignored the principle stated 
in Bridgeport by this Court (slip opin. at 4564):

"We commence with the basis tenet that the district court, sitting as a court of equity, has wide 
power and discretion to fashion its decree not 
only to prohibit present discrimination but to 
eradicate the effects of past discriminatory 
practices."

Judge Weinfeld's interim relief of 3-to-l will 
have no impact at all in rectifying past inequities. It 
does not take full account of the possibility that the City 
may stop making appointments. There is an unfairness to those

-72-



litigants in Judge Weinfeld's minor response. They have 
litigated hard, and yet they find that they have accomplished 
little in tangible results.

i
In fact, the interim relief granted is much weaker 

than that granted by the courts in cases where the statistics 
of discrimination were less dramatic than those found here. 
Castro, 459 F.2d at 737 (District Court authorized to order 
appointments at a ratio of up to one minority for every one 
non-minority); Carter, 452 F.2d at 331 (appointments mandated 
at a ratio of one minority for every two non-minorities);
0'Neill, 348 F.Supp. at 1086, 1105 (appointments mandated 
at a ratio of one minority for every two non-minorities); 
see United States v. Lathers, Local No. 46, 471 F.2d 408, 413 
(2d Cir. 1973) (requirement that union grant work permits to 
minorities and non-minorities at a ratio of 1-to-l sustained 
in a Title VII litigation), cert, denied, 41 U.S.L.W. 3645 
(June 11, 1973).

Most noteworthy of all is this Court's recent 
affirmance of Judge Newman's remedy in Bridgeport. Judge 
Newman ordered appointment ratios ranging from 501 to 75%

-73-



minority until the achievement of true quotas —  a specified 
percentage of minorities in the job position. Bridgeport, 
slip opin. at 4561-65.

In sum, in rejecting our proposal, and even that 
of the Corporation Counsel, the District Court ignored 
the full impact of the "factors" that prompted it to reject 
0159. We do not have the kind of interim and compensatory 
relief that the facts demand.

-74-



POINT 4
The District Court err<?d in not find­ing that defendants minimum height
requirement for firemen discriminates 
against Hispanics and is not jokr 
related 02; in the alternative, the 
Court erred in refusing plaintiffs a 
hearing on this issue____ .___________

We must quarrel with Judge Weinfeld on a point of 
grave concern to the Hispanic plaintiffs. On the uncontro­
verted affidavits and statistics placed before Judge 
Weinfeld, he should have granted summary judgment knocking
out the minimum height requirement for it has a discrimina­
tory impact on Hispanics and there is no justification for 
it. At very minimum, the trial judge should have allowed 
us —  assuming our record was somehow inadequate —  an 
opportunity to present expert evidence and full details 
in an evidentiary trial; there was no reason to deny plain­
tiffs a day in court.

The facts

i I
; Ii »

i
?

One of the Hispanic plaintiffs, Henry F. Raven, Jr., 
stands five feet four and one-half inches (Doc. 27, Exh. C). 
Although he took and passed examination 0159, he is forever 
barred from appointment as a NYCFD fireman, including appoint­
ment under Judge Weinfeld's interim relief, because of defendants'

-75-



requirement that all firemen appointees have a minimum 
height of five feet six inches (Exh. 4) .

j

The minimum height issue, raised in the complaint,i
was not litigated at the preliminary injunction hearing 
conducted in late January and early February. Our motion 
for injunctive relief was directed only against examination 
0159 itself because of the need for a quick adjudication 
on the merits to forestall extensive use by defendants of 
the discriminatory 0159 eligible list. At the close of the 
hearing, Judge Weinfeld proposed that his ruling on our 
injunctive motion be final and extend to all issues raised 
in the complaint relating to defendants 1 selection criteria 
for firemen, including the minimum height requirement (1043-50).

We agreed to a final determination on written 0159 but 
only if the height and other automatic disqualification issues 
be left open for trial (P. App. la). Defendants belatedly ob­
jected to our suggestion in a letter dated March 16 (P. App.2a-4a). 
After a further exchange of letters between counsel (P. App. 5a- 
10a) the impasse was not resolved, and Judge Weinfeld heard 
argument.

The trial court adopted defendants' position. The 
court permitted the submission of additional written informa­

-76



tion relating to the automatic disqualification issues and 
stated that its decision would be final and conclusive on 
all of the entrance issues. It declined to give us a chance 
to present live testimony at trial (P. App. 12a).

