Kirkland v. The New York State Department of Correctional Services Petition for Writ of Certiorari

    Bnpxmit (ttamt of %  litttoft States
October T erm, 1975 

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

E dward L. K irkland and Nathaniel H ayes, et al.,

Petitioners,

v .

T he New Y ork State D epartment of 
Correctional Services, et al.

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

FOR THE SECOND CIRCUIT

J ack Greenberg 
J ames M. Nabrit, III 
D eborah Greenberg

10 Columbus Circle 
Suite 2030
New York, New York 10019

M orris J. B aller 
145 Ninth Street 
San Francisco, California 94103

Attorneys for Petitioners



TABLE OF CONTENTS

PAGE

Opinions Below .........-.... ......... -...... .... -........................... 2

Jurisdiction ...................... ..................................................  2

Questions Presented ................. -........... -----------------......  2

Statutory and Constitutional Provisions Involved.......  3

Statement of the Case ------- ----- ---------- ------—....... -...... -  5

Beasons for Granting the Writ ......... ................ ...... .....  9

A. The District Court’s Power to Award Com­
plete Belief ........................... ......... ......................  9

B. Attorney’s Fees ------- ---- ------------- ----------------  14

Conclusion .................... ..... — .... ......... ........ ...... —- ........  16

T able oe A uthorities

Cases:

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) ....9,15 
Alexander v. Gardner-Denver Co., 415 U.S. 36

(1974) ...... ..... ............... ......................................... ..... 15,15n
Alyeska Pipeline Service Co. v. Wilderness Society,

421 U.S. 240 (1975) ............................. ............. ...3,8,14,15

Boston Chapter, isT A A CP v. Beecher, 504 F.2d 1017 (1st 
Cir. 1974), cert, denied, 421 U.S. 910 (1975) ..10n, 13,13n 

Bridgeport Guardians, Inc. v. Bridgeport Civil Service 
Comm’n, 482 F.2d 1333 (2d Cir. 1973), aff’g in 
relevant part, 354 F. Supp. 778 (D. Conn. 1973) .... . lOn



11

Carter v. Gallagher, 425 F.2d 315, 327 (8th. Cir. 1972)
(en banc), cert, denied, 406 U.S. 950 (1972) ........... . lOn

Castro v. Beecher, 459 F.2d 725 (1st Cir. 1972) .......... . lln
Chance v. Board of Examiners, 11 EPD H 10,633 (No.

75-7161 2d Cir. Jan. 19, 1976) ..................................... . l ln
Commonwealth of Pennsylvania v. O’Neill, 473 F.2d 

1029 (3d Cir. 1973) (en banc), aff’g in relevant part,
348 F. Supp. 1084 (EJD. Pa. 1972) ............. ...............  10n

Commonwealth of Pennsylvania v. Sebastian, 480 F.2d 
917, reported fully, 6 EPD If 9037 (3d Cir. 1973), 
aff’g, 368 F. Supp. 854, reported fully, 5 EPD If 8558
(W.D. Pa. 1972) ............... ..................... ....... ................  H)n

Crockett v. Green, 11 EPD ff 10,781 (7th Cir. 1976) ..10n, 13

Douglas v. Hampton, 512 F.2d 976 (D.C. Cir. 1975) .... 13n

EEOC v. Detroit Edison Co., 515 F.2d 301 (6th Cir.
1975) ...................... ....... ..................................................  lOn

EEOC v. Local 638 . . . Local 28 of the Sheet Metal 
Workers Assoc., 11 EPD 10,740 (No. 75-6079, 2d
Cir. March 8, 1976) __________________ ______ __ _ l i n

Erie Human Relations Comm’n v. Tullio, 493 F.2d 371 
(3rd Cir. 1974) .......... ........ ....... ..... ............................ io n

Franks v. Bowman Transportation Co., 44 U.S.L.W.
4356 (No. 74-728, March 24, 1976) ......... .....................9-10

Franks v. Bowman Transportation Co., 495 F.2d 398 
(5th Cir. 1974) ....................................................lln , 12,14n

Griggs v. Duke Power Company, 401 U.S. 424 (1971) ..12-13

Johnson v. Railway Express Agency, 421 U.S. 454
(1975) ...................... ......... ................ .'_________ ______  15n

Jones v. New York City Human Resources Adminis­
tration, 11 EPD U 10,664 (2d Cir. 1976) ......................  13n

PAGE



Ill

Local 53, International Association of Heat & Frost

PAGE

I & A  Workers v. Yogler, 407 F.2d 1047 (5th. Cir.
1969) .... ........ ........... ........... ..................... .......... .... ..... . lOn

Louisiana v. United States, 380 U.S. 145 (1965) ......... 9,12
Moor v. County of Alameda, 411 U.S. 693 (1973) .......  14
Morrow v. Crisler, 491 F.2d 1053 (5th Cir.), cert, de­

nied, 419 U.S. 895 (1974) ............................ .................  l ln

NAACP v. Allen, 493 F.2d 614 (5th Cir. 1974) ..........  lOn
Newman v. Piggie Park Enterprises, 390 U.S. 400 

(1968) ....................... .......................................................  15

Oburn v. Shapp, 521 F.2d 142 (3rd Cir. 1975) .............  lOn

Patterson v. American Tobacco Co., 11 EPD Tf 10,728
(4th Cir. 1976) .................... ................ ...................... . 11

Patterson v. Newspaper & Mail Deliverers Union, 514 
F.2d 767 (2d Cir. 1975) .......................... ....... ..... .......  lOn

Rios v. Enterprise Association Steamfitters, Local 638,
501 F.2d 622 (2d Cir. 1974) ............ ................... ..........  lOn

Rogers v. International Paper Co., 510 F.2d 1340 (8th 
Cir.), vacated and remanded on other grounds, 46
L.Ed. 2d 29 (1975) ................ ............ ....... ................. . 13n

Swann v. Charlotte-Mecklenburg Board of Education,
402 U.S. 1 (1971) .................... ........ ................... ...........  12

United States v. Carpenters, Local 169, 457 F.2d 210 
(7th Cir. 1972), cert, denied, 409 U.S. 851 (1972) .... lln  

United States v. IBEW  Local 212, 472 F.2d 634 (6th
Cir. 1973) ........................ ................................................ lOn

United States v. Ironworkers, Local 86, 443 F.2d 544 
(9th Cir. 1971), cert, denied, 404 U.S. 984 (1971), 
aff’g, 315 F. Supp. 1202 (W.D. Wash. 1970) ...........  lOn



IV

United States v. Masonry Contractors Ass’n of Mem­
phis, Inc., 497 F.2d 871 (6th Cir. 1974) ......................  lOn

United States v. Montgomery County Board of Educa­
tion, 395 U.S. 225 (1969) ..... ........................................  12

United States v. N. L. Industries, 479 F.2d 354 (8th
Cir. 1973) ....... ..................................... ....................... .lln , 13

United States v. Wood, Wire & Metal Lathers, Local 
46, 471 F.2d 408 (2d Cir.), cert, denied, 412 U.S. 939 
(1973) ...................... ..................... ..................................  lOn

Vulcan Society of New York City Fire Dept. v. Civil 
Service Comm’n, 490 F.2d 387 (2d Cir. 1973) ....... lOn, 13n

Statutes:

42 U.S.C. §1981 .......

42 U.S.C. §1983 ____

42 U.S.C. §1988 .......

42 U.S.C. §2000e-5(k)

Other Authorities:

United States Senate Subcommittee on Labor of the 
Committee on Labor, Legislative History of the

PAGE

Equal Employment Opportunity Act o f 1972 (No­
vember 1972) ..................... ......................................... . 11

M. Slate, Preferential Relief in Employment Discrimi­
nation Cases, 5 Loyola Univ. L. J. 315 (1974) ......... . 12n

3, 5,14,15 

3, 5,14,15

....4,14,15

.....5,14,15



I n the

tour! uf tip
October T erm, 1975

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

E dward L. K irkland and Nathaniel H ates, et al.,

v.
Petitioners,

T he New Y ork S tate D epartment op 
Correctional, Services, et al.

PETITION FOB. A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

Petitioners, Edward L. Kirkland and Nathaniel Hayes, 
individually and on behalf of the class they represent, 
respectfully pray that a writ of certiorari issue to re­
view the judgment and opinion of the United States 
Court of Appeals for the Second Circuit of August 6, 
1975 in this case.1

1 Respondents include, in addition to those named in the caption 
the following: Russell Oswald, in his capacity as Commissioner 
of the New York State Department of Correctional Services; the 
New York State Civil Service Commission; Ersa Poston, in her 
capacity as President of the New York State Civil Service Com­
mission ; Michael N. Scelsi and Charles P. Stockmeister, each in 
his capacity as Civil Service Commissioner; Albert M. Ribeiro 
and Henry L. Coons.



2

Opinions Below

1. The opinion of the District Court is reported at 
374 F.Supp. 1361 and is in the Appendix, pp. la.-19a.

2. The decree of the District Court is not officially 
reported, but is reprinted in 8 EPD ([9675 and is in the 
Appendix, pp. 20a~21a.

3. The opinion of the Court of Appeals is reported at 
520 F.2d 420 and is in the Appendix, pp. 22a-41a.

4. The order denying rehearing and the opinions dis­
senting from said denial are not officially reported, but 
are reprinted in 10 EPD Tf 10,547 and are in the Appen­
dix, pp. 42a-56a.

Jurisdiction

The Court of Appeals entered judgment August 6, 1975. 
Bequest for rehearing was denied December 10, 1975. 
February 19, 1976, Mr. Justice Marshall signed an order 
extending time for filing this petition until May 8, 1976. 
This Court’s jurisdiction is invoked under 28 U.S.C. 
§1254(1).

Questions Presented

1. Since 1961 there have been only two blacks and no 
Hispanics^ in supervisory positions in the entire New 
York State prison system. Substantial uncontradicted 
evidence demonstrated that this situation was caused by 
unconstitutional racial discrimination. As part of the rem­
edy the District Court ordered that one minority be pro­
moted to sergeant for every three whites so promoted



3

until the ratio of minority to white sergeants equals the 
ratio of minority to white officers—the entry level rank 
immediately below sergeant.

Did the District Court have the power to award this 
aspect of the relief or was the Court of Appeals correct 
in reversing on the ground that it was prohibited by the 
United States Constitution, the New York State Consti­
tution and the New York Civil Service law?

2. Did the Court of Appeals err in reversing an award 
of counsel fees in this case, brought under 42 U.S.C. §§ 1981 
and 1983, on the ground that such award was forbidden by 
Alyeska Pipeline Service Co. v. Wilderness Society?

Statutory and Constitutional Provisions Involved

Section 1981, 42 United States Code, provides:

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

Section 1983, 42 United States Code, provides:

Every person who, under color of any statute, or­
dinance, regulation, custom, or usage, of any State or 
Territory, subjects, or causes to be subjected, any 
citizen of the United States or other person within the 
jurisdiction thereof to the deprivation of any rights, 
privileges, or immunities secured by the Constitution



4

and laws, shall be liable to the party injured in an 
action at law, suit in equity, or other proper proceed­
ing for redress.

Section 1988, 42 United States Code, provides:

The jurisdiction in civil and criminal matters con­
ferred on the district courts by the provisions of this 
chapter and Title 18, for the protection of all persons 
in the United States in their civil rights, and for their 
vindication, shall be exercised and enforced in con­
formity with the laws of the United States, so far as 
such laws are suitable to carry the same into effect; 
but in all cases where they are not adapted to the ob­
ject, or are deficient in the provisions necessary to 
furnish suitable remedies and punish offenses against 
law, the common law, as modified and changed by the 
constitution and statutes of the State wherein the court 
having jurisdiction of such civil or criminal cause is 
held, so far as the same is not inconsistent with the 
Constitution and laws of the United States, shall be 
extended to and govern the said courts in the trial and 
disposition of the cause, and, if it is of a criminal 
nature, in the infliction of punishment on the party 
found guilty.

Section 2000e-5(k), 42 United States Code, provides:

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



5

Statement of the Case

As of May 1, 1973, of 122 permanent Correction Ser­
geants in the New York State Department of Correctional 
Service not one was black or Hispanic. Since 1961, there 
have been only two blacks and no Hispanies in supervisory 
positions in the entire New York State prison system; 
there is no evidence that any minorities held supervisory 
positions prior to 1961.2

The complaint filed April 10,1973, challenged the legality, 
under the Fourteenth Amendment and 42 U.S.C. §§ 1981 
and 1983, of Civil Service examination 34-944 for promo­
tion to Correction Sergeant (Male), administered October 
14, 1972, on the ground that it was racially discriminatory 
in that it excluded disproportionate numbers of black and 
Hispanic candidates and was not job-related. An amended 
complaint of June 22, 1973, challenged Sergeant examina­
tions administered prior to 1972 on the same ground.

Petitioners introduced substantial, unrebutted evidence 
that the gross under-representation of minorities among 
supervisors was brought about by the screening-out effects 
of the examinations.

For the 1972 examination, complete racial pass-fail sta­
tistics showed that whites passed at three times the rate 
of blacks and Hispanies, whites scored high enough to 
be likely to be appointed at six times the black rate, and 
no Hispanies scored high enough to be appointed. While 
complete data was not available for earlier examinations,

2 In the Correction Officer series of the New York State Depart­
ment of Correctional Services, the entry level position is Correc­
tion Officer. Promotions are made to successive supervisory posi­
tions of Sergeant, Lieutenant, Captain, Assistant Deputy Super­
intendent, Deputy Superintendent and Superintendent on the 
basis of a series of written examinations.



6

it was undisputed that, of 995 whites and 46 blacks and 
Hispanics who took the 1970 exam and were still em­
ployed January 1, 1973, 9.4% of the whites and no mi­
norities passed. Prior to 1970, at one correctional facility 
25 blacks took the 1968 exam and 10 to 15 blacks took the 
1965 exam. Seven black officers testified they took the 
Sergeant examination as many as four times and never 
scored high enough to be appointed. Six of these officers 
had, at time of trial, been serving as provisional Ser­
geants for as long as a year, all satisfactorily. Finally, 
there was uncontroverted expert testimony that blacks 
and Hispanics tend to achieve lower scores than whites 
on the type of examinations in issue.

The State respondents3 attempted, unsuccessfully, to 
demonstrate that the 1972 examination was job-related. 
Petitioners established that the earlier exams were pre­
pared by the same process and were similar in content to 
the 1972 examination. Respondents put on no evidence 
about job-relatedness of earlier examinations.

The District Court found that respondents had engaged 
in racial discrimination in that examination 34-944 had 
a disproportionate impact upon blacks and Hispanics (3a- 
7a) and respondents had not met their burden of estab­
lishing its job relatedness (7a-15a). As to past examina­
tions, it found that “while there is evidence in the record 
of the discriminatory impact of the earlier tests, there 
is no evidence as to their job-relatedness” (14a). It en­
joined the use of eligibility lists promulgated on the basis

3 Respondents Ribeiro and Coons are provisional Sergeants who 
would have been appointed permanent Sergeants on the basis of 
their performance on examination 34-944 but for the District 
Court’s temporary restraining order entered April 10, 1973. They 
applied and were permitted to intervene after the District Court 
entered its opinion.



7

of performance on examination 34-944 and ordered prep­
aration of a new selection procedure (20a).

The District Court further ordered (a) that permanent 
appointments of Correction Sergeants prior to developing 
a new selection procedure be in a ratio of one black or 
Hispanic for each three whites until “ the combined per­
centage of Blacks and Hispanics in the ranks of Correc­
tion Sergeants (Male) is equal to the combined percent­
age of Blacks and Hispanics in the ranks of Correction 
Officers (Male)” (20a); (b) after adoption of a new se­
lection procedure the same ratio of appointing one black 
for three whites was required to be maintained until the 
black-Hispanie sergeant percentage equalled their percent­
age among correction officers. (20a-21a)4

The District Court awarded attorneys’ fees to petitioners 
on the ground that they were acting to vindicate the 
right to equal employment opportunities in the public 
sector (17a-19a).

On appeal, a panel of the Court of Appeals affirmed 
the provisions of the decree enjoining defendants from 
making appointments based upon the results o f examina­
tion 34-944 and directing the development of a new se­
lection procedure (28a-33a); affirmed that portion of the 
decree requiring quota appointments during the interim 
period prior to the development of a new selection pro­
cedure (38a-39a); but reversed the District Court’s order 
with respect to minority goals and implementing ratios 
subsequent to development of a new selection procedure. 
It is this reversal, denying the power of the district judge

4 The court did not 'specify the time at which the percentage of 
minority representation among correction officers was to be ascer­
tained for purposes of determining whether the goal for minority 
Sergeants had been met. As of May 1, 1973, 395 of 4490 Correc­
tion Officers, 8.8%, were black or Hispanic.



8

to award such relief in such circumstances, for which cer­
tiorari is sought.

The panel’s reversal of the grant of affirmative relief 
following establishment of a new procedure was based on 
the grounds that (1) there was insufficient proof of a 
“ clearcut pattern of long-continued and egregious racial 
discrimination” because (a) complete statistical pass-fail 
data was unavailable, (b) petitioners failed to prove that 
the earlier exams were not job related, and (c) there was no 
claim of bad faith (34a-35a); and (2) a quota might re­
sult in minority individuals being given preference over 
identifiable non-minorities (persons ranking higher on a 
civil service list) which, the panel asserted, “would seem 
to be violative” of the United States Constitution, the New 
York State Constitution, and the New York Civil Service 
Law (35a-38a). The panel failed to consider, or to remand 
to the District Court to consider, alternative forms of re­
lief to class members who had unconstitutionally and dis- 
criminatorily been denied appointment because of per­
formance on pre-1972 examinations.

The panel also reversed the award of attorneys’ fees in 
reliance on Alyeska Pipeline Service Co. v. Wilderness 
Society, 421 U.S. 240 (1975).

Petitioners petitioned for rehearing, with a suggestion 
for rehearing en banc, o f the issue of affirmative relief. The 
petition was denied (5-3), Chief Judge Kaufman and Cir­
cuit Judges Mansfield and Oakes dissenting (43a-56a). 
Judge Mansfield, Judges Oakes and Kaufman concurring, 
pointed out that the first ground for reversal, insufficient 
proof of past discrimination, was not supported by the 
record (49a-51a), and that the second, that a quota would 
result in “ identifiable reverse discrimination” , did not dis­
tinguish it from all the other cases in which Courts of 
Appeals for the Second Circuit and seven other circuits



9

had affirmed the imposition of hiring goals, and that the 
panel’s denial of quota relief had the effect of providing 
“wholly inadequate relief to those aggrieved” (43a-49a, 
51a-55a). In a separate opinion, Chief Judge Kaufman 
expressed the view that the court could “ retrace the steps 
taken by previous panels . . . only by an en banc . . .  or 
by a Supreme Court holding that [its] earlier decisions 
have been in error” (55a-56a).

Reasons for Granting the Writ

A. The District Court’s Power to Award Complete Relief

The decision below restricts the power of a court of 
equity to award effective relief after a finding of racial 
discrimination in employment and is thereby in conflict 
with the decisions of seven other Courts of Appeals and of 
this Court. Such restriction, moreover, denies petitioners 
and their class positions they would have held but for re­
spondents’ discriminatory testing practices, contrary to 
principles asserted by this Court.5

This Court has consistently recognized the power, indeed 
the duty, of district courts to fashion relief “which will so 
far as possible eliminate the discriminatory effects of the 
past as well as bar like discrimination in the future” . 
Louisiana v. United States, 380 IT.S. 145, 154 (1965). In 
employment cases, this Court has emphasized the necessity 
of granting relief which will, to the extent possible, place 
victims of racial discrimination in the position they would 
have been in but for the discrimination. Albemarle Paper 
Co. v. Moody, 422 U.S. 405, 418-419 (1975); Franks v. Bow-

5 The District Court defined plaintiffs’ class to include all blacks 
and Hispanics who had taken examination 34-944 and either failed 
or scored too low to be appointed from the resulting eligible list 
(16a).



10

man Transportation Co., 44 U.S.L.W. 4356 (No. 74-728, 
March 24, 1976).

