Vulcan Society of Westchester County, Inc. v. Fire Dept. of the City of White Plains Plaintiffs Joint Memo of Law in Support of Approval

    UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF NEW YORK

VULCAN SOCIETY OF WESTCHESTER 
COUNTY, INC., et al.,

Plaintiffs, 78 Civ. 911 (ADS)
- v -

FIRE DEPARTMENT OF THE CITY OF 
WHITE PLAINS, et al.,

Defendants.

UNITED STATES OF AMERICA, :
Plaintiff, :

- v - :
NEW YORK STATE DEPARTMENT OF 
CIVIL SERVICE, et al., :

Defendants. :
-x

80 Civ. 336 (ADS) 

(Consolidated Actions )

PLAINTIFFS' JOINT MEMORANDUM 
OF LAW IN SUPPORT OF APPROVAL 
BY THIS COURT OF THE PROPOSED 

CONSENT JUDGMENTS_____



1 y »

TABLE OF CONTENTS
Page

Preliminary Statement ........................... 1
Statement of Facts ........................... 3

A. Prior Proceedings ........................ 3
1. The Vulcan Action ...................... 3
2. The Government Action ..................  5

B. Background Facts    7
C. The Consent Judgments ..................... 18

Argument 22
The Consent Judgments Are Fair, Reasonable 
And In Furtherance of Public Policy,
And Therefore Should Be Approved In Their
Entirety ..............'......................  22
Standard of Judicial Review of Consent
Judgments ..................................... 22
The Reasonableness of the Terms of the
Consent Judgments .......................  34

A. Prohibitions Against Future
Discrimination ....................... 34

B. Hiring Goals ....................... 35
C. Recruitment and Training ............ 39
D. Selection Procedures ................. 42

1. Language Improvement of
r Written Tests .....................  42

2. Interim Relief Concerning
Written Tests .................... 47

3. Physical Strength/Agility Tests and
Elimination of Height and Reach 
Requirements ..................... 55

4. Applicants With Conviction Records or
History of Drug Abuse ............ 58
Other Requirements for Firefighters, 

i

4

5. 65



« TABLE OF CONTENTS 
(continued)

6. Promotion to Fire Officer .........

E. Reporting Requirements ....................
F. General Injunctive Relief and Compliance ...
G. Back Pay for Class Members and

Individual Plaintiffs in Vulcan ...........

Page

66

68

69

70

Conclusion 74



'J -v ■V"

>

UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF NEW YORK 
- - - - - - - - - - - - - - - - -  -x
VULCAN SOCIETY OF WESTCHESTER 
COUNTY, INC., et al. ,

Plaintiffs,
- v -

78 Civ. 911 (ADS)

FIRE DEPARTMENT OF THE CITY OF 
WHITE PLAINS, et al.,

Defendants.
- - - - - - - - - - - - - -  - — — x
UNITED STATES OF AMERICA,

Plaintiff,
- v - 80 Civ. 336 (ADS)

NEW YORK STATE DEPARTMENT OF ’ (Consolidated Actions)
CIVIL SERVICE, et al., :

Defendants.
x

PLAINTIFFS' JOINT MEMORANDUM 
OF LAW IN SUPPORT OF APPROVAL 
BY THIS COURT OF THE PROPOSED 

CONSENT JUDGMENTS

The respective plaintiffs in these two consolidated
actions respectfully submit this joint memorandum of law urging
approval by this Court, pursuant to Rule 23 of the Federal Rules
of Civil Procedure and section 707 of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. § 2000e-6, of the
proposed Consent Judgments* submitted to the Court. These
^ The proposed Consent Judgment in 78 Civ. 911 (ADS) will be 
referred to for convenience as the "Vulcan Consent Judgment." The 
proposed Consent Judgment in 80 Civ. 336 (ADS) will be referred to 
herein as the "Government Consent Judgment."



• o

Consent Judgments, representing the culmination of approxi­
mately a year of intensive negotiations among the plaintiffs 
and the state and municipal defendants representing the 
New York State Department of Civil Service (the "State 
defendants") and the Cities of White Plains, Mount Vernon and 
New Rochelle (the "City defendants"), resolve all outstanding 
issues among the plaintiffs and the State defendants and the 
City defendants (collectively, the "settling defendants"),* ' 
with certain minor exceptions.**

For the reasons hereinafter set out in detail, the 
plaintiffs submit that the terms of these proposed Consent 
Judgments represent fair, reasonable and equitable methods of 
resolving the claims made by the plaintiffs, preserving the 
ability of the City defendants to select among qualified appli­
cants for positions in the respective fire departments, and 
generally assuring that the employment practices of the defen­
dants will not serve as engines of discrimination against 
Blacks, Hispanics and women.

The City of Yonkers and those of its officers and agencies 
made parties to these actions have declined to settle either 
action. Accordingly, this memorandum does not discuss these 
actions as they apply to the Yonkers defendants.
** In the Vulcan Society case, 78 Civ. 911 (ADS), issues 
relating to attorneys' fees, costs and disbursements for 
plaintiffs' counsel and certain cross-claims among the settling 
defendants are reserved for future determination. In addition, 
the issue of the job-relatedness is being tried separately to 
this Court and will control the retention or not of a high school 
diploma or its equivalence as an entry level requirement.

2



«
/ v ' ' \

Statement of Facts
For the convenience of the Court, the plaintiffs 

t will summarize briefly the relevant facts of these cases.
The prior proceedings in these actions, relevant factual 
material regarding the employment practices of the settling , 
defendants and the history of hiring and promotion of minorities 
in the defendant Cities, and a brief outline of the terms of the 
Consent Judgments will be discussed separately.
A. Prior Proceedings

1. The Vulcan action
Following the investigation of complaints filed by the 

Vulcan plaintiffs with the Equal Employment Opportunity Commission 
("EEOC"), the EEOC determined, in a report dated February 11, 1977, 
that discrimination existed with respect to the employment practices 
of the settling defendants. Following the failure of efforts at 
conciliation and the issuance of so-called "right to sue" letters, 
see 42 U.S.C. § 2000e-5(f)(1), the complaint in the Vulcan action 
was timely filed on March 1, 1978, and amended as of right on 
April 17 and April 24, 1978. In addition, the plaintiffs moved 
on July 28, 1978, to amend the complaint further to add parties 
plaintiff and defendant and to allege additional factual matters.
In an opinion of this Court dated April 10, 1979, the plaintiff's 
motion, insofar as described above, was granted.* Vulcan Society

* The Court denied plaintiffs' motion to add allegations of a 
conspiracy. In addition, this Court, in the April 10, 1979 opinion, 
(i) granted class certification, (ii) granted plaintiffs' motion 
to compel discovery, (iii) denied motions of the defendants to 
dismiss the amended complaint or for summary judgment on various 
grounds, and (iv) denied the motion of the White Plains defendants 
to sever the action as to them.

3



of Westchester County, Inc, v. Fire Department of the City of 
White Plains, 82 F.R.D. 379 (S.D.N.Y. 1979).

The complaint in the Vulcan case, as amended, alleges 
that the settling defendants were engaged and are engaging in 
acts and practices of discrimination in employment against 
Blacks with respect to the hiring, assignment and promotion 
practices within the fire departments of the cities of White 
Plains, New Rochelle and Mount Vernon. In particular, the com­
plaint, as amended, alleged that the settling defendants unlawfully 
discriminated against Blacks in hiring and promotions and deprived 
them of equal employment opportunities by the use of tests and 
other selection standards and devices, which have a disparate 
impact on Blacks and which are neither demonstrably valid nor 
job-related. Such other selection standards and devices included 
(i) requiring a high school diploma for employment; (ii) barring 
employment based upon a prior conviction; (iii) word-of-mouth 
recruitment; (iv) discouraging Blacks from seeking employment 
with or promotion within the fire departments of the defendant 
Cities; and (v) discriminatory assignments and allocation of job 
benefits.

Jurisdiction was asserted on the basis of Titles VI and 
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000d 
et seq. and 2000e et seq., as well as 42 U.S.C. §§ 1981 and 1983 
and the Fourteenth Amendment of the Constitution. The relief

4



t
f a  f a“  l

sought included an injunction against the continued use by 
the defendants of any employment practices which unlawfully 
discriminate on the basis of race, together with affirmative * 
relief, including back pay for affected individuals. The 
defendants timely answered the amended complaints, denying 
the material allegations thereof.*

Finally, during the pendency of this action, a 
number of orders were entered enjoining or otherwise regulating 
proposed hiring and promotions of the defendant Cities.

2. The Government action.
The complaint in the Government action was filed on 

January 17, 1980, following by nearly a year the initial 
notification to the defendants that, after an investigation by 
the Department of Justice, the Attorney General had authorized 
the commencement of this action and, in the intervening period, 
intensive negotiations among the parties. The complaint in the 
Government action alleges, inter alia, that the defendants were 
engaged and are engaging in acts and practices which discriminate 
on the basis of race, color, sex and national origin with respect 
to employment opportunities within the fire departments of the 
defendant Cities, which acts and practices constituted a pattern 
and practice of resistance to the full enjoyment of the rights 
of Blacks, Hispanics and women. In addition, the complaint 
alleges that certain acts of the defendants discriminated against 
Blacks, Hispanics and women in hiring and promotions by the use

In addition, certain cross-claims by the City defendants 
against the State defendants were also made and denied.

5



■O

of tests and other selection standards and devices which 
have a disparate impact on Blacks, Hispanics and women 
and which are neither demonstrably job-related nor valid.

Jurisdiction is based upon Title VII of the Civil 
Rights Act of 1964, supra, the State and Local Fiscal Assistance 
Act of 1972, as amended, 31 U.S.C. §§ 1221 et: seq. , and the 
Comprehensive Employment and Training Act, as amended, 29 U.S.C. 
§§ 801 et: seq. The relief sought in the Government action 
included an injunction against the continued use by the defen­
dants of employment practices which discriminate on the basis 
of race, color, sex or national origin as well as those which 
operate to continue the effects of past discriminatory employ­
ment practices, as well as affirmative relief, including back 
pay.

By reason of the fact that the Government and the 
settling defendants have agreed to the provisions of and signed 
the proposed Consent Judgment, none of the settling defendants 
has submitted an answer in the Government action.*

* As set forth in the Consent Judgment, the settling defen­
dants have not conceded the truth of the material allegations 
of the complaint and, specifically, have denied that they have 
engaged in any act or practice of unlawful discrimination 
against Blacks, Hispanics or women. In addition, the State 
defendants have specifically refused to concede that they are 
an employer or an agent of an employer within the meaning of 
section 701(b) of Title VII, 42 U.S.C. § 2000e(b) or that the 
Court has subject matter jurisdiction over the State defendants 
pursuant to Title VII.

6



B. Background Facts
As indicated in the Argument portion of this memo­

randum, infra, this Court is not called upon to try the 
claims raised in the complaints in these actions, particularly 
since the Consent Judgments are entitled to a ’’presumption of 
validity.” United States v. City of Miami, 22 EPD 1 30,822 
(5th Cir. Apr. 10, 1980). However, in carrying out its function 
of determining whether the Consent Judgments are lawful, reasonable 
and equitable, see United States v. City of Jackson, 519 F.2d 1147, 
1151 (5th Cir. 1975), this Court may find the following brief 
outline of facts already developed in this action to be of 
assistance.*

The cities of White Plains, Mount Vernon, and New 
Rochelle are three of the principal population centers in Westchester 
County. During the past three decades, the minority population of 
each has grown dramatically. To take the most extreme example, the 
Black population of the City of Mount Vernon increased more than 
three-fold between 1950 and 1970, to 35.6 percent of the

I  l  %

* It should be borne in mind that the United States, which 
filed its complaint in January, 1980, never engaged in formal 
discovery, except with respect to the high school diploma issue, 
due to the fact that substantial settlement negotiations preceded 
the filing of the complaint and the Consent Judgments were agreed 
to in principle among counsel at the time of the filing of the 
Government's complaint.

Similarly, although the Vulcan action was filed initially in 
March 1978, a stay of discovery was in effect for much of that 
time and intensive negotiations among the parties endeavoring to 
settle lasted approximately ten months.

7



total population of the city. Even more dramatic growth has 
been recorded by the Hispanic population of each city.* There 
is no reason to doubt that this trend will continue.

