Association Against Discrimination in Employment v. City of Bridgeport Brief for Appellees-Cross-Appellants Association Against Discrimination in Employment
Public Court Documents
November 20, 1978
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Brief Collection, LDF Court Filings. Association Against Discrimination in Employment v. City of Bridgeport Brief for Appellees-Cross-Appellants Association Against Discrimination in Employment, 1978. 003ab666-ba9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/de4c0fb7-2914-4428-960c-29f1d84b2697/association-against-discrimination-in-employment-v-city-of-bridgeport-brief-for-appellees-cross-appellants-association-against-discrimination-in-employment. Accessed April 06, 2025.
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IN THE
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
NOS. 78-7400
78-7406
78-7431
ASSOCIATION AGAINST DISCRIMINATION
IN EMPLOYMENT, et al.,
Plaintiffs-Appellees-Cross-Appellants
CITY OF BRIDGEPORT, et al.,
Defendants-Appellants
BRIDGEPORT FIREFIGHTERS FOR MERIT
EMPLOYMENT, INC., et al.,
Defendants-Cross-Claimants-Appellants
On Appeal From the United States District Court
For the District of Connecticut
BRIEF FOR APPELLEES-CROSS-APPELLANTS
ASSOCIATION AGAINST DISCRIMINATION IN EMPLOYMENT, ET AL.
DAVID N. ROSEN
265 Church Street
New Haven, Connecticut 06510
MICHAEL P. KOSKOFF
1241 Main Street
Bridgeport, Connecticut 06604
To be argued by Attorneys for Appellees-Cross-
DAVID N. ROSEN Appellants
IN THE
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
NOS. 78-7400
78-7406
78-7431
ASSOCIATION AGAINST DISCRIMINATION
IN EMPLOYMENT, et al.,
Plaintiffs-Appellees-Cross-Appellants
v.
CITY OF BRIDGEPORT, et al.,
Defendants-Appellants
and
BRIDGEPORT FIREFIGHTERS FOR MERIT
EMPLOYMENT, INC., et al.,
Defendants-Cross-Claimants-Appellants
On Appeal From the United States District Court
For the District of Connecticut
BRIEF FOR APPELLEES-CROSS-APPELLANTS
ASSOCIATION AGAINST DISCRIMINATION IN EMPLOYMENT, ET A L .
DAVID N. ROSEN
265 Church Street
New Haven, Connecticut 06510
MICHAEL P. KOSKOFF
1241 Main Street
Bridgeport, Connecticut 06604
Attorneys for Appellees-Cross-
Appellants
CONTENTS
Page
Table of Authorities ................................... iv
Text of Statutory Provisions Involved............... . ix
Questions Presented . . . . xix
Table of Abbreviations.......... xx
STATEMENT OF THE C A S E .......... ....................... 1
STATEMENT OF FACTS ....................................... 3
1. Racial Composition of the City
and Its Fire D e p a r t m e n t ..................... 3
2. Practices Before 1972 ....................... 5
3. Practices After 1972 ......................... 6
Selection of the 1975 T e s t ................... 6
The Disparate Impact of the T e s t ............. 11
Recruitment and Affirmative Action .......... 13
Individual Instances of Discrimination . . . . 16
SUMMARY OF ARGUMENT.................................... 19
I. THE TRIAL JUDGE APPLIED PROPER LEGAL STANDARDS
IN DETERMINING THE LAWFULNESS OF THE 1975 TEST,
AND HIS FACTUAL FINDINGS WERE NOT CLEARLY 2Q
ERRONEOUS ......................... . . . . . . . .
A. The Evidence of Disparate Impact Was
Overwhelming and Uncontested .................... 20
B. The Trial Judge Applied Proper Standards
in Finding the 1975 Test Not to Be Job
Related, and His Findings Are Clearly
Supported by the Evidence..................... 22
1. The Judge Applied the Proper Legal
Standard.................................... 22
2. The Evidence Compelled the Judge's
Finding That the Test Was Not Job
R e l a t e d .................................... 25
a) The Correlation with Job
Performance............................ 25
- l -
28
28
29
29
30
31
31
32
35
46
52
60
63
63
64
b) The Methodology of the Study ........
The Job Analysis ...................
Ranking Procedure ...................
Training of the Rankers ........
Use of Volunteers , , , ,’ ’ • ’ ' « « i » t
DISCRIMINATION IN HIRING PRIOR TO THE
1975 TEST IS CLEARLY ESTABLISHED BY
UNCONTROVERTED EVIDENCE ............................
A. The Evidence ..................................
B, This Discriminatory Post-Act Hiring is
Not Legitimized By Virtue of Being Based
on a Pre-Act Employment List .................
THE TRIAL JUDGE DID NOT ABUSE HIS DISCRETION
BY ORDERING A HIRING QUOTA TO ELIMINATE THE
EFFECTS OF THE CITY'S UNLAWFUL DISCRIMINATION . . .
THE SIZE OF THE QUOTA IMPOSED BY THE DISTRICT
COURT WAS MODERATE IN VIEW OF THE SCOPE OF
THE DISCRIMINATION TO BE REMEDIED .................
SPECIFIC HIRING RELIEF WAS APPROPRIATE FOR
MINORITY VICTIMS OF DISCRIMINATION WHO
DEMONSTRATED POSSESSION OF ALL THE JOB
RELATED QUALIFICATIONS POSSESSED BY
FIREFIGHTERS PREVIOUSLY HIRED AND
PERFORMING SUCCESSFULLY ON THE JOB ...............
THE TRIAL JUDGE DID NOT ABUSE HIS
DISCRETION BY DIRECTING THAT APPLICANTS
WHO WERE THE VICTIMS OF DISCRIMINATION
WERE ENTITLED TO BACKPAY ..........................
THE TRIAL JUDGE PLACED IMPROPER
RESTRICTIONS ON ELIGIBILITY FOR
BACKPAY .............................................
A. Deterred Non-Applicants Are Entitled
to Backpay ....................................
B. Eligibility for Backpay Should Be
Based Upon Qualification at the Time
of Discriminatory Refusal to Hire,
Not Present Qualification .....................
-ii -
Page
VIII. THE PROVISIONS OF THE REMEDY ORDER
RELATING TO PROMOTIONAL TESTS AND
SENIORITY HAVE A MINIMAL IMPACT ON
WHITE EMPLOYEES AND DO NOT UNDULY
INTERFERE WITH THEIR LEGITIMATE
EXPECTATIONS ................................... 65
IX. THE TRIAL JUDGE DID NOT ABUSE HIS
DISCRETION BY FINDING THAT PLAINTIFFS
WERE ENTITLED TO ATTORNEY' S F E E S ................ 66
CONCLUSION ................................................ 67
Aopendix A: ANALYSIS OF THE DATA UNDERLYING THE
HAY VALIDITY REPORT
1. Replication of the S t u d y ........ App. 1
2. Use of Out of Range Data:
The Correlation Evaporates . . . . . . App. 8
3. Use of Blank Scores: The
Illusion of Fairness Evaporates . . . App. 15
Appendix B: COMPLETE HAY REPORT
-iii-
TABLE OF AUTHORITIES
Cases:
Albemarle Paper Company v. Moody, 422 U.S.
405 (1975)..................................
Arnold v. Ballard, 390 F. Supp, 723 (N.D. Ohio
1.975), aff' d 12 FEP cases 1613 (6th Cir,
1976), vac, and rem. on other grounds,
16 FEP cases 396 (6th Cir. 1976)..... ......
Boston Chapter, NAACP, Inc. v. Beecher, 504 F,
2d 1017 (1st Cir. 1974), cert, denied,
421 U.S.
Bridgeport Guardians, Inc. v. Bridgeport
Civil Service Commission, 482 F. 2d
1333 (2nd Cir. 1973), cert, denied, 3
421 U.S. 991 (1975) ........................
Carter v. Gallagher, 452 F. 2d 315 (8th Cir,)
(en banc), cert, denied, 406 U.S. 950
(T97iyTT . . .T77L . .-7T77TT....................
Chance v. Board of Examiners, 458 F. 2d 1167
(2d Cir. 1972) ..............................
Contractors Association of Eastern Pennsylvania
v. Secretary of Labor, 442 F. 2d 159 (3rd
Cir. 1971), cert, denied. 404 U.S. 854
(1971)...... ................................
Cupples v. Transport Insurance Co,, 371 F,
Supp. 146 (N.D. Tex.), aff'd 498 F, 2d
1091 (1974).................................
Dobbins v. Local 212, IBEW, 292 F. Supp,
4113 (S.D. Ohio 1968) ......................
Dothard v. Rawlinson, 433 U.S. 321 (1977) .......
Dozier v. Chupka, 395 F. Supp. 836 (S.D, Ohio
1975) ...... .......................... .....
EEOC v. Enterprise Association Steamfitters
Local 638, 542 F. 2d 579 (2d Cir. 1976)....
EEOC v. Local 638..,Local 28 of the Sheet Metal
Workers' International Association [cited
as EEOC v. Local 638 ], 532 F. 2d 821
(2d Cir. 1976)....... ......................
Page
22,28,60,61,
63,64,67
51
36,51
3,5,6,11,12,
24,28,31,35,
38,39,40,41,
42,43,50,51
36
20,24,28,37
36
34
49
22
51
61,62,63
22,24,43
60,63
- IV-
Page
Franks v. Bowman Transportation Co., 424 U.S,
747 (1976)................ ..........
Fullilove v. Kreps, F. 2d No, 78-
6011 (2d Cir. September 22, 1978) ........
Furnco Construction Co. v. Waters, 57 L. 2d
957 (1978)................................
General Electric Co. v. Gilbert, 429 U.S. 125
(1976)..............................
Gregg v. Georgia, 428 U.S. 153 (1976).,,,........
Griggs v. Duke Power Co., 401 U.S. 424
(1971)...... . , .............................
Hairston v. McLean Trucking Co., 520 F. 2d
226 (4th Cir. 1975) . ...........
Herman v. Roosevelt Fed. Sav, & L, Ass'n, 432
F. Supp. 843 (E.D. Mo. 19 77)..... .
International Salt Co. v. United States, 332
U.S. 392 (1947) ............................
Keco Indus. Inc., 121 NLRB 1213 (1958), enf’d,
271 F. 2d 263 (6th Cir, 1959) .... .......
Kirkland v. New York State Department of Correc
tional Services, 520 F. 2d 420 (2nd Cir,
1975), rehearing en banc denied, 531 F, 2d
5 (1975), cert, denied, 429 U.S, 823
(1976)....7777..777777...................
Lea v. Cone Mills Corp., 301 F. Supp, 97 (M ,D .
N.C. 1969), affirmed in relevant part,
483 F. 2d 86 (4th Cir. 1971).... . . 77. . . . .
Meadows v. Ford Motor Co., 510 F. 2d 939 (6th
Cir. 1975) . ............................ .
Mims v. Wilson, 514 F. 2d 106 (5th Cir. 1975)...
Morrow v. Crisler, 491 F, 2d 1053 (5th Cir,)
(en banc), cert, denied, 419 U.S, 895
(1777777........ 777777. ..................
NAACP v. Allen, 493 F. 2d 614 (5th Cir. 1974)...
NAACP v. Dothard, 373 F. Supp. 504 (M.D. Ala,
1973)................... ........ ..........
37,66
36
22,23
22
10
20,22,24,28
34,35,49
62
34
37
64
22,24,37,38
40,43,54,66
49
62
64
36
51
- v -
Page
NLRB v. Robert Haws Co., 403 F.2d 979
(6th Cir. 1968)............................ 64
Newman vs. Piggie Park Enterprises, Inc.,
390 U.S. 400 (1968)....................... 67
Patterson v. Newspaper & Mail Deliverer's Union,
514 F. 2d 767 (2d Cir. 1975), cert, denied,
427 U.S. 911 (1976)...........7777. .7T~7~T 36,46,53
Pettway v. American Cast Iron Pipe Co,, 494
F. 2d 211 (5th Cir. 1974)................. 62
Prate v. Freedman, F. 2d , No, 78-
7008 (2d Cir. Aug, 8, 1978) ............... 36
Red River Lumber Co., 12 NLRB 79, enf’d, 101
F. 2d 1014 (9th Cir. 1939) ....... ......... 64
Regents of the University of California v,
Bakke, 57 L. Ed. 2d 750 (1978)....... . 37,38,54,55
Rios v. Enterprise Association Steamfitters
Local 638, 501 F. 2d 622 (2d Cir. 1974).. 36,50
Rios v. Enterprise Association Steamfitters
Local 638, 520 F. 2d 352 (2d Cir. 1975)... 46,53
Stamps v. Detroit Edison Co., 365 F. Supp. 87
(E.C. Mich. 1974) aff’d in relevant part,
515 F. 2d 301 (6th Cir. 1975)vac. & rem.
on other grounds, 431 v.s. 951 (1977).... 51
Taylor v. Safeway Stores, Inc.,
524 F. 2d 263 (10th Cir. 1975)............. 64
Teamsters v. United States 431 U.S. 324 22,32,33,34
(1977)..................................... 49,63
Torres v. Sachs, 538 F. 2d 10 (2d Cir. 1976) • 67
United States v. Bethlehem Steel Corp., 449 F.
2d 652 (2d Cir. 1971)..................... 53,54
United States v. Carpenters Local 196, 457
F. 2d 210 (7th Cir.), cert, denied,
409 U.S. 851 (1972)......... “r— t t ........ 36
United States v. Central Motor Lines, Inc,,
338 F. Supp. 532 (W.D.N.C. 1971)......... 49
Page
United States v. City of Chicago, 573 F, 2d
416 (7th Cir. 1978) ...................... 32
United States v. Ironworkers Local 86, 443
F. 2d 544 (9th Cir.)» cert, denied, 404
U.S. 984 (1971) ..... ..................... 36
United States v. Local 212, IBEW, 472 F. 2d
634 (6th Cir. 1973)....................... 36
United States v. Sheet Metal Workers Local 36,
416 F. 2d 123 (8th Cir, 1969)............. 49
United States v. U.S. Steel Corp., 520 F, 2d
1043 (5th Cir. 1975).... .................. 62
United States v. Wood, Wire and Metal Lathers
International Union, Local 46, 471 F, 2d
408 (2d Cir.), cert, denied, 412 U.S,
939 (1973).................... ............ 35,51
Vulcan Society v. Civil Service Commission, 7,20,22,23,24
490 F. 2d 387 (2d Cir. 1973)........... 36,37,43,44,45,46
Vulcan Society v. N.Y. Civil Service Commis
sion, 360 F. Supp. 1265 (S.D.N.Y. 1973),
aff'd in relevant part, 490 F, 2d 387
(2d Cir. 1973)---TT7T..................... 40,59
Constitutional Provisions, Statutes,
Regulations, and Court Rules:
Equal Pay Act, 29. U.S.C. §206(d)............... 34
Federal Rule of Civil Procedure 36(b)....... 4
Federal Rule of Civil Procedure 52(a)....... 24
Federal Rule of Civil Procedure 53. . . ....... 62
Public Works Employment Act of 1977, 42 U.S.C.
§6705(f) (a)........................ ....... 36
Revenue Sharing Act, 31 U.S.C. §1242(a)........ 1
Title VI of the Civil Rights Act of 1964, as
amended, 42 U.S.C. §2000d, et_ seq......... 1
Title VII of the Civil Rights Act of 1964, as
amended, 42 U . S . C . § §2000e , et seq........ Passim
Title VII of the Civil Rights Act of 1964, as
amended, Section 703(h), 42 U.S.C.
§2000e-2 (h)................... .......... . • 32, 34, 35
- vii-
Page
42 U.S.C. §1981................................... 1
42 U.S.C. §1983................................... 1
Uniform Guidelines on Employee Selection
Procedure, 29 CFR 1607 (1978).............. 20, 25
United States Constitution, Eleventh Amendment.... 62
Legislative History.
H.R. Rep. No. 92-238, 92d Cong. 1st Sess. (1971)... 24
118 Cong. Rec. 790 (1972)........................ 41
118 Cong. Rec. 7168 (1972 ....................... 64
110 Cong. Rec. 7213 (1964)....................... 34
Other Authorities:
E. Ghiselli, The Validity of Occupational
Aptitude Tests (1966) ....................... ?> 59
"Bridgeport Authorities Begin Patrol of
Streets in Arson-Wave Battle," New
York Times, Nov. 17, 1978, p. 1............ 56
U.S. Commission on Civil Rights, For All
The People...By All The People ('1969') ...... 41
Vaas, Title VII: Legislative History, 7 BC
Ind. & Com. L. Rev. 431 (1966)............. 34
-viii-
TEXT OF STATUTORY PROVISIONS INVOLVED
TITLE VII OF THE CIVIL RIGHTS ACT OF 1964,
AS AMENDED
DEFINITIONS
Sec. 701. For the purposes of this title—
(a) The term “person” includes one or more individuals, governments, gov
ernmental agencies, political subdivisions, labor unions, partnerships, associ
ations, corporations, legal representatives, mutual companies, joint-stock
companies, trusts, unincorporated organizations, trustees, trustees in bankruptcy,
or receivers. (As amended by P.L. 92—261, eff. March 24, 1972)
(b) The term ‘employer’ means a person engaged in an industry affecting
commerce who has fifteen or more employees for each working day in each of
twenty or more calendar weeks in the current or preceding calendar year, and
any agent of such a person, but such term does not include (1) the United States,
a corporation wholly owned by the Government of the United States, an Indian
tribe, or any department or agency of the District of Columbia subject by statute
to procedures of the competitive service (as defined in section 2102 of title 5 of
the United States Code), or (2) a bona fide private membership club (other than
a labor organization) which is exempt from taxation under section 501(c) of the
Internal Revenue Code of 1954, except that during the first year after the date of
enactment of the Equal Employment Opportunity Act of 1972, persons having
fewer than twenty-five employees (and their agents) shall not be considered
employers. (As amended by P.L. 92-261, eff. March 24, 1972)
(c) The term “employment agency” means any person regularly undertaking
with or without compensation to procure employees for an employer or to pro
cure for employees opportunities to work for an employer and includes an agent
of such a person. (As amended by P.L. 92-261, eff. March 24, 1972)
(d) The term “labor organization” means a labor organization engaged in an
industry affecting commerce, and any agent of such an organization, and includes
any organization of any kind, any agency, or employee representation committee,
group, association, or plan so engaged in which employees participate and which
exists for the purpose, in whole or in part, of dealing with employers concerning
grievances, labor disputes, wages, rates of pay, hours, or other terms or condi
tions of employment, and any conference, general committee, joint or system
board, or joint council so engaged which is subordinate to a national or inter
national labor organization.
(e) A labor organization shall be deemed to be engaged in an industry affect
ing commerce if (1) it maintains or operates a hiring hall or hiring office which
procures employees for an employer or procures for employees opportunities to
work for an employer, or (2) the number of its members (or, where it is a labor
organization composed of other labor organizations or their representatives, if
the aggregate number of the members of such labor organization) is (A) twenty-
five or more during the first year after the date of enactment of the Equal
-ix-
Employment Opportunity Act of 1972, or (B) fifteen or more thereafter, and
such labor organization—
(1) is the certified representative of employees under the provisions of the
National Labor Relations Act, as amended, or the Railway Labor Act, as
amended;
(2) although not certified, is a national or international labor organization or
a local labor organization recognized or acting as the representative of employees
of an employer or employers engaged in an industry affecting commerce; or
(3) has chartered a local labor organization or subsidiary body which is repre
senting or actively seeking to represent employees of employers within the
meaning of paragraph (1) or (2); or
(4) has been chartered by a labor organization representing or actively seeking
to represent employees within the meaning of paragraph (1) or (2) as the local
or subordinate body through which such employees may enjoy membership or
become affiliated with such labor organization; or
(5) is a conference, general committee, joint or system board, or joint council
subordinate to a national or international labor organization, which includes a
labor organization engaged in an industry affecting commerce within the meaning
of any of the preceding paragraphs of this subsection. (As amended by P.L.
92-261, eff. March 24, 1972)
(f) The term “employee” means an individual employed by an employer,
except that the term “employee” shall not include any person elected to public
office in any State or political subdivision of any State by the qualified voters
thereof, or any person chosen by such officer to be on such officer’s personal
staff, or an appointee on the policy making level or an immediate adviser with
respect to the exercise of the constitutional or legal powers of the office. The
exemption set forth in the preceding sentence shall not include employees subject
to the civil service laws of a State government, governmental agency or political
subdivision. (As amended by P.L. 92-261, eff. March 24, 1972)
(g) The term “commerce” means trade, traffic, commerce, transportation,
transmission, or communication among the several States; or between a State
and any place outside thereof; or within the District of Columbia, or a possession
of the United States; or between points in the same State but through a point
outside thereof.
(h) The term “industry affecting commerce” means any activity, business, or
industry in commerce or in which a labor dispute would hinder or obstruct
commerce or the free flow of commerce and includes any activity or industry
“affecting commerce” within the meaning of the Labor-Management Reporting
and Disclosure Act of 1959, and further includes any governmental industry,
business, or activity. (As amended by P.L. 92-261, eff. March 24, 1972)
(i) The term “State” includes a State of the United States, the District of
Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake
Island, the Canal Zone, and Outer Continental Shelf lands defined in the Outer
Continental Shelf Lands Act.
(j) The term ‘religion’ includes all aspects of religious observance and prac
tice, as well as belief, unless an employer demonstrates that he is unable to
reasonably accommodate to an employee’s or prospective employee’s religious
observance or practice without undue hardship on the conduct of the employer’s
business. (Added by P.L. 92-261, eff. March 24, 1972)
EXEMPTION
Sec. 702. This title shall not apply to an employer with respect to the em
ployment of aliens outside any State, or to a religious corporation, association,
educational institution, or society with respect to the employment of individuals
of a particular religion to perform work connected with the carrying on by such
- x -
corporation, association, educational institution, or society of its activities. (As
amended by P.L. 92-261, eff. March 24, 1972)
DISCRIMINATION BECAUSE OF RACE, COLOR, RELIGION,
SEX, OR NATIONAL ORIGIN
Sec. 703. (a) It shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s race, color,
religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment
in any way which would deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status as an employee, because
of such individual’s race, color, religion, sex, or national origin. (As amended
by P.L. 92-261, eff. March 24, 1972)
(b) It shall be an unlawful employment practice for an employment agency
to fail or refuse to refer for employment, or otherwise to discriminate against,
any individual because of his race, color, religion, sex, or national origin, or to
classify or refer for employment any individual on the basis of his race, color,
religion, sex or national origin.
(c) It shall be an unlawful employment practice for a labor organization—
(1) to exclude or to expel from its membership, or otherwise to discriminate
against, any individual because of his race, color, religion, sex, or national
origin;
(2) to limit, segregate, or classify its membership or applicants for member
ship or to classify or fail or refuse to refer for employment any individual, in
any way which would deprive or tend to deprive any individual of employment
opportunities, or would limit such employment opportunities or otherwise ad
versely affect his status as an employee or as an applicant for employment, be
cause of such individual's race, color, religion, sex, or national origin; or
(3) to cause or attempt to cause an employer to discriminate against an indi
vidual in violation of this section. (As amended by P.L. 92-261, eff. March 24,
1972)
(d) It shall be an unlawful employment practice for any employer, labor
organization, or joint labor-management committee controlling apprenticeship or
other training or retraining, including on-the-job training programs to discrimi
nate against any individual because of his race, color, religion, sex, or national
origin in admission to, or employment in, any program established to provide
apprenticeship or other training.
(e) Notwithstanding any other provision of this title, (1) it shall not be an
unlawful employment practice for an employer to hire and employ employees,
for an employment agency to classify, or refer for employment any individual,
for a labor organization to classify its membership or to classify or refer for em
ployment any individual, or for an employer, labor organization, or joint labor-
management committee controlling apprenticeship or other training or retraining
programs to admit or employ any individual in any such program, on the basis
of his religion, sex, or national origin in those certain instances where religion,
sex, or national origin is a bona fide occupational qualification reasonably nec
essary to be normal operation of that particular business or enterprise, and (2)
it shall not be an unlawful employment practice for a school, college, university,
or other educational institution or institution of learning to hire and employ
employees of a particular religion if such school, college, university, or other
educational institution or institution of learning is, in whole or in substantial
part, owned, supported, controlled, or managed by a particular religion or by a
particular religious corporation, association, or society, or if the curriculum of
- X l -
such school, college, university, or other educational institution or institution of
learning is directed toward the propagation of a particular religion.
(f) As used in this title, the phrase “unlawful employment practice” shall
not be deemed to include any action or measure taken by an employer, labor
organization, joint labor-management committee, or employment agency with
respect to an individual who is a member of the Communist Party of the United
States or of any other organization required to register as a Communist-action
or Communist-front organization by final order of the Subversive Activities
Control Board pursuant to the Subversive Activities Control Act of 1950.
(g) Notwithstanding any other provision of this title, it shall not be an un
lawful employment practice for an employer to fail or refuse to hire and employ
any individual for any position, for an employer to discharge an individual from
any position, or for an employment agency to fail or refuse to refer any individ
ual for employment in any position, or for a labor organization to fail or refuse
to refer any individual for employment in any position, if—
(1) the occupancy of such position, or access to the premises in or upon
which any part of the duties of such position is performed or is to be performed,
is subject to any requirement imposed in the interest of the national security of
the United States under any security program in effect pursuant to or administered
under any statute of the United States or any Executive order of the President;
and
(2) such individual has not fulfilled or has ceased to fulfill that requirement.
(h) Notwithstanding any other provision of this title, it shall not be an unlaw
ful employment practice for an employer to apply different standards of com
pensation, or different terms, conditions, or privileges of employment pursuant
to a bona fide seniority or merit system, or a system which measures earnings by
quantity or quality of production or to employees who work in different loca
tions, provided that such differences are not the result of an intention to dis
criminate because of race, color, religion, sex, or national origin; nor shall it be
an unlawful employment practice for an employer to give and to act upon the
results of any professionally developed ability test provided that such test, its
administration or action upon the results is not designed, intended, or used to
discriminate because of race, color, religion, sex, or national origin. It shall
not be an unlawful employment practice under this title for any employer to
differentiate upon the basis of sex in determining the amount of the wages or
compensation paid to employees of such employer if such differentiation is au
thorized by the provisions of Section 6(d) of the Fair Labor Standards Act of
1938 as amended (29 USC 206(d)).
(i) Nothing contained in this title shall apply to any business or enterprise
on or near an Indian reservation with respect to any publicly announced em
ployment practice of such business or enterprise under which a preferential
treatment is given to any individual because he is an Indian living on or near
a reservation.
(j) Nothing contained in this title shall be interpreted to require any employer,
employment agency, labor organization, or joint labor-management committee
subject to this title to grant preferential treatment to any individual or to any
group because of the race, color, religion, sex, or national origin of such individ
ual or group on account of an imbalance which may exist with respect to the
total number or percentage of persons of any race, color, religion, sex, or na
tional origin employed by any employer, referred or classified for employment
by any employment agency or labor organization, admitted to membership or
classified by any labor organization, or admitted to, or employed in. any ap
prenticeship or other training program, in comparison with the total number or
percentage of persons of such race, color, religion, sex, or national origin in any
community, State, section, or other area, or in the available work force in any
community, State, section, or other area.
-xxi-
OTHER UNLAWFUL EMPLOYMENT PRACTICES
See. 704. (a) It shall be an unlawful employment practice for an employer
to discriminate against any of his employees or applicants for employment, for
an employment agency or joint labor-management committee controlling appren
ticeship or other training or retraining, including on-the-job training programs,
to discriminate against any individual, or for a labor organization to discriminate
against any member thereof or applicant for membership, because he has op
posed any practice made an unlawful employment practice by this title, or
because he has made a charge, testified, assisted, or participated in any manner
in an investigation, proceeding, or hearing under this title, (As amended by P.L.
92-261, eff. March 24, 1972)
(b) It shall be an unlawful employment practice for an employer, labor orga
nization, employment agency, or joint labor-management committee controlling
apprenticeship or other training or retraining, including on-the-job training pro
grams, to print or cause to be printed or published any notice or advertisement
relating to employment by such an employer or membership in or any classifica
tion or referral for employment by such a labor organization, or relating to any
classification or referral for employment by such an employment agency or
relating to admission to, or employment in, any program established to provide
apprenticeship or other training by such a joint labor-management committee
indicating any preference, limitation, specification, or discrimination, based on
race, color, religion, sex or national origin, except that such a notice or adver
tisement may indicate a preference, limitation, specification, or discrimination
based on religion, sex or national origin when religion, sex, or national origin
is a bona fide occupational qualification for employment. (As amended by P.L.
92-261, eff. March 24, 1972)
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Sec. 705. (a) There is hereby created a Commission to be known as the Equal
Employment Opportunity Commission, which shall be composed of five mem
bers, not more than three of whom shall be members of the same political party.
Members of the Commission shall be appointed by the President by and with
the advice and consent of the Senate for a term of five years. Any individual
chosen to fill a vacancy shall be appointed only for the unexpired term of the
member whom he shall succeed, and all members of the Commission shall con
tinue to serve until their successors are appointed and qualified, except that no
such member of the Commission shall continue to serve (1) for more than sixty
days when the Congress is in session unless a nomination to fill such vacancy
shall have been submitted to the Senate, or (2) after the adjournment sine die
of the session of the Senate in which such nomination was submitted. The Presi
dent shall designate one member to serve as Chairman of the Commission, and
one member to serve as Vice Chairman. The Chairman shall be responsible on
behalf of the Commission for the administrative operations of the Commission,
and, except as provided in subsection (b), shall appoint, in accordance with the
provisions of title 5, United States Code, governing appointments in the com
petitive service, such officers, agents, attorneys, hearing examiners, and employees
as he deems necessary to assist it in the performance of its functions and to fix
their compensation in accordance with the provisions of chapter 51 and sub-
chapter III of chapter 53 of title 5, United States Code, relating to classification
and General Schedule pay rates: Provided, That assignment, removal, and com
pensation of hearing examiners shall be in accordance with sections 3105, 3344,
5362, and 7521 of title 5, United States Code. (As amended by P.L. 92-261,
eff. March 24, 1972)
(b)(1) There shall be a Genera! Counsel of the Commission appointed by the
President, by and with the advice and consent of the Senate, for a term of four
years. The Genera! Counsel shall have responsibility for the conduct of litigation
-xxxi-
as provided in sections 706 and 707 of this title. The General Counsel shall
have such other duties as the Commission may prescribe or as may be provided
by law and shall concur with the Chairman of the Commission on the appoint
ment and supervision of regional attorneys. The General Counsel of the Com
mission on the effective date of this Act shall continue m such position and
perform the functions specified in this subsection until a successor is appointed
( 2) Attorneys appointed under this section may, at the direction of the Com
mission, appear for and represent the Commission in any case in court, provided
that the Attorney General shall conduct all litigation to which the Commission
is a party in the Supreme Court pursuant to this title.