Pursuant to Judge Weinfeld's ruling, we sub­
mitted in affidavit form our evidence on the automatic 
disqualification issues, together with supporting legal 
authorities, and asked for summary judgment (Doc. 27). With 
respect to the height issue we submitted the following:

(i) a government survey demonstrating that 
the mean height of Hispanic males is several 
inches shorter than that of white males (Doc. 27,
Exhs. A and A-l);

(ii) an affidavit by Captain Donald E.
Dozier of the NYCFD (Doc. 27, Exh. B), who had 
testified at the injunction hearing (6-79), stat­
ing his view that the minimum height requirement 
served no purpose, especially in view of the 
physical-athletic test administered by defendants 
which requires such feats as scaling an 8 foot 
high wall (Exhs. 15, 16 and 17); and

(iii) an affidavit by plaintiff Raven, who 
stated that he had been allowed to take defend­
ants' physical-athletic test, although not eligible 
for appointment, and was told he had passed it 
with a very high mark (Doc. 27, Exh. C).

-77-



I

The District Court's erroneous evasion.

Judge Weinfeld's decision on the height and other 
automatic disqualification issues was really no decision 
at all. We quote in full the relevant portion of his 
opinion, which immediately follows his holding that 
written examination 0159 is unconstitutional (34a):

"This disposition makes it unnecessary to con­
sider the other grounds urged by plaintiffs in 
support of their claim, particularly since little 
evidence was adduced with respect thereto upon the 
hearing. The submissions as to these matters were 
included in post trial briefs or affidavits and in 
some instances raise issues of fact, the resolution 
of which would require reopening of the trial."

Obviously, the trial court just overlooked the 
fact that it was necessary for plaintiff Raven that it 
consider the minimum height issue. The ruling that 0159 
is unconstitutional in no way assists plaintiff Raven:
Unless he shows an unexpected spurt in growth he will not 
be eligible to compete in the next fireman examination be­
cause of his height. But the trial court's error, we submit, 
cuts deeper.

-78-



The merits

Plaintiffs proved that defendants' minimum height 
requirement has a substantial discriminatory impact on 
Hispanics. The government survey we submitted demonstrates 
that the mean height of Puerto Rican males is less than 
that of white males by 6.67 cm. (2.6 inches) at age 21 and 
7.25 cm. (2.9 inches) at age 30. U.S. Dept, of Health, 
Education & Welfare, Ten-State Nutrition Survey 1968-70 
at III-47, 49. (Doc. 27, Exh. A at III-47, 49).

The United States Equal Employment Opportunity 
Commission repeatedly has struck down non-job-related 
minimum height requirements in private industry because 
of their well-established discriminatory impact upon His­
panics and based on statistical evidence. EEOC Dec. No. 
72-0284 (Aug. 9, 1971), CCH, EEOC Decisions 116304, at 4545 
(average height of all American males is 5'8", while Spanish 
surnamed males average 5'4"-l/2); EEOC Dec. No. 71-1529 (Apr. 
2, 1971), CCH, EEOC Decisions 116231, at 4411; EEOC Dec. No. 
71-1418 (Mar. 17, 1971), CCH, EEOC Decisions 1[6223 at 4391. 
See generally, EEOC, National Origin Discrimination Guide­
lines , 29 C.F.R. § 1606.1(b) (condemning the denial of equal 
opportunity to classes of persons who fail to meet height 
requirements "not necessary for the performance of the work 
involved").

-79-



In the District Court, defendants did not chal- j 

lenge the accuracy of these population statistics and 
indeed acknowledged that they "are undoubtedly true" (Doc.
22, at p. 5). Their sole contention was that "population 
statistics" cannot show, even prima facie, the discriminatory 
impact of the height requirement (id. at 2-6).

Defendants' argument rests upon a fundamental 
confusion: a mixing up of what has to be shown to prove the
impact of an automatic bar to employment based on a charac­
teristic, such as deficient height, and what you have to 
show when dealing with the impact of an achievement examina­
tion such as 0159. Logic and the case law tell us that 
the best evidence of the discriminatory impact of an auto­
matic disqualification turning on a characteristic are 
statistics showing the relative incidence of that charac­
teristic among minorities and non-minorities in the relevant 
population area, just as the impact of an achievement 
examination may be shown best (if not only) by proof of the 
relative performance of minorities and non-minorities on 
the examination.

The height requirement automatically disqualifies 
potential candidates, and it is advertised as an absolute
disqualification to potential candidates (Exh. 4). The 
issue here is solely whether the simple existence of this



requirement eliminates from consideration a disproportionately 
high number of minorities because they do not possess the 
required characteristic of a height of 5'6". Population 
statistics showing the relative average or mean height of 
minorities and non-minorities are not merely competent 
evidence, but the best evidence of this impact.

