Jones v. The New York City Human Resources Administration Petition for Writ of Certiorari

    I n  t h e

§>tj$irm£ (Enurt of t!?r Btntts
October T erm, 1975 

No.

J ames C. J ones, 
D orothy W illiams, et al.,

vs.
Petitioners,

T he New York City H uman R esources 
Administration, et al.

PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

J ack Greenberg 
J ames M. Nabrit, III 
Stanley E ngelstein 
Deborah M. Greenberg 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Covington, H oward, H agood 
& H olland

15 Columbus Circle 
New York, New York 10019

Attorneys for Petitioners



I n  th e

(Enurt of %  Hnitpft States
October T erm, 1975 

No............. .

J ames C. J ones, 
D orothy W illiams, et al.,

vs.
Petitioners,

T he New York City H uman R esources 
Administration, et al.

PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

Petitioners, James C. Jones and Dorothy Williams indi­
vidually and on behalf of the class they represent, respect­
fully pray that a writ of certiorari issue to review the 
judgment and opinion of the United States Court of Ap­
peals for the Second Circuit entered in this case January 
26, 1976.1 1

1 Respondents include, in addition to those named in the caption 
the following: Jule M. Sugarman, individually and in his capacity 
as Administrator of the New York City Human Resources Ad­
ministration; The New York City Department of Personnel; The 
New York City Civil Service Commission; Harry I. Bronstein, 
individually and in his capacities as Director of the New York 
City Department of Personnel and Chairman of the New York 
City Civil Service Commission; and James W. Smith and David 
Stadtmauer, each individually and in his capacity as Civil Service 
Commissioner.



2

Opinions Below

1. The opinion of the District Court of January 10, 1975 
is reported at 391 F.Supp. 1064 and is in the Appendix, 
A-l.

2. The supplemental opinion of the District Court of 
March 19, 1975 is reported at 391 F.Supp. 1086 and is in 
the Appendix, p. A-45.

3. The judgment of the District Court is not reported 
but is in the Appendix, p. A-50.

4. The opinion of the Court of Appeals is reported at 
528 F.2d 696 and is in the Appendix, p. A-54.

Jurisdiction

The Court of Appeals entered judgment January 26, 
1976. On April 19, 1976, Mr. Justice Marshall signed an 
order extending time for filing this petition until May 24, 
1976. This Court’s jurisdiction is invoked under 28 U.S.C. 
§1254(1).

Questions Presented

1. Whether 42 U.8.C. §1988, read together with Section 
706(k) of Title VII of the Civil Eights Act of 1964, con­
stitutes an express authorization of counsel fee awards, 
within the meaning of Alyeska Pipeline Service Co. v. 
Wilderness Society, in cases of racial discrimination in 
employment brought under 42 IJ.S.C. §>§1981 and 1983?

2. Whether, if attorneys’ fees may be granted in an 
employment discrimination case brought under Sections 
1981 and 1983, the trial court must apply the standard



3

established in Newman v. Biggie Park Enterprises and 
Northeross v. Board of Education?

Statutory and Constitutional Provisions Involved

Section 1981, 42 United States Code, provides:
All persons within the jurisdiction of the United 

States shall have the same right in every State and 
Territory to make and enforce contracts, to sue, be 
parties, give evidence, and to the full and equal benefit 
of all laws and proceedings for the security of per­
sons and property as is enjoyed by white citizens, and 
shall be subject to like punishment, pains, penalties, 
taxes, licenses, and exactions of every kind, and to no 
other.

Section 1983, 42 United States Code, provides:
Every person who, under color of any statute, or­

dinance, regulation, custom, or usage, of any State or 
Territory, subjects, or causes to be subjected, any 
citizen of the United States or other person within the 
jurisdiction thereof to the deprivation of any rights, 
privileges, or immunities secured by the Constitution 
and laws, shall be liable to the party injured in an 
action at law, suit in equity, or other proper proceed­
ing for redress.

Section 1988, 42 United States Code, provides:
The jurisdiction in civil and criminal matters con­

ferred on the district courts by the provisions of this 
chapter and Title 18, for the protection of all persons 
in the United States in their civil rights, and for their 
vindication, shall be exercised and enforced in con­
formity with the laws of the United States, so far as



4

such laws are suitable to carry the same into effect; 
but in all cases where they are not adapted to the ob­
ject, or are deficient in the provisions necessary to 
furnish suitable remedies and punish offenses against 
law, the common law, as modified and changed by the 
constitution and statutes of the State wherein the court 
having jurisdiction of such civil or criminal cause is 
held, so far as the same is not inconsistent with the 
Constitution and laws of the United States, shall be 
extended to and govern the said courts in the trial and 
disposition of the cause, and, if it is of a criminal 
nature, in the infliction of punishment on the party 
found guilty.

Section 2000e-5(k), 42 United States Code, provides:
In any action or proceeding under this subchapter 

the court, in its discretion, may allow the prevailing 
party, other than the Commission or the United States, 
a reasonable attorney’s fee as part of the costs, and 
the Commission and the United States shall be liable 
for costs the same as a private person.

Statement of the Case

This is a consolidation of two class action suits challeng­
ing examinations given by the Human Resources Adminis­
tration of the City of New York for certain positions in 
the city social services program on the ground that the 
examinations had a disproportionately adverse impact upon 
black and Hispanic candidates and could not be shown to 
be job-related, in violation of 42 U.S.C. §§1981 and 1983.

The District Court held that the challenged examinations 
were unconstitutional (A-42), enjoined their use, and man­
dated the creation of new validated examinations (A-51-



5

A-52). The District Court, however, denied attorneys’ fees 
to plaintiffs on the ground that defendants had made a 
good faith effort to comply with constitutional require­
ments (A-44, A-49). The Court of Appeals affirmed (A-54).

Reasons for Granting the Writ

Whether federal courts may award attorneys’ fees to 
successful plaintiffs in cases of racial discrimination in em­
ployment brought under 42 U.S.C. §§1981 and 1983 is an 
important federal question which has not been decided by 
this Court. While this Court, in Alyeska Pipeline Service 
Co. v. Wilderness Society, 421 U.S. 240 (1975), denied at­
torneys’ fees in a case involving the enforcement of certain 
laws for the protection of the environment in the absence 
of express statutory authorization, it left open the question 
whether the requisite statutory authorization needs to be 
embodied in the particular statute under which the cause of 
action is pleaded. Petitioners respectfully submit that an 
award of attorneys’ fees in a case of racial discrimination 
under Sections 1981 and 1983 is consistent with Alyeska 
in that “the applicable statutory authorization for such an 
award” (421 U.S. at 245) and the “legislative guidance” 
(id. at 247) the Court required are to be found in Section 
706 (k) of Title VII, 42 U.S.C. §2000e-5(k).

Congress enacted Title VII of the Civil Eights Act of 
1964, 42 U.S.C. §§2000e et seq. for the purpose of eradicat­
ing discriminatory employment practices; it gave a signif­
icant role to private litigants in the enforcement process. 
Alexander v. Gardner-Denver Co., 415 U.S. 36, 44-45 (1974). 
In Section 706 (k) of Title VII, 42 U.S.C. §2000e-5(k), 
Congress provided for the award of attorneys’ fees to 
successful plaintiffs, and this Court has recognized the 
importance of implementing this provision to effectuate



6

Thus, unlike the situation 'presented to the Court in 
Alyeska, where Congress had not seen fit to authorize the 
award of attorneys’ fees in environmental litigation, there 
is, in section 706 (k) of Title VII, a clear expression of 
Congressional intent to authorize federal courts to award 
attorneys’ fees to vindicate the national policy of eliminat­
ing racial discrimination in employment, a policy advanced 
equally through suits brought pursuant to Sections 1981 
and 1983 and Title VII.2

Sections 1981 and 1983 do not specify any of the reme­
dies available for the rights they create. Rather, Section 
1988 instructs federal courts in civil rights cases to exer­
cise their jurisdiction in conformity with the laws of the 
United States to provide remedies which will most fully 
effectuate the substantive rights at issue. Moor v. County 
of Alameda, 411 U.S. 693, 702-705 (1973); Sullivan v. 
Little Hunting Park, 396 U.S. 229, 239 (1969). Accord­
ingly, by reference to section 706 (k) of Title VII as di­
rected by section 1988, the district court in the instant 
case was authorized to award attorneys’ fees to petitioner. 
Whether its failure to do so was a proper exercise of 
discretion must be evaluated in light of what has come to 
be known as the Newman-Northcross rule.

In Newman v. Piggie Park Enterprises, Inc., 390 U.S. 
400 (1968), this Court rejected the subjective good faith 
test for the awarding of attorneys’ fees, holding that one 
who succeeds in obtaining injunctive relief under Title VII 
of the Civil Rights Act of 1964 “should ordinarily recover 
an attorney’s fee unless special circumstances would ren­
der such an award unjust”. Id. at 402. It subsequently

2 Alexander v. Cardner-Denver Co., 415 U.S. 36, 17 and n.7; 
Johnson v. Railway Express Agency, 421 U.S. 454 (1975).

the purpose of Title VII. Albemarle Paper Co. v. Moody,
422 U.S. 405, 415 (1975).



7

applied the Newman standard to the awarding of attor­
neys’ fees, pursuant to Section 718 o f, the Emergency 
School Aid Act of 1972, in school desegregation cases. 
Northcross v. Board of Education, 412 U.S. 427 (1973). 
This Court has recently indicated that the same standard 
should apply to the attorneys’ fee provision in Title VII. 
Albemarle Paper Co. v. Moody, supra, 422 U.S. at 415.

If this Court should determine that Section 1988 read 
together with Section 706 (k) of Title VII, constitutes an 
express statutory authorization of attorneys’ fees in em­
ployment discrimination cases brought under Sections 
1981 and 1983, then it follows that the Newman-Northcross 
standard should apply.

CONCLUSION

The Court should grant a Writ of Certiorari to review 
the judgment and opinion of the Court of Appeals.

Respectfully submitted,

J ack Greenberg 
J ames M. Nabrit, III 
Stanley E ngelstein 
Deborah M. Greenberg 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Covington, H oward, H agood 
& H olland 

15 Columbus Circle 
New York, New York 10019

Attorneys for Petitioners



A P P E N D I X



A-l

UNITED STATES DISTRICT COURT 
S outhern D istrict of New York

73 Civ. 3815

74 Civ. 91

O pinion of D istrict Court Dated January  10, 1975

[ captions omitted]

A p p e a r a n c e s  :

Covington, H oward, H agood & H olland, Esqs.
15 Columbus Circle 
New York, New York 10023 

Deborah Greenberg, Esq.
J ack Greenberg, Esq.
J effrey Mintz, Esq.

10 Columbus Circle 
New York, New York 10015

Attorneys for Plaintiffs

Adrian P. B urke, Esq.
Corporation Counsel of the City of New York 
Municipal Building 
New York, New York 10007 

P aula J. Omansky, Esq.
Executive Assistant Corporation Counsel

Attorneys for Defendants.



A-2

L asker, D.J.

The Human Resources Administration (HRA), a “super- 
agency” of the City of New York, was created in 19G6 in 
order to coordinate and administer the varied city pro­
grams dealing with poverty and social services. Plantiffs 
in these two consolidated actions challenge five civil service 
examinations for positions in the Human Resources Spe­
cialist (HRS) Series. They claim that the examinations 
had a discriminatory impact on Blacks and Hispanics and 
are not job-related. The named plaintiffs and the class 
they seek to represent are Black and Hispanic persons1 
who took and failed one or more of the five examinations 
challenged here. They seek (1) a declaration of the un- 
constitutionality of the examinations; (2) an injunction 
against appointments from the lists based on the results 
of the examinations; (3) an injunction requiring the crea­
tion of constitutionally adequate selection procedures for 
the positions in question and (4) an injunction requiring 
the permanent appointment of those presently serving as 
provisional employees to the positions they now occupy. 
Suit is brought under 42 B.S.C. §§1981 and 1983. Jurisdic­
tion is based on 28 U.S.C. §§1343(3) and (4), and the Fifth 
and Fourteenth Amendments. 1

Opinion Dated January 10, 1975

1 An unusually large number of provisional employees is in­
volved in the present suits. The large number of provisionals in the 
three titles under challenge resulted from the exhaustion of civil 
service lists based on the training and experience examination ad­
ministered in 19G8.

In 1972 three examinations were given to select for each of the 
three titles in issue: an open competitive exam, on which both HRA 
employees and members of the public meeting certain general qual­
ifications were eligible to compete; a promotional exam, for which 
only HRA employees in the next lower grade wore eligible; and 
a specialty exam in Manpower Development and Training (MDT). 
As noted above, live of these exams arc challenged: The open com­
petitive exams for IIRS, Sr. HRS and Sup. HRS; and the pro­
motional exams for Sr. HRS and Sup. IIRS.



A-3

The Jones plaintiffs challenge examinations No. 1631 
and 2031, the promotional and open competitive examina­
tions for the position of Supervising Human Resources 
Specialist (Sup. HRS). The Williams plaintiffs attack the 
constitutionality of the open competitive examination (No. 
1097) for Human Resources Specialist (HRS) and both 
the promotional and open competitive examinations for 
Senior Human Resources Specialist (Sr. HRS) (Nos. 1626 
and 1099). By earlier orders the city has been prelimi­
narily enjoined from making appointments based on any of 
the examinations.2

Trial of the issues in Jones has been completed. By 
stipulation, the parties have supplemented the record de­
veloped in Jones to enable the court to decide the merits of 
Williams.