(c) A vacancy in the Commission shall not impair the right of the remaining
members to exercise all the powers of the Commission and three mem.bers thereof
shall constitute a quorum. (As amended by P.L. 92-261, eff. March 24,1972)
(d) The Commission shall have an official seal which shall be judicially
n0t(e)d The Commission shall at the close of each fica! year report to the Con
gress and to the President concerning the action it has taken, and the moneys
it has disbursed. It shall make such further reports on the cause of and means
of eliminating discrimination and such recommendations for further legislation
as may appear desirable. (As amended by P.L. 93-608, January 2, 1975.)
(f) The principal office of the Commission shall be in or near the District ot
Columbia, but it may meet or exercise any or all its powers at any other place.
The Commission may establish such regional or State offices as it deems neces
sary to accomplish the purpose of this title.
(g) The Commission shall have power— . ,
( 1) to cooperate with and, with their consent, utilize regional, State, local,
and other agencies, both public and private, and individuals,
(2) to pay to witnesses whose depositions are taken or who are summoned
before the Commission or any of its agents the same witness and mileage fees
as are paid to witnesses in the courts of the United States;
(3) to furnish to persons subject to this title such technical assistance as they
may request to further their compliance with this title or an order issued there-
Un(4)’ upon the request of (i) any employer, whose employees or some of them,
or (ii) any labor organization, whose members or some of them refuse or
threaten to refuse to cooperate in effectuating the provisions of this title, to
assist in such effectuation by conciliation or such other remedial action as is
provided by this title:
(5) to make such technical studies as are appropriate to effectuate the pur
poses and policies of this title and to make the results of such studies available
to the public; , . ,
(6) to intervene in a civil action brought under section 706 by an aggrieved
party against a respondent other than a government, governmental agency or
political subdivision. (As amended by P.L. No. 92-261, eff. March 24, 1972)
(h) The Commission shall, in any of its educational or promotional activities,
cooperate with other departments and agencies in the performance of such educa
tional and promotional activities. .
(i) All officers, agents, attorneys and employees of the Commission, including
the members of the Commission, shall be subject to the provisions of section 9
of the act of August 2, 1939, as amended (Hatch Act), notwithstanding any
exemption contained in such section.
PREVENTION OF UNLAWFUL EMPLOYMENT PRACTICES
Sec. 706. (a) The Commission is empowered, as hereinafter provided, to
prevent any person from engaging in any unlawful employment practice as set
-XXV-
forth in section 703 or 704 of this title. (As amended by P.L. 92-261, eff.
March 24, 1972)
(b) Whenever a charge is filed by or on behalf of a person claiming to be
aggrieved, or by a member of the Commission, alleging that an employer, em
ployment agency, labor organization, or joint labor-management committee con
trolling apprenticeship or other training or retraining, including on-the-job train
ing programs, has engaged in an unlawful employment practice, the Commission
shall serve a notice of the charge (including the date, place and circumstances
of the alleged unlawful employment practice) on such employer, employment
agency, labor organization, or joint labor-management committee (hereinafter
referred to as the ‘respondent’) within ten days and shall make an investigation
thereof. Charges shall be in writing under oath or affirmation and shall contain
such information and be in such form as the Commission requires. Charges shall
not be made public by the Commission. If the Commission determines after
such investigation that there is not reasonable cause to believe that the charge
is true, it shall dismiss the charge and promptly notify the person claiming to be
aggrieved and the respondent of its action. In determining whether reasonable
cause exists, the Commission shall accord substantial weight to final findings
and orders made by State or local authorities in proceedings commenced under
State or local law pursuant to the requirements of subsections (c) and (d). If
the Commission determines after such investigation that there is reasonable
cause to believe that the charge is true, the Commission shall endeavor to elimi
nate any such alleged unlawful employment practice by informal methods of
conference, conciliation, and persuasion. Nothing said or done during and as a
part of such informal endeavors may be made public by the Commission, its
officers or employees, or used as evidence in a subsequent proceeding without
the written consent of the persons concerned. Any person who makes public
information in violation of this subsection shall be fined not more than $ 1,000 or
imprisoned for not more than one year, or both. The Commission shall make
its determination on reasonable cause as promptly as possible and, so far as
practicable, not later than one hundred and twenty days from the filing of the
charge or, where applicable under subsection (c) or (d), from the date upon
which the Commission is authorized to take action with respect to the charge. (As
amended by P.L. 92-261, eff. Mar. 24, 1972)
(c) In the case of an alleged unlawful employment practice occurring in a
State, or political subdivision of a State, which has a State or local law prohibit
ing the unlawful employment practice alleged and establishing or authorizing a
State or local authority to grant or seek relief from such practice or to institute
criminal proceedings with respect thereto upon receiving notice thereof, no
charge may be filed under subsection (a) by the person aggrieved before the
expiration of sixty days after proceedings have been commenced under the State
or local law, unless such proceedings have been earlier terminated, provided that
such sixty-day period shall be extended to one hundred and twenty days during
the first year after the effective date of such State or local law. If any require
ment for the commencement of such proceedings is imposed by a State or local
authority other than a requirement of the filing of a written and signed statement
of the facts upon which the proceeding is based, the proceeding shall be deemed
to have been commenced for the purposes of this subsection at the time such
statement is sent by registered mail to the appropriate State or local authority.
(d) In the case of any charge filed by a member of the Commission alleging
an unlawful employment practice occurring in a State or political subdivision
of a State which has a State or local law prohibiting the practice alleged and
establishing or authorizing a State or local authority to grant or seek relief from
such practice or to institute criminal proceedings with respect thereto upon re
ceiving notice thereof, the Commission shall, before taking any action with
respect to such charge, notify the appropriate State or local officials and, upon
-xv-
request, afford them a reasonable time, but not less than sixty days (provided
that such sixtv-day period shall be extended to one hundred and twenty days
during the first year after the effective day of such State or local law), unless a
shorter period is requested, to act under such State or local law to remedy the
practice alleged.
(e) A charge under this section shall be filed within one hundred and eighty
days after the alleged unlawful employment practice occurred and notice of the
charge (including the date, place and circumstances of the alleged unlawful
employment practice) shall be served upon the person against whom such charge
is made within ten days thereafter, except that in the case of an unlawful employ
ment practice with respect to which the person aggrieved has initially instituted
proceedings with a State or local agency with authority to grant or seek relief
from such practice or to institute criminal proceedings with respect thereto upon
receiving notice thereof, such charge shall be filed by or on behalf of the person
aggrieved within three hundred days after the alleged unlawful employment prac
tice occurred, or within thirty days after receiving notice that the State or local
agency has terminated the proceedings under the State or local law, whichever
is earlier, and a copy of such charge shall be filed by the Commission with the
State or local agency. (As amended by P.L. 92-261, eff. March 24, 1972)
(f) (1) If within thirty days after a charge is filed with the Commission or
within thirty days after expiration of any period of reference under subsection
(c) or (d), the Commission has been unable to secure from the respondent a con
ciliation agreement acceptable to the Commission, the Commission may bring
a civil action against any respondent not a government, governmental agency, or
political subdivision named in the charge. In the case of a respondent which is
a government, governmental agency, or political subdivision, if the Commission
has been unable to secure from the respondent a conciliation agreement accept
able to the Commission, the Commission shall take no further action and shall
refer the case to the Attorney General who may bring a civil action against such
respondent in the appropriate United States district court. The person or persons
aggrieved shall have the right to intervene in a civil action brought by the
Commission or the Attorney General in a case involving a government, govern
mental agency, or political subdivision. If a charge filed with the Commission
pursuant to subsection (b) is dismissed by the Commission, or if within one
hundred and eighty days from the filing of such charge or the expiration of any
period of reference under subsection (c) or (d), whichever is later, the Commis
sion has not filed a civil action under this section or the Attorney General has
not filed a civil action in a case involving a government, governmental agency,
or political subdivision, or the Commission has not entered into a conciliation
agreement to which the person aggrieved is a party, the Commission, or the
Attorney Genera! in a case involving a government, governmental agency, or
political subdivision, shall so notify the person aggrieved and within ninety days
after the giving of such notice a civil action may be brought against the respond
ent named in the charge (A) by the person claiming to be aggrieved or (B) if
such charge was filed by a member of the Commission, by any person whom the
charge alleges was aggrieved by the alleged unlawful employment practice. Upon
application by the complainant and in such circumstances as the court may
deem just, the court may appoint an attorney for such complainant and may
authorize the commencement of the action without the payment of fees, costs,
or security. Upon timely application, the court may, in its discretion, permit the
Commission, or the Attorney General in a case involving a government, govern
mental agency, or political subdivision, to intervene in such civil action upon
certification that the case is of general public importance. Upon request, the
court may, in its discretion, stay further proceedings for not more than sixty
days pending the termination of State or local proceedings described in sub-
xvi-
sections (c) or (d) of this section or further efforts of the Commission to obtain
voluntary compliance. . ,
(2) Whenever a charge is filed with the Commission and the Commission
concludes on the basis of a preliminary investigation that prompt judicial action
is necessary to carry out the purpose of this Act, the Commission, or the Attorney
General in a case involving a government, governmental agency, or political
subdivision, may bring an action for appropriate temporary or preliminary relief
pending final disposition of such charge. Any temporary restraining order or
other order granting preliminary or temporary relief shall be issued in accord
ance with rule 65 of the Federal Rules of Civil Procedure, it shall be the duty
of a court having jurisdiction over proceedings under this section to assign cases
for hearing at the earliest practicable date and to cause such cases to be in
every way expedited.
(3) Each United States district court and each United States court of a place
subject to the jurisdiction of the United States shall have jurisdiction of actions
brought under this title. Such an action may be brought in any judicial district
in the State in which the unlawful employment practice is alleged to have been
committed, in the judicial district in which the employment records relevant to
such practice are maintained and administered, or in the judicial district in
which the aggrieved person would have worked but for the alleged unlawful
employment practice, but if the respondent is not found within any such district,
such an action may be brought within the judicial district in which the respondent
has his principal office. For purposes of sections 1404 and 1406 of title 28 of
the United States Code, the judicial district in which the respondent has his
principal office shall in all cases be considered a district in which the action
might have been brought.
(4) It shall be the duty of the chief judge of the district (or in his absence,
the acting chief judge) in which the case is pending immediately to designate a
judge in such district to hear and determine the case. In the event that no judge
in the district is available to hear and determine the case, the chief judge of the
district, or the acting chief judge, as the case may be, shall certify this fact to
the chief judge of the circuit (or in his absence, the acting chief judge) who shall
then designate a district or circuit judge of the circuit to hear and determine the
case.
(5) It shall be the duty of the judge designated pursuant to this subsection
to assign the case for hearing at the earliest practicable date and to cause the
case to be in every way expedited. If such judge has not scheduled the case for
trial within one hundred and twenty days after issue has been joined that judge
may appoint a master pursuant to rule 53 of the Federal Rules of Civil Proce
dure. (As amended by P.L. 92-261, eff. March 24, 1972)
(g) If the court finds that the respondent has intentionally engaged in or is
intentionally engaging in an unlawful employment practice charged in the com
plaint, the court may enjoin the respondent from engaging in such unlawful
employment practice, and order such affirmative action as may be appropriate,
which may include, but is not limited to, reinstatement or hiring of employees,
with or without back pay (payable by the employer, employment agency, or
labor organization, as the case may be, responsible for the unlawful employment
practice), or any other equitable relief as the court deems appropriate. Back pay
liability shall not accrue from a date more than two years prior to the filing of a
charge with the Commission. Interim earnings or amounts earnable with reason
able diligence by the person or persons discriminated against shall operate to
reduce the back pay otherwise allowable. No order of the court shall require
the admission or reinstatement of an individual as a member of a union, or the
hiring, reinstatement, or promotion of an individual as an employee, or the pay
ment to him of any back pay, if such individual was refused admission, sus
pended, or expelled, or was refused employment or advancement or was sus-
-x v ii-
pended or discharged for any reason other than discrimination on account of
race, color, religion, sex, or national origin or in violation of section 704(a). (As
amended by P.L. 92-261, eff. March 24, 1972)
(h) The provisions of the Act entitled “An Act to amend the Judicial Code
and to define and limit the jurisdiction of courts sitting in equity, and for other
purposes,” approved March 23, 1932 (29 U.S.C. 101-115), shall not apply with
respect to civil actions brought under this section. (As amended by P.L. 92-261,
eff. March 24, 1972)
(i) In any case in which an employer, employment agency, or labor organiza
tion fails to comply with an order of a court issued in a civil action brought
under this section the Commission may commence proceedings to compel com
pliance with such order. (As amended by P.L. 92—261, eff. March 24, 1972)
(j) Any civil action brought under this section and any proceedings brought
under subsection (j) shall be subject to appeal as provided in sections 1291 and
1292, title 28, United States Code. (As amended by P.L. 92-261, eff. March 24,
1972)
(k) In any action or proceeding under this title the court 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.
- X V I l l -
QUESTIONS PRESENTED
In addition to the questions presented by appellants,
plaintiffs' cross-appeal raises the following issues:
1. Whether exclusion of deterred non-applicants from the
benefits of a backpay award made to applicants is con
sistent with the Supreme Court's holding in Teamsters
v. United States, 431 U.S. 324 (1977), that deterred
non-applicants should be treated as applicants for
purposes of relief under Title VII.
2. Whether the trial court improperly mixed the criteria
for prospective and retrospective relief under Title VII
by conditioning eligibility for backpay on present quali
fication for and acceptance of appointment rather than
qualification at the time of the discriminatory refusal
to hire.
-xix-
TABLE OF ABBREVIATIONS
Document number, from index to
Record on Appeal
Transcript page, from trial trans
script, which is included in the
Appendix but has not been
re-paginated
Appendix page number, from^
Appendix of documents submitted
by appellants
7/20/78, at __
of 9/12/78, at
App .
Ex. _____ .
Hay Report p.
Int. Brief
City's Brief
Transcript page, from transcript
of these dates, which are not
paginated consecutively with trial
transcript but are in the Appendix
Page number of Appendix A to this
brief, summarizing analysis of the
data underlying the Hay Report
Exhibit number
Page number of Hay Report, which
is appended to this brief
Page number of Brief of Intervenors,
Bridgeport Firefighters For Merit
Employment, Inc., et al, Appellants
- Cross-Appellees
Page number of Brief of City of
Bridgeport, et al, Defendants
-Appellants-Cross-Appellees
-xx-
STATEMENT OF THE CASE
This appeal involves challenges to the district court's
finding that the exclusion of minorities from the Bridgeport,
Connecticut Fire Department was unlawful and to the relief
it fashioned.
Suit was filed September 2, 1975, by ten black and
hispanic applicants and would-be applicants to the Bridgeport
Fire Department, and an organization representing their inter
ests, alleging that the Department's hiring and promotion
practices violated Title VII of the Civil Rights Act of 1964,
1/
as amended, 42 U.S.C. §§2Q00e et seq. On October 25, 1977,
the district court certified plaintiffs as representatives of
the class of all black and hispanic victims of the allegedly
unlawful employment practices of the defendants.
The original defendants were the City of Bridgeport,
its civil service commission, board of fire commissioners,
and various city officials. On July 6, 1976, several incum
bent white firefighters and an organization they had formed
in response to this lawsuit, T. 1940, were permitted to inter
vene as defendants and cross-claimants in order to protect
their interest in resisting promotional quotas, A-40.
On July 13, 1976, when the City indicated it wanted to
1/ Additional claims under 42 U.S.C. §§1981 and 1983 were
asserted but withdrawn prior to trial; claims under Title VI
of the Civil Rights Act of 1964, 42 U.S.C. §§2000d et seq.,
and the Revenue Sharing Act, 31 U.S.C. §1242(a), relate to
remedy and were not pressed at the remedy hearing below, and
accordingly are not involved in this appeal.
- 1 -
begin hiring immediately, plaintiffs moved for a preliminary
injunction and temporary restraining order forbidding appoint
ments to be made from the current hiring list, challenged
as discriminatory. In response, after a chambers conference,
Judge Newman entered an order, consented to by all the parties,
providing that the City could hire from the challenged list to
fill up to one-half the number of vacancies for which it war
ranted it had an immediate need and adequate funding to fill in
the event the court ordered a hiring plan; all such appointments
to count as part of any hiring plan that might be ordered
after trial, A-57. This order was scheduled to expire December
1, 1976, but on November 9, 1976 was extended by agreement in
view of the City's failure to comply with its provisions relat
ing to discovery; and was extended again by Judge Zampano on
June 13, 1977, A-59.
On October 6, 1977, Judge Daly granted plaintiffs' motion
for separate trials on the issues of liability and remedy.
Trial on the liability issue, Judge Daly sitting without a
jury, began October 25, 1977 and extended over eleven days.
On July 14, 1978, Judge Daly filed his memorandum of
decision, finding that the 1975 firefighter exam was discrimina
tory and not job related, but not reaching plaintiffs' claim
of intentional discrimination. This opinion is reported at
454 F. Supp. 751 (D.Conn. 1978). On July 31, 1978, after a
hearing on the remedy issue held July 20, Judge Daly issued a
remedy order declaring the 1975 test invalid and directing
that it not be used in the future. The order also granted
- 2 -
affirmative relief, including provisions ordering that hir
ing for the department be in the ratio of one minority for
every white until the number of minorities in the department
reaches 125, and counting appointments permitted by Judge
Newman and Judge Zampano as part of that order; ordering immedi
ate appointment of those minority applicants for the 1975 test
who met all medical, physical agility and other standards for
appointment, except the unlawful written test requirement,
and declaring these appointees entitled to back pay, to be
calculated in further proceedings, which he referred initially
to a special master; and declaring that plaintiffs were enti
tled to costs, including attorney's fees, in an amount to be
established at a further hearing.
These timely appeals, by all parties, followed.
STATEMENT OF FACTS
The evidence at trial revealed a systematic exclusion
of minorities from one of Bridgeport's uniformed services that
recalls the practices condemned in Bridgeport Guardians v.
Civil Service Commissioners, 482 F. 2d 1333 (2d Cir. 1973) ,
cert, denied, 421 U.S. 991 (1975), but is perhaps more distres
sing because the pattern of exclusion is even starker, and much
of it has occurred in the years since Guardians.
1. Racial Composition of the City and Its Fire Depart
ment
The City of Bridgeport had a population of 156,542 accord
ing to the 1970 census, Ex. 1; population declined slightly by
1975 to 153,500, Ex. 2, p. 98. It has a large and growing
-3-
minority population; 25.3% black and Hispanic according to the
1970 census, 41/0 by 1974, Ex. 2, p. 98. Because the City has
a residency requirement for municipal employees, A-82, the rele
vant labor force includes only Bridgeport residents, and as
2 /
of 1974 this labor force was also approximately 41% minority.~
By contrast, the Bridgeport Fire Department in 1975 had
428 members, of whom 427 were white, one was hispanic, and
none were black, A-73. This disparity perpetuated a long his
tory of exclusion; the first and only black previously appointed
had been hired in 1938.~~
Exclusion of minorities continued after the effective
date of Title VII, March 24, 1972. Of twenty-eight appointments
made after that date from a list compiled on the basis of a
test given in 1971, none were of minorities. Ex. 13, pp. 7-8,
11. Pursuant to the consent orders entered by Judge Newman
and Judge Zampano, appointments were made from the list based
upon the 1975 test until the list was exhausted. Of 84 persons
appointed, 7/20/78 at 49, 56-57, three, or 3.6% were minori
ties, T. 1924, increasing minority representation in the depart-
2/ The Requests for Admission filed fcy pi: intiffs establish
that both the total labor force and the male labor force of
the City of Bridgeport_proper are approximately 41%. Doc.
62, nos. 18-23. The City requested permission at the commence
ment of trial to deny many of these Requests, but the applica
tion was denied as untimely and the purported responses
stricken, see docket entry 10/25/77, action which is not
assigned as error. No request was ever made to withdraw or
amend the admissions. Accordingly, these figures are "con
clusively established." Fed. R. Civ. P. 36(b).
3/ A-36, answer of City to Par. 7 of Third Amended Complaint;
Docs. 49, 52 P . 23.
-4-
ment to 4, or about 1%. Of a total of 112 post-Act appointees,
then, three, or 2.7%, were minorities.
2. Practices Before 1972
For many years, through the 1971 test, the City chose
firefighters by means of written tests similar to the police
exams this Court in Bridgeport Guardians termed "archaic,"
482 F. 2d at 1340. Use of the tests continued despite their
dramatic discriminatory impact and obvious discouraging effect
on minority applications. Tests given between 1965 and 1972
yielded the following results:
TOTAL
TESTED
PASS FAIL % PASSING
WHITE 310 112 198 36.1
MINORITY 21 1 20 4.8
UNIDENTIFIED 53 0 53 0.0
COMBINED WHITE
AND UNIDENTIFIED
363 112 241 30.9
Doc. 62, No. 50.
The City responded to this pattern of exclusion with
utter indifference. It undertook no recruitment for any fire-
fighter exams, T. 868, and the City's Personnel Director even
claimed not to have noticed the underrepresentation of minori
ties, T. 306-08. Tom Thompson, director of the Recruitment and
Training Program, an agency funded by the United States Depart
ment of Labor (T. 36), approached then-Mayor Curran in 1970
about recruiting minorities for Fire Department jobs, and
offered to help recruit through the Recruitment and Training
Program. Although Mayor Curran declared himself favorably
-5-
impressed by the idea, the City never took Mr. Thompson up on
his offer, nor informed him of the upcoming 1971 firefighter
exam (T. 43-45).
3. Practices After 1972
Selection of the 1975 test
Stung by the Bridgeport Guardians decision, the City
eagerly joined a consortium of Connecticut cities formed in
Hartford which offered the hope of insulation from legal lia
bility for its fire department hiring practices and the added
attraction of being federally funded. A total of eleven cities
used Intergovernmental Personnel Act funds to hire Hay Asso
ciates, a Philadelphia consulting firm. Hay Report P. 1-1.
The central purpose of the consortium was to find a test that
would stand up in court. T. 378-79, 913-14.
The Fire Department study was conducted in 1973 by a Hay
employee, J. Lee McCullough. McCullough's qualifications for
this task were modest; he was at that time a freshly-minted
Ohio State Ph.D six years out of college who had not even
4/
done his major graduate work in the area of test validation
and was a junior employee at Hay, T. 1205-10.
Hay selected a concurrent validation approach to test
selection, Hay Report p. II-3; T. 1246. This method as applied
by Hay entailed having the performance of incumbent fire
fighters ranked by their superiors. The firefighters were
then given a pot pourri of written tests. Any test or group
4/ McCullough's Master's thesis was on the subject of atti
tude change, (T. 1205) and his doctoral dissertation concerned
the reactions of undergraduates to magazine advertisements.
A-98.
- 6 -
of tests which distinguished between higher and lower-ranked
firefighters was assumed to be valid for selecting firefighters
from applicants. Hay Report pp. II-3-4.
Although it was selecting a test for a physical job, Ex.
5/
105, p. 25, Hay did not even consider including any physical
measures among the trial tests from which it selected its
recommended test battery. Hay Report p. II-7, T. 916-20. Its
selection among paper-and-pencil tests, moreover, relied on a
twenty year old edition of Ghiselli's The Validity of Occupa
tional Aptitude Tests, T. 1327, which had long been superseded
by an edition which warned that "the proficiency of firemen,
however, does not seem to be well predicted by tests” of the
type Hay selected for inclusion in its trial battery. Ex. 66,
p. 82.
Hay also compared performance ratings of the white and
black firefighters in its sample and found that although the
blacks were rated slightly lower, the differences were not
statistically significant. Hay Report 11-10, T. 1264. Scores
on subtests were compared and those in which Hay found signifi
cant differences between black and white scores were not con
sidered for inclusion in the test battery. Hay Report p. II-
6 /
10. Only fifteen minorities were among the firefighters
5 / Compare Vulcan Society v. Civil Service Commission, 490 F .
2d 387, 397-98 (2d Cir. 1973), discussing the importance of a
competitive physical test in view of the "high physical demands
of a fireman's job." Id. at 397.
6/ Hay's calculations were later found to contain data errors,
see Appendix A, which led it to include in its recommended test
battery a test with a strong discriminatory impact. See App.
15-16.
- 7 -
for whom Hay had complete data, and there were no hispanics at
all in the sample. T, 1265. Hay accordingly made no claim that
its test battery was valid for hispanics, T, 1542, Bridgeport
city officials, in fact, never directed McCullough's attention
to the problem of potential bias against hispanics; he testi
fied that after talking with defendants and the other consortium
representatives he was left with the impression that there were
too few hispanics in the consortium cities for them to be an
object of concern, T, 1541, (Hispanics composed 14% of Bridge
port's population in 1974, Ex, 2, p, 98,)
Hay recommended that an applicant's score be calculated
as the sum of the number of right answers on the FIT Mechanics
test (out of a total of 30 questions) and the PRF Social Recog
nition scale (out of 20 questions) minus score on the PRF
Understanding scale (also 20 questions). Scores could theo
retically vary, therefore, from +50 to -20,
The test battery recommended gives every evidence of
7/
being the fruit of inexperienced effort. The FIT Mechanics
test, as plaintiffs' expert Dr, Richard Barrett explained, tests
"knowledge of nomenclature and some of the concepts that are
involved in mechanical work" (T. 2436), It largely tests know
ledge of words like "thermocouple" A - 92 q 4, "ductile"
7/ Copies of these tests are reproduced at A-92, Only the
questions on which answers were marked were scored on the PRF
test; the first of each pair of questions, nos, 13, 28, 43, 58,
etc,, are the "Social Recognition” scale, the second, nos, 14,
29, 44, 59, etc,, the "Understanding" scale. Because the
applicant's total score was computed by subtracting the score
on the Understanding scale from the sum of the scores on the
Mechanics and Social Recognition scales, a higher score was
achieved by giving the reverse of the answers marked "correct"
on the Understanding scale.
- 8 -
(q 3), "torque" (q 5), "journal" (q 9), "fluxes" (q 12),
"broach" (q 19) and "collet" (q 20) and knowledge of principles
that are of little use to a firefighter, such as the advantages
of a two-cycle engine (q 30) and causes of refrigerator mal-
8/
function (q 17).
The Personality Research Form scales, A-96, seem even
more inappropriate choices for a firefighter entrance exam, to
the point of being bizarre. The Social Recognition scale gives
credit to candidates who agree with statements like, "I con
stantly try to make people think highly of me" (q 103) and dis
agree with statements like, "I don't try to 'keep up with the
Joneses,"' (q 238) and, "When I am being introduced I don't
like the person to make lengthy comments about what I have
done" (q 268). Since the Understanding scale was rated nega
tively, candidates scored higher with statements like, "Abstract
ideas are of little use to me" (q 134) and, "If the relation
ships between theories and facts are not immediately evident,
I see no point in trying to find them" (q 74), and disagree
ing with statements like "I have unlimited curiosity about
many things" (q 89) and, "When I see a new invention I attempt
to find out how it works" (q 149).
Hay's suggested use of the Understanding scale tended
to exclude persons who were "inquiring, curious, analytical,
exploring, intellectual, scrutinizing, theoretical, astute,
rational, [and] inquisitive," Ex. 70, p. 7, despite the testi-
8/ The FIT Mechanical test describes itself as "test of your
knowledge of symbols, devices and principles..." A. 93.
-9-
mony of Chief Gleason that a good firefighter must be well-
educated, Ex. 105, p. 23.
The validity report alleged to justify use of this test
battery summarizes Dr. McCullough's methodology and reports
£ /
some of his statistical findings. It does not, however,
include the underlying data which supports Dr. McCullough's
computations and conclusions. Plaintiffs requested production
of this data, only to learn that Hay claimed to have destroyed
it six months after this suit was filed, T. 1633, despite Dr.
McCullough's awareness of the likelihood that his study would
be challenged in court. T. 1530. In response to a court order
requiring production of the data, Hay produced a box of punch
cards, alleging they were not the cards which produced the data
underlying the report. T. 429.
1 0 /
Plaintiffs' expert, Jon K. Peck, performed a masterful
piece of scientific detective work and established beyond ques
tion that the box of cards produced by Hay did indeed contain
the data that were in the report, A summary of his proof
9/ Although this report is critical to the claims of the
City and the -intervenors, the copies they have provided in this
Court are missing both the appendices and three pages from the
main text. Accordingly, a complete copy of the report, which
is in evidence, Ex. 5, is annexed to this Brief.
10/ Dr. Peck is the Director of the Social Science Computing
Facility at Yale University (T. 446, 448-49) and has been a
member of the Yale faculty since 1972 (T. 447), teaching, among
other subjects, statistics at the graduate level. (Ibid.) He
has written computer programs which are used around the world
(T. 449-50) and has published widely in the field of mathe
matical and statistical analyses of data in the social sciences.
(T. 450.) His article on the statistical analysis of the deter
rent effect of capital punishment was cited by the United
States Supreme Court in Gregg v. Georgia, 428 U.S. 153, 184 n.
31, 235 n. 8 (1976).
- 10-
of the identity of these cards is attached as Appendix A to this
Brief, as is the basis for the two additional startling discov
eries he was led to make by his examination of the data on the
cards: first, that the correlation between test score and per
formance rating reported by Hay for Bridgeport, the single most
critical datum in the report, was artifically inflated by an
error in recording the data; and second, that Hay's claim to
have eliminated biased tests was false, based upon confusion
in handling the data.
Though the correlation reported by Hay between proficiency
as measured by supervisors' performance ratings Ceven when
inflated by error) was only ,24 in Bridgeport, which was not
statistically significant and meant that the test accounted
for only about 6% of the variance in firefighter scores, Hay
Report p, 11-12, Hay nevertheless recommended that it be used,
Id. p. 11-19. This recommendation was accepted uncritically
by Bridgeport, T, 967, although no other Connecticut city has
used the recommended test.