Relief from class-wide discriminatory exclusion from 
jobs, at entry and higher levels, in public and private em­
ployment, has frequently included numerical or percentage 
goals or quotas, utilizing hiring or promotional ratios to 
implement the goals. Courts of appeals for seven other 
circuits, as well as the court below in decisions prior to 
the instant one, have uniformly upheld the power of dis­
trict courts to grant such relief.6

6 Boston Chapter, NAACP v. Beecher, 504 F.2d 1017 (1st Cir.
1974) , cert, denied, 42 TJ.S. 910 (1975) ; United States v. Wood, 
Wire <& Metal Lathers, Local 46, 471 F.2d 408 (2d Cir.), cert, 
denied, 412 U.S. 939 (1973) ; Bridgeport Guardians, Inc. v. Bridge­
port Civil Service Comm’n, 482 F.2d 1333 (2d Cir. 1973), aff’g 
in relevant part, 354 F. Supp. 778 (D. Conn. 1973) ; Vulcan 
Society of New York City Fire Dept. v. Civil Service Comm’n, 
490 F.2d 387 (2d Cir. 1973); Bios v. Enterprise Association 
Steamfitters, Local 638, 501 F.2d 622 (2d Cir. 1974) ; Patterson 
v. Newspaper & Mail Deliverers Union, 514 F.2d 767 (2d Cir.
1975) (approving consent decree) ; Commonwealth of Pennsyl­
vania v. Sebastian, 480 F.2d 917, reported fully, 6 [CCH] EPD 
1(9037 (3rd Cir. 1973), aff’g, 368 F. Supp. 854, reported fully, 
5 EPD ([8558 (W.D. Pa. 1972) ; Commonwealth of Pennsylvania 
v. O’Neill, 473 F.2d 1029 (3rd Cir. 1973) (en banc), aff’g in 
relevant part, 348 F. Supp. 1084 (E.D. Pa. 1972) ; Erie Iluman 
Relations Comm’n v. Tullio, 493 F.2d 371 (3rd Cir. 1974); Oburn 
v. Shapp, 521 F.2d 142 (3rd Cir. 1975); Local 53, International 
Association of Heat & Frost I  & A Workers v. Vogler, 407 F.2d 
1047 (5th Cir. 1969) ; NAACP v. Allen, 493 F.2d 614 (5th Cir.
1974); United States v. IBEW  Local 212, 472 F.2d 634 (6th Cir.
1973) ; United States v. Masonry Contractors Ass’n of Memphis, 
Inc., 497 F.2d 871 (6th. Cir. 1974) ; EEOC v. Detroit Edison Co., 
515 F.2d 301 (6th Cir. 1975) ; Crockett v. Green, 11 EPD 1(10,781 
(7th Cir. 1976) ; Carter v. Gallagher, 452 F.2d 315, 327 (8th 
Cir.) (en bane), cert, denied, 406 U.S. 950 (1972) ; United States 
v. Ironworkers, Local 86, 443 F.2d 544 (9th Cir. 1971), cert,
denied, 404 U.S. 984 (1971), aff’g, 315 F. Supp. 1 2 0 2 '(W.D.
Wash. 1970).



11

Courts of appeals for four circuits have reversed a dis­
trict court’s failure to order such relief.7 With the ex­
ception of two recent Second Circuit decisions which re­
lied upon the panel’s decision in the instant case,8 the 
only appellate decision to have reversed a grant of quota 
relief is Patterson v. American Tobacco Co., 11 EPD 
1110,728 (4th Cir. 1976), where the court, recognizing the 
appropriateness of snch relief in certain circumstances, 
found that under the facts of that case it was not necessary.

The legislative history of the 1972 amendments to Title 
VII demonstrates that such relief accords with the intent 
of Congress. In 1972, two amendments were proposed to 
prohibit the type of remedy which the court below struck 
down. Both were defeated. Floor managers of both parties 
explained that they opposed the amendments because they 
would prevent District Courts from providing adequate 
remedies for past discriminatory practices. United States 
Senate, Subcommittee on Labor of the Committee of Labor 
and Public Welfare, Legislative History of the Equal Em­
ployment Opportunity Act of 1972, November 1972, pp. 
1017, 1038-1075, 1681, 1714-1717.

In analogous contexts, this Court has upheld the power 
of district courts to shape remedies for past constitutional

7 Castro v. Beecher, 459 F.2d 725 (1st Cir. 1972) ; Morrow V. 
Crisler, 491 F.2d 1053 (5th Cir.) (en banc), cert, denied, 419 U.S. 
895 (1974) ; Franks v. Bowman Transportation Co., 495 F.2d 398, 
418-20 (5th Cir. 1974), reversed on other grounds, 44 U.S.L.W. 
4356 (No. 74-728 March 24, 1976) ; United States v. Carpenters, 
Local 169, 457 F.2d 210 (7th Cir. 1972), cert, denied, 409 U.S. 851 
(1972) ; United States v. N. L. Industries, 479 F.2d 354 (8th Cir. 
1973).

8 Chance v. Board of Examiners, 11 EPD 1)10,633 (No. 75-7161 
Jan. 19, 1976), petition for rehearing filed Feb. 2, 1976) ; EEOC 
v. Local 638 . . . Local 28 of the Sheet Metal Workers Assoc., 
11 EPD 1)10,740 (No. 75-6079 March 8, 1976), petition for re­
hearing filed, April 12, 1976.



12

violations by taking into account black-white ratios. Swann 
v. Charlotte-M ecklenburg Board of Education, 402 U.S. 1 
(1971); United States v. Montgomery County Board of 
Education, 395 U.S. 225 (1969).

The element that makes such affirmative provisions both 
lawful and necessary is proof of prior discrimination or its 
continuing effects. Louisiana v. United States, supra; cf. 
Franks v. Bowman Transportation Co., supra. And the 
appropriateness in this particular case is manifest, for as 
Judge Mansfield pointed out, rejecting goals denies “non­
white correction officers the long overdue promotions to 
which they were entitled [and] . . .  by requiring them to 
compete afresh with late comers once a non-discriminatory 
test is devised . . . postpones their promotions even 
further” (51a). Yet, the alternative remedy which would 
“ adhere most closely to the merit principle, would be to 
void and recall all past promotions made on the basis of 
the non-validated tests. . . . [But] such relief . . . would be 
extremely harsh. . . .” (52). The district judge took a mid­
dle ground, well within the powers of a court of equity.9

One ground given by the panel for reversal was the 
“paucity of proof” of past discrimination (35a.). But this 
argument is not supported by the record. Substantial un­
contradicted evidence demonstrated the discriminatory ef­
fects of respondents’ past testing practices. While com­
plete statistical pass-fail evidence was not introduced, be­
cause it was not available, the argument that such evidence 
is necessary to a finding of discriminatory impact has been 
rejected, expressly or by implication, by this Court and 
several Courts of Appeals. Griggs v. Duke Power Com-

9 See M. Slate, Preferential Belief in Employment Discrimina­
tion Cases, 5 Loyola Univ. L. J. 315 (1974) for a comprehensive 
rationale of the law of this subject.



13

pany, 401 U.S. 424, 430 and n. 6 (1971), Courts of Appeals 
for the First, Second, Eighth and District of Columbia 
Circuits have found discriminatory impact in the absence 
of complete pass-fail data.10

The panel’s second ground for denying that there is 
equitable power to grant quota relief upon a finding of 
racial discrimination was that the non-minority officers 
over whom the minority officers would be preferred for 
promotion were identifiable. However the identifiability 
vel non of those whose expectations might be diminished 
has never been a criterion for determining the appropriate­
ness of affirmative relief (54a). In virtually all of the cases 
in which preferences have been ordered, the identity of 
those who possessed expectations deriving in part from 
the continuing effects of past discrimination was known. 
See, e.g., Boston Chapter, NAACP  v. Beecher, 504 F.2d 
1017, 1026-1027 (1st Cir. 1974). Nor has such relief been 
confined to entry level jobs. See United States v. N. L. 
Industries, 479 F.2d 354, 377 (8th Cir. 1973); Crockett v. 
Green, 11 EPD ([10,781 (7th Cir. 1976). Indeed the panel 
decision recognized existence of the power to appoint ac­
cording to quotas until the time when new selection pro­
cedures would be developed, but denied its existence there­
after, when the use of such power would be most meaning­
ful.

In sum, the decision of the court below creates a conflict 
with decisions of other circuits concerning the equitable

10 Boston Chapter, NAACP v. Beecher, 504 F.2d 1017, 1020-1021 
(1st Cir. 1974) ; Vulcan Society v. Civil Service Commission, 490 
F.2d 387, 393 (2d Cir. 1973) ; Jones v. New York City Human 
Resources Administration, 11 EPD ({10,664 (2d Cir. 1976) ; Rogers 
v. International Paper Co., 510 F.2d 1340', 1348-49 (8th Cir.) 
vacated and remanded on other grounds, 46 L.Ed. 2d 29 (1975) ; 
Douglas v. Hampton, 512 F.2d 976, 982-983 (D.C. Cir. 1975).



14

power of district judges to award meaningful relief. This 
Court, we respectfully submit, should resolve the conflict.11

B. Attorneys’ Fees

This Court has not yet decided whether a district court 
has the power to award attorneys’ fees to prevailing 
plaintiffs in cases of racial discrimination in employment 
brought under 42 U.S.C. §§1981 and 1983. While there is 
language in Alyesha Pipeline Service Co. v. Wilderness 
Society, 421 U.S. 240 (1975) to support the decision of the 
Court below, see especially id. at 270 n. 46, petitioners 
respectfully submit that the rationale underlying Alyesha, 
considered in conjunction with 42 U.S.C. §1988 and 42 
TT.S.C. §20Q0e-5(k), requires a contrary result.

In Alyesha, a case involving the enforcement of certain 
laws for the protection of the environment, this Court held 
that in the absence of express statutory authorization the 
courts could not, except in limited classes of cases, award 
attorneys’ fees. But there is express statutory authoriza­
tion, 42 U.S.C. §1988, which, we submit, warrants award 
of counsel fees in this case. Sections 1981 and 1983 do not 
specify any of the remedies available for the rights they 
create. Rather, Section 1988 instructs the federal courts in 
civil rights cases to exercise their jurisdiction in conformity 
with the laws of the United States and, indeed, if they are 
deficient, state laws, to provide remedies which will most 
fully effectuate the substantive rights at issue. Moor v. 
County of Alameda, 411 U.S. 693, 702-705 (1973).

11 Subsequent to the denial of rehearing in the instant ease, this 
Court decided Franks v. Bowman Transportation Co., supra. While 
the issue resolved in Franks, the propriety of granting retroactive 
seniority to discriminatees, was not raised in the court below, a 
remand to the Court of Appeals for reconsideration in the light 
of Franks might afford complete^ relief to those members of plain­
tiffs’ class who were denied promotion to Sergeant on the basis 
of their performance on pre-1972 examinations.



15

Congress enacted Title VII of the Civil Eights Act of 
1964, 42 U.S.C. §§20Q0e et seq. for the purpose of eradicat­
ing discriminatory employment practices; it gave a signif­
icant role to private litigants in the enforcement process. 
Alexander v. Gardner-Denver Co., 415 U.S. 36, 44-45 (1974). 
In Section 7Q6(k) of Title VII, 42 U.S.C. §2000e-5(k), 
Congress provided for the award of attorneys’ fees to 
successful plaintiffs, and this Court has recognized the 
importance of implementing this provision to effectuate 
the purpose of Title VII. Albemarle Paper Co. v. Moody, 
405, 415 (1975).

Thus, unlike the situation presented to the Court in 
Alyeska, where Congress had not seen fit to authorize the 
award of attorneys’ fees in environmental litigation, there 
is, in section 706 (k) of Title VII, a clear expression of 
Congressional intent to authorize federal courts to award 
attorney’s fees to vindicate the national policy of eliminat­
ing racial discrimination in employment, a policy advanced 
equally through suits brought pursuant to Sections 1981 
and 1983 and Title VII.12

Accordingly, by assimilating §706 (k) of Title VII to 
§§1981 and 1983 as directed by §1988, the district court in 
the instant case was authorized to award attorneys’ fees to 
petitioner, and the reversal of said award by the court 
below was contrary to the principle enunciated by this Court 
in Alyeska, as well as to the rule expressed in Newman v. 
Piggie Park Enterprises, 390 U.S. 400 (1968).

Certiorari should be granted also, we submit, to resolve 
this important ambiguity resulting from Alyeska.

12 Alexander v. Gardner-Denver Co., 415 U.S. 36, 47 and n .7 ; 
Johnson v. Railway Express Agency, 421 U.S. 454 (1975).



16

CONCLUSION

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

Respectfully submitted,

J ack Greenberg 
J ames M. Nabrit, III 
D eborah Greenberg 

10 Columbus Circle 
Suite 2030
New York, New York 10019

M orris J. B aller 
145 Ninth Street 
San Francisco, California 94103

Attorneys for Petitioners

May 1976



A P P E N D I X



la

IN THE UNITED STATES DISTRICT COURT 
F oe the Southern District op New Y ork 

73 Civ. 1548
Edward L. Kirkland, et al., Plaintiffs, 

v.
New York State Department op 

Correctional Services, et al., Defendants.
Filed: April 2, 1974

Opinion o f  District Court

Jack Greenberg, Jeffry A. Mintz, 
Morris J. Bailer, Deborah M. Greenberg, 
New York City, for plaintiffs.

Louis J. Lefkowitz, A tty. Gen., of the 
State of New York, New York City, for 
defendants; Judith A. Gordon, Asst. 
Atty. Gen., Stanley L. Kantor, Deputy 
Asst. Atty. Gen., of counsel.

OPINION

LASKER, District Judge.

This suit is another in an evcr-exte;...!- 
ing series of challenges to civil service 
examinations. Plaintiffs, who are 
Correction Officers,1 provisionally ap­
pointed to the rank of Correction Ser­
geant (Male), contend that the test for 
promotion and permanent appointment 
to that position discriminated against 
them on the basis of race. They seek to 
represent all Black and Hispanic Correc-

1. Originally, there was a lliinl named plain­
tiff, the Brotherhood of New York State 
Correction Officers, Inc. However, this 
plaintiff withdrew at the commencement of 
tlie trial.

2. Defendants urge us to apply the doctrine 
of primary jnrisdielion and defer the case to 
tiie Equal Employment Opportunity Commis­
sion oil tiie theory that by extending Title 
V II to cover states and municipalities Con­
gress intended to oblige persons seeking re­
dress against governmental discrimination in 
employment to resort in the first instance to 
tiie EEOC. This conleuiion has been re­
soundingly rejected in cases involving suits 
against private employers under Id H.S.C. § 
HIM. Macklili v. Specter Knight Systems, 
Inc.. Hid li.S.App.D.C. (Ill, ITS Ro,| 
996-997 ui>7;» ; Brady v. Bristol-Meyers,

turn Officers and provisional Correction 
Sergeants who failed the examination, 
who passed it but ranked too low to be 
appointed or who were deterred by the 
appointment system from seeking pro­
motion. Defendants are the New York 
State Department of Correctional Serv­
ices, its Commissioner, and the New 
York State Civil Service Commission 
and its Commissioners.

The action is brought under the 
Fifth and Fourteenth Amendments to 
the Constitution and under the Civil 
Rights Act (42 U.S.C. §§ 1981 and 
1983) and its jurisdictional counterpart 
(28 U.S.C. §§ 1343(3). and (4 )) . Plain­
tiffs make no claim under Title VII of 
the Civil Rights Act of 1964 (42 U.S.C. 
§§ 2000e to 2000O.-17), despite the avail­
ability, by recent amendment, of reme­
dies under it against states and munici­
palities (id. at § 2000e(a)).2

Inc., 159 E.L'd (121, (1211-1124 (.8th Oil-. 1972) ; 
Caldwell v. National J Growing Co., 448 F.2d 
1041 (fit11 C ir.). cert. denied, 404 IT.S. 098, 
92 S.Ct. 500, 80 L.10d.2d 551 (1971) ; Young 
v. International Telephone & Telegraph Co., 
488 F.2d 757, 708 (8rd Cir. 19 7 1 ); Sanders 
v. Dobbs House. I nr., 481 F.2d 1097, 1.100- 
1101 (5th Cir. 1970), rort. denied, 401 U.S. 
94.X, 91 S.Ct. 985, 28 L.Ed.2d 281 (1971). 
Furthermore, rases in this Circuit: involving 
suits which, like the instant case, were 
brought under § 1988 hold that the amend­
ment. to Title VII was not intended to fore­
close recourse to the earlier Civil Rights 
Act. Vulcan Society v. Civil Service Com­
mission, 490 F.2d 8X7, at. 890, n. I (2d Cir., 
1978) ; Bridgeport (Junrdians, lncM v. 
Bridgeport Civil Service Commission, 4X2 
F.2d .1888, 1884, n. 1 (2d Cir. 1978).



2a Opinion of District Court

In spring, 1972, the 1970 eligible list 
for Sergeant appointments was exhaust­
ed. To fill needed positions pending es­
tablishment of a new list, the Depart­
ment of Corrections appointed provision­
al Correction Sergeants, in August, 
1972, to hold their posts until permanent 
appointments could be made. Both 
named plaintiffs were appointed at that 
time.

Upon request of the Department of 
Corrections, the Civil Service Commis­
sion prepared a promotional examination 
which was administered on October 14,
1972. That examination, 34-944, was 
taken and failed by plaintiffs and is the 
subject of this action.

34-944 was taken by 1,383 persons,3 
including 1,264 whites, 103 Blacks and 
16 Hispanics. The candidates examina­
tions were graded and the passing grade 
was established at 70%. After adjust­
ment for veteran’s preference and seni­
ority, those who passed were ranked by 
grade and an eligible list was promulgat­
ed on March 15, 1973. On April 10,
1973, this suit was filed and a temporary 
restraining order entered preventing de­
fendants from making appointments 
from the list and from terminating the 
provisional appointments of plaintiffs or 
members of the class. By modification 
and stipulation, the restraining order 
was extended to maintain the status quo 
until a decision on the merits.

The ground rules for cases such 
as this have been thoroughly elucidated 
by recent decisions of the Court of Ap­
peals for this Circuit. We note in par­
ticular Vulcan Society of the New York 
City Fire Department, Inc. v. Civil Serv­
ice Commission ( “ Vulcan"), 490 F.2d 
387 (2d Cir. 1973), a ff ’g, 360 F.
Supp. 1205 (S.D.N.Y.1973) ; Bridge­
port Guardians, Inc. v. Bridgeport Civ­

3. The total candidate poo! was approximately 
1,441. However, for reasons not apparent 
from the record, the computer display pro­
vided by defendants to deseribe eandidate 
performanee (P X -1 2 )  indieates the perform­
ance of only .1,883 candidates. Since, both 
parties have based their calculations on that 
figure, we will do likewise.

il Service Commission ( “ Guardians” ), 
482 F.2d 1333 (2d Cir.), a ff ’g in part 
and rev’g in part, 354 F.Supp. 778 (D. 
Conn.1973), and Chance v. Board of Ex­
aminers ( “ Chance"), 458 F.2d 1167 (2d 
Cir. 1972), a ff ’g, 330 F.Supp. 203 (S.D. 
N.Y.1971). To summarize the approach 
adopted by the eases, plaintiffs must 
first establish a prima facie case show­
ing that the examination has had “ a ra­
cially disproportionate impact.” Vulcan, 
490 F.2d at 391; Castro v. Beecher 
( “Castro"), 459 F.2d 725, 732 (1st Cir. 
1972). If they succeed, it then becomes 
defendants' burden to justify the exami­
nation’s use despite its differential im­
pact by proving that it is job-related 
( Vulcan, 490 F.2d at .391) and that any 
disparity of performance results solely 
from variance in qualification and not 
from race (Griggs v. Duke Power Co., 
401 U.S. 424, 430-431, 91 S.Ct. 849, 28 
L.Ed.2d 158 (1971); Chance, 330 F. 
Supp. at 214). Discharging this burden 
would entitle defendants to judgment; 
failure would, of course, require the 
court to take the third step of determin­
ing what remedy would be appropriate.

As is typical in cases of this 
type, plaintiffs do not allege that de­
fendants have intentionally discriminat­
ed against their class. Such an allega­
tion is not a necessary part of their 
case. Chance, 458 F.2d at 1175-1176. 
As the Supreme Court stated in 
Griggs: 1

“ [G jood intent or absence of discrimi­
natory intent does not redeem employ­
ment procedures or testing mecha­
nisms that operate as ‘built-in head­
winds’ for minority groups and are 
unrelated to measuring job capability.” 
401 U.S. at 432, 91 S.Ct. at 854.

However, the fact that the alleged dis­
crimination is not claimed to be deliber-

4. (Iritifis arose under Title V II of (lie Civil 
Bights Art of 1})(J4: however, tin1 some ap­
proach to employment iliserimination eases 
has generally been followed in § 1083 eases 
ns in Title VII raises. V it lam. 400 F.2<1 at 
304, 11. 0 ; Castro, -150 F .2(1 at 733.