Cases of this type, and these suits in particular, involve 
a prodigious amount of factual matter. Accordingly, we 
have so far as possible restricted the text of this opinion 
to substantive discussion, and made extensive use of foot­
notes for other material.

Opinion Dated January 10, 1975

I.

The present suits follow in the wake of several recent 
cases in this Circuit involving civil service examinations 
alleged to have a disparate impact on minority applicants.

2 Because permanent appointment to the position of Super­
vising HRS is a prerequisite to taking the examination for Prin­
cipal IIRS, an injunction was granted at the same time against 
holding the promotional and open competitive Principal’s exams, 
so that persons who passed the challenged Supervising HRS exam 
and would not be deprived of the opportunity of ultimately taking 
the Principal’s exam on account of the preliminary injunction 
against appointment from the Supervising HRS list.



A-4

See, e.g., Vulcan Society v. Civil Service Commission, 
(hereafter “Vulcan”), 490 F.2d 387 (2d Cir. 1973), aff’g 360 
F. Supp. 1265 (S.D.N.Y. 1973); Bridgeport Guardians, Inc. 
v. Bridgeport Civil Service Commission, (“Bridgeport 
Guardians”), 482 F.2d 1333 (2d Cir. 1973) aff’g in part 
and rev’g in part, 354 F. Supp. 778 (D. Conn. 1973); 
Chance v. Board of Examiners, (“Chance”), 458 F.2d 1167 
(2d Cir. 1972) aff’g 330 F. Supp. 203 (S.D.N.Y. 1971); 
Kirkland v. N.Y. State Dep’t of Correctional Services, 
(“Kirkland”), 374 F.Supp. 1361 (S.D.N.Y. 1974).

The ground rules established in those decisions require 
plaintiffs to make a prima facie showing that the examina­
tions have a “racially disproportionate impact,” Vulcan, 
490 F.2d at 391, Chance, 458 F.2d at 1175-1176; see also 
Castro v. Beecher, (“Castro”), 459 F.2d 725, 732 (1st Cir. 
1972). Upon such a showing the burden shifts to the defen­
dants to establish that the challenged examinations are job- 
related, Vulcan, 490 F.2d at 391. If it is demonstrated that 
disparate examination performance results from the can­
didates’ relative qualifications for the job, rather than their 
race, the examinations are constitutionally adequate, in 
spite of their racially disparate impact. Griggs v. Duke 
Power Co., 401 U.S. 424 (1971), Chance, 330 F.Supp. at 
214. The burden on defendants is “a heavy one,” Chance, 
458 F.2d at 1176, Guardians, 482 F.2d at 1337, but is dis­
charged if they “come forward with convincing facts estab­
lishing a fit between the qualification and the job.” Vulcan, 
490 F.2d at 393 quoting with approval Castro, 459 F.2d at 
732. The defendants are not required to prove that no 
alternative methods of selection were available to them; 
the critical question is whether the challenged procedure is

Opinion Dated January 10, 1975



A-5

constitutionally sound, not whether a better one could have 
been devised. Castro, 459 F.2d at 733, Vulcan, 490 F,2d 
at 393.

II.

Opinion Dated January 10, 1975

DISPROPORTIONATE IMPACT

A. As in earlier suits, plaintiffs base their prinm facie 
case on statistics provided by defendants as to the race of 
passing and failing candidates. However, as to three of 
the five examinations in question, the data is incomplete 
because ILKA does not keep records of the race of can­
didates who were not HRA employees at the time they took 
an examination. Neither side suggested or undertook, and 
the court did not order, a survey to determine the race of 
those not identified in lillA ’s records.3 Accordingly, as to

3 The adequacy of plaintiffs’ statistical case was raised for the 
first time in defendants’ post-trial memorandum. It was not raised 
on the motions for a preliminary injunction in Jones (September, 
1973) or Williams (December, .1973 and January, 1974) ; nor did 
defendants move to dismiss the complaint at the close of plaintiffs’ 
case at trial.

We attach no particular significance to the timing of defendants’ 
attack, except to note that it comes after our decision in Hill v. 
Human Resources Administration, 74 Civ. 1150 (March 29, 1974), 
in which we denied a preliminary injunction because of the ap­
parent undependability there of plaintiffs’ statistics.

Plaintiffs suggest that our findings of statistical impact on the 
motions for preliminary injunction in Jones and Williams are the 
“law of the case,” by which defendants (and the court) are bound. 
Putting aside the fact that such motions decide only the probability 
of success of the merits rather than the merits themselves, we be­
lieve questions such as the one before us should not, after trial, be 
decided on the deliberate basis upon which preliminary relief is 
normally predicated.

Upon consideration of the argument raised by defendants’ post­
trial memorandum, the court directed the parties to supplement the 
trial record by furnishing affidavits of statistical experts as to the 
significance of the statistical data in the trial record.



A-6

2013 the ethnicity of only 51% of the candidates is known; 
for 1097 and 1099 the figures are 54% and 60% respec­
tively. The available statistics are set forth in the chart 
below:

Opinion Dated January 10, 1975

Challenged Exam No. 1631 (Sup. HRS) (Prom.)

Pass Fail Total % Passing
Blacks ....... .... 12 57 69 17%
Whites ...... ..... 28 24 52 54%
Hispanics ... 3 13 16 19%
Unknown ... — 1 1

43 95 138

Challenged Exam No. 2013 (Sup. HRS) (OC)
Pass Fail T otal % Passing

Blacks ....... .... 39 208 247 16%
Whites ...... ... 125 108 233 54%
Hispanics ... 3 17 20 15%
Others ....... 5 3 8 63%

Subtotal .... 172 336 508
Unknown ... ... 183 303 486 38%

355 639 994

Challenged Exam No. 1626 (Sr . HRS) (Prom.)
Passed Failed Total1 % Passing

Blacks ....... .... 11 51 62 18%
Whites ...... ... 30 4 34 88%
Hispanic ..... 3 5 8 37%
Other .......... — 2 2

44 62 106



A-7

Opinion Dated January 10, 1975

Challenged Exam No. 1099 (Sr. HRS) (OC)

Blacks ......... , 56 165 221 26%
Whites ....... . 101 54 155 65%
Hispanic ..... 8 22 30 27%

Subtotal .. 165 241 406
Unknown ...., 90 187 277 32%

255 428 683

Challenged Exam No. 1097 (HRS) (OC)

Blacks ........ . 55 120 175 31%
Whites ....... .. 59 56 115 51%
Ilispanies .... 7 29 36 19%
Other .......... 1 1 2

Subtotal .... 122 206 328
Unknown ...... 78 200 278 28%

200 406 606

Putting aside1 tor the moment the question of the repre­
sentativeness of the available' data for Examinations No, 
2013, 109!) and 1097, the existing figures for all five ex­
aminations clearly indicate a disparity between the passing 
rates of white and minority candidates in excess of the 
1.5 to 1 ratio which Chance helel sufficient to establish a 
prima facie case*. 330 F. Hupp, at 210.'

‘ In Guardians, while's passed at 3.5 times the rate for Blacks 
and Ilispanies, 354 F.Supp. at 784; in Vulcan, wliites scored high 
enough to have a chance for appointment at 2.8 times the rate of 
Blacks and Ilispanies, 350 F.Supp. at 12(i!). In Kirkland, whites 
passed at a rate of about 4 times that, of Blacks and 2.5 times that 
of Ilispanies. 374 F.Supp. at 1366-67.



A-8

As to No. 1631, for which, complete data is available, 
whites passed at a rate of approximately three times that 
of Blacks and Hispanics (54% to 17% and 19% respec­
tively). On Examination No. 1626, for which the data is 
also complete, whites passed at a rate of about five times 
that of Blacks and 2.4 times the rate of Hispanics (88% 
to 18% and 37%, respectively).

The available figures for No. 1099 indicate that whites 
passed at 2.5 the rate of Blacks and Hispanics (65% to 
26% and 25%, respectively). As to No. 2013, whites passed 
at over three times the rate of Blacks and Hispanics (54% 
to 16% and 15%, respectively). Whites passed No. 1097 
at a rate of 1.7 times that of Blacks and 2.7 that of His­
panics (51% to 31% and 19%, respectively). In sum, the 
figures for all five examinations indicate a disparate impact 
in favor of white candidates in excees of the 1.5 to 1 ratio 
that carried the day for plaintiffs in Chance.

Not surprisingly, defendants’ most vigorously pressed 
objection to plaintiffs’ prima facie case is the incomplete­
ness of the data for Nos. 2013, 1099 and 1097. They 
argue that in the absence of complete and reliable data as 
to the race and passing rate of all, or substantially all, 
candidates on these exams, plaintiffs have failed to estab­
lish a prima facie case/’ Defendants make the related argu- * 50

5 In earlier eases, the court had before it substantially com­
plete statistics as to the racial makeup of the group taking the tests. 
In Chance, the parties compiled a statistical survey to provide pass- 
fail data covering fifty examinations given over a period of seven 
years, for supervisory positions in the New York City school system. 
The court there did not accord significance to figures for 41 of the
50 examinations, on which a total of only 83 minority candidates 
competed—clearly too small a sample on which to base a finding 
of disparate impact. Instead the. court relied on figures from the 
nine examinations taken by ten or more minority candidates, find­
ing Unit, plaintiffs had established a prima facie east'. 330 K.Supp. 
at 209-214. As to all (5,201 candidates taking the 50 examinations

(footnote continued on following page)

Opinion Dated January 10, 1975



A-9

ment that even assuming that the complete figures fox' Nos. 
1631 and 1625 show substantial disparate impact as to 
those exams, the inconclusive nature of the statistics for

Opinion Dated January 10, 1975

(footnote continued from preceding page)
in Chance (5,910 of whom were identified by race), white candi­
dates passed at a rate of almost V/> times the rate of minority can­
didates (44.3% to 31.4%).

In Bridgeport Guardians v. Bridgeport Civil Service Commis­
sion, supra, Vulcan Society v. Civil Service Commission, supra, and 
Kirkland v. Department of Correctional Services, supra, statistics 
as to the racial makeup and pass-fail rates of examined groups were 
complete or virtually complete, in 1Till v. N.Y.C. Human Ttcsourccs 
Administration, No. 74 Civ. 1150 (S.D.N.Y. March 29, 1974), aff’d 
----- F .2d------ (2d ('ir. 1974), this court declined to grant a pre­
liminary injunction in a suit challenging three examinations. As to 
the first, test, data were available for only 9% of those who passed 
and 3% of those who failed, and in any event, the available sta­
tistics did not indicate substantial disparate impact. On the second 
test the ethnic identity of 44% of passers and 16% of failures were 
known, with whites passing at a rate of about 1.5 times the rate of 
minorities. On the third test the ethnic identity of 28% of passers 
and 16%> of failures were known; whites passed at about the same 
rate as Hispanics and about 1.5 times the rate of Blacks.

Defendants cite Ilill as authority that anything less than com­
plete statistics is too little on which to base a prima facie case on 
the merits. We disagree with this reading on our decision there. 
First, comparison of the figures available in Ilill with those now 
before the court shows that the present plaintiffs have presented 
data as to a considerably higher proportion of candidates than those 
in Hill-, as to examination No. 2013, the ethnic identity of 51% 
(49% of those passing and 53% of those failing) is known; for 
Nos. 1099 and 1093 the figures are 60% (64% of those passing and 
56%. of those failing) and 54% (61% of those passing and 49% 
of those failing), respectively. Moreover, substantial disparate im­
pact was not shown, even as to the available samples, in all three 
examinations in Hill. The reverse is true in the present ease be­
cause the available samples with one exception indicate disparate 
impact of far greater magnitude than the 1.5 to 1 found to be suffi­
cient in Chance.

Furthermore, the Hill decision merely determined a request for 
preliminary relief which classically calls for the application of dif-

(footnote continued on following page)



A-10

the other three tests and plaintiffs’ failure to challenge two 
additional exams in the HRS series whose results are in­
conclusive as to impact, indicate that the class did not fare 
significantly worse than whites on the HRS series on the 
whole, which defendants claim is the proper standard. For 
the reasons stated below, we find that neither argument has 
merit and that plaintiffs have established a prima facie 
case as to all five exams.

B. Although neither side produced a statistical expert 
at trial, experts for each of the parties have submitted 
affidavits as to the significance of the statistics in the 
record.

Opinion Dated January 10, 1975

(footnote continued from preceding page)
ferent legal standards than a trial on the merits and which, in cases 
like the present one does not permit the deliberate consideration 
appropriate to issues of substantial public importance which is 
possible after trial.