The employment of minorities by these fire departments 
has at all times been at a level which might appropriately be 
called minimal. Mount Vernon's fire department, for example, 
employees had only 2.170 minority personnel as of 1976, although 
the city's minority population is 38%.** The relative figures 
for the other cities are not markedly different.***

* Population figures for the three municipalities drawn from 
the 1950, 1960 and 1970 Censuses were tabulated by the EEOC in 
its 1975 determination and are set forth in Table I. In addition, 
1960 and 1970 Census figures for the population between the ages 
of sixteen and sixty-four for each of the municipalities, as well 
as Westchester County, are set forth in Tables II and III. All 
tables appear at the end of this brief.
** The four fire departments have in recent years required 
residency in Westchester County for applicants. However, beginning 
with the May, 1978 firefighter examinations, the respective 
municipalities, in addition to the requirement of Westchester 
County residency, gave preference to residents of the respective 
municipalities.
*** Comparative fire department employment figures and population 
ratios are set forth in Table IV. Detailed employment figures 
from the 1976 EEO-4 reports filed with the EEOC are summarized 
in Tables V, VI, and VII. The hiring statistics for all position 
in the three fire departments, drawn from EEO-4 reports from 1974 
through 1976, is contained in Table VIII.

8



The figures set forth in Tables IV through VIII 
are substantially confirmed by data produced by the defendant 
cities themselves during discovery in the Vulcan action.
Thus, for example, Mount Vernon and New Rochelle produced 
data indicating men* in the fire department work force, by 
job title and race, for the period 1972 through 1978.** For 
New Rochelle, the figures show that during the seven years 
reported, New Rochelle never had a Black fire lieutenant, 
fire captain, deputy chief or chief. In 1978, when the fire 
department force was comprised of 180 men, only seven, or 3.9%, 
were Black. Similarly, in Mount Vernon, during the period from 
1972 to 1978, no Black was ever a fire officer. As of June 29,
1978, out of a total force of 133 fire fighters and fire officers, 
only three, or 2.3%, were Black. In White Plains, a September 1975 
report of the Commission on Human Rights of the City of White Plains, 
reported generally, "Many of the departments and bureaus of the 
City government are exclusively or predominantly staffed, and most 
of the higher-echelon positions throughout the City government are 
held by white male employees."*** In addition, the Commission 
reported that, out of 173 persons in the categories of "protective

* None of the fire departments of the defendant cities has ever 
employed a woman as a fire fighter or fire officer.
** This data is set forth, with respect to New Rochelle, in Table 
IX and, with respect to Mount Vernon, in Table X.
*** Commission on Human Rights, City of White Plains, Report on the 
Work Force of the City of White Plains Employment of Ethnic Minorities 
and of Women, September 1975, at p. 14.

9



services," "professionals," and "administrators" in the White 
Plains Fire Department, only four (2.3%) were Black and two (1.2%) 
were Hispanic.*

The figures in these tables showing exceedingly low 
employment of minorities and women in the fire departments are 
but a reflection of the historical practices of these fire 
departments. At a trial of this action, the plaintiffs would 
have shown, based on testimony of the individual plaintiffs in 
the Vulcan suit, that, as of 1976, Mount Vernon had employed 
five Blacks in its fire department since 1953, White Plains had 
employed eight Blacks since 1949, and New Rochelle had employed 
approximately ten Blacks in its history.

The plaintiffs have alleged that a number of the employ­
ment practices used by the settling defendants have contributed 
to the alleged discrimination. Paramount among these practices 
is the use of a written examination for both hiring and promotion 
purposes. In both these contexts, the written examination has 
been the principal selection device. With respect to the hiring 
of firefighters, the test was used to rank applicants, sometimes 
exclusively, as was formerly the case in White Plains and Mount 
Vernon, and sometimes in a weighted ranking procedure involving 
also the physical agility test score. The emphasis on the written 
test as a ranking device means that minorities must not only pass

Id., at Table VI-b

10



the test but attain a high score as well.* Since the duration 
of a state-certified eligibility list is limited to between one 
and four years, N. Y. Civil Service Law §56, the likelihood 
that more than a small percentage of the applicants appearing 
on an eligibility list will actually be selected for appointment 
is slight.

Section 23, subsection 2, of the New York Civil Service 
Law provides that, upon the request of any municipal civil service 
commission, the state civil service department "shall render service 
relative to the announcement, review of applications, preparations, 
construction, and rating of examinations, and establishment and 
certification of eligible lists for positions in the classified 
service under the jurisdiction of such municipal commission."
Because of the high cost of developing, preparing and rating 
entrance examinations, each of the three cities involved here has 
consistently requested the state to develop and administer the 
firefighter and fire officer exams.

The EEOC had little difficulty concluding from its investigation that 
these examinations result in an adverse impact on minorities. Aside 
from the figures showing gross under-representation of minorities 
on the respective fire department rosters, New Rochelle collected 
data regarding the racial makeup of the applicant pool on a 
recent examination. The data from New Rochelle is unfortunately

* The actual selection for a firefighter vacancy is governed by 
the so-called "rule of three," which limits selection to one of the 
three highest ranked persons on the then-current eligibility list. 
See N.Y. Civil Service Law §61.

- 11 -



limited and not entirely reliable since it involves voluntary 
racial identification. Only twenty-nine applicants who filed 
for the exam, twenty-four Whites and five Blacks, listed their 
race on the application forms, and two Blacks and eight Whites 
failed to appear for the exams. Thus, of the three Black and 
sixteen White applicants who identified their race and appeared 
for the exam, 81.2% of the Whites passed and 66.77° of the Blacks 
passed. Overall, the average exam score for Whites was 77.8, 
while that for Blacks was 68.3. Although it is difficult to 
generalize from such a small sample, the data permit an inference 
that a statistically adequate sample on this test would support 
a conclusion of disparate racial impact.*

This evidence of adverse impact is buttressed by the 
results of a written firefighter examination administered in 
May 1978 in Mount Vernon, White Plains and New Rochelle. The 
results of this test, which are set forth in Table XI for Whites

* More complete data was available for a 1975 firefighters 
exam given in Yonkers. Although Yonkers is not a settling 
defendant, the data from that test is nevertheless instructive 
regarding the racial impact of the tests administered by the 
state. In Yonkers, which had the rather complete data for its 
1975 examination, the results showed that 60% of the Blacks, 
and 50% of the Hispanic applicants who appeared for the exam 
passed. The pass rate for Blacks and Hispanics taken together 
was 57.1%. This is to be compared to a pass rate of 76.5% for 
the Whites who appeared for the exam. Among those minorities 
who passed the written exam and the subsequent medical exam, the 
highest scoring minority applicant only ranked 128th out of a 
total eligibility list of 166 persons and thus had little practical 
chance of being selected for appointment as a firefighter.

The pass rate differentials exhibited by the data in the 
1975 Yonkers firefighter exam constitute a substantial difference, 
and evidence of an adverse impact from the state-prepared test, 
under the "four-fifths" rule of thumb of the Uniform Guidelines 
on Employee Selection Procedures, 43 Fed. Reg. 38290 (1978).

12



and Blacks,* show that the pass rate for Whites was between 
twenty and thirty percentage points higher than for Blacks 
in each City. Each of the pass-rate differentials in these • 
three cities shows evidence of adverse impact under the "four- 
fifths" test of the Uniform Guidelines. More significant, 
however, was the fact that each of these three pass-rate 
differentials was statistically significant. Using a statistical 
procedure known as testing the difference between independent 
proportions,** it was found that the Black pass rates were uniformly 
more than three standard deviations lower than the White pass 
rates and, in one case, more than six standard deviations lower.*** 
Statistically, the odds of obtaining such differential pass rates 
randomly are greater than ninety-nine to one. As stated by the 
Supreme Court in an analogous context, "Because a fluctuation of 
more than two or three standard deviations would undercut the hypo­
thesis that decisions were being made randomly with respect to 
race, [Castaneda v. Partida,] 430 U.S. [482] at 497 n.17 [1977], 
each of these statistical comparisons would reinforce . . . the 
Government's other proof.” Hazelwood School District v. United States,

* There is evidently some uncertainty in these figures due to 
"cross-overs," that is applicants who took the exam in one city and 
were considered for employment in another. Separate results for 
the five Hispanics and five women who took the exam are not shown.
Of these, however, nine passed the exam.
** This procedure is described in a discrimination context in 
Shoben, Differential Pass-Fail Rates in Employment Testing: Statis­
tical Proof Under Title VII, 91 Harv. L. Rev. 793 (1978).
*** xhe precise standard deviation differentials , the "Z score" 
as defined by Shoben, supra, were: New Rochelle - 6.17; White
Plains - 4.67; Mount Vernon - 3.27.

13



433 U.S. 299, 311 n.17 (1977).
There is little evidence that the entrance examinations 

are valid within the meaning of the Uniform Guidelines, supra, or 
indeed that any but somewhat perfunctory validation efforts have 
been made by the New York State Department of Civil Service, which 
is solely responsible for their content. The report of the EEOC 
in this case succinctly summarized the Civil Service Department's 
evidence before the Commission on this point:

The New York State Civil Service Commission 
was asked to provide the professional credentials 
of the persons who prepare the test. From their 
answer it does not appear that any have advanced 
degrees in psychology (though some have taken 
graduate courses in the area) or any experience 
in test preparation outside of the New York State 
Civil Service Commission.

The New York State Civil Service Commission 
says it has "confidence in the test" but beyond 
arguing that it is good, as most people who pass 
it do not drop out on probation, concedes that 
there is no study to link performances on the 
test with performances on the job. The New York 
State Civil Service Commission argues that the 
test is "content" valid, and that that is 
sufficient. There is no evidence even of its "con­
tent" validity beyond the fact that the questions 
relate generally to the areas of employment.

EEOC Determination at pp. 17-18 (Feb. 11, 1977). The evidence
produced by the state in the Vulcan suit did little to alter
the appropriateness of the findings of the EEOC regarding the
lack of validity of the firefighters tests or to show that any
validity studies had been conducted in accordance with the
Uniform Guidelines.

14



Like the process of becoming a firefighter, the promotion 
of firefighters to fire lieutenants is governed principally by an 
examination devised and administered by the New York State Depart­
ment of Civil Service. The three fire departments also add points 
to the test score to take into consideration seniority with the 
municipality, and a certain minimum requirement of seniority as a 
firefighter is a pre-requisite to applying for a fire officer 

position.*
The disparate racial impact of the promotional examina­

tion can be shown in several ways. To begin with, as of the 
commencement of the Vulcan Society action, not a single one of the 
fire officers in the fire departments of the three cities involved 
in the Consent Judgments is either a Black, Hispanic or woman.**
In addition, while Black firefighters are relatively more likely 
to take the fire lieutenant's exam than their White counterparts,*** 
Blacks fail the exams at nearly twice the rate of White firefighters. 
In five recent fire lieutenant exams, two each in White Plains and 
New Rochelle, and one in Mount Vernon, given during the period fron 
November 1972 to June 1975, 242 Whites took the exam, of which 135

* In White Plains and Mt. Vernon, for example, one must have been 
a firefighter for five years to be considered for promotion to fire 
lieutenant.
** Since that time, one Black has been appointed a fire lieutenant 
in New Rochelle.
*** For five recent fire lieutenant exams given among the three fire 
departments, two exams each in New Rochelle and White Plains, and one 
exam in Mt. Vernon, 86.7% of the Black firefighters applied for 
promotion, as opposed to 63.3%, of the White firefighters.

15



(55.8%) passed, and thirteen Blacks took the exam, of which only 
four (30.8%) passed.* Among those who passed, the Whites had an 
average score of 79.88, while the Blacks had an average score of 
73.20.

As with the entrance-level examinations, the New York State 
Department of Civil Service failed to adequately document the validity 
of the tests, offering only the most general claims of "content" 
validity. However, there is available evidence to suggest the 
invalidity of these tests.

Until relatively recently, White Plains gave each firefighter 
a performance rating, based upon supervisory evaluations of such 
qualities as "ability," "cooperation," "leadership," "records,"
"mental alertness," "observance of safety principals [sic]," 
"proficiency in drills and housework," etc. Each quality was rated 
on a 100-point scale,and a weighted "special fitness rating," also 
on a 100-point scale, was derived from these supervisory evaluations. 
The fitness ratings of forty-one White firefighters were examined 
by the EEOC** in connection with their performance on the written 
fire lieutenants exam and the twenty-four firefighters who passed 
the written exam averaged 89.32 on the fitness ratings, while the 
seventeen firefighters who failed the written exam actually had a 
higher average performance rating, 89.59. In addition, the top four 
scorers on the written exam had the following rank on the fitness 
ratings:

* This pass-rate differential constitutes evidence of adverse 
impact under the "four-fifths" test of the Uniform Guidelines, supra.
** See EEOC Determination, supra, at 23-24.