Opinion of District Court 3a

ate modifies the burden placed on the 
state to justify its actions. Intentional 
racial discrimination would require the 
state to demonstrate a compelling neces­
sity for its selection methods. Cf. Lov­
ing v. Virginia, 388 U.S. 1, 87 S.Ct. 
1817, 18 L.Ed.2d 1010 (19G7); Tick Wo 
v. Hopkins. 118 U.S. 356, 0 S.Ct. 1064. 
30 L.Ed. 220 (1886). However, “ the Su­
preme Court has yet to apply that strin­
gent test to a case such as this, in which 
the allegedly unconstitutional action un­
intentionally resulted in discriminatory 
effects.” Chance, 458 F.2d at 1177.
Agonizing over whether the state can 
discharge its constitutional obligations 
merely by suggesting a rational basis 
for the examination's use or whether it 
must satisfy a more demanding stand­
ard, short of the compelling interest 
test, is unnecessary. Tin; guidelines 
have been so refined by the cases that 
no ambiguity obscures the road to deter­
mination regardless of the difficulties 
of classification which may remain to 
plague the theorists. Guardians, 482 F. 
2d at 1337. The decisions impose on the 
state "a heavy burden of justifying its 
contested examinations by at least dem­
onstrating that they were job-related.” 
Chance, 458 F.2d at 1176; see also 
Guardians, 482 F.2d at 1337. This 
“ heavy burden”  is discharged if the 
state "come[s] forward with convincing 
facts establishing a fit between the qual­
ification and the job.” Vulcan, 490 F.2d 
at 393, quoting Castro, 459 F.2d at 732. 
Once the state proves its case to that ex­
tent, it need not establish, as would be 
required under the compelling interest 
approach, that no alternate means of 
selection are open to it. Castro, 459 F. 
2d at 733; see also Vulcan, 490 F.2d at 
393.

However clearly the issues are deline­
ated by well-established precedent, noth­
ing can make easy the task of deciding a 
case such as this. The competing inter­
ests are vital to the named parties, to 
other individuals who may be affected 
by the outcome and to the public at 
large. Plaintiffs strive to insure for

I hemselves and the minorities they seek 
to represent the fair treatment in the 
public employment sphere which the 
Constitution guarantees. Their efforts 
bring them into conflict with those indi­
viduals who passed the challenged exami­
nation and have a vested interest in se­
curing the promotions which are right­
fully theirs if the examination is upheld. 
For both groups, the outcome is critical 
since it affects their ability to earn a 
living by advancing in the profession of 
their choice. Last and perhaps most im­
portant is the public's stake in establish­
ing and maintaining a system of prison 
administration which is both competent 
and representative of the population. 
As members of the public, we include, of 
course, the inmates o f the prison system 
who, more than anyone else in the com­
munity, are directly affected by the 
quality of correctional supervision. The 
delicacy of Hie decision is further com­
pounded by the potential for heightened 
tension which attends any direct conflict 
along racial and cultural lines.

Bearing these factors in mind, we pro­
ceed, with caution but without more ado, 
to a consideration of plaintiffs’ prima 
facie case.

I. DISPROPORTIONATE IMPACT.

Plaintiffs rest their case on the fol­
lowing uncontested statistics. The fig ­
ures computed by defendants indicate 
that White candidates passed 34-944 at 
a rate of 30.9%, while only 7.7% of 
Black candidates and 12.5%, of Hispanic 
candidates achieved a passing score. 
(Transcript at 500). That is, Whites 
passed at a .rate approximately four 
times that of Blacks and 2.5 times that 
of Ilispanics. Defendants concede the 
statistical significance of these differ­
ences. (Post-trial Memorandum at 1-4.)

Plaintiffs’ evidence reveals an even 
more startling disparity among those 
who ranked high enough to be appoint­
ed. The Department of Corrrections in­
tends to appoint a maximum of 147 per­



4a Opinion of District Court

sons from the present eligible list.5 A 
computer display of the results of 34- 
944 (PX -12) reveals that, o f 159 per­
sons who scored 57 or above (a group 
large enough to satisfy the Department's 
projected needs), 157 were White, two 
were Black and none was Hispanic. 
Thus, 12.5% of the Whites who took 
34-944 are likely to be appointed, while 
only 1.9% of Black candidates and no 
Hispanics have a chance at appointment. 
These results would lead to the appoint­
ment of Whites at 6.5 times the rate of 
Blacks and would bar completely the ap­
pointment of Hispanics.

The statistical significance of these 
figures is established beyond dispute by 
the earlier cases. In Chance, Guardians 
and Vulcan, the impact was less drasti­
cally disproportionate among the races. 
In Chance, the passing rate for Whites 
was 1.5 times that of Blacks and His­
panics (330 F.Supp. at 210); in Guardi­
ans, Whites passed at 3.5 times the rate 
for Blacks and Hispanics (354 F.Supp. 
at 784); and in Vulcan, Whites scored 
high enough to have a chance at ap­
pointment at 2.8 times the rate for 
Blacks and Hispanics (360 F.Supp. at 
1269).

Defendants do not challenge the accu­
racy of plaintiffs’ figures (for which 
they are the source) nor do they deny 
the statistical significance of the differ­
ential impact indicated by them. They 
contend, however, that the approach tak­
en by plaintiffs, that is, consideration of 
the statistics as to the statewide impact 
of the entire exam, does not accurately 
reflect the performance of the groups in 
relation to each other. They urge us, 
rather, to base our determination of ra­
cial impact on the candidates’ perform­
ances facility by facility rather than 
throughout the state. They contend 
that otherwise it is impossible to deter-

5. The Department of Corrections appointed 
ST persons from the eligible list lmsed on 
34-944 in April. 1973. f i 'X -2 .  answer to
Interrogatory No. 39.) On May 29, 1973, 
the Department indicated that it intends (o 
make another 4 0 -60  appointments from the 
list within roughly two years from that date. 
(P X -2 , answer to Interrogatory No. 40.)

mine whether minority candidates are 
succeeding less well as a group because 
of their racial and cultural backgrounds 
or because they are located at facilities 
which, for reasons unspecified, prepare 
their officers less well for the promo­
tional exam. In fact, the great majority 
of minority candidates are located at Os­
sining (82 Blacks out of a total o f 104, 9 
Hispanics out of a total of 16) with the 
second largest concentration of Blacks at 
Greenhaven (8). (PX-12, codes 1007
and 1008.) Defendants argue that if  
both Whites and minority candidates at 
Ossining perform less well than persons 
— White, Black or Hispanic— employed 
at other facilities, then 34-944 has not 
been shown to differentiate on the basis 
of race. Second, defendants contend 
that, since 34-944 is composed of five 
subtests, comparative performance on 
each subtest should be determinative 
rather than performance on the test as a 
whole. I f  these approaches are adopted, 
they claim, the three groups of candi­
dates will be shown not to have per­
formed sufficiently differently to make 
out a prima facie case of disproportion­
ate impact.

To support their argument that the 
results of 34-944 are relevant only if 
separated by facility, defendants rely on 
an analysis of the computer display of 
examination results (PX-12) drawn up" 
by Kenneth Siegel, the Associate Per­
sonnel Examiner who was responsible 
for the preparation of 34-944. He ana­
lyzed the performances of the groups in 
terms of mean scores on the total exam 
and on each of the five subtests at Os­
sining, Green Haven, all the other facili­
ties and all the facilities taken together 
(D X-D D ). The reason for selecting Os­
sining and Green Haven for special at­
tention was the concentration of minori­
ty candidates at those facilities. Sie-

Thus, a maximum of 147 persons will ho ap­
pointed through May of 1975. No appoint­
ments are likely after that 'late, since an­
other promotional extun will he given in 
1974 (I 'X -4 2 . p. 4., Ttli par.) ami the eligi­
ble list from 34 -944 will therefore expire in 
1974 or early 1975.



Opinion of District Court •5a

gei's written analysis (D X-D D ) does 
not indicate passing rates, but only 
mean scores. However, Siegel testified 
that the difference in passing rates be­
tween Whites and Blacks at Green Ha­
ven (Transcript at 511) and all other fa­
cilities except Ossining is not statistical­
ly significant (Transcript at 509, 515). 
Based on Siegel’s testimony, defendants 
argue that as a result plaintiffs' prima 
facie case fails with respect to all facili­
ties except Ossining.

The principal obstacle to accepting de­
fendants' analysis is that it is premised 
on assumptions which are factually erro­
neous. Their own statistics bely their 
theory. Siegel’s analysis (D X-D D ) of 
the computer display (PX -12) reveals 
not only that the mean score for Whites 
state-wide (48.9) is superior to that of 
Blacks (43.2) and Ilispanics (44.2), but 
also that the mean scores at Ossining, 
Green Haven and other facilities consid­
ered separately reflect the same pattern. 
Whites at Ossining achieved a mean 
score of 47.32, compared with 42.96 for 
Blacks and 41.56 for Ilispanics. The 
disparity at Ossining is virtually identi­
cal to that derived from a comparison of 
statewide figures for Whites and Blacks 
(48.9 to 43.2) and is greater than the 
state-wide difference between Whites 
and Hispanics (48.9 to 44.2). This ef­
fectively refutes defendants’ theory that 
minority candidates generally performed 
less well than Whites solely because they 
were concentrated at Ossining where 
candidates as a whole did less well. 
The range at Green Haven is almost 
as striking and indicates again a 
greater variance than is found state­
wide between Whites and Blacks and an 
almost identical disparity as that found 
state-wide between Whites and Hispan­
ics: Whites, 48.68; Blacks 42.00; His­
panics, 44.00. A comparison of results 
at facilities other than Ossining and 
Green Haven bears out the trend: 
Whites, 49.00; Blacks, 45.21; Hispan­
ics, 48.17. It is true that Hispanics at 
these facilities fared better than at Os­
sining and Green Haven and their 
scores more closely approximate the

performance of Whites. However, the 
importance of this discovery is some­
what discounted by the small size of 
the sample (6 Hispanic candidates) 
which 'decreases the possibility of sta­
tistical accuracy (Transcript at 936-37). 
Furthermore, Siegel’s analysis indicates 
that the standard deviation in mean 
scores between Whites and Blacks was 
statistically significant at Ossining, 
Green Haven and all other facilities as 
well as state-wide, and the same is true 
of Whites and Hispanics at Ossining 
where the largest concentration of His­
panics is found. (D X-D D .)

An analysis of passing rates, which is 
more appropriate since it is the passing 
score which determines a candidate’s eli­
gibility for appointment, is even more 
illuminating. Siegel testified that there 
was a significant difference between the 
passing rates- of Whites and Blacks at 
Ossining (Transcript at 509), but that 
no such difference existed between 
Whites and Blacks at Green Haven and 
facilities other than Ossining and Green 
Haven and none between Whites and 
Hispanics at Ossining, or other facili­
ties. (Transcript at 509-515.) He 
did not compare the passing rates of 
Whites and Hispanics at Green Haven 
because there was only one Hispanic 
candidate at that facility. {Transcript 
at 511.) Nor did he testify as" to the 
difference between the passing rates 
of Whites and Hispanics at facilities 
other than Ossining and Green Haven. 
Siegel is correct that the disparity in 
passing rates between Whites and 
Blacks at Ossining is significant: 
Whites passed at a rate of 23.5% and 
Blacks at a rate of 4.9%. (PX-33.)
However, his testimony as to Blacks at 
Green Haven and at other facilities and 
as to Hispanics at Ossining flies in the 
face of the figures in evidence. To the 
contrary, comparison of the groupings 
mentioned above indicates in each in­
stance a significant disparity between 
the passing rate of White and minority 
candidates. Whites at Green Haven 
passed at a rate of 31.6%, while Blacks 
and Hispanics achieved rates of only 12.-



6a Opinion of District Court

3% and 0 % s respectively. 30.7% of 
Whites at facilities other than Ossining 
and Green Haven 7 passed 34-944, while 
only 14.3% of Blacks passed. Although 
Hispanics at facilities other than Ossin­
ing and Green Haven passed at a higher 
rate than Whites (33.3% compared to 
30.7%), the reliability of this computa­
tion is put in doubt by the smallness of 
the sample. Hispanics at Ossining, on 
the other hand, passed at a rate of 0% 
compared to a White passing rate of 23.- 
5%. Accordingly, contrary to Siegel’s 
conclusion, the disparity between White 
and minority candidates was significant 
■with regard to Blacks at Ossining, 
Green Haven and all other facilities, as 
well as state-wide, and was significant 
with regard to Hispanics at Ossining, 
where the largest number of Hispanics 
are located.

These computations destroy the 
factual premise of defendants’ argument 
that minority performance reflects the 
facilities in which they concentrated 
rather than their minority characteris­
tics. We would in any event be forced 
to reject defendants’ theory as a matter 
of law, even if it could be factually sub­
stantiated. Attempts to correlate racial 
performance to such non-racial charac­
teristics as quality of schooling or edu­
cational and cultural deprivation have 
been rejected as irrelevant to rebut a 
statistical prima facie case. As the dis­
trict court opinion in Guardians stated:

“ More fundamentally, this data [as to 
quality of schooling] fails to remove 
the prima facie showing of discrimi­
nation because it does not alter but 
only tries to explain the difference in

6. inn.sniuvh ns tlion* was only one Hispanic 
candidate from Crecn Ilaven, the importance 
of tins comparison should not he exaggerat­
ed.

7. The figures for White, Black and Hispanic 
passing rates at facilities other than Ossin­
ing and tlreen Haven arc not in the record, 
lmt call lie readily computed from those 
which are in evidence (see I’X -3 3 ) .  The 
number of Whites at “other facilities'’ is 
d0(10 (12(i4, the total of W hite candidates, 
minus 1!)5, which is tiie sum of Wiiite candi-

passing rates.” 354 F.Supp. at 785; 
see also Vulcan, 360 F.Supp. at 1272. 
Cf. Castro, supra.

The controlling decisions clearly posit 
that, in order to shift to defendants the 
burden of showing that performance on 
the examination correlates to perform­
ance on the job, plaintiffs are required 
to do no more than demonstrate that mi­
nority candidates as a whole fared sig­
nificantly less well than White candi­
dates, regardless of possible explanations 
for their poorer performance. To quote 
Guardians once more;

“ The point is that a discriminatory 
test result cannot be rebutted by 
showing that other factors led to the 
racial or ethnic classification. The 
classification itself is sufficient to re­
quire some adequate justification for 
the test.” Id., 354 F.Supp. at 786. 
Finally, we fail to understand the rel­

evance of defendants’ attack on plain­
tiffs ’ prima facie case. Defendants ap­
pear to concede that, at the very least, 
Blacks at Ossining who failed 34-944 
have established their right to challenge 
its job relatedness. (Post-trial Memo­
randum at I—11.) This group consti­
tutes two-thirds of the proposed plain­
tiff class (77 out of 117 Blacks and His­
panics combined), but if even a far 
smaller number had succeeded in prov­
ing disportionate impact detrimental to 
themselves, defendants would be obliged, 
as they themselves concede, to prove job 
relatedness.

We turn to defendants’ second 
challenge to plaintiffs’ case. Siegel’s 
analysis of the computer display indi­
cates that although there is a statistical-

(IjiIcs at Ossining, 81, and Green Haven, 
1141. The number of Whites sit “other fa­
cilities" who passed is 328 (883 minus 55, 
the sum of 19 at. Ossining and 30 at Green 
Ilaven). Accordingly, the passing rate is 
30 .7% . Slacks at “ other facilities”  number 
14 (103 minus 89, which is 81 at Ossining 
and 8 at Green Ilaven). Two Macks at 
“other facilities" passed (7 minus 5 ) . As a 
result, the passing rate is 14 .3 % . There 
were six Hispanics at “other facilities”  (.10 
minus 10, nine at Ossining, one at Green 
Ilaven). Two passed and the rate is 33.3%.



Opinion of District Court 7a

ly significant difference in the total 
mean scores of Whites and Blacks and 
Whites and Hispanics state-wide and at 
Ossining, and, as to Blacks, at Green 
Haven and facilities other than Ossining 
and Green Haven, not every subtest 
indicates such a disparity. (I)X-DD .) 
It is unnecessary to detail the permuta­
tions sub-test by sub-test and facility 
by facility, since the suggested approach 
itself is invalid as a matter of law. 
The cases indicate that a showing that 
the overall examination procedure pro­
duced disparate results cannot be re­
butted by fragmenting the process and 
demonstrating that separately the parts 
did not differentiate along racial or cul­
tural lines. In Chance, for example, the 
fact that minority candidates had a 
higher passing rate than White candi­
dates on seven out of fifty examinations 
did not vitiate plaintiffs’ proof that the 
series of examinations as a whole dis­
criminated against them and their class. 
330 F.Supp. at 211; see. also Guardians, 
354 F.Supp. at 786. In Vulcan, the very 
question whether a single examination 
procedure can properly be subdivided 
and the parts considered separately, was 
raised and Judge Weinfeld rejected the 
proposition:

“ Moreover, the examination may not 
be truncated; whether or not it has 
an adverse discriminatory impact 
upon minority groups should be con­
sidered in terms of the total examina­
tion procedure. Here there can be no 
doubt, whatever the relative impact of 
component parts, that in end result 
there was a significant and substantial 
discriminatory impact upon minori­
ties. . . . ” 360 F.Supp. at 1272.

Any other approach conflicts with 
the dictates of common sense. Achiev­
ing at least a passing score on the ex­
amination in its entirety determines eli­
gibility for appointment, regardless of 
performance on individual sub-tests. 
Accordingly, plaintiffs’ case stands or 
falls on comparative passing rates alone. 
Thus, in law and in logic, we find de­
fendants’ approach unwarranted.

Rejection of defendants’ dual at­
tack on plaintiffs’ showing of differen­
tial impact leaves no doubt that plain­
tiffs ’ prima facie case has been amply 
established. - Accordingly, the burden of 
proof swings to defendants to demon­
strate that 34-944 is job-related. We 
turn to a consideration of that question.

II. JOB-RELATEDNESS.
"Validation” is the term of art 

designating the process of determin­
ing the job-relatedness of a selection 
procedure. Cases and official guidelines 
recognize three validation methods: cri­
terion-related validation, construct vali­
dation and content validation. See, e. p., 
Vulcan, 490 F.2d at 394-396; Guardi­
ans, 482 F.2d at 1337-1338 and 354 F. 
Supp. at 788-789; Equal Employment 
Opportunity Commission Testing and 
Selecting Employees Guidelines ( “ EEOC 
Guidelines” ), 29 C.F.R. § 1607, at § 
1607.5(a); American Psychological As­
sociation Standards for Educational & 
Psychological Tests and Manuals ( “ APA 
Standards” ) (PX -26) at 12-13.

A. Criterion— Related Validation.
Decisions in this Circuit and the 

EEOC guidelines agree that criterion-re­
lated or empirical validation is prefera­
ble to other validation methods. Guardi­
ans, 482 F.2d at 1337 and 354 F.Supp. at 
788; Vulcan, 360 F.Supp. at 1273; 
EEOC Guidelines at § 1607.5(a). In 
Vulcan, Judge Weinfeld defined the two 
methods which are subsumed under the 
criterion-related rubric:

“ Predictive validation consists of a 
comparison between the examination 
scores and the subsequent job per­
formance of those applicants who are 
hired. If there is a sufficient correla­
tion between test scores and job per­
formance, the examination is consid­
ered to be a valid or job-related one. 
Concurrent validation requires the 
administration of the examination to 
a group of current employees and a 
comparison between their relative 
scores and relative performance on the 
job.” 360 F.Supp. at 1273.



8a Opinion of District Court

The methodology which unites the two 
types of criterion-related validity re­
quires two fundamental .steps:

“ Criteria must be identified which in­
dicate successful job performance. 
Test scores are then matched with job 
performance ratings for the selected 
criteria.” Guardians, 482 F.2d at 
1337.
The EEOC’s minimum standards for 

validation (EEOC Guidelines at § 1607.- 
5) require an employer to undertake cri­
terion validation if it is feasible. They 
demand “ empirical evidence in support 
of a test’s validity . . . based on
studies employing generally accepted 
procedures for determining criterion-re­
lated validity, such as those.described in 
[APA Standards]” . Id. at subdiv. (a). 
They state further that "[e]vidence of 
content or construct validity, as defined 
in that publication, may also be appro­
priate where criterion-related validity is 
not feasible.” Id.

Because this case was not 
brought under Title VII and no resort 
has been made to the EEOC as would be 
required under the 1964 Act, the Com­
mission Guidelines are not binding and 
cannot finally resolve the issue whether 
criterion-related validation is required. 
However, the Guidelines are recognized 
as relevant and useful as a “ helpful 
summary of professional testing stand­
ards” ( Vulcan, 490 F.2d at 394, n. 8) 
and as “ persuasive standards for evalu­
ating claims of job-relatedness” ( Vulcan, 
360 F.Supp. at 1273, n. 23).»