The Disparate Impact of the Test
The defendants not only claimed to have destroyed the
evidence underlying their claim of job relatedness, but their
conduct made the data relating to the discriminatory impact of
the 1975 test unavailable except through extraordinary effort,
Prior to 1975 the City had collected racial data on finger-print
cards from all applicants, T, 617. These cards were used by
plaintiffs in Bridgeport Guardians, supra. In 1975, the Per
sonnel Director, Allan Cohen, decided not to use fingerprint
- 11-
card forms with racial data, T. 972, thereby preventing compila
tion of data showing the discriminatory impact of the test.
He made this decision despite having been a named defendant in
Guardians, knowing that these cards were the only source of
racial identification of applicants, and being aware that the
Fire Department and its testing process was a likely target
of a lawsuit (T. 617-20).
Sufficient data was nevertheless obtained. Pursuant to
court order (see Docket entry 16) all applicants were sent a
questionnaire requesting racial identification. In addition,
plaintiffs were able to identify the race of certain applicants
who did not return the forms. (See, e .g ., Ex. 35, #68.) All
the applicants who took the test filled out application forms
containing their age and educational level, and plaintiffs
obtained this data as well. Ex. 22. The data show a striking
disparity between white and minority pass rates on the 1975
test:
NUMBER TESTED NUMBER PASSING PASS RATE
WHITE 530 184 34.7%
WHITES AND RACIALLY
UNIDENTIFIED 685 184 26.9%
MINORITIES 86 8 9.3%
Ex. 49.
Minorities passed only one-fourth as frequently as whites.
Even assuming that every one of the unsuccessful candidates who
were not racially identified was white, the pass rate for whites
would still be 27%, three times greater than the minority rate.
- 12 -
P
E
R
C
E
N
T
O
F
G
R
O
U
P
DISTRIBUTION OF 1975 TEST SCORES
w
H 3m SOURCE: EXHIBIT 51
Note: "White" includes racially
unidentified.
-12a-
These disparities were found by Dr. Peck to be statistically
significant: even assuming all unidentified failing candidates
to be white, the likelihood of the observed differences between
the average white and minority score occurring as the result of
chance was less than one in ten thousand. T. 510A. The dif
ferences in pass rates reflected strong and consistent bias
against minorities across the entire range of scores on the
test. The distribution chart shows the percentage of minority
and white candidates in each interval of scores. Inspection
shows that minorities are clustered near the bottom, whites
near the top.
Recruitment and Affirmative Action
By 1975, the City had been found guilty of race dis
crimination in employment in the Guardians case and was acutely
aware of its legal responsibility to recruit actively for the
Fire Department. Ex. L. It accordingly considered an active
recruiting program, including radio ads, a recruitmobile, es
tablishment of neighborhood offices and other efforts to recruit
minorities. Id. At trial, city officials claimed to have con
ducted a vigorous recruitment campaign including paid adver
tisements on radio programs popular with minorities and use of
minority police officers to recruit firefighter applicants.
T. 865-66, 954.
But rebuttal evidence belied these claims: it revealed
that neither the minority police officers , T. 1955-59, nor
two of the three radio stations had ever been contacted by the
City in connection with recruitment for the exam. T. 1950,
-13-
2185, 2405-09.
The net result of the Bridgeport "recruiting program”
was the hiring of three minority firefighters. As in previous
years, recruitment was apparently primarily by word of mouth.
For example, one of the intervenors testified, "[With] the last
group of men that came on there were four Firefighters who came
on whose fathers were on the job... [And in addition] there's
brothers, yes." (T. 1948). Nepotism, then, attracted more new
white firefighters than the City's entire "recruiting program"
attracted minority firefighters, even with the substantial
efforts at minority recruiting that were made without signifi
cant help from the City. T. 57.
Recruitment was undertaken for the 1975 exam by a coali
tion within the minority community. Tom Thompson went to per
sonnel director Allan Cohen early in 1975 to inform him that
this coalition, consisting of several organizations, wanted
to help recruit minorities for the 1975 test. X 49. Specific
ally, the coalition wanted to help minorities prepare for the
entrance examinations, T. 49-50, and Thompson asked Cohen for
guidance in designing a training curriculum. X 51.
Cohen suggested that the coalition guide itself by
requirements outlined in the Notice of Examination issued by
the Fire Department and directed Thompson's attention specific
ally to the following:
"...candidates must possess the following:
mental alertness, mechanical aptitude for
increasing knowledge of the trade and for
learning the variety of work performed by
Firefighters; good knowledge of first aid
y and a working knowledge of the geography
-14-
of the City of Bridgeport; ability to read
and write understandingly [sic] the English
language." (T. 42; Ex. 10.)
The minority coalition recruited actively in the minority
community, T. 53-54, and, acting on Cohen's advice, designed
and conducted a seven-week training program for the exam. The
training consisted of intensive review of firefighting skills,
first aid, the geography of Bridgeport, test-taking skills,
T. 55-7, and a program of physical conditioning, T. 153. The
members of the training classes were cruelly disappointed when
they took the actual firefighters' exam, which bore no relation
whatever to the material they had been led to believe would be
on the test. As Raul Laffitte testified, the minority appli
cants could only feel as they left the exam, "Well, the City
have fooled us again" (T. 161).
The City's own Affiramtive Action Program, A-64-81, which
constitutes an admission by the City, is a searing indictment
of the City's employment policies toward minorities. After
identifying the categories of employment which most severely
underutilize minorities, including Public Safety, A-68, the
Affirmative Action program traces this exclusion of minorities
to exclusionary features of the City's employment policies
including:
limited and unimaginative recruiting not directed at the
minority community, A-68-69;
"lack of confidence in the City's hiring policies and
performance" in the minority community, A-69;
a "high degree of partiality [by the Civil Service Com-
-15-
mission] in establishing prerequisite job qualifications ...
for classified positions," id.;
lack of job validation and job analysis, A-70;
failure to use an "open application” procedure, id. ;
restrictive promotional rules and lack of counseling, id;
and a seniority system which '"locks in' the preponder
ance of whites and secures their perpetual upgrading and promo
tions, while 'locking out' members of the protected classes,"
A- 71.
The Affirmative Action Program was adopted only after
years of intransigence and grudging half-measures on the part
of the City had provoked a cut-off of Federal funding by the
Connecticut Commission on Human Rights and Opportunities, T-
647-48, provoking Mayor Mandanici to refer to Human Rights
Commissioner Arthur Green as a "black bastard," T. 699. No
visible steps have been taken to implement the Plan since its
adoption, T. 375; 1900-05; Ex. 35 #75-92, and the evidence
revealed that the City has in fact abandoned the goals and
timetables it set for City agencies, including the Fire Depart
ment, T. 1899, without, however, informing the agencies to
which it reports that it no longer intends to live up to the
promises it made to them and its minority citizens. Id.
Individual Instances of Discrimination
Several applicants were victimized by the office of
civil service. The witness Elias Castro was a firefighter in
the United States Air Force (T. 122). When he was discharged,
he moved to Bridgeport and immediately attempted to apply to
-16-
the Fire Department, but the Department of Civil Service refused
to accept his application on the ground that no test was then
scheduled (T. 124). He thereupon enrolled at Norwalk State
Technical College majoring in fire technology (T. 125), and
found employment at Dupont as a member of their fire squad
(T. 126). When the 1975 test was announced, Castro obtained
and filed an application form at ABCD, a community (not City)
agency. T. 128. The civil service commission insisted (as
New Haven, for example, did not) that forms could be filed only
at the Civil Service office. T. 608. Castro discovered on the
last day for applying that civil service claimed not to have
his application form. He rushed to the civil service office
several hours before it closed to obtain another form, but was
told it was too late and that he could not apply and was not
given a form (T. 130), nor would the civil service employee he
spoke to permit him to speak to the employee's supervisor.
He was later told that his application had been found but was
marked "late" (T. 136) , and indeed it was produced by defendants
at trial (Ex. A) marked 6 days late (T. 613-14) and rejected
on that basis, despite Castro's diligent and persistent efforts
to apply to the Fire Department.
Raul Laffitte also filled out his application at ABCD
(T. 157). He received no notice of the exam and went to the
Civil Service office to find out why, only to be told that the
City claimed to have no record of his application (T. 158-59).
He too was denied an opportunity to sit for the exam.
Harmin Linares filed an application (T. 812) at the
-17-
Bridgeport Civil Service office but was never notified of the
time and place of the exam (T, 822), contrary to the Civil
11/
Service Charter regulation.
Ismael Pomales took and passed the exam (T, 876) but was
never notified he had done so nor notified of the physical agil
ity exam. He first learned he had passed the test when he
received a notice from the City that his name was being stricken
from the eligible employment list on account of his failure to
appear at the physical agility test (T, 175) --which he had
never been informed was being held. The City offered no explan
ation or refutation of this testimony or that of Castro,
Laffitte and Linares; their experiences exemplify part of the
pattern and practice of discrimination which has so efficiently
excluded minorities from the Bridgeport Fire Department,
11/ [The personnel director] shall see that the applicants
whose applications are accepted are notified of the time and
place of the test. (Ex. 9, p, 25).
-18-
SUMMARY OF ARGUMENT
The 1975 firefighter test concededly had a sharp disparate
impact on minority applicants. The validity study on which the
City rested its defense of the test was not only methodologically
defective but on its own terms demonstrated only that score on
the test did not predict job performance. The trial judge, who
properly required defendants to demonstrate job relatedness,
accordingly did not err in finding not only that they had failed
to do so but that the evidence affirmatively established that
score on the test was unrelated to job performance.
The quota remedy selected by the district judge was a
measured response to the discrimination proven at trial. The
completeness of the exclusion of minorities, the fact that it
continued while the City was allegedly engaged in a vigorous
recruitment and affirmative action plan in response to the rul
ings in Bridgeport Guardians, the limitation of the quota to the
entry level, the need to assure minorities that jobs are at last
available to them, and the immediate necessity to fill depart
mental vacancies, among other factors, all show that the quota
relief was within the broad discretion of the district judge.
Most crucially, the size of the quota closely fit the scope of
the post-Act discrimination proven at trial: it is tailored
to, and will, rectify imbalances shown to be the product of
unlawful discrimination, rather than pre-Act imbalances which
are insulated from review.
Hiring preference for the minority victims of the biased
1975 test is also appropriate precisely because they are the
-19-
most direct victims of the City's discrimination. Dispensing
with a written test will not prejudice the public interest in
assuring the qualifications of firefighters because this case
demonstrates the conclusion of experts in the field that perform
ance on written tests has little to do with performance as a fire
fighter. Successful firemen are chosen, in Bridgeport as else
where, by selecting those healthy, physically fit applicants who
have the courage and desire to accept the job. There is no evi
dence that minority applicants who meet all the job related cri
teria set by the court and accept appointment will lack any of
these qualities.
Finally, the awards of backpay and attorney's fees, and
the very modest seniority and promotional relief, were within
the discretion of the district judge; but eligibility for back
pay should be extended to deterred non-applicants and discrimina-
tees who, through the passage of time since being refused appoint
ment, no longer desire appointment or cannot meet job related
criteria.
-19a-
ARGUMENT
I. THE TRIAL JUDGE APPLIED PROPER LEGAL
STANDARDS IN DETERMINING THE LAWFUL
NESS OF THE 1975 TEST, AND HIS FACTUAL
FINDINGS WERE NOT CLEARLY ERRONEOUS
A. The Evidence of Disparate Impact Was
Overwhelming and Uncontested
Of the eighty-six identified minority applicants who sat
for the 1975 test, eight, or 9%, passed, compared to 35% of the
candidates identified as white and 277> of the white and racially
unidentified candidates combined. See p. 12> supra. White
candidates passed more frequently than minorities, then, by a
ratio between 3:1 and 4:1, differences which were strongly sta
tistically significant. The disparate impact of the test
helped create a startling underrepresentation of minorities
among those who were hired from the 1975 list: though minori
ties constituted 41% of Bridgeport's labor force, p. 4, supra,
only eight, or 4.27a; of the 192 candidates who passed the 1975
test were minority, Ex. 49; of those actually hired, three, or
3.6% were minority. T. 1924; 7/20/78 at 56-57.
These statistics plainly justify the trial judge's finding
of disparate impact. See, e .g ., Griggs v. Duke Power Co., 401
U.S. 424, 430 n.6 (1971); Chance v. Board of Examiners, 458 F.
2d 1167, 1171 (2d Cir. 1972); Vulcan Society v. Civil Service
Commission, 490 F. 2d 387, 392 (2d Cir. 1973); Uniform Guide
lines on Employee Selection Procedure, 29 CFR 1607 (1978)
(Hereinafter "U.G .E .S .P .") Sec. 4D.
The disparate impact of the test is even more striking in
- 20 -
light of the evidence that none of it could be attributed to
differences between white and minority applicants in amount
of formal education. Because the test deliberately penalized
intellectual curiosity and a liking for logical thought, T.
1685-95, plaintiffs’ expert, Dr. Peck, found through statisti
cal analysis that the better-educated the candidate, the lower
his score. While minority candidates as a group had less
formal education than the whites, this difference does not
account for the disparity in test performance; on the contrary,
minority candidates would be expected to have done even worse
relative to whites if their educational levels had been equal.
Ex. 53; T. 556-60.— /
Appellants apparently do not contest the finding of dis
parate impact (see Int. Brief at 28; City's Brief at 4-5),
choosing to assert instead that the trial judge erred in hold
ing that the City had the burden of justifying the test's dis
criminatory impact by showing that the test was job related.
12/ Hay purported to eliminate tests which were biased against
blacks (since there were no hispanic firefighters studied, it
conceded it had shown neither fairness nor validity for his-
panics, T. 1265, 1542). But because of prior discrimination
there were only fifteen blacks in the Hay sample for whom usable
data was obtained, all of whom had been hired precisely on account
of their ability to pass culturally biased tests. Moreover,
the claim of lack of bias is false: Dr. Peck showed that cor
rection of data errors revealed a strong bias against blacks
on one of the recommended tests even among the incumbent fire
fighters sampled in the Hay study. App. 15-16.
- 21-
B . The Trial Judge Applied Proper
Standards in Finding the 1975
Test Not to Be Job Related, and
His Findings Are Clearly Sup-
ported by the Evidence
1. The Judge Applied the Proper Legal Standard
Appellants' central claim with respect to liability is
that the trial judge improperly "required ultimate persuasion
that the test was job-related, that is, that it predicted per
formance," Int. Brief at 31. They appear to concede that they
did not meet this burden, claiming that doing so is an impos-
sib[le]...task," Id. We agree that the judge applied this
standard: he was required to do so. This Court and the
Supreme Court have reiterated the standards for evaluating
claims of job relatedness in a long series of cases, which hold,
without dissent or hint of modification, that practices shown
to have a disparate impact on a protected group violate Title
VII unless the employer succeeds in showing them to be "demon
strably job related." See, e .g ., Dothard v._Rawlinson, 433
U.S. 321, 329-32 (1977); Teamsters v. United States, 431 U.S.
324, 335-36 n. 15, 349 (1977); General Electric v. Gilbert, 429 U.S
125, 137 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405,
422, 425 (1975); Griggs v. Duke Power Co., 401 U.S. 424, 430-
32 (1971); Equal Employment Opportunity Comm'n. v. Local 638,
532 F .2d 821, 826 (2d Cir. 1976); see also, Kirkland v. New
York State Department of Correctional Services, 520 F.2d 420,
425-26 (2d Cir. 1975); Vulcan Society v. Civil Service Commis
sion, 490 F .2d 387, 392-94 (2d Cir. 1973).
Intervenors argue that Furnco Construction Co. v. Waters ,
- 22-
57 L.Ed. 2d 957 (1978), governs this case, but Furnco was, of
course, a disparate treatment case, in which there had been no
showing of disparate impact, and the defendant was accordingly
required only to articulate a non-racial basis for its rejection
of plaintiffs, not to demonstrate sufficient job relatedness
to justify a practice shown to have a substantial disparate
racial impact. 57 L.Ed. 2d 966 n.7; see also id. at 970-72
(Marshall, J., concurring and dissenting).
As for the alleged impropriety of focussing on whether a
test is "job-related, that is, that it predicted performance,"
Int. Brief at 31, it is difficult to imagine what else a court
would be interested in when evaluating a claim of concurrent
validation, the essence of which is discovery of a test or
other measure which correlates with, that is, predicts, per
formance on the job. See, e .g ., Vulcan Society, supra, 490
F. 2d at 394-95.
The suggestion that the standard of review of a defend
ant's claim of job relatedness in a discriminatory impact case
should be the same as that applied to findings of administra
tive agencies under the Administrative Procedure Act (Int- Brief
at 36-38) is offered with no support whatever in the case law
and is nonsensical. Judicial review under the A.P.A. is from
the findings of quasi-judicial agencies deemed specially com
petent to make the factual determination in question; review
of job-relatedness under Title VII is only triggered by a
finding that the accused employer has engaged in a discrimina-
-23-
13/
tory practice.
The trial judge properly declined to avert his gaze from
the evidence which persuaded him the 1975 test had not been
14/shown to be job related.— Appellants have the matter back
wards : it is not the courts who owe deference to employers
who utilize discriminatory tests; instead, trial courts are
required to determine if tests with a disparate impact are job
related as a matter of fact, and these findings of fact are
entitled to stand unless they are shown on appeal to be "clearly
erroneous." Fed. R. Civ. P. 52(a); see e .g ., E.E.O.C. v. Local
638, supra, 532 F.2d at 827; Kirkland v. New York State Depart
ment of Correctional Services, supra, 520 F.2d at 426; Vulcan
Society v. Civil Service Commission, supra, 490 F.2d at 391-92;
Bridgeport Guardians v. Civil Service Commission, supra, 482
F.2d at 1337; Chance v. Board of Examiners, supra, 458 F.2d at
13/ So far are discriminatory employers from having special
expertise in the area of test validation, moreover, that the
Congress which extended Title VII to state and local governments
specifically found that employers seldom understand the complexi
ties of fair employment testing under Griggs v. Duke Power Co.,
supra. H.R. Rep. No. 92-238, at 8-9, 92d Cong., 1st Sess . , (1971) .
Indeed in this case the City defends its conduct on the grounds
that it relied on the testing company it hired; it was not compe
tent to see the defects in the test found by the court; and it
should not be held responsible for any shortcomings of its
retained experts. City's Brief at 13; see T. 966-67.
The court is asked to defer not to the City of Bridge
port's special competence but to that of the consulting company
which designed the discriminatory test under review.
14/ In fact, the trial judge did not find merely that the
defendants had failed to demonstrate job relatedness; he held
that the evidence showed affirmatively that the test was not
job related, 9/12/78, at 51. This case does not turn, therefore
on allocation of the burden of persuasion.
-24-
1175. Review of the evidence shows that it amply supports
the judge’s finding.
2. The Evidence Compelled the Judge's Finding
Thit the Test Was Not Job Related
a) The Correlation with Job Performance
Even if the methodology of a validity study were perfect,
it is rudimentary that use of a test battery would not be
justified unless the study showed that the test had a sufficient
correlation with job performance: a perfect study producing a
low correlation serves only to demonstrate that a test is not
job related. As the trial court found explicitly at the
hearing on the stay application, 9/12/78, at 51, the Hay Study
flunks even this basic test of job relatedness.
The correlation reported by Hay between test score and
job performance for Bridgeport firefighters concededly is
statistically insignificant. Hay Report 11-12, 13. This fact
alone justified the trial judge's rejection of the claim of
job relatedness, see, e .g ., U.G.E.S.P. (1978) Sec. 14B(5),
because it means by definition that there is no basis for con
cluding that the correlation did not occur purely by chance,
see T . 1543.
Hay claimed that the results in Bridgeport should be com
bined with results in other cities and that when combined a
statistically significant correlation was obtained, but the
- 2 5 -
judge was hardly required to accept that assertion: among other
factors, results in New Haven, which had the largest number of
firefighters taking the trial battery, were not reported by Hay
with respect to this test, and in fact showed a negligible
correlation, App. 14; even the correlations for all the cities
which Hay combined were, it admitted in its report, "only mar
ginally significant," Hay Report 11-12; although Hay claimed
that results in Bridgeport, which were not significant, should be
combined with those for Hartford, which were, earlier in its
report it had reported that combination of results from differ
ent cities was inappropriate precisely because statistically
significant results were found in one city but not the others,
id. II-11; while the correlation in Bridgeport, though not
statistically significant, was alleged by Hay to be "similar"
to correlations in other cities, justifying combination of the
data, any similarity arose solely from a clerical error by Hay
which yielded a reported correlation of .24 while the actual
correlation was .13, App. 8-9, see T. 1340; finally, Hay's claim
that the job must be the same in all cities involved but New
Haven, where it must be different is unsupported by any evidence:
in fact, Hay decided in the first place that the jobs in differ
ent cities were similar by comparing New Haven and Meriden, the
only cities for which it obtained job descriptions, Hay Report
(unpaginated).
In addition to being statistically insignificant, more
over, the coefficient of correlation was far too low to compel
-26-
a finding that the test selected the best firefighters. The
Hay study characterizes the correlations it obtained as "relative
ly low," 11-13. This modesty is appropriate; the correlation re
ported for Bridgeport was .24, which means that score on the
test battery theoretically accounted for (.24)^, or less than 6%,
of the variance in the performance ratings of firefighters. T.
1241, 1336, 2204-05. In fact the true correlation for Bridge
port was even lower, .13, App. 9-10, which means that test score
accounted for only 1.7% of the variance in firefighters' perfor
mance rating or, conversely, that it did not account for over
98% of the variance. The correlation for the entire sample,
which the intervenors claim is the most relevant statistic, Int.
Brief at 22, is nowhere reported in the Hay study but was com
puted by plaintiffs' expert, using Hay's data, as .14, which is
15/
negligible, App. 13.
Assuming the study's methodology was perfect, then, we are
left only with the conclusion, properly drawn by the trial court,
that "the firefighters exam administered in 1975 did not disting
uish qualified from unqualified applicants." 454 F. Supp at 759.
15/ The uselessness of the test as a selection device is demon
strated by Table VIII of the Hay study. Of the ten Bridgeport
firefighters with the lowest test scores, according to the Table,
five, or half, were rated above average by their supervisors,
while of the fifteen with the highest scores, eight were above
average and seven below--virtually the same distribution. Dr.
Peck showed that one of the firefighters was improperly listed
in the lowest right hand cell--low scoring and below average
in performance--because of a data error. App. 9-10, 12-13-
Removing this erroneous entry, we find that five of the nine lowest
scorers on the test were rated above average--a higher percent
age than among the fifteen highest scorers, suggesting that the
test would be more effective if hiring were done by choosing the
candidates with the lowest test scores.
-27-
But, as the trial judge found, the methodology of the study, like
its findings, did not support its recommendations. The methodolo
gical defects are particularly grave in view of the low correla
tion .
b) The Methodology of the Study.
The trial judge found several major flaws in the methodol
ogy of the validity study, and his findings, while attacked by
appellants as excessively sweeping and setting an impossible
standard, are well-founded in the record.
The job analysis
The judge's finding that the job analyses underlying the
study were "perfunctory," 454 F. Supp. at 756, may be confirmed
16/by examining the descriptions, and are supported by the testi
mony of plaintiffs' expert Dr. Richard Barrett, whose testimony
has been relied on by courts in leading testing cases includ
ing Griggs, Albemarle, Bridgeport Guardians, and Chance.
Dr. Barrett pointed out that the job analysis underlies
the formulation of criteria on which performance is evaluated;
the sketchy job analyses led to a vague and generalized list of dimen-
17/
sions on which supervisors were asked to rate firefighters. T. 2440-44.
16/ Although appellants attack the trial judge's criticism of
Hay's job descriptions,Int. Brief 16-17, they have omitted them
from the copies of the Hay report they submitted in this Court.
They have also omitted other material from the report, including
pages 11-14, 15, and 17. Accordingly a complete copy of the
Hay Report is annexed to this Brief. The descriptions are at the
end of the Report (but are unpaginated).
17/ Neither Dr. Barrett nor the court suggested, as the inter-
venors imply, Int. Brief at 16, that the job analyses must be
as detailed in a criterion related validity study as in a content
validity study; they concluded simply that this job analysis
and these dimensions were too skimpy to provide confidence in the
validity of the supervisory ratings which depended upon them.
-28-
In addition, Dr. Barrett testified, the procedure of weighting
traits such as "public relations" as heavily as "composure under
pressure" in the performance ratings is at war with common sense
as well as accepted procedures in the field of testing. T. 2442.
Ranking procedure.
The judge did not hold, as intervenors assert, Int. Br. at
33, that rankings may never be used instead of ratings; it found
only that in this study, where supervisors frequently ranked
18/only two or three firefighters, the ranking disclosed very
little about the proficiency of the firefighter being ranked.
454 F. Supp. at 756.
Training of the rankers.
Despite the importance of training the persons assigned to
do the rankings, emphasized by Dr. Barrett, the author of a
book on performance ratings, T. 2246-47, no training in giving
rankings was given supervisors in the Hay study, T. 1357-58, and
as a result Bridgeport supervisors took an average of only half
an hour each to assimilate the content of the rating scale and
the procedure to be followed and to rank each of their subordin
ates on eleven different dimensions. T. 923-24. Even defendants'
expert would only claim that this amount of time might be ade
quate if the rankers were familiar with the dimensions on which
they were to rank their men, and performed rating functions as
part of their jobs, T. 1539--neither of which conditions was
18/ Hay did not report the sizes of the groups of firefighters
ranked by each supervisor but the figures on which the court
relied were derived by plaintiffs' expert Dr. Peck from the
data provided by Hay. App. 14, T.2239-40.
-29-
shown to be met in the Bridgeport Fire Department. T. 1539-40.
Use of volunteers.
Dr. McCullough admitted that the use of volunteers should
be avoided whenever possible because their motivations may differ
from those of a more representative sample of subjects. T. 1435.
Yet, astonishingly, Hay did not warn the consortium cities to
avoid the use of volunteer subjects, T. 1436, 925-27, and
Bridgeport did indeed use volunteers to take the sample test
battery, T. 1931. As a result only about half of those eli
gible from Bridgeport took the test, T. 929, and there is no
information whatever about the composition of that half (except
that, like the rest of the Department, it was all white). Bridge
port clearly could have required all eligible firefighters to
take the tests: it apparently gave supervisors no option to re-
fuse to complete the ranking forms. T. 931.— '
22/ The impropriety of using volunteers is particularly signi
ficant here because two of the three components of the battery
selected were the PRF self-evaluation scales, results on which
are particularly sensitive to distortions when given to groups
who, like volunteers, may have different motivations from other
persons taking the tests. T. 2447.
The s'ame problem arises when the PRF tests are used as
employee selection devices. As the test manual accompanying the
PRF warns,
...[i]f the PRF is to be used for personnel
selection, normative and validity studies should
be conducted under conditions where subjects are
seeking employment or are similarly motivated.
Ex. 7, p . 13.
Job applicants--particularly minorities, aware of the City's use
of tests to exclude them from the fire department--could not be
expected to respond with the same unguarded spontaneity as the
incumbent firefighters, who were assured their test scores
would be neither used for evaluating them nor even disclosed.
-30-
The trial judge did not, in short, establish rigid rules
which are contrary to accepted opinion in the field of employ
ment testing; on the contrary, his conclusions were supported
by expert testimony, were closely tied to the factual setting
of this particular study, and were contradicted only by the
testimony of the two persons who had been paid to do the study,
which he was hardly bound to accept in preference to the testi-20 /mony of plaintiffs' experts.—
II. DISCRIMINATION IN HIRING PRIOR TO
THE 1975 TEST IS CLEARLY ESTABLISHED
BY UNCONTROVERTED EVIDENCE
A . The Evidence
The trial judge did not specifically address plaintiffs'
claims of discrimination in hiring between March 24, 1972, the
effective date of Title VII, and the 1975 test; but these claims
were clearly established by uncontroverted evidence.
Between March 24, 1972, and the 1975 test, the City hired
28 firefighters, all white, Ex. 13, pp. 7-8, 11. Plaintiffs
proved that these men were hired on the basis of a discriminatory
test which was admitted not to be job related.
Prior to 1975 the Fire Department used tests similar to
those found discriminatory in Bridgeport Guardians, supra, in
fact published by the same company. Ex. A-l, T.404-06. These
tests were the primary device excluding minorities from the
Bridgeport Fire Department. For the years for which figures
20/ The cut-off score, which is conceded to be arbitrary, and
appellants' suggestion that it be modified, are discussed below,
pp. 43-46.
-31-
are available, 1965-1971, white candidates had a pass rate on
these tests of 36.1%, while only one minority candidate out of 21
passed, a pass rate of 4.8%, p. 5, supra. The ratio of white
to minority pass rates was therefore 7.5 to 1. (On the 1971
test, from which all post-Title VII hiring was done, the white
pass rate was 31.1%, the minority pass rate one out of seventeen
or 5.970, yielding a ratio of 5.4 to 1 .) Dr. Peck testified that
the discrepancies in pass rates were statistically significant,
even assuming all unidentified candidates who failed were white.
T. 530, 533.
These discriminatory tests, including the 1971 test,
from which post-Act hiring was done prior to 1975, were conceded
by the defendants not to be v a l i d , Doc. 62, Nos. 96-98; T.
310, 873. The 1971 test, in fact, was used by defendants' ex
pert to demonstrate a spurious form of job relatedness, T. 1234-
35, and the intervenors characterize tests of its type as
"discredited," Int. Brief at 23.
B . This Discriminatory Post-Act Hiring is Not
Legitimized By Virtue of Being Based on a Pre-
Act Employment List.
The only plausible objection to a finding that this post-
Act hiring was un l a w f u l is that because it was done on the
basis of a test given before Title VII was made applicable to
municipalities it was "pursuant to a bona fide...merit system"
under Section 703(h) of the Act, 42 U.S.C. §2000e-2(h). See, e .g .,
United States v. City of Chicago, 573 F.2d 416, 424 (7th Cir.
1978) (issue raised but not decided). The argument is that the
reasoning of Teamsters v. United States, supra, requires that
-32-
discriminatory pre-Act employment lists be immunized from
liability under Title VII, as seniority systems are immunized
even when pre-Act discriminatory refusal to hire or transfer
has deprived minorities of an opportunity to gain seniority.
See id. at 348-55. But this claim for immunity was not raised
by the appellants^-/ and in any event is groundless.
The meaning of the key words "seniority" and "merit" in
the Act show the difference between the claims for immunity here
and in Teamsters. A bona fide seniority system is one in which
employment decisions are based upon seniority; a bona fide
merit system is one in which decisions are based upon merit.