- 16 -



Rank on 
Written Exam

Rank on 
Fitness Rating

1 4
2 17
3 5
4 10

Similarly, comparing the ranking in the written test for the
highest fitness rankings:

Rank on Rank on
Fitness Rating Written Exam

1 5 (tie)
2 5 (tie)
3 18
4 1

Taken together, these figures, though incomplete, never­
theless indicate that the validity of these promotional examinations 
is subject to serious challenge.

Aside from the written tests the plaintiffs in these actions 
were also challenging other employment practices, such as recruiting 
methods, height and reach requirements, variable age restrictions, 
a bar against employment of a person convicted of a crime, and, in 
New Rochelle, a requirement of possession of a Class III chauffeur's 
license.* Because of the restrictions with respect to age, criminal 
convictions and possession of a high school diploma, it has been estimated

* Each city also required possession of a high school diploma, 
which requirement was challenged in both suits. However, since 
that issue is being tried separately to the Court, it will not be 
discussed in this memorandum



that the number of Blacks in Mount Vernon who were discouraged 
from applying to the fire department from 1970 to 1978 was Min 
the several hundreds." (Affidavit of Percy Somerville, dated •
June 29, 1978, at 11 11-13). A comparable estimate was made for 
New Rochelle. (Affidavit of Napoleon Holmes, dated June 14, 1978, 
at 1 10). Moreover, it was estimated that, in New Rochelle from 
1964 to 1978, out of over two hundred Blacks who completed appli­
cations for the written firefighter examination, roughly half 
did not sit for the examination. (Id. at 1 11). Finally, the 
EEOC found, as a result of its investigation, that reasonable 
cause existed to believe that the fire departments of the settling 
defendants violated Title VII with respect to recruitment, 
eligibility and selection standards and promotion. (EEOC Deter­
mination, supra, at 28.).

In sum, the available evidence, generated without the benefit 
of full discovery, is nevertheless more than sufficient to show 
that the claims of the plaintiffs were substantially supported and 
presented a number of litigable issues with respect to the 
settling defendants.
C. The Consent Judgments

The settling parties, after lengthy negotiations, have 
agreed upon proposed Consent Judgments which have been submitted 
to this Court for approval. In agreeing to the provisions of the 
Consent Judgments, the settling defendants specifically deny that 
they have engaged in any practice of unlawful discrimination against 
the plaintiffs or the classes represented by them, and the Consent



v  V
ft*

Judgments so state. In addition, the Consent Judgments recite 
that the consent of the parties to the Consent Judgment shall 
not constitute nor be construed as an admission by the settling 
defendants of any statute which forms the basis for these actions. 
Rather, the parties have entered into these arguments to settle 
the issues raised by the complaints without the need for a pro­
tracted course of litigation and to assure that Blacks, under the 
terms of the Vulcan Consent Judgment, together with Hispanics and 
women, under the terms of the Government Consent Judgment, are 
not disadvantaged by reason of their race, national origin or sex 
in the hiring, assignment and promotion policies and practices of 
the fire departments of the settling defendants.

The parties have endeavored to make these two Consent 
Judgments consistent with one another and, indeed, the Consent 
Judgments recite that each "shall be construed and applied in a 
manner not inconsistent with" the other.

To the greatest extent possible, the terms of the two 
Consent Judgments are worded in a parallel manner, with whatever 
variations are necessary to reflect that, while the Vulcan action 
seeks to remedy discrimination on the basis of race only, the 
Government action seeks relief for discrimination on the basis 
of race, national origin, and sex. The substantive provisions which 
are parallel and common to the two Consent Judgments are as follows:*

* To avoid unnecessary repetition, the specifics of the 
Consent Judgment are discussed in detail in the argument, infra.

19



Section No.

Title of Vulcan Society United States
Section Consent Judgment Consent Judgment

Procedures for Selection 
of Firefighters II II
Procedures for Promotions III V
Improvement of Future 
Written Tests IV III
Interim Appointment 
of Firefighters V IV
Hirings Goals and 
Interim Hiring Goals VI VI
Recruitment and Training X VII
Reporting XI VIII
General Injunctive 
Relief and Compliance XII IX
Jurisdiction XV X
In addition, the sections which are peculiar to the Vulcan Consent 
Judgment are:
Title of
Section Section Number
Damages to the Classes 
of Black Entry Level 
Applicants VII
Relief to Individually- 
Named Plaintiffs VIII
Relief to the Vulcan 
Society of Westchester 
County, Inc. IX
Attorneys' Fees, Costs, 
and Disbursements; City 
Defendants' Cross-Claims XIII
Class Certification XIV

20



As can be seen, these two Consent Judgments form a 
comprehensive and consistent resolution of the issues raised 
by these two actions involving the employment practices in the 
fire departments of the settling defendant cities. As noted, 
the specific provisions of the Consent Judgments are discussed 
in detail in the argument portion of this memorandum and, as we 
argue below, are a lawful, reasonable and equitable means of 
settling these actions.

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1ft

ARGUMENT
THE CONSENT JUDGMENTS ARE FAIR, REASONABLE 
AND IN FURTHERANCE OF PUBLIC POLICY, AND 
THEREFORE SHOULD BE APPROVED IN THEIR ENTIRETY
As described above, the original parties to

Government's action and the private action (with the
exception of the Yonkers defendants) agreed to settlements
on the terms embodied in the Consent Judgments.* These
agreements were obtained after extensive negotiations and
consideration of the competing interests to be promoted by
Title VII and the other civil rights laws, on the one hand,
and the need to select expeditiously qualified individuals
to become firefighters and officers without expenditure of
large sums in litigation, on the other hand.
Standard of Judicial Review of Consent Judgments

The law is clear that the Court's role in
considering whether or not to approve a consent judgment in
an action brought by the Government or in a private class
action is to make a determination that "there has been valid
consent by the concerned parties and that the terms of the
decree are not unlawful, unreasonable, or inequitable."
E.g, United States v. City of Jackson, 519 F.2d 1147, 1151

* The Consent Judgments, as presently filed, contain a 
provision for the elimination of the high school diploma 
requirement. This term however, remains in issue and is 
presently being tried to the Court.

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(5th Cir. 1975). Basically, approval is dependent upon the 
issue of "overall fairness." United States v. Trucking 
Employers, Inc., 561 F.2d 313, 317 (D.C. Cir. 1977).
Accord, United States v. City of Miami, 22 EPD 1f 30,822 (5th 
Cir. Apr. 10, 1980); United States v. City of Alexandria, 22 
EPD H 30,829, (5 th Cir. Apr. 10, 1980) ; Grunin v. 
International House of Pancakes, 513 F.2d 114 (8th Cir.) ,
cert, denied, 423 U.S. 864 (1975); State of Vest Virginia v. 
Chas. Pfizer & Co., 440 F.2d 1079, 1086 (2d Cir.), cert. 
denied, 404 U.S. 871 (1971); City of Detroit v. Grinnell 
Corp. , 356 F. Supp. 1380 (S.D.N.Y.), aff1d in part, rev1d in 
part on other grounds, 495 F.2d 448 (2d Cir. 1972).*

The Consent Judgments are entitled to a "presump­
tion of validity." United States v. City of Miami, supra,
22 EPD 1130,822, at 15,246. This is particularly true where
the United States is a party to a settlement and finds the 
terms of compromise to serve the ends of the statutes the 
Government is designated to enforce, such as Title VII.
Id.** The Court must have a "principled reason for refusing

* The same standards apply to the Government's case 
brought under § 707 of Title VII and the private plaintiffs' 
case, which was brought under § 706. See cases cited, 
supra. In addition, the standards under the Revenue Sharing 
Act and CETA are identical to Title VII.
** It should be noted that if the United States had 
elected to negotiate with defendants through the Equal 
Employment Opportunity Commission ("EEOC") instead of in the 
context of a suit prosecuted by the Department of Justice, 
and a conciliation agreement with exactly the same terms as in 
the proposed Consent Judgment was reached with the EEOC,
"the district court's scrutiny of the terms of the agreement 
would be minimal." Id. at 15,246; see EEOC v. Contour Chair 
Lounge Co., 596 F ^ d -809 (8th Cir. 1979J~-

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to sign a consent judgment in this context [and a] refusal
to sign . . . based on generalized notions of unfairness is
unacceptable." Id. There must be showing that the decree
unduly burdens one class or another. Id. If the Court
finds that more information is necessary than that already
in the record, then a hearing is appropriate; however, prior
to the hearing, the parties are entitled to the Court's
explanation of its precise concerns. Id.

This standard is the result of the congressional
and judicial policies favoring settlement generally, and in
Title VII cases in particular, since conciliation is the
preferred means of eliminating discrimination. Airline
Stewards and Stewardesses Association, Local 550 v. American
Airlines, Inc. , 573 F.2d 960 (7th Cir. 1978) ("Stewards") ; 
United States v. Trucking Employers, Inc., supra, 561 F.2d
at 317; Patterson v. Newspaper & Mail Deliverers Union, 514
F.2d 767, 771 (2d Cir. 1975) ("Patterson") ; United States v.
Allegheny-Ludlum Industries, Inc., 517 F.2d 826, 849-50 (5th

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ir. 1975); United States v. City of Jackson, supra, 519 
. .2d at 1151. See Alexander v. Gardner-Denver Co. , 415 
S. 36, 44 (1974) *

The rationale for courts' endorsements of settlements 
as explained in the seminal case of Florida Trailer and 
guipment Co. v. Deal, 284 F.2d 567, 57T"(5thTir. 19FUT:

Of course, the approval of a proposed 
settlement does not depend on establishing 
as a matter of legal certainty that the 
subject claim or counterclaim is or is 
not worthless or valuable. The probable 
outcome in the event of litigation, the 
relative advantages and disadvantages are, 
of course, relevant factors for evaluation.
But the very uncertainty of the outcome in 
litigation, as well as the avoidance of 
wasteful litigation and expense, lay 
behind the Congressional infusion of a 
power to compromise. This is a recogni­
tion of the policy of the law generally to 
encourage settlements. This could hardly 
be achieved if the test on hearing for 
approval meant establishing success or 
failure to a certainty. Parties would be 
hesitant to explore the likelihood of 
settlement apprehensive as they would be 
that the application for approval would 
necessarily result in a judicial determina­
tion that there was no escape from liability 
or no hope of recovery and hence no basis 
for a compromise.

ccord, Stewards, supra, 573 F.2d at 963; United States v. 
xllegheny-Ludlum, Industries, Inc., supra, 517 F.2d at 849; 
at_terson, supra, 514 F. 2d at 771; State of Vest Virginia v. 
HasT! Pfizer & Co., supra, 440 F.2d at 10815; Teachers Insurance 
rul-Annuity Ass FT v. Beame, 67 F.R.D. 30, 33 (S.D.N.Y. 19/5).

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The Court of Appeals for the Fifth Circuit
explained the relevant principles:

. . . to the extent that the settlement may 
in occasional respects arguably fall short of 
immediately achieving for each affected 
discriminatee his or her "rightful place," we 
must balance the affirmative action objec­
tives of Title VII . . . against the equally 
strong congressional policy favoring voluntary 
compliance. The appropriateness of such 
balancing is especially clear, as here, "in 
an area where voluntary compliance by the 
parties over an extended period will contribute 
significantly toward ultimate achievement of 
statutory goals." [Patterson v. Newspaper &
Mail Deliverers Union, supra,] 514 F. 2d at
7717----------------

United States v. Allegheny-Ludlum Industries, Inc. , supra, 
517 F.2d at 850.