The courts have recognized this common sense 
point. Thus it was in Griggs v. Duke Power Co., 401 U.S.
424, 430 n. 6 (1971), that a high-school completion require­
ment for employment was invalidated upon proof by general 
census data that, on a state-wide basis, only 12% of Negro 
males had completed high-school compared to 34% of white 
males. And so in Gregory v. Litton Systems, Inc., 316 F.
Supp. 401, 403 (C.D. Cal. 1970), aff'd, 5 CCH Emp. Prac.,
Dec. 8089 (9th Cir. 1972), national statistics on arrest 
records were used to prove a discriminatory impact of an 
arrest record criteria for employment.

Defendants pointed out below that while our proof 
showed the average height of Hispanic males to be some 
2-1/2" shorter than that of other males it also showed that 
the average Hispanic is slightly above 5'6" (Doc. 22, at 
pp. 7-8). This latter fact, they suggested, means that 
the minimum height standard has no discriminatory impact.
This, of course, misses the point. Almost one-half of the

-81-



Hispanic males cannot meet the 5'6" requirement, as dis­
tinguished from the at least 85% of whites who can do so. 
(Doc. 27, Exh. A, at III-47, 49) . This impact of the 
height standard on Hispanics establishes a quantum of dis­
criminatory impact far more severe, for example, than the 
comparatively small 13% difference in examination passing 
rates relied upon by the Chance court. 330 F.Supp. at 
210-13.

Defendants did not even attempt to justify their 
minimum height standard as job-related. Although the bur­
den on this issue was not ours, we submitted an affidavit 
by an experienced firefighter showing the arbitrary charac­
ter of this requirement (Doc. 27, Exh. B). As Captain 
Dozier points out, there can be no excuse for barring from 
the NYCFD a man who can perform all the physical tasks 
required of a firefighter despite his short stature. There 
is no imaginable rational relationship of the height cut­
off to the job in view of the existence of a physical test 
(Exhs. 15, 16, 17) to screen out candidates unable to per­
form the physical burdens of firefighting. As long as a 
man has the strength to quench the fire, who cares that he 
towers not above it as some Vulcan.

-82-



The denial of a hearing

Thus there was really no issue of fact barring 
final injunctive relief against the minimum height require­
ment. Its discriminatory impact was beyond dispute and de­
fendants made no effort to deny its lack of job-relatedness.

However, if an open issue did remain, surely Mr. 
Raven is entitled to know what it is and to have an eviden- 
ciary trial to settle it. He has never had his day in 
court —  neither at the hearing that did not concern the 
issue, nor at a final trial day on the complaint. It is 
obvious that Judge Weinfeld missed the crucial point: the
invalidation of 0159 still leaves Mr. Raven and many 
Hispanics with an insurmountable employment barrier, a 
barrier bereft of justification in the record.

Thus, if this Court finds the record we made 
below insufficient to warrant final injunctive relief 
against the height requirement, we ask that the cause be 
remanded with the direction that a trial be held on this 
issue.

i |

! i

i

t

-83-



POINT 5
The District Court erred in not finding 
that defendants' high-school diploma 
requirement for firemen and their auto­
matic disqualification of candidates 
with criminal convictions discriminate 
against minorities and are not job- 
related or, in the alternative, the 
Court erred in refusing plaintiffs a 
hearing on these issues.______________

Plaintiffs challenge defendants' automatic dis­
qualification of any fireman candidate who lacks a high 
school or equivalency diploma or who has ever been convicted 
of any felony or petit larceny (Exh. 4). We proved below 
that both of these bars to employment have a severe dis­
criminatory impact on minorities and non-minorities. We 
also established, although it was not our burden, the total 
lack of justification for these disqualification criteria: 
the high school diploma can serve no purpose in a selection 
procedure which includes a written examination to test the 
intellectual qualities needed on the job and the automatic 
criminal conviction bar is superfluous in view of defendants' 
detailed investigation of the character of each candidate.

As in the case of the minimum height requirement, 
and under identical procedural circumstances (pp. 79-82, 
supra), the District Court refused to rule on our challenge 
to these two selection criteria. But the Court cited one

-84-



factor not relevant to the height challenge: it felt there
was "serious question" of the plaintiffs' standing to 
challenge the educational or criminal conviction criteria 
since none of the plaintiffs stood to be disqualified by 
these criteria (34a, n.). After reviewing the invalidity 
of these criteria, we will show Judge Weinfeld's concern 
about standing was ill-founded and, in fact, based on his 
failure to declare this action a class action.