A "seniority" system in which decisions were based not upon
actual seniority but upon some criterion alleged to correlate
with it (for example, score on a test of knowledge of the history
of the company) would be subject to challenge if the criterion
had a disparate racial impact and did not in fact measure senior
ity. Likewise, a "merit" system in which decisions are based,
not on merit, but rather on the results of a discriminatory
test unrelated to merit, cannot be called bona fide. The
true parallel to Teamsters would be a system in fact based upon
merit--the ability to do the job well--which is attacked by an
employee or applicant who alleges that past discrimination has
21/ The intervenors have only claimed, incorrectly, that
Title VII is inapplicable to pre-1975 hiring because it all
occurred pre-Act, Int. Brief at 7, and Defendants do not
address the point.
-33-
prevented him from acquiring job related skills. Such claims are
not recognized under Title VII, Griggs v. Duke Power Co., supra,
401 U.S. at 430-31.— '1
The legislative history on which the Supreme Court re
lied in Teamsters lends no support to the claim that discrimina
tory employment lists may be used if they were compiled before
Title VII was enacted. On the contrary, the interpretive memorandum
placed in the Congressional Record by Senators Clark and Case,
cited in Teamsters, 431 U.S. at 350-51, carefully distinguishes
seniority rights from the interests of applicants for employment:
Title VII would have no effect on established
seniority rights. Its effect is prospective
and not retrospective ....(However, where
waiting lists for employment or training are,
prior to the effective date of the title,
maintained on a discriminatory basis, the
use of such lists after the title takes effect
may be held an unlawful subterfuge to accomplish
discrmination.) 110 Cong. Rec. 7313 (1964)
(emphasis added).
This case is precisely the one envisaged in the memo
randum: the 1971 list is a waiting list for employment maintained
on a discriminatory basis, and hiring from it was therefore for
bidden by the Act. The argument that the 1971 list was not discrim-
22/ Cases under the Equal Pay Act, 29 U.S.C. §206(d), from which
the portions of §703(h) was drawn, see Vaas, Title VII: Legis
lative History, 7 BC Ind. & Com. L. Rev”] 431, 449-50 (1966), have
applied the "merit system" exemption in this common sense
fashion only to cases in which a male employee receiving higher
wages than the female plaintiff in fact had been determined to
merit them by superior performance. Herman v. Roosevelt Fed.
Sav. & L. Ass’n . 432 F. Supp. 843, 851 (E.D.Mo. 1977); Cupples
v. Transport Insurance Co., 371 F. Supp 146, 150 (N.D . Tex.),
aff'd 498 F .2d 1091 (1974).
-34-
inatory unless proven to be intentionally so is foreclosed by
Griggs and its progeny.
Any claim that there was no post-Act discrimination with
respect to the 1971 list because the list was compiled pre-Act
is also inconsistent with the "ability test" clause of §703(h),
which provides that it shall not
be an unlawful employment practice for an
employer to give and to act upon the results
of any professionally developed ability test
provided that such test, its administration,
or action upon its results is not designed,
intended or used. to dis criminate... 42 U.S.C.
§2000e-2(h) (emphasis added).
Contrary to the claim for immunity, this section makes no dis
tinction between administration of a test and "action upon its
results;" both are prohibited. The City in this case violated
Title VII not when it gave a discriminatory test in 1971 but
when it hired twenty-eight firefighters, none of whom were minor
ities, from a discriminatory list after the effective date of
the Act.
III. THE TRIAL JUDGE DID NOT ABUSE HIS
DISCRETION BY ORDERING A HIRING QUOTA
TO ELIMINATE THE EFFECTS OF THE CITY'S
UNLAWFUL DISCRIMINATION.
As this Court has only recently reaffirmed, it is by
now
clearly established that the granting of
race-conscious hiring relief in order to
eliminate the effects of past discrimination
does not violate any provision of federal law.
United States v. Wood, Wire and Metal Lathers
International Union, Local 46, 471 F.2d 408
413 (2d Cir.) , cert, denied, '412 U.S. 939
(1973); Bridgeport Guardians, Inc, v. Bridge
port Civil Service Commission^ 482 F.2d 1333,
1340 (2d Cir. 1973), cert, denied, 421 U.S.
-35-
991 (1975); Vulcan Society 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); Pat
terson v. Newspaper & Mail Deliverers' Union.
514 F.2d 767 (2d Cir. 1975), cert. denied.
427 U.S. 911 (1976). Seven other Circuits
ha[ve] adopted substantially the same posi
tion. E.g., Boston Chapter, NAACP, Inc. v.
Beecher. 504 F.2d 1017 (1st Cir. 1974), cert.
denied, 421 U.S. 910 (1975); Contractors Ass’n
v. Secretary of Labor. 442 F,2d 159, 171-174
(3d Cir. 1971), cert. denied. 404 U.S. 854
(1971); Morrow v. Crisler. 491 F.2d 1053
(5th Cir.) (en banc), cert. denied. 419 U.S.
895 (1974); United States v. Local 212. XBEW.
472 F.2d 634 (6th Cir. 1973); United States
v. Carpenters Local 169. 457 F.2d 210 (7th Cir.),
cert. denied. 409 U.S. 851 (1972); Carter v.
Gallagher, 452 F.2d 315 (8th Cir.) (en banc). cert.
denied, 406 U.S. 950 (1972); United States v .
Ironworkers Local 86. 443 F.2d 544 (9th Cir.),
cert. denied, 404 U.S. 984 (1971).
Prate v. FreeAnan, ___F . 2 d ___ _, No. 78-7008 (2d Cir. August
8, 1978), slip op. at 4357-58. Prate found that a court order
requiring two-fifths of all police officers hired in Rochester,
New York to be minority until 257, of the police force consisted
of minority groups was so clearly lawful that an attack on the
order claiming it constituted impermissible "reverse discrimina
tion" was unreasonable and vexatious. Even more recently, in
Fullilove v. Kreps, ___ F.2d ___ No. 78-6011 (2d Cir. September
22, 1978), this Court upheld the "10% set-aside" provision of
the Public Works Employment Act of 1977, 42 U.S.C. §6705(f)(2),
against similar objections, although the finding of discrimination
had been made not explicitly by a court after an adversary hear
ing but, impliedly, by Congress. And while clarification of the con
stitutionality of preferential hiring in the absence of findings
of prior discrimination must await word from the four members of
-36-
the Supreme Court who were silent on the constitutional issue
in Regents of the University of California v. Bakke, 57 L.Ed 2d
750 (1978), see id. at 845 (opinion of Stevens, J.), preference
is certainly permitted where, as here, there have been such
findings. Id. at 778, 782 (opinion of Powell, J.).
The issue, then, is not the legality of hiring quotas
per se but whether the trial judge abused his discretion by or
dering one in the circumstances of this case, in view of 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,” Bridgeport Guardians,
supra, 482 F.2d at 1340, the broad scope of equitable relief
permissible under Title VII, Franks v. Bowman Transportation Co. ,
424 U.S. 747, 763-64, 770 (1976), and the rule that "[T]he framing
of decrees should take place in the District rather than in
Appellate Courts," International Salt Co. v. United States, 332
U.S. 392,400 (1947) quoted in Vulcan Society, supra, 490 F.2d at 399
and Chance v. Board of Examiners, supra, 458 F.2d at 1178.
Examination of the facts confronting Judge Daly when he addressed
the remedy issue, after an evidentiary hearing at which both the
City and intervenors had an opportunity to present evidence but
declined to do so, shows that he was faced with a pattern of
exclusion that encompassed both "a clear cut pattern of long-
continued and egregious racial discrimination," Kirkland v.
New York State Department of Correctional Services, supra, 520
F.2d at 427, and substantial racial imbalance created by the
-37-
specific tests at issue in this lawsuit.
Prior to 1975 the Bridgeport Fire Department had only-
one black employee in its history; no black firefighters had
been hired since 1938, p.4 , supra. As of 1975 there were no
blacks in the Department and only one hispanic. A-73. Plain
tiffs proved that the exclusion of minorities from 1965 until
the present was accomplished in part by the use of four separate
tests which were not job related and operated to exclude minor
ities. This pattern of virtually total exclusion for forty
years and more surely meets any reasonable standard of "long-
continued and egregious racial discrimination:" it is more ex
treme than the conditions in Bridgeport Guardians, supra, which
was not only relied on by the Kirkland court in framing criteria
for the imposition of quotas but also cited with approval in
Regents of the University of California v. Bakke, supra, 57 L.Ed
2d at 778 (opinion of Powell, J.). Nor is the exclusion in this
case merely pre-Act discrimination, which would not justify the
imposition of any relief: of the 112 firefighters hired since the
effective date of Title VII, 109 are white and only three, or
2.7%, are minorities.
Appellants appear to suggest that since Title VII was
only applied to municipalities comparatively recently, there
cannot as a matter of law have been "long-standing" prior dis
crimination, and a quota is therefore not permitted under
Kirkland. The facts of this case show the weakness of this
argument. The point of the requirement of a long-standing
violation is first that the illegal practices must have caused
-38-
some injury which requires remedy, a condition which is satis
fied here by the discriminatory post-Act hiring, and second that
the violation must be serious enough to persuade the trial judge
that milder relief is inappropriate. The City's discrimination
against minorities after the effective date of Title VII could
properly be considered a graver offense, demanding a comparative
ly swift and sure remedy, because it continued many decades of
exclusion.
These defendants, moreover, are no strangers to the
courts. The hiring process for the Bridgeport Fire Department
is directed by the same department,and the same (all-white)
personnel, whose conduct was found discriminatory and found to
merit the impostion of quota hiring in Bridgeport Guardians.
They were acutely aware of their legal vulnerability and the
necessity to take measures to assure fair hiring practices
in the Fire Department, including both non-discriminatory testing
and vigorous r e c r u i t m e n t Y e t in 1975 the City not only
failed to recruit minorities and gave a discriminatory test,
resulting in the hiring of only three minorities, or 3.6% of the
84 candidates hired, but its officials misled community leaders
23/ For example, John Colligan, who was in charge of affirma
tive action for the 1975 firefighter exam, in a memo to the
Civil Service Commissioners, wrote:
In virtually all the class action suits brought
against communities for discrimination, in
cluding the Guardian case, cities have been
cited and criticized for not actively recruiting
minorities. Very often the lack of a recruiting
effort was used to justify the imposition of a
quota system or some other punitive [sic] action
against the Public Agency. (Exhibit l7T
-39-
seeking information about the entrance test, p. 14, supra,
failed to maintain required records of the race of applicants for
the 1975 test, although such records had been kept in the past,
P- 12> supra, and testified untruthfully, under oath, as the court
found, about the scope of the recruiting effort, pp. 13-14, supra.
A court order at this poin t directing affirmative action short
of a quota would simply invite repetition of the same pattern of
protestations of good faith accompanied by inaction and dis
crimination that constituted the City's response to being held
liable in Bridgeport Guardians.-^
In Kirkland, there had been no appointments from the unlawful
employment list, and this Court found that the rule that "the relief
to be granted will necessarily be restricted to the scope of the
proof," 520 F.2d at 428, quoting Vulcan Society v. Civil Service
Commission, 360 F. Supp. 1265, 1271 (S.D.N.Y.), affirmed in relevant
part, 490 F. 2d 387 (2d Cir. 1973), therefore counselled against
imposition of a quota. Here 112 appointments have been made, 84
of them from the 1975 list, and a quota is necessary as direct
compensation for the imbalances created by these tests. Neverthe
less, appellants argue that the hiring done before trial pursuant
— ' Intervenors argue that Kirkland requires a showing of
intentional discrimination before a quota may be imposed. Int.
Brief at 57-59. It does not: good faith is specifically men
tioned in Kirkland as a relevant factor which is, however, "not
dispositive of the matter." 520 F.2d at 428. No intentional
discrimination was shown in Bridgeport Guardians, supra; and
while the City made an effort to find a lawful test, it has
utterly failed, years after Guardians, to assure minorities
equal opportunity for employment in its fire department.
-40-
to the consent orders do not justify compensatory quota relief
because the orders were acquiesced in by the plaintiffs.
On the contrary, the consent orders support imposition
of a quota. They embody the acknowledgement of all parties and
the court that hiring from the 1975 list would create an im
balance which a quota might be necessary to correct.— / Plain
tiffs, believing that quotas are an appropriate remedy, acqui
esced in the order: if the defendants or intervenors wished to
prevent quota relief, they should not have consented to orders
that both created a need for a quota and contemplated that one
would be imposed if plaintiffs prevailed. Imposition of a
quota here would fulfill at least contingent expectations of
all the parties, created by their acquiescence in the court
orders.
A quota remedy is additionally appropriate because, as
in Bridgeport Guardians, "this is not a private employer and
not simply an exercise in providing minorities with equal op-
26/portunity employment,” 482 F.2d at 1341— 7 Intervenors argue
25/ The original order signed by Judge Newman provides that
The defendants may make at any time appoint
ments to the Bridgeport Fire Department of a
number of firefighters equal to one-half the
number for which the city warrants there is
and will remain an immediate need and adequate
funding. In the event the Court should order
a hiring plan, these appointments will be counted
as part of such plan. A-57.
This order was extended by Judge Zampano and later slightly
modified by him A-59-63.
26/ In enacting the amendments extending Title VII to municipal
employers, Congress was aware that "[b]arriers to equal employment
are greater in police and fire departments than in any other area
of State and local government." 118 Cong.Rec. 790 (1972), re
printing excerpts from U.S. Commission on Civil Rights, For All
The People...By All The People, at 71 (1969).
-41-
that Guardians is distinguishable on this point because ’’While
policemen must obtain the ready cooperation of the public to be
effective, firemen battle non-human dangers and do not depend
on community involvement." Int. Brief at 43. This is an odd
claim, coming as it does from defenders of the Hay performance
rating scale, which placed as much emphasis on "public relations”
as on "composure under pressure." T. 1559. It is also surely
too narrow a view of the role of a fire department in the commu
nity and the need for citizen cooperation at a fire to discover,
for example, the presence of disabled persons or children in
a burning building. See also note 33, infra.
The City essentially conceded this point, and the appro
priateness of preferential hiring relief, at the remedy hearing.
Counsel for the City acknowledged that
it is to the city's interest to have its
minority citizens represented on its fire and
police departments and every other department
of the city,....We--the city would accept
gladly and willingly some adequate remedy that
this Court might devise to make sure our minor
ities are--qualified minority citizens are on
that department, and that would help us in
reaching some of our affirmative action goals
which in our competitive field we're handcuffed.
7/28/78, at 100.
The affirmative action goals referred to called for in
creases in minority employment in the Fire Department of 143
employees over the course of three years, A-79, while the prac
tices of the City precluded any significant gains for years,
absent judicial intervention. This gap, between commitments
made to the people of the City of Bridgeport and the City's
practices, are an additional justification for quota relief.
-42-
Finally, a quota is justified here as the only "method
... available for affording appropriate relief without impairing
essential city services." Vulcan Society, supra, 490 F,2d at
398. The current employment list is exhausted; the City has
no validated test available; even after a test is found, it will
be, according to the Personnel Director, an additional ten months
to a year before hiring could begin. 9/12/78 at 31. The Bridge
port Fire Department meanwhile has over 100 vacancies in a force
of 471. 9/12/78 at 21. Under these circumstances it would have
oeen reckless for the trial judge to await development of a
validated test before permitting hiring.
A quota here is consistent with this Court’s concern
with the identifiability of the persons who may be adversely
affected by a quota, Kirkland, supra, 520 F.2d at 429; E.E.O.C
— — — °cal_§3,8, supra, 532 F.2d at 828. Only a hiring quota was
ordered. Unlike Bridgeport Guardians, there were not even any
white applicants in this case "who have high standing on current
eligibility lists, and presumably would be appointed to the force
but for the decision," 482 F.2d at 1334, since everyone on the
list has had an opportunity for appointment. The persons ad
versely affected by the remedy order are, accordingly, only
members of the public at large who may now or in the future be
attracted to a firefighting career, but who can have no legiti
mate expectations that they will be employed by the Bridge
port Fire Department or even that there will be any given
number of vacancies available for competition.
Appellants suggest that a quota was not appropriate be-
-43-
cause the trial judge could simply have reduced the passing
score from 12 to 6. This proposed plan would serve only to
make the court a party to continued discrimination and employee
selection on the basis of a non-job related test, and Judge
Daly was hardly required to adopt it.
It is, we note preliminarily, a proposed remedy, not,
as appellants intimate, a defense to liability. The City's use
of the 1975 test discriminatorily excluded minority candidates,
and it was not job related for many reasons besides the arbi
trariness of the cutoff score. See pp. 25-31, supra; Vulcan
Society, supra, 490 F.2d at 939-94. The trial judge's task was
therefore to shape a remedy, and in doing so several factors
made appellants' proposal utterly unsatisfactory.
Resetting the passing score would have the following
effects:
1) It would perpetuate the discriminatory impact of the
test. Naturally, the lower the passing score, the higher the
percentage of both whites and minorities who pass and the lower
the ratio of white to minority pass rates; if everyone passed,
there would be no discrepancy. But, as the trial court found,
with a passing score of 6 a discriminatory impact would remain
in the passing rates, A-97, Ex. 51, and the minorities
would tend to rank lower on the list, and therefore be hired
last or not at all.— / In fact,
27/ The di scriminatory impact of different cut-off scores can
be calculated from the distribution chart of applicant scores
reproduced at p. 12a, supra. As this chart shows, the discrim
inatory impact is persistent throughout the range of scores on
the test: to eliminate it, the pass rate would have to be 1007c.
-44-
2) Since approximately 514 applicants scored 6 or above
on the test, id., and there are only 471 positions in the Fire
Department, candidates who "passed" with a low score would have
a long wait indeed until they were appointed, cf. Vulcan
Society, supra, 490 F.2d at 392 (more relevant comparison is
between white and minority candidates with realistic chance of
appointment rather than all those who receive passing scores.
3) It would not provide any relief for minority candi
dates who scored below 6 and who, as much as those who scored
above 6, were the victims of a discriminatory testing process.
4) It would provide no relief whatever for pre-1975 dis
crimination or from the deterrent effects of the City's failure
to recruit and its well-earned reputation for exclusion of minor
ities. See pp.47-50> infra.
5. It would authorize hiring on the basis of a test
which is not job related. Those hired would be no better than
those rejected.— ^
6) It would give no more relief to minority victims of
race discrimination than to white applicants, who have not been
— ' Among the 334 candidates scoring 9 or above, for example,
were 45.87, of the whites, compared with 23.57, of the minorities.
A. 97.
29/ An intuitive way to see how little the suggested passing
score of 6 would say about an applicant's competence, allegedly
the central concern of the appellants, is to consider that the
FIT Mechanics portion of the test consists of 30 questions with
five choices offered for each answer. A candidate who knows
nothing can expect to get one out of five answers right by
luck alone, or six right out of thirty. The remaining two-
thirds of the test are the PRF scales, with twenty questions each,
-45-
the victims of race discrimination and are "essentially stran
gers to Title VII," Rios v. Enterprise Association Steamfitters
Local 638, 520 F.2d 352, 357 (2d Cir. 1975), to whom the district
court was not required, if it was even permitted, to give relief.
Id., 520 F.2d at 356, Patterson v. Newspaper Mail Deliverers'
Union of New York, supra, 514 F.2d at 772-73.
IV. THE SIZE OF THE QUOTA IMPOSED BY
THE DISTRICT COURT WAS MODERATE
IN VIEW OF THE SCOPE OF THE DIS
CRIMINATION TO BE REMEDIED.
The trial judge ordered that minorities and whites
be hired in a 1:1 ratio until there were 125 minorities in
the Fire Department, or 26.5%, compared to the 41%, minority
proportion of the relevant labor force. Appellants object to
the scope of this order because only 11.2%, of the candidates
who sat for the exam have been identified as minorities, and,
they assert, no greater percentage of minorities can properly
be ordered hired by the court. Int. Brief at 44. This precise
argument was rejected by this Court in Vulcan Society, supra,
29/ continued
"correct" answers on the Social Recognition scale being added
to the candidate's score, those on the Understanding scale sub
tracted. The candidate who left the PRF form totally blank and
guessed blindly on all thirty questions on the FIT Mechanics
scale would expect to "pass" with a score of 6 and, in the view
of the appellants, apparently have demonstrated competence to
be a firefighter. Candidates who scored below 6 either were
unlucky guessers, declined to guess on the FIT Mechanics test,
leaving^answers blank, or displayed large amounts of intellect
ual curiosity and propensity to be analytical.
Additionally, simple inspection of Hay's Table VIII shows
that fully half the firefighters who scored below 6 were rated
above average by their supervisors. With the correction noted
by Dr. Peck, over half were rated above average. App. 9-10, 12.
-46-
490 F.2d at 398-99; it is still without merit. It fails to
consider either the powerful deterrent effect of the City's
failure to recruit and well-earned reputation for using dis
criminatory tests or the discriminatory post-Act hiring prior
to 1975.
The trial court properly found that the City's reputation
as an employer was "deplorable," 454 F. Supp. at 757. There was
considerable testimony to this effect at the trial, from plain
tiffs and community leaders, T. 14, 54, 155, 664, 1963. The
Director of the Connecticut Commission on Human Rights and
Opportunities testified that the City's reputation as an
employer of minorities was not only poor but was "by far the
worst [of all the cities] in employment practices in the State
of Connecticut," T. 733.
There can be no doubt that the notoriety of the City's
practices deterred prospective applicants: the proportion of
minority applicants was consistently below their representation
in the population prior to 1975, and for the 1975 test only
11.270 of the applicants who sat for the test have been identified
as minority, compared with the 417. that would be expected based
upon the representation of minorities in the labor force,--a
30/ratio of expected to actual applicants of 3.5 to 1.—
30/ The inference of a deterrent effect raised by these dis
parities is buttressed by direct evidence, e .g ., from the
witness Thompson, who attempted to recruit minorities for the
1975 test: "[A] lot of the residents voiced disapproval of
taking the test because of prior--what in their opinion was
prior discriminatory tactics by the City. "Q Did you encounter
that throughout your recruitment effort?" "A Yes, we did." The
witness Lafitte: "[A] lot of people didn't want to take the
-47-
This deterrent effect was exacerbated by the City's
failure to recruit: as the trial court found, although the City
met with representatives of the minority community, it did
only perfunctory recruitment, p. 13, supra, and the number
of minorities who sat for the test would have been far smaller
without the vigorous efforts of community leaders who were not
employed by the City and whose efforts were impeded by City
officials, pp. 14-15, supra.
In these circumstances, discriminatory exclusion of
minorities extends beyond those who failed the 1975 test to those
who were deterred from applying. The Supreme Court has ex
plicitly addressed this issue, and unanimously concluded:
The effects of and the injuries suffered from
discriminatory employment practices are not always
confined to those who were expressly denied a
requested employment opportunity. A consistently
enforced discriminatory policy can surely deter
job applications from those who are aware of it
and are unwilling to subject themselves to the
humiliation of explicit and certain rejection.
If an employer should announce his policy of
discrimination by a sign reading "Whites Only" on
the hiring-office door, his victims would not
be limited to the few who ignored the sign and
subjected themselves to personal rebuffs. The
30/ continued
examination, because I was told this many times, and by many
people, that it was going to be a waste of time, because it was
a ninety-nine chance not to get in, when you want the chance to
get in..." T. 155; the witness Smith: The City's reputation is,
"If you're black, just don't apply because you won't get the
job," T. 1963.
The City’s own Affirmative Action plan approved by the
Mayor in March, 1976 laid the blame for the City's exclusion of
minorities in part to "lack of confidence in the City's hiring
policies and performance" in the minority community, A-69.
-48-
same message can be communicated to potential
applicants more subtly but just as clearly by
an employer's actual practices--by his con
sistent discriminatory treatment of actual
applicants, by the manner in which he pub
licizes vacancies, his recruitment techniques,
his responses to casual or tentative inquiries,
and even by the racial or ethnic composition
of that part of his work force from which he has
discriminatorily excluded members of minority
groups.
Teamsters, supra, 431 U.S. at 365; see also id., n. 51. On the
state of this record, the district court did not err in con
cluding that the victims of the City's discrimination were not
limited to those who had the temerity to apply for the 1975 test.
Appellants appear to argue that the City is not re
sponsible for the deterrence of prospective applicants because
any deterrent effect resulted from its pre-Act discriminatory
policies, for which no remedy can be given in this action. But
while it is surely true that the City's failure to hire any black
firefighters for over thirty years prior to the effective date
of Title VII discouraged would-be minority applicants, the City
is not being held liable for that failure but for its post-Act
conduct--and inaction--which ”perpetuate[d] the effects of its
prior discrimination,” Teamsters, supra, 431 U.S. at 349; see
also, id. at n.32, Griggs, supra, 401 U.S. 430; Lea v. Cone Mills
Corp., 301 F. Supp. 97, 102-03 (M.D.N.C. 1969), affirmed in rele
vant part, 483 F.2d 86 (4th Cir. 1971); United States v. Central
Motor Lines, Inc., 338 F. Supp. 532, 559 (W.D.N.C. 1971); Dobbins
v. Local 212, IBEW, 292 F. Supp. 413, 433-34 (S.D. Ohio 1968);
United States v. Sheet Metal Workers Local 36, 416 F.2d 123,
139-40 (8th Cir. 1969). By failing to recruit or offer any
-49-
other credible assurances that it had ceased its discriminatory
practices, instead continuing its old ways, the City effectively
communicated to prospective minority applicants the message--
which proved all too accurate--that application was futile.
Post-Act discrimination resulted in the hiring of 28 white
and no minority firefighters prior to the 1975 test. In order
fully to remedy prior discrimination, therefore, the quota order
must be large enough to compensate for the post-Act hiring of a
total of 109 whites and only three minorities in a city with a
417o minority labor force. Simple arithmetic shows that the
quota was reasonable in light of this requirement. When the
hiring plan expires, 125 minorities and 125 whites will have
been hired since 1975; but since March 24, 1972 125 minorities
and 153 whites (125 + 28) will have been hired, a total of 278
persons. The proportion of minorities hired since the effective
125date of Title VII will therefore be oyg. or 45%, very close to the
41% proportion of minorities in the labor force that would be
expected to have been hired absent post-Act discrimination.
Additional considerations justify the size of the quota.
First, the hiring plan ends when minority representation in the
Department reaches approximately 27%, significantly less than
the proportion of minorities in the labor force. Courts have
frequently fixed the size of quotas with reference to the minor
ity population in the relevant labor market area, rather than
the precise number of persons shown most recently to have been
victimized. See, e .g ., Rios v. Enterprise Association Steamfitters
Local 638, supra, 501 F.2d at 632-33; Bridgeport Guardians, supra
-50-
31/482 F.2d at 134; United States v. Wood, Wire & Metal Lathers
Local 46, supra; Boston Chapter NAACP v. Beecher, supra; NAACP v.
Allen, 493 F.2d 614 (5th Cir. 1974); Stamps v. Detroit Edison Co.,
365 F. Supp. 87 (E.D. Mich 1973), Aff'd in relevant part, 515
F.2d 301 (6th Cir. 1975), vac, and rem. on other grounds, 431 U.S.
951 (1977); Arnold v, Ballard, 390 F. Supp. 723 (N.D. Ohio 1975),
aff'd 12 FEP cases 1613 (6th Cir. 1976), vac, and rem. on other
grounds, 16 FEP cases 396 (6th Cir. 1976); NAACP v. Dotherd, 373 F.
Supp. 504 (M.D. Ala. 1973); Dozier v. Chupka, 395 F. Supp. 836
(S.D. Ohio 1975).
The size of the quota ordered is particularly reasonable in
light of the City's own affirmative action goals, which call for
the hiring of 143 minorities by the third year of the plan (approx
imately March 1979). The trial judge's plan is more modest than
the goals the City committed itself to reaching, and, as the City
has conceded, judicial intervention is required to "help us in
reaching some of our affirmative action goals which in our
competitive field we're handcuffed." 7/20/78, at 100.
The Court's order is also a realistic response to the
current state of affairs in the City of Bridgeport. There is
no valid test available, and substantial hiring is needed to
bring a depleted Fire Department up to full strength and fill
vacancies as they occur. The 1:1 white to minority hiring ratio
nearly matches the 41% minority hiring that would be expected
absent discrimination and is a reasonable way to prevent
continued discrimination until the City formulates an
31/ This Court in Guardians characterized a 15% hiring quota
as "modest" in view of the 25% minority population of Bridgeport
at that time, 482 F.2d at 1341; this quota is similarly modest
in view of the increase in Bridgeport's minority population.
-51-
alternative non-discriminatory hiring policy including valid
selection tests.
Moreover, a hiring quota is a reasonable temporary measure
to attract qualified minority applicants by assuring them that
jobs are in fact available to them. Minorities are at this point
profoundly skeptical about assurances of reform in the hiring
practices of the Bridgeport Fire Department. The trial judge
found t h a t " those who had worked conscientiously to re
cruit minority candidates felt that their credibility was all but
destroyed by the firefighters exam." 454 F. Supp. at 751. In
view of this finding, which is not attacked on appeal, he could
reasonably conclude that a promise of jobs was for the moment
a necessary component of any recruitment program. It will,
moreover, avoid the need for continuing judicial supervision of
the details of the City's hiring practices and concomitant
friction that any alternative affirmative action program would
necessarily create.
V. SPECIFIC HIRING RELIEF WAS APPROPRIATE
FOR MINORITY VICTIMS OF DISCRIMINATION
WHO DEMONSTRATED POSSESSION OF ALL THE
JOB RELATED QUALIFICATIONS POSSESSED
BY FIREFIGHTERS PREVIOUSLY HIRED AND
PERFORMING SUCCESSFULLY ON THE JOB.
Appellants claim the order directing hiring of
applicants for the 1975 test constitutes a windfall for an un
deserving group and, worse, will permit unqualified, incompetent
applicants to join the fire department, decreasing efficiency
and subjecting other firefighters to physical danger. Appel
lants' complaints are unwarranted and their fears unjustified;
-52-
the court properly accorded preference in its remedy order to
the direct victims of discrimination, and it assured adequate
safeguards that they would perform at least as well on the
job as current firefighters.
Concessions by the appellants are helpful in narrowing
the scope of the dispute. The intervenors and the City agree
that all those applicants who scored 6 or above on the 1975 test
are qualified and should be hired, City's Brief at 8; Int. Brief
at 21, 25; A-55, 126, 130. This group includes 55% of all the
minorities who sat for the test. These minority applicants are
32/clearly entitled to hiring relief.—
The real dispute, then, relates to minority fire
fighters who meet medical and physical agility standards and
desire appointment but scored below 6 on the written test. Are
they qualified? Did the court err in granting them a preference
under its quota order?