In addition to Hill, defendants cite in support of their attack on 
plaintiffs’ prima facie case Gonzalez v. City of New York, 4 E.P.D. 
1J7867 (S.D.N.Y. 1972) and Bouton Chapter, N.A.A.C.P. v. Bee­
cher, 7 E.P.D, 1)5)162 (D. Mass. 1974). The cases are inapposite. 
Gonzalez involved an attack on a civil service examination by five 
minority professional employees, four of whom failed and one of 
whom did not take the exam. The court did not have before it 
statistics as to the race of anyone who took the exam, apart from 
plaintiffs themselves. In Beecher the race of 84% of the can­
didates (3,181 of 3,790) was known through voluntary self-report­
ing. 3,089 of these (97%) were whites, who passed at a rate of 
54%; the rate for 15 candidates identifying themselves as “Ne­
groid” was 56%; for 18 “Blacks,” 44.5%; for 15 Ilispanics, 33%; 
and for the combined minorities 39%. In view of the small number 
of minority candidates, and a white rate exceeding the combined 
minority rate by only 1.4 to 1, the court relied not on the test re­
sults, but on the disparity between percentage representation of 
minorities in the general populations in the fire departments of 
various cities, in concluding that plaintiffs had not established a 
prima facie ease.



A -ll

Plaintiffs’ expert, llichard S. Barrett, is a nationally rec­
ognized expert in the field of testing. His affidavit sets 
forth certain computations using the Chi-Square Test, a 
generally accepted means of analyzing statistics of the type 
used in lawsuits such as this one. See Chance, 458 F.2d at 
1173, 330 F. Supp. at 212. The purpose of the Chi-Square 
Test, as described by Barrett, is to determine whether a 
differential pass rate for two or more groups arises from 
a real difference in the performance of the groups, or from 
random differences arising from chance variation in the 
sample. (Barrett affidavit, dated November 4, 1974, Para­
graph 4.) In this case, the Chi-Square Test attempts to 
determine whether the lower passing rates for Blacks and 
Hispanics resulted from mere chance, or from a factor 
related to race.

Barrett’s computations, which are based on the complete 
statistics for Nos. 1631 and 1626, and on the available sta­
tistics for Nos. 2013, 1099 and 1097, are set forth below:

Opinion Dated January 10, 1975

Examination Comparison Clii-Square

1631 Black v. W hite........................  17.81
Minority v. White ..................  19.63

2013 Black v. White ........................  76.40
Minority v. White .............     80.42

1626 Black v. White - ......... -......... 44.60
Minority v. White ................ - 43.65

1099 Black v. White ......................... 59.40
Minority v. White ..................  62.49

1097 Black v. White ......................... 11.49
Minority v. White .................   15.32



A-12

Barrett states that a Chi-Square of 6,64 will occur less 
than one time in 100 as the result of chance, and that con­
ventional statistical tables do not include values as large 
as those shown in the chart “because their occurrence as 
chance events is too small to be taken seriously.” (Barrett 
affidavit, Paragraph 6) Accordingly, as to Nos. 1631 and 
1626, for which complete statistics are available, it is 
readily apparent that plaintiffs have established dispro­
portionate impact not resulting from chance.

The question that is unresolved by the Chi-Square anal­
ysis set forth above is whether the data for the entire group 
of candidates on Nos. 2013, 1097 and 1099 would show the 
same results as Barrett calculated on the basis of the known 
candidiates on those exams. On this question Barrett 
states:

“Strictly speaking such a determination can be made 
only if there is reason to believe that those whose 
identity is not known are a random sample of the total 
group. There is, of course, no way to make this deter­
mination. However, the size of the Chi-Square statis­
tics reported above [which were computed on the basis 
of the known group only] is so great that those whose 
race or ethnicity is unknown would have to differ in an 
unrealistically large degree from those whose identity 
is known to lead to the conclusion that the tests are 
free from adverse impact.” (Barrett affidavit, Para­
graph 7).

Although we recognize that in cases such as this, we may 
walk through statistical mine fields, Barrett’s conclusions 
do accord with common sense. On No. 2013, for example, 
for which the ethnicity of 51 % of candidates is known (the

Opinion Dated January 10, 1975



A-13

HRA population)53 whites passed at over 3 times the rate 
of Blacks and Hispanics. We find it distinctly improbable 
that minority group members in the non-HRA (unknown) 
group would outperform non-HRA whites on the same ex­
amination to the extraordinary degree necessary to bring 
the overall passing rates for minorities and whites into 
rough parity. This conclusion is buttressed by Barrett’s 
observation that Nos. 2013, 1097 and 1099 are “made up of 
items of the type on which Blacks and Hispanics generally 
do more poorly than whites.” (Barrett affidavit, Paragraph 
8.) Cf. Griggs, 401 U.S. at 430. We reach the same conclu­
sion as to No. 1097, which whites passed at a rate of 1.7 
that of Blacks and 2.7 times that of Hispanics. The ethnic­
ity and pass-fail results of 54% of the candidates are 
known. Consequently, minorities in the non-HRA group 
would have to outscore non-HRA whites substantially on 
that examination to negate the strong showing of adverse 
impact. The same conclusion applies to Examination No. 
1099 which whites passed at a rate 2.5 that of minority 
candidates, and as to which the ethnicity of 60% of the 
candidates is known.

In sum, we find that the data of record meets the 
standard to establish a prima facie case as articulated by 
Judge Friendly in Vulcan:

“It may well be that the cited figures and other more 
peripheral data relied on by the district judge did not

53 As used here, the term “1IRA population” indicates candi­
dates who were employed by IIRA at the time of the examination 
and whose ethnic identity is known. The “unknown” group in Nos. 
2013, 1099 and 1097 is made up of those who were not employees 
of HRA. in this Opinion they are termed the “non-HRA popu­
lation.”

Opinion Dated January 10, 1975



A-14

prove a racially disproportionate impact with complete 
mathematical certainty. But there is no requirement 
that they should. Certainty generally is illusion, and 
repose is not the destiny of man. We must not forget 
the limited office of the finding that black and Hispanic 
candidates did significantly worse in the examination 
than others. That does not at all decide the case; it 
simply places on the defendants a burden of justifica­
tion which they should not be unwilling to assume.” 
490 F.2d at 393.6

The affidavit of defendants’ statistical expert, Gus W. 
Grammas, is not inconsistent with our conclusions as to 
2013, 1099 and 1097.* 7 It states, and we agree, that neither

0 The remarks of Judge Weinfeld, the trial judge in Vulcan, 
are also apposite here:

“ . . . Where public employment practices are under challenge 
defendants usually have superior access to relevant statistical 
data than plaintiffs and . . . the latter will often be dependent 
on the efforts and good faith of the former. In addition, sta­
tistical evidence by its very nature deals with probabilities 
rather than certainties. All that can be required of methods 
employed in gathering such evidence is that 1 hey assure rea­
sonably accurate findings. Absolute perfection usually is not 
attainable in this kind of endeavor. [Footnote omitted] The 
right, of racial minorities to demand that the Slate justify even 
de facto discrimination may not be so rest rided that it exists 
in principle but not in fact.” Vulcan, 360 F.Supp. at 1270.

7 Grammas postulates a set of assumptions about the non- 
HRA populations on 2013, 1007 and 1090 which he tests against 
the only known fact about these populations, the overall pass-rate 
of the non-IIRA groups on each exam. Grammas’ three assump­
tions are (1) that the whites, Blacks and Ilispanics in the non- 
IIR A populations are represented in the same proportions as the 
IIRA (known) populations for each exam; (2) that the pass-fail 
rates on each exam are the same for both the IIRA and non-HRA 
groups and (3) that the non-HRA candidates are a random sample

Opinion Dated January 10, 1975

(footnote continued on following page)



A-15

the precise racial make-up nor the pass-fail rates of the 
non-HR A groups in Nos. 2013, 1097 and 1099 can be statis­

Opinion Dated January 10, 1975

(footnote continued from preceding page)
of the total population which was eligible to take the open com­
petitive examinations, +±2013, 1097 and 1099.

Based on these assumptions, for which there is coneededly no 
support in the record, Grammas computed hypothetical pass-fail 
rates for Blacks, whites and Ilispanics in the non-HRA groups 
taking exams No. 2013, 1099 and 1097. He then compared these 
with the observed or real pass rates of each ethnic group on those 
examinations to see whether the hypothetical pass rates for the 
unknown groups accorded with the observed pass rates for the 
known group.

As to No. 2013, based on the assumptions described above, 
Grammas concluded that the hypothesized and observed rates are 
the same; i.e., that it is statistically probable (based on a 95% 
level of confidence) that disparate impact as to the unknown group 
was of the same general magnitude as the impact on the known 
group.

As to Nos. 1099 and 1097, for which Grammas made the same 
assumptions, the observed and hypothesized rates were signficantly 
different, leading him to reject the hypothesis that the differential 
impact was the same for the unknown group as for the known 
(observed) group. However, Grammas does not indicate the de­
gree of probability that the observed and hypothesized rates were 
the same, other than to indicate that it is something less than 
95% probable. (Grammas affidavit, Paragraph 15) This fact of 
eoui’se leaves open the posssibility, confirmed by Barrett, that 
although it is not statistically certain that the non-HRA groups 
showed the same disparate impact as the HR-A groups, it is indeed 
likely that they would.

There are additional reasons why Grammas’ computations are 
of limited relevance in determining the legal question before us: 
Grammas bases his computations of hypothetical pass-fail rates for 
the non-HRA group on three assumptions “which plaintiffs would 
need to make in order to establish disparate impact on the non- 
HRA population.” (Grammas affidavit, Paragraph 9) This is 
clearly not the case. First, as noted above, it is not necessary that 
the non-HRA population have precisely the same racial make-up 
as the 11RA population for disparate impact to exist as to the 
non-HRA population; the rate at which minority candidates pass 
does not hinge on the number of them appearing for the exam. 
Nor .is it necessary that the pass-fail rates for minorities in the

(footnote continued on following page)



A-16

tically inferred from the data about the HRA groups whose 
ethnicity and pass-fail rates are known because the known 
group (HRA employees) is not a random or representative 
sample of the unknown (non-HRA) employees. (Grammas 
affidavit, dated November 7, 1974, Paragraphs 6-7, 20-23.) 
But that fact is not inconsistent with our conclusion. 
Strictly speaking, the precise racial make-up of the un­
known groups in Nos. 2013, 1099 and 1097 is irrelevant; the 
issue rather is whether there is any- realistic likelihood that 
non-HRA minority candidates—however many or few— 
fared well enough in comparison to non-HRA whites to 
offset the startling imbalance in favor of whites among the 
known (HRA) candidates. We conclude there is no such 
likelihood.

Defendants’ second attack on plaintiffs’ prima facie case 
can be disposed of more easily. They7 claim that, notwith­
standing plaintiffs’ prima facie showing as to the five ex­
aminations challenged in this lawsuit, they7 should not be * 9

Opinion Bated January 10, 1975

(footnote continued from preceding page)
non-HRA group be shown to be substantially7 identical to those in 
the HRA group in order to establish disparate impact. Non-HRA 
minorities could pass the exams at far higher rates than did the 
HRA minorities and still not dissipate entirely the minimum req­
uisite prima facie showing of 1.5 to 1 established in Chance.

Third, it is not necessary that the non-HRA candidates were a 
“random sample of the total population which was eligible to take 
the open competitive examination.” (Grammas affidavit, Paragraph
9) The more relevant question is whether the known IIIIA group 
is a reasonably representative sample of the combined HRA-non- 
IIRA population that appeared for 2013, 109!) and 1097.

In sum, in view of the startling evidence of disparate impact 
among HR A employees and the complete, lack of evidence sug­
gesting that IIRA minorities perforin comparatively worse relative 
to HRA whites than their non-HRA counterparts, we conclude that 
the available figures for Nos. 2013, 109!) and 1097 are sufficient to 
establish a prima facie case.



A-17

permitted to choose among the exams in the HRS series, 
challenging only those in which minorities performed 
worst. Neither the facts nor the law support defendants’ 
argument.

Of the nine examinations in the MRS series, five are 
challenged here. Plaintiffs do not challenge the four other 
exams in the series; however, the results for three of these 
are of record: the Sr. HRS (MDT) open competitive exam 
(No. 1094), the HRS promotional exam (No. 1625), and the 
HRS (MDT) open competitive (No. 1095). The statistics 
for these are indicated in the chart below:

Opinion Dated January 10, 1975

Sr. HRS (MDT) Opc>i Competitive Exam No. 1094

Passed Failed Total % Passing
Blacks ............  18 41 59 31%
Whites ............  5 10 15 33%
Hispanics ......  7 15 22 32%
Other ..... ........  — 1 1

Subtotal ..... 30 67 97
Unknown ......  18 78 96 19%

48 145 193

11RS Promotional Exam No. 1625

Passed'■ Failed Total % Passing
Blacks ..........  13 36 49 27%
Whites ..........  1 4 5 20%
Hispanics ........  — 4 4

14 44 58



A-18

Opinion Dated January 10, 1975

HRS (MDT) Open Competitive Exam No. 1095

Passed Failed Total
Black ............... ............. 12 44 56
White .............. ............  8 9 17
Hispanic .......... ............. 7 16 23

Subtotal ...... ............  27 69 96
No ethnic info ............ . 12 74 86

39 143 182

As to 1094 and 1025, it is evident that, although the 
results suggest roughly equal passing rates, the samples 
are too small to be valuable. As to No. 1094, if only one 
more white had passed, the passing rate for whites would 
rise from 33% to 40%; if two more whites had passed the 
rate would be 47%, as compared with a 31% rate for 
Blacks. These figures (47% v. 31%) compare, favorably 
with the 1.5 to 1 ratio in Chance. As to No. 1625, if only 
one more white had passed, the rate would be 40% for 
whites, as compared with 27% and 0% for Blacks and 
Hispanies, respectively. The available figures show that as 
to 1095, only 17 whites took the exam as compared to 56 
Blacks and 23 Hispanies, but in any event whites passed at 
over two times the rate of Blacks and 1.5 the rate of His- 
panics (47% to 21% and 30%).