Notwithstanding the Guidelines’ man­
date of criterion-related validation and 
despite suggestions in some cases that 8 *

8. See also Carter v. tiallngher, 452 F.2<1 3.15,
320, 320 (Slli Cir. 107.1), adopted in relevant 
part, 452 F.2d 327 (8th Cir.) (cn banc), 
cert, denied. 400 U.K. 050, 02 S.Ct. 2045, 32 
Ii.Kd.2d 338 (1072) ; Fowler v. Sehwarz- 
walder, 351 F.Supp. 721, 724 (D.Minu. 
1072); Pennsylvania v. O ’ Neill, 348 F.Supp. 
.1081, 1103 ( K.l>.Pa.1072), a ffd  in relevant 
part, by an equally divided court, 473 F.2d 
1020 ( 3d Cir. .1073) (cn bane) ; Western 
Addition Community Organization v. Alioto, 
340 F.Supp. 1351 (N .D .Cal.1072).

only that method suffices to carry the 
burden of proof as to job-relatedness 
( Vulcan, 360 F.Supp. at 1273; Guardi­
ans, 354 F.Supp. at 789), no case in this 
Circuit has gone so far as to hold that 
failure to test an exam by criterion vali­
dation or to demonstrate the nonfeasibil­
ity of that approach justifies setting the 
exam aside even if it has been content 
validated. Those cases which have indi­
cated a preference for criterion-related 
validation have also found a lack of con­
tent and construct validation before 
striking down an examination. Further­
more, the Court of Appeals for this Cir­
cuit has recently abjured an absolutist 
approach, stating that “ failure to use 
I criterion-related validation ] is not fa­
tal.” Vulcan, 490 F.2d at 395.

Defendants specifically admit 
that 34-944 has not been validated by 
the criterion-related approach. (Tran­
script at 389; PX-2, answer to inter­
rogatory 26.) However, in view of 
Judge Friendly’s unambiguous statement 
in Vulcan that criterion-related valida­
tion is not required if the examination 
can be validated by other means, we 
turn our attention to the other valida­
tion methods.

B. Construct Validation.
The second recognized method 

of validation is “ construct validation.” 
As defined by Judge Friendly in Vulcan, 
this method “ requires identification of 
general mental and psychological traits 
believed necessary to successful perform­
ance of the job in question. The quali­
fying examination must then be fash­
ioned to test for the presence of these 
general traits.” s Vulcan, 490 F.2d at

9. The common example which is given to 
highlight, the different, characteristics of the 
content, and construct validation methods in­
volves an examination for the position of 
typist. A content valid test would require 
the applicant to type. In such an instance 
the content of I lie job and of the exam is 
identical. A construct valid approach would 
identify certain trails essential to success as 
a typist, sueh as ability to eonccntrntc, per­
severance and attention to detail, and would 
examine tin; applicant for those traits. Vul­
can, 490 F.2d at 395.



Opinion of District Court 9a

395. We mention this method only fo>- 
the sake of completeness; none of the 
parties has introduced evidence that 
its use would be appropriate here or that 
its requirements have been fulfilled.

, C. Content Validation.
We reach finally the dispositive issue 

in the case: Have defendants demon­
strated that 34-944 is a content valid ex­
amination?

Initially, it is essential to deter­
mine precisely what proof is necessary 
to satisfy the requirements of content 
validity. Judge Weinfeld’s definition in 
Vulcan reflects the principles established 
by case law and professional publica­
tions:

“ An examination has content validity 
if the content of the examination 
matches the content of the job. For a 
test to be content valid, the aptitudes 
and skills required for successful ex­
amination performance must be those 
aptitudes and skills required for suc­
cessful job performance. It is essen­
tial that the examination test these at­
tributes both in proportion to their 
relative importance on the job and at 
the level of difficulty demanded by 
the job.” 360 F.Supp. at 1274 (foot­
notes omitted). See also, Vulcan, 490 
F.2d at 395; Guardians, 482 F.2d at 
1338.

Accordingly, defendants must demon­
strate not only that the knowledge, skills 
and abilities tested for by 34-944 coin­
cide with some of the knowledge, skills 
and abilities required successfully to 
perform on the job, but also that 1) the 
attributes selected for examination are 
critical and not merely peripherally re­
lated to successful job performance: 2) 
the various portions of the examination 
are accurately weighted to reflect the 
relative importance to the job of the at­
tributes for which they test; and 3) the 
level of difficulty of the exam matches 
the level of difficulty for the job. In 
sum, to survive plaintiffs’ challenge,

10. Tin: 14100(1 ( lm<U4im’.s stale; "KvidiMicc of 
content validity alone may he acceptable for 
well-developed tests that consist of suitable

34-944 must be shown to examine all or 
substantially all the critical attributes of 
the sergeant position in proportion to 
their relative importance to the job and 
at the level of difficulty which the job 
demands.

The problem which confronts 
the trier of fact when charged with 
applying these principles to a given situ­
ation is that normally, and it is the case 
here, he is expert neither in psychome­
trics nor in the field in which the exam­
ination is given. Nevertheless, he is re­
quired to make factual determinations 
1) whether the examination meets pro­
fessionally acceptable standards of tech­
nical adequacy and 2) whether it has 
content validity for the job in question. 
(See. EEOC Guidelines, 29 C.F.R. at § 
1607.5(a).) 10 To overcome the obstacle 
presented by lack of expertise, the cases 
have developed an approach which mini­
mizes the obvious dangers inherent in 
judicial determination of content validity 
for a job about which the judge has, at 
best, only superficial knowledge. Judge 
Friendly described with approval the ap­
proach taken by Judge Weinfeld in Vul­
can as follows:

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

samples of flit* essential knowledge, skills or 
behaviors composing 1 ho job in question.” 
29 C.F.R. at § 1007.5(a).



10a Opinion of District Court

raony as to job-rolatedness.’ The 
judge's approach makes excellent 
sense to us. If an examination has 
been badly prepared, the chance that 
it will turn out to be job-related is 
small. Per contra, careful preparation 
gives ground for an inference, rebut­
table to be sure, that success has been 
achieved. A principle of this sort is 
useful in lessening the burden of judi­
cial examination-reading and the risk 
that a court will fall into error in um­
piring a battle of experts who speak a 
language it does not fully understand. 
See Chance, supra, 458 F.2d at 1173.” 
490 F.2d at 395-396.

The primary emphasis, therefore, is on 
the validity of the methods used in creat­
ing the examination not on the indepen­
dent validity of the end product.

Preparation of a content valid 
examination requires cooperation be­
tween subject matter experts who pro­
vide content input and psychometric ex­
perts who construct an examination us­
ing that input. It goes without saying 
that the competence of the people in­
volved in the process determines the 
quality of the product. The cooperative 
effort of these two groups includes sev­
eral stages: 1) Analysis of the job to 
isolate the essential knowledge, skills 
and abilities required by it; 2) determi­
nation of the scope of the examination, 
the method or methods of testing to be 
employed and the weight to be given dif­
ferent portions of the examination proc­
ess; 3) formulation of individual items; 
and 4) establishment of the passing 
point.

The cornerstone in the construction of 
a content valid examination is the job 
analysis. Without such an analysis to 
single out the critical knowledge, skills 
and abilities required by the job, their 
importance relative to each other, and 
the level of proficiency demanded as to 
each attribute, a test constructor is aim­
ing in the dark and can only hope to

«! hieve job relatcdness by blind luck. 
As Judge Weinfeld stated in Vulcan:

“ There is no dispute between the 
parties that a thorough knowledge of 
the job to be tested is necessary in or­
der to construct a content valid exami­
nation. Without this knowledge it is 
impossible to determine whether the 
content of the examination is suffi­
ciently related to the content of the 
job to justify its use. The means 
used to acquire this information is 
known professionally as a job analysis 
— really the beginning point. A job 
analysis is a thorough survey of the 
relative importance of the various 
skills involved in the job in question 
and the degree of competency required 
in regard to each skill.” 360 F.Supp. 
at 1274.
The persons charged with the respon­

sibility for 34-944, Siegel and Samuel 
Taylor, testified that, although an ade­
quate job analysis was performed, it 
does not exist in documentary form. 
(Transcript at 362-63, 682-83.) De­
fendants contend, however, that the exis­
tence of such an analysis is demonstrat­
ed by various documents which are in 
evidence, namely, a job audit ( D X-E ), 
KS & A 11 statements (P X -8 ), class 
specifications (P X -4 ) and the rule book 
( DX-O ). (Transcript at 362.) They 
argue further that the term “ job analy­
sis” means "a series of operations or un­
derstandings, discussions by which you 
identify what people do and why and 
what can be tested and what should be 
tested” (Transcript at 362-63) and as 
such is a “ process [that] cannot really 
be reduced to something called a job de­
scription”  (Transcript at 363; see also 
Transcript at 683). Accordingly, de­
fendants rely on the knowledge of the 
job, either pre-existing or obtained dur­
ing the course of the preparation of 34- 
944, possessed by those who participated 
in the examination’s construction.

The difficulties presented by defend­
ants’ approach are manifold. Accepting 
their argument that a job analysis need

11. "K S & A ” is the standard abbreviation for “ knowledge, skills and abilities.”



Opinion of District Court 11a

not be reduced to writing, it is nonethe­
less not persuasive that an adequate job 
analysis existed at some point in the 
minds of defendants’ experts, if, at the 
present time, they are unable to prove 
its existence. In fact, the existence of 
such an analysis has not been proven. 
The documents relating to the subject 
which are in evidence do not even ap­
proximate a professionally adequate job 
analysis', the test constructors’ knowl­
edge which was not committed to writ­
ing is in some instances unproven and in 
others unimpressive; and the reliance of 
the test constructors upon various as­
pects of the purported job analysis is 
largely unestablished. The logical, and 
indeed inevitable inference is that no ad­
equate job analysis was performed.

Since the existence of a job analysis is 
of primary importance in reaching a de­
cision as to job-relatedness, we will com­
ment on defendants’ proof on the subject 
at some length.

Although Samuel Taylor, 
Chief Personnel Examiner, testified 
that, in his opinion, the job audit, KS & 
A statements, class specifications and 
the employee rule book together consti­
tuted a satisfactory job description 
“ that would be an adequate basis for de­
veloping the examination” (Transcript 
at 362), these documents do not satisfy 
the requirements of a thorough job anal­
ysis as they have been developed by the 
cases. The job audit (D X -E ) has such 
major flaws that it is almost irrelevant 
to the case; it was prepared for a pur­
pose other than exam preparation, it 
was outdated at the time the exam was 
prepared, and it was devoted almost en­
tirely to describing the position of 
Correction Officer, not Correction Ser­
geant. The audit was conducted in or­
der to determine whether various jobs in 
the Correction Officer Series should be 
upgraded for the Civil Service ciassifica-

!2. That, the goal of the audit is not coexten­
sive and may even he inconsistent with that 
of a proper job analysis is demonstrated by 
the fact that, although tin; audit concluded 
that the Sergeant istsition should be reclas­
sified to grade 17 (Transcript at 5 6 4 ; P X -

tion purpose of determining whether 
compensation for the positions should be 
increased. (Transcript at 353; P X -7 .),!! 
While a document prepared inde­
pendently of the examination process is 
not per se disqualified for consideration 
in preparing a job analysis, it cannot 
substitute for an analysis having the 
specific goal of examination preparation 
in mind. Furthermore, the job audit 
was conducted in Spring, 1970 (Tran­
script at 360), while 34-944 was admin­
istered in October, 1972. Siegel, who 
was responsible for 34-944, testified 
that the Sergeant job changed within 
the two years prior to the examination 
dated. (Transcript at 533, see also P X - 
42, p. 4.) The audit, almost in its en­
tirety, describes the Correction Officer 
job. Such references as there are to the 
Sergeant position do not approach the 
type of depth of analysis which is essen­
tia! to the preparation of a job-related 
test. The audit does not indicate the 
relative importance of the skills and 
tasks involved in the Sergeant job or 
the competency required for the various 
aspects of the position, both of which 
are essential functions of a job analysis. 
Finally, the persons who prepared the 
audit did not participate in the prepara­
tion of the exam, nor is their compe­
tence to conduct the audit in any way 
established by the record. It is perhaps 
not surprising, in view of the limited 
utility of the audit— and this is perhaps 
the most critical point to make on the 
subject— that it was not consulted by 
the test constructors in formulating spe­
cific exam items. (Transcript at 667- 
68 . )

The other documents on which defend­
ants rely fare no better as substitutes 
for a job analysis. The class specifica­
tion (P X -4) is a one paragraph descrip­
tion of the position which contains no 
more information than would be pos-

4 ) , flic supervision subfest called for ques­
tions appropriate to grades 10-14 and the 
report preparation sub-test questions were 
geared 1o an entry level investigative posi­
tion (P X -8 ) .



12a Opinion of District Court

sessed by anyone with only a cursory 
knowledge of the job. It is a useless 
document for the intended purposes.

The same observation can be made 
about, the KS & A statements (P X -8), 
which are descriptions of the five exam­
ination subtests rather than of the 
knowledge, skills and abilities demanded 
by the sergeant job. The “ definition of 
KS & A” which appears for each subtest 
is a brief paragraph which states, as 
starkly as possible, the knowledge, skill 
or ability tested for, without any indica­
tion of gradations of complexity, con­
text, methods or anything which would 
indicate how the knowledge, skill or abili­
ty operates in the actualities of the job. 
In his deposition (a portion of which 
was read into the record), Siegel stated 
that “ [t]he K, S and A statements are 
used as guidelines, in effect, in prepara­
tion of particular items or of items in 
general on— in that they represent the 
— the K, S and A statements represent 
those relevant portions of the position, 
let’s say, which we wish to test and 
therefore act as a guide in telling us the 
types of items to write or select.” 
(Transcript at 6C5.) This description 
of the use to which these documents 
were put is not credible, because the 
statements simply do not provide suffi­
cient particularity to aid in the con­
struction of specific items or even of 
clusters of items. They are only guide­
lines in the most general sense of block­
ing out the scope of the exam. Accord­
ingly, it is not surprising that, as Siegel 
admitted, items bn the exam were pre­
pared before the KS & A statements. 
(Transcript at 666.) As a result, the 
statements are irrelevant to the job 
analysis, both because they are so lack­
ing in detail as to serve no useful pur­
pose and because they were not relied 
on. These phenomena are readily ex­
plainable by the fact that the KS & A 
statements were, in fact, the end product 
of the job analysis “ process” rather than 
a component part of it, or a summary 
rather than a guideline. As Samuel 
Taylor stated, in terms which squarely 
contradict Siegel: “They [the test con­

structors] didn’t rely on it [P X -8 ], be­
cause it didn’t exist before they went 
through their process.” (Transcript at 
348.)

Finally, the'rule book (D X -0 ) is ob­
viously not a job analysis or a part of a 
job analysis. The rules themselves are, 
eoncededly, important to the job, but 
what is important to the analysis is how 
the rules are applied and what depth of 
knowledge is required, neither of which 
is indicated by the rule book.

Defendants’ reliance on the 
knowledge of the sergeant job either 
possessed by the test constructors prior 
to commencing work on 34-944 or ac­
quired by them during the course of 
their work on it is also inappi'opriate. 
The record does not establish that the 
persons who worked on the exam, three 
of whom came from the Department of 
Corrections and three from Civil Serv­
ice, possessed the kind of intimate 
knowledge of the job that would enable 
them to do without a job analysis, or 
would make them, as Samuel Taylor 
claimed, “ living job descriptions” (Tran­
script at 362).

Of the three persons fx-om the Depart­
ment of Connections, only one, Hylan 
Spex-beck, testified. His qualification as 
a subject matter expert consists of long 
service in the Department. The i-espect 
to which years of experience might nor- 
mally be entitled is greatly undercut in 
his case by the fact that the type of as­
signments which Sperbeck has held ai'e 
not necessarily conducive to enhance­
ment of his undei'standing of the ser- 
geant position. Spei’beck became a 
Cori’ection Officer in 1957, a Sergeant 
in 1968, a Lieutenant in 1972 and a Cap­
tain in 1973. (Ti’anscript at 738.) 
Since March, 1970, he has been assigned 

, to the Training Academy and, since that 
time, he has spent only five or six week­
ends and four consecutive days in active 
line duty at any of the facilities. 
(Transcript at 764-65.) The result is 
that Sperbeck has been engaged in a 
normal supervisory capacity at a facility 
only for the two year period from 1968 
to 1970, during which he was a Sex--



Opinion of District Court 13a

geant. Given the changes which have 
occurred in the job since that time, his 
experience, although useful, cannot sub­
stitute for a professionally acceptable 
job analysis. The qualifications as sub­
ject matter experts of the two other per­
sons from Corrections (other than years 
of service) are not established by the 
record.

Siegel and the two other persons from 
Civil Service had no first-hand knowl­
edge of the Sergeant position, although 
Siegel claims some familiarity with the 
job from past experience in preparing 
exams in the Correction Officer Series. 
He also testified to visits to Coxsackie 
and Matteawan, but the importance of 
these visits should not be overemphasized 
since the visit to the latter was for a 
purpose unrelated to 34—944 i in fact, 
there are no sergeants at Matteawan 
(Transcript at 541)), while the visit to 
the former entailed only an hour or two 
of discussion with Sergeants (Tran­
script at 54G-47), and, in any event, one 
day at a facility is hardly sufficient to 
make someone an expert as to the job. 
It is worthy of note, moreover, that two 
of the five subtests (40%  o f the exam) 
were prepared solely by Civil Service 
personnel, other than Siegel, without 
any input from the subject matter “ex­
perts” from Corrections. (Transcript at 
367.)

Accordingly, the record does not es­
tablish that the knowledge and qualifica­
tions possessed by the test constructors 
were such that they can simply be 
deemed to have had in their heads a job 
analysis sufficient to satisfy legal and 
professional requirements. Indeed, a 
contrary inference is warranted by the 
record.

We conclude, therefore, that defend­
ants have failed to prove that they per­
formed an adequate job analysis. The 
same lack of professionalism which char­
acterized the process by which defend-

13. P X ...13 describes (lie score of prior exam­
inations given in lliG4, 1 DOS and 1072.
However, since ,Sieged testified that, an ex­
amination was given in 1070 (Transcript at

tints conducted their job analysis aiso 
characterized the manner in which they 
determined the type of examination, its 
scope, the weight of the subtests and the 
passing score. All o f these matters 
seem to have been decided almost as a 
matter of course by referring to and fol­
lowing the practices established by prior 
exams.

The record indicates that the promo­
tional examination for the Sergeant po­
sition has been for many years a writ­
ten, multiple choice examination. This 
was true at least as to the examinations 
given in 1964, 1968, 1970 and 1972. 
(PX -43.) 13 When asked how the deci­
sion was reached that the knowledge, 
skills and abilities needed for the posi­
tion of Correction Sergeant could best 
be tested by a written examination, Sie­
gel stated in his deposition:

“ H it's to a large extent, I suppose, a 
decision o f history, let’s say, where 
previously selections for this position 
have been made by written examina­
tion and I would assume that the re­
quest that we received from the De­
partment of Correctional Services for 
this examination also indicated re­
quest for a written examination.” 
(Transcript at 697.)

Somewhat more thought seems to have 
gone into the decision not to use per­
formance ratings as any part of the pro­
motional process, although such use is 
permitted by state law (Civil Service 
Law § 52(2)). (Transcript at 671-72.) 
Siegel and Taylor stated that they con­
sidered using supervisory evaluations, 
but decided not to because of the inade­
quacy of the existing rating scale. 
(Transcript 381-82, 672.)

Like the decision to use a written ex­
amination and to exclude consideration 
of supervisory evaluations, determina­
tion of the scope and organization of 
34-944 seems to have followed the pat­
tern of earlier examinations. Of course,

531-33) and .since 34-944 was given in 1972, 
we assume that 34-007, Tbe last examination 
to precede 34-944. was in fact, given in 1970 
and not in 1972.



14a Opinion of District Court

if these set a model for good construc­
tion and job-relatedness, that would be a 
good argument not to depart from their 
mold. However, while there is evidence 
in the record of the discriminatory im­
pact of the earlier tests, there is no evi­
dence as to their job-relatedness. Fur­
thermore, even an exam once job-related 
may become outdated as jobs change. 
At the very least, it is fair to say that 
the slavish imitation of earlier examina­
tions which we find in this case indi­
cates an alarming lack of independent 
thought about how to assure that 34-944 
was job-related.

The scope of 34-944 was identical to 
that of the 1964, 1968 and 1970 exami­
nations, except that some of the earlier 
examinations included a section on inter­
pretation of written materials instead of 
or as well as the section on preparation 
of written reports found in 34-944. 
(Transcript at 530-32; PX-43.) The 
similarity is not accidental; Siegel and 
Samuel Taylor both testified that they 
relied heavily on prior scope statements 
in defining the scope of 34-944. (Tran­
script at 530-32, 659.)