The high-school diploma requirement

In our post-hearing submissions, we proved the 
substantial discriminatory impact upon minorities, and 
especially Hispanics, of defendants' high school diploma 
requirement through census material introduced in evidence 
at the hearing. With respect to males 25 years of age and 
older, the most relevant category for which comparable 
statistics are available, only 21.9% of Hispanics and 40.9% 
of blacks have completed four years of high school education 
while 46.9% of all males in that age group have done so.
(Exh. 23, pp. 34-399, 34-435, 34-351). The educational 
gap between minorities and non-minorities is an incontest­
able fact. See, e.g., EEOC Dec. No. 72-0284 (Aug. 9, 1971), 
CCH EEOC Decisions 116304, at 4545 (1973), and authorities 
there cited.

-85-



Logic demonstrates that there can be no justifi-
jcation for the imposition of this further discriminatory 

requirement: if a meaningful job-related written examina­
tion is administered, one which fairly tests each candidate's 
intellectual qualifications for the job, what matters it 
if a candidate has or has not a diploma? The dual require­
ment of test and diploma, however appealing on first blush, 
has no real merit to it.

Defendants chose to introduce no evidence in 
support of the diploma requirement. Thus, on the record, 
it must be presumed that defendants here, like the defendant 
in the pioneer case of Griggs v. Duke Power Co., supra, 
adopted their diploma requirement "without meaningful study 
of [its] * * * relationship to job performance ability."
401 U.S. at 431-33. The condemnation in Griggs of "the 
inadequacy * * * of using diplomas or degrees as fixed 
measures of capability", 401 U.S. at 433, is especially 
pertinent to the largely physical job of fireman. Cf.
Castro, 334 F.Supp. at 938-39 (a fireman's job does not 
require the "book knowledge" of a policeman's job); Garter, 
452 F.2d at 320-21, 326 (educational requirement for fire­
men modified to require that a diploma be achieved within 
two years of appointment, the court noting that plaintiffs 
had not asked for further relief).

-86-



The disqualification for criminal 
convictions_____________________

Minorities are arrested for and convicted of 
crimes in the United States at a significantly higher rate 
than non-minorities. There can be no dispute about this 
unhappy fact, especially in New York City. E.g., EEOC Dec. 
No. 72-1497 (Mar. 30, 1972), CCH, EEOC Decisions 1(6352 at 
4635, and authorities there cited; EEOC Dec. No. 72-1460 
(Mar. 19, 1972), CCH, EEOC Decisions 1(6341 at 4620-21; cf. 
Carter v. Gallagher, 3 CCH Emp. Prac. Dec. 1(8205, at 6670 
(D. Minn. 1971), aff'd in rel. part, 452 F.2d 315, 327 (8th 
Cir.) (en banc), cert, denied, 406 U.S. 950 (1972) (arrests); 
Gregory v. Litton Systems, Inc., 316 F.Supp. 401, 403 (C.D. 
Cal. 1970), aff'd 5 CCH Emp. Prac. Dec. 1(8089 (9th Cir.
Dec. 7, 1972) (arrests).

It follows that the Rules and Regulations of the 
City's Civil Service Commission and the Administrative Code 
of the City barring persons with felony and petit larceny 
convictions have a discriminatory impact.*

* Section III-4.3.2(b) of the Rules and Regulations of 
the Civil Service Commission of the City of New York, 
Rule IV, provides: "A person convicted of petit larceny
or dishonorably discharged from the armed forces of 
the United States shall not be examined, certified or 
appointed as a patrolman or fireman."
Section 487a-3.0(b) of Chap. 19 of the Administrative 
Code of the City of New York, governing the NYCFD, pro­vides: "A conviction of a felony shall disqualify all
persons from membership in the department.

-87-



Defendants introduced no evidence below to satisfy 
the burden that falls on them to justify this discrimina­
tory conviction bar as job-related. It is unwarranted: 
there is no good reason why a "rehabilitated" felon or 
misdemeanant should have this career avenue closed to him 
if there is a meaningful character review system. Defendants 
conduct a character investigation of every fireman candidate 
considered for appointment, in the course of which they can 
assess any criminal conviction in the candidate's record, 
the nature of the offence, its relationship to the duties 
of a fireman, the age of the candidate at the time of the 
offence, and the candidate's behavior since his conviction.