Furthermore, courts have recognized that a consent
judgment is essentially a contract between the parties. 
United States v. City of Jackson, supra, 519 F.2d at 1151;
Regalado v. Johnson, 79 F.R.D. 447, 450 (D. 111. 1978).
Therefore the issues raised by objectors or intervenors in
opposition to a consent judgment's terras "should not be
decided on the basis of Title VII law, but rather must be
decided on the basis of legal principles regulating judicial
review of settlement agreements," Metropolitan Housing
Development Corporation v. Village of Arlington Heights, 469
F. Supp. 836, 846 (N.D. 111. 1979). Accord, State of Vest
Virginia v. Chas. Pfizer & Co., supra, 440 F.2d at 1086;

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City of Detroit v. Grinnell Corp. , supra, 356 F. Supp. at; 
with the recognition that "the agreement reached . . . embodies 
a compromise; in exchange for the saving of cost and elimina­
tion of risk, the parties each give up something they might 
have won had they proceeded with the litigation." United 
States v. Armour & Co., 402 U.S. 673, 68 (1971). See
Grunis v. International House of Pancakes, supra, 513 F.2d 
at 124. "(T]he inherent nature of a compromise is to give 
up certain rights or benefits in return for others."
MacDonald v. Chicago Milwaukee Corp. , 565 F.2d 416, 429 (7th 
Cir. 1977); United States v. American Institute of Real 
Estate Appraisers of the National Association of Realtors,
442 F. Supp. 1072, 1084 (N.D. 111. 1977). There should be 
no attempt to precisely delineate the parties' legal rights.
United States v. City of Jackson, supra, 519 F .2d at 1152. 
Where, as here, the Court retains the power to modify or
vacate the decree if it later appears necessary, there is no
justification to withhold approval in the absence of a clear
showing that a group is unduly burdened by certain terms of
that decress. United States v. City of Miami, supra, 22 EPD
1130,822, at 15,246-47.

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/**\* <

Finally, it should be noted that the burden is on 
the objectors to convince the Court to disapprove the 
proposed settlement. Id. at 15,247. Absent evidence in the 
record to demonstrate that the settlement is "unreasonable, 
illegal, unconstitutional or against public policy, [the 
Court] should grant [its] approval." Id. Accord, United 
States v. City of Alexandria, supra.
Applicable Standards as to Employment Discrimination

The legal framework in which the Consent Judgments 
are proposed by the parties is relevant, although not 
entirely dispositive, as discussed above. As the Court is 
well aware, the legal standards under Title VII* have been 
firmly established by the Supreme Court.

An employer violates Title VII if it bases its 
selection decisions on an examination or other procedure 
("selection procedure") that has an adverse impact on the
employment opportunities of minorities, unless the employer 
can show that use of the examination validly predicts 
successful job performance. Griggs v. Duke Power Co., 401 
U.S. 424 (1971) ("Griggs"); Albemarle Paper Co. v. Moody,
422 U.S. 405 (1975) ("Albemarle") ; see 42 U.S.C. §
2000e-2(h).

* The same standards apply to the other statutes under
which this action was brought. See, e.g., United States v. 
State of New York, 82 F.R.D. 2 (FHT.NTYT 19/8) , a 21 EPD 
If 393l4~(N.D.N.Y. 1979).

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A plaintiff makes a prima facie case of 
discrimination if he shows that a minority group has a 
disproportionately lower passing rate on the examination 
than whites and are, consequently, selected for employment 
at a rate lower than their rate of application. Albemarle, 
supra, 422 U.S. at 425. There is no need to show a discrimina­
tory purpose; a prima facie case of employment discrimination 
may be established by evidence of statistical disparities 
alone. Dothard v. Rawlinson, 433 U.S. 321, 329 (1977);
Scott v. City of Anniston, 597 F.2d 897, 899 (5th Cir.
1979) , cert, denied, 48 U.S.L.W. 3698 (U.S. Apr. 29, 1980); 
Blake v. City of Los Angeles, 595 F.2d 1367, 1374-75 (9th 
Cir. 1979), cert, denied, 48 U.S.L.W. 3698 (U.S. Apr. 29,
1980) ; United States v. City of Chicago, 573 F.2d 416,
420-22 (7th Cir. 1978) ; Firefighters Institute for Racial
Equality v. City of St. Louis, 549 F.2d 506, 510 (8th Cir.
1977).

Both the burden of production and the burden of 
persuasion shift to the defendant once the plaintiff shows 
that the selection procedure has an adverse impact on 
minorities. E.g., Guardians Association v. Civil Service 
Commission, 431 F. Supp. 526, 538 (S.D.N.Y.), vacated and 
remanded on other grounds , 562 F .2d 38 (2d Cir. 1977), on 
remand, 466 F. Supp. 1273 (S.D.N.Y. 1979), app. pending No.

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/fw>— t 'i

79-7377 (2d Cir.); Vulcan Society of the New York Fire 
Department v. Civil Service Commission, 360 F. Supp. 1265, 
1268 (S.D.N.Y.), aff'd, 490 F.2d 387 (2d Cir. 1973). To 
prevail, the defendant must prove that the challenged 
selection procedure, has a "manifest relationship to the 
employment in question." Griggs, supra, 401 U.S. at 432; 
Dothard v. Rawlinson, supra, 430 U.S. at 329.

Proof that a selection procedure is job-related 
must be based on a study which meets "professionally 
acceptable" standards and procedures. Albemarle, supra, 422 
U.S. at 431. The federal agencies authorized to enforce 
federal fair employment laws have issued Uniform Guidelines 
on Employee Selection Procedures, 43 Fed. Reg. 38290 (1978) 
("Uniform Guidelines"),* which set standards the Government 
considers to be consistent with standards of the 
psychological profession for assessing the job-relatedness * * * §

* The Uniform Guidelines, promulgated by the Equal 
Employment Opportunity Commission, the Department of 
Justice, the Department of Labor, and the Civil Service
Commission, took effect September 25, 1978. They are 
codified at each of the following places: 28 C.F.R. §
50.14; 41 C.F.R. § 60-3.1; 29 C.F.R. § 1607; and 5 C.F.R.
§ 300.103(c).

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or "validity" of employee selection procedures. Uniform 
Guidelines, Hf 1C, 5C. These Guidelines are "entitled to 
great deference," and should be followed, unless the 
employer demonstrates some cogent reason to the contrary. 
Griggs, supra, 401 U.S. at 433-34; Albemarle, supra, 422 
U.S. at 431; United States v. City of Chicago, 549 F.2d 415, 
430 (7th Cir.), cert, denied sub nom.Arado v. United States, 
434 U.S. 875 (1977).

Proof that the challenged selection procedure has 
been validated does not end the inquiry. Even if the 
employer, through a professionally acceptable study, 
convincingly demonstrates that the discriminatory procedure 
is job-related, the employer may still be liable for 
violating Title VII. If the plaintiff shows that there were 
available alternative selection procedures which serve the 
employer's legitimate interests and have less adverse impact 
on Blacks and Hispanics, then the defendants' use of the 
challenged examination is not justified by "business 
necessity." Albemarle , supra, 422 U.S. at 425; see, e.g., 
Allen v. City of Mobile, 464 F. Supp. 433 (S.D. Ala. 1978).

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Furthermore, it is generally recognized that once
a violation of the federal equal employment opportunity laws
is proven the district court has the power and, indeed, the
duty to enjoin future discrimination and as far as possible
to require the elimination of continuing effects of past
discrimination. E.g., Albemarle, supra, 422 U.S. at
418; Louisiana v. United States, 380 U.S. 145, 154 (1965);
Rios v. Enterprise Association of Steamfitters, Local 638,
501 F.2d 622, 629 (2d Cir. 1974). Since the district court
possesses broad power and discretion as a court of equity,
Franks v. Bowman Transportation Co. , 424 U.S. 747, 763-64,
770 (1976); Rios v. Enterprise Association of Steamfitters,
Local 638, supra, 501 F.2d at 629, the parties recognize
that numerical goals as well as immediately imposed interim 
hiring procedures designed to eradicate the adverse impact
of past discrimination are often appropriate. See, e.g.,
Firefighters Institute for Racial Equality v. City of St.
Louis, 22 EPD H 30,571 (8th Cir. Jan. 17, 1980),
("Firefighters Institute"); United States v . City of
Chicago, supra; NAACP v. Allen, 493 F.2d 614 (5th Cir.
1974); Morrow v. Crisler, 491 F.2d 1053 (5th Cir.) (en
banc), cert. denied, 417 U.S. 969 (1974); Bridgeport
Guardians, Inc. v. Members of the Bridgeport Civil Service

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Commission, 482 F.2d 1333 (2d Cir. 1973), cert. denied, 421 
U.S. 991 (1975); United States v. State of New York, supra, 
21 EPD‘, at 12,712-14; United States v. City of Buffalo, 20 
EPD 11 30,112 (W.D.N.Y. Dec. 11, 1978). Cf. Regents of the 
University of California v. Bakke, 438 U.S. 265 (1978).

This summary of the applicable law demonstrates 
that the burdens of proof on each party in Title VII actions 
are great, and discovery and trial of the issues therein 
involve significant expenditures of time and money. There­
fore, the settling parties in the cases before the Court 
have chosen to obviate the need for such proof, and instead 
have agreed to the Consent Judgments. See preamble to 
Consent Judgments, at pages 1-6.

The parties submit that the Consent Judgments are 
legal, reasonable, fair, and in furtherance of the goals of 
the statutes plaintiffs seek to enforce. They also further 
the public interest sought to be vindicated by all parties 
that firefighters in the defendant Cities be selected in the 
future on the most equitable and effective basis. The 
Consent Judgments' terms enable the defendant Cities to 
select firefighters in the near future to fill immediate 
needs without violating Title VII's anti-discrimination 
provisions, while also providing for long-term improvement 
of the selection process utilized by defendants. A summary 
of the terms of the Consent Judgments follows.

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The Reasonableness of the 
Terms of the Consent Judgments

A. Prohibition Against Future Discrimination.
The Consent Judgments contain an injunctions against 

defendants' consideration of race, national origin or sex in 
the review of applications or "appointment to any position" 
in the defendant Cities fire departments (5f 11(A))*. Such 
provisions are standard and expressly authorized by Title 
VII. See 42 U.S.C. § 2000e-5( f) (3). E. g., Albemarle, supra, 
422 U.S. at 418; Louisiana v. United States, supra, 380 U.S. 
at 154; Rios v. Enterprise Association of Steamfitters, Local 
638, supra, 501 F.2d at 629. Accordingly, they should be 
approved by the Court.

* References to paragraphs numbers in parentheses are 
to the applicable provisions in the Government's Consent 
Judgment. The analogous provisions in the Vulcan Consent 
Judgment appear at paragraphs with the same numbers unless 
otherwise noted.

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p

B. Hiring Goals
The Consent Judgments provide for a long term goal 

that the defendant Cities "undertake in good faith to hire 
firefighters so as to achieve the goal of firefighter force 
in each City which reflects no less than the proportion of 
Blacks and Hispanics between the ages of eighteen (18) and 
forty-four (44) in the civilian labor force of that City as 
reported by the U.S. Census Bureau of the most recently 
published decennial census then available." (11 VI(A)). The 
defendant Cities also each are to seek, as interim goals, to 
make promotions so as to have the ranks of officers reflect 
the proportion of Black, Hispanic and women firefighters in 
each City's force (11 VI(B)). The Cities are to seek to hire 
firefighters in proportions to reflect the Black and 
Hispanic representation in the group of persons between the 
ages of eighteen and thirty in the civilian labor force in 
the respective Cities in the then most recent U.S. Census 
Bureau decennial census (U VI(C)). Finally, women are to be 
hired, if possible, so as to constitute at least 10% of the 
new firefighters until the number of women on each City's 
force equals at least 10% (Iff VI(D) , (E)). These
percentages are goals, i.e■, "hiring targets", and not 
"quotas" (11 VI(F)).

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It is fully appropriate to include such goals in 
the Consent Judgments. Besides the fact that they require 
the hiring and promotion of only qualified candidates (See,e.g., • 
United States v. State of New York supra, 21 EPD H 30,314, 
at 12,712 ), they are consistent with the mandates of Title 
VII when there is shown to be a history of race, national 
origin or sex discrimination. United States v. City of 
Miami, supra, 22 EPD H 30,822, at 15,248, and cases cited 
therein; United States v. City of Alexandria, supra, 22 EPD 
1f 30,829, at 15,297-98. The goals are reasonable in light 
of the defendant Cities' past hiring practices. See and 
Compare Firefighters Institute, supra, 22 EPD 11 30,571;
United States v. City of Chicago, supra; Kirkland v. New 
York State Department of Correctional Services , 520 F.2d 
420, 429-30 (2d Cir. 1975), cert, denied, 429 U.S. 823 
(1976); NAACP v. Allen, 493 F.2d 614 (5th Cir. 1974); Morrow 
v. Crisler, 491 F.2d 1053 (5th Cir.) (en banc), cert. 
denied, 417 U.S. 969 (1974); Vulcan Society of New York City 
Fire Department, Inc. v. Civil Service Commission, 490 F.2d 
387 (2d Cir. 1973); Bridgeport Guardians, Inc. v. Members 
of the Bridgeport Civil Service Commission, 482 F.2d 1333 
(2d Cir. 1973), cert. denied, 421 U.S. 991 (1975); United 
States v. State of New York, supra, 21 EPD H 30,314, at 
12,712-14; United States v. City of Buffalo, 20 EPD 11 30,111 * *

[FOOTNOTE FOR NEXT PAGE] 7~* The term "minorities" is intended to refer to
Blacks, Hispanics, and women jointly.