Furthermore, the organization of 34- 
944 is virtually identical to that of its 
predecessors. Both 34-944 and the 1964 
exam contain five subtests of 15 items, 
while the 1968 and 1970 tests consist of 
90 items, including four subtests of 15 
items and one of 30 items. (PX-43.) 
When asked why each subtest on 34-944 
was weighted equally with 15 items of 
the same value, Siegel replied: "By us­
ing a set number of items in each sub 
test, we are able to more routinely do 
certain types of analyses on this materi­
al that gives us additional information 
of how the items are working, and 
things like that.” (Transcript at 566.) 
That this was a routine decision based 
solely or primarily on administrative 
convenience is further evidenced by his 
statement that "in our department we 
work on the basis of 15 questions per 
sub test and we work in constructing a 
test in sub test units.” (Transcript at 
700.) This practice, however, is not 
necessarily compatible with the notion

that different parts of the examination 
must be weighted as nearly as possible 
to reflect the relative importance of the 
attributes tested for to the job as 
a whole. This lack of individualization 
in the framing of 34-944 is again dem­
onstrated by the fact that 60% of the 
items on the Sergeant exam were also 
found on the Lieutenant exam given at 
the same time. (Transcript at 534-35.)

Finally, the decision to estab­
lish the passing score of 70% subordi­
nates the goal of job-relatedness to that 
of administrative convenience. Samuel 
Taylor and Siegel stated that they set 
the passing score at the maximum per­
mitted by law (Transcript at 524), be­
cause that score would still permit a suf­
ficiently large group of passing candi­
dates to satisfy the employment needs of 
the Department. (Transcript at 380, 
524-27.) As a result, Taylor admitted 
that "its function is really more for the 
purpose of regulating the number of 
people who will then be in line to take 
the job than it is to declare that a man 
is qualified or not.” (Transcript at 
341.) Although this approach is not 
without justifying logic, it departs from 
the requirement, imposed by law, that 
such decisions be made so as to further 
the paramount goal of job-relatedness. 
Properly employed, the passing score 
should serve to separate those who are 
qualified for the job from those who are 
not. (Transcript at 880-81.) Admit­
tedly, it did not serve that purpose in 
this case.

The factors described above lead ines­
capably to the conclusion that the proce­
dures employed in constructing 34-944 
do not conform to professionally accepta­
ble and legally required standards. This 
determination may be enough to justify 
a finding that the examination is not 
job-related, without regard to the quali­
ty of the examination. See Fowler v. 
Sehwarzwalder, 351 F.Supp. 721, 725 
( D.Minn.1972); Western Addition Com­
munity Organization v. Alioto, 340 F. 
Supp. 1351, 1355 (N.D.Cal.1972). As 
Judge Weinfeld stated in Vulcan: “ It 
should be self-evident that content va­



Opinion of District Court 15a

lidity greatly depends upon the adequacy 
of the manner in which the examination 
is prepared.” 360 F.Supp. at 1275. At 
a minimum, “ under these circumstances 
only the most convincing testimony as to 
job-relatedness could succeed in dis­
charging [defendants'] burden.” Id. at 
1276.

This burden has not been met. 
To the contrary, positive evidence of 
job-relatedness is conspicuous by its ab­
sence. Defendants’ expert, Dr. Erwin 
Taylor, specifically refused to testify 
that 34-944 was job-related. (Tran­
script at 809-11.) lie was not willing 
to go beyond his statement that “ if 
these procedures were in effect followed, 
they would constitute the steps neces­
sary but not necessarily sufficient to the 
development of a series of job related 
tests.” (Transcript at 809.) Plaintiffs’ 
expert, Dr. Richard Barrett, a leading 
industrial psychologist and expert in the 
field, while declining to state positively 
that 34-944 was not job-related, did tes­
tify that the exam had not been demon­
strated to be job-related (Transcript at 
893-94) and indicated that he had "sub­
stantial doubts as to whether the test is 
in fact valid” (Transcript at 894-95).

Taking to heart Judge Friendly’s im­
plied caveat against “ burying [our­
selves] in a question-bv-question analy­
sis”  of the exam ( Vulcan, 490 F.2d at 
395), we merely note in passing some of 
the imperfections indicated by the 
record. Witnesses for both sides agreed 
that certain items in the laws, rules and 
regulations subtest involve guidelines 
that a Sergeant would have no need to 
apply. (Transcript at 128-30, 132-33, 
553, 774.) As to all the subtests, Dr. 
Barrett testified as to item defects, in­
consistencies, and irrelevancies with re­
gard to numerous questions. (Tran­
script at 903-22.) It is unnecessary to 
agree with his comments as to each item 
to find that the record supports his con­
clusion that 34-944 is not a professional­
ly adequate examination. (Transcript at 
922-23.)

More serious perhaps than specific 
item flaws is the fact that, regardless 
whether 34-944 adequately tests the at­
tributes it is intended to measure, it 
fails to examine a number of traits, 
skills and abilities which witnesses for 
both sides singled out as important to 
the Sergeant job. Among these are 
leadership, understanding of inmate re- 
socialization, ability to empathize with 
persons from different backgrounds, and 
ability to cope with crisis situations. 
(Transcript at 63-64, 117, 308, 702- 
703.) We conclude, as did Judge New­
man in Guardians, that:

“ Even if the exam need not be com­
prehensive as to content or constructs, 
the evidence does not indicate whether 
the few areas of knowledge and the 
few' traits measured are the ones that 
will identify suitable candidates for 
the job . . . .  An exam of this 
sort, which does not attempt to be 
comprehensive in testing for content 
or constructs, employs a sampling ap­
proach. Such an exam might, in some 
circumstances, be shown to meet the 
standard of job relatedness. But the 
evidence does not establish the repre­
sentativeness of the knowledge or 
traits sampled by the exam used 
here.”  354 F.Supp. at 792.
Given the unwillingness of both ex­

perts to state positively that 34-944 is 
or is not job-related, it would be foolhar­
dy on our part to hazard such an opin­
ion. It is, o f course, barely possible that 
the exam is job-related; “ [defendants’ 
burden, however, is not to establish pos­
sibilities but to demonstrate strong 
probabilities” (Vulcan, 360 F.Supp. at 
1276 (footnote omitted)). We can say 
with certainty, and we are required to 
do no more, that the probabilities in this 
case run heavily against defendants. 
Accordingly, they have failed to meet 
the burden which the law imposes on 
them.

III. REMEDY.
We turn, therefore, to the question of 

relief. Plaintiffs seek 1) a permanent 
injunction against basing permanent ap­



16a Opinion of District Court

pointments to the position of Correction 
Sergeant on the results of 34-944; 2) a 
mandatory injunction obliging defend­
ants to develop a valid selection process 
for that position; and 3) an injunction 
requiring defendants to make interim 
and regular appointments of class mem­
bers. They also seek a class action de­
termination and an award of costs, in­
cluding attorneys’ fees.

Taking the class action ques­
tion first, we find that plaintiffs have 
demonstrated the existence of a class 
satisfying the requirements of Rule 23 
composed of all Black and Hispanic Cor­
rection Officers or provisional Correc­
tion Sergeants who failed 34-944 or who 
passed but ranked too low to be 
appointed.14 The class is clearly too nu­
merous to permit joinder: a total of
119 minority candidates, 103 Blacks and 
1G Hispanics, took 34-944 and of these 
only 9 passed and only 2 (both Black) 
received a score of 57 or above giving 
them a chance at appointment. Accord­
ingly, the class numbers 117 persons 
which is more than sufficient to satisfly 
the demands of Rule 23(a)(1 ). Korn v. 
Franchard Corp., 456 F.2d 1206, 1209 
(2d Cir. 1972). Whether examination 
34-944 discriminated against minority 
candidates is the question of law com­
mon to the class and plaintiffs’ claims 
are perfectly typical of the claims of the 
class.15 Rule 23(a)(2) and (3). The 
representative parties have amply dem­
onstrated their ability to protect fairly 
and adequately the interests of the class 
by conducting the litigation to its 
present successful conclusion. Rule 
23(a)(4). Finally, the defendants have 
“acted or refused to act on grounds gen­
erally applicable to the class, thereby

14. Plaintiffs originally sought, to represent as 
well persons who were deterred from taking
the examination by defendants’ discriminato­
ry employment practices. Since they intro­
duced no evidence as to persons who might 
have boon deterred, plaintiffs "do not now 
insist upon their inclusion in the class” 
(Post Trial Memorandum at G4), and we de­
cline to include them.

making appropriate final injunctive re­
lief or corresponding declaratory relief 
with respect to the class as a whole.” 
Rule 23 (b )(2 ). Accordingly, it is prop­
er that the ease be treated as a class ac­
tion.

We turn to the substantive re­
lief requested by plaintiffs. Plaintiffs 
seek and are entitled to declaratory and 
injunctive relief against the use of 34- 
944 and the eligible list which was pro­
mulgated pursuant to it as a basis for 
appointments to the position of Correc­
tion Sergeant. Accordingly, examina­
tion 34-944 is declared unconstitutional 
and defendants are enjoined from mak­
ing appointments based on its results. 
Furthermore, defendants are enjoined 
from terminating the provisional ap­
pointments of the named plaintiffs and 
those members of the class who are pro­
visional Correction Sergeants solely be­
cause of their inability to pass 34-944.

The invalidation of 34-944 
clearly authorizes the court to grant ap­
propriate affirmative relief, including 
mandating the creation of a new selec­
tion process to conform with the re­
quirements of the Fourteenth Amend­
ment and ordering the promotion of 
members of the plaintiff class in a ratio 
designed to correct the effect of defend­
ants’ unconstitutional employment prac­
tices. As the Supreme Court stated in 
Louisiana v. United States, 380 U.S. 145, 
154, 85 S.Ct. 817, 822, 13 L.Ed.2d 709 
(1965):

“ [T]he court has not merely the pow­
er but the duty to render a decree 
which will so far as possible eliminate 
the discriminatory effects of the past 
as well as bar like discrimination in

15. Defendants claim that the named plain­
tiffs cannot represent, persons who passed 
the examination but ranked too low to Iks 
appointed because both named plaintiffs 
failed 34-044. However, plaintiffs* interests 
and those of persons who passed but whose 
low rank prevents their appointment are 
identical, and we reject defendants’ conten­
tion that the claims of the former are not 
representative of those of the latter.



Opinion of District Court 17a

the future.”  See also, Guardians, 482
F.2d at 1340.

However, we believe it is appropriate to 
defer decision on the extent of affirma­
tive relief to enable defendants to re­
spond to the specific requests made by 
plaintiffs. Since, pursuant to court or­
der, the post-trial memoranda in this 
case were submitted simultaneously, de­
fendants have not as yet had the oppor­
tunity to address themselves to the rec­
ommendations contained in plaintiffs’ 
brief and proposed order. We refer, in 
particular, to plaintiffs’ suggestions that 
1) the new selection procedure be re­
quired to conform with the EEOC 
Guidelines; 2) class members who are 
presently provisional Correction Ser­
geants1,1 be permanently appointed 
to that position; 3) an interim perma­
nent appointment procedure be institut­
ed which would provide for the promo­
tion of minority persons in a ratio of at 
least one to each three White promo­
tions; and 4) this promotion ratio be 
continued even after a valid selection 
procedure has been devised. According­
ly, defendants are instructed to submit 
an answering memorandum on these is­
sues within ten tays of the filing of this 
Opinion, plaintiffs to have the opportu­
nity to reply within one week thereafter.

Finally, plaintiffs request an award of 
reasonable attorneys’ fees. Defendants 
oppose on two grounds; 1) As a general 
rule, successful litigants cannot recover 
attorneys’ fees from the losing party 
and plaintiffs have not shown them­
selves to fall into any exception to this 
rule; and 2) an award of attorneys’ fees 
is barred by the doctrine of sovereign 
immunity and the Eleventh Amendment.

Defendants’ first argument, 
while correctly stating the general ap­
proach, overlooks a growing line of cas­
es, discussed below, which establishes an 
exception in favor of plaintiffs who act 
as private attorneys general and who lit­
igate not only for their own benefit but 16

16. Plaintiffs also request the permanent ap­
pointment of Henry Liburd, a member of the 
class who was not provisionally appointed to

also to vindicate the rights of others 
similarly situated and the interest of the 
public generally:

“The rule briefly stated is that when­
ever there is nothing in a statutory 
scheme which might be interpreted as 
precluding it, a ‘private attorney-gen­
eral’ should be awarded attorneys’ 
fees when he has effectuated a strong 
Congressional policy which has benefi­
ted a large class of people, and where 
further the necessity and financial 
burden of private enforcement are 
such as to make the award essential.” 
La Raza Unida v. Volpe, 57 F.R.D. 94, 
98 (N.D.Cal.1972).

In such cases, the protection of rights 
conferred both by the Constitution and 
by Congressional enactment requires 
that the normal rule be superseded. 
This exception to the general rule of not 
allowing attorney’s fees derives from 
Newman v. Piggie Park Enterprises, 
Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L. 
Ed.2d 1203 (1908), a class action under 
Title II of the Civil Rights Act of 1964, 
in which the Supreme Court stated 
that “ one who succeeds in obtaining an 
injunction under that Title should ordi­
narily recover an attorney’s fee unless 
special circumstances would render such 
an award unjust,” id. at 402, 88 S.Ct. 
at 966; see also Mills v. Electric Auto- 
Lite Co., 390 U.S. 375, 389-397, 90 S.Ct. 
010, 24 L.Ed.2d 593 (1970).

The fact that this suit was not 
brought under the Civil Rights Act of 
1964, which specifically provides for the 
award of attorneys’ fees, but rather un­
der 42 U.S.C. §§ 1981 and 1983, which do 
not so provide, does not mandate a dif­
ferent result. In Lee v. Southern Home 
Sites Corp., 444 F.2d 143 (5th Cir. 
1971), the Court of Appeals relying on 
Piggie Park held that “ attorney’s fees 
are part of the effective remedy a court 
should fashion to carry out the congres­
sional policy embodied in [42 U.S.C.] 
Section 1982,” Id. at 144. Indeed, the

tho Sergeant position, because they contend 
that tho record establishes his qualifications 
for permanent appointment.



18a Opinion of District Court

fact that subsequent Congressional legis­
lation in furtherance of the same objec­
tive provided for the award of attorneys’ 
fees was considered by the Lee court to 
be relevant to a determination of appro­
priate remedies under the earlier Civil 
Rights Acts, which do not enact a pano­
ply of specific remedies:

“ [I]n  fashioning an effective remedy 
for the rights declared by Congress 
one hundred years ago, courts should 
look not only to the policy of the en­
acting Congress but also to the policy 
embodied in closely related legislation. 
Courts work interstitially in an area 
such as this,” Id. at 146.

We note, in this context, that Title VII 
of the 1964 Act, which provides a paral­
lel route to the one chosen by plaintiffs 
here, allows for the award of attorneys’ 
fess. 42 U.S.C. § 2000e-5(k). Further­
more, the absence of specific remedies in 
the earlier Civil Rights Acts authorizes 
the court to exercise its broad equitable 
power to include in the relief any reme­
dy which furthers the vindication of 
Constitutional and Congressional policy, 
whereas if the statutes detailed the 
types of relief which they authorized 
and omitted attorneys’ fees they would 
bar by inference such an award, 
Fleischmann Distilling Corp. v. Maier 
Brewing Co., 386 U.S. 714, 87 S.Ct. 
1404, 18 L.Ed.2d 475 (1967); Harper v. 
Mayor and City Council, 359 F.Supp. 
1187, 1217-1218 (D.Md.1973).

Because the issue is important and 
novel, at least in this Circuit, we list at 
greater length than might otherwise be 
required some of the recent decisions 
which have granted attorneys’ fees in 
suits under §§ 1981-1983 on the “ pri­
vate attorney general”  theory, despite 
the absence of statutory authorization 
and without relying on a showing of bad 
faith or unreasonable obduracy by de­
fendants. See Cooper v. Allen, 467 F.2d

17. No Eleventh Amoinlmont or sovereign im­
munity problems would arise from an award 
of attorneys’ fees against: Mic individual de­
fendants. Although the record might well 
justify such an award, it. is nonetheless not 
within our power since the individual defeud-

836, 841 (5th Cir. 1972) ; Knight v. Au- 
ciello, 453 F.2d 852 (1st Cir. 1972); Lee 
v. Southern Homes Sites Corp., 444 F.2d 
143, 144-148 (5th Cir. 1971); Harper v. 
Mayor, 359 F.Supp. 1187, 1217-1218 
(D.Md.1973); Wyatt v. Stickney, 344 
F.Supp. 387, 408-409 (M.D.Ala.1972) ; 
Sims v. Amos, 340 F.Supp. 691, 694-695 
(M.D.Ala.) (three judge court), a ff’d, 
409 U.S. 942, 93 S.Ct. 290, 34 L.Ed.2d 
215 (1972) ; NAACP v. Allen, 340 F. 
Supp. 703, 708-710 (M.D.Ala.1972);
Bradley v. School Board, 53 F.R.D. 28, 
41-42 (E.D.Va.1971); Morrow v. Cris- 
ler, 4 E.P.D. fl 7584 (S.D.Miss.1971). 
See also Brewer v. School Board, 456 F. 
2d 943, 951-952 (4th Cir. 1972); La 
Raza Unida v. Volpe, 57 F.R.D. 94, 98- 
102 (N.D.Cal.1972). We note particu­
larly that Cooper v, Allen, Harper v. 
Mayor, NAACP v. Allen and Morrow v. 
Crisler are cases which, like the suit 
here, were brought under 42 U.S.C. §§ 
1981 and 1983 to vindicate the right to 
equal employment opportunities in the 
public sphere. We see no relevant dis­
tinction between them and the case at 
hand.

Defendants’ second contention, 
that the award of attorneys’ fees is 
barred by the Eleventh Amendment and 
the doctrine of sovereign immunity,17 
has been rejected in the recent case 
Gates v. Collier, 489 F.2d 298 (5th Cir., 
1973). The court there affirmed an 
award of attorneys’ fees, stating:

“ This Court has said that in such a 
suit as this the award of attorney’s 
fees is not an award of damages 
against the State, even though funds 
for payment of the costs may come 
from the state appropriations.

* * * * * * 
“ Although the trial court had the 

power to assess attorney’s fees and ex­
penses against the individual defen­
dants found to have engaged in the

ants were never properly brought before the 
court. Kirklaiul v. Xcw York State Depart­
ment of Correctional Services, 358 F.Supp. 
1341), 1350, n. 1. (S .D .X .Y .1073 ). Accord­
ingly, attorneys’ fees can only be awarded 
against, the two defendant state agencies.



Opinion of District Court 19a

unconstitutional conduct, we think it 
does not vitiate the award because the 
trial court prescribed that this part of 
the costs were to be payable ‘from 
funds which the Mississippi Legisla­
ture, at its 1973 Session, may appro­
priate for the operation of the Missis­
sippi State Penitentiary,’ and were 
not to be ‘the personal, or individual,

, liability of the varied defendants or 
any of them.’ ” Id. at 302 (footnote 
omitted).

The issue has also arisen and been re­
solved adversely to defendants’ position 
here in Sims v. Amos, 340 F.Supp. 691 
(M.D.Ala.) (three judge court), a ff ’d, 
409 U.S. 942, 93 S.Ct. 290, 34 L.Ed.2d 
215 (1972), and La Raza Unida v. Volpe, 
57 F.R.D. 94, 101, n. 11 (N.D.Cal.1972).

Plaintiffs ask the court to de­
termine at this time the size of the 
award and have submitted affidavits 
upon which to base the determination. 
To accede to their request without pro­
viding defendants the opportunity of 
bringing to our attention facts relevant 
to determining the amount in question 
would be improper in view of the recent

decision of the Court of Appeals for this 
Circuit in City of Detroit v. Grinned 
Corp., 495 F.2d 448 (2d Cir„ 1974). Ac- 
eordingly, defendants are instructed to 
include in the memorandum discussed 
above any facts which they wish the 
court to bear in mind in determining the 
amount of attorneys’ fees to which 
plaintiffs are entitled.

To sum up; Examination 34-944 is 
declared unconstitutional and is set 
aside. Defendants are enjoined from 
making permanent appointments to the 
position of Correction Sergeant from the 
eligible list which is based on its results 
and from terminating the provisional ap­
pointments to that position of plaintiff 
class members solely because of their 
failure to pass the examination. De­
fendants are instructed to submit a 
memorandum on the subjects delineated 
above within ten days of the filing of 
this Opinion, plaintiffs to reply within 
one week thereafter. Plaintiffs arê  
awarded reasonable costs, including at­
torneys’ fees, in an amount to be deter­
mined after further documentation by 
the parties.