Logic, social policy and precedent are against 
an automatic bar to employment premised on a prior criminal 
record. See generally, e.g., President's Commission on 
Law Enforcement and Administration of Justice, Task Force 
Report: Corrections, pp. 88-92 (1967); Note, The Collateral
Consequences of a Criminal Conviction, 23 Vand. L. Rev. 929 
(1970). The Eighth Circuit ruled against an automatic felony 
conviction bar in Carter v. Gallagher, supra.

In Carter the district court found use of a felony

-88-



conviction as a basis for disqualification from the Fire
Department unconstitutional on the ground that it had the

"effect of discriminating against minority fire 
fighter applicants on the ground of their race 
without any compelling state interest therefor 
and such standards are not reasonably related 
to the requirements for performance in the 
position of fire fighter with the Minneapolis 
Fire Department." (3 CCH Emp. Prac. Dec. at 
6671).

The court relied on the absolute nature of the disqualifi­
cation noting that:

"no distinction was made between types of crimes, 
no consideration was given to the length of time 
which elapsed between the conviction and the 
application, and no effort was made to determine 
what convictions reasonably can be said to con­
stitute a bar to employment as a fire fighter."
(Ibid).

On appeal the Eighth Circuit modified the relief granted to 
provide that

"the trial court in its discretion may require 
the defendants to submit to it for approval a rule 
with respect to the consideration to be given to 
an appellant's conviction record, which at a 
minimum should not treat conviction as an absol­
ute bar to employment." (452 F.2d at 326).

See also O'Neill, 348 F.Supp. at 1100 & n. 13 (questioning
the use of court-martial convictions).

The EEOC decisions cited above (p. 87, supra) 
are of a similar import using very forceful formulations. 
E.g. , CCH, EEOC Decisions 116288 at 4507-08 (use of absence 
of convictions as an employment criteria is illegal unless

-89-



justified by "business necessity"); if6352 at 4634-36 (dis­
charge for "serious" crime without reference to the parti­
cular factors of case such as job-relatedness of conviction 
and employee's past employment history, constitutes unlaw­
ful discrimination); 1(6341 at 4620-21 ("business necessity" 
test applied) ; 1(6372 at 4683-85 (incarceration; "business 
necessity" test applied).

!
Because of the substantial discriminatory impact 

and the lack of justification for an automatic disqualifi­
cation rule, we asked the court below to grant the same 
relief as did the EEOC in its many decisions and the Eighth 
Circuit in Carter; there was no rational reason to deny our 
request. We ask this Court to replace the automatic dis­
qualification with a requirement that the particular circum­
stances of each individual be reviewed to determine whether 
the conviction, when seen in the context of the individual's 
complete personal history, demonstrates that the man is un­
suitable for employment.

The standing of plaintiffs as 
class representatives________

In so far as the District Court's refusal to rule 
on plaintiffs' challenges to the diploma and criminal con­
viction criteria was based on a belief that plaintiffs lack

-90-



standing, it was premised on another error: its failure to
declare this action a class action (10a, n. 1).

Plaintiffs moved the District Court for an order 
determining that this action may be maintained as a class 
action under the Federal Rules of Civil Procedure, Rule 23(a) 
and 23(b)(1) and (2), on behalf of a class comprised of all 
blacks and Hispanics

"who, as a result of the defendants' unlawful 
discriminatory acts and course of conduct, have 
been deterred, disqualified or otherwise preven­
ted from seeking or obtaining appointment as a 
fireman in NYCFD." (Doc. 12 at p. 2).

Plaintiffs' supporting affidavit (Doc. 12) and memorandum
of law (Doc. 19) demonstrated that all the requirements of
Rule 23 for a class action were met. We summarize:
Discrimination affecting minorities by its nature involves
injury to a class and accordingly is maintainable as a class
action. The courts repeatedly have recognized that class
actions are the appropriate vehicle for resolving claims
of employment discrimination by public agencies. Castro,
459 F.2d 725, 731-32; Carter, 452 F.2d at 327; Penn v. Stumpf,
308 F.Supp. 1238, 1239 n. 1 (N.D. Cal. 1970); Arrington,
306 F.Supp. at 1357. These recent decisions in the area
of public employment follow the precedents established in
private employment cases brought under Title VII of the
Civil Rights Act of 1964 . E.g. , Parham v. Southwestern Bell.

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Tel. Co., 433 F.2d 421 (8th Cir. 1970); Johnson v. Georgia 
Highway Express, Inc., 417 F.2d 1122, 1124-25 (5th Cir. 
1969).