Comparison of the aggregate available figures for the 
five exams under challenge with the aggregate figures for 
all eight examinations demonstrates the shaky factual basis 
for defendants’ argument.



A-19

Opinion Bated January 10, 1975 

AGGREGATE RESULTS ON 5 EXAMS

Passed Failed Total % Passing
Blacks ___.... 173 601 i n 22%
Whites __ .... 343 246 589 58%
Hispanics ...... 24 110 22%

As the ('hart indicates whites passed at nearly 3 times the 
rate of minorities when the challenged exams are consid­
ered in the aggregate.

When the results for the three examinations not chal­
lenged by plaintiffs are added into the aggregate compu­
tation, the overall pass rates are not significantly altered:

Aggregate R esults ox 5 E xams

Passed Failed Total % Passing
Blacks    ..........  21(5 732 948 23%
Whites .................  357 2(59 (526 59%

Hispanics ..... 24 86 110 22%

We regard these figures as sufficient proof that plaintiffs’ 
class performed significantly worse than whites and that 
the disparity is not the result of chance.

In any event, defendants’ argument that the plaintiffs 
should not be permitted to challenge only those exams 
whose results show disparate impact is invalid as a matter 
of law. In Vulcan, defendants challenged plaintiffs’ sta­
tistical case because it was based on a single examination, 
which they claimed was insufficient to be meaningful. In 
rejecting the argument. Judge Weinfeld observed:



A-20

“The consequence of relying upon one examination is 
only that any finding of discrimination and the relief 
to he granted will necessarily be restricted to the scope 
of the proof. The evidence presented was more than 
adequate to support a finding of discriminatory im­
pact.” 360 F.Supp. at 1271.

The observation applies with equal force in the case at 
hand.

Opinion Bated January 10, 1975

III.

J ob Kklatedness

As noted earlier, defendants have the burden of justify­
ing the use of the challenged examinations by proving that 
they are job-related, Vulcan, 470 F.2d at 391, and that the 
differential impact indicated by the statistics results from 
variance in qualifications for the job, rather than race. 
Griggs v. Duke Power Co., supra, 401 U.S. at 430-431, 
(1971), Chance, 330 F. Supp. at 214. This burden is dis­
charged if the city “come[s] forward with convincing facts 
establishing a fit between the qualification and the job.” 
Vulcan, 490 F.2d at 393, quoting Castro, 459 F.2d at 732; 
see also Guardians, 482 F.2d at 1337, Chance, 458 F.2d at 
1176.

A. Case law in this Circuit recognizes three methods for 
validating an examination as job-related: criterion-related 
validation, construct validation and content validation. 
See, e.g., Vulcan, 490 F.2d at 394-96; Guardians, 482 F.2d 
at 1337-1338 and 354 F.Supp. at 788-789; Kirkland, 374 
F.Supp. at 1370-1372. Criterion-related validation is a



Opinion Dated January 10, 1975

process by which relative performance on an examination 
is compared with relative performance on the job, either by 
“pre-testing” a group of current employees or by subse­
quent on-the-job evaluation of successful candidates. See 
Vulcan, 8G0 F.Stipp. at 1273. This method is considered 
more effective than other validation methods because it 
clearly establishes the degree of correlation between suc­
cessful examination performance and successful job per­
formance. Guardians, 482 F.2d at 1337 and 354 F.Supp. at 
788. However, no case in this Circuit has held that a show­
ing of criterion validity is required for defendants to sat­
isfy their burden of proving job-relatedness, if the test can 
be shown to have been validated by another method. See 
Vulcan, 490 F.2d at 395.

The second recognized method of validation is construct 
validation, which involves “identification of the general 
mental and psychological traits believed necessary to suc­
cessful performance of the job in question,” Vulcan, 490 
F.2d at 395, and the construction of an examination which 
tests for these qualities. Defendants do not contend that 
they validated the examinations by either criterion vali­
dation or construct validation.

Consequently, defendants’ proof on the- issue of job-re- 
latedness hinges on whether the examinations are “content 
valid.” .Judge We inf eld described this method in Vulcan:

“An examination lias content validity if the content of 
the examination matches the content of the job. For 
a test to be content valid, the aptitudes and skills re­
quired for successful examination performance must 
lie those aptitudes and skills required for successful



A-22

job performance. It is essential that the examination 
test these attributes both in proportion to their relative 
importance on the job and at the level of difficulty de­
manded by the job.” 360 F.Supp. at 1274 (footnotes 
omitted). See also, Vulcan, 490 F.2d at 395; Guardians, 
482 F.2d at 1338; Kirkland, 374 F.Supp. at 1372.

Cases in this Circuit have recognized the difficulties of 
applying sophisticated, and unfamiliar, principles of psy­
chometrics to jobs about which the trier of fact has only 
superficial knowledge, and have dealt with the problem on 
a pragmatic basis. Judge Friendly’s approving description 
of the approach Judge Weinfeld used in Vulcan sets the 
tone:

“Instead of burying himself in a question-by-question 
analysis of Exam 0159 to determine if the test had con­
struct or content validity, the judge noted that it was 
critical to each of the validation schemes that the exam­
ination be carefully prepared with a keen awareness 
of the need to design questions to test for particular 
traits or abilities that had been determined to be rele­
vant to the job. As we read his opinion, the judge 
developed a sort of sliding scale for evaluating the 
examination, wherein the poorer the quality of the test 
preparation, the greater must be the showing that 
the examination was properly job-related, and vice 
versa. This was the point he made in saying that a 
showing of poor preparation of an examination entails 
the need of ‘the most convincing testimony as to job- 
rclatodnoss.’ The judge’s approach makes excellent

Opinion Dated January 10, 1975



A-23

sense to ns. If an examination has been badly pre­
pared, the chance that it will turn out to be job-related 
is small. Per contra, careful preparation gives ground 
for an inference, rebuttable to be sure, that success 
has been achieved. A principle of this sort is useful

. in lessening the burden of judicial examination-reading 
and the risk that a court will fall into error in um­
piring a battle of experts who speak a language it 
does not fully understand. See Chance, supra, 458 F. 
2d at 1173.” 490 F.2d at 395-39G.

B. The initial step in the construction of a content-valid 
examination is the “job-analysis.” Its purpose is to identify 
the knowledge, skills and abilities recpiired for performance 
of the job. Such an analysis involves the isolation of the 
qualities most critical to job performance, an evaluation or 
weighing of their importance relative to one another, and 
a determination of the level of competence required as to 
each of them. Vulcan, 3G0 F.Supp. at 1274, Kirkland, 374 
F.Supp. at 1373. Obviously, the adequacy of the job analy­
sis is crucial to a content-valid examination; unless the 
analysis accurately describes the “content” of the job, the 
content of the examination based on it is likely to be seri­
ously distorted.

Accordingly, for defendants to sustain their burden of 
proof as to the content validity of the examinations in 
issue, they must show,

“not only that the knowledge, skills and abilities tested 
for . . . coincide with some of the knowledge, skills 
and abilities required successfully to perform on

Opinion Baled January 10, 1975



A-24

the job, but also that 1) the attributes selected for 
examination are critical and not merely peripherally 
related to successful job performance; 2) the various 
portions of the examination are accurately weighted 
to reflect the relative importance to the job of the at­
tributes for which they test; and 3) the level of diffi­
culty of the exam matches the level of difficulty for 
the job.” Kirkland, 374 F. Supp. at 1372.

Leonard Rosenberg prepared the job analysis for the 
five challenged examinations. He lias been employed since 
1956 in the Department of Personnel in New York City, 
and has had varied experience in the personnel field, pri­
marily in the area of classification of civil service titles. 
Since 1970 he has been assigned to the Bureau of Examina­
tions, where he is responsible for all personnel matters re­
lating to the HRS Series of Titles. Although his earlier 
work had involved a large number of “desk audits” to de­
termine whether a particular city employee was perform­
ing duties appropriate to his title, (Tr. 177), the job analy­
sis for the challenged examinations* was the first he had 
undertaken for purposes of exam construction. (Tr. 230) 8

Opinion Dated January 10, 1975

8 Although each examination under challenge included both 
written and oral components, and seniority of employees was given 
some weight on the promotional exams, plaintiffs concentrate their 
attack on the written portions only. Such an approach is appro­
priate because only candidates who passed the written test were 
given the oral exam or graded on seniority. Moreover, virtually 
everyone passed the oral examination and its only effect on the 
appointment lists was to raise or lower a candidate a few places 
on the list. It appears that no member of plaintiffs’ class would 
be denied appointment as a result of the oral exam or seniority 
rating. See Vulcan, 360 F.Supp. at 1271-1272.



A-25

Rosenberg’s job analysis for the title of Sup. HRS9 was 
based on a series of visits to various HRA agencies and 
work locations during the period October 1-7, 1971. At the 
time of the visits, there were about 180 Sup. HRS provi­
sionals scattered throughout HRA. (Tr. 374) However, 
to safeguard against leakage of information relating to 
the forthcoming exams, and pursuant to city policy, Rosen­
berg advised HRA officials that he wished to confer only 
with permanent Sup. HRS’s. (Tr. 193) At the time of 
the audit there were seven permanent Sup. HRS incum­
bents, of whom Rosenberg interviewed four (Tr. 226). 
Beyond that he spoke to several HRA employees in higher 
titles and observed an unspecified number of HRA em­
ployees as they went about their work. (Tr. 224)

Defendants’ Exhibit P is the two-page written job anal­
ysis which Rosenberg prepared on the basis of his visits.10

9 By stipulation dated April 30, 1974, the parties in Williams 
agreed that, if called, the witnesses who testified on behalf of 
defendants in Jones as to the job-relatedness of examinations 1631 
and 2013 for the position of Sup. HRS would testify to the same 
effect with regard to the three examinations challenged in Williams, 
Nos. 1097, 1626 and 1099. Accordingly, we do not distinguish 
among the five examinations under challenge in our discussion of 
their preparation and job-relatedness.

10 Tiie first page lists several work locations Rosenberg visited 
and the names of the eight HRA employees (four permanent Sup. 
HRS’s and four employees in superior positions) he interviewed 
about the job of Sup, HRS. The second page lists eighteen “Ex­
amples of Typical Tasks” which Rosenberg observed in the course 
of the audit, including, for instance, “supervision of staff,” “solve 
problems of staff,” “conduct staff meeting for control and safety 
purposes,” “negotiations for funds to permit on-the-job develop­
ment of disadvantaged residents of poverty areas of N.Y.C.”

Each example is followed by several Roman numerals which 
designate the particular “knowledge and skills” Rosenberg found

(footnote continued on following page)

Opinion Dated January 10, 1975



A-26

Rosenberg also prepared a one page test plan* I. 11 III. IV. V. VI. VII. VIII. (Defen­
dants’ Exhibit Gl) based on the job analysis. The test 
plan lists eight areas to be covered on the Sup. HRS ex­
amination which are substantially identical to the eight 
knowledges and skills identified in the job analysis.

For the reasons discussed below, we find that the job 
analysis and test plan prepared by the city fall short of

Opinion Dated January 10, 1975

(footnote continued from preceding page)
to be required in the performance of each task. The eight “knowl­
edges and skills” include “Responsibilities of H.R.A. Central and 
its constituent agencies and relevant outside agencies,” “Familiar­
ity with developments and problems in programs affecting human 
resources and the amelioration or elimination of poverty,” ‘ Ability 
to supervise, direct and develop staff.” According to the job 
analysis most of the typical tasks observed by Rosenberg require 
at least five of the listed “knowledges and skills” : some required 
all eight.