It is so ordered.



4K JU

Decree o f  District Court

[ c a p t i o n  o m i t t e d ]

Filed: July 31, 1974
L a s k e r . D.J.: This action having been 

tried to the Court without a jury, and the 
Court having made findings of fact and 
conclusions of law bv Opinion dated April 1, 
1974 [7 EPD H 9268J (374 F. Supp. 1361), 
declaring Examination No. 34-944, prepared 
by the Civil Service Commission o f the 
State o f New York and administered by the 
Department o f Corrections o f the State, for 
prom otion to the grade o f Correction 
Sergeant to be unconstitutional, and setting 
it aside; and the original parties hereto and 
the inlervenors having filed memoranda in 
relation to the relief which should be 
afforded in accordance with the f indings and 
conclusions o f the Court, and the Court 
having thereafter conferred with counsel as 
to the terms o f such relief, it is Ordered, 
Adjudged and Decreed:

1. Examination No. 34-944 is declared 
invalid as violating the Constitution o f the 
United States.

2. T h e  defendants New Y ork State 
Department o f Correctional Services and 
New Y ork State Department o f Civil 
Services, and the named defendants Oswald, 
Poston, Stockmeister. and Scelsi, and their 
agents, employees, and successors in office 
are permanently enjoined from (a) making 
permanent or provisional appointments to 
the position o f Correction Sergeant (Male) 
in the New York State Department of 
C orrections based upon the results o f 
Examination No. 34-944 or any eligible list 
promulgated pursuant to that examination; 
and (b ) adm inistering or promulgating 
eligible lists based upon, or in any way acting 
upon the results of, Examination No. 34-944 
for the position o f Correction Sergeant 
(Male).

3. T h e  d e fe n d a n t s ,  th e ir  a g en ts , 
employees, and successors in office, are 
mandatorily enjoined to develop a lawful 
non-discriminatory selection procedure for 
the position o f Correction Sergeant (Male). 
In so doing, they shall adhere to the 
following general guidelines:

(a) The new selection procedure shall he 
developed within the shortest practicable 
period.

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

(c) All validation studies pursuant to this 
decree shall he performed by means of

em p ir ica l, c riter ion -re la ted  validation 
techniques insofar as feasible.

(d) The selection procedure to be 
developed may include a written examina­
tion, and may also include other selection 
instruments or procedures.

4. During the period required for the 
development of a lawful, non-discriminatory 
s e le c t io n  p ro c e d u r e  fo r  perm anent 
appointments to the position o f Correction 
Sergeant (M ale), the Court will entertain 
requests by defendants or their successors in 
office for permission to make such appoint­
ments under an interim procedure subject to 
the following provisions:

(a) Any such request shall set forth a 
statem ent o f the circum stances which 
render such appointments necessary or 
desirable.

(b) The request shall specify the number 
o f appointments to he made, and the desired 
effective date(s) o f such appointments.

(c) The request shall set forth the nature 
o f the interim procedure to he relied upon to 
select persons for promotion to Correction 
Sergeant (M a le ), and the reasons for 
employing that particular procedure, and 
the reasons assuring that the procedure will 
be based on merit and fitness and will be 
non-discriminatory in effect.

(cl) The request shall pledge, and the 
subsequent appointments shall reflect, that 
members o f the plaintiff class shall receive 
at least one such promotion by the interim 
procedure for each three such promotions re­
ceived by persons not. members o f the class 
defined herein. This numerical requirement 
shall he annulled at such time as the 
c o m b in e d  p ercen tage  o f  B lacks and 
H ispanics in the ranks o f  Correction 
Sergeants (M ale) is equal to the combined 
percentage o f Blacks and Hispanics in the 
ranks o f Correction Officers (Male).

(e) Copies o f requests shall he submitted 
to counsel for plaintiffs or their designee 
when submitted to the Court, and plaintiffs’ 
comments thereon, made within no more 
than ten days or such shorter period as the 
Court may specify upon an appropriate 
showing o f urgency by the defendants, will 
be considered by the Court.

5. Upon completion o f the development of 
the revised selection procedures and subject 
to the C o u rt ’s approval thereof, the 
defendants, tneir agents, employees and 
successors in office are enjoined from failing 
to ap p oin t as perm anent C orrection  
Sergeants (M ale) pursuant to the new



Decree of District Court 21a

procedures at least one Black or Hispanic 
employee lor each three white employees so 
Appointed, until the combined percentage of 
Hl;»rk and Hispanic persons in the ranks of 
Correction Sergeants (Male) is equal to the 
combined percentage o f Black and Hispanic 
persons in the ranks of Correction Officers 
(Male).

(>. The parties are directed to confer with 
a view to proposing jointly to the Court a de­
tailed procedure for the execution o f the 
Me}is set forth in this decree, if agreement is 
faissible. The parties shall submit their joint

or. if necessary, separate proposals as to these 
steps within thirty (30) days after the date 
o f  this decree. T h e  jo in t or separate 
proposals shall provide for submission o f any 
proposed selection procedure to the plaintiffs 
for review and to the Court for approval 
prior to the initiation o f the selection 
procedure for promotional purposes.

7. The Court retains jurisdiction for such 
period as is necessary to supervise this decree 
and further proceedings thereunder, and to 
determine the reasonable value o f plaintiffs’ 
attorneys’ services.



22a

UNITED STATES COURT OF APPEALS

F ob t h e  S econd C ir cu it

Nos. 445, 499— September Term, 1974.

(Argued April 21, 1975 Decided August 6, 1975.)

Docket Nos. 74-2116, 74-2258

E dward L. K ir klan d  and N a t h a n ie l  H ayes, each
individually and on behalf of all others similarly situated,

Plaintiffs-Appellees,
v.

T h e  N ew  Y ork S tate D epartm ent  op C orrectional S er ­
v ic e s ; R u ssell  Oswald, individually and in his capacity 
as Commissioner of the New York State Department 
of Correctional Services; T h e  N ew  Y ork S tate C iv il  
S er vice  C o m m ission ; E rsa P oston, individually and in 
her capacity as President of the New York State Civil 
Service Commission and Civil Service Commissioner; 
Mic h a e l  N. S celsi and C harles F. S to ckm eisteb , each 
individually and in his capacity as Civil Service Com­
missioner,

Defendants- Appellants,
and

A lbert  M. R ibeieo  and H en ry  L. C oons,

Intervenors-Appellants.

B e f o r e :
H ays, T imbers and V an G raafeiland ,

Circuit Judges.

Opinion o f  Court o f  Appeals



23a

Appeal from an order and decree of the United States 
District Court for the Southern District of New York, 
Morris E. Lasker, Judge, invalidating as unconstitution­
ally discriminatory a Civil Service examination for ser­
geant in the New York State Department of Correctional 
Services.

Affirmed in part and reversed in part.

Opinion of Court of Appeals

J u d ith  A. G ordon, Assistant Attorney General, 
New York, N. Y. (Louis J. Lefkowitz, At­
torney General of the State of New York, 
Samuel A. Hirshowitz, First Asst. Atty. 
Gen., Stanley L. Kantor, Asst. Atty. Gen­
eral, New York, N. Y., of Counsel), for 
Defendants-Appellants.

R ichard  R ow ley, Esq., Albany, N. Y. (Sneer- 
inger & Rowley, Albany, N. Y., of Counsel), 
for Intervenors-Appellants.

D eborah M. Greenberg, Attorney, New York,
N. Y. (Jack Greenberg, Esq. and Morris 
J. Bailer, Esq., New York, N. Y., of Coun­
sel), for Plaintiffs-Appellees.

A rnold F orster, Esq., New York, N. Y. (Joy 
Meyers, Attorney and Justin J. Finger, 
Esq., New York, N. Y., of Counsel), for 
amicus curiae, Anti-Defamation League of 
B’nai B’rith.

V an Graaeeiland, Circuit Judge:

On October 14, 1972, the New York State Department of 
Civil Service offered examination 34-944 for promotion to 
the position of correction sergeant in the New York State



24a Opinion of Court of Appeals

Department of Correctional Services. One thousand, two 
hundred sixty-three white correctional officers took this ex­
amination, and three hundred eighty-nine, or 30.8%, re­
ceived a passing score. Of the one hundred four Blacks 
tested, eight, or 7.7% passed; of the sixteen Hispanics,. 
two, or 12.5% passed. Thus was this litigation born.

On April 10, 1973, Edward Kirkland and Nathaniel 
Hayes, two Black officers who failed, joined with the 
Brotherhood of New York State Correction Officers, Inc,, 
in instituting this civil rights class action1 on behalf of 
their similarly situated fellow officers, seeking to enjoin 
any promotions to sergeant based on the results of the 
examination.

The case was tried before Judge Lasker in July of 1973, 
and this appeal is taken from his order and decree. Basic­
ally, the order provided as follows:

1. It declared examination 34-944 invalid as uncon­
stitutionally discriminatory and enjoined defendants 
from making any appointments to sergeant based on 
the results thereof.

2. It mandatorily enjoined defendants to develop 
a lawful, non-discriminatory selection procedure for 
the position of sergeant, requiring that it be validated 
in accordance with the E.E.O.C.1 2 Guidelines on Em­
ployment Selection Procedures and that all validation 
studies be performed by means of empirical, criterion- 
related validation techniques insofar as feasible. It 
also required that the proposed selection procedure

1 Although the coverage of Title VII was enlarged in 1972 by the 
amendment of 42 TT.S.C. § 2000e(a) to include governments, govern­
mental agencies and political subdivisions, this action was brought under 
42 U.S.C. $$ 1981, 1983.

2 Equal Employment Opportunity Commission.



Opinion of Court of Appeals 25a

be submitted to the plaintiffs for review and to the 
court for approval prior to its adoption.

3. It authorized defendants to request the court’s 
permission for the making of interim appointments, 
with the provision that members of the plaintiff class 
receive at least one out of every four such promotions 
until the combined percentage of Black and Hispanic 
sergeants was equal to the combined percentage of 
Black and Hispanic correction officers.

4. It required that, following the development and 
court approval of revised selection procedures, de­
fendants continue to promote at least one Black or 
Hispanic employee for each three white employees pro­
moted until the combined percentage of Black and 
Hispanic sergeants was equal to the combined per­
centage of Black and Hispanic correction officers.

5. It awarded attorney’s fees to plaintiffs as part 
of their costs, retaining jurisdiction in the court to 
determine the amount thereof.

Defendants have appealed from this order, contending 
primarily that examination 34-944 was job-related and 
therefore not unconstitutionally discriminatory; that the 
court erred in requiring future examinations be criterion- 
validated ; that the imposition of promotion quotas was un­
justified and constituted reverse discrimination; and that 
the award of attorney’s fees was improper.

By order to show cause dated April 23, 1974, Albert M. 
Ribeiro and Henry L. Coons, correction officers who had 
taken and passed examination 34-944, sought leave to 
intervene as parties defendant on behalf of themselves and 
a class of similarly situated correction officers, alleging 
that they were indispensable parties, since the relief sought



26a Opinion of Court of Appeals

by plaintiffs would deprive them of their personal and 
property rights without due process of law. This motion 
was granted, with the proviso that intervenors could not 
litigate any matters which they might have litigated had 
they been parties from the outset. Intervention was also 
limited to the petitioners as individuals and not as repre­
sentatives of a class.

Intervenors also appeal from the final order and decree, 
urging as additional error that they should have been 
joined at the outset as indispensable parties. Since this 
latter contention involves the litigation at its inception, 
we will address ourselves to it first.

D is m is s a l  f o r  Non-J o in d e r

Intervenors’ claim of indispensability is grounded upon 
the provisions of the New York Civil Service Law. The 
office of correction sergeant is in the competitive class 
under such law.3 Article 5, Section 6, of the New York 
Constitution requires that appointments and promotions 
in the Civil Service “ shall be made according to merit and 
fitness to be ascertained, as far as practicable, by examina­
tion which, as far as practicable, shall be competitive” .

The Civil Service Law, following the mandate of the 
Constitution, requires the taking of competitive examina­
tions and the appointment and promotion to covered posi­
tions from eligible lists promulgated from the results of 
such examinations.4 Appointment or promotion is gen­
erally required to be made from one of the three persons 
standing highest on the eligible list,5 When there is no 
appropriate eligible list available, provisional appoint-

3 N. Y. Civil Service Law $ 44 (McKinney 1972).

N. Y. Civil Service Law §§ 52, 61 (McKinney 1972).

N. Y. Civil Service Law § 61 (McKinney 1972).

4



Opinion of Court of Appeals 27a

merits or promotions are authorized, pending the creation 
of a new list;6 and provisional appointees secure certain 
benefits which may be applied against future permanent 
appointments.7

The eligible list from the examination preceding 34-944 
became exhausted in the Spring of 1972, and intervenors, 
together with some members of plaintiff class, received 
provisional appointments to correction sergeant. Inter­
venors were among the ninety persons who had passing- 
scores on examination 34-944, and it was expected that all 
ninety would receive permanent appointments as sergeant 
Such appointments were prohibited, initially by the District 
Court’s temporary restraining order and finally by the or­
der and decree appealed from.

That the intervenors were adversely affected by such 
orders can hardly be gainsaid.8 However, this in itself 
is not determinative of their right to be joined as in­
dispensable parties. When litigation seeks the vindication 
of a public right, third persons who may be adversely 
affected by a decision favorable to the plaintiff do not 
thereby become indispensable parties.9

It may be that because of the “ reverse discrimination” 
aspects of this ease which will be discussed hereafter, in­
tervention with the right to participate in the trial would 
have been appropriate if timely request therefor was

6 X. Y. Civil Service Law § 65 (McKinney 1972).

7 N. Y. Civil Service Law 4 52 (McKinney 1972).

8 Castro v. Beecher, 459 F.2d 725, 736 (1st Cir. 1972).

9 National Licorice Co. v. NLRB, 309 TT.S. 350, 366 (1940); National
Resources Defense Council, Inc. v. Tennessee Valley Authority, 340 F. 
Supp. 400 (S.D.N.Y. 1971), rev’cl on other grounds, 459 F.2d 255 (2d 
Cir. 1972); Sansom Committee v. Lynn, 366 F. Supp. 1271 (E.1D. Pa. 
1973).



28a Opinion of Court of Appeals

made.10 11 However, that question is not before us. We hold 
that intervenors’ argument that the complaint should have 
been dismissed because they were not joined as indispens­
able parties could not be made for the first time one year 
after the trial had been completed. At that late date, the 
test of “ equity and good conscience” foreclosed any such 
rights which intervenors might possibly have had.31

That intervenors were aware of the litigation at its 
inception was clearly shown by the fact that the District 
Court’s preliminary injunction prohibited their appoint­
ments. The orderly processes, of justice do not permit that, 
with such knowledge, they may stand idly by until after 
an adverse decision is rendered.12

T h e  C o n stitu tio n ality  of t h e  E xam ination

Proof in employment discrimination cases proceeds from 
effect to cause. Plaintiffs establish the racially disparate 
consequences of defendants’ employment practices, and 
defendants must then justify such consequences on con­
stitutionally acceptable grounds.13

Plaintiffs herein contend that examination 34-944 had a 
disproportionate impact upon minority correction officers, 
and that defendants must therefore establish that the sub­
ject matter of the test bore a meaningful relationship to 
the duties of the office for which the test was given, i.e., 
that it was “ job-related” .14

10 See, e.g., Bridgeport Guardians, Inc. v. Bridgeport Civil Service 
Comm’n, 482 P.2d 1333 (2d Cir. 1973).

11 Provident Tradesmens Bank #  Trust Co. v. Patterson, 390 LT.S. 102 
(1968).

12 Bios v. Steamjitters Local 638,------ F .2d------- (2d Cir. June 24, 1975),
Slip op. 4351, 4358 n.3.

13 Griggs v. Duke Power Co., 401 U.S. 424 (1971).
14 Bridgeport Guardians, Inc. v. Bridgeport Civil Service Comm’n, 482 

F.2d 1333 (2d Cir. 1973); Vulcan Society of the New York City Fire 
Dep’t, Inc. v. Civil Service Comm’ n, 490 F.2d 387 (2d Cir. 1973).



Opinion of Court of Appeals 29a

The figures relied upon by plaintiffs are recited above; 
30.8% of the Whites who took examination 34-944 passed, 
as contrasted with 7.7% of the Blacks and 12.5% of the 
Hispanics. Defendants, while not disputing the accuracy 
of these figures, contend that most of the racial disparity 
occurred at Ossining Prison which employs the largest 
group of minority correction officers and urge that any 
attack upon the examination should be limited to the em­
ployees at that institution. Defendants say that either 
there was no disparity at all at the other correction facili­
ties or else that so few officers were tested at such facilities 
that no meaningful conclusions could be reached from the 
test results.

This argument completely overlooks the identity of job 
classifications in the State’s penal institutions, the State­
wide scope of examination coverage, and the mobility of 
employees throughout the correctional system. It also 
ignores the fact that the examination grades for minorities 
were uniformly lower at all of the State’s facilities.

The District Court’s refusal to fractionalize the exam­
ination by varying its application among the correctional 
facilities was therefore not clearly erroneous.

The District Court was likewise not convinced by defen­
dants’ argument that the results of the five sub-tests com­
prising examination 34-944 did not show a consistent racial 
disparity, particularly when broken down among the dif­
ferent correctional facilities. Since passing grades and 
promotion were dependent upon the cumulative results of 
the five sub-tests, we too see little relevance in this proof 
on the issue of whether or not the examination as a whole 
had an unconstitutional discriminatory impact.15

Vulcan Society of the New YorTc City Fire Dep’ t, Inc. v. Civil Service 
Comm’n, 360 F. Supp. 1265, 1272 (S.D.N.Y. 1973), aff’d, 490 F.2d 387 
(2d Cir. 1973). See note 13, supra.

15



30a Opinion of Court of Appeals

In Vulcan Society of the New York City Fire Depart­
ment, Inc. v. Civil Service Commission, 490 F.2d 387 (2d 
Cir. 1973), we stated that racially disproportionate impact 
need not be proven with complete mathematical certainty. 
Within the broad outlines of that rule, the District Court’s 
holding that examination 34-944 had such disproportionate 
impact was not clearly erroneous. Defendants were there­
fore properly put to their proof to establish the job-relat- 
edness of the examination under attack.

The District Judge’s decision that defendants had not 
met the heavy burden thus imposed upon them was based 
largely upon his conclusion that the procedures employed 
in constructing examination 34-944 did not conform to pro­
fessionally acceptable and legally required standards. Spe­
cifically, the District Judge held that the defendants had 
not performed an adequate job analysis and had too rou­
tinely followed the pattern of past practices. This approach 
was approved by us in Vulcan, supra, where we said that 
it was unnecessary for the trial judge to bury himself in a 
question-by-question analysis of the test.

Of course, the trial judge could not confine himself to 
an examination of the process of preparation while com­
pletely ignoring the merit of the result. Howrever, since 
insufficient spadework usually results in a poor garden, 
evidence of unsatisfactory preparation imposed upon the 
defendants a heavier burden of demonstrating that they 
had created a satisfactory job-related examination.

The District Judge, without going into great detail, 
pointed out that certain items on the test involved guide­
lines that a correction sergeant would have no need to 
apply. He showed that the five sub-tests and their com­
ponent parts were not weighted to reflect the relative im­
portance of the job-related attributes being tested. He 
considered the expert testimony submitted by both sides



Opinion of Court of Appeals 31a

and stressed the fact that neither expert would characterize 
the examination as job-related.

We hold that Judge Lasker’s finding that defendants 
had failed to carry their heavy burden of establishing the 
job-relatedness of examination 34-944 was not clearly er­
roneous, and we move to the question of the relief granted.

N e w  T e s t in g  P roceotjbes

Having declared examination 34-944 unconstitutionally 
invalid, the District Judge ordered the development of a 
“ lawful Eon-discriminatory selection procedure” . He also 
required that such procedure be validated in accordance 
with the E.E.O.C. Guidelines on Employment Selection 
Procedures16 and that such validations be performed by 
means of empirical criterion-related validation techniques 
insofar as feasible.

In Bridgeport Guardians, Inc. v. Bridgeport Civil Ser­
vice Commission, 482 F.2d 1333 (2d Cir. 1973), and again 
in Vulcan, supra, we described the several techniques for 
proving the validity of testing procedures which are pro­
fessionally designated “ empirical” , “construct” and “con­
tent” , and we see no need for further description in this 
opinion. In Vulcan, we went a step further. We said:

“ The Fourteenth Amendment no more enacted a par­
ticular theory of psychological testing than it did Mr. 
Herbert Spencer’s Social Statics. Experience teaches 
that the preferred method of today may be the re­
jected one of tomorrow. What is required is simply 
that an examination must be ‘shown to bear a demon­
strable relationship to successful performance of the 
jobs for which it was used.’ ”

16 29 C.F.K. §§ 1607.1 et seq. (1970).