To take the second question first, it makes good sense
Their claims are not undercut by the presence of white
applicants who also scored at least 6 but below the passing
score of 12. The judge was not required to give relief to the
white applicants, who were not the victims of race discrimina
tion, or to reduce the amount of relief given the victims of
discrimination because some whites were also disadvantaged by
the test, Rios v. Enterprise Association Steamfitters, supra,
520 F.2d at 356; Patterson v. Newspaper and Mail Deliverers'
Union, supra, 514 F.2d at 772; United States v. Bethlehem Steel,
446 F .2d at 665-66. The unsuccessful white applicants suffer
no injury as a result of the court's order since they would not
have been hired in any event, and the City is free to request per
mission to use white firefighters from the 1975 list in making
appointments in accordance with the court's hiring plan.
-53-
to give a preference at least to the qualified minority can
didates since they are the identifiable victims of discrimination.
In fact, just as one of the reasons a permanent quota was disapproved
Kirkland, supra, was that "The benefits of such order are not
limited to the plaintiff class," 520 F.2d at 430, so an interim
quota was sanctioned, in part because its beneficiaries would
be the very plaintiffs who sat for the unlawful tests. Id.
Appellants argue that only some of the minority appli
cants were victims of discrimination because it is unlikely
that they all would have been hired even in the absence of
discrimination. But this claim has been raised and rejected
in this Circuit. In United States v. Bethlehem Steel, supra,
this Court granted relief, in the form of rate retention and
seniority carryover, to all the black employees assigned to
eleven undesirable departments in the defendant's plant, des
pite the fact that "it is true that some of the black employees
might have been assigned there even under the best of systems,"
because "there is no apparent way of knowing that, or deter
mining who they would be, and appellees offer none. The dis
crimination found illegal here was to a group; group remedy is
therefore appropriate," 446 F.2d at 660 (emphasis added).
Regents of the University of California v. Bakke, supra,
adopted a similar approach. Once Bakke established that the
system which excluded him was unlawful, the Supreme Court held,
the burden shifted to defendants to show he would not have been
admitted to medical school even absent discrimination. 57 L.Ed.
2d at 790 (opinion of Powell, J.). Since the university con-
-54-
ceded it could not carry that burden by showing he was un
qualified, the Court did not order reconsideration of his appli
cation according to nondiscriminatory criteria; it ordered him
admitted:
Having injured respondent solely on the
basis of an unlawful classification, peti
tioner cannot now hypothesize that it might
have employed lawful means of achieving the
same result....No one can say how--or even
if--petitioner would have operated its ad
missions process if it had known that legiti
mate alternatives were available. Nor is
there a record revealing that legitimate
alternative grounds for the decision existed,
as there was in Mt. Healthy. In sum, a re
mand would result in fictitious recasting
of past conduct.
Id. at 790 n.54. (emphasis added).
So here the victims of discrimination are presumptively
entitled to relief if they are qualified. The trial judge
required that they demonstrate compliance with all the legiti
mate requirements for appointment from the 1975 list; the City
did not offer any evidence whatever at the remedy hearing, much
less carry its burden of proof that any of the minorities
would not have been hired; and requiring plaintiffs to show that
in addition to being qualified they would have passed some
now imaginary job related written test with a high enough score
to be appointed would be simply an invitation to speculation;
"fictitious recasting of past conduct." Id.
Practical considerations also favor the grant of specific
hiring relief. The City has an immediate need for firefighters:
it is over 20% understaffed and functioning with skeleton crews.33/
33/ Additional evidence of the gravity of the manpower short
age has come to light while this brief was being prepared. The
-55-
A new recruitment process will cause substantial further delays,
increasing the shortage of personnel. The 1975 applicants form
a pool of interested candidates who have been screened prelim
inarily and many of whom will be able to meet legitimate entrance
standards including physical agility. A concern for the public
safety requires action that will insure the speediest possible
appointment of qualified firefighters. The issue is, then,
whether an order directing appointment of those minority candi
dates who scored below 6 on the written test but pass the medical
and agility tests, meet the other entrance criteria, and want
to be firefighters offers sufficient assurance that the appoint
ees will be qualified.
Resolution of this issue begins (though it does not end)
with the observation that the 1975 test was, as the trial judge found
e •g •» 9/12/78 at 51, shown to be unrelated to job performance. Be
cause the correlation between test score and job performance is
negligible, applicants who flunked the 1975 test are just as likely
33/ continued
press reports that the City of Bridgeport is experiencing "a
wave of arson that has taken four lives this month." See
"Bridgeport Authorities begin Patrol of Streets in Arson-Wave
Battle," New York Times, Nov. 17, 1978, p. 1, col. 5. The
Times retorts Fire Chief Gleason's concern with a
hiring freeze [that] had allowed the number of
men on the force to dwindle to 140 below
the assigned strength of 492. The freeze was
imposed after a suit was filed in the Federal
Court of Appeals in New York over hiring prac
tices that allegedly discriminated against
minority applicants. I_d. at p. B8, cols. 4-5.
The City's efforts have been impaired not only by the manpower
shortage but by difficulty enlisting the assistance of the
public: Mayor Mandanici is quoted as observing, "The problem is
community involvement. If people would cooperate, we could cut
arson in half in a minute." Id. at col. 5.
-56-
to be good firefighters as those who passed.- Next, there is
no indication whatever in the record that the candidates hired
from the 1975 list are not fully competent and performing satis
factorily. See 7/20/78 at 78-79. These men were selected with
a written test that, with respect to predicting performance, is
the equivalent of tossing a coin. Therefore one of two things
is true: either anyone can do a firefighter's job as well as
anyone else, or (surely more likely) competent firefighters were
chosen from the 1975 applicants not by the irrelevant written
test but by a combination of self-selection (those who do not
want the job or fear they cannot do it decline to join the
department) and the medical and physical agility tests.— ^
While written tests have little to do with being a good fire-
ighter, in short, physical agility, health, self-evaluation
^±/ See pp. 25-27, 43-46, supra, and App. 8-13. Though this find
ing is amply documented in the record, including Hay's own Table
VIII (particularly as corrected by Dr. Peck's analysis, App.
9-10,13), it may nevertheless seem contrary to common sense.
Surely, it may be said, even if the test does not distinguish
among those in the middle range, the candidates with the very
lowest scores cannot be qualified: a written test may not be
job related as applied but would still be useful in weeding out
illiterates. This very peculiar test, however, is an exception
to that suggested rule. Because the PRF Understanding score is
subtracted in computing the total grade- both PRF scales measure
personality traits rather than ability; and the hypertechnical
FIT scale gives substantial credit to candidates who guess; low
scorers tend to be, not illiterate, but, as the PRF manual ex
plains, inquiring, curious, reflective, incisive, logical, astute
and rational. Ex. 7, p. 7. These qualities are obviously valu
able to a firefighter, e.g., 7/20/78 at 42, 79. Moreover, as
Dr. Peck showed, when the score of the firefighter who was listed
by Hay as scoring 52 on the Understanding scale (where the max
imum possible score is 20) is removed from consideration, the data
in Bridgeport actually suggest that scores on the Understanding
scale should be not subtracted from the other scores but added.
App. 14-15.
35/ In this context, it is noteworthy that of the 192 persons
who passed the written test, fewer than half completed the remaining
steps in the hiring process and were appointed firefighters.
-57-
and desire obviously do. The 1975 hiring process was not job
related because of the written test but appears to have achieved
a measure of job relatedness despite it. Its job related com
ponents, but not the written test, may therefore be used to
screen minority applicants.
The civil service probationary period provides an addi
tional assurance that unqualified firefighters will not impede
the work of the fire department. It is a valuable "fail-safe"
device: the surest way to discover inability to do the job is
to observe the job being attempted.— ^
To all this it may be replied that the process would be
even better with a good written test, and the City is entitled
to insist upon one. The first point is at least doubtful: after
an exhaustive study of the literature, a leading authority, re
do/ The civil service rules provide for a probationary period
of three to six months "to enable appointing officers to exer
cise sound discretion in the filling of positions," A-85 and
provide for interim performance reports from department heads
to the civil service commission with respect to each probationary
employee. Id. See 7/20/78 at 43 , 45.
— f the remedy hearing the fire chief disclosed that no
one had been terminated for unsatisfactory performance during the
probationary period in the over forty years he had been in the
department. 7/20/78, at 72. This testimony is shocking; it
shows that the intervenor union officials are not the single-
minded advocates of a high standard of competence they hold them
selves out to be for purposes of this action; but it does not
prevent reasonable future use of a probationary period for its
intended purpose. ̂ (As a matter of equity, and to inhibit mis
use of the probationary period, it may be appropriate to direct
that all employees hired since 1975 undergo a true probationary period.)
-58-
lied on b.y the defendant's expert, T. 1327, concluded, "The pro
ficiency of firemen appears not to be well predicted by tests."
E. Ghiselli, The Validity of Occupational Aptitude Tests (1966),
T. 1324, and appellants defend this test largely on the basis
that others in use are no better— ^--but the second may never
theless be conceded as a general rule: employee selection is a
matter for employers, not courts.
Application of the rule in this case, however, would be
unfair to the minorities who took the 1975 tests: after being
denied employment by a discriminatory test, they would, if required
not only to meet current job related standards but also to pass
a job related written test, thereby be subjected to a requirement
39/never before applied to a Bridgeport firefighter.
38/ Reducing reliance on written tests does not mean return
to the patronage system. The physical agility test used by
Bridgeport in 1975 has been validated and is designed to be
used competitively with a qualifying written test (to assure
minimal verbal and written proficiency). Compare Vulcan Society
v. Civil Service Commission, supra, 360 F. Supp. 1265 (fire-
fighter test not job related where it did not include a competi
tive physical component).
39/ Finally, we must oppose the City's suggestion that the
firefighters already hired from the 1975 list be required to take
a job related written test. City's Brief at 13. This is a
wooden approach which would destroy the careers of white fire
fighters who have proven their competence on the job. But as the
City's preference for a written test should not be permitted un
fairly to disrupt these men's lives, neither should it be applied
unequally to minorities who have been the victims of discrimination.
-59-
VI. THE TRIAL JUDGE DID NOT ABUSE HIS
DISCRETION BY DIRECTING THAT
APPLICANTS WHO WERE THE VICTIMS
OF DISCRIMINATION WERE ENTITLED
TO BACKPAY.
In Albemarle Paper Co. v. Moody, supra, the Supreme
Court held that where discrimination was shown under Title VII,
an award of backpay should be the general rule; indeed should
be
denied only for reasons which, if applied,
generally, would not frustrate the central
statutory purposes of eradicating discrim
ination throughout the economy and making
persons whole for injuries suffered through
past discrimination.
422 U.S. at 421. Accordingly, the district courts are vested
by the Act with a broad discretion, in order to "make possible
the 'fashion[ing] [of] the most complete relief possible." Id.
As this Court has said,
The Supreme Court has made clear that back
pay is to be the rule rather than the ex
ception under Title VII and that back pay
is to be awarded whenever possible so as
to deter Title VII violations and so as to
"make whole" the victims of past discrimina
tion .
EEOC v. Local 638, 532 F.2d 821, 832 (2d Cir. 1976).
The City concedes with respect to backpay that "there
is no doubt that such an order is within the discretion of the
Court, City's Brief at 12, but nevertheless objects to the
award. Its primary claims are that the award is onerous, threat-
ening it with bankruptcy, and that its alleged good faith en
titles it to relief from backpay liability.
The plea of poverty, though superficially plausible
coming as it does from a municipality, is unsupported by any
-60-
evidence and is, as a matter of fact, contrary to the record.
As counsel for the City himself pointed out, 9/12/78 at 13,
Bridgeport has just announced a five million dollar surplus,
made possible in no small measure by operating its fire depart
ment one hundred firefighters below authorized strength.
In any event, the issue is not ripe: "any evidence on this issue
the district court may consider prior to its entry of a final
backpay order." E.E.O.C. v. Enterprise Association Steamfitters
Local 638, 542 F.2d 579, 586 (2d Cir. 1976).
The claim that good faith authorizes, much less requires,
exemption from liability for backpay is foreclosed by Albemarle,
supra, 422 U.S. at 422-23: plaintiffs were no less injured
because the City asserts it did not mean to harm them, and they
are entitled to full "make whole" relief. The trial judge was
not required to find the City's equitable claims more weighty
than those of its victims.
The City's assertions that there were insufficient
vacancies to hire minorities and its related claim that victims
of discrimination should receive only some fraction of full
backpay are not so much unfounded as premature The trial
judge's remedy order established a procedure for determining
40/ An estimate of the savings may be made from the record.
The annual cost of a firefighter to the City in 1978, in salary,
pension costs, insurance, and uniform allowance exceeded $19,000.
Ex. 107. Since the Department had approximately 100 vacancies,
the gross savings exceeded $1,900,000*. Overtime averaged $85
per month per firefighter, Ex. 106(a), 7/20/78 at 49, or about
$400,000 per year for a force of 400, yielding a net saving
to the City of about $1.5 million for fiscal 1978 alone.
Q J If they do not come too early, they come too late; they
were not raised below. The City declined to file any papers with
-61-
individual entitlement to and computation of backpay, including
appointment of a special master, Fed. R. Civ. P. 53, and claims
relating to number of vacancies and related matters remain
to be acted upon by the district court, whose findings will then
be subject to review. See, e .g ., United States v. U.S. Steel
Coro., 520 F .2d 1043 (5th Cir. 1975); Pettway v. American Cast
Iron Pipe Co., 494 F.2d 211 (5th Cir. 1974); Hairston v. McLean
Trucking Co., 520 F.2d 226, 233 (4th Cir. 1975); Meadows v. Ford
Motor Co., 510 F.2d 939, 948 (6th Cir. 1975).
We pause here only to note that the City’s claim of
insufficient vacancies is unfounded (since the 1975 test 84
vacancies have been filled and, as of the September 12, 1978
hearing, 101 additional remain, 9/12/78 at 21) and that the City
is not, as it seems to think, being held liable for backpay
because it hired applicants off its employment list since 1975,
City's Brief at 16, but rather because it discriminatorily failed
to hire minorities during that same period.
The City's objection to frontpay was not raised below,
is offered without any supporting authority, and is contrary
to this Court's holding in E.E.O.C. v. Enterprise Association
Steamfitters, Local 638, supra, 542 F.2d at 590.
41/ continued
respect to remedy in the district court; The only defense to
backpay raised in its pleadings is an Eleventh Amendment claim,
A-39, which has been abandoned; and at the remedy hearing be
low the sole objection to a backpay award was the hardship
claim. 7/20/78 at 96-97; See generally id. at 95--01.
-62-
VII. THE TRIAL JUDGE PLACED IMPROPER
RESTRICTIONS ON ELIGIBILITY FOR
BACKPAY.
A. Deterred Non-Applicants Are Entitled to Backpay
The trial judge restricted backpay eligibility to
"Blacks and Hispanics who filed applications with the civil
service office for the 1975 firefighters exam," 454 F. Supp.
at 760, see id. at 761, thereby excluding the subclass of
minorities who could demonstrate that they were deterred from
applying by the City's discriminatory practices. The trial
court's action is supported by this Court's holdings in E.E.O.C.
v. Enterprise Association Steamfitters, supra, 542 F.2d at 588
and E.E.O.C. v. Local 638. s u p r a . 532 F.2d at 832-33, but
these cases are no longer controlling in light of the Supreme
Court's subsequent decision in Teamsters v. United States, supra.
Teamsters squarely held that non-applicants x̂ ho can prove they
were deterred should, for purposes of relief, "be treated as
applicants," 431 U.S. at 364, see id. at 364-71. Teamsters
involved only seniority relief, but its reasoning is fully appli
cable to backpay, and the disparity between backpay and seniority
relief is not supported by any language in the Act; on the con
trary, "There is nothing on the fact of the statute or in its
legislative history that justifies the creation of drastic and
categorical distinctions between [the remedies of backpay and
injunctive relief]." Albemarle Paper Co. v. Moody, supra, 422
U.S. at 423.
Denial of backpay to non-applicants is not justified by
the additional financial burden an award would impose, if for
-63-
no other reason than that this burden will be slight: the
City's liability is limited by the number of vacancies it had
the money to fill, no matter how many actual or potential
applicants there were for those vacancies.
B . Eligibility for Backpay Should Be Based Upon
Qualification at the' Time of Discriminatory
Refusal to Hire, Not Present Qualification
The remedy order restricted backpay eligibility to
applicants who were presently qualified for employment and were
actually hired. In doing so it improperly mixed the criteria
for prospective and restrospective relief. The backpay pro
vision of Title VII is designed to assure that "persons ag
grieved by the consequences and effects of the unlawful employ
ment practice be, so far as possible, restored to a position
where they would have been were it not for the unlawful dis
crimination." Albemarle, supra, 422 U.S. at 421, quoting 118
Cong. Rec. 7168 (1972). Accordingly, qualification for employ
ment on the date of refusal to hire is critical, but subsequent
disqualification serves only to end the period of recovery,
not defeat it altogether. See, e .g ., Mims v. Wilson, 514 F.2d
106, 110 n.6 (5th Cir. 1975); Taylor v. Safeway Stores, Inc.,
524 F.2d 263 (10th Cir. 1975); NLRB v. Robert Haws Co., 403
F.2d 979, 981 (6th Cir. 1968); Keco Industries, Inc., 121 NLRB
1213, 1228 (1958), enfd, 271 F.2d 263 (6th Cir. 1959); Red
River Lumber Co,, 12 NLRB 79, 90 n.13, enf'd, 101 F.2d 1014
(9th Cir. 1939). Thus, a discriminatee who has recently obtained
42 /a better-paying job,or relocated,— should be entitled to
^2/ The Court's order appears to disqualify any discriminatee
-64-
backpay, perhaps in a reduced amount, though he may not wish
43/appointment, as should a discriminatee who can show he
was physically qualified for the job when he was unlawfully
rejected, though he may not be now, years later. Eligibility
for hiring relief, by contrast, obviously depends upon present
H^a14fication: discriminatees must be available and able to
meet every appropriate requirement for employment.
VIII. THE PROVISIONS OF THE REMEDY ORDER
RELATING TO PROMOTIONAL TESTS AND
SENIORITY HAVE A MINIMAL IMPACT ON
WHITE EMPLOYEES AND DO NOT UNDULY
INTERFERE WITH THEIR LEGITIMATE
EXPECTATIONS.
Judge Daly granted only very modest promotional re
lief. As clarified by the special master's letter to counsel,
it affects only firefighters hired pursuant to the con
sent orders in this case and, even with respect to them, leaves
complete discretion in the hands of the City with respect to the
timing of promotional exams. The sole requirement is that these
appointees not be permitted to sit for promotional exams until
— 7 continued
who "has not been a bona fide resident of Bridgeport for the
past year," 454_F. Supp. at 760, Par. B 1(f), from both hiring
and backpay relief. Such an exclusion is erroneous because
candidates are only required by the Bridgeport City Charter to
be City residents for one year prior to the examination, not
one year prior to their appointment. A-82.
— ̂ Requiring acceptance of appointment as a prerequisite
to backpay will^in addition have the undesirable effect of
forcing discriminatees, in order to get backpay, to accept a
job they may, four^years after the test, no longer want and
soon quit, decreasing efficiency in the Fire Department and
possibly increasing racial friction.
-65-
their minority counterparts appointed pursuant to the hiring
44/order are also eligible.— No quota is set, no preference
on the basis of race given. Kirkland v. New York State Depart
ment of Correctional Services, supra, on which principal reliance
is placed by appellants, is accordingly inapposite
No legitimate expectations of white appointees are
frustrated by this portion of the court's order. The only in
cumbents affected are those appointed pursuant to the consent
order, whose appointments were conditioned on being part of any
court-ordered hiring plan. They cannot complain because
minorities appointed pursuant to that plan are given the same
seniority and promotion rights as they. Retroactive seniority
is in any event a plainly appropriate remedy for discriminatory
exclusion from employment under Title VII. Franks v. Bowman
45 /Transportation Co., supra, 424 U.S. at 762-70.— '
IX. THE TRIAL JUDGE DID NOT ABUSE HIS
DISCRETION BY FINDING THAT PLAINTIFFS
WERE ENTITLED TO ATTORNEY'S FEES
The City argues that its asserted good faith renders
Judge Daly's order directing it to pay plaintiffs' attorney's
fees an abuse of discretion. This claim has no merit.
*±!±l Minorities were also granted seniority retroactive to
October, 1976, the date whites were first appointed pursuant
to the consent orders.
Some whites were appointed pursuant to the consent orders
after October 1976. In order to ensure equal treatment, it
may be appropriate to direct that all 84 appointees pursuant
to the consent orders, as well as their minority counterparts,
be granted equal competitive seniority.
- 66-
Albemarle Paper Co. v. Moody. supra. 422 U.S. at 415; Newman
v . Piggie Park Enterprises. Inc.. 390 U.S. 400 (1968); Torres
v- Sachs, 538 F.2d 10 (2d Cir. 1976).
CONCLUSION
For the foregoing reasons, the judgment of the district
court should be modified as follows:
1. Paragraph Bl(f) of the remedy order should be deleted;
2. The category of persons entitled to backpay should
be extended to include non-applicants who can show they were
deterred from applying by the City's reputation for discrimina
tion and discriminatees who cannot now meet the criteria set by
the court or do not wish to be appointed but can show by a pre
ponderance of the evidence that they would have met those
criteria and accepted appointment if it had been offered at the
time they were refused employment;
and, as modified, affirmed.
Respectfully submitted,
DAVID N. ROSEN
265 Church Street
New Haven, Connecticut 06510
MICHAEL P. KOSKOFF
1241 Main Street
Bridgeport, Connecticut 06604
Attorneys for Appellees-Cross-
Appe Hants
November 20, 1978
-67
CERTIFICATE OF SERVICE
I hereby certify that on the 20th day of November, 1978,
a copy of the foregoing Brief was served on each attorney for
opposing parties by United States mail, postage prepaid,
addressed to:
Thomas W. Bucci, Esq.
Raymond B. Rubens, Esq.
Office of the City Attorney
202 State Street
Bridgeport, Connecticut 06604
J. Daniel Sagarin, Esq.
855 Main Street
Bridgeport, Connecticut 06604
DAVID N. ROSEN
265 Church Street
New Haven, Connecticut 06510
Attorney for Plaintiffs-
Appellees-Cross Appellants
APPENDIX A
ANALYSIS OF THE DATA UNDERLYING THE HAY VALIDITY REPORT
Contents Page
1. Replication of the Study App. 1
2. Use of Out of Range Data: The Correlation
Evaporates App. 8
3. Use of Blank Scores: The Illusion of Fairness
Evaporates App. 15
Just prior to trial, in response to the court's order com
pelling discovery, the defendants produced a box of computer
punch cards, Ex. 24, and a two-page coding statement, Ex. 25,
claiming that the data on the cards did not reflect the data in
the Hay report, T. 429.
At trial Dr. McCullough claimed that the cards did not con
tain the data which generated the report, T. 423, 427, 436. The
data on the cards in Exhibit 24, he said, were incorrect, T. 430,
437, incomplete, T. 434, 438, and incoherent, T. 428. But con
trary to Dr. McCullough's repeated insistence under oath, Dr.
Peck was able to demonstrate conclusively that the cards which
were produced accurately recorded all the data used in the validi
ty study. He showed, moreover, that Hay had misused its data to
give results which were false.
1■ Replication of the Study.
Dr. Peck first reviewed the cards which had been provided
and the coding statement accompanying the cards. From these he
observed that the cards and the statement had appropriate columns
for all the dimensions listed in Table I of the validity study
and all the tests used in the experimental battery listed in
Table II, T. 2144. He then ob served that the cards replicated
Table III almost completely: there were 656 cards for 328 fire
fighters, and two cards for each, as specified in the coding
statement, and the numbers of firefighters from each city agreed
with the numbers reported in Table III, T. 2144-45.
Hay, however, claimed not to have used the data for all 328
firefighters. The validity study says that "In the very few cases
App, 1
in which an individual failed to take most of the test battery,
data for the person was, of course, not included in the sample,”
p. II-8. Table V of the study shows the number of people included
in the sample from Hartford, Bridgeport, and the three cities
collectively designated as "Other.” These numbers are also
reflected in Tables VII, VIII, and IX. The corresponding number
for New Haven is shown in Table VI. Based upon these tables, the
•JU
total number of persons actually used in the sample is 299",
which is also the sum of the numbers Hay reports on page 11-11 as
the validation group and the holdout group.
Dr. Peck determined which persons had been eliminated from
the Hay sample group by examining the IBM punch cards. He elim
inated all the persons whose scores for any of the tests used by
Hay in its recommended battery were blank, T. 2149-52, Ex, 81-83,
The remaining group, A-102-09, matched the totals used by Hay in
its sample precisely: there were a total of 299, and the number
of persons in each city was the same as the number listed by Hay
in Tables V through IX, id., T. 2152-63. Dr. Peck then used the
cards for these 299 persons to see if the data from these cards
would replicate the correlations and distribution frequencies in
*93 (Hartford, from Tables V and VII) + 43 (Bridgeport, from
Tables V and VIII) + 53 (Others, from Tables V and IX) + 110
(New Haven, from Table VI) = 299.
App. 2
Tables V through IX, id.. He found that each of the correlations
produced by the cards was precisely the same as the correlations
JU
listed in Table V. Perhaps even more conclusive, the computer
generated distribution tables Dr. Peck derived from the cards
reproduced Tables VI through IX of the Hay report number for
number--a total of fourteen separate cells in each table, or 56
separate numbers. See, e.g., Figure 1, the Bridgeport tables,**
At this point, Dr. Peck was able to analyze a seeming dis
crepancy between the cards and the validity study. The study
reported that there were 15 blacks among the 328 total persons
in the sample, 10 from Hartford and 5 from New Haven, p. II-8,
Table III. The cards indicated that there were 18 blacks, T.
2164. But among the 299 persons for whom usable data was obtained,
there were indeed exactly 15 blacks, according to the cards--10
from Hartford and 5 from New Haven, T. 2165.
* The correlations are shown at A-104, 106, and 108 as the
circled numbers in the correlation matrix representing the cor
relation of variable 1, "AVSTD" (the average standardized super
visory performance rating) and variable 2, "BATTERY" (score on
the test battery recommended for Bridgeport: FIT Mechanics + PRF
Social Recognition - PRF Understanding). For New Haven, which
used a different test battery, the correlation reported by Hay,
P- H-11 differed by .01 from the corresponding correlation found
by Dr. Peck, A-102. These findings are explained by Dr. Peck at
T. 2153-63.
**The tables generated by Dr. Peck's printout are reproduced
at A-103, 105, 107, and 109, together with the corresponding
tables from the Hay study. They are explained at T. 2153-63.
App. 3
<< YALE TSP >> VERSION 5, 0 Of 11/77 ON IBM370. RUN DA1E HARTFORD CONSORTIUM FIREFIGHTER IS 11/07/77 RUN NAME IS ROSEN S1UDY -INVESTIGATE DAlA RUN 13
CROSS TABULATION OF VARIABLE EuLLIlRY (SAMPLE SELECTED ON VARIABLE SAMPLE 261. 1.- 269. 1. NUMBER OF OBSERVATIONS IS ROW VAR = BATTERY ( 0) RECOU
(
0)0)1.- 309. 1.
BY SCORERC i COL VAR = AVSTD
20.000 -/./MEANS26.000 COUNTS ROW PCTS
26.000 - /MEANSCOUNTS ROW PCTS
*2.000?.0000
>0.000
u . 000 aT.0000 60.000
&
.0
C°aj_t l r o ( 0} AVSTD ( 0) PART 1 DF 1
I'
.99990E <19 19.566 | 19.566 |
-.99990L+19- MEANS 17.000
d>000033.333 1
-11.333.0 / , COUNTS ( <, 1 ROW PCTS c2).0000 3.000066.667 6.9767
.0 - _ MEANS V 3333 3.0000 | 3.57195.0000 , s? COUNTS ( j- V ROW PCTS 3>.0000 (V.0000 7.000092.857 57.193 1 16.279
6.0000 MEANS B .6667 a.oooo | B.9 00010.000 £ - / n COUNTS ( ROW PCTS 3T.0000 0.0000 5.000060.000 90.000 1 11.628
10.000 - //'MEANSCOUNTS (19.000 £ s 3 $ I 13.61515.000 V.oooo 13.000ROW PCTS 30.769 69.231 j 30.233
15.000 17.B33 1,8.193 | 18.00020.000 6.0000 i 0.0000 13.00096.159 53.896 30.233
( 0) RECODED BY BPRC
22.000
2.00009.6512
.0.0
.0
///?y rmua vul
Over 25
_______—
21-25 50% (1) 50% (1)
16-20 54% (7) . 46% (6)
11-15 69% (9) 31% (4)
6-10 40% (2) 60% (3)
1-5 57% (4) 43% (3)
Less than one 33% (l) 66% (2)
MEANS 10.000 COUNTS 19.000 ROW PCTS 99.1B6
12.917 II 11.399 29.000 I 93.000 55.819 100.00
FIGURE 1 NOTE: The format of the computer
table is the reverse of the Hay
table; higher test scores are on
the lower rows, and above average
performance ratings are in the
right-hand column.
The question therefore arose whether the cards were not accurate
or whether, on the contrary, the cards were accurate but Hay's
Table III was incorrect because it listed the total sample but
indicated only the blacks with usable data rather than all the
blacks.
This question was answered by means of Table IV in the Hay
study, which compares white and black scores on some of the sub
tests. Dr. Peck testified that the term "df" in Table IV refers
to what is known as "degrees of freedom," T. 2168, and the term
"df 1,229” means that data from 231 individuals was used in the
tests shown in Hay's Table IV, T. 2169. This means that all the
firefighters in Hartford and New Haven (96+135=231) were used
for these tests, id., not just the ones for whom usable data was
obtained. Dr. Peck did the tests shown in Table IV, by computer,
and found that using all the cards from New Haven and Hartford,
including all 18 blacks, he once again replicated the Hay table
Vc
number for number, T. 2169-75. (One of the numbers Dr. Peck
*The computer-generated numbers corresponding to Hay's Table
IV are reproduced at A-110-12, except page 4 of Exhibit 84, which
appellants erroneously omitted from the Joint Appendix. They are:
Hay Study
FIT Vocabulary
PRF Aggression
PRF Infrequency
FIT Tables
Table IV
4.93
5.24
8.9498
7.1740
Data from Cards
4.9337
5.2376
8.9497
7.1740
App, 5
found differed from the Hay number in the fifth significant fig
ure, T. 2174: Dr. Peck testified this disparity was undoubtedly
due to rounding error by the computer, id.)