11 In pertinent part, the test plan is as follows:
Relative

Areas to be Covered Emphasis
I. Function of H.R.A. its constituent agencies and

other relevant public and private agencies-----  15%
II. Current Developments and problems in the field

of human services ______________________  10%
III. Community relations and organization --------  10%
IV. Judgment in on-the-job situations involving

office services, payroll, budget and personnel ..... 20%
V. Techniques of staff development, supervision

and guidance ___________________________ 20%
VI. Machine, equipment and supply purchase,

usage and management including safety ------- 5%
VII. Language usage including vocabulary and read­

ing comprehension ___________________   10%
VIII. Arithmetic computations and interpretations of

tables, charts, and graphs __________    10%

100%



A-27

professional standards as delineated by the testimony and 
applicable case law. First, the evidence establishes that 
Rosenberg’s visits and interviews at work locations of 
HRA did not cover the full spectrum of tasks performed 
by those in the title of Sup. HRS. It is undisputed that 
Rosenberg did not interview people in most of the sub­
agencies of HRA including, for example, the Agency for 
Child Development and the Youth Services Administration 
(Tr. 235, 381; see Defendants’ Exhibit F). Consequently, 
the job analysis cannot—and on the face of it does not—12 
purport to be a complete profile of the job title. Without 
question, the city guidelines which prevented Rosenberg 
from interviewing provisionals in the course of his visits 
to HRA made a thorough job analysis nearly impossible. 
Of close to 200 employees in the title of Sup. HRS (about 
180 provisionals and 7 permanent incumbents), the city’s 
policy authorized Rosenberg to speak only to the seven 
permanent incumbents, and, in fact, he spoke to only four 
of these.13

The evidence establishes that a sample of four employees 
in the Sup. HRS title is insufficient to provide a full view 
of the job of Sup. HRS. All the witnesses agreed that it is 
difficult to imagine job titles broader than those in the

Opinion Dated January 10, 1975

12 See note 10, supra.
13 His failure to speak at least to all seven permanent Sup. 

IIRS’s is unexplained. We note, however, that Rosenberg’s visits 
were arranged, at his request, by HRA officials; and that Roseuberg 
appears to have given no specific instructions regarding the number 
and variety of personnel he wished to see (Tr. 11)2-195).



A-28

Opinion Dated January 10, 1975

HRS Series.14 (see e.g. Tr. 275, 381-382, 393, 421, 425, 497- 
498, 501-502) Employees holding the generic title Sup. HRS 
may do jobs ranging from payroll and purchasing of sup­
plies to public relations or program planning. (Defen­
dants’ Exhibit F) in twenty different kinds of programs 
(Tr. 381). Moreover, although there are a number of small 
clusters of Sup. HRS’s who do approximately the same 
land of work, there are no large sub-groups capable of 
easy categorization. (Tr. 382) In view of the variety of 
HRA activities, and work tasks associated with them, an in­
sufficient interview sample would seriously distort the over­
all picture15 16 (Tr. 572-575).

14 Some idea of the breadth of HRS’s activities will aid in under­
standing the variety of tasks performed by those in the three gen­
eric titles of Specialist, Supervising Specialist and Senior Special­
ist—and the corresponding difficulty of developing job related ex­
aminations to select for those titles.

The purpose of HRA as established in 1966 was to effect a city­
wide consolidation of programs in the areas of public assistance, 
social services, manpower development and employment and com­
munity action. The 35 year old Department of Social Services was 
IIRA’s major component. DSS included three federally-funded 
Bureaus of Public Assistance, Child Welfare and Special Services. 
In addition, the then Mayor Lindsay created, and placed within 
HRA, two other agencies: The Manpower and Career Development 
Agency, which combined all city manpower and employment ser­
vices, and the Community Development Agency, which provided 
technical staff assistance for the Federal Community Action Pro­
gram governed by the Council Against Poverty.

Later additions to IIRA included the Youth Services Agency, 
created in 1967, and the Agency for Child Development, a 1971 
consolidation of Headstart and City Day Care Programs. See 
Reorganization Plan for the City of New York Human Resources 
Administration (Defendants’ Exhibit H).

16 A concrete example of such possible distortion was mentioned 
several times in the course of the trial. Although questions relat­
ing to supervision of staff were given the maximum weight (20%)

(footnote continued on following page)



A-29

Defendants called two witnesses as to the adequacy of 
the .job- analysis. Everett Williams is a psychologist em­
ployed by the Educational Testing Service in Princeton, 
New Jersey. Mildred Katzell is a psychologist specializ­
ing in the held of measurement and evaluation. Their con­
clusion that the job analysis was professionally adequate 
(Tr. 409, 498) must be viewed in light of their criticism 
of the small sample and the restrictive city policy which 
caused it. Katzell conceded that “it might have been de­
sirable to have a larger sampling of the total gamut of 
the types of positions that are circumscribed by this title.” 
(Tr. 433-34) Williams testified that interviewing four out 
of seven permanent Sup. HRS’s was “very adequate in 
terms of a sample percentage,” but that “you typically 
would want to have more observation points if there are 
tiiese wide differences [in tasks performed], usually be­
tween 10% to 25% of the total class.” (Tr. 498-499) Wil­
liams made it clear that his opinion that the job analysis 
was adequate might change if the city’s restrictions on 
interviewing provisionals were lifted. (Tr. 499-500) But

Opinion Dated January 10, 1975

(footnote continued from preceding page)
on the test plan defendants’ witness Harold Yourmans, Director of 
Labor Relations for HR A, testified that only 60-65% of those in 
the Sup. HRS title do any supervision at all (Tr. 341-2, 391). 
Rosenberg testified that he thought “most” Sup. HRS’s have super­
vision responsibility, but did not supply a figure (Tr. 240-241). 
Of the four permanent incumbents he interviewed, three had duties 
involving supervision of other employees; one had little or none 
(Tr. 240). Although the 20% weight Rosenberg assigned to the 
“ability to supervise, develop and direct staff” roughly reflects his 
observations, as far as they went, it is evident that had Rosenberg 
seen, for example, one more or one less Sup. IIRS with supervisory 
duties, the job analysis, test plan and examination might well have 
been weighted differently.



A-30

the professional and legal inadequacy of a job analysis is 
not cured simply because there is an extrinsic explana­
tion for it, such as the city’s policy here. In view of the 
wide variety of tasks performed by those in the title of 
Sup. HRS and the large number and varied type of sub­
agencies within HRA, it is reasonable to assume that an 
adequate sample would approach the upper end of the 
10-25% spectrum mentioned by Williams (Tr. 581-582). 
Accordingly, we regard the 2% sample used in the job 
analysis for Sup. HRS (four of a group of about 180) as 
critically insufficient.

Defendants argue that Rosenberg’s prior experience with 
HRA matters, his interviews with employees in titles 
higher than Sup. HRS and his observations of many other 
employees whom he did not interview cure any deficiency 
in the sample. We disagree. Assuming that Rosenberg’s 
prior experience in HRA matters gave him a general 
knowledge of the Sup. HRS title, his private knowledge 
about HRA, however extensive, cannot have been of value 
to persons constructing the examination unless committed 
to writing in the job analysis. See Kirkland, 374 F.Supp. 
at 1373-1374. But that is not the case here; on its face, 
the written job analysis purports to be based only on in­
formation gathered from Rosenberg’s visits to HRA pur­
suant to his assignment to prepare the particular exami­
nations in issue.

In any event, the value of Rosenberg’s prior experi­
ence in personnel matters relating to HRA ought not be 
overestimated since, as noted earlier, it occurred primarily 
in the area of classification of job titles (Tr. 176-179, 218-

Opinion Dated January 10, 1975



A-31

222). Such work demands substantially different methods 
than those required for a thorough job analysis to be used 
as the foundation of an examination (Tr. 230-231, 570-571, 
577-579). Moreover, although the job analyses Rosenberg 
prepared for the three job titles in issue were the first 
he had done for an examination (Tr. 230); he spent only 
seven days to prepare the three job analyses. (Tr. 224) 
Rosenberg himself testified that a thorough job audit nor­
mally requires from a few days to two weeks (Tr. 229). 
Finally, although it was intended that Rosenberg actually 
prepare the examinations themselves, he was reassigned 
to another position and the task fell to Helene Willingham. 
Although Rosenberg may have known considerably more 
about the job of Sup. HRS than the written job analysis 
discloses, Willingham never secured the benefit of his 
knowledge. On the contrary, as it turned out Rosenberg 
took no part in the construction of the exam and did not 
review it before it was administered to insure that it 
matched the job profile (Tr. 201, 205, 210, 247).

Nor do the supplemental interviews of four employees 
in higher titles cure the inadequacy of the sample. Plain­
tiffs’ expert, Felix Lopez, testified that such interviews 
could not substitute for the perceptions of those holding 
the job to be tested, and that an adequate sampling of both 
categories of employees was necessary to a proper job 
analysis. (Tr. 574-575)

The relatively casual approach which characterizes the 
sampling of the Sup. HRS population is evident in the 
written job analysis itself. A critical step in any job anal­
ysis is the largely inferential one of breaking down an oh-

Opinion Dated January 10, 1975



A-32

served task into a set of component skills, abilities and 
knowledge (Tr. 521-522; 575-576) or, as Williams put it, a 
“going from some observation to a verbal description which 
is understandable to some set of people who will be involved 
in the act of putting together the [test].” (Tr. 525)

Lopez testified that he would not be able to construct 
a content-valid test on the basis of the job analysis and 
test plan. (Tr. 585) His criticisms were sensible and per­
suasive. First, the description of both “typical tasks” and 
“knowledge and skills” 16 are too ambiguous and unrefined 
to give any real idea about what the job involves and what 
is required to perform it. (Tr. 570, 572, 576, 580, 585-586; 
see also 518-519) The job analysis does not indicate what 
level of proficiency is required as to each skill, a critical 
defect. (Tr. 576-577, 580, 588) It does not explain how 
or why the skills in the test plan were weighted as they 
were, also a serious defect (Tr. 585-588); or even suggest— 
apart from the “examples of typical tasks”—that the jobs 
held by those in the title of Sup. HRS can bo different from 
one another and require different abilities (Tr. 469-71).

Opinion Dated January 10, 1975

,u For example, the task “negotiation for funds to permit on-the- 
job development of disadvantaged residents of poverty areas of 
N.Y.C.” (Defendants’ Exhibit F) might involve letter writing, 
attending meetings, face-to-face negotiation, legal research and 
many other skills; the capsule description provides no clue as to 
which (Tr. 588). The task “Encourages Community Corporations 
to develop expertise so that they can become autonomous of C.D.A. 
supervision” is similarly ambiguous. The same criticism applies 
to the “knowledge and skills required,” which include, for example, 
“ability to supervise and direct, staff,” “knowledge of community 
and public relations” and “skills in deciding problems relative to 
such on-the-job situations as office services, payroll, budget and 
personnel.”



A-33

Neither Rosenberg nor defendants’ experts satisfactorily 
refuted the existence of these defects in the job analysis. 
Rosenberg testified that in order to determine what knowl­
edge or skills were essential to performance in the job, he 
“analyzed each and every one of the functions, activities, 
jobs, duties, and determined that they fit into certain com­
mon areas . . . and as a result came up with the eight cate­
gories that became, in effect, the test plan.” (Tr. 199-200) 
These were weighted, Rosenberg testified according to “the 
incidence of the performance of specific types of duties and 
the essential importance, the criticality of the types of de­
cisions that would impinge [sic] on knowledge or lack of 
knowledge in the specific areas.” (Tr. 201-202)

Although Rosenberg correctly stated the general pro­
cedure to be followed he did not detail how it was applied 
to the job analysis for Sup. HRS (but see Tr. 257, 407-408, 
587-588).17 However, it is evident that no matter how well 
he applied the procedures, they could not have resulted in 
a thorough analysis. A determination that “each and every 
one of the functions, activities, job, duties” of a Sup. 
HRS fits into eight common areas is necessarily flawed 
where, as here, much of the spectrum of tasks remains 
uninvestigated. Similarly, a weighting of the relative im­
portance of “knowledge and skills” which is based on the 
relative frequency of their occurrence requires a sufficient 
sample to insure reliable measurement. Yet, as the written 
job analysis frankly acknowledges, Rosenberg listed only 
“examples of typical tasks” (emphasis supplied).

17 In fact Rosenberg conceded that his consultation of previous 
notices of examination played a significant part in his determina­
tion of relative weights (Tr. 11)9).

Opinion Dated January 10, 1975



A-34

C. Helene Willingham prepared the examinations for 
the title of Sup. HRS.18 She has been with the Examining 
Division of the Department of Personnel since 1959 and has 
prepared over 200 examinations, most of them in the social 
services area (Tr. 259-GO). In preparing the examination 
for Sup. HRS, she consulted the notice of examination, and 
the job analysis and test plan. However, the fact that she 
supplemented these with her own knowledge about the job 
title and ideas about what ought to go into the exam, 
(Tr. 280) and consulted the director of the Training Staff 
of HRA as to functions and skills involved in the Sup. HRS 
title (Tr. 279-280) suggests that she did not find Rosen­
berg’s work sufficiently complete. For example, she felt 
that the area of the test plan relating to “machine, equip­
ment and supply purchase, usage and management” was 
weighted too heavily because “it might have been too par­
ticular and too many people wouldn’t know anything about 
it.” (Tr. 291-292)

18 The determination of what sort of examination would be ap­
propriate for the job titles in issue appears to have been casually 
made. Rosenberg, who was to construct, the tests, considered giving 
an examination based partly on “training and experience”. Such 
an exam involves rating of applicants partly according to a resume 
of their education and employment history, and partly on a normal 
written test of the multiple choice type (Tr. 205-206). However, 
Rosenberg appears to have left the scene before a final choice was 
made; the record does not indicate who made the critical decision 
as to the kind of test to be used (Tr. 521-522).

Moreover, the decision to peg the passing score on the examina­
tions at 70% appears to have been based on administrative con­
venience rather than a determination that such a score separated 
those who are qualified for the job from those who are not. See 
Kirkland, 374 F. Supp. at 1577. Rosenberg testified that the pass­
ing grade was set at 70% because it was the normal City practice 
to do so (Tr. 248-240, see also Tr. 456-458, 612-616).