32a Opinion of Court of Appeals

However, since our decision in Vulcan, the Supreme 
Court in Albemarle Paper Co. v. Moody, 43 U.S.L.W. 
4880 (U.S. June 25, 1975), has strongly endorsed the pro­
cedures outlined in the E.E.O.C. Guidelines which provide 
that evidence of content or construct validity may be ap­
propriate “where criterion-related validity is not feasible” .17 
While Albemarle is distinguishable from the instant case 
in that it is a Title VII action involving a private indus­
trial employer, we think the District Court’s similar pref­
erence for the E.E.O.C. Guidelines was not clearly er­
roneous.18

VTe do not construe the order of the District Court as 
going beyond the provisions of the Guidelines by requiring 
empirical validation regardless of feasibility. It seems clear 
that the problems involved in civil service testing are sub­
stantially different from those which confront a private 
employer who tests on a limited and non-competitive basis. 
These problems will, we are sure, be considered by the 
District Court should a dispute hereafter arise as to 
whether appellants’ testing procedures have been empiric­
ally validated “ insofar as feasible” .

The District Court ordered that the new test prepared 
by defendants be submitted to the plaintiffs for review. 
We find this requirement difficult to comprehend. Pre­
sumably, this examination will be taken by members of 
the plaintiff class in competition with others. Permitting 
advance review by plaintiffs would place all others at a 
competitive disadvantage.19 If the District Judge is seek­
ing professional assistance from plaintiffs’ expert, his

17 29 C.F.R. § 1607.5(a) (1970).

18 Cf. Douglas v. Hampton, 512 F.2d 976 (D.C. Cir. 1975).

19 Cf. Matter of Fitzgerald v. Conway, 275 App. Div. 205 (3d Dep’t 
1949) ; Matter of Belmont v. Kaplan, 16 A.D. aff’d 13 N.Y. 2d 998 
(1963) (mem).



Opinion of Court of Appeals 33a

order should so provide; and proper steps should be taken 
to insure confidentiality.

T h e  I m p o s it io n  o f  Q u o ta s

One of the most controversial areas in our continuing 
search for equal employment opportunity is the use of 
judicially imposed employment quotas.20 The replacement 
of individual rights and opportunities by a system of sta­
tistical classifications based on race is repugnant to the 
basic concepts of a democratic society.

The most ardent supporters of quotas as a weapon in 
the fight against discrimination have recognized their un­
democratic inequities and conceded that their use should 
be limited.21 Commentators merely echo the judiciary in 
their disapproval of the “discrimination inherent in a 
quota system.22

Our court has approached the use of quotas in a lim­
ited and “gingerly” fashion. In United States v. Wood 
Lathers, Local 46, 471 F.2d 408 (2d Cir.) cert, denied, 412 
U.S. 939 (1973), we approved an order based upon a con­
sent decree which directed a union to issue a quota of 
work permits to minority workers. In Bridgeport, supra, 
we approved the use of hiring quotas for the Bridgeport 
Police Department. In Vulcan, supra, we affirmed an in­
terim order for quota hiring of New York City firemen

20 Note, Constitutionality of Remedial Minority Preferences in Employ­
ment, 56 Minn. L. Rev. 842 (1972). See, e.g., Morrow v. Crisler, 491 
P.2d 1053 (5th Cir. 1974), cert, denied 417 TJ.S. 965 (1974).

21 Blumenrosen, Quotas, Common Sense, and Law in Labor Relations: 
Three Dimensions of Equal Opportunity, 27 Rutgers L. Rev. 675 (1974).

22 Hughes v. Superior Court, 339 U.S. 460, 467 (1950); see also dissent­
ing opinion of Mr. Justice Douglas in Be Funis v. Odegaard, 416 U.S. 
312 (1974), dissenting opinion of Judge Hays in Bios v. Steam-fitters 
Local 638, 501 F.2d 622 (2d Cir. 1974), and concurring opinion of 
Judge Feinberg in Patterson v. Newspaper Deliverers Union, 514 F.2d 
767 (2d Cir. 1975).



34a Opinion of Court of Appeals

“ only because no other method was available for afford­
ing appropriate relief without impairing essential city 
services” . 490 F.2d at 398. Rios v. Enterprise Association 
Steam fitters Local 638, 501 F.2d 622 (2d Cir. 1974) im­
posed a specific racial membership goal upon a union. 
In Patterson v. Newspaper Delivers Union, 514 F.2d 767 
(2d Cir. 1975), we approved a settlement which also in­
volved union membership with an imposed quota system 
for the union’s group classification system. In each of 
these cases, there was a clear-cut pattern of long-continued 
and egregious racial discrimination. In none of them was 
there a showing of identifiable reverse discrimination. In 
the instant case, there is insufficient proof of the former 
and substantial evidence of the latter.

This is a class action brought on behalf of one hundred 
seventeen persons who took and failed examination 39-944 
or who passed but ranked too low to be appointed. The 
class was so designated by the District Court which found 
that the question of whether examination 34-944 discrim­
inated against minority candidates was the question of 
law common to the class. The existence of such common 
question of law or fact was, of course, a prerequisite to 
the maintenance of a class action.28

At the outset of the trial, the District Judge indicated 
his desire to decide the case on the basis of 34-944 alone, 
and it is clear that the trial proceeded substantially on 
that basis. Some incomplete, and therefore unreliable, 
data were submitted with regard to the previous exam­
ination given in 1970, bat plaintiffs concede, as they must, 
that there are no data in the record with respect to pre- 
1970 tests. There was proof of some present racial im­
balance among supervisory correction personnel, but this 
had little probative value without statistical background *

23 Fed. E. Civ. Pro. 23(a).



Opinion of Court of Appeals 35a

data concerning the eligible correction officer labor pool 
from which minority supervisors could have been drawn. 
The testimony is undisputed that the duties of a correc­
tion sergeant have changed substantially over the years 
so that no retroactive inference concerning job-relatedness 
could be made as a result of examination 34-944 which 
was evaluated in relation to the job as it then existed. 
Finally, although this is not dispositive of the matter, 
there is no claim that defendants at any time acted with­
out the utmost good faith or with intention to discriminate.

A comparison of respondent’s proof with that considered 
by then District Judge Mansfield in Chance v. Board of 
Examiners, 330 F. Supp. 203 (S.D.N.Y. 1971), aff’d, 458 
F.2d 1167 (2d Cir. 1972) is illuminating. Judge Mans­
field’s opinion shows that he reviewed the pass-fail statis­
tics from fifty supervisory examinations taken by six thou­
sand, two hundred one candidates over a seven-year period 
to ascertain the relevant racial and ethnic groupings. In 
the instant case, the litigation centered on one. As Dis­
trict Judge Weinfeld pointed out in the lower court opinion 
in Vulcan, 360 F. Supp. 1265, 1271 (S.D.N.Y. 1973), the 
consequence of relying upon one examination is “ that any 
finding of discrimination and the relief to be granted will 
necessarily be restricted to the scope of the proof.”

In view of the limited scope of the issues framed in this 
class action and the paucity of the proof concerning past 
discrimination, we feel that the imposition of. permanent 
quotas to eradicate the effects of past discriminatory prac­
tices is unwarranted.24

Moreover, once defendants have prepared a court-ap­
proved job-related civil service examination, a deliberate 
misuse of the resultant eligibility list on racial grounds

24 See Chance v. Board of Examiners, 458 F.2d 1167, 1179 (2d Cir. 
1972).



36a Opinion of Court of Appeals

would seem to be violative of both the New York and the 
Federal Constitutions.

Civil service laws, like civil rights laws, were enacted to 
ameliorate a social evil. In the former case, it was the 
spoils system; in the latter, discrimination. To the citizens 
of the State of New York, civil service was sufficiently im­
portant that they mandated its use by their constitution.25 
In so doing, they “ declared in unmistakeable terms that 
merit, ascertained as therein provided, shall govern ap­
pointments and promotions in the public service” ,26 27 and 
that merit must be ascertained as far as practicable by 
competitive examination.21

The Congress recognized the social benefits inherent in 
a system of promotion based upon merit when it provided 
that “ it shall not be an unlawful employment practice for 
an employer to apply different standards of compensation, 
or different terms, conditions, or privileges of employment 
pursuant to a bona fide merit system” .28 As pointed out 
by the Court in Griggs, supra, Congress did not intend “ to 
guarantee a job to every person regardless of qualifica­
tions” .29

The attack upon the content of civil service examina­
tions, illustrated by Vulcan and Bridgeport, merely heralds 
future confrontations between the advocates of equal em­
ployment opportunities and the supporters of our civil 
service system. In the offing, surely, is an attack upon the 
provisions of § 61 of the New York Civil Service Law which 
requires that appointment from an eligible list be made

25 N.T. Const, art. V, §6 '(1965).

26 Palmer v. Board of Education, 276 N.T. 222, 226 (1937).

27 Matter of Fink v. Finegan, 270 N.T. 356, 361 (1936).

28 42 U.S.C. $ 2000e-2(h).

29 401 TJ.S. 424, at 430 (1971).



Opinion of Court of Appeals 37a

from one of the three persons standing highest on the list. 
It seems to us that the judiciary should act with great 
reluctance in undermining traditional civil service con­
cepts; and, if a decision is to be made to subordinate the 
social purposes of civil service to those of equal employ­
ment opportunity, that decision should be made by the 
people speaking through their legislators.

The courts of New York hold that one whose efforts 
secure for him a position upon a civil service promotion 
list “ is entitled to consideration and protection in such 
position” .30 Whether this governmental benefit be termed 
a right or a privilege is of no significance; constitutional 
rights do not turn upon such issue.31

So long as civil service remains the constitutionally man­
dated route to public employment in the State of New 
York, no one should be “ bumped” from a preferred posi­
tion on the eligibility list solely because of his race.32 Un­
less the Fourteenth Amendment is applicable only to 
Blacks, this is constitutionally forbidden reverse discrim­
ination.33

The smaller the group participating in a civil service 
examination, the more pointed the problem becomes.. We 
can no longer speak in general terms of statistics and class 
groupings. We must address ourselves to individual rights.

30 Barlow V. Craig, 210 App. Div. 716, 719 (1st Dept. 1924); Barlow 
v. Berry, 245 N.Y. 500, 503 (1927).

31 Sugarman v. Dougall, 413 U.S. 634, 644 (1973).

32 Note Judge Feinberg's concern about "bumping” expressed in U.S. v. 
Bethlehem Steel Corp., 446 F.2d 652 (2d Cir. 1971).

33 "The Constitution voices its disapproval whenever economic discrim­
ination is applied under authority of law against any race, creed or 
color.” Steele v. Louisville <$• Nashville B.B. Co., 323 U.S. 192, 209 
(1944) (concurring opinion of Mr. Justice Murphy); Commonwealth v. 
Glickman, 370 F. Supp. 724, 736 (W.D. Pa. 1974).



38a Opinion of Court of Appeals

A hiring quota deals with the public at large, none of 
whose members can be identified individually in advance. 
A quota placed upon a small number of readily identifi­
able candidates for promotion is an entirely different 
matter. Both these men and the court know in advance 
that regardless of their qualifications and standing in a 
competitive examination, some of them may be by-passed 
for advancement solely because they are white. As to such 
a situation, the following comments of Judge Mulligan in 
Bridgeport Guardians, Inc. v. Bridgeport Civil Service 
Commission, supra, are most pertinent:

“We are discussing some 117 positions with time-in­
grade requirements mandating three years’ service as 
patrolman, sergeant and lieutenant postponing promo­
tion to captain for a minimum of nine years. While 
this factor will delay those of the minority groups who 
will become patrolmen, the imposition of quotas will 
obviously discriminate against those Whites who have 
embarked upon a police career with the expectation of 
advancement only to be now thwarted because of their 
color alone. The impact of the quota upon these men 
would be harsh and can only exacerbate rather than 
diminish racial attitudes.” 34

We turn now to the remedial relief ordered by the Dis­
trict Court, which is both interim and final in nature. As 
interim relief, the court ordered that if defendants wished 
to make any appointments pending the development of a 
new selection procedure, they might apply to the court 
for permission to do so. The court directed that at least 
one out of four of the persons so promoted must be mem­
bers of the plaintiff class. Since this portion of the decree 
is interim in nature, does not mandate the making of any

34 482 F.2d at 1341.



Opinion of Court of Appeals 39a

promotions, does not disregard an existing civil service 
eligibility list, and since its benefits are limited to the mem­
bers of the plaintiff class, we affirm it as not being an 
abuse of the District Court’s discretion.

Insofar as the order appealed from imposes permanent 
quota restrictions upon those who seek advancement by 
means of a court-approved job-related civil service exam­
ination, we reverse. The benefits of such order are not 
limited to the plaintiff class. Its quota requirements are 
based upon a shifting and rapidly expanding racial base, 
wholly unrelated to the consequences of any alleged past 
discrimination. It provides for appointment according to 
race without regard to the individual applicant’s standing 
on a job-related examination and, indeed, without regard 
to whether the benefitted Black or Hispanic received a 
passing grade. It completely ignores the statutory re­
quirements and constitutional purpose of the New York 
Civil Service Law and constitutes court-imposed reverse 
discrimination without any exceptional or compelling gov­
ernmental purpose.35

P r o v is io n a l  A p p o in t m e n t s

At the outset of the litigation, the District Court issued 
a temporary restraining order prohibiting defendants from 
terminating provisional appointments which had been made 
to members of plaintiff class. The terms of this order were 
carried over into Judge Lasker’s opinion but were amended 
to state that such appointments might not be terminated 
solely because of plaintiffs’ failure to pass examination 
34-944. However, they were not incorporated into the final 
order and decree, and we cannot be sure that the District 
Court intended them to survive.

35 See Matter of Board of Education v. Nyquist, 31 N.Y. 2d 468, 475 
(1973).



40a Opinion of Court of Appeals

Appellants argue convincingly that under § 65 of the 
New York Civil Service Law provisional appointments 
are made only when there is no appropriate eligible list 
available for filling a vacancy and that therefore the mak­
ing of such appointments bears no relationship to the con­
stitutionality of examination 34-944. Appellants also argue 
that such order was discriminatory in that it applied only 
to minorities who failed the examination. We need not 
reach any of the foregoing questions, however, since, as 
we read § 65, provisional appointments are made only for 
periods of up to nine months and then terminate auto­
matically unless a new provisional appointment is made. 
We do not read Judge Lasker’s opinion as prohibiting 
termination for any reason unrelated to the failure to pass 
the examination or requiring the making of a new ap­
pointment at the end of the nine month provisional period.

A tto rn ey’s F ees

The District Court’s award of attorney’s fees cannot 
stand.

In Stolberg v. Board of Trustees, 474 F.2d 485 (2d Cir. 
1973), we laid down the test of “ unreasonable, obdurate 
obstinancy” on the part of the defendant as the determin­
ing factor in the award of counsel fees.36 There is no claim 
of any such attitude on the part of defendants-appellants. 
Accordingly, we would have been reluctant to approve the 
awarding of counsel fees herein. In any event the matter 
has now been decided for us by the Supreme Court in 
Alyeska Pipeline Service Co. v. Wilderness Society, 43 
U.S. L.W. 4561 (U S. May 12, 1975).37

36 See also, Bridgeport Guardians, Inc. v. Bridgeport Civil Service Com­
mission, 497 F.2d 1112 (2d Cir. 1974).

37 Although an attorney may find lesser professional challenge in a 
Title VII proceeding than in an action under §§ 1981 and 1983, there 
are a number of reasons why the former procedure is preferable. The 
possibility of an award for attorney’s fees is now one of them.



Opinion of Court of Appeals 41a

D is p o s it io n

1. We deny intervenors’ application to dismiss the 
complaint.

2. We affirm the District Court’s order insofar as it 
invalidates examination 34-944 and directs the prepara­
tion of a new non-discriminatory examination procedure.

3. We affirm so much of the District Court’s order as 
requires the new testing procedures to be validated by 
means of empirical criterion-related validation techniques 
if feasible.

4. We reverse so much of the District Court’s order as 
requires the new testing procedure to be submitted to 
plaintiffs for review.

5. We affirm that part of the District Court’s order 
which provides a procedure for interim appointments if 
desired by defendant.

6. We reverse so much of the District Court’s order as 
provides for promotion by quota following the establish­
ment of new civil service testing procedures.

7. We reverse that part of the District Court’s order 
which includes counsel fees as part of plaintiff’s costs.

8. We remand to the District Court for such further 
orders as are required by and consistent with this opinion.



42a Order Denying Rehearing

UNITED STATES COURT OF APPEALS

F or t h e  S econd C ir cu it

At a stated term of the United States Court of Appeals, 
in and for the Second Circuit, held at the United States 
Courthouse, in the City of New York, on the 10th day of 
December, one thousand nine hundred and seventy-five.

Calendar Nos.—-445, 499

74-2116
74-2258

E dward L. K ir k la n d , etc.,

Plaintiffs-Appellees,
—against—

T h e  N ew  Y ork S tate D epartm ent  
of C orrectional S er vices, etc.,

Defendants-Appellants.

A  petition for rehearing containing a suggestion that 
the action be reheard in banc having been filed herein by 
counsel for the plaintiffs-appellees, and a poll of the judges 
in regular active service having been taken, and Circuit 
Judges Mulligan, Timbers, Gurfein, VanGraafeiland, and 
Meskill having voted against en banc reconsideration, and 
Chief Judge Kaufman and Circuit Judges Mansfield and 
Oakes having voted in favor thereof, and an opinion by 
Circuit Judge Mansfield dissenting from denial of en banc 
reconsideration, in which Chief Judge Kaufman and Circuit



Order Denying Rehearing 43a

Judge Oakes join, and an opinion by Chief Judge Kaufman 
dissenting from denial of en bane reconsideration, having 
been filed,

Upon consideration thereof, it is
Ordered that said request be and it hereby is denied.
Circuit Judge Feinberg took no part in consideration 

of the question whether to grant rehearing en banc.

/ s /  I bvin g  R. K aufm an  
I bvin g  R. K aufm an  
Chief Judge

Ma n sfield , Circuit Judge (Dissenting):

(With Whom Chief Judge Kaufman and Judge Oakes 
concur)

I dissent from the denial of an en banc hearing in this 
appeal because the decision potentially places us in con­
flict with previous decisions in this and other circuits and 
creates uncertainty regarding this circuit’s law on a ques­
tion of exceptional importance that has been and will be 
frequently encountered, i.e., whether, and under what cir­
cumstances, relief in the nature of a racial goal or quota 
may be imposed to remedy injury caused to a minority 
group by use of racially discriminatory methods to hire 
or promote persons from a pool of potentially eligible can­
didates. In my view this question should be resolved now 
for the guidance of district court judges, members of the 
bar and litigants in the Second Circuit, rather than leaving 
them in a state of confusion regarding the issue.

Until the decision in this case, while adopting a cau­
tionary stance and acting “ somewhat gingerly,” we none­
theless repeatedly have held that where racially discrim­



44a Order Denying Rehearing

inatory methods are used to hire or promote persons in 
violation of the civil rights of others, the district court 
should have the discretionary power to remedy the effects 
of the unlawful conduct and compensate the injured class 
by requiring the hiring or appointment of a higher per­
centage of minority applicants. United States v. Wood, 
Wire & Metal Lathers, Local 46, 471 F.2d 408 (2d Cir.), 
cert, denied, 412 U.S. 939 (1973) ; Bridgeport Guardians, 
Inc. v. Bridgeport Civil Service Commission, 482 F.2d 
1333 (2d Cir. 1973); Vulcan Society of the New York City 
Fire Dept. v. Civil Service Commission, 490 F.2d 387 (2d 
Cir. 1973); Rios v. Enterprise Association Steamfitters, 
Local 638, 501 F„2d 622 (2d Cir. 1974); Patterson v. News­
paper & Mail Deliverers Union, 514 F.2d 767 (2d Cir, 
1975).

The authority of a court of equity to issue such relief 
was recognized by the Supreme Court in Louisiana v. 
United States, 380 U.S. 145 (1965), where Justice Black, 
speaking for a unanimous Court, stated:

“We bear in mind that the court has not merely the 
power but the duty to render a decree which will so 
far as possible eliminate the discriminatory effects 
of the past as well as bar like discrimination in the 
future.” 380 U.S. at 154.