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(W.D.N.Y. Dec. 11, 1978). Cf. United Steelworkers of 
America v. Weber, 99 S. Ct. 2721 (1979); Regents of the 
University of California v. Bakke, 438 U.S. 265 (1978) 
("Bakke'').

Absent discriminatory recruitment and/or selection
procedures minorities* would be expected to comprise
approximately the same percentage of the defendant Cities'
firefighting forces as they constitute of the relevant labor
force in those Cities. See International Brotherhood of
Teamsters v. United States, 431 U.S. 324, 340 n. 20 (1977).
Since they do not, affirmative relief is required to ensure
that the effects of past discrimination are eliminated.
E.g., United States v. City of Miami, supra, EPD U 30,822,
at 15,248. The Constitution does not require that relief 
from discrimination be color or sex blind, Id.; see Bakke, 
supra, 438 U.S. at 336, and indeed, race has been considered
in numerous contexts. See, e.g., United Jewish
Organizations v. Carey, 430 U.S. 144 (1977) ; McDaniel v.
Barresi, 402 U.S. 39 (1971); Swann v. Charlotte-Mecklenburg
Board of Education, 402 U.S. 1 (1971).

[FOOTNOTE APPEARS ON PREVIOUS PAGE.]

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I*

In this case, there have been no women hired by 
the defendant Cities in their firefighting forces and the 
number of Blacks and Hispanics is well below the proportion 
of these groups in the relevant labor market of each City 
according to the 1970 Census. A3 a result, the Department 
of Justice made a determination that this and other evidence 
demonstrated a pattern and practice of employment discrimina­
tion by the defendant Cities. (Complaint, 1W 7-9, 14-16).
By signing its Consent Judgment, the Department of Justice 
states its approval of remedial hiring goals to alleviate 
the past practices. In this context, the Court's approval 
of the goals is warranted. See United States v. City of 
Miami, supra, 22 EPD 1f 30,822, at 15,249; compare e. g. , 
Dennison v. City of Los Angeles Department of Water & Power, 
22 EPD 11 30,575 (C.D. Cal. Dec. 20, 1979), at 14,096.*'

* The plaintiffs in the Vulcan case similarly reached 
the conclusion that the hiring goals were appropriate and 
the provision in their Consent Judgment should be approved 
as fair, lawful and in furtherance of public policy.

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C . Recruitment and Training
The Consent Judgments provide for the development 

and implementation of "an active and continuing recruitment 
program to attract and increase Black, Hispanic and women 
applicants for the position of firefighter" (H VII ).* 
Various provisions are included with the purpose of enabling 
as many minorities to apply for the position of firefighter 
as possible. Among these provisions are establishment of a 
substantial period for filing of applications for taking the 
next written test (scheduled to be given in September, 1980) 
Of VII(A)(1)); wide availability of application forms 
(H VII(A)(2)); easily accessible places for the filing of 
application forms (fl VII(A)(3)); and easy access to
information for prospective applicants (1f VII(A)(4)). In 
addition, efforts to stimulate minorities' interest in the
job of firefighting are to be made by means of a media 
campaign and a grass roots appeal through educational 
institutions and civic and religious organizations with 
large minority enrollment or membership (1I1F VII(B)(1), (2)). 
Moreover, to assist in the retention of minorities on the 
eligible list during the appointment process, notices are to 
be sent to plaintiffs of the offer of appointment to any

* In the Vulcan Consent Judgment, these matters are 
set forth in Paragraph X, which refers only to Blacks.
All citations hereinafter in this section of the memorandum 
are to the relevant paragraphs in the Government's Consent 
Judgment.

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minority person 10 days before the appointment is to be 
made. This will enable plaintiffs to advise and encourage 
such candidates to accept the offered appointments.
Finally, there are to be initiated various training programs 
in each of the defendant Cities to assist applicants in 
familiarizing themselves with the procedures and forms for 
taking the qualifying examinations given by the defendant 
Cities (1T VII(B) (4)) .*

These recruitment provisions are fully appropriate 
and reasonable means of assisting in the eradication of past 
discrimination. They seek to increase the number of 
minorities that apply for positions with defendant Cities. 
Moreover, they have been drafted by the parties to permit 
the Cities maximum flexibility in using their own resources 
as well as available outside assistance.

These procedures are in no way exclusionary; they 
do not prevent anyone of any race, national origin or sex 
from applying for appointment. Moreover, the recruitment 
program is not limited to minorities, but rather is directed 
at places where minorities are likely to learn of the

* As part of the training and recruitment, defendant 
Cities are to include, if possible, a Black, Hispanic or 
woman firefighter or officer in its recruitment program 
(1T VII(B) (5)).

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r^.

message, namely, that defendant Cities are interested and 
willing to hire qualified minorities. They do not change 
the standards of selection and to not adversely affect any 
groups of people. Recruitment devices such as these are 
well known and eminently fair means to combat the effects of 
prior discrimination. See, e.g., United States v. Georgia 
Power Co., 474 F.2d 906, 925-26 (5th Cir. 1973); United 
States v. City of Miami, supra, 22 EPD H 30,822, at 
15,253-54; United States v. City of Alexandria, supra, 22 
EPD U 30,829, at 15,302; United States v. State of New York, 
supra, 21 EPD 11 30,314, at 12,714-15; United States v. City 
of Buffalo, 20 EPD 1f 30,112 (W.D.N.Y. Dec. 11, 1978).

The training provisions similarly are appropriate
to assist in the achievement of the policies underlying 
Title VII. The training will simply familiarize applicants
with the testing procedures and thus eliminate certain of
the unwanted side-effects derived from of applicants' lack
of knowledge of the scope of the material being tested or
lack of understanding of the test procedures. The training
sessions are open to all applicants and thus obviously can
not unduly adversely affect any one group more than another.
Accordingly, these provisions are fair and reasonable.

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. 05-8586

D . Selection Procedures
1. Longrange Improvement 

of Written Tests_____
The defendant Cities historically have utilized 

witten examinations developed by the State for the purpose 
of initial screening of applicants for the positions of 
firefighter, fire lieutenant and fire captain. The statis­
tical evidence is that these examinations have extreme 
adverse impact on Blacks and Hispanics. However, there is 
little evidence in the record that demonstrates the 
job-relatedness (i.e., "validity") of these examinations, 
under Title VII and the Uniform Guidelines. 43 Fed. Reg. 
38290 (1978). To overcome this deficiency in defendants' 
procedure, to enable plaintiff to evaluate the examinations' 
validity, and to improve the defendant Citied abilities to 
screen applicants, the parties included in the Consent 
Judgments extensive provisions for the conduct of (i) job 
analyses of each position for which they intend to 
administer a written test and (ii) performance rating 
surveys for those jobs (11 III).*

* These provisions are contained in Paragraph IV of 
the Vulcan Consent Judgment. References herein are to 
the Government's Consent Judgment.

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NEF: bmj 
. . 05-8586

The job analyses, which may be performed by the
defendant Cities individually or in cooperation with one
another and the State, shall "review the existing job
descriptions for each title to assure that the descriptions
reflect job content for test purposes" (H 111(A)(1)). The
State is required to provide assistance through appropriate
personnel for up to 40 hours for each job description being
analyzed (1ffl 111(A)(1)(a), (b)), and the analyses shall be
completed within the relatively short period of one year for
firefighters and 1 1/2 years for fire lieutenant and fire
captain jobs (H 111(A)(1)(c)). The State thereafter shall
correlate the information from the job analyses and create a
single job description, which may also be based upon
information from other municipalities within New York State 
(11 111(A)(1)(d)).

The job analyses are the fundamental prerequisite 
to development of a test for selection among applicants and 
to consideration of the issue of actual validity of any test 
that is created to measure candidates’ aptitudes or abilities 
to perform the jobs they seek. Uniform Guidelines, §§
14A,(2), C(2), D(2); e.g■, Kirkland v. New York State 
Department of Correctional Services, supra, 520 F.2d at

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m.'

426; Vulcan Society of New York City Fire Department v.
Civil Service Commission, supra, 490 F.2d at 396. Moreover, 
no one will suffer any conceivable detriment from the crea­
tion of the new job descriptions.*

The Consent Judgments also require that the defen­
dant Cities and State cooperatively conduct task performance 
rating surveys. These surveys consist of completion by fire 
officers of written questionnaires regarding job performance 
by firefighters and fire officers. The information is to be 
compiled in a manner that will permit comparison with test 
scores on current written tests for those jobs (H 111(A)(2)). 
The task performance rating surveys are to be completed 
within 1 1/2 years for both firefighters and fire officers.**

* The fact that a job analysis by Dr. Marvin Dunnette may 
have been performed will of course by relevant to the new job 
analysis, but it is not dispositive.
** Surveys about firefighters are to be completed within 
one year (11 111(A)(2)(a) (i)).



NEF:jcj
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■ f t a t 'M

The questionnaires are to be analyzed by the State and 
correlated with written test results for the firefighters 
and fire officers who are evaluated by the surveys. The 
resulting findings are to be the basis of further improve­
ment of the written tests for each job. The State is also 
permitted to utilize in its evaluation of the performance 
surveys information from other New York municipalities.* 

These surveys, as with improvements to the job 
descriptions described above, can only assist in the effec­
tive functioning of defendants' fire departments and do not 
adversely affect any groups of people. Thus, there can be 
no reason for the Court to withhold approval of this provi­
sion of the Consent Judgments.

* The information gleaned from these surveys will be 
confidential and exempt from disclosure under any freedom of 
information laws (1T 111(A)(2)(e)).

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y

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If defendants fail to comply with the foregoing
provisions or the studies performed under those provisions
fail to result in development of written tests without
adverse impact, the Consent Judgments provide that the
parties shall negotiate to reach a solution to the problem
(H 111(B)). If negotiations are unsuccessful, then plaintiffs
may petition the Court for appropriate relief regarding future
written tests (Id.). This provision is included in the
Consent Judgments as a safety valve, and permits the parties
to incorporate new concepts of industrial psychology and
testing theory into their solutions. It also permits access
to the Court, as a last resort, after a specific and narrow 

is
issue/identified.

Accordingly, these provisions are lawful and fair, 
and should be approved as a valid terms in the Consent 
Judgments.

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'F'< /C--

2. Interim Relief Concerning Written Tests
The Consent Judgments provide for the use in 

September, 1980 of a written test created by the State for 
the selection of firefighters, and for written tests periodi­
cally thereafter for both firefighters and fire officers.
The parties all acknowledge a need for defendant Cities to 
select new firefighters within the next few years. However, 
the written tests previously used were unlawful under Title 
VII since those tests had an adverse impact and defendant 
Cities' selection of applicants on the basis of the test 
results discriminated against Blacks and Hispanics.* See 
Uniform Guidelines § 4C. Nevertheless, because test valida­
tion is extremely complicated, it was deemed infeasible to

* The terms "adverse impact" and "validate" have technical 
meanings that must be kept in mind in this discussion. The 
Uniform Guidelines define "adverse impact" as

A substantially different rate of 
selection in hiring, promotion, 
or other employment decision 
which works to the disadvantage 
of members of a race, sex, or 
ethnic group.

It is evidence of adverse impact if the "four-fifths rule" 
(also known as the "eighty percent [80%] rule") is violated. 
This rule is that
[FOOTNOTE CONTINUED ON FOLLOWING PAGE]

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validate any written examination within the available time 
before the September, 1980 test.* Since defendants consider 
a written test to be a requirement of the selection process, 
the parties determined that modified use of the written test 
would be appropriate. See Uniform Guidelines §§ 6A (use of 
alternative selection procedures to eliminate adverse impact),

[FOOTNOTE CONTINUED FROM PREVIOUS PAGE]
A selection rate for any race, sex, 
or ethnic group which is less than 
four-fifths ... of the rate for the 
group with the highest rate will 
generally be regarded by the Federal 
enforcement agencies as evidence of 
adverse impact ...