Opinion Dated January 10, 1975



A-35

The raw material for the individual questions or “items” 
on the examination came from several sources. Willingham 
consulted “all sorts of HRA procedural material and news­
letters” distributed to component agencies of HRA, various 
professional journals and government publications she 
thought relevant, and newspaper clippings and various 
texts. (Tr. 2G4-65) She also made extensive use of the 
training materials used in a course given by HRA to pre­
pare candidates for the Sup. HRS exam. (Tr. 273-274)

On reviewing the test plan and job audit, Willingham 
determined that some questions ought to be constructed 
by her staff and others ought to be referred to experts in 
particular fields. (Tr. 270) Accordingly, she invited two 
outside experts to submit questions dealing with community 
organization and community relations, supervision and cur­
rent events, of which nine or ten were used on the exami­
nation. (Tr. 272-273) There is no indication that Willing­
ham prescribed any requirements as to the level of pro­
ficiency or areas of concentration the questions should test. 
Indeed, it would have been difficult for her to do so, since 
neither the job analysis nor test plan provides any basis 
whatever for such refinements.

Indeed a similar problem exists with regard to the ap­
proximately seventy questions prepared by Willingham and 
her staff.10 Although she stated that “it was certainly pos- 19

19 Of these seventy questions, Willingham based about twenty 
on materials used in an HRA training course (Tr. 274, 281) whose 
primary purpose was to prepare candidates for the examination 
(i.e., make them “test-wise”), rather than to make them more 
effective Supervising Human Resources Specialists (Tr. 281, 292- 
293). Although the course was free of cost and open to all pro­
visionals (Tr. 281) there is no evidence as to how many people 
attended it (Tr. 294).

Opinion Dated January 10, 1975

(footnote continued on following page)



sible to decide on certain critical knowledges” based on 
Rosenberg’s materials (Tr. 291), Willingham did not ex­
plain how she did so; or decided such matters as the degree 
of difficulty of the questions. However, that is beside the 
point, since the fact that the job analysis and test plan 
needed refinement by Willingham suggests that they were 
inadequate to begin with.

Defendants’ experts were unenthusiastic in their ap­
praisal of the examination. Although Williams testified 
that the test was “reasonably well put together,” both he 
and Katzell expressed reservations about the quality of 
the item construction. Katzell observed that it was “quite 
evident” that many of the myriad rules governing the 
proper phrasing of questions and multiple-choice options 
on the test were violated (Tr. 411-412, 503).

Lopez concluded the test was “poorly constructed” (Tr. 
600). In particular he noted that many questions appear 
to have more than one correct answer—even to an expert

Opinion Bated, January 10, 1975

(footnote continued from preceding page)
It is noteworthy, however, that the course included “orientation 

in taking multiple choice questions, how to answer graph questions, 
reading questions” (Tr. 281), and that questions on grapli inter­
pretation and reading did in fact comprise a substantial portion 
of the Sup. HRS examination that Willingham constructed. These 
questions were the very ones which Willingham considered elimi­
nating in view of their discriminatory bias (Tr. 298) ; moreover, 
there was substantial evidence that the examination favored “test- 
wise” candidates familiar with multiple choice examinations (Tr. 
297-298, 314-316, 550-553, 609-612, 621-622, see also Barrett affi­
davit, Paragraph 8). In short, the City’s concern for total security 
with regard to the possible contents of the exam (Tr. 200, 237-238, 
281-282) appears to have boomeranged somewhat; since HRA 
officials saw neither the test plan nor examination prior to its ad­
ministration. They were not in any position to pre%rent. the possible 
advantage flowing to candidates who took the training course.



A-37

in the field; while others suggest the proper answer to a 
test-wise candidate who may not in fact “know” the answer. 
Indeed, the record suggests, if it does not establish, that 
the exam favored those with formal education, although 
only minimum educational requirements were imposed on 
candidates. (Tr. 590-597; 600-605; 621-622, see also Tr. 
297-298, 312-316, 550-553, Barrett affidavit, Paragraph 8)

D. The evidence as to the inadequate manner and method 
of preparation of the job analysis and the examination 
creates the “rebuttable inference” that the examination is 
not job-related. Vulcan, 490 F.2d at 395-396. Although in 
cases of this type the primary emphasis is on the validity 
of the methods used in creating the examination rather 
than the independent validity of the end product, Kirk­
land, 374 F.Supp. at 1373, the opinion testimony as to the 
content-validity of the exam itself confirms our conclusion 
that defendants have not shown the examination to be job- 
related.

Harold Yourman, Director of Labor Relations at HBA, 
has been with the Agency since 1967. Although he ob­
served that the exam “delves into the agency, HRA, [and] 
covers the full spectrum of HRA” (Tr. 362-363, 395) and 
is generally related to the position (Tr. 363), he expresses 
reservations about the substantial number of questions on 
supervision (Tr. 341-342, 391, 395) and conceded that the 
exam was not directly related to his earlier duties as a 
provisional Sup. HRS (Tr. 395-396).

Katzell is concededly not well-acquainted with the con­
tent of the job (Tr. 427) and her conclusion that the test 
“appears to have content-validity” (Tr. 479-80, 474-477)

Opinion Dated January 10, 1975



A-38

must be viewed in that light. She observed, as is obvious, 
that the questions on reading comprehension, vocabulary 
and graph interpretation related to those areas on the test 
plan (Tr. 427). However, these were the very areas that 
Willingham considered eliminating from the test, because 
of their possibly discriminatory bias (Tr. 298, see also 
Tr. 292-300) and which Lopez particularly criticized (Tr. 
608-612). As to other areas of the test, such as that deal­
ing with knowledge of the constituent agencies of HRA, 
Katzell testified that it would be “desirable” or “appropri­
ate” to have such knowledge (Tr. 475-477) but did not 
suggest it was critical.

Like Katzell, Williams stopped short of stating that the 
test was content-valid, observing only that procedures used 
to construct the test were consistent with content-validity 
(Tr. 504) and, somewhat tautologically, that successful 
performance on the test certifies that a candidate possesses 
the particular knowledge being tested for (Tr. 546-549; 
see also Tr. 247, 620). Indeed, none of the witnesses was 
willing to say that the test wras useful for selecting those 
who were likely to perform well on the job, which as we 
view the matter is the only reason for administering it. 
(See Tr. 247-248, 390, 449, 546, 569-70, 590, 605, 612, 620- 
621)

E. As noted above, direct testimony regarding the man­
ner of preparation and job-relatedness of the five exami­
nations under challenge was for the most part limited to 
the two examinations (promotional and open competitive) 
for the position of Sup. HRS under attack in Jones, the 
parties stipulated that the same testimony would be given 
as to the examinations involved in Williams. Although

Opinion Dated January 10, 1975



A-39

our findings as to the Sup. HRS exam require a finding 
that the other three exams (the open competitive exam for 
HRS and Senior HRS and promotional exam for Senior 
HRS) are not job-related, a comparison of the job analysis, 
test plans and examinations viewed as a group fortifies this 
conclusion.

For example, the job analyses and test plans for HRS 
and Senior HRS (Plaintiffs’ Exhibits 8 and 9) identifying 
“knowledge and skills” and “areas to be covered” that are 
almost identical to those listed in the analysis and plan for 
Sup. HRS; the relative weights assigned to the areas of 
the test are also substantially identical for all three titles. 
(Tr. 616-619) Not surprisingly, therefore, the tests based 
on these documents were very similar; Willingham, who 
prepared them, stated that the exams for HRS and Sr. 
HRS had forty questions in common (of a total of eighty), 
as did those for Sr. HRS and Sup. HRS. However, she 
sought to make the other forty questions on each test some­
what more difficult than those on the next lower level (Tr. 
318-320).

The problem with Willingham’s approach is that the job 
analyses and test plans provide no basis for rational dif­
ferentiation between the three levels to be tested. (Tr. 
618-620, 662-663) The fact that the materials prepared 
for the three titles do not distinguish to any appreciable 
extent between the nature of the jobs or the level of com­
petence needed to perform them confirms oxir conclusion 
that the examinations were not carefully prepared and, 
consequently, not job-related.

F. Although what we have said so far decides the case, 
it is necessary to comment further on certain factors

Opinion Dated January 10, 1975



A-40

which set the present suit somewhat apart from other 
cases of this type and which, as defendants view the mat­
ter, support a finding of job-relatedness.

In Chance, Vulcan, Bridgeport Guardians and Kirkland, 
the public agencies involved either had prepared no job 
analysis at all, or pieced one together from pre-existing 
documents of doubtful value for purposes of exam prepa­
ration. Moreover, with the possible exception of Chance, 
which involved supervisory positions in the New York City 
school system, the cases deal with positions (policeman, 
fireman and correction sergeant) whose component skills 
and tasks are relatively easy to define. This combination 
of factors somewhat simplified the determination as to job- 
relatedness in earlier cases.

The present suit does not readily fit into the mold estab­
lished in earlier decisions. It is evident that the “job” of 
Supervisor HRS is not a job in the same relatively restric­
tive sense as the job of policeman or fireman. Indeed, as 
Rosenberg acknowledged, jobs performed by individuals 
in the title of Supervising HRS may have nothing in com­
mon with each other except salary and general level of 
responsibility (Tr. 243). Not surprisingly, therefore, de­
fendants argue that the exams in issue pass constitutional 
muster even though they are not demonstrably related to a 
definable “job”. They contend that because HRA cannot 
in fact predict the type of work to which an individual 
might be assigned, the examinations were designed to test 
mastery of skills which Rosenberg found to be basic to all 
jobs performed by Supervising HRS’s (see Tr. 199, 202, 
240-243, 251-252, 275, 546).

The weakness of this argument is that defendants have 
not .established either that there is in fact such a core of

Opinion Dated January 10, 1975



A-41

skills common to all jobs within the extraordinarily dif­
fuse titles in issue (see Tr. 393-395, 421-422, 470-471) or 
that Rosenberg successfully identified them. Indeed, the 
evidence suggests the contrary. To cite the most obvious 
example, the examination for Sup. HRS involved twenty 
to tw-enty-five questions (of a total of eighty) relating to 
supervisory skill but, as noted earlier, only 60% to 65% 
of those in the title actually have supervisory responsi­
bility (Tr. 391, 478).

Moreover, the ten questions on the promotional exam 
for Sup. HRS relating to the internal organization of HRA 
were understandably attacked as peripheral to the duties 
of many individuals in the title; (Tr. 474) it is difficult to 
see how such questions can be considered essential to all 
those in the title in view of the fact that the open com­
petitive exam for Sup. HRS omitted these very questions 
in favor of more general questions dealing with “Functions 
of Relevant Public and Private Agencies” (Tr. 278-279).

Indeed, if defendants are correct that the examinations 
tested skills common to all jobs within the title and were 
job-related, it is nearly past understanding why substantial 
numbers of provisionals at all three levels failed the exami­
nation ; and why tire overall pass rates for the open com­
petitive exams for Sup. HRS and HRS were higher than on 
the promotional exams for the same titles.2'1 (See Tr. 450- 20

20 On the Sup. HRS exam, 31% of the candidates passed the pro­
motional exam, while 36% passed the open competitive exam. 
On the HRS exam 24% passed the promotional exam; 33% passed 
the open competitive. 37% passed the open competitive exam for 
Sr. HRS; 41% passed the promotional exam.

Even more significantly, only 41 out of 174 provisional Sup. 
HRS’s passed the test to qualify for permanent employment in the 
position they were already performing. See plaintiffs’ memoran­
dum in support of application for preliminary relief, page 6.

Opinion Dated January 10, 1975



A-42

457, 248, 327-328, 392-393, G15-G1G) Many of the provi­
sionals who failed the exams in issue had been in their 
jobs for two years or more and, significantly, the only 
evidence in the record indicates that they were highly effec­
tive performers.21 Despite the fact that the existence of 
large numbers of provisionals who had taken the tests pro­
vided a unique opportunity for a concurrent validation 
study, (Tr. 529 ff.) defendants have come forward with no 
evidence to suggest that provisionals were doing an inade­
quate job.

IV.

Opinion Dated January 10, 1975

R e m e d y

Plaintiffs seek and are entitled to declaratory and injunc­
tive relief. Accordingly, Examinations 2013, 1631, 1097, 
1099 and 1G26 are declared unconstitutional and defendants 
are enjoined from making appointments from eligible lists 
based on their results, and from terminating the provisional 
appointments of those in plaintiffs’ proposed class to their 
respective positions solely because they failed the exami­
nations.

21 The named plaintiffs have filed affidavits of their supervisors 
as well as HRA performance rating forms which uniformly indi­
cate a high level of professional performance on the very jobs for 
which they were tested here. See, e.g., affidavit of Miguel Martinez, 
dated September 8, 1974; affidavit of Carolyn Gentile, dated Sep­
tember 7, 1973, both in support of plaintiffs’ application for a 
preliminary injunction.

Defendants’ witness, Harold Yourman, testified that the pro­
visionals with whose work he was familiar were all competent per­
formers (Tr. 392).