This was followed by the Court’s recognition in Swann v. 
Charlotte-Mecklenburg Board of Education, 402 U.S. 1 
(1971), that mathematical ratios might serve as a “useful 
starting point” in shaping a remedy for past constitu­
tional violations. 402 U.S. at 25. Following this lead we, 
in United States v. Wood, Wire <& Metal Lathers, Local 46, 
471 F.2d 408 (2d Cir. 1973), approved an order directing 
a local union to take affirmative action to remedy the effects 
of past discriminatory practices in the issuance of work



Order Denying Rehearing 45a

pei'mits by issuing 100 permits immediately to minority 
applicants, pointing out that

“ [Wjhile quotas merely to attain racial balance are 
forbidden, quotas to correct past discriminatory prac­
tices are not. See Carter v. Gallagher, 452 F.2d 315, 
329 (8th Cir. 1971) (en banc), cert, denied, 406 U.S. 
950, 92 S.Ct. 2045, 32 L.Ed.2d 338 (1972); Contractors 
Association of Eastern Pennsylvania v. Secretary of 
Labor, 442 F.2d 159, 173 n.47 (3rd Cir.), cert, denied, 
404 U.S. 854, 92 S.Ct. 98, 30 L.Ed.2d 95 (1971); United 
States v. Ironworkers, Local 86, 443 F.2d 544, 553 (9th 
Cir.), cert, denied, 404 U.S. 984, 92 S.Ct. 447, 30 L.Ed. 
2d 367 (1971); United States v. International Brother­
hood of Electrical Workers, No. 38, 428 F.2d 144, 149 
(6th Cir.), cert, denied, 400 U.S. 943, 91 S.Ct. 245, 27 
L.Ed.2d 248 (1970); Local 53 of International Associa­
tion of Heat & Frost I. & A. Workers v. Vogler, 407 
F.2d 1047, 1052 (5th Cir. 1969); United States v. Cen­
tral Motor Lines, Inc., 325 F. Supp. 478 (W.D.N.C. 
1970).” 471 F.2d at 413.

There followed our decision in Bridgeport Guardians, 
Inc. v. Bridgeport Civil Service Commission, 482 F.2d 1333 
(2d Cir. 1973), wherein we upheld the use of a hiring quota 
to remedy the discriminatory effect of non-job-related ex­
aminations administered pursuant to the Civil Service pro­
visions of the Bridgeport City Charter for the position of 
policeman, stating:

“We commence with the basic tenet that the district 
court, sitting as a court of equity, has wide power and 
discretion to fashion its decree not only to prohibit 
present discrimination but to eradicate the effects of 
past discriminatory practices. Louisiana v. United 
States, 380 U.S. 145, 154, 85 S.Ct. 517, 13 L.Ed.2d 709



46a Order Denying Rehearing

(1965); United States v. Wood, Wire & Metal Lathers, 
Local 46, 471 F.2d 408, 413 (2d Cir.), cert, denied, 412 
U.S. 939, 93 S.Ct, 2773, 37 L.Ed.2d 398 (1973). Al­
though most of the cases dealing with the issue of 
past discriminatory practices arose under Title VII 
of the Civil Rights Act of 1964, Section 1983 cases 
have also granted relief by sanctioning quotas aimed 
at curing past discrimination. See, e.g., Pennsylvania 
v. O’Neill, 473 F.2d 1029 (3d Cir. 1973) (en banc); 
Castro v. Beecher, supra, 459 F.2d 725; Carter v. Gal­
lagher, 452 F.2d 315, 327-332 (8th Cir. 1971) (en banc), 
cert, denied, 406 U.S. 950, 92 S.Ct. 2045, 32 L.Ed.2d 
338 (1972).” 482 F.2d at 1340.

Again, in Vulcan Society of the New York City Fire 
Dept. v. Civil Service Commission, 490 F.2d 387 (2d Cir. 
1973), we approved the use of an interim quota to redress 
the discriminatory effect of non-job-related Civil Service 
examinations for the position of fireman and ordered the 
City to appoint one minority candidate for each three non- 
minority candidates appointed from a list of eligibles, 
stating:

“In arriving at a ratio midway between what would 
have been appropriate on the basis of correcting the 
inequities of Exam 0159 alone and the plaintiffs’ de­
mand for much more extensive relief, the judge took 
appropriate account both of the resentment of non­
minority individuals against quotas of any sort and 
of the need of getting started to redress past wrongs. 
See Louisiana v. United States, 380 U.S. 145, 154, 85
S.Ct. 817, 13 L.Ed.2d 709 (1965); United States v. 
Wood, Wire & Metal Lathers, Local 46, 471 F.2d 408, 
413 (2 Cir.), cert, denied, 412 U.S. 939, 93 S. Ct. 2773, 
37 L.Ed.2d 398 (1973). As the Supreme Court has 
stated, ‘The framing of decrees should take place in



Order Denying Rehearing 47a

the District rather than in Appellate Courts.’ Inter­
national Salt Co. v. United States, 332 U.S. 392, 400, 
68 S.Ct. 12, 17, 92 L.Ed. 20 (1947); Chance, supra, 
458 F.2d at 1178.” 490 F.2d at 399.

Finally, in Patterson v. Newspaper & Mail Deliverers 
Union, 514 F.2d 767 (2d Cir. 1975), we approved an affir­
mative-action promotion program which would achieve a 
quota by advancing minority News deliverers faster than 
non-minority workers in order to compensate the minority 
group for injury suffered under the previous discrimina­
tory promotion program. The effect was to temporarily 
restrain the advancement of White workers who would have 
been promoted under a program of strict seniority.

The United States Supreme Court has not yet had the 
opportunity to offer clear guidance on the appropriateness 
or parameters of remedies or programs granting a prefer­
ence to groups that previously were subjected to discrim­
inatory treatment. See DeFunis v. Odegaard, 416 U.S. 312 
(1974). But seven other circuits, recognizing that “ [t]he 
framing of decrees should take place in the District rather 
than Appellate Courts,” International Salt Co. v. United 
States, 332 U.S. 392, 400 (1947), and that the district judge, 
who is better acquainted with the background and details 
of the case, should have broad discretionary authority to 
fashion appropriate relief, have upheld the authority of the 
district court, in the exercise of its broad powers as a court 
of equity, to establish goals or quotas for the purpose of 
remedying harm caused by past discriminatory conduct. 
See, e.g., Boston NAACP  v. Beecher, 504 F.2d 1017, 1026-27 
(1st Cir. 1974) (upholding hiring by ratios until percentage 
of minority fire fighters equals their percentage in popula­
tion) ; Castro v. Beecher, 459 F.2d 725, 737 (1st Cir. 1972) 
(Blacks and Spanish-surnamed police candidates who failed 
old, impermissible test but pass new validated one should



48a Order Denying Rehearing

be placed in priority pool to be selected by ratio of 1 :1, 
1 :2, or 1 :3 with respect to others as determined by district 
court); Pennsylvania v. O’Neill, 473 F.2d 1029 (3d Cir. 
1973) (en banc) (upholding by equally-divided vote power 
of district court to order Black-White hiring by ratio cor­
responding to Black overall population and number of 
Black applicants); NAACP v. Allen, 493 F.2d 614 (5th 
Cir. 1974) (upholding hiring of Black-White state troopers 
in 1:1 ratio until Blacks reach 25% of fo rce ); Morrow v. 
Crisler, 491 F.2d 1053, 1056 (5th Cir.) (en banc), cert, 
denied, 419 U.S. 895 (1974) (ordering district court to 
impose further affirmative relief to remedy discrimination 
in state police employment practices; may include 1 -.1 or 
1:2 Black-White hiring, the freezing of White hiring, or 
“any other form of affirmative hiring relief until the Patrol 
is effectively integrated” ) ; United States v. Local Union 
No. 212, 472 F.2d 634 (6th Cir. 1973) (upholding district 
court order mandating 11% Black membership in appren­
tice programs); United States v. International Bhd. of 
Elec. Wkrs., 428 F.2d 144 (6th Cir.), cert, denied, 400 U.S. 
943 (1970) (remanding to district court for consideration 
of appropriate affirmative relief); United States v. United 
Bhd. of Carpenters, 457 F.2d 210 (7th Cir.), cert, denied, 
409 U.S. 851 (1972) (remanding to district court for fash­
ioning appropriate affirmative relief); United States v. 
N.L. Industries, 479 F.2d 354, 377 (8th Cir. 1973) (court can 
order Black-White promotion in 1 :1 ratio until 15% of 
foremen are Black) ; Carter v. Gallagher, 452 F.2d 315, 331 
(8th Cir.) (enbanc), cert, denied, 406 U.S. 950 (1972) (dis­
trict court may order the hiring of firemen in 1:2 Black- 
White ratio until 20 Blacks hired); United States v. Iron­
workers Local 86, 443 F.2d 544, 553 (9th Cir.), cert, denied, 
404 U.S. 984 (1971) (district court can order immediate job 
referrals to previous discriminatees and require union



Order Denying Rehearing 49a

training program to select sufficient Black applicants to 
overcome past discrimination). But cf. Harper v. Kloster, 
486 F.2d 1134, 1136-37 (4th Cir. 1973) (upholding district 
court’s denial of quota relief).

Turning to the present case, the district court, in order 
to compensate minority correctional officers for the harm 
caused the minority group by the discriminatory state 
civil service promotional system, odered the defendants 
to promote minority correctional officers to the rank of 
sergeant on the basis of one minority for each three non­
minority appointments until the combined percentage of 
minority sergeants equalled that of the minority correc­
tional officers. Once this goal was satisfied, defendants, of 
course, would be entirely free to select sergeants solely 
through the application of a non-discriminatory, validated 
examination. In adopting this relief Judge Lasker exer­
cised the authority granted by our above-cited decisions. 
Yet despite the reasonableness of Judge Lasker’s decree, 
this court’s decision denies quota relief once a permissible 
test is created, seeking to distinguish our earlier decisions 
on the grounds (1) that there was insufficient proof of a 
“ clear-cut pattern of long-continued and egregious racial 
discrimination” and (2) that there was substantial evi­
dence that a quota would result in “ identifiable reverse dis­
crimination,” thereby violating the Constitutions of New 
York and the United States as well as New York’s Civil 
Service Law. With due respect, the first ground is not 
supported by the record before us and the second does 
not distinguish this case from all the previous instances 
where we have endorsed the use of hiring goals.

With respect to the nature and extent of past discrimi­
nation it is undisputed that the 1972 examination for pro­
motion from correctional officer to sergeant was unconsti­
tutionally discriminatory. If, by “ egregious racial discrim­



50a Order Denying Rehearing

ination” Judge Van Gra-afeiland means intentional or de­
liberate conduct, the law is settled that the existence of 
deliberate and intentional racial discrimination is not a 
condition precedent to the granting of quota relief. See 
Bridgeport Guardians, Inc., supra, where such relief was 
granted despite the fact that there was “no showing that 
the test [Civil Service test for appointment as policeman] 
was deliberately or intentionally discriminatory,” 482 F.2d 
at 1336, and Vulcan Society of the New York City Fire 
Dept., supra, where in granting quota relief, the court made 
clear that proof of non-job-relatedness of the examinations 
was sufficient to satisfy the requirement of invidiousness, 
thereby placing the burden of justification upon the City’s 
shoulders. 490 F.2d at 391 n.4. Although the defendants 
here did not maintain pass-fail data according to race or 
color for the examinations prior to 1972, there was ample 
evidence to support Judge Lasker’s finding of prior racial 
discrimination in the state’s promotional process. As of 
May 1, 1973, for instance, all 122 permanent sergeants 
were white. The pre-1972 examinations were prepared by 
the same process as the non-job-related 1972 examination, 
which did not meet constitutional standards, and resulted 
in the appointment of only two Blacks and no Hispanics to 
the rank of sergeant or above. Of 997 Whites and 46 
Blacks and Hispanics who took the examination for ser­
geant in 1970 and who continued to be employed by the 
defendants in 1973, 9.4% of the Whites and 0% of the 
non-Whites passed. Although 25 Black correctional offi­
cers employed at the Ossining Correctional Facility took 
the examination for sergeant in 1968 and 10 to 15 Blacks 
took the examination in 1965, none passed. Surely this 
proof, all pointing in the direction of past unlawful dis­
crimination against minority candidates, was at least suffi­
cient to shift the burden of justifying the earlier examina­



Order Denying Rehearing 51a

tions to the defendants, see Griggs v. Duke Power Co., 401 
U.S. 424 (1971); Vulcan Society, supra, 490 F.2d at 393; 
Boston Chapter of NAACP, supra, 504 F.2d at 1019. Yet, 
there is no indication that the defendants ever attempted 
to sustain this burden.

To reject the imposition of a minority quota as a com­
pensatory remedy on the ground that it would discrimi­
nate in reverse against eligible White candidates for pro­
motion ignores the district court’s duty as a court of 
equity to remedy past wrongs. It should be recognized 
that at a minimum the plaintiff class in this case included 
a definite, identifiable group of aggrieved non-White indi­
viduals—those already in the correctional system who, 
while previously qualified for advancement, nonetheless 
failed to be promoted due to the application of the dis­
criminatory test. Given the fact that the Whites who bene­
fited from the discriminatory system retain their promo­
tions, the aggrieved non-White members of this minority 
group would deserve quick promotion even under the most 
traditional notions of compensatory relief. The obvious 
problem is that, because discriminatory examinations were 
used, we are unable to identify those White correctional 
officers who were wrongfully promoted to sergeant and 
those Black correctional officers who under a non-diserim- 
inatory system would have been promoted. This problem, 
however, does not justify the court’s throwing up its hands 
and entirely rejecting a goal as a means of making whole 
the injured members of the minority group. The effect 
of such rejection, of course, is not only to deny some non-. 
White correctional officers the long overdue promotions to 
which they were entitled, but, by requiring them to com­
pete afresh with late-comers once a non-discriminatory 
test is devised, it postpones their promotions even further. 
Thus the court’s decision hardly promises to make whole 
the injured members of the minority group.



52a Order Denying Rehearing

Although the court justifies its action partly on the 
ground that Judge Lasker’s order permits appointment 
without regard to the individual applicant’s comparative 
standing on a job-related examination or even to his re­
ceiving a passing grade, this represents but one facet of 
the relief, which can easily be rectified by providing that 
once a valid test is available, the correctional authorities 
legitimately may decide to test these non-White officers 
anew. Should they pass the valid test, however, they should 
be promoted preferentially without having to experience 
the delay of further competition on equal terms with those 
newcomers who never were previously aggrieved. See, e.g., 
Castro v. Beecher, 459 F.2d 725, 739 (1st Cir. 1972) (dis­
trict court should mandate hiring of those in preferential 
pool as compared to others by ratio of 1 :1, 1 :2, or 1 :3).

Thus the effect of the court’s action is to provide wholly 
inadequate relief to those aggrieved. When one considers 
the other alternative remedy that might be employed to 
provide more effective relief, the use of a temporary goal 
or quota looks even more attractive as a salutary exercise 
of discretion. That alternative remedy, which would ad­
here most closely to the merit principle, would be to void 
and recall all past promotions made on the basis of the 
previous non-validated tests, since they were the products 
of unlawful discrimination in violation of the Equal Pro­
tection Clause, having served to “bump” eligible non-White 
applicants in favor of Whites. Such relief, however, would 
be extremely harsh, for by giving a fair opportunity to 
those minority officers who had been denied that oppor­
tunity under the discriminatory scheme, it would also serve 
to strip some White sergeants of a status that they al­
ready have come to enjoy and that they might have achieved 
even under a non-discriminatory system.

Faced with a choice of relief measures, the district court 
wisely chose to select the imposition of temporary goals



Order Denying Rehearing 53a

as the less drastic remedy. In analogous contexts, such as 
school desegregation cases, the Supreme Court has not 
hesitated to uphold the district courts’ discretionary power 
to strike a fair balance and fashion an equitable remedy 
that compensates racial minorities for wrongs done, even 
though Whites as a class may be forced to accept unde­
sired burdens. See, e.g., Swann v. Charlotte-MecMenburg 
Board of Education, 402 U.S. 1, 22-31 (1971); United 
States v. Montgomery County Board of Education, 395 
U.S. 225 (1969) (upholding faculty assignment to schools 
by White-Black ratio); Green v. New Kent County School 
Board, 391 U.S. 430 (1968).

It is true that if promotion of the non-Whites in the 
existing and identifiable pool of correctional officers failed 
to satisfy the quota, the effect of Judge Lasker’s decree 
would be to benefit some Blacks as a group at the expense 
of some Whites. This might explain the court’s concern 
for “ reverse discrimination.”  But all of the previously 
cited cases both in this circuit and outside have now es­
tablished that such temporary burdening of Whites as a 
group is often necessary to effectively compensate for 
wrongs done to minority groups. As I hope I have shown, 
no remedy is perfect. Each must of necessity require 
some persons to forego some benefits. The advantage of 
an appropriately tailored goal or quota is that it goes the 
farthest toward remedying past wrongs with the least harm 
to others.

The fact remains that past non-job-related Civil Service 
examinations have resulted in the promotion of Whites 
only, denying eligible non-White applicants the chance to 
qualify on the basis of merit. Thus the Civil Service sys­
tem, albeit not deliberately, was used to “bump” eligible 
minority applicants in favor of Whites. It would be ironic 
to allow adherence to the same civil service system, per­



54a Order Denying Rehearing

version of which has caused the racial imbalance in promo­
tions, to be used as a shield against an effective remedy for 
the wrong done in its name.

Nor can our prior decisions granting quota relief be dis­
tinguished on the ground that they dealt with unidentifiable 
White candidates rather than individually-identifiable qual­
ified and eligible persons. In Vulcan the district court’s 
interim decree upheld by us, under which the City would 
be required to appoint one minority candidate from the 
Civil Service eligibility list for each three non-minority 
candidates appointed, deferred appointment of some non­
minority candidates “ who had qualified under [Civil Ser­
vice] Exam 0159 but had not yet been appointed.” 490 
F.2d at 391. Thus the non-minority group, some of whom 
intervened in the action, were “ readily identifiable candi­
dates for promotion,” who, “ regardless of their qualifica­
tions and standing in a competitive examination . . . 
[might] be by-passed for advancement solely because they 
are white,” see Kirkland v. New York State Department 
of Correction, supra, Slip Opin. at 5413. Similarly, in 
Bridgeport Guardians, Inc. the intervening defendants in­
cluded persons “who have a high standing on current eligi­
bility lists, and presumably would be appointed to the force 
but for the decision below,” 482 F.2d at 1334. Likewise in 
Patterson v. Newspaper & Mail Deliverers, supra, we up­
held a quota against challenge by 100 identifiable News 
White workers who were permitted to intervene for the 
purpose of challenging the quota relief on the ground that 
its effect would be to “bump” White workers in favor of 
minority workers. 514 F.2d at 769.

All of this is not intended to denigrate the problems of 
fairness and justice raised by the White intervenors in 
these cases. But references to “ identifiable” Whites, while 
perhaps placing the consequences of a goal into sharper



Order Denying Rehearing 55a

focus, do not add to the reality that, irrespective of the 
identifiability of the Whites, a goal inevitably serves to 
benefit some at the expense of others and that this court 
as well as most others nonetheless have come to recognize 
its necessary inclusion in the district court’s remedial 
arsenal. The wisest and fairest course that we could follow 
is not to reject this remedy but to specify the smallest 
quota in terms of percentage and duration necessary to 
correct the past discrimination. See, e.g., Rios, supra, 501 
F.2d at 628 n.3; Vulcan Society, supra, 490 F.2d at 399. 
This heretofore clearly has been our policy and the goal 
proposed by the district court in this case is perfectly in 
line with previously tolerated remedies.

For these reasons I believe it is unfortunate that the 
court has not seen fit, by hearing this case en banc, to seize 
this opportunity, absent guidance from the Supreme Court, 
to clarify our position with respect to the constantly recur­
ring and troublesome question presented.

K aufm an , Chief Judge (Dissenting):

I concur in my brother Mansfield’s scholarly opinion. I 
should like to add the following thoughts, however. As 
Judge Mansfield’s opinion makes clear, this Court has 
traveled too far along the road of temporary “goals” as 
a remedy for past discrimination to permit a single panel 
to appear to reverse the course consistently followed. It 
is my view that we can retrace the steps taken by previ­
ous panels of this Court only by an en banc, F.K..A.P. 35(a), 
or by a Supreme Court holding that our earlier decisions 
have been in error. I am still of the view that the en banc 
device is often cumbersome and unproductive of the defin­
itive resolution for which it is invoked, see, e.g., Rodriguez 
v. McGinnis, 456 F.2d 79 (2d Cir. 1972) (en banc), rev’d



56a Order Denying Rehearing

sub nom. Preiser v. Rodriguez, 407 U.S. 919 (1973). But, 
the issues in the present case are so sharply defined and 
our prior holdings so clearly applicable that an en banc 
would have achieved the goal of “maintain [ing] uniformity 
of [our] decisions.” F.R.A.P. 35(a).



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