This precise duplication of results to several decimal places
establishes that the cards Dr. Peck used contain the same data as
that used by Hay in producing Table IV. Accordingly, it shows
that Hay must have had 18 blacks among its full sample of 328,
since the F tests would have yielded different results if any of
the blacks were either omitted or identified as white, T. 2175-
-L .
79/
Dr. Peck's analysis showed, in short, that the cards he used
had data which replicated each and every number of Hay's Tables
IV, V, VI, VII, VIII and IX and had entries which corresponded
appropriately to Hay's Tables I and II. The sole discrepancy
between the cards analyzed by Dr. Peck and the Hay tables was
the number of blacks reported in Hay's Table III, and Dr. Peck
"Intervenors argue that "If in fact as Dr. McCullough and
Ms. Goldberg claimed there was complete information on 231 cards,
then the report was clearly correct," Intervenors' Brief at 22.
This is a surprising claim because it is precisely the opposite
of Intervenors' position below, which was that "there were only
211, not 231 in the study...," A-126. It is also confused:
Hay's tables V, VI, and VII show that there was not complete data
from 231 persons in Hartford and New Haven, only 211; hence it
was a mistake for Hay to use all 231 cards to do the tests re
ported in Table IV.
App. 6
showed that this discrepancy was undoubtedly the result of an
error by Hay in confusing the total number of blacks with the
number providing usable data, T. 2176-79.
Dr. Peck was also able to explain the errors underlying
the claim that the cards were not those used in the Hay study.
First, the column indicating race was blank for all firefighters
from Stamford, T. 2189. This omission did not affect any data,
since all of these men were white and the entry was therefore
superfluous. But when Dr. McCullough ran the cards through the
computer, Ex. 67, he instructed the computer to ignore all
cards with blank entires, T. 2190, and the computer therefore
yielded results omitting all the firefighters from Stamford,
T. 2189-92.
Second, in its validity study Hay had done the tests
reported in Table IV using only firefighters from New Haven and
Hartford, but Dr. McCullough's computer run used all the fire
fighters in the sample (except those from Stamford), The
results naturally varied from those in the report; not because
the data were different but because a different subset of the
data was used, T. 2191-92. Finally, more than 15 blacks were
reported as having taken some of the tests because, as Dr. Peck
had shown, there were 18 blacks in the sample, although only
15 of them had taken all of the tests included in the recom
mended test batteries, T. 2192-94.
Defendants' response to this demonstration was a ringing
silence. Although trial recessed for two weeks after Dr. Peck's
testimony, during which time defendants had physical possession
of all Dr. Peck's printouts, T. 2402, they declined the proffered
opportunity, T. 2332, to recall him for cross examination; and
App. 7
Dr. McCullough never returned to explain the discrepancies between
his testimony and Dr. Peck's findings."
Having established that the data on the cards were the data
that used by Hay in its study, Dr. Peck was able to show
flagrant improprieties in Hay's use of its data which were deva
stating to Hay's claims of validity and of fairness. He showed
that Hay made two elementary errors in handling its data. When the
first error is corrected, Hay's claim to have shown a substantial
correlation between test score and job performance is unmasked:
the true correlation is negligible. When the second error is
corrected, Hay's claim that its test battery is not racially
biased is unmasked: Hay's own data shows that the test is strongly
biased against blacks.
2. Use of Out of Range Data: The Correlation Evaporates.
Dr. Peck explained that proper procedure in using any data
includes checking for out of range data, T. 2196-98. In this
case out of range data would include scores on any of the PRF
subscales below zero or higher than twenty, since any scores out
side that range are impossible, there being twenty questions on
each scale. On the FIT Mechanics test, any score outside the
range of zero to thirty is likewise impossible and therefore out
* Intervenors argued below that Dr. Peck must have been mis
taken because he observed that some supervisors in Bridgeport
ranked between two and six subordinates, while one of the wit
nesses testified that supervisors had between three and six
subordinates. But there is no inconsistency; the performance
rating sheet given to supervisors, A-122, specifically instructed
them to cross out the name of any subordinate they felt unable
to rank for any reason, a course apparently followed by some
supervisors.
App. 8
of range. Dr. McCullough testified that Hay checked for out of
range data solely by visually inspecting the printout sheets,
T. 1374. Dr. Peck explained that a preferred method of checking
was to ask the computer to list any out of range data, a simple
procedure, T. 466-72. When he followed this procedure, he found
two out of range data points among the 299 persons providing
ostensibly complete data, one in the "Other” group and one in
Bridgeport, Ex. 81; T. 2198. Deleting these two persons from the
sample (the only appropriate procedure at this point, since the
data had been destroyed, T. 2199) changed both the distribution
tables and the underlying correlations. In the "Other" group,
Dr. Peck showed which cell the "outlyer” was in, A-114, T. 2199-
2200, and recalculated the correlation between test score and
peformance rating, T. 2199-2202. He showed that Hay could not
possibly have corrected its apparent error because no possible
score in range on the subtest involved would place the outlyer in
the cell to which Hay--and his out of range score--assigned him,
■>v
2200- 01.
Dr. Peck then identified the outlyer in Bridgeport: he had
been scored as receiving 52 on the PRF understanding test (where
the maximum is 20), yielding a total score on the test battery of
-34, Ex. 81, T. 2198-99. Removing him from the Bridgeport sample
-'Additional confirmation that Hay used outlying data in its
study comes from Hay's own observation that the "holdout" group
for Bridgeport, Hartford, and the "Other" cities yielded a higher
correlation than the validation group, a result the Hay study
characterized as "surprising," p. 11-12. Dr. Peck explained that
this unlikely finding suggested the presence of anomalies in the
data, such as outlying data points, T. 2325-28.
App. 9
reduced the already modest correlation in Bridgeport between test
score and performance rating from .24 to a statistically neg
ligible .13, A-117, T. 2204.
The predictive power of a correlation coefficient is most
commonly described by the percentage of the variance it explains,
T. 2204-05, 1241, 1336. This proportion is simply the square
of the correlation, id. Instead of explaining .24 squared, or
about 64, of the variance, therefore, test score in Bridgeport
explains only .13 squared, or 1.1%, of the variance in perfor
mance ratings: equivalently, it fails to explain over 9870 of
the variance, T. 2205. (Since even the .24 correlation is not
statistically significant, this much lower correlation is of
course insignificant as well.)
The data for Bridgeport is presented in graphic form in
Exhibit 94, which is reproduced below as Figures 2 and 3. This
is a "scatterplot" of all the data from Bridgeport, generated
on a grid in which the horizontal axis shows performance ratings
and the vertical axis shows score on the recommended test
battery. The data point omitted by Hay and Dr. Peck's analysis
because it contained a blank score is circled and crossed. The
data point included by Hay but properly excluded is circled.
Figure 2 shows the relationship of the graph to the distribution
table which is Hay's Table VIII. Figure 3 divides the plot into
quadrants by showing the mean test score and the mean performance
rating. (Since the mean test score in this group was about 12,
the mean line also shows the passing score used by the defendants
in 1975.)
App. 10
MEAN FIGURE 2
FIGURE J
MEAN
The weakness of the asserted relationship between test
score and performance rating is visually displayed by this plot.
There is no discernible trend for points to arrange themselves
along a line with a positive slope, T. 2219. This visual impres
sion of random variation is strengthened when numbers in the four
quadrants are compared. If the correlation were high, the upper
right and lower left quadrants would be crowded, the lower right
and upper left quadrants empty. In fact, all four cells have about
the same number of entries. If just one of the firefighters from
Bridgeport had been rated very slightly lower, the miniscule trend
would be reversed and the proportion of firefighters ranked above
average would be higher among those who scored below 12 on the test
than among those who scored above 12, T. 2218. It makes about as
much sense to hire only those who score 12 or above on this test,
in other words, as it does to hire only those who score below 12.
The Hay study claimed that results in Bridgeport should be
combined with those in Hartford and the "Other" group--but not
with those in New Haven. Its basis for this claim is that the
correlations in Bridgeport, Hartford, and the "Other" group "were
very closely similar," p. 11-13, on the battery recommended for
those cities, but for the battery recommended for New Haven,
"only the correlation in New Haven...was significant," p. 11-11.
The corrected data, however, tell a different story. Figure 4,
corresponding to Exhibit 96, shows the true correlations on the
test battery recommended for Bridgeport. No longer is the
Bridgeport correlation similar to those in Hartford and the
"Other" group. Instead, the Bridgeport correlation is closest
App, 13
to that in New Haven, and, as Dr. Peck testified, the best esti
mate of the true correlation for Bridgeport is between .13 and the
•J-
total sample figure of .14, T. 2234-35.“ The recommended test
predicts less than 2% of the variance in performance ratings.
These data affirmatively demonstrate that the test is unrelated
to job performance. Based upon these data, defendants might as
well have given a cooking test, or as Dr. Peck testified, tossed
a coin, T. 2219, to select firefighters for the City of Bridgeport.
FIGURE 4: EXHIBIT 96
CORRELATION ON BRIDGEPORT TEST BATTERY
Correlation Number
Hartford .29 93
Other .34 52
New Haven .064 110
Bridgeport .13 42
Total . 14 297
The inappropriateness of the proposed test battery is further
demonstrated by investigation of the individual components of the
test battery recommended by Hay. Hay recommended that each of
the three elements of the test battery be given a unit weight,
with the PRF Understanding score weighted negatively. Dr. Peck
used regression analysis to determine the weights on each sub
test that would optimize the relationship between test score and
performance rating, T. 2237-38. He found that for Bridgeport the
relationship would be optimized if the FIT Mechanics score was
weighted three times as heavily as the PRF Social Recognition
score, and if the PRF Understanding score was weighted slightly
greater than FIT Mechanics and weighted positively, T. 2238-39.
For Bridgeport Hay's entire claim that PRF Understanding operates
as a "supressor variable" which should be subtracted from the FIT
*Intervenors claim, Int. Brief at 22, that data for the con
sortium must be considered; since the correlation for the entire
sample was .14 this claim is not helpful to them.
App. 14
Mechanics score is nonsense; the Bridgeport data indicate that
if anything this score should be added to the other scores, id,
3. Use of Blank Scores: The Illusion of Fairness
Evaporates
If Hay's first principal claim --that its test is job-
related-- is demonstrably false, what of its second claim --that
it eliminated all tests showing unfair racial bias from its
battery? This claim is also demonstrably false, In attempt
ing to replicate Hay's findings, Dr, Peck found that Hay had
performed the tests designed to weed out bias --the F tests
reported in Hay's Table IV-- using data from all 231 of the
firefighters from New Haven and Hartford, even those whose
scores were blank, T. 2169-75. The computer, unless other
wise instructed, simply scores a blank as a zero, and it was
this blunder that yielded the scores reported in Table IV and
replicated by Dr. Peck, id.
In order to determine accurately the presence of bias,
Dr. Peck performed F tests using only the persons who actually
took the relevant tests. He found that the FIT Mechanics test,
which is part of the recommended test battery for Bridgeport,
was significantly discriminatory even against incumbent black
firefighters who had passed discriminatory entrance tests and,
under Hay's own criteria, this test should have been eliminated
from consideration as an element of the test battery, Ex. 89;
T. 2247-53. Since blacks in the sample were rated approximately
equal to whites in performance rating, p, 11-10, their lower
scores on the FIT Mechanics test is a classic case of bias which
App. 15
•k
is demonstrably unrelated to any incapacity to do the job,
This finding of bias corroborates what Hay should have
known before it started. The FIT manual, Ex, 70, which accom
panies the test contains tables of scores obtained in previous
administrations of the test, A-101. These tables show that
minorities consistently score significantly lower than whites
on the FIT Mechanics test. The scores in the Hay study also
corroborate the findings of discrimination found in the appli
cant pool. The relationship of white to minority scores is very
nearly the same in the firefighter group as in the applicant
group, Ex. 97, T. 2254-56. Had Hay's handling of its data
been free from misuse, Hay would have been able to anticipate
precisely the discriminatory impact which its recommended test
battery inflicted upon minority applicants in Bridgeport, id.
After all the numerical analysis, then, the data demon
strate that Hay labored to bring forth just another version of
the tests which have been held illegal by courts time and again.
The test has a clear, demonstrable, and predictable discrimina
tory impact against minorities, and it has at best a negligible
relationship to performance on the job.
*Intervenors attack Dr. Peck's showing of bias on the
ground that there were few blacks in the sample, Int. Brief,
at 22, but as Dr. Peck explained,
[G]enerally, the smaller the sample, the larger
must the difference between the groups be in order
for it to be detectable statistically. Now, here
it happens that the difference [in scores on the
FIT Mechanics test between black and white fire
fighters] was so large, that even with 15 blacks
it was significant, T. 2309.
App. 16
APPENDIX B
COMPLETE HAY ASSOCIATES REPORT OF
FIREFIGHTER VALIDITY STUDY
S E C T I O N 1
INTRODUC riON
P R E F A C E
In a n e f f o r t to i m p r o v e p e r s o n n e l p r o c e d u r e s w i t h i n s t a t e a n d c i t y g o v e r n
m e n t s , C o n g r e s s p a s s e d t h e I n t e r g o v e r n m e n t a l P e r s o n a e ! A c t w h e r e b y
f u n d s w e r e m a d e a v a i l a b l e f o r t h e i n i t i a t i o n of a w i d e v a r i e t y o f p r o g r a m s
i n t ire p e r s o n n e l f ie lc i . I n C o n n e c t i c u t , e l e v e n c i t i e s f o r m e d a c o n s o r t i u m
to p o o l t h e i r r e s o u r c e s a n d a t t a c k c o m m o n , h i g h p r i o r i t y p r o b l e m s . T h e
c o n s o r t i u m e n g a g e d tire f i r m o f H a y A s s o c i a t e s to a i d i n a t t a c k i n g t h e s e
p r o b l e m s , a n d t h i s r e p o r t c o v e r s t h e r e s u l t s o f t h a t p r o j e c t .
T h e w o r k h a s s p a n d e d a p p r o x i m a t e l y a y e a r a n d a h a l f a n d d u r i n g t h a t
t i m e , r e p r e s e n t a t i v e s o f t h e e l e v e n c i t i e s m e t w i t h t h e H a y c o n s u l t a n t s
m a n y t i m e s f o r p l a n n i n g , t r a i n i n g a n d m e r e l y c o m m u n i c a t i n g . I t i s b e
l i e v e d t h a t t h e c o n c e p t o f a c o n s o r t i u m a n d t h e n u m e r o u s m e e t i n g s h a v e
p r o v i d e d t h e p a r t i c i p a n t s w i t h m o r e t h a n t h e d e t a i l e d o u t p u t s o f t h e s t u d y .
R a t h e r , t h e p a r t i c i p a n t s h a v e h a d a n o p p o r t u n i t y to h o l d t h e i r o w n p r a c t i c e s
u p a g a i n s t t h o s e o f t h e i r n e i g h b o r s a n d , i n m a n y c a s e s , c o n t r i b u t e d a s m u c h
to tire p r o c e s s e s o f c h a n g i n g a n d l e a r n i n g a s d id t h e c o n s u l t a n t s . T h i s
p r o j e c t r e p r e s e n t e d a m i l e s t o n e in i n t e r g o v e r n m e n t a l c o o p e r a t i o n . I t i s
h o p e d t h a t t h e m o m e n t u m g e n e r a t e d t o w a r d t h i s e n d w i l l n o t b e d i s s i p a t e d
w i t h t h e t e r m i n a t i o n o f t h e p r o j e c t .
O V EK V IEW o r T H E S T U D Y
T h i s p r o j e c t w a s d i v i d e d i n t o t h r e e m a i n c o n t e n t a r e a s :
® T e s t V a l i d a t i o n
a T r a i n i n g
• J o b R e s t r u c t u r i n g
T o a c c o m p l i s h t h e w o r k , h o w e v e r , t h e f l o w of a c t i v i t i e s w a s s u c h a s to
p r o c e e d s e q u e n t i a l l y , s o m e t i m e s o v e r l a p p i n g c o n t e n t a r e a s . F o r i n s t a n c e ,
t h e p r o j e c t b e g a n w i t h a s e r i e s o f j o b a n a l y s e s w h i c h s e r v e d a s a b a s i s b o t h
f o r j o b r e s t r u c t u r i n g a n d t e s t v a l i d a t i o n . T h e s p e c i f i c o u t p u t s p r o d u c e d in
t h e s t u d y w e r e :
e T w o to f o u r j o b d e s c r i p t i o n s e a c h o f 31 j o b s , a s f o u n d
i n t h e e l e v e n c i t i e s a n d t h e p r o d u c t i o n o f " c o r e " d e s c r i p t i o n s
w h e r e s u c h w e r e p o s s i b l e .
• J o b r e s t r u c t u r i n g w o r k s h o p s w h e r e p a r t i c i p a n t s g a i n e d
t h e s k i l l s a n d k n o w l e d g e r e q u i r e d to w o r k w i t h i n c u m b e n t s
i n r e s t r u c t u r i n g j o b s , a n d p r a c t i c e i n r e s t r u c t u r i n g a n
a c t u a l j o b w h i c h e x i s t e d in t h e i r c i t y .
A t h r e e - d a y s u p e r v i s o r y a w a r e n e s s p r o g r a m w h e r e b y
c o n s o r t i u m m e m b e r s w e r e t a k e n t h r o u g h a n a c t u a l p r o g r a m
d e s i g n e d to a t t u n e s u p e r v i s o r s to t h e i s s u e s i n v o l v e d in
h i r i n g d i s a d v a n t a g e d w o r k e r s . C o n s o r t i u m m e m b n ^ w e r e
a l s o p r o v i d e d w i t h t h e l e a d e r s g u i d e s a n d m a t e r i a l s n e c e s s a r y
to c o n d u c t t h i s t r a i n i n g w i t h i n t h e i r c i t i e s .
A " w o r l d o f w o r k " o r i e n t a t i o n p r o g r a m d e s i g n e d to . f a c i l i t a t e
b r i n g i n g d i s a d v a n t a g e d w o r k e r s i n t o p r o d u c t i v e j o b s . T h e
p r o g r a m i s d e s i g n e d a s a f i v e - d a y o r i e n t a t i o n , a n d c o n s o r t i u m
m e m b e r s w e r e g i v e n t h e s k i l l s a n d m a t e r i a l s n e c e s s a r y to
a d m i n i s t e r t h e p r o g r a m .
T r a i n i n g in t h e s t a t i s t i c s a n d e x p e r i m e n t a l d e s i g n i s s u e s of
t e s t v a l i d a t i o n .
C o n c u r r e n t v a l i d i t y s t u d i e s f o r t h e p o s i t i o n s o f p o l i c e o f f i c e r
a n d f i r e f i g h t e r .
1-2
\
il\
* A s y s U w f u r a n a l y z i n g c l e r i c a l j o b s to d e t e r m i n e lln'*
a p t i t u d e t e s t s to b e u s e d b u s e d o n a s y n t h e t i c v a l i d i t y
m o d e l , a n d t h e r e s e a r c h d e s i g n e d to i m p l e m e n t t h a t
m o d e l .
• A p r o c e d u r e f o r s c r e e n i n g a n d s e l e c t i n g a p p l i c a n t s f o r
u n s k i l l e d j o b s w h e r e p a p e r a n d p e n c i l t e s t i n g i s i n a p p r o p r i a t e .
0 A r e v i e w o f t h e c o r e j o b s i d e n t i f i e d a n d t h e r e c o m m e n d a t i o n
o f m i n i m u m q u a l i f i c a t i o n s f o r t h e s e j o b s .
M a n y o f t h e s e o u t p u t s w e r e p r o d u c e d d u r i n g t h e c o u r s e o f t h e p r o j e c t , a n d
t h e a p p r o p r i a t e s u p p o r t i n g m a t e r i a l s d i s t r i b u t e d a t t h e a p p r o p r i a t e t i m e .
T h u s , a f t e r t h e j o b d e s c r i p t i o n s w e r e r e v i e w e d a n d p r o d u c e d , t h e y w e r e
d i s t r i b u t e d a s a tw o v o l u m e b o o k to a l l p a r t i c i p a t i n g c i t i e s . L i k e w i s e , the_
t r a i n i n g m a n u a l s a n d l e a d e r s g u i d e s w e r e d i s t r i b u t e d a t t h e t i m e s o f t h e
t r a i n i n g s e s s i o n s . B e c a u s e t h e s e m a t e r i a l s h a v e b e e n p r o v i d e d , a n d
b e c a u s e of t h e i r l a r g e b u l k , t h e y a r c n o t a g a i n r e p r o d u c e d in t h i s r e p o r t .
T i i i s c o v e r s m o s t o f t h e w o r k i n t h e t r a i n i n g a n d r e s t r u c t u r i n g a r e a .
O t h e r o u t p u t s , h o w e v e r , h a v e n o t y e t b e e n p r o v i d e d , a n d t h e s e wiLl be
r e p o r t e d o n h e r e i n s o m e d e t a i l . T h i s l a t t e r g r o u p c o v e r s m o s t of t h e
e f f o r t s i n t h e s e l e c t i o n a r e a .
T i r e m a t e r i a l s w h i c h f o l l o w a r e o r g a n i z e d i n t o f i v e s e p a r a t e , s e l f - c o n t a i n e d
r e p o r t s . T h e s e a r e :
V a l i d i t y S t u d y o f t h e F i r e f i g h t e r P o s i t i o n
V a l i d i t y S t u d y of t h e P o l i c e O f f i c e r P o s i t i o n
1 ^
A P r o c e d u r e f o r C o n s t r u c t i n g C o n t e n t V a l i d C l e r i c a l T e s t s
P r o c e d u r e s f o r S e l e c t i n g C a n d i d a t e s f o r U n s k i l l e d J o b s
M i n i m u m Q u a l i f i c a t i o n s f o r C o r e J o b s
E a c h s e c t i o n c o n t a i n s i t s o w n i n t r o d u c t o r y c o m m e n t s a n d s u p p o r t i n g m a t e r i a l s .
T o g e t h e r , t h e y p r e s e n t a c o m p r e h e n s i v e d e s c r i p t i o n of t h e w o r k w h i c h h a s n o t
b e e n r e p o r t e d on p r e v i o u s l y .
1-3
S E C T I O N II
V A L I D I T Y S T U D Y O F T H E
F I R E F I G H T E R P O S I T I O N
T A B L E O F C O N T E N T S
C h a p t e r P a g e
1 I N T R O D U C T I O N I I - 1
P r e v i o u s F i r e f i g h t e r V a l i d a t i o n S t u d i e s I I - 2
A n O v e r v i e w c f t h e M e t h o d o l o g y in
th e P r e s e n t S tu d y I I - 3
2 P R O C E D U R E S I I - 5
I n i t i a l J o b A n a l y s e s I I - 5
T h e C r i t e r i o n I I - 5
T h e E x p e r i m e n t a l T e s t B a t t e r y I I -7
S a m p l e S e l e c t i o n a n d A d m i n i s t r a t i o n I I -8
3 D A T A A N A L Y S I S A N D R E S U L T S
E L I M I N A T I O N O F E X P E R I M E N T A L
S E L E C T I O N T E S T S E V I D E N C I N G
U N F A I R B L A C K - W H I T E BIAS I I - 10
F i r s t A n a l y s i s I I - 11
S e c o n d A n a l y s i s 11-12
C a u t i o n 11-13
C u t O f f S c o r e s 11-13
4 R E C O M M E N D A T I O N S 11-19
I. I N T R O D U C T I O N
D u r i n g t h e p a s t f e w y e a r s , c o n s i d e r a b l e c o n t r o v e r s y h a s a r i s e n o v e r t h e t e s t s
t h a t m a n y m u n i c i p a l i t i e s e m p l o y in s e l e c t i n g f i r e f i g h t e r s . T y p i c a l l y , d e b a t e
h a s t e n d e d to r e v o l v e a r o u n d two q u e s t i o n s :
1. A r e t h e t e s t s ( p e r f o r m a n c e , w r i t t e n o r v e r b a l ) b e i n g u s e d a c t u a l l y
v a l i d ? In o t h e r w o r d s , do i n d i v i d u a l s w h o s c o r e " h i g h e r " o n t h e
t e s t s r e a l l y t e n d to do b e t t e r on th e j o b ?
2. A r e t h e t e s t s c u r r e n t l y u s e d u n f a i r l y b i a s e d a g a i n s t p a r t i c u l a r
m i n o r i t y g r o u p s , m o s t n o t a b l y b l a c k s ?
In l i g h t of t h e p r e s e n t c o n t r o v e r s y , c o n s o r t i u m c i t i e s s u g g e s t e d t h a t H a y
A s s o c i a t e s d e v o t e p a r t of i t s e f f o r t to d e v e l o p i n g a s e l e c t i o n b a t t e r y f o r f i r e
f i g h t e r s t h a t w a s d e m o n s t r a b l y v a l i d , w i t h o u t b e i n g s i g n i f i c a n t l y b i a s e d a g a i n s t
b l a c k s . Due to t h e r e l a t i v e l y l a r g e n u m b e r of f i r e f i g h t e r s e m p l o y e d in the
v a r i o u s m u n i c i p a l i t i e s , t h e d e s i r e of m a n y of t h e c i t i e s to d e v e l o p e x p e r i e n c e i n
m a t h e m a t i c a l v a l i d a t i o n p r o c e d u r e s , a n d the q u e s t i o n s t h a t h a v e r e c e n t l y
b e e n p o s e d c o n c e r n i n g s e l e c t i o n p r o c e d u r e s u s e d f o r t h i s p o s i t i o n , i t w a s d e
c i d e d to e m p l o y a f u l l s t a t i s t i c a l v a l i d a t i o n a p p r o a c h in t h i s e n d e a v o r . T h i s
d e c i s i o n w a s m a d e in s p i t e o f t h e r e c o g n i t i o n t h a t p r a c t i c a l c o n s i d e r a t i o n s p r e
c l u d e d a n y p a r t i c u l a r m u n i c i p a l i t y f r o m e x a m i n i n g e n o u g h i n d i v i d u a l s to d e v e l o p
a t e s t b a t t e r y f o r i t s c i t y a l o n e .
By i t s v e r y n a t u r e , a r i g o r o u s s t a t i s t i c a l v a l i d a t i o n e f f o r t t y p i c a l l y r e q u i r e s
t h a t s e v e r a l h u n d r e d i n d i v i d u a l s be t e s t e d . S i n c e no o n e c i t y c o u l d s u p p o r t a n
e f f o r t of t h i s k i n d , i t w a s d e c i d e d to t e s t a s m a n y p e r s o n s a s p o s s i b l e in e a c h
m u n i c i p a l i t y a n d t h e n a t t e m p t to d e v e l o p a s i n g l e t e s t b a t t e r y f o r t h e o v e r a l l
g r o u p . T h i s a p p r o a c h i s h i g h l y u n u s u a l a n d p o s s e s s e s s e v e r a l n o t a b l e a d v a n
t a g e s a n d d i s a d v a n t a g e s . I t s g r e a t e s t a d v a n t a g e i s t h a t s u c h a p r o c e d u r e a l l o w s
s t a t i s t i c a l t e s t v a l i d a t i o n t e c h n i q u e s to b e a p p l i e d to the p r o b l e m s of i n t e r m e d i a t e
s i z e c i t i e s w h o s e d a t a b a s e , i f c o n s i d e r e d on a n i n d i v i d u a l b a s i s , w o u l d p r o b a b l y
n o t b e a d e q u a t e to s u p p o r t s u c h a n a p p r o a c h . O n the o t h e r h a n d , a v e r y s i g n i f i
c a n t p r o b l e m e x i s t s a s a r e s u l t o f t h e f a c t t h a t t h e d e m a n d s p l a c e d on a f i r e
f i g h t e r u n d o u b t e d l y do t e n d to v a r y s o m e w h a t f r o m c i t y to c i t y . T h u s , e v e n i f
a g e n e r a l t e s t b a t t e r y a n d w e i g h t i n g f o r m u l a is fo u n d t h a t c a n be a p p l i e d to s e v e r a l
c i t i e s , t h e h i g h e s t v a l i d i t y f o r a p a r t i c u l a r m u n i c i p a l i t y c o u l d p r o b a b l y o n ly
b e o b t a i n e d i f t h e e n t i r e s t u d y w a s o r i e n t e d to t h a t o n e l o c a l i t y .
II-l
In s p i t e o f t h e s e p r o b l e m s , h o w e v e r , a r e s u l t of s e v e r a l f i r e f i g h t e r jo b
a n a l y s e s t h a t H a y p e r f o r m e d , a n d e x t e n d e d m e e t i n g s w i t h b o t h P e r s o n n e l
D i r e c t o r s a n d f i r e d e p a r t m e n t r e p r e s e n t a t i v e s f r o m c o n s o r t i u m m u n i c i p a l i t i e s ,
i t s e e m e d h i g h l y p r o b a b l e t h a t t h e p o s i t i o n of f i r e f i g h t e r in t h e v a r i o u s c i t i e s
w a s s u f f i c i e n t l y s i m i l a r to w a r r a n t a g r o u p a p p r o a c h .
P r e v i o u s F i r e f i g h t e r V a l i d a t i o n S t u d i e s
T h e p r o f e s s i o n a l l i t e r a t u r e d o e s no t c o n t a i n a l a r g e n u m b e r of s t u d i e s d e a l i n g
w i t h the v a l i d a t i o n of f i r e f i g h t e r s e l e c t i o n t e s t s . In f a c t , p u b l i s h e d w o r k on
the s u b j e c t , a l t h o u g h f i r s t a p p e a r i n g in 1917 , h a s t e n d e d to be r a t h e r s p o r a d i c
w i t h m a n y of t h e s t u d i e s f a i l i n g to b u i l d on p r e v i o u s f i n d i n g s .