A-43

In addition, plaintiffs seek affirmative relief (1) requir­
ing defendants to appoint an unspecified number of mem­
bers of plaintiff class to the three positions “based on their 
experience, education and qualifications,” including evalua­
tion of their performance as provisionals; (2) directing 
defendants to develop and administer either written exami­
nations in accordance with the EEOC guidelines,22 or some 
other selection process which is non-discriminatory and 
job-related; (3) establishing a temporary procedure for 
selection to the three positions while new permanent pro­
cedures are developed or, alternatively, (4) directing the 
permanent appointment of the present provisionals to the 
jobs they now hold.

Although the invalidation of the five examinations in 
issue authorizes the court to fashion appropriate affirma­
tive relief, see Louisiana v. United States, 380 U.S. 145, 154 
(19G5), Guardians, 482 F.2d at 1340, the proper course is 
to defer decision as to the nature and extent of affirmative 
relief to enable defendants to respond to proposals set forth 
in plaintiffs’ post-trial brief. Accordingly, defendants are 
directed to file a memorandum on these issues within ten 
days of the filing of this Opinion, with plaintiffs to submit 
any reply within one week thereafter.

There remains the matter of plaintiffs’ motion for a class 
action determination in both Williams and Jones. Plain­
tiffs’ proposed class is composed of Blacks and Hispanics 
who took and failed one or more of the five challenged 
examinations; or who took and passed an examination but

Opinion Dated January 10, 1975

22 See “Equal Employment. Opportunity Commission Testing and 
Selecting Employees Guidelines,” 29 C.F.R. §1607 at §1607.5(a).



A-44

scored too low to be initially appointed. Defendants have 
no objection to the grant of class status if the class is 
limited to those who failed an exam. However, although 
plaintiffs have satisfied the requirements of Rule 23, there 
is no need to designate a class; plaintiffs have requested 
only declaratory and injunctive relief, which will in any 
event benefit all members of the proposed class. See 
Vulcan, 360 F.Supp. at 1266-1267, note 1; Bridgeport 
Guardians, 354 F.Supp. at 783; 3B Moore, Federal Prac­
tice lj23.10-1 at 2768 (2d Ed. 1969). Accordingly, the motion 
is denied.

Plaintiffs’ request for an award of reasonable attorneys’ 
fees is denied. Although counsel fees were awarded in 
Kirkland, 374 F.Supp. at 1380-1382, they are not appro­
priate in the present suit. Kirkland involved an examina­
tion for the position of correction sergeant, whose prepara­
tion did not present the uniquely difficult problems involved 
in testing for the titles in issue here. Moreover, while in 
Kirkland there was an almost complete failure of proof 
on the issue of job-relatedness, we are impressed in the 
present case by the sincere efforts of Rosenberg and Wil­
lingham to construct tests in accordance with the stringent 
legal standards applicable in this Circuit, however inade­
quate the examinations proved to be.

Submit order.

Opinion Dated January 10, 1975

Morris E. L asker 
U.S.D.J.

Dated: New York, New York 
January 10, 1975.



A-45

Supplemental Opinion o f District Court 
Dated March 19, 1975

UNITED STATES DISTRICT COURT
Southern District of New York

[ caption omitted]

A p p e a r a n c e s :

Covington, H oward, H agood & H olland, Esqs. 
15 Columbus Circle 

New York, New York 10023

Deborah Greenberg, Esq.
J ack Greenberg, Esq.
J effrey Mintz, Esq.

10 Columbus Circle 
New York, New York 10015 

Attorneys for Plaintiffs

W. Bernard R ichland, Esq.
Corporation Counsel of the 
City of New York 

Municipal Building 
New York, New York 10007 

Attorney for Defendants

P aula J. Omansky, Esq.
Assistant Corporation Counsel



A-46

Supplemental Opinion Dated March 19, 1975 

L asker, D.J.

Plaintiffs move, pursuant to Rule 54(b), Federal Rules 
of Civil Procedure, for an order revising our Opinion filed 
January 10,1975, by striking from it the paragraph relating 
to plaintiffs’ request for counsel fees, (Slip Op. at 42-43), 
and substituting a statement that we reserve decision on 
that issue pending clarification of the applicable law by 
the Court of Appeals for this Circuit and the Supreme 
Court.

Putting aside the procedural objections to such a course, 
which are persuasively set forth in Defendants’ Memoran­
dum in Opposition, the motion is denied.

We do not agree with plaintiffs that the uncertain state 
of the law as to the award of counsel fees in §1983 cases 
justifies the unusual relief requested here. Trial courts 
are regularly called upon to rule when the laAv is not set­
tled; we have done so in the present case and adhere to 
the conclusion reached in our January Opinion.

It is true that we awarded counsel fees in Kirkland v. 
N.Y. State Department of Correctional Services, 374 F. 
Supp. 1361, 1380-1382 (S.D.N.Y. 1974). In doing so, we 
noted that the issue of availability of attorney’s fees in 
§1983 cases is “novel, at least in this Circuit,” and cata­
logued at some length decisions of other Courts of Appeal 
which approved the award of fees in similar cases, “without 
relying on a showing of bad faith or unreasonable ob­
duracy of defendants.” 374 F.Supp. at 1381.

We did not express a view as to whether a trial court 
must award counsel fees in (‘.very §1983 case in which fees 
would have been awarded had the suit been brought by a



A-47

parallel jurisdictional route, e.g., Title VII of the 1964 Civil 
Rights Act. Indeed, it was not necessary in Kirkland to 
determine that issue; having found that counsel fees may 
he awarded in §1983 cases even in the absence of had faith, 
we awarded lees on the strength of our finding that “posi­
tive evidence of job-relatedness is conspicuous by its ab­
sence.” 374 F.Supp. at 1378. In short, we held only that 
a showing of bad faith was not a prerequisite to recovery 
of fees; we did not hold that defendants good faith is not 
a factor to be considered in determining whether an award 
should be granted.

Shortly after Kirkland was filed, the Court of Appeals 
furnished a pair of clues as to its view on the subject. 
Jordan v. Vusari, 496 F.2d 646 (2d Cir. 1974), decided four 
weeks after Kirkland, was a §1983 class action in which the 
trial judge awarded attorneys fees to successful plaintiffs 
who claimed unemployment compensation benefits, the fees 
to be paid out of the recovery. On appeal, the appellee 
argued that moneys in a state’s unemployment fund are 
payable solely for unemployment benefits. Appellants dis­
puted that contention and argued, for the first time on 
appeal, that fees were in any event recoverable on the 
private attorney general theory espoused in Newman v. 
Piggie Park Enterprises, 390 U.S. 400, 402 (1968). Noting 
that this alternative theory had not been presented to the 
district judge, the court remanded the issue, observing that 
appellants’ new contention might “well justify a judgment 
imposing reasonable attorneys fees on defendant, without 
deduction from the awards to plaintiffs’ class.” 496 F.2d 
at 650-651.

Supplemental Opinion Dated March 19, 1975



A-48

While Jordan indicated the possible availability to suc- 
eessthl plaintiffs in a §1983 case of attorneys fees, it did not 
suggest under what circumstances they are properly 
awarded. The Court of Appeals intimated those standards 
in Bridgeport Guardians, Inc. v. Bridgeport Civil Service 
Comm’n, 497 F.2d 1113, (2d Cir. June, 1974). Appellants 
argued that the court below had abused its discretion by 
refusing to award attorneys fees. The trial judge found 
it had discretion to award such fees, but denied them be­
cause the litigation was not compelled by defendants’ “un­
reasonable, obdurate obstinacy,” see Stolherg v. Trustees 
for the State Colleges of Connecticut, 474 F.2d 485, 490 
(2d Cir. 1973). In affirming, the court did not “rule out 
the possibility that counsel fees might be appropriate in 
some §1983 eases,” but stated that “the failure of Congress 
to provide for such fees . . .  is significant,” 497 F.2d at 1115 
(emphasis added). Because the court found only that the 
trial judge had not abused his discretion in denying fees, 
it did not comment on the legal standard applied by the 
trial judge. However, it did note that some of the factors 
to be considered in determining whether an award is to 
be made are “all the facts of [the] case, the contribution 
made by counsel for plaintiffs, as well as the reasonable­
ness of the resistance to the plaintiffs’ claims by the defen­
dants.” 497 F.2d at 1115.

As we read Jordan and Bridgeport Guardians, the Court 
°f Appeals—if it holds that awards are available at all in 
§1983 cases-—would not award them virtually as a matter 
of right, as in cases involving explicit statutory authoriza­
tion. Following the suggestion of the Court of Appeals in 
Bridgeport Guardians, supra, we believe that the proper

Supplemental Opinion Dated March 19, 1975



standard for awards in §1983 eases lies somewhere in be­
tween “automatic” awards and those available only on the 
very stiff showing of defendants’ bad faith.

This is the standard we applied—and intended to apply— 
in Jones in declining plaintiffs’ request on the ground that 
defendants had made reasonable efforts to comply with 
constitutional requirements which, in the field of civil 
service testing, appear to be unusually difficult to satisfy.

The motion is denied.

It is so ordered.

Supplemental Opinion Dated March 19, 1975

Morris E. Lasker 
U.S.D.J.

Dated: New York, New York 
March 19, 1975.



A-50

UNITED STATES DISTRICT COURT 
Southern District oe New York

Final O rder and Judgm ent o f D istrict Court
Dated May 23, 1975

[ caption omitted]
--------------------- -------------------------

This action having been tried to the Court without a jury, 
and the Court having made findings of fact and conclusions 
of law by opinion dated January 10, 1975, declaring Ex­
amination Nos. 2013, 1G31, 1099, 1626 and 1097, prepared 
and administered by the New York City Department of 
Personnel, for appointment within the New York City 
Human Resources Administration to the positions of Super­
vising Human Resources Specialist, Senior Human Re­
sources Specialist and Human Resources Specialist to be 
unconstitutional, and setting the said examinations aside; 
and the original parties hereto having filed memoranda in 
relation to the relief which should be afforded in accord­
ance with the findings and conclusions of the Court; and 
the Court having expressed its views on the issue of relief 
by opinion dated April 4, 1975, and May 9, 1975 it is Or­
dered, Adjudged and Decreed:

1. Case No. 73 Civ. 3815 (Jones v. H.R.A.) and Case 
No. 74 Civ. 91 (Williams v. H.R.A.) are hereby consolidated 
for all purposes.

2. These actions are hereby certified as class actions 
under Rule 23 of the Federal Rules of Civil Procedure, with



A-51

the class to bel imited to those Blacks and Hispanics who 
failed any one of the examinations heretofore adjudged to 
be invalid and unconstitutional.

3. Examination Nos. 2013, 1631, 1099, 1626 and 1097 are 
declared invalid as violating the Constitution of the United 
States.

4. The defendants New York City Human Resources Ad­
ministration, New York City Department of Personnel, and 
New York City Civil Service Commission, and the named 
defendants Sugarman, Bronstein, Smith and Stadtmauer, 
and their agents, employees, and successors in office are per­
manently enjoined from:

(a) making permanent or provisional appointments to 
the positions of Supervising Human Resources Specialist, 
Senior Human Resources Specialist and/or Human Re­
sources Specialist in the New York City Human Resources 
Administration based upon the results of Examination Nos. 
2013, 1631, 1097, 1626 and/or 1099 or any eligible list pro­
mulgated pursuant to any of the said examinations;

(b) administering or promulgating eligible lists based 
upon, or in any way acting upon the results of Examination 
Nos. 2013, 1631, 1097, 1626 and/or 1099 for the positions 
of Supervising Human Resources Specialist., Senior Human 
Resources Specialist, and/or Human Resources Specialist.

5. The defendants, their agents, employees and succes­
sors in office, are mandatorily enjoined to develop lawful 
non-discriminatory selection procedures for the positions 
of Supervising Human Resources Specialist, Senior Human

Final Order and Judgment Dated May 23, 1975



A-52

Resources Specialist and Human Resources Specialist. In 
so doing, they shall adhere to the following general guide­
lines :

(a) The new selection procedures shall be developed 
within the shortest practicable period;

(b) The new selection procedures shall be developed and,, 
before usage for promotional or appointment purposes, 
validated in accordance with the EEOC Guidelines on Em­
ployment Selection Procedures, 29 C.F.R. §1607.1 (1970), 
as those Guidelines are or as later revised.

6. The defendants shall submit to the court within thirty 
days a detailed plan for the development of the selection 
procedures described in Paragraph 5 hereof, and furnish a 
copy of the plan to plaintiffs. Two weeks thereafter plain­
tiffs shall submit to the court and defense counsel in writing 
such comments as they may have with regard to the pro­
priety of the defendants’ plan. Thereafter the court shall 
approve the plan as submitted or shall order such modifi­
cation as it deems necessary to carry out the terms of this 
judgment.

7. The preliminary injunction against the administra­
tion of a promotional or open competitive examination for 
the position of Principal Human Resources Specialist is dis­
continued. Defendants shall publish the Notice of Examina­
tion for the position of Principal Human Resources Special­
ist at least 30 days before the date on which any such ex­
amination is scheduled to he administered.