Indeed, Rule 23(b)(2) was designed especially for 
use in civil rights cases such as this, where relief is 
sought to restrain use of a procedure which generally dis­
criminates against minorities. Notes of the Advisory 
Committee, 28 U.S.C.A., Fed. R. Civ. P. Rule 23 at p. 298 
(1972) .

As plaintiffs' supporting affidavit below (Doc. 
12) makes clear, all requirements of Rule 23(a) and (b)(1) 
also were met in this case. Any minor differences in the 
positions of individual members of the class are superceded 
by the discriminatory impact of defendants' procedures on 
minorities as a group. In sum:

"* * * although the actual effects of a dis­
criminatory policy may thus vary throughout 
the class, the existence of the discriminatory 
policy threatens the entire class. And whether 
the Damoclean threat of racially discriminatory 
policy hangs over the racial class is a ques­
tion of fact common to all members of the 
class." Hall v. Werthan Bag Corp., 251 F.Supp. 
184, 186 (M.D. Tenn. 1966). See also, Johnson 
v. Georgia Highway Express, Inc., supra; Hicks 
v. Crown Zellerbach Corp., 49 F.R.D. 184, 187- 88 (E.D. Pa. 1968).

If we are right that this action is a proper class 
action, then the trial court should have allowed plaintiffs

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to challenge the diploma and criminal conviction criteria 
on behalf of all minorities affected by them. Plaintiffs i 
are and claimed to be members of a broad class: minorities
hurt by unconstitutional aspects of the NYCFD's entrance 
procedures. And we were in a court of equity, where the 
judge is asked, and duty-bound, to look into the fairness 
of the entire procedure.

We ask this Court to reject the narrower view of 
class actions and standing articulated, uniquely in this 
type of case as far as we can determine, by Judge Wyzanski
in Castro. Judge Wyzanski would require the presence of a 
plaintiff personally harmed by each of the challenged selec­
tion criteria, no matter how peripheral or minor. This 
approach, we submit, undermines the utility of the class 
action procedure; it will require that the represented class 
of minorities be splintered into a series of individual 
classes, with separate class representatives, pertaining 
to each disqualification standard. It means the scattering 
of attacks and must lead to multiplicity of suits, against 
basic principles of equity.

We submit that the better rule is to accept a 
reasonably broad definition of the class in this type of 
case; where the named plaintiffs are members of the class

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adversely affected by defendants' selection procedure, they 
have standing to challenge all related aspects of that pro­
cedure even though they have not been disqualified on each 
of the challenged grounds. See, e.g., Carr v. Conoco 
Plastics, Inc., 423 F.2d 57, 66-68 (5th Cir.), cert, denied, 
400 U.S. 951 (1970); cf̂ . Aguayo v. Richardson, 473 F.2d 
1090, 1099 (2d Cir. 1973) (dictum). We believe this Court 
did just this, sub silentio, in Chance, where the represen­
tative plaintiffs were permitted to attack over 50 types 
of examinations on behalf of the class, though they them­
selves had taken only one or two of these examinations. 330 
F. Supp. at 205, 207-08.

Plaintiffs' right to a hearing

Plaintiffs established that defendants' diploma 
and criminal conviction requirements discriminate against 
minorities and cannot be justified as job-related. They 
have standing to challenge these criteria as fit represen­
tatives of the class of minorities affected by all of these 
types of requirements.

But if this Court finds that an open issue remains 
with respect to the constitutionality of either of these 
admission requirements, it cannot be that we are foreclosed 
from litigating the issue.

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%

Conclusion

For the reasons given at length in this brief, we 
submit that the trial court's order declaring examination 
0159 unconstitutional and permanently enjoining its use in 
entrance procedures to the NYCFD should be affirmed. With 
respect to the interim relief granted by the District Court, 
we submit that it should be modified so as to appoint one 
minority member for each non-minority appointed. The case 
should be remanded with a direction for the entry of summary 
judgment striking down defendants' minimum height and high- 
school diploma requirements and the absolute bar of felony 

and petit larceny convictions. At very least, there must 
be a remand for a trial on those issues.

Respectfully submitted,
NICKERSON, KRAMER, LOWENSTEIN, 
NESSEN, KAMIN & SOLL

Mauirice N. Nessen 
A member of the firm 

Attorneys for Plaintiffs-Appellees-Appellants
919 Third Avenue New York, New York 10022 
(212) 688-1100

Maurice N. Nessen 
Thomas H. Moreland, 

Of counsel

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