Id. § 4D. Once adverse impact is shown to result from use 
oT a selection procedure, the defendant must produce evidence 
of the "validity" (i.e, , job-relatedness) of the procedure. 
Validity is shown if the selection procedure has been "validated." 
The Uniform Guidelines define "validate" in this context to 
be

A demonstration that one or more 
validity study or studies meeting 
the standards of these guidelines 
has been conducted, including 
investigation and, where appropriate, 
use of suitable alternative selection 
procedures ... and has produced 
evidence of validity sufficient to 
warrant use of the procedure for the 
intended purpose under the standards 
of those guidelines.

* Indeed, it is unknown precisely when a validated examina­
tion will be available.

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6B(2) (modification of selection procedure to eliminate 
adverse impact if validation techniques not feasible)). This 
consensus among the parties as to the September, 1980 test and 
written tests thereafter until the hiring goals are met is 
embodied in the Consent Judgments in paragraph 11(B).*

In essence, the parties have agreed that a 
written test similar to those previously administered by 
defendants may be given for selection of firefighters 
(11 11(B)(1)(g); See 1111 11(B)(1)(h), (i)) ;** See N.Y. Civil 
Service Law, Regulations, Part 67). The parties have sought 
to eliminate any adverse impact the future tests may have by 
modifying the scoring procedure. Each question on the test 
will be analyzed individually. If the success rate on a 
given question for all applicants in the State of New York 
who specify their racial/ethnic group as Black or Hispanic 
(and who complete the test and who answer the test question) 
is less than 80% of the rate of success on that question for

* See terms of the Consent Judgments as to Promotions, 
discussed at Section D(6) of this Memorandum, infra.
** The defendant Cities may elect under the Consent Judg­
ments and state law (N.Y. Civil Service Law §§ 17(A), 23) to 
prepare (or have prepared by third parties) a written test 
without the aid of the State.

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. NEF:jcj
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the group of applicants in the State who identify themselves 
as being other than Black or Hispanic (and who complete the 
test and answer the question), then that question shall not 
be counted in scoring the test for the purpose of determining 
who passed.* The passing score on the written tests shall 
be 70%, as provided by New York State Department of Civil 
Service Regulations, Part 67 (1f 11(B)(1)(e)).

The Consent Judgment in Paragraph 11(B)(1)(f) 
contains a further safeguard against adverse impact. If the 
overall proportion of Blacks and Hispanics who score over

* In the unlikely event that the number of applicants who 
specify their racial/ethnic group as Black or Hispanic is 
below 50, slightly different procedures will apply (H 11(B)(1)(b)). 
The State traditionally applies certain other statistical proce­
dures on the results of written tests. Use of these latter pro­
cedures is permitted by the Consent Judgments, but they are 
to be applied prior to application of the foregoing 80% rule 
to each item (U 11(B)(1)(d)).

The Consent Judgments further provide that the infor­
mation about applicants' racial/ethnic group will remain 
confidential for the State's use solely in connection with 
scoring the written test (11 11(B)(1)(c)).

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70% is less than 80% of those Whites with a passing score,* 
the parties are to conduct negotiations to seek to remedy 
the adverse impact. As a last resort, the plaintiff may 
petition the Court for appropriate injunctive relief.**

As the foregoing description evidences, the 
parties' goal first and foremost was to eliminate adverse 
impact from the written test. Plaintiffs recognize the need 
to select new firefighters and make promotions on the basis 
of merit by identifying candidates who are considered most 
likely to be able to perform the job well. However, test with 
adverse impact upon a particular racial, ethnic or sex group 
violates Title VII and cannot be used as a selection device 
in the absence of a showing of a "manifest relationship to

* If less than 50 Blacks and Hispanics take the test, the 
procedure is modified (1f 11(B)(1)(f)).
** The State will score the September, 1980 test before 
October 10, 1980 (H 11(B)(1)(1)). It also agrees not to 
re use the particular questions from the September, 1980 
test that are found to violate the 80% rule described above 
(11 H(B)(l)(i)).

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the employment in question." Griggs v. Duke Power Co., 401 
U.S. 424, 432 (1971). Accord, Albemarle Paper Co. v. Moody, 
422 U.S. 405, 425 (1975); see 42 U.S.C. § 2000e-2(h). In 
these circumstances, validation under the Uniform Guidelines 
is necessary. Uniform Guidelines § 3A. Since there has 
been no objective evidence that the written tests are valid, 
i.e., job-related, for any of the positions for which they 
are used, there is no basis on which plaintiffs can assume 
that fact or endorse the tests for employee selection purposes 
as previously utilized. See Uniform Guidelines §§ 3-6, 9.
The defendants, therefore, consented to comply with the law 
by attacking the problem from the other side, i.e., elimina­
tion of the adverse impact and discriminatory effect of the 
tests. This approach obviates the need for immediate formal 
validation and is an approved practice under the Uniform
Guidelines. See Uniform Guidelines §§ 3A, 3B (consideration 
of procedure with less adverse impact); 6A, 6B(2).

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The use of the 80% rule on individual items on a 
written test is a legal and creative solution to a complica­
ted problem. The concept of modifying the use of a selec­
tion procedure, such as the written tests, simply to elimi­
nate adverse impact from that procedure is a recognized 
method to comply with Title VII's requirements. See Albemarle 
Paper Co. v. Moody, 422 U.S. at 418; Uniform Guidelines 
§ 6B(2). This methodology has been used by courts in the 
creation of separate lists ranking applicants often they are 
divided by race (or sex), where selections for employment 
from those lists are made on the basis of pre-determined 
proportions by race (or sex). This method, like that in the 
Consent Judgments, evidences the policy judgment of Congress, 
the federal courts and the Executive agencies that selection 
strictly on "merit," as gauged by the applicants' rank on 
the list, sometimes must be subjugated to the overriding goal 
of elimination of discrimination.* See, e.g. , Franks v.
Bowman Transportation Co. , 424 U.S. 747, 763 (1963) ; Rios v .

* This method is usually used in conjunction with an 
order to remedy historical discrimination. In such cir­
cumstances the proportion of minorities hired is ordered to 
exceed the percentage of applicants from those groups, and 
thus includes a "catch-up" factor.

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Enterprise Association of Steamfitters, Local 638, 501 F.2d 
622, 629 (2d Cir. 1974); Vulcan Society of the New York Fire 
Department v. Civil Service Commission, 490 F.2d 387 (2d 
Cir. 1973); Guardians Association of the New York City 
Police Department v. Civil Service Commission of the City 
of New York, 79 Civ. 5314 (RLC) (S.D.N.Y. Jan. 23, 1980).

In agreeing to this interim use of the State's 
written tests, until a validated written test is developed 
and the hiring goals are met, plaintiffs have deferred to 
defendants' desire to use their traditional examinations.
It is anticipated that defendants' future written tests will 
be validated as job related. In that case, the screening of 
candidates on the basis of their scores on the tests will 
have actually furthered the important goal of merit selection 
and promotion of employees. In the meantime, as noted 
above, plaintiffs do not object to defendants' use of the 
State's written tests as modified by the Consent Judgments 
since plaintiffs' concern that future discrimination be 
eliminated from the written tests has been satisfied.

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05-8586

Accordingly, the Consent Judgments' provisions for 
interim procedures for written tests, applicable until the 
hiring goals are met and valid tests are developed, are 
lawful, reasonable and in furtherance of public policy. 
Therefore, these provisions should be approved by the Court.

3. Physical Strength/Agility Tests and
Elimination of Height and Reach Requirements
The Consent Judgments provide that defendant 

Cities shall administer a physical strength/agility test to 
all applicants who qualify on the basis of the written tests 
(U 11(B)(2)).* The physical strength/agility tests shall be 
the same as those administered by defendant Cities previously 
in 1978, except that with plaintiffs' consent the test may 
be changed to "minimiz[e] or eliminat[e] unlawful discrimina­
tory impact or to respond to conditions or circumstances 
arising at the time of the administration of the test which 
are unforeseeable or beyond the control of the City Defendants 
and which impair the validity or reliability of such test". 
(Id.). The ranking of candidates for selection as fire­
fighters in a particular City shall be solely on the basis

* This provision applies both to the written tests to be 
developed as described above and the interim tests to be 
administered in September, 1980.

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of performance on this physical test, (W..), except that 
ranking shall be separate for residents and non-residents 
(1111 11(B)(2), 11(C)(4)).*

As noted above, the previous results of the 
physical strength/agility tests revealed little if any 
disparate impact against Blacks or Hispanics.** Moreover, 
since the position of firefighter is a strenuous job involv­
ing physical agility and strength, a physical test of some 
kind would appear to be job-related.*** As a result, the

* Veterans' credits also may be given and will affect the 
ranking (11 11(C)(3)). See also 42 U.S.C. § 2000e-ll.
** Although no women took the test, and therefore there is 
no evidence of disparate impact as to them in that regard, 
it must be noted that none of the defendant Cities employ 
women as firefighters or officers.
*** This case is entirely unlike United States v. State of 
New York, supra, 21 EPD 130,314, at 12,672-74, in which the 
Court found in response to strong challenge by women plain­
tiffs that the physical tests used by the State were not 
properly validated. See Id., Findings of Fact, Nos. 100-14.

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t \

parties determined that it was most appropriate to have that 
test be the basic ranking device for candidates*.

* Physical strength and agility tests, although usually 
subject to some scrutiny to determine whether they have 
adverse impact upon any minority, generally are found to be 
appropriate for the job of firefighters. See, e.g., United 
States v. City of Alexandria, supra, 22 EPD 30,829, at 
15,302. The parties will present, if necessary to respond 
to objections to the physical strength/agility test, an 
expert who will support the use of these tests by defendants 
as a proper screening and ranking device for the job of 
firefighter.

There is also some discretion left to defendant in the 
selection of candidates off of the ranked lists. Any one of 
the top three candidates may be chosen after defendants' 
evaluation of their qualifications. This is known as the 
"rule of three" and is provided for by state law. N.Y.
Civil Service Law § 61 (McKinneys 1973).

In addition, it should be noted that the Consent Judg­
ments provide that prior to creation of new eligible lists 
based upon the September, 1980, tests, Mount Vernon may hire 
up to eleven firefighters from the Civil Service eligible 
list established by the City on April 30, 1979, (1T VI(A)). 
The cities of New Rochelle and White Plains are not to hire 
from the eligible list resulting from the May 20, 1978 test 
and shall not make appointments until a list is established 
from the September 1980 test.

-^7-



,*v
NEF:jcj 
05-8586

It should be noted that the parties determined 
that no separate height or reach requirement (other than 
the vague correlation they may have to results on the physi­
cal tests above) were appropriate. This conclusion is amply 
supported by case law. See, e.g., United States v. State of 
New York, supra, at 12,662; United States v. City of Buffalo, 
20 EPD 1T 30,112, at 11,600; United States v. City of 
Alexandria, supra, 22 EPD 1f 30,829, at 15,301.

Therefore, the physical tests and the elimination 
of the minimum height and reach requirements are fair and 
reasonable and the Consent Judgments should be approved in 
those respects.

4. Applicants with Conviction Records 
or Histories of Drug Abuse________
Applicants with a conviction for a felony or 

misdemeanor or a history of drug abuse may apply for posi­
tions as firefighters or fire officers but their applica­
tions shall be subject to special conditions (See H 11(C)(5)). 
In particular, such an applicant's history will be noted by 
defendants and he or she will be notified if the history is

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05-8586t

considered a ground for disqualification. The specific 
reasons for such a conclusion shall be stated in writing to 
the applicant. The applicant shall also be given an oppor­
tunity to appear before the appropriate Civil Service Com­
mission or Department of Personnel to be heard and to pre­
sent evidence as to why his/her history should not be a bar 
to appointment. Other due process protections are incorpora­
ted into the Consent Judgments.* The goal of these provi­
sions is to enable defendants to review each applicant's 
personal history individually, rather than establishing 
absolute bars to employment of such persons simply because 
of a fact that very possibly is irrelevant to a job in a 
fire department. To this end, consideration of such an 
applicant's history shall include analysis of the factors

* The other procedures are that the applicant shall bp
thara^efendant11̂ ! 0^ ^ 6 hea^ing C0Pies of any documents that a defendant intends to rely upon in disqualifying the
pplicant; that the position for which the applicant fs 
being considered will be held open until the disqualifica­
tion question CSyktfif there shall be a written statement
and^hat t h f ^ r  r®aso£s for disqualification;and that the determination by the State shall be reviewable
Rules Artlcle 78 of the New York Civil Practice Law and

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set forth in Section 753 of the New York Corrections Law (as 
applied in the Consent Judgments to both convictions and 
histories of drug abuse).* These factors include:

(a) the public policy to encourage 
employment of persons previously 
convicted of crime;

(b) the specific duties and responsi­
bilities necessarily related to 
the employment;

(c) The bearing, if any, that the 
criminal offense will have on the 
applicant's fitness or ability to 
perform the duties or responsi­
bilities ;

(d) The time which elapsed since the 
criminal offense occurred;

(e) the age of the applicant at the 
time of the criminal offense;

(f) the seriousness of the offense;
(g) the evidence of rehabilitation 

and good conduct since the time 
of the offense; and

(h) the legitimate interest of the 
public agency in protecting 
property and the safety and 
welfare of specific individuals or 
the general public.