T e r m a n (1917) , i n a v e r y e a r l y e x p l o r a t o r y w o r k , e v a l u a t e d t h e . e x t e n t to w h i c h
a n a p p l i c a n t ' s t e s t s c o r e s , p r i m a r i l y in the i n t e l l e c t u a l d o m a i n ( i . e . , m e n t a l
a g e , v o c a b u l a r y , a r i t h m e t i c r e a s o n i n g , e t c . ) m i g h t b e u s e f u l i n t h e s e l e c t i o n
of p o l i c e o f f i c e r a n d f i r e f i g h t e r a p p l i c a n t s . H i s s t u d y , a l t h o u g h h a m p e r e d b y
th e l i m i t e d s t a t i s t i c a l t e c h n i q u e s t h e n a v a i l a b l e , d id s u g g e s t t h a t s u c h a n a p
p r o a c h m i g h t b e p o s s i b l e . T h e f a c t t h a t s u c h d i m e n s i o n s w e r e i n c r e a s i n g l y b e i n g
c o n s i d e r e d w a s r e f l e c t e d in t h e f i n d i n g s of M o s e s a n d T e l f o r d (1924) a n d th e
P u b l i c P e r s o n n e l A d m i n i s t r a t i o n (1927) to t h e e f f e c t t h a t a t r e n d h a d d e v e l o p e d
t o w a r d s e l e c t i n g f i r e f i g h t e r s on the b a s i s of bo th m e n t a l a n d p h y s i c a l c a p a b i l i t i e s .
D r i l l (1927) n o t e d a h i g h c o r r e l a t i o n b e t w e e n r a n k i n g s b a s e d o n p h y s i c a l , m e n t a l
a n d p e r s o n a l q u a l i t i e s a n d p e r f o r m a n c e t e s t s , w h e r e t h e s u b j e c t w a s r e q u i r e d
to f i n d a s i g n a l in a s m o k e - f i l l e d r o o m a n d a l s o m o u n t a n d d e s c e n d a s c a f f o l d
by l a d d e r s . W olf f a n d N o r t h (1951) , in a p r e d i c t i v e v a l i d a t i o n s t u d y , f o u n d a
s i g n i f i c a n t c o r r e l a t i o n b e t w e e n r a n k i n g s of s u b j e c t s b a s e d on t h e i r a b i l i t y a s
f i r e f i g h t e r s , a n d t h e i r s c o r e s o n a " T o t a l W r i t t e n E x a m i n a t i o n , " a t e s t o f
m e c h a n i c a l c o m p r e h e n s i o n , a g e a t l a s t b i r t h d a y , a n d k n o w l e d g e of i n f l a m m a b l e s .
S e v e r a l s t u d i e s h a v e i n v e s t i g a t e d t h e i m p o r t a n c e o f c e r t a i n p s y c h o l o g i c a l a n d / o r
i n t e r e s t f a c t o r s in f i r e f i g h t e r s . M i n e r (1933) c l a i m e d t h a t a h i g h e x t r o v e r s i o n
s c o r e w a s d e s i r a b l e , w h i l e M a t a r o z z o et a l (1964) c o n c l u d e d t h a t f i r e f i g h t e r
a p p l i c a n t s a s a g r o u p w e r e of s u p e r i o r i n t e l l i g e n c e a n d h a d h i g h p e r s o n a l i t y
a d j u s t m e n t , b a s e d on a n e x a m i n a t i o n i n c l u d i n g t h e WAIS, M M P I , E P P S , SV IB ,
R o r s c h a c h , a n d o t h e r i n s t r u m e n t s .
C h i s e l l i ( 1966) in h i s b o o k T h e V a l i d i t y o f O c c u p a t i o n a l A p t i t u d e T e s t s s u m m a r i z e d
the f i n d i n g s of t h e a v a i l a b l e p u b l i s h e d a n d u n p u b l i s h e d w o r k o n f i r e f i g h t e r s e l e c
t io n . T h e v a l i d i t y c o e f f i c i e n t s w h i c h ho p r e s e n t s i n d i c a t e t h a t in p a s t w o r k the
t r a i n a b i l i t y of f i r e f i g h t e r s h a s t e n d e d to b e b e s t p r e d i c t e d by t e s t s of s p a t i a l a n d
m e c h a n i c a l a b i l i t i e s , f o l l o w e d by t e s t s of i n t e l l e c t u a l a b i l i t i e s a n d m e a s u r e s of
p e r c e p t u a l a c c u r a c y . T h i s a u t h o r n o t e d , h o w e v e r , t h a t t h e l e v e l of p r e d i c t i o n
w a s n o t t e r r i b l y h i g h r e l a t i v e to t h a t a c h i e v e d in o t h e r a r e a s .
I I - 2
A s a r e s p l t of t h i s l i t e r a t u r e r e v i e w , m e e t i n g s w i t h l o c a l p e r s o n n e l , a n d H a y
A s s o c i a t e s ' p r e v i o u s w o r k in t e s t v a l i d a t i o n , i t w a s i n i t i a l l y f e l t t h a t t e s t s in
t h e s p a t i a l , m e c h a n i c a l , b r o a d l y i n t e l l e c t u a l a n d p e r s o n a l i t y a r e a s m i g h t p r o v e
u s e f u l i n s e l e c t i n g f i r e f i g h t e r s .
A n O v e r v i e w of t h e M e t h o d o l o g y in t h e P r e s e n t S tudy
T h e v a l i d a t i o n a p p r o a c h u s e d in H a y A s s o c i a t e s ' w o r k w i t h c o n s o r t i u m c i t i e s
w a s t h e p r e s e n t e m p l o y e e o r c o n c u r r e n t m e t h o d .
A l a r g e t o t a l n u m b e r o f p r e s e n t l y e m p l o y e d f i r e f i g h t e r s in s ix p a r t i c i p a t i n g
m u n i c i p a l i t i e s w e r e g i v e n a n e x t e n s i v e e x p e r i m e n t a l t e s t b a t t e r y . F o r e a c h
of t h e s e f i r e f i g h t e r s , i n f o r m a t i o n w a s a l s o o b t a i n e d a s to t h e i r r e l a t i v e p e r
f o r m a n c e on the j o b . A H of the d a t a p e r t a i n i n g to a p a r t i c u l a r f i r e f i g h t e r w a s
t h e n p l a c e d in e i t h e r a v a l i d a t i o n o r a h o l d o u t g r o u p . In e a c h of t h e s i x m u n i c i
p a l i t i e s r o u g h l y t w o - t h i r d s o f t h e p e r s o n s e x a m i n e d in t h a t c i t y w e r e r a n d o m l y
p l a c e d in t h e v a l i d a t i o n g r o u p , w i t h the r e m a i n d e r b e i n g a s s i g n e d to a h o l d o u t
g r o u p . D a t a o n a s m a l l n u m b e r of b l a c k f i r e f i g h t e r s w a s s e c u r e d by two m u n i c i
p a l i t i e s . A p p r o x i m a t e l y t w o - t h i r d s of t h e s e i n d i v i d u a l s w e r e a l s o r a n d o m l y
a s s i g n e d to t h e v a l i d a t i o n g r o u p w i t h t h e r e m a i n d e r b e i n g p l a c e d in t h e h o l d o u t
c a t e g o r y .
A n e n t i r e l y s e p a r a t e o v e r a l l a n a l y s i s w a s t h e n p e r f o r m e d , c o m p a r i n g t h e a v e r a g e
s c o r e of t h e s m a l l n u m b e r of b l a c k s s a m p l e d w i t h t h e a v e r a g e s c o r e o f w h i t e s .
P e r f o r m a n c e e v a l u a t i o n s of b l a c k s w e r e n o t f o u n d to b e s i g n i f i c a n t l y l o w e r
t h a n t h a t f o r w h i t e s . T h e s c o r e s o b t a i n e d by b l a c k s on e a c h of t h e t e s t s w a s
t h e n s t a t i s t i c a l l y c o m p a r e d w i t h the s c o r e s a c h i e v e d by w h i t e s . T e s t s in w h i c h
s i g n i f i c a n t d i f f e r e n c e s a p p e a r e d w e r e a u t o m a t i c a l l y e x c l u d e d f r o m f u r t h e r
c o n s i d e r a t i o n a s p o t e n t i a l s e l e c t i o n i n s t r u m e n t s .
D a t a i n t h e v a l i d a t i o n g r o u p w a s t h e n a n a l y z e d u s i n g a m e t h o d c a l l e d m u l t i p l e
l i n e a r r e g r e s s i o n . M u l t i p l e l i n e a r r e g r e s s i o n is b a s i c a l l y a t e c h n i q u e f o r
s e l e c t i n g a s m a l l n u m b e r of i n i t i a l l y e x p e r i m e n t a l t e s t s t h a t , w h e n d i f f e r e n t i a l l y
w e i g h t e d a n d u s e d in c o m b i n a t i o n , c a n b e s t p r e d i c t a f i r e f i g h t e r ' s p e r f o r m a n c e .
O n c e t h e s e t e s t s a n d t h e i r p r o p e r w e i g h t i n g s w e r e d e t e r m i n e d , t h i s t e n t a t i v e
s e l e c t i o n a p p r o a c h w a s t h e n " t r i e d o u t " on t h e h o l d o u t g r o u p . S i n c e s i g n i
f i c a n t r e s u l t s w e r e a g a i n o b t a i n e d , the s e l e c t i o n p r o c e d u r e w a s t h e n c o n s i d e r e d
to b e v a l i d f o r t h e o v e r a l l g r o u p .
F i n a l l y , t h e s e l e c t i o n p r o c e d u r e so d e v e l o p e d w a s I n d i v i d u a l l y a p p l i e d to a l l
of the d a t a s u p p l i e d b y e a c h of t h e t h r e e c i t i e s t h a t t e s t e d a r e l a t i v e l y l a r g e
n u m b e r of i n d i v i d u a l s (i. e. , m o r e t h a n 40 s u b j e c t s ) . D a t a f r o m th e r e m a i n i n g
t h r e e c i t i e s , ( i n v o l v i n g 53 s u b j e c t s ) , w a s p l a c e d in a n " o t h e r c a t e g o r y to w h i c h
t h e s e l e c t i o n p r o c e d u r e w a s a l s o a p p l i e d . T h i s f i n a l s t e p of r e a p p l y i n g th e p r o
c e d u r e to e a c h m u n i c i p a l i t y i n d i v i d u a l l y (w hen p r a c t i c a l ) w a s d o n e to v e r i f y t h a t
t h e g r o u p - d e r i v e d a p p r o a c h t e n d e d to h o l d u p f o r e a c h s p e c i f i c c i t y . "
I I -3
Upon e v a l u a t i n g t h e r e s u l t s of t h i s p r o c e d u r e , i t w a s fo im d t h a t a l t h o u g h the
t e n t a t i v e t e s t b a t t e r y p r e d i c t e d p e r f o r m a n c e in N e w H a v e n , i t d i d n o t h o ld
u p in t h e o t h e r g r o u p s .
A s a r e s u l t of t h i s f i n d i n g , N e w H a v e n ' s d a t a w a s s e t a s i d e a n d a m u l t i p l e
l i n e a r r e g r e s s i o n a p p r o a c h a p p l i e d to t w o - t h i r d s of t h e d a t a f r o m t h e r e m a i n i n g
c i t i e s . T h e t e s t s s e l e c t e d in t h i s m a n n e r ( w h i c h i n c l u d e d tw o of t h e t h r e e
s e l e c t i o n i n s t r u m e n t s p r e v i o u s l y u s e d ) w e r e a g a i n f o u n d to p r o v i d e s i g n i f i c a n t
p r e d i c t i o n w h e n a p p l i e d to t h e h o l d o u t g r o u p . F u r t h e r , w h e n t h e s e w e i g h t s
w e r e a p p l i e d to e a c h of t h e g r o u p s i n d i v i d u a l l y , p o s i t i v e c o r r e l a t i o n s of v e r y
s i m i l a r m a g n i t u d e w e r e o b t a i n e d .
I I . P R O C E D U R E S
I n i t i a l J o b A n a l y s e s
A s p a r t of t h e p o s i t i o n d e s c r i p t i o n p h a s e of t h e o v e r a l l p r o j e c t , H a y s t a f f
m e m b e r s i n t e r v i e w e d f i r e f i g h t e r s in tw o d i f f e r e n t m u n i c i p a l i t i e s a n d p r e p a r e d
j o b d e s c r i p t i o n s . R e v i e w of t h e s e j o b d e s c r i p t i o n s c o n f i r m e d t h a t t h e p o s i t i o n
a s i t e x i s t e d i n a t l e a s t two m u n i c i p a l i t i e s w a s h i g h ly s i m i l a r . B a s e d on t h i s
f a c t , H a y p r e p a r e d a c o r e o r c o m m o n jo b d e s c r i p t i o n f o r t h e two p o s i t i o n s (cop i
of b o t h t h e i n d i v i d u a l j o b d e s c r i p t i o n s a n d t h e f i n a l c o r e d e s c r i p t i o n a r e con ta in*
in A p p e n d i x A) a n d p r e s e n t e d i t f o r r e v i e w to c o n s o r t i u m f i r e d e p a r t m e n t r e p r e
s e n t a t i v e s . A t t h i s m e e t i n g t h e r e w a s g e n e r a l a g r e e m e n t t h a t the c o r e d e s c r i p
t i o n s d id a d e q u a t e l y d e s c r i b e t h e p o s i t i o n of f i r e f i g h t e r , a l t h o u g h in s o m e c i t i e s
t h e p e r c e n t a g e of t i m e e s t i m a t e s m i g h t v a r y s o m e w h a t . B a s e d on t h e s e d i s
c u s s i o n s i t b e c a m e c l e a r t h a t H a y k n e w e n o u g h a b o u t t h e p o s i t i o n to s e l e c t e x
p e r i m e n t a l t e s t s to b e v a l i d a t e d , a n d a l s o t h a t the j o b i t s e l f w a s s u f f i c i e n t l y
c l o s e to t h e o n e d i s c u s s e d in t h e l i t e r a t u r e to a l l o w th e s e l e c t i o n of a t r i a l t e s t
b a t t e r y to b e g u i d e d by p r e v i o u s l y p u b l i s h e d f i n d i n g s .
T h e C r i t e r i o n
T h e m e e t i n g w i t h f i r e d e p a r t m e n t r e p r e s e n t a t i v e s a t w h i c h th e c o r e jo b
d e s c r i p t i o n w a s r e v i e w e d a l s o m a r k e d the b e g i n n i n g o f a c t u a l w o r k on th e
d e v e l o p m e n t of a c r i t e r i o n . D e p a r t m e n t r e p r e s e n t a t i v e s w e r e a s k e d to
d e s c r i b e t h e f a c e t s of a f i r e f i g h t e r ' s p e r f o r m a n c e t h a t w e r e c r i t i c a l i n d i c a t o r s
of a n i n d i v i d u a l ' s e f f e c t i v e n e s s on the j o b . T h e y w e r e t o ld t h a t t h e s u p e r i o r s o f
i n d i v i d u a l s w h o to o k th e e x p e r i m e n t a l t e s t b a t t e r y w o u l d e v a l u a t e t h e p e r
f o r m a n c e of t h e i r s u b o r d i n a t e s o n a f o r m u s i n g the d i m e n s i o n s t h e y h e l p e d
d e v e l o p i n the m e e t i n g . A f t e r t h e s e s s i o n , H a y to o k a n d s h a r p e n e d th e d e r i v e d
d i m e n s i o n s a n d a d d e d s e v e r a l t h a t a p p e a r e d w a r r a n t e d . T h e s e t e n t a t i v e e v a l
u a t i o n d i m e n s i o n s w e r e t h e n t r a n s m i t t e d f o r r e v i e w to c o n s o r t i u m p e r s o n n e l
d i r e c t o r s w i t h t h e s t r o n g r e c o m m e n d a t i o n t h a t t h e y d i s c u s s t h e p r o p o s e d c h a r a c
t e r i s t i c s w i t h k n o w l e d g e a b l e i n d i v i d u a l s in t h e i r f i r e d e p a r t m e n t a n d f o r w a r d
s u g g e s t i o n s a s to h ow t h e c r i t e r i o n c o u l d be i m p r o v e d .
A s a r e s u l t of t h e p r e c e d i n g p r o c e s s , the p e r f o r m a n c e e v a l u a t i o n s of e a c h
i n d i v i d u a l t h a t t o o k the e x p e r i m e n t a l t e s t s w e r e m a d e on t h e b a s i s of t h e 11
d i m e n s i o n s l i s t e d in T a b l e I.
11-5
T A B L E I
L I S T O F D I M E N S IO N S U S E D IN E V A L U A T I N G
T H E P E R F O R M A N C E O F F I R E F I G H T E R S
1. R e l a t i o n s w i t h o t h e r f i r e f i g h t e r s (how w e l l d o e s t h e i n d i v i d u a l w o r k wil
a n d r e l a t e to o t h e r m e m b e r s of t h e d e p a r t m e n t ) .
2. W i l l i n g n e s s to f o l l o w o r d e r s ( d o e s the i n d i v i d u a l r e s p o n d p r o m p t l y a n d
p r o p e r l y to o r d e r s ) .
3 . T r a i n a b i l i t y ( d e g r e e to w h i c h the p e r s o n q u i c k l y a n d t h o r o u g h l y l e a r n s
n e w s k i l l s , f a c t s , e t c . ).
4 . C o m p o s u r e u n d e r p r e s s u r e (how w e l l the i n d i v i d u a l h o l d s up in e m e r g e n t
s i t u a t i o n s , s t a y i n g c a l m a n d d e p e n d a b l e ) .
5. T e c h n i c a l (no t m e c h a n i c a l ) k n o w l e d g e ( f i r e s e n s e : d e g r e e i n d i v i d u a l
u n d e r s t a n d s f i r e c h e m i s t r y , e l e c t r i c i t y , e x t i n g u i s h i n g t e c h n i q u e s , e t c . ) .
6 . A g g r e s s i v e n e s s ( e x t e n t t o w h i c h i n d i v i d u a l a c t i v e l y f i g h t s f i r e i n s t e a d o f
l y i n g b a c k ) .
7. M e c h a n i c a l a b i l i t y ( a b i l i t y to u n d e r s t a n d a n d p r o p e r l y u s e a p p a r a t u s a n d
e q u i p m e n t ) .
8. Q u a l i t y of i n s p e c t i o n s ( d e g r e e to w h i c h i n d i v i d u a l a c c u r a t e l y a n d t h o r o u g h l y
c o n d u c t s i n s p e c t i o n s a n d , i f r e q u i r e d , p r e p a r e s r e p o r t s ) .
9 . R e t e n t i v e m i n d a t f i r e ( a b i l i t y to r e m e m b e r i m p o r t a n t f a c t s r e l a t e d to
a f i r e ) .
10. P u b l i c r e l a t i o n s (how w e l l d o e s t h e f i r e f i g h t e r d e a l w i t h t h e g e n e r a l p u b l i c ) .
11. O v e r a l l e f f e c t i v e n e s s ( c o n s i d e r i n g e v e r y t h i n g , how good a f i r e f i g h t e r i s
h e ) .
II-S
W h e n e v e r a s u p e r i o r ' s e v a l u a t i o n s a r e u s e d a s m e a s u r e s of s u b o r d i n a t e s '
p e r f o r m a n c e , s e v e r a l n o t a b l e p r o b l e m s a r i s e . I n d i v i d u a l s u p e r i o r s , f o r ii
t e n d to v a r y i n the l e n i e n c y w i t h w h i c h t h e y e v a l u a t e t h e p e r f o r m a n c e o f the'
s u b o r d i n a t e s . T h u s w h a t i s " g o o d " p e r f o r m a n c e on a p a r t i c u l a r d i m e n s i o n
o n e s u p e r i o r m a y b e o n l y " a c c e p t a b l e " f o r a n o t h e r . A n o t h e r p r o b l e m h a s t-
do w i t h the m a n n e r in w h i c h p e r f o r m a n c e e v a l u a t i o n s a r e f r e q u e n t l y c o n d u c t -
It i s n o t a t a l l u n u s u a l to f i n d s u p e r i o r s w h o , on m e r i t r e v i e w f o r m s , r a t e
a l m o s t a l l o f t h e i r s u b o r d i n a t e s the s a m e , s o a s to a v o i d p e r s o n n e l p r o b l e m -
In o r d e r to a v o i d t h e p r o b l e m s c a u s e d by b o t h s u p e r i o r s ’ d i f f e r e n c e s in l e n i e n
a n d a l s o t h e t e n d e n c y of s o m e i n d i v i d u a l s to e v a l u a t e a l l of t h e i r s u b o r d i n a t e s
e s s e n t i a l l y the s a m e , a r a n k i n g a p p r o a c h w a s d e c i d e d u p o n . T h u s , if o n e o r
m o r e of a n i n d i v i d u a l ' s s u b o r d i n a t e s t o o k t h e e x p e r i m e n t a l t e s t b a t t e r y , t h e
s u p e r i o r w a s a s k e d to r a n k e v e r y o n e of h i s s u b o r d i n a t e s on e a c h o f t h e e l e v e n
d i m e n s i o n s . T h e s e r a n k i n g s w e r e t h e n c o n v e r t e d b y H a y to s t a n d a r d s c o r e s to
be u s e d in l a t e r s t a t i s t i c a l a n a l y s e s . A n e x a m p l e of t h e f o r m a t of t h e r a n k i n g
f o r m c a n b e f o u n d in t h e a p p e n d i x o f the p o l i c e v a l i d a t i o n s t u d y ( a l t h o u g h , of
c o u r s e , d i f f e r e n t d i m e n s i o n s w e r e u s e d f o r p o l i c e ) .
T h e E x p e r i m e n t a l T e s t B a t t e r y
B a s e d on s e p a r a t e m e e t i n g s w i t h c o n s o r t i u m f i r e s e r v i c e a n d P e r s o n n e l D e p a r t
m e n t r e p r e s e n t a t i v e s , H a y j o b a n a l y s e s a n d a l s o a s u r v e y of r e l e v a n t p r e v i o u s
r e s e a r c h , a n e x p e r i m e n t a l t e s t b a t t e r y of s e v e n t e s t s ( y i e l d i n g 22 s c o r e s ) w a s
s e l e c t e d . T e s t s i n c l u d e d in t h i s b a t t e r y a r e l i s t e d in T a b l e II.
T A B L E II
T e s t s U s e d in the E x p e r i m e n t a l B a t t e r y A d m i n i s t e r e d
to P r e s e n t l y E m p l o y e d F i r e f i g h t e r s
M i n n e s o t a P a p e r F o r m B o a r d
F l a n n a g a n I n d u s t r i a l T e s t s
A. M e c h a n i c a l D. M e m o r y
B. T a b i c s E. C o o r d i n a t i o n
C. V o c a b u l a r y F . P r e c i s i o n
P e r s o n a l i t y R e s e a r c h F o r m - T h i s t e s t y i e l d s t h e f o l l o w i n g s u b s c o r e s :
A. A c h i e v e m e n t F . E n d u r a n c e K. O r d e r
B. A f f i l i a t i o n G. E x h i b i t i o n L . P l a y
C. A g g r e s s i o n H. H a r m a v o i d a n c e M . S o c i a l R e c o g n i t i o n
D. A u t o n o m y I. I m p u l s i v i t y N. U n d e r s t a n d i n g
E. D o m i n a n c e J . N u r t u r a n c e O. I n f r e q u e n c y
II-7
T h e t i t l e s g i v e n to t h e 15 s u b s c o r e s y i e l d e d b y th e P . R. F . a r e e x t r e m e l y
c o n f u s i n g a n d s o m e of t h e m c o u l d b e s i m p l y c l a s s i f i e d a s t e c h n i c a l j a r g o n .
A b r i e f s u m m a r y of the t e s t a u t h o r ' s d e f i n i t i o n of e a c h of t h e s e s u b s c o r e s cai
b e f o u n d in A p p e n d i x B. F u r t h e r i n f o r m a t i o n i s of c o u r s e c o n t a i n e d in t h e
P e r s o n a l i t y R e s e a r c h F o r m M a n u a l , a v a i l a b l e f r o m t h i s t e s t ' s p u b l i s h e r .
S a m p l e S e l e c t i o n a n d A d m i n i s t r a t i o n
C r i t e r i o n a n d e x p e r i m e n t a l t e s t b a t t e r y p e r f o r m a n c e d a t a w e r e o b t a i n e d fo r a
r e l a t i v e l y l a r g e n u m b e r of f i r e f i g h t e r s w o r k i n g in o n e of s i x c i t i e s o f v a r y i n g
s i z e i n C o n n e c t i c u t * A l l i n d i v i d u a l s t h a t w e r e i n c l u d e d h a d h e l d t h e p o s i t i o n
f o r f r o m o n e to f i v e y e a r s . In t h e v e r y f e w c a s e s in w h i c h a n i n d i v i d u a l f a i l e d
to t a k e m o s t of t h e t e s t b a t t e r y , d a t a f o r t h e p e r s o n w a s , o f c o u r s e , n o t i n
c l u d e d i n t h e s a m p l e . D ue to t h e f a c t t h a t r e l a t i v e l y f e w b l a c k s a r e p r e s e n t l y
in t h e f i r e s e r v i c e , o n l y 15 p e o p l e f r o m t h i s m i n o r i t y g r o u p w e r e s a m p l e d .
A l l 1 5 o f t h e s e i n d i v i d u a l s c a m e f r o m e i t h e r H a r t f o r d o r N e w H a v e n . T a b l e III
i n d i c a t e s t h e c i t i e s t h a t p a r t i c i p a t e d in t h e s t u d y a n d t h e n u m b e r of i n d i v i d u a l s
in e a c h m u n i c i p a l i t y f o r w h o m u s a b l e d a t a w a s o b t a i n e d . T h e s a m p l e s i z e of
l a t e r s t a t i s t i c a l a n a l y s e s w i l l t e n d to v a r y s o m e w h a t , h o w e v e r , d u e to i n c o m p l e t e
d a t a f o r s o m e of t h e s e i n d i v i d u a l s .
T A B L E HI
C i t i e s P a r t i c i p a t i n g in t h e F i r e f i g h t e r V a l i d a t i o n S t u d y
a n d N u m b e r of B l a c k s a n d W h i t e s t h a t w e r e
I n c l u d e d f r o m E a c h M u n i c i p a l i t y
(In a f e w c a s e s , i n c o m p l e t e d a t a w a s o b t a i n e d f o r a few’ of t h e s e i n d i v i d u a l s )
M u n i c i p a l i t y No. of W h i t e s N o . of B l a c k s T o t a l
N e w H a v e n 130 5 135
H a r t f o r d 86 10 96
B r i d g e p o r t 44 0 44
M e r i d e n 24 0 24
S t a m f o r d 17 0 17
W e s t H a r t f o r d 12 0 12
328
T h e t e s t b a t t e r y w a s a d m i n i s t e r e d b y e i t h e r a n i n d i v i d u a l f r o m t h e c i t i e s ' P e r s o n
n e l D e p a r t m e n t o r a d e s i g n a t e d f i r e s e r v i c e o f f i c e r . D e t a i l e d d i r e c t i o n s f o r
a d m i n i s t r a t i o n w e r e f u r n i s h e d by H a y ( s e e A p p e n d i x C) , w i t h s o m e e l a b o r a t i n g
i n f o r m a t i o n b e i n g p r o v i d e d on t h e t e s t m a t e r i a l s t h e m s e l v e s . W h e n e a c h i n d i
v i d u a l c o m p l e t e d h i s t e s t , t h e m a t e r i a l w a s s e a l e d in a n e n v e l o p e a n d r e t u r n e d
by m a i l to H a y f o r s c o r i n g a n d a n a l y s i s .
C o n t r o l o v e r the g a t h e r i n g of a m u n i c i p a l i t i e s c r i t e r i o n r a n k i n g d a t a w a s a l s o
r e t a i n e d by l o c a l p e r s o n n e l . T h e s u p e r i o r s of i n d i v i d u a l s w h o w e r e e i t h e r
d e s i g n a t e d to be t e s t e d (a p r o c e d u r e u s e d by s o m e c i t i e s ) o r w h o v o l u n t e e r e d
to t a k e t h e t e s t , w e r e i n s t r u c t e d to r a n k th e p e r f o r m a n c e of a l l of t h e p e r s o n s
r e p o r t i n g to t h e m . T h i s p r o c e d u r e , of c o u r s e , r e s u l t e d i n m o r e i n d i v i d u a l s
b e i n g r a n k e d t h a n a c t u a l l y s a t f o r the t e s t s . W h e r e p o s s i b l e , a n a t t e m p t w a s
a l s o m a d e to h a v e a n i n d i v i d u a l r a n k e d by t h e s u p e r i o r to w h o m h e m o s t d i r e c t l y
r e p o r t e d . A f t e r a s u p e r i o r h a d r a n k e d h i s s u b o r d i n a t e s o n e a c h of t h e e l e v e n
c r i t e r i o n d i m e n s i o n s , t h i s i n f o r m a t i o n w a s s e n t d i r e c t l y to H a y . N e i t h e r t e s t
n o r c r i t e r i o n d a t a f o r i n d i v i d u a l s w e r e r e l e a s e d to t h e l o c a l P e r s o n n e l o r F i r e
D e p a r t m e n t s .
A c o r r e l a t i o n m a t r i x of e a c h of t h e e l e v e n c r i t e r i o n d i m e n s i o n s i n d i c a t e d t h a t
t h e y w e r e i n t e r c o r r e l a t e d , t h e a v e r a g e R rb e i n g . 4 4 . A s a r e s u l t o f t h i s f a c t ,
a s i n g l e p e r f o r m a n c e m e a s u r e w a s o b t a i n e d f o r e a c h p e r s o n , t h i s v a l u e b e i n g
th e a v e r a g e of t h a t p e r s o n ' s r a n k s on the e l e v e n c r i t e r i o n d i m e n s i o n s a f t e r t h e y
w e r e c o n v e r t e d to s t a n d a r d s c o r e s . T h e a v e r a g e R ^ e t w e e n t h i s s i n g l e p e r
f o r m a n c e s c o r e a n d the e l e v e n d i m e n s i o n s w a s . 72.
In the a c t u a l s t a t i s t i c a l a n a l y s e s t h a t w e r e c o n d u c t e d , t h e s m a l l n u m b e r o f p e o p l e
s a m p l e d in S t a m f o r d , W e s t H a r t f o r d , a n d M e r i d e n w e r e n o t s u f f i c i e n t to a l l o w
t h e s e m u n i c i p a l i t i e s to be t r e a t e d s e p a r a t e l y . T h u s , d a t a f o r t h e s e i n d i v i d u a l s
f r o m t h e s e a r e a s w a s p l a c e d in a s i n g l e g r o u p , d e s i g n a t e d a s " O t h e r " . In a l l o f
' t h e s t a t i s t i c a l w o r k , to be d i s c u s s e d , w h e n s u b - a n a l y s e s w e r e p e r f o r m e d i t w a s
a l w a y s on th e b a s i s of f o u r m a j o r g r o u p s : N e w H a v e n , H a r t f o r d , B r i d g e p o r t ,
a n d " O t h e r s " .