Final Order and Judgment Dated May 23, 1975



A-53

Final Order and Judgment Dated May 23, 1975

8. Plaintiffs’ request for the award of counsel fees to 
plaintiffs’ attorney is denied.

Dated: New York, New York 
May 23, 1975.

Morris E. L asker

U.S.D.J.



A-54

Opinion of the Court of Appeals for the Second Circuit

UNITED STATES COURT OF APPEALS
F oe the Second Circuit

Nos. 327, 645, 646—September Term, 1975. 
(Argued December 4, 1975 Decided January 26, 1976.) 

Docket Nos. 75-7368, 75-7395, 75-7396

J ames C. J ones, et al.,
Plaintiff s-Appellees,

■—against—-

T he New York City H uman R esources 
Administration, et al.,

Defendants-Appellants.

D orothy W illiams, et al.,
Plaintiffs-Appellees,

—against—

T he  New York City H uman R esources 
Administration, et al.,

Defendants-Appellants.

B e f o r e  :

Smith and F einberg, Circuit Judges, 
and W ard, District Judge.*

Of the United States District Court for the Southern District of New 
York, sitting by designation.



Appeals from decision of United States District Court 
for the Southern District of New York, Morris E. Lasker, 
J finding that civil service examinations of New York City 
Human Resources Administration violated the Constitu­
tion, and denying attorneys’ fees.

Affirmed.

A-55

Opinion of the Court of Appeals for the Second Circuit

P a u l a  J .  O m a n s k y , New York, N.Y. ( W . Ber­
nard Richland, Corporation Counsel, City 
of New York; L. Kevin Sheridan, on the 
brief), for Defendants-Appellants.

D e b o r a h  M. G r e e n b e r g , New York, N.Y. (Jack 
Greenberg; Covington, Howard, Hagood & 
Holland, on the brief), for Plaintiff's-Appel­
lees.

F e in b e r g , Circuit Judge:
This case presents a challenge to civil service examina­

tions on the familiar ground that they are racially dis­
criminatory.1 In a thorough opinion, 391 F. Supp. 1064, 
the United States District Court for the Southern District 
of New York, Morris E. Lasker, J., held that five exam­
inations given by the New York City Human Resources 
Administration unconstitutionally discriminated against 
black and Hispanic applicants. We affirm.

I
In October 1972, the Human Resources Administration 

(HRA), which administers various city social services pro-

1 See Kirkland v. New York State Dep’t of Correctional Serve., 520 
F.2d 420, 425-26 (2d Cir. 1975); Vulcan Society of the New York City 
Fire Bep’t, Inc. v. Civil Serv. Comm’n, 490 F.2d 387 (2d Cir. 1973); 
Bridgeport Guardians, Inc. v. Members of the Bridgeport Civil Serv. 
Comm’n, 482 F.2d 1333 (2d Cir. 1973); Chance v. Board of Examiners, 
458 F.2d 1167 (2d Cir. 1972).



grams, gave a series of nine examinations for certain po­
sitions.2 Before us are challenges to five of them, in two 
consolidated class-action lawsuits.3 After a non-jury trial, 
Judge Lasker found that the tests had a disproportionate 
impact on minority applicants and that defendants had not 
carried their burden of showing that performance on the 
examination reflected qualification for the job. Accord­
ingly, in a final judgment and order dated May 23, 1975, 
the judge declared the five tests unconstitutional, enjoined 
defendants from making appointments based on the results 
of the discredited examinations, and ordered defendants 
expeditiously to develop lawful and non-discriminatory 
selection procedures in accordance with the EEOC Guide­
lines on Employment Selection Procedures, 29 CFR 
§ 1607.1. He also denied plaintiffs’ request for attorneys’ 
fees. 391 F. Supp. at 1086-87.

Both sides have appealed. Defendants concede that 
Judge Lasker correctly stated the legal principles that 
govern the case:

The ground rules established in [the decision of this 
court listed in note 1 supra] require plaintiffs to make 
a prima facie showing that the examinations have

2 For each of three HRA job titles—Human Resources Specialist, Super­
vising Human Resources Specialist, and Senior Human Resources Spe­
cialist—three examinations were given: an open competitive examination, 
open to anyone who met certain general qualifications; a promotional 
examination, open only to HRA employees in the grade next below that 
for which the examination was given; and a specialty examination in 
Manpower Development and Training.

3 Plaintiffs in Jones challenge the open and promotional examinations 
for Supervising Human Resources Specialist, and those in Williams a t­
tack the open and promotional examinations for Senior Human Resources 
Specialist and the open examination for Human Resources Specialist. 
Although Judge Lasker’s reported opinion denies class action certifica­
tion, 391 F. Supp. at 1086, in subsequent unreported opinions, dated 
April 4, 1975 and May 9, 1975, class action status is granted and the 
class defined as "all Blacks and Hispanics who failed any of the five 
examinations in issue.”

A-56

Opinion of the Court of Appeals for the Second Circuit



A-57

a “racially disproportionate impact,” Vulcan, 490 F.2d 
at 391, Chance, 458 F.2d at 1175-76 . . . .  Upon such 
a showing the burden shifts to the defendants to 
establish that the challenged examinations are job- 
related, Vulcan, 490 F.2d at 391. . . . The burden on 
defendants is “a heavy one,” Chance, 458 F.2d at 
1176, Guardians, 482 F.2d at 1337, but is discharged 
if they “come forward with convincing facts estab­
lishing a fit between the qualification and the job.” 
Vulcan, 490 F.2d at 393 . . . .

391 F. Supp. at 1067. They argue, however, that his 
factual findings of disproportionate racial impact and non- 
job-relatedness are clearly erroneous. Plaintiffs appeal 
from the denial of attorneys’ fees.

II

A. Disproportionate Racial Impact

The statistical tables set out in Judge Lasker’s opinion, 
391 F. Supp. at 1068-69, show that the passing rates 
for whites on the challenged examinations were 54%, 54%, 
88%, 65% and 51%; for blacks the corresponding per­
centages were 17, 16, 18, 26 and 31; and for Hispanics, 
19, 15, 37, 27 and 19. As the trial court pointed out,

the existing figures for all five examinations clearly 
indicate a disparity between the passing rates of 
white and minority candidates in excess of the 1.5 to 
1 ratio which Chance held insufficient to establish 
a prima facie case.

391 F. Supp. at 1069.
Defendants’ primary objection to this analysis is that 

the statistics on which it is based are incomplete, and

Opinion of the Court, of Appeals for the Second Circuit



therefore form an inadequate basis for Judge Lasker’s 
conclusion. The problem is that the only individuals tak­
ing the test whose race is known are those who were al­
ready employed by HRA; no records were kept of the 
race of other applicants. Thus, for the promotional exam­
inations the race of substantially all applicants is known, 
but for the three challenged open competitive examinations 
the differential passing rates cited above were based only 
on those who were already HRA employees: 51%, 54% 
and 60% of the total number of candidates.

We agree with Judge Lasker that the incompleteness 
of the data is not fatal to his findings that plaintiffs had 
made out a prima facie case of disproportionate impact. 
The inference that the available data accurately repre­
sented the results of the test for all candidates is a 
reasonable one. In the absence of any reason to believe 
otherwise, it seems highly unrealistic to believe that mi­
nority applicants who were not HRA employees would 
so far outperform their white counterparts as to wipe 
out the substantial disparity between the white and mi­
nority HRA employees who took the same test, particu­
larly in the light of expert testimony that such a result 
was unlikely.4

Defendants also argue that on the particular facts of 
this case, even if the results of the five challenged exam­
inations were racially discriminatory, plaintiffs still did 
not make out a prima facie case because the results of 
the other tests in the same series were not racially dispro­
portionate, and the material covered on the challenged 
and the unchallenged tests, which were constructed by the 
same process, was largely identical. This argument does 
tend to rebut the inference plaintiffs seek to draw from

4 We recognize that defendants also offered expert testimony which 
tended to support their view of this question. But it was for the trial 
court to decide which testimony was more persuasive.

A-58

Opinion of the Court of Appeals for the Second Circuit



the data, but it is an argument for the trier of fact. In 
light of Judge Lasker’s careful consideration of the argu­
ment and persuasive analysis of the statistics in the 
record concerning the unchallenged tests, 391 F. Supp. 
at 1073-75, we cannot find his rejection of defendants’ 
factual argument clearly erroneous.

B. J  oh-Relatedness
Defendants’ attack on Judge Lasker’s finding that the 

challenged examinations were not sufficiently job-related to 
overcome plaintiffs’ prima facie statistical case has two 
aspects. Judge Lasker, following the procedure approved 
by this court in Vulcan Society, supra note 1, 490 F,2d at 
395-96, and Kirkland, supra note 1, 520 F.2d at 425-26, con­
centrated his attention on the method of test construction 
used by the defendants. Defendants argue that (1) the dis­
trict court’s finding that their method of test construction 
was “inadequate,” 391 F. Supp. at 1083, was clearly errone­
ous, and (2) even if that finding was correct, the further 
finding that the test was not job-related is erroneous be­
cause the trial court insufficiently analyzed the content of 
the test.

Both points are dealt with thoroughly in Judge Lasker’s 
opinion. Rather than repeat the details of the test-construc­
tion method, we refer the reader to the lengthy discussion 
there, 391 F. Supp. at 1077-84. Defendants stress the expert 
testimony they presented to support the professionalism of 
their construction of the challenged tests. At the very least, 
it must be conceded that unlike the defendants in the cases 
cited in note 1 supra, HRA had made a good faith effort to 
prepare adequate job analyses and to construct a test which 
measured qualities demanded by the jobs in question. But 
plaintiffs’ expert testified flatly that the job analysis “does 
not even remotely meet professional standards,” that “the

A-59

Opinion of the Court of Appeals for the Second Circuit



written test was inadequate as a measure of . . . perfor­
mance in the job,” and that “there was no evidence for con­
tent validity or any other validity of this test.” 5 After a 
careful analysis of the evidence, Judge Lasker chose to 
believe plaintiffs’ expert testimony rather than that of 
defendants. We see no reason to disturb his finding.

Defendants’ argument that Judge Lasker insufficiently 
analyzed the content of the examination is without merit. 
Pointing to the broad range of functions that might be 
performed by someone in one of the job categories for 
which the tests were given, defendants argue that this 
requires a test that covers not specific knowledge but mas­
tery of certain “core skills” basic to all jobs performed by 
those in each job title. But Judge Lasker found that defen­
dants had not established the existence of such a common 
core of skills, or that the job analyses prepared by 1IRA 
successfully identified them, or that the examinations given 
tested for them. 391 F. Supp. at 1084-85. These findings 
were clearly permissible on the record before the trial court.

In short, we repeat what we said in Chance, supra note 1, 
458 F.2d at 1175:

While not all of us might have made the same factual 
finding on the question of job-relatedness as the dis­
trict judge did, his finding was not clearly wrong.

I l l
Plaintiffs argue that the district court erred in denying 

them attorneys’ fees. They maintain that plaintiffs suing 
pursuant to 42 TJ.S.C. § 1983 are entitled to recover attor­
neys’ fees as a matter of course, because that statute in­
corporates the remedial mechanisms of other civil rights

A-60

Opinion of the Court of Appeals for the Second Circuit

For a discussion of the different types of teat validity, see Vulcan 
Society, supra note 1, 490 F.2d at 394-95.



statutes, including Title VII of the Civil Rights Act of 
1964. The argument is ingenious, hut it is clear from Kirk­
land, supra note 1, 520 F.2d at 430 & n.37, and Bridgeport 
Guardians, Inc. v. Members of the Bridgeport Civil Service 
Comm’n, 497 F.2d 1113, 1115 (2d Cir. 1974), cert, denied, 
421 U.S. 991 (1975), that this circuit has not accepted the 
view that attorneys’ fees are routinely available in section 
1983 suits.

Plaintiffs also attempt to bring themselves within the 
exceptions left open by the Supreme Court in Alyeska 
Pipeline Service Co. v. The Wilderness Society, 421 U.S. 
240, 258-59 (1975), to the general rule that attorneys’ fees 
may not be awarded absent statutory authorization. In 
light of the explanation of the “common benefit” cases in 
F.D. Rich Co. v. Industrial Lumber Co., 417 U.S. 116, 130 
(1974), as involving a “shifting of fees . . .  to spread the 
cost proportionately among the members of the benefited 
class,” we are not at all sure that plaintiffs come within 
that exception.6 But even if we were convinced that the 
exception applied here, the award of fees would still be 
within the discretion of the district court, see Hall v. Cole, 
412 U.S. 1 (1973), and on this record we could not find 
that the district court abused its discretion in failing to 
award fees. Finally, plaintiffs argue that Judge Lasker 
should have awarded attorneys’ fees because of defendants’ 
“bad faith.” We see no basis on this record for overturn­
ing the judge’s finding that “defendants had made reason­
able efforts to comply with constitutional requirements.” 
391 F. Supp. at 1087.

The judgment of the district court is affirmed.

A-61

Opinion of the Court of Appeals for the Second Circuit

6 See also Alyesha, 421 U.S. at 257-58; Lewis v. Texaco Inc., slip op. 
949, 958-60 (2d Cir. Dee. 9, 1975).



ME1LEN PRESS INC. — N. Y. C. 219