* The statute literally applies only to convictions for 
crimimal offenses. However, the settling parties have 
deemed the cited factors to be relevant in assessing a 
history of drug abuse as well.

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This list of factors demonstrates that the Consent 
Judgments simply attempt to treat persons with histories of 
convictions or drug abuse fairly and individually. More­
over, these procedures are mandated by state law, namely the 
New York Corrections Law §§ 752 and 753 (McKinneys 1979 
Supp.). Section 752 prohibits the denial of employment by 
reason of the applicant's "having been previously convicted 
of one or more criminal offenses ... (1) unless there is a 
direct relationship between one or more of the previous 
criminal offenses and the specific ... employment sought; or 
(2) the ... granting of the employment would involve an 
unreasonable risk to property or to the safety or welfare of 
specific individuals or the general public." (Emphasis 
added.) The factors to consider in making the determina­
tions required by Section 752 are enumerated above. There­
fore, the Consent Judgments simply require defendants to 
conform with the law, as of course they are otherwise 
required to do.

Finally, the Consent Judgment provisions as to 
applicants with prior convictions is in conformity with case 
law under Title VII (Green v. Missouri Pacific Railroad Co., 
523 F.2d 1290, 1295-95 (8th Cir. 1975); Carter v. Gallagher,

-61-



452 F .2d 315, 326 (8th Cir. 1971); cert, denied, 406 U.S.
950 (1972)), and the Constitution (Smith v. Fussenich, 440 
F. Supp. 1077 (D. Conn. 1977) (three-judge court)).

The parties also agreed that applicants with 
histories of drug abuse should not automatically be dis­
qualified from employment in defendants' firefighting 
departments. The approach adopted has been to evaluate each 
applicant on his or her own merits in light of the factors 
enumerated in Section 753 as if they applied to drug abuse. 
This individualized consideration of applicants allows 
defendant the flexibility they require to hire qualified 
applicants without being constrained by automatic bars that 
may have no relevance to firefighting jobs.

Moreover, this term of the Consent Judgments 
conforms to the public policy embodied in federal law. An 
absolute bar to employment of a person with a history of
drug abuse violates the Rehabilitation Act of 1973, as 
amended in 1978. Pub. L. 95-602, Title I, § 122(a)(4)-(8) 
(Nov. 6, 1978), 92 Stat. 2984, 2985. The Rehabilitation Act 
now provides that a "handicapped individual" includes for 
purposes of discrimination in employment in federally funded 
programs (29 U.S.C. §§ 706(7)(B), 794) any person who

• NEF:jcj &* 05-8586

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(T*\

(i) has a physical or mental impair­
ment which substantially limits one 
or more of such person's major life 
activities, (ii) has a record of such 
an impairment, or ( m )  is regarded 
as having such an impairment. For 
purposes of sections 793 and 794 of 
this title as such sections relate 
to employment, such term does not 
include any individual who is an 
alcoholic or drug abuser whose 
current use of alcohol or drugs 
prevents such-individual from 
performing the duties of the job 
in question or whose employment 
by reason of such current alcohol 
or drug abuse would constitute a 
direct threat to property or the 
safety of others. [Emphasis added].

By subsection (ii) above and Section 794, persons with a
history of drug abuse are protected from "solely by reason
of his handicap [here, former drug abuse] be[ing] excluded
from the participation in, be[ing] denied the benefits of, 
or be[ing] subject to discrimination under any program or 
activity receiving Federal financial assistance ...." See
45 C.F.R. § 84.3(j)(ii). Since defendants receive federal 
financial assistance to operate their fire departments 
(Complaint H13), the hiring of employees by those depart­
ments is covered by these Rehabilitation Act provisions. 
This conclusion is squarely supported by Davis v. Bucher, 
451 F. Supp. 791 (E.D. Pa. 1978), in which the district

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court held that the City of Philadelphia unlawfully discri­
minated against former drug abusers by refusing to hire them 
due to their drug abuse history without considering whether 
the history medically disqualified that person from perform­
ing a particular job. In fact, Woolworth Davis, one of the 
named plaintiffs in Davis v. Bucher, had applied and been 
rejected for the job of fireman. Therefore, the Consent 
Judgments' provisions as to consideration of the facts 
surrounding a person's drug abuse history are not only 
legal, but are in furtherance of public policy as articula­
ted by Congress.*

The terms of the Consent Judgments regarding 
applicants with convictions or histories of drug abuse 
enable defendants to employ qualified individuals and 
merely prohibit applicants' automatic disqualification. As. 
such, these terms are eminently reasonable and should be 
approved by the Court.

* The Supreme Court in New York Transit Authority v. 
Beazer, 440 U.S. 568, 581 (1979), refused to construe the 
Rehabilitation Act of 1973 because of the posture of the 
case as presented to the Court. That case, therefore, does 
not foreclose this provision.

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5. Other Requirements for Firefighters
The Consent Judgment also provides that firefighter 

applicants must be at least 17 1/2 years old and not more 
than age 29 at the time they take the written test. A person 
is eligible for appointment as a firefighter at age 18 
(11 11(C)(2)).* Veterans credits may be provided for the 
purposes of meeting the foregoing age requirement (H 11(C)(3)). 
Perference shall be given to the applicants who are residents 
of the city to which they apply (H 11(C)(4)). Possession of 
a Class V operator's license is prerequisite for appointment 
to the position of firefighter in all three defendant Cities' 
except that New Rochelle will train probationary firefighters 
to obtain a chauffer's license (Class III), which it requires 
at the time of firefighters' permanent appointments. (11 11(C)(6).**

* There is an exception for the applicants who took the 
May, 1978 test, who are permitted to take the next written 
examination. (Id.).
** The City of New Rochelle requires its firefighters to be 
able to swim, but agrees to train probationary firefighters 
in this regard also. (11 11(C)(7)).



NEF:jcj 
65-858*

fTTs

Finally, there are further screening stages for 
applicants. These include a medical examination, hearing and 
vision requirements, and United States citizenship. If there 
should be a claim that such requirements are being applied in 
a discriminatory manner, the parties will confer to resolve 
the problem. As a last resort, any party may petition the 
Court for appropriate relief as the need arises. (U 11(C)(7), 
(8)).* Therefore, these provisions are reasonable, fair and 
lawful and should be approved by the Court.

6. Promotion to Fire Officer.
The Consent Judgments also cover the defendant 

Cities' promotion of firefighters to fire lieutenant and fire 
captain (1f V).** The parties have agreed that promotion 
shall be determined on the basis of applicants' scores on a 
written test given pursuant to New York Civil Service Law 
§ 23, which test shall be scored in accordance with the

* It should be noted that in addition to the requirements 
described in this memorandum, plaintiffs sought to include a 
provision to eliminate the requirement of a high school 
diploma or its equivalent. Since the defendant Cities 
objected, this issue is being tried separately to the Court. 
(See U 11(C)(1)).
** In the Vulcan Consent Judgment, these provisions are in 
Paragraph III-] (5nly the Government's Consent Judgment will 
be cited below.

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NEF:jcj
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procedures for interim written tests given to fire fighters.* 
(11 V(A)(1)). The passing grade on the promotion test shall 
be a score of 70 or higher, as previously has been the case 
(1f V(A)(1)(C)). The Consent Judgments also adopt defendants' 
prior requirement that a firefighter have a period of qualify­
ing experience before becoming eligible for promotion to fire 
lieutenant; but the parties have shortened the period that an 
applicant must be a firefighter to 3 years as of the time of 
appointment.**

Thus, the Consent Judgments in large part adopt the 
firefighter practices of defendant Cities as to qualifications 
for promotion and simply modify scoring on the written 
examination in order to eliminate any adverse impact that 
may occur. Therefore, these provisions should be approved.

* See section D(2) of this memorandum, supra.
** Applicants may take the test for promotion to fire 
lieutenant after being a firefighter for 2 years and 3 months 
(11 V(B)).

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05*8586 X'

E. Reporting Requirements
The Consent Judgments contain reporting and record­

keeping requirements with which the State and Defendant 
Cities must comply during the next 5 years (H VII).* These 
requirements are designed to provide plaintiffs with infor­
mation sufficient to determine that the Consent Judgments' 
termsare in fact being complied with as to the selection, 
appointment, promotion, recruitment, training, assignment and 
discipline of person in the fire department of the defendant 
Cities. (1111 VII(A), (B)(C)). As to most of the records that 
defendants must retain thereunder, copies are to be provided 
to plaintiffs' counsel only upon reasonable notice and upon 
request in writing. (Id.)** ***. The recordkeeping and report­
ing requirements were agreed to in recognition of and in an 
effort to accommodate defendants' existing procedures.*'

* These provisions appear in Section XI of the Vulcan Con­
sent Judgment. Only the Government's Consent Judgment will be 
cited below.
** The defendants are required to submit to plaintiffs an a 
regular basis only certain summary documents, such as lists 
regarding the total racial/ethnic/sex makeup of the fire 
departments, the number of vacancies in each job of the fire 
departments, certain information on new employees in each 
position, and certain information concerning recruitment 
efforts (1HT VII(D) , (E)).
*** Insurances of confidentiality are also provided in the 
Consent Judgment with respect to information released by the 
defendants to plaintiffs' counsel. (See 11 VIII(A)).

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F. General Injunctive Relief and Compliance
The Consent Judgment, finally, provides that the 

Court shall retain continuing jurisdiction over this case 
(11 X).* As necessary, and in compliance with various provi­
sions of the Consent Judgments (described above) plaintiffs 
may petition the Court for appropriate injunctive or other 
relief, not including contempt in the first instance, in the 
event of a claim that the State or City Defendants are 
engaged in any act or practice on or after the date of the 
Consent Judgments which has the purpose or effect of unlaw­
fully discriminating in any aspect of employment on the basis 
of race, national origin or sex. (11 IX(A)). Of course, the 
Consent Judgments shall not be construed to limit the Court's 
authority to hold any of the defendants in contempt where 
such remedy is warranted (Id.). The Consent Judgments state 
further that compliance with the provisions therein shall be 
deemed to be compliance with the equal employment provisions 
of the federal law as cited in the Consent Judgments (Id.)
To the extent that the provisions of the Consent Judgments

N NEF:jcj 4$ **
(35*8586

* In the Vulcan Consent Judgment this provision appears in 
Section XII. Citations hereafter are to the government's 
Consent Judgment only.

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05-8586

are found to be inconsistent with any State or local Civil 
Service statute, law or regulation, the provisions of the 
Consent Judgments shall control (1F IX(C)).* These provisions 
are reasonable, lawful and in furtherance of public policy, 
and thus should be approved.

G. Back Pay for Class Members and
Individual Plaintiffs In Vulcan
The Vulcan Consent Judgment provides for the

award of damages to classes of Black entry level applicants
and to the individual named plaintiffs** (1F1T VII, VIII).
The procedure applicable to each of the three settling
defendant Cities is the same. A pool of funds is to be
created by each City in a sum specified in the Consent
Judgment for the payment of damages to those individuals

* The Consent Judgments purport to control only as to 
equal employment opportunity practices required by federal 
law in effect at the time the Consent Judgments were entered. 
(11 IX( B)).
** The Vulcan Consent Judgment also provides for damages 
in the sum of $3000 from each of the three settling defen­
dant Cities to be paid to the Vulcan Society of Westchester 
County, Inc. (H IX).

-70-



shown to be entitled. The parties agreed that damages would 
be paid to Black applicants to the entry level position of 
firefighter (a) who were not appointed as firefighters 
because they failed to attain a passing score on specified 
written tests administered by the settling defendant Cities, 
and (b) who pass the written test scheduled to be administered 
by the defendant Cities in September, 1980. (H VII(B); 
Appendices I-A, I-B, and I-C). The damage award shall be 
the qualifying individuals' pro rata shares of the pool of 
the defendant City to which each applied for employment, 
based upon a formula reflecting the average time employees 
hired as a result of the specified tests have worked for the 
applicable defendant City (UH VII(B)(2)-(4)).

The defendant Cities may require a release to be 
executed by individuals in exchange for their receipt of *

NEF:jcj
05-8586

* The sizes of the pools were established in consideration 
of the percentage of the labor force in each City which is 
Black, the percentage of Black applicants who have shown an 
interest in becoming firefighters, the number of firefighter 
appointments made to the Fire Department in that City and the 
percentage of Blacks previously appointed as a firefighter in 
that City.

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,vt
*

damages under the Consent Judgment (fVII(B)(5)). No release 
or other waiver of claims is imposed upon any individual who 
does not explicitly agree to it. (Id*) Moreover, claims 
arising from future injuries or from defendants’ failure to 
comply with the Consent Judgment are not affected by it. 
United States v. Allegheny-Ludlum Industries, Inc,, supra, 
517 F.2d at 853-57. See United States v . City of Jackson, 
supra, 519 F.2d at 1152-53.

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%•NEF:jcj
05-8586 *r>

These provisions are fair lawful and reasonable,
the goal of Title VII is to "make whole" persons who have 
suffered employment discrimination. See 42 U.S.C. § 200.0e-5(a) ;* 
Albermarle, supra. The Supreme Court has made it clear that 
the award of back pay is to be "denied only for reasons which, 
if applied generally, would not frustrate the central 
statutory purposes of eradicating discrimination throughout 
the economy and making persons who for injuries suffered 
through past discrimination." Albermarle Paper Co. v. Moody, 
supra, 422 U.S. at 421 (footnote omitted). There need be no 
showing of "bad faith" by the defendant employer. Id. at

* To the extent that an individual may claim that the back 
pay provision is insufficient, because the claimant might 
recover more after a full trial, this claim is without merit 
insofar as approval of the Consent Judgment is concerned. A 
compromise, which avoids the expense and uncertainties of a 
trial, includes waiver of full remedial compensation, and the 
balance is considered equitable. See e.g. , United States v. 
Truckin Enterprises, Inc., supra, 561 F.2d at 317 & n. 5; 
United States v. Allegheny-Luaium Industries, supra, 517 F.2d

It is noted also that the Consent Judgments do not 
b nd any employee as a matter of res judicata. United 
States v . Trucking Employees, Inc. , supra, 561 F.2d at 317.

422 *

at 881.

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65-8586 «>

Thus the back pay provision in the Consent Judgment 
in Vulcan are appropriate and should be approved by the Court.

CONCLUSION
For the foregoing reasons, the Consent Judgments 

should be approved in their entirety.
Dated: New York, New York

May 28, 1980
Respectfully submitted,
JOHN S. MARTIN, JR.
United States Attorney for the 
Southern District of New York 
Attorney for Plaintiff 
United States of Amierca

KENT T. STAUFFER
NANCY E. FRIEDMAN
Assistant United States Attorneys

- Of Counsel -

Teitelbaum & Hiller 
Attorneys for Plaintiffs in 
Vulcan

RICHARD HILLER 
HERBERT TEITELBAUM

- Of Counsel -

-74-



TABLE I

CENSUS FIGURES FOR WHITE PLAINS, 
NEW ROCHELLE AND MOUNT VERNON 
FOR 1950, 1960 and 1970*_______

1950 1960 1970
City

White Plains
Total 
Black 
70 B1

Hispanic 
7o H

43,466 50,485
4,327 5,880
09.9 11.7

not counted 163
NA 00.3

50,125
7,250
14.5

1,648
03.3

New Rochelle
Total 
Black 
7, B1
Hispanic 
7» H

59,725 76,812
7,501 10,103
12.5 13.1

not counted 67
NA 00.1

75,385
10,854

14.4
1,937

02 .6

Mount Vernon
Total 
Black 
7. Bl
Hispanic 
7. H

71,899 76,010
7,929 14,918
11.0 19.7

not counted 70
NA 00.1

72,778
25,883

35.6
1,780
02.4

* Taken from the EEOC Report of Determination, dated 
February 11, 1977. The EEOC noted that the 1960 Census 
did not count Hispanics but only first and second 
generation Puerto Ricans and that the 1950 Census did 
not even count Puerto Ricans.



TABLE II
POPULATION BETWEEN THE AGES 
OF 16 AND 64 - 1960*

TOTAL
Westchester Co. 499,162

New Rochelle 48,225

Mount Vernon 48,181

White Plains 31,881

WHITE** NON-WHITE**
458,236 40,926
(91.8) (8.2)
41,214 7,011
(85.5) (14.5)
38,589 9,592
(80.1) (19.9)
27,915 3,966
(87.6) (12.4)

* Drawn from the 1960 Census.
** Numbers in parentheses below the census entry indicates 
the percentage of the total for the relevant municipality.



TABLE I I I

POPULATION BETWEEN THE AGES 
OF 16 AND 64 - 1970*

TOTAL
Westchester Co. 550,240

New Rochelle 46,814

Mount Vernon 45,424

White Plains 31,675

WHITE** BLACK** OTHER**
494,102
(89.8)

52,087
(9.5)

4,051
(0.7)

39,301
(84.0)

6,726
(14.4)

787
(1.7)

29,072
(64.0)

15,998
(35.2)

354
(0.8)

26,802
(84.6)

4,653
(14.7)

220
(0.7)

* Drawn from the 1970 Census.
** Numbers in parentheses below the Census entry indicate 
the percentage of the total for the relevant municipal unit.



TABLE IV

COMPARISON OF RACIAL COMPOSITION 
OF THE MUNICIPAL FIRE DEPARTMENTS 
AND THE CORRESPONDING POPULATION 
BETWEEN THE AGES OF 16 AND 64

FIRE DEPARTMENT EMPLOYMENT* POPULATION BETWEEN THE AGES 16 AND 64**
°L White % Black % Other 7» White % Black 7o Other

New Rochelle 96.1 3.9 - 0 - 84.0 14.4 1.7

Mount Vernon 96.9 3.1 - 0 - 64.0 35.2 0.8

White Plains 96.6 2.3 1.1 84.6 14.7 0.7

&

* Calculations based on information contained in Tables V, VI, and VII.
** Drawn from Table III, 1970 data.



Total

Office Administrator 6
Black

Professional 29
Technician 
Protective Service 135 4
Office-Clerical 1
Skilled Craft 3
Service Maintenance

TOTAL 174 4

TABLE V

EEO-4 EMPLOYMENT FIGURES FOR THE 
WHITE PLAINS FIRE DEPARTMENT - 1976

Male Female
Hispanic Asian White Black Hispanic Asian

6

1 28

1 130

3

2 167

White

§

1

1

A



TABLE V I

EEO-4 EMPLOYMENT
NEW ROCHELLE FIRE

FIGURES FOR THE 
DEPARTMENT - 1976

Total Male Female
Black Hispanic Asian White Black Hispanic Asian White

Office Administrator 5 5

Professional 36 36
Technician
Protective Service 138 7 131
Office-Clerical 1 1
Skilled Craft
Service Maintenance -

*

TOTAL 180 7 172 1



TABLE V I I

EEO-4 EMPLOYMENT FIGURES FOR THE 
MOUNT VERNON FIRE DEPARTMENT - 1976

Total Male Female
Black Hispanic Asian White Black Hispanic Asian White

Office Administrator 1 1
Professional 2 2
Technician
Protective Service 127 3 124
Office-Clerical 3 3
Skilled Craft 18 1 16 1
Service Maintenance 11 ' 11 •

TOTAL 162 4 157 1



viii

TABLE V I I I

NEW HIRES OF WHITES AND MINORITIES 
DURING 1974, 1975, AND 1976*

1974 1975 1976 TOTAL
W Min. W Min. W Min. W Min

New Rochelle 4 0 1 1 4 0 9 1

Mount Vernon 0 0 0 0 0 0 0 0

White Plains 11 1 4 0 7 0 22 1

TOTAL 15 1 5 1 11 0 31 2

Drawn from the EEO-4 reports of the respective municipalities.



*

TABLE IX

RACIAL COMPOSITION OF 
NEW ROCHELLE FIRE 
DEPARTMENT, 1972-1978*

Year/Race** Position
Fire Fire Fire Deputy
Fighter Lieutenant Captain Chief Chief

1972 B 8 0 0 0 0W 129 30 6 4 1

1973 B 7 0 0 0 0W 133 30 7 4 1

1974 B 7 0 0 0 0W 148 31 7 4 1

1975 B 7 0 0 0 0W 148 31 7 4 1

1976 B 7 0 0 0 0W 131 30 7 4 1

1977 B 7 0 0 0 0W 131 30 7 4 1

1978 B 7 0 0 0 0W 133 30 5 4 1

* Information drawn from New Rochelle Defendants'Answers to Plaintiffs' Interrogatories, p. 2, datedJune 30, 1978, in the Vulcan. action.
"B" refers to Blacks; "W" to Whites

ix



TABLE X

RACIAL COMPOSITION OF 
MOUNT VERNON FIRE 
DEPARTMENT, 1972-1978*

Year/Race** Position

Fire Fire Fire Deputy
Fighter Lieutenant Captain Chief Chief

1972 B 4 0 0 0 0
W 104 8 4 4 1

1973 B 4 0 0 0 0
W 109 8 4 4 1

1974 B 4 0 0 0 0
W 104 8 2 4 1

1975 B 4 0 0 0 0
W 107 8 4 4 1

1976 B 3 0 0 0 0
W 110 8 4 4 1

1977 B 3 0 0 0 0
W 110 8 4 4 1

1978 B 3 0 0 0 0
W 113 9 2 5 1

* Information drawn from Mount Vernon Answers to Interroga 
tories, p. 4, dated June 28, 1978, in the Vulcan case.

"B" refers to Blacks; "W" refers to Whites.**



TABLE X I

RESULTS OF MAY 20, 1978 FIREFIGHTER 
WRITTEN TEST FOR MOUNT VERNON, NEW 
ROCHELLE, AND WHITE PLAINS*________

MOUNT VERNON WHITE BLACK

Number of Candidates 
Number Passing 
Percent Passing

147
136
92.5

33
24
72.7**

NEW ROCHELLE
Number of Candidates 
Number Passing 
Percent Passing

305
285
93.4

47
30
63.8**

WHITE PLAINS
Number of Candidates 
Number Passing 
Percent Passing

256
247
96.5

12
8
66.7**

* Data provided by the New York State Department of Civil 
Service. There is some discrepancy in these figures because 
of "cross-overs", that is, candidates who applied for employment 
in one city and took the exam in another. Also, figures for 
Hispanics and women are not shown due to small sample sizes. 
Despite these factors, the data in this table is nevertheless 
considered appropriately illustrative.
** For each city, the Black pass rate is less than 4/5 of the 
White pass rate, and is statistically significantly different 
at both the 5% and 1% confidence levels.



RESULTS OF MAY 20, 1978 FIREFIGHTER 
WRITTEN TEST FOR MOUNT VERNON, NEW 
ROCHELLE. AND WHITE PLAINS*________

MOUNT VERNON WHITE BLACK
Number of Candidates 
Number Passing 
Percent Passing

147
136
92.5

33
24
72.7**

NEW ROCHELLE
Number of Candidates 
Number Passing 
Percent Passing

305
285
93.4

47
30
63.8**

WHITE PLAINS
Number of Candidates 
Number Passing 
Percent Passing

256
247
96.5

12
8
66.7**

* Data provided by the New York State Department of Civil 
Service. There is some discrepancy in these figures because 
of "cross-overs", that is, candidates who applied for employment 
in one city and took the exam in another. Also, figures for 
Hispanics and women are not shown due to small sample sizes. 
Despite these factors, the data in this table is nevertheless 
considered appropriately illustrative.
** For each city, the Black pass rate is less than 4/5 of the 
White pass rate, and is statistically significantly different vw 
at both the 5% and 1% confidence levels.

\ xi