II - 9
I I I . D A T A A N A L Y S I S A N D R E S U L T S
E L I M I N A T I O N O F E X P E R I M E N T A L S E L E C T I O N T E S T S
E V I D E N C I N G U N F A I R B L A C K - W H I T E BIAS
In o r d e r to d e t e r m i n e q u i c k l y w h e t h e r a n y o f . the p o t e n t i a l s e l e c t i o n t e s t s d i s
p l a y e d u n f a i r b i a s a g a i n s t b l a c k s , a s e r i e s of F t e s t s w e r e r u n b e t w e e n th e
m e a n s c o r e s o b t a i n e d b y b l a c k s v s . w h i t e s in N e w H a v e n a n d H a r t f o r d c o m b i n e d
( the o n l y c i t i e s t h a t h a d o b t a i n e d d a t a f o r b l a c k s ) . T h e s e t e s t s c o u l d , o f c o u r s e ,
o n l y b e a p p r o x i m a t e s i n c e t h e s i g n i f i c a n c e l e v e l in c a s e s i n w h i c h t h e s e a r e
w i d e l y d i f f e r i n g n u m b e r s of s u b j e c t s ( in t h i s c a s e , t y p i c a l l y 15 v s . 2 1 4 - t h e
v a r i a t i o n in n u m b e r s of p e o p l e a n d t h u s d e g r e e s of f r e e d o m b e i n g d u e to m i n o r
c a s e s of i n c o m p l e t e d a t a ) a n d d i f f e r e n c e s in v a r i a n c e t e n d to b e s o m e w h a t
u n s t a b l e . T y p i c a l l y , h o w e v e r , t h i s v a r i a b i l i t y is in t h e d i r e c t i o n o f s h o w i n g
d i f f e r e n c e s w h e n t h e r e a r e i n f a c t n o n e , s o i n the p r e s e n t i n s t a n c e t h e u s e of
t h e F t e s t w o u l d t e n d to s c r e e n o u t b o r d e r l i n e d i s c r i m i n a t o r y t e s t s .
A n F t e s t w a s f i r s t c o m p u t e d f o r d i f f e r e n c e s in a v e r a g e r a n k e d p e r f o r m a n c e
b e t w e e n b l a c k s a n d w h i t e s . B l a c k s d id t e n d to s c o r e s l i g h t l y l o w e r t h a n w h i t e s
(a d i f f e r e n c e of 1. 12 b e l o w t h e w h i t e m e a n of 21 . 17), b u t t h i s w a s d e f i n i t e l y
n o n s i g n i f i c a n t (F<1 df 1 , 2 3 1 ) . R e p e a t e d F t e s t s w e r e t h e n r u n f o r e a c h t e s t ,
o r s u b s c o r e y i e l d e d b y a t e s t , to d e t e r m i n e on w h a t s c a l e s , i f a n y , b l a c k s s c o r e d
s i g n i f i c a n t l y l o w e r t h a n w h i t e s . T h i s d a t a i s p r e s e n t e d in T a b l e IV.
T A B L E IV
T e s t s on S u b s c o r e s of T e s t s on W h i c h B l a c k s S c o r e d
S i g n i f i c a n t l y L o w e r t h a n W h i t e s
• O n l y t h e A g g r e s s i o n a n d I n f r e q u e n c y s u b s c o r e s of t h e P e r s o n a l i t y
R e s e a r c h F o r m .
A g g r e s s i o n F = 4. 93 df 1, 229 >
I n f r e q u e n c y F = 5. 24 d f 1, 229
• T h e T a b l e s a n d V o c a b u l a r y t e s t s o f t h e F . I . T . s e r i e s .
T a b l e s F = 8. 9498 df 1 , 2 2 9
V o c a b u l a r y F = 7. 1740 df 1, 229
Due to t h e s e f i n d i n g s , the a b o v e f o u r t e s t s w e r e n o t c o n s i d e r e d f o r i n c l u s i o n
In t h e f i n a l t e s t b a t t e r y .
I I - 10
F i r s t A n a l y s i s
A s t e p w i s e l i n e a r r e g r e s s i o n w a s r u n on i n d i v i d u a l s i n the v a l i d a t i o n g r o u p
(N = 199) to s e l e c t t h o s e s c a l e s t h a t c o u l d b e s t p r e d i c t p e r f o r m a n c e . T h r e e
s c o r e s w e r e s e l e c t e d t h a t y i e l d e d t h e h i g h e s t p r e d i c t a b i l i t y . T h e s e s c o r e s w e r e :
1. F . I. T . M e c h a n i c s ( p o s i t i v e l y w e i g h t e d )
2. P e r s o n a l i t y R e s e a r c h F o r m - E n d u r a n c e S c a l e ( p o s i t i v e l y w e i g h t e d )
3. P e r s o n a l i t y R e s e a r c h F o r m - U n d e r s b a n d i n g ( n e g a t i v e l y w e i g h t e d )
A s t e p w i s e l i n e a r r e g r e s s i o n a p p r o a c h s e c u r e s the h i g h e s t l e v e l of p r e d i c t a b i l i t y
by w e i g h t i n g e a c h p r e d i c t o r b y a c o m p l e x d e c i m a l . E x p e r i e n c e h a s s h o w n t h a t
n o t o n ly do t h e s e d e c i m a l w e i g h t s f r e q u e n t l y f a i l to a d d p r e d i c t a b i l i t y in c r o s s
v a l i d a t i o n , b u t a l s o t h e y t e n d to be i n c o r r e c t l y c o m p u t e d b y i n d i v i d u a l s s c o r i n g
th e t e s t s . T o a v o i d t h e s e p r o b l e m s , i t w a s d e c i d e d to s i m p l y u s e a s a p r e d i c
t o r s c o r e t h e s u m o f a n i n d i v i d u a l ' s M e c h a n i c s a n d E n d u r a n c e s c o r e s m i n u s the
p e r s o n ' s s c o r e o n t h e P . R. F . U n d e r s t a n d i n g s c a l e . It s h o u l d b e n o t e d t h a t the
U n d e r s t a n d i n g s c o r e in t h i s c a s e w a s n o t n e g a t i v e l y c o r r e l a t e d w i t h the c r i t e r i o n ,
b u t w a s r a t h e r p o s i t i v e l y r e l a t e d to t h e M e c h a n i c s s c a l e w h i l e b e i n g u n r e l a t e d to
the c r i t e r i o n . I t s u s e i n t h i s s i t u a t i o n w i t h a n e g a t i v e w e i g h t , t h e n , w a s a s a
s u p p r e s s o r v a r i a b l e (i. e . , a v a r i a b l e t h a t p u r i f i e s a n o t h e r s c o r e by r e m o v i n g a
p o r t i o n of t h a t s c o r e ' s v a r i a b i l i t y t h a t is u n r e l a t e d to the c r i t e r i o n ) .
In o r d e r to t e s t o u t t h e v a l i d i t y of t h e c o m b i n a t i o n of t e s t s d e t e r m i n e d to b e
p r e d i c t i v e on th e v a l i d a t i o n g r o u p , t h e i r c o m b i n e d s c o r e w a s a p p l i e d to the
h o l d o u t g r o u p c o m p o s e d o f 100 i n d i v i d u a l s . A s i g n i f i c a n t m u l t i p l e R (R=. 29 p<. 05)
w a s o b t a i n e d , t h u s c o n f i r m i n g t h a t t h i s t e s t b a t t e r y d i d t e n d to o f f e r s i g n i f i c a n t p r e
d i c t i o n of j o b p e r f o r m a n c e f o r t h e g r o u p a s a w h o l e .
T h e s a m e c o m b i n a t i o n o f t e s t s w a s t h e n a p p l i e d to a l l o f t h e i n d i v i d u a l s t h a t
h a d b e e n e x a m i n e d in e a c h of the f o u r g r o u p i n g s s e p a r a t e l y ( i. e . , N e w H a v e n ,
H a r t f o r d , B r i d g e p o r t , O t h e r ) . T h e r e s u l t s w e r e d i s a p p o i n t i n g in t h a t on ly
the c o r r e l a t i o n in N e w H a v e n (. 30 p<. 05) w a s s i g n i f i c a n t .
A s a r e s u l t of the a b o v e f i n d i n g s , i t w a s d e c i d e d t h a t a l t h o u g h t h i s s p e c i f i c
b a t t e r y of t e s t s d id w o r k in N e w H a v e n , i t d id n o t s e e m to a p p l y to the o t h e r
m u n i c i p a l i t i e s . T h u s the f i n d i n g s t h a t the l i n e a r r e g r e s s i o n a n d c r o s s v a l i d a t i o n
s h o w e d s i g n i f i c a n t p r e d i c t i o n f o r t h e g r o u p a s a w h o l e w a s a t l e a s t in p a r t d u e to
the f a c t t h a t N e w H a v e n , by t e s t i n g m o r e i n d i v i d u a l s , h a d t e n d e d to w e i g h t t h e
a n a l y s i s in i t s f a v o r . ( A d d i t i o n a l f a c t o r s w e r e t h a t the i n d i v i d u a l s a c t u a l l y t e s t e d
in N e w I l a v c n r e c e i v e d n o t a b l y h i g h e r r a n k s t h a n t h o s e in o t h e r c i t i e s , a n d t h a t
two of t h e t h r e e t e s t s u s e d a c t u a l l y w e r e p r e d i c t i v e in t h e r e m a i n i n g m u n i c i p a l i t i e s .
B a s e d on t h e f a c t t h a t N e w H a v e n d i d s e e m to b e a s p e c i a l c a s e , i t w a s d e c i d e d to
e x c l u d e i t s d a t a a n d p e r f o r m a d d i t i o n a l a n a l y s e s on th e i n d i v i d u a l s t e s t e d in t h e
H a r t f o r d , B r i d g e p o r t a n d " O t h e r " c a t e g o r i e s .
I I - 11
S e c o n d A n a l y s i s
A g a i n , a v a l i d a t i o n g r o u p w a s c o n s t r u c t e d ( th i s t i m e c o m p o s e d of 120 i n d i v i d u a l
a n d a s t e p w i s e l i n e a r r e g r e s s i o n r u n . T h r e e t e s t s w e r e a g a i n s e l e c t e d ( a l t h o u g '
the p r e d i c t a b i l i t y t h e y o f f e r e d w a s o n ly m a r g i n a l l y s i g n i f i c a n t ) . T h e t e s t s so
s e l e c t e d w e r e :
1. F . I. T. M e c h a n i c s ( P o s i t i v e l y w e i g h t e d )
2. P . R. F . S o c i a l R e c o g n i t i o n ( P o s i t i v e l y w e i g h t e d )
3. P . R. F . U n d e r s t a n d i n g ( N e g a t i v e l y w e i g h t e d )
T h u s in t h i s r e a n a l y s i s on the g r o u p e x c l u d i n g N e w H a v e n , t h e e n d u r a n c e s c o r e
w a s n o t f o u n d to b e p r e d i c t i v e a n d i n s t e a d t h e s o c i a l r e c o g n i t i o n s c a l e w a s s u b
s t i t u t e d . A s i m p l e c o m b i n a t i o n p r o c e d u r e w a s a g a i n u s e d in c o n s t r u c t i n g the
t e s t b a t t e r y , a t o t a l s c o r e b e i n g o b t a i n e d b y a d d i n g th e M e c h a n i c s a n d S o c i a l
R e c o g n i t i o n s c o r e s a n d s u b t r a c t i n g th e U n d e r s t a n d i n g s c o r e . T h i s b a t t e r y w a s
t h e n a p p l i e d to t h e h o l d o u t g r o u p of 69 p e o p l e in w h i c h a m u l t i p l e R o f . 34
( s i g n i f i c a n t a t t h e . 0 5 l e v e l ) w a s fo u n d . S u r p r i s i n g l y , t h i s r e s u l t w a s h i g h e r
t h a n the f i g u r e o b t a i n e d in t h e v a l i d a t i o n s a m p l e . F i n a l l y , t h e t e s t b a t t e r y w a s
t h e n a p p l i e d to e a c h of t h e t h r e e g r o u p s i n d i v i d u a l l y , w i t h t h e r e s u l t s s h o w n in
T a b l e V.
T A B L E V
P a t t e r n of C o r r e l a t i o n s A c h i e v e d w h e n t h e T e s t
B a t t e r y D e v e l o p e d in t h e S e c o n d A n a l y s i s i s
A p p l i e d to E a c h I n c l u d e d M u n i c i p a l i t y I n d i v i d u a l l y
C i t y N R
H a r t f o r d 93 . 29
B r i d g e p o r t 43 . 24
O t h e r s 53 . 32
* s i g n i f i c a n t a t t h e . 0 5 l e v e l
11-12
As c a n b e s e e n f r o m the d a t a in T a b i c v , tne R ' s o b t a in e d in a l l of the c i t i e s
w e r e v e r y c l o s e l y s i m i l s r . T h i s f inding in t h r e e d i f r e r e n t g r o u p i n g s s t r o n g l y
s u g g e s t s th a t the a c t u a l c o r r e l a t i o n b e t w e e n th i s t e s t b a t t e r y a nd the c r i t e r i o n
is p r o b a b l y in the m i d to u p p e r . 2 0 ' s ,__O nly one of the c i t i e s ' c o r r e l a t i o n s , h o w e v e r ,
is s taT ts K ca i ly s i g n i f i c a n t . T h i s is p r i m a r i l y due to the fa c t th a t w h e n e a c h
hreaTldown^is lo o k e d a t i n d iv id u a l ly , the g r o u p s w i th s m a l l e r n u m b e r s of i n d i
v id u a l s r e q u i r e l a r g e m a g n i t u d e s of R ' s to a c h i e v e a s i g n i f i c a n c e on p u b l i s h e d
t a b l e s . Due to the f a c t , h o w e v e r , th a t in th i s c a s e the t h r e e d i f f e r e n t g r o u p s
^ ach ie v ed e s s e n t i a l l y s i m i l a r c o r r e l a t i o n c o e f f i c i e n t s , th a t the o v e r a l l t r e n d
s h o w e d s i g n i f i c a n c e , a n d th a t the r e l a t i o n s h i p w as s i g n i f i c a n t in the c i ty w i th
the l a r g e s t n u m b e r of c a s e s ( H a r t f o r d ) , the u s e of the b a t t e r y w o u ld g e n e r a l l y
^ a p p e a r w a r r a n t e d in t h e s e t h r e e g r o u p s .
C au t io n
One of the g r o u p s is l a b e l e d " O t h e r " a n d w as c o m p o s e d of in d i v id u a l s f r o m
t h r e e c i t i e s th a t c o u ld t e s t on ly a v e r y l i m i t e d n u m b e r of p e o p l e . A l though
the c o n s i s t e n c y of the o v e r a l l r e s u l t s s t r o n g l y s u g g e s t s th a t s u c h a t e s t b a t t e r y
c o u ld be u s e d in t h e s e m u n i c i p a l i t i e s , it m u s t be p o in t e d ou t tha t s i n c e s p e c i f i c
in d i v id u a l c i ty a n a l y s e s c ou ld not be c a r r i e d out , no d e f i n i t i v e a n s w e r i s p o s s i b l e .
A good p r o c e d u r e f o r c i t i e s in th i s g r o u p wou ld be to u s e the t e s t b a t t e r y p r o
v i s i o n a l l y , p e n d i n g the r e s u l t s of a p r e d i c t i v e s tu d y to be c o n d u c t e d a s s o o n a s
enough d a t a can be o b ta in e d .
In the c a s e of a l l c i t i e s in th i s s tu d y , i t m u s t be s t r e s s e d th a t t e s t v a l i d i t y is
no t a p e r m a n e n t th ing th a t o n c e e s t a b l i s h e d r e m a i n s f o r e v e r . A ty p i c a l r u l e
of th u m b is th a t a t e s t s h o u ld be v a l i d a t e d e v e r y t h r e e y e a r s , p a r t i c u l a r l y
in v ie w of the r e l a t i v e l y low R ' s o b ta in e d . T h i s w ou ld be a w i s e r u l e to fo l low.
C u t Off S c o r e s
To s o m e e x t e n t the c u t off s c o r e th a t a p a r t i c u l a r m u n i c i p a l i t y s e l e c t s m u s t be
b a s e d on b u s i n e s s n e c e s s a r y (i. e. , the n e e d to f i l l p o s i t i o n o p en in g s f r o m a v a i l
a b l e a p p l i c a n t s ) . A gu ide to P e r s o n n e l D i r e c t o r s in e a c h of the fou r g r o u p in g s
can be p r o v i d e d , h o w e v e r , v i a an e x p e c t a n c y t a b le . U s in g the t e s t b a t t e r y we
s u g g e s t e d in e a c h of the f o u r g r o u p i n g s , H ay c o m p u t e d the o v e r a l l s c o r e tha t
e a c h in d i v id u a l w o u ld h ave a c h i e v e d on th i s i n s t r u m e n t . G iven a g ro u p of i n d i
v i d u a l s who a c h i e v e d a c e r t a i n r a n g e of s c o r e s , we then d e t e r m i n e d the p e r c e n
ta ge of in d i v id u a l s th a t s c o r e d ab o v e o r be low the m e a n r a n k i n g of t h e i r p e e r s ,
e x p e c t a n c y i n f o r m a t i o n fo r e a c h of the fou r g r o u p in g s is p r e s e n t e d in T a b l e VI
th ro u g h IX.
11-13
S
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T A B L E VI
N EW H A V E N - P E R C E N T A G E O F IN D IV ID U A LS A C H IE V IN G
P A R T I C U L A R T E S T S C O R E S T H A T W E R E R A N K E D A B O V E
O R B E L O W T H E M EA N O F T H E I R P E E R S .
(N U M B E R S ON WHICH T H E S E P E R C E N T A G E S A R E BA S ED
H A V E B E E N L I S T E D IN P A R E N T H E S E S )
% A b o v e tfo Below
O v e r 25 i o o % (3)
2 1 - 2 5 67%( 4 , 33%(2 )
1 6 -2 0 7 2, % (i s ) 2 8 % ( ? )
1 1 - 1 5 6 2 % ( 16) 3 8%(10)
6 - 1 0 4 6 % (16) 5 4 % ( 1 9 )
1-5 • 08% (1) 9 2 % ( H )
L e s s than one 100%(3)
T e s t b a t t e r y r e c o m m e n d e d : F . I. T, M e c h a n i c s +
P . R. F . E n d u r a n c e - P . R. F . U n d e r s t a n d i n g = S c o r e on b a t t e r y
S
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n
R
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m
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d
T
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B
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T A B L E VII
H A R T F O R D - P E R C E N T A G E O F INDIVIDUALS A C H IE V IN G
P A R T I C U L A R T E S T S C O R E S T H A T W E R E RANK HD A B O V E
O R B E L O W T H E M E A N O F T H E I R P E E R S .
(N U M B E R S ON WHICH T H E S E P E R C E N T A G E S A R E BASED
H A V E B E E N L I S T E D IN P A R E N T H E S E S )
% A bove .% Below
O v e r 25
2 1 - 2 5 . 80% (4) 20% (1)
1 6 -2 0 7 5% (9) 25% (3)
1 1 -1 5 43% (13) 57% (17)
6 - 1 0 50% (1.2) 50% (12)
1- 5 3 5% (7) 65% (13)
L e s s th a n one 100% (2)
T e s t B a t t e r y R e c o m m e n d e d : F. I. T. M e c h a n i c s +
P« R. F. S o c i a l R e c o g n i t i o n - U n d e r s t a n d i n g =
S c o r e on T e s t B a t t e r y
S
co
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R
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B
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T A B L E VIII
B R ID G E P O R T - P E R C E N T A G E O F INDIVIDUALS A C H IE V IN G
P A R T I C U L A R T E S T S CO RES T H A T W E R E RA NK ED A B O V E
OR B E L O W T H E M E A N O F T H E I R P E E R S
(N U M B ER S ON WHICH T H E S E P E R C E N T A G E S A R E BASED
H A V E B E E N L I S T E D IN P A R E N T H E S E S )
% A bove % Below
O v e r 25
2 1 - 2 5 50% (1) 50% (1)
16-20 54% (7) 46% (6) .
1 1 -1 5 69% (9) 31% (4)
6 - 1 0 40% (2) 60% (3)
1-5 57% (4) 43% (3)
L e s s than one 33% (1) 66% (2)
T e s t B a t t e r y R e c o m m e n d e d : F . I. T. M e c h a n i c s +
P . R. F . S o c i a l R e c o g n i t i o n - P. R. F . U n d e r s t a n d i n g =
S c o r e on T e s t B a t t e r y
S
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T A B L E IX
" O T H E R " - P E R C E N T A G E O F INDIVIDUALS A C H IE V IN G
P A R T I C U L A R T E S T S C O R E S T H A T W E R E R A N K E D A B O V E
O R B E L O W T H E M E A N O F T H E I R P E E R S
(N U M B E R S ON WHICH T H E S E P E R C E N T A G E S A R E B A S E D
H A V E B E E N L I S T E D IN P A R E N T H E S E S )
% A b o v e % B e low
O v e r 25 100% (2)
2 1 - 2 5
1 6 -2 0 62% (8) 38% (5)
1 1 - 1 5 80% (8) 20% (2)
6 - 1 0 38% (8) 62% (13)
1 -5 33% (2) 67% (4)
L e s s th a n one 100% (1)
T e s t B a t t e r y R e c o m m e n d e d : F . I. T. M e c h a n i c s +
P . R. F . S o c i a l R e c o g n i t i o n - P . R. F . U n d e r s t a n d i n g
S c o r e on T e s t B a t t e r y
\
t
T h e e x p e c t a n c y t a b l e s f o r e a c h g r o u p i n g , h o w e v e r , a r c b a s e d on l i m i t e d d a t a
w h i c h th e v a r i o u s m u n i c i p a l i t i e s s h o u l d a u g m e n t a s they u s e tile b a t t e r y .
F i n a l l y , a d d i t i o n a l s t a t i s t i c a l t e s t s of p o s s i b l e b l a c k - w h i t e b i a s w e r e c o n d u c t e d
f o r th e t o t a l t e s t b a t t e r y s c o r e s o b t a i n e d in N e w H a v e n a n d H a r t f o r d i n d i v i d u a l l y
( the b a t t e r i e s r e c o m m e n d e d f o r t h e s e two c i t i e s u s e d one d i f f e r e n t t e s t ) , a l t h o u g h
the n u m b e r of b l a c k s in the s a m p l e s w e r e of n e c e s s i t y q u i t e s m a l l . T h e f i n d i n g s
of e x t r e m e l y low F ' s (< 1 in New H a v e n , a n d 1 . 8 f o r H a r t f o r d df 1 . 9 2 ) i n d i c a t e d
t h a t the b a t t e r y a s a w h o le , a t l e a s t in t h i s s a m p l e , w a s n o t s i g n i f i c a n t l y d i s
c r i m i n a t o r y .
i
< iV
s .
11-18
IV. R E C O M M E N D A T I O N S
N ew H a v e n s h o u l d u s e a b a t t e r y c o m p o s e d of t h r e e t e s t s c o m b i n e d in th e
f o l l o w i n g m a n n e r : M e c h a n i c s + E n d u r a n c e - U n d e r s t a n d i n g = T o t a l S c o r e .
H a r t f o r d a n d B r i d g e p o r t s h o u l d a l s o u s e a b a t t e r y c o m p o s e d of t h r e e t e s t s
t h a t . shou ld be c o m b i n e d in the fo l l o w in g m a n n e r : M e c h a n i c s + S o c i a l R e c o g n i t
U n d e r s t a n d i n g = T o t a l S c o r e . * .
C i t i e s w h o s e s c o r e s h a d to be g r o u p e d in the " o t h e r " c a t e g o r y c a n u s e the
H a r t f o r d - B r i d g e p o r t t e s t b a t t e r y b u t s h o u l d c a r r y ou t v e r i f y i n g p r e d i c t i v e
s t u d i e s a s s o o n a s e n o u g h d a t a c a n be o b t a i n e d .
A l l m u n i c i p a l i t i e s s h o u l d v a l i d a t e the t e s t b a t t e r y a t t h r e e - y e a r i n t e r v a l s
to e n s u r e t h a t i t s p r e d i c t a b i l i t y i s " h o l d i n g u p . "
T h e v a l i d i t y of t e s t m a t e r i a l s s h o u ld not be c o m p r o m i s e d by a l l o w i n g
a p p l i c a n t s to r e v i e w th e q u e s t i o n s and p o s i t i v e l y s c o r e d a n s w e r s . If
d o u b t s a r e r a i s e d a s to the a c c u r a c y w i th w h ic h a n i n d i v i d u a l ' s t e s t
h a s b e e n g r a d e d , h o w e v e r , r e p u t a b l e o u t s i d e " r e f e r e e s " c a n v e r i f y the
c o r r e c t n e s s o f th e a s s i g n e d s c o r e .
T h e f a c t t h a t th e t e s t b a t t e r i e s w e r e n o t found to b e d i s c r i m i n a t o r y f o r
the s m a l l g r o u p of b l a c k s t h a t w e w e r e a b l e to s a m p l e d o e s n o t m e a n th a t
m u n i c i p a l i t i e s c a n b e c o m e l a x in m i n o r i t y r e c r u i t m e n t p r o g r a m s in
the f i r e f i g h t e r a r e a . I n d e e d , th e s m a l l n u m b e r of b l a c k s t h a t w e r e a v a i l a b l e
f o r t e s t i n g in the f i r e s e r v i c e a r g u e s in i t s e l f f o r a d d i t i o n a l e f f o r t s in th i s
r e g a r d .
C O R E P O S I T I O N D E S C R I P T I O N P R O V I D E D BY HAY
A N D R E V I E W E D BY F I R E A N D P E R S O N N E L D E P A R T M E N T
R E P R E S E N T A T I V E S A L O N G W IT H T W O
IN D IV ID U A L J O B D E S C R I P T I O N S
C O R E J O B D E S C R I P T I O N
P o s i t i o n T i t l e s :
P o s i t i o n S u m m a r y :
W o r k i n g C o n d i t i o n s :
F i r e f i g h t e r
F i r e m a n
F i r e m a n - P r i v a t e
P o s i t i o n i s p r i m a r i l y a c c o u n t a b l e fo r e x
t i n g u i s h i n g f i r e s and p e r f o r m a n c e of r e s c u e
w o r k . I n c u m b e n t s a l s o a s s i s t in the c r i t i c a l
a r e a of f i r e p r e v e n t i o n by t a k in g p a r t in b u i l J ing
i n s p e c t i o n s a n d f i r e p r eve n t i o n p r o g r a m s .
V a r y , f r o m i n d o o r w o r k ( m a i n t e n a n c e ,
e d u c a t i o n , h o u s e k e e p i n g , e t c . ) to o u t d o o r
w o r k in a l l w e a t h e r and u n d e r the m o s t
d a n g e r o u s c o n d i t i o n s .
S u p e r v i s i o n R e c e i v e d : W h i le a t t h e f i r e o r a c c i d e n t s c e n e , the f i r e
f i g h t e r i s g e n e r a l l y d i r e c t l y s u p e r v i s e d t h r o u g h
v e r b a l c o m m a n d s . In a s i t u a t i o n in w h ic h a
s u p e r v i s o r i s no t p r e s e n t , h o w e v e r , he m u s t
be a b l e to t a k e e f f e c t i v e a c t i o n w i t h o u t b e i n g
to l d . W h e n a t the f i r e h o u s e , o r d e r s m a y be
t r a n s m i t t e d b o th o r a l l y a n d in w r i t i n g .
C O R E A C T I V I T I E S
N ote : I n d i c a t e d p e r c e n t a g e r a n g e s of t i m e a r e o n ly a p p r o x i m a t e
and m a y v a r y s o m e w h a t a c r o s s d i f f e r e n t f i r e h o u s e s .
E x t i n g u i s h i n g F i r e s and R e s c u e - @ 10% of a F i r e f i g h t e r s T i m e
T h i s i s t h e p r i m a r y r e s p o n s i b i l i t y o f a f i r e f i g h t e r . In p e r f o r m i n g th i s
a c t i v i t y , h e is f r e q u e n t l y r e q u i r e d to lay and c o n n e c t h o s e , h o ld n o z z l e s ,
r a i s e a n d c l i m b l a d d e r s , o p e r a t e c h e m i c a l e x t i n g u i s h i n g a p p a r a t u s , u s e
p o r t a b l e b r e a t h i n g e q u i p m e n t a n d u t i l i z e a v a r i e t y of h a n d t o o l s ( c e i l i n g
h o o k s , d o o r o p e n e r s , c u t t i n g t o o l s , e t c . ) . T h e e f f e c t i v e f i r e f i g h t e r i s
e x p e c t e d to a t t a c k a f i r e a g g r e s s i v e l y and r e s p o n d i m m e d i a t e l y to h i s
s u p e r i o r ' s i n s t r u c t i o n s . W hi le f ig h t in g a f i r e , the i n c u m b e n t h a s to be
c o n s t a n t l y a w a r e of (lie i m p l i c a t i o n s of c h a n g i n g < owli I iotts and m u s t
l a k e n o te of and r r i t i r m l x : f f a c t s that w il l hr? i m p o r t a n t in l a t e r i n v e s t i g a t i o n s ,
if n e c e s s a r y , the f i r e f i g h t e r a l s o p e r f o r m s r e s c u e w o r k and a d m i n i s t e r s
f i r s t a i d . A f t e r the l i r e , s a l v a g e w o r k in v o l v in g p r o t e c t i o n of t h e s c e n e fr<
f u r t h e r d a m a g e , s e p a r a t i o n of b u r n e d f r o m u n b u r n e d m a t e r i a l s , a n d c o m p l e t e
e x t i n g u i s h m e n t m u s t be p e r f o r m e d .
i n s p e c t i o n s fo r the P u r p o s e of F i r e P r e v e n t i o n and P r e - F i r e P l a n n i n g -
(a' 30~40'/'o of a F i r e f i g h t e r ' s T i m e
W h en i n s p e c t i n g f o r t h e p u r p o s e of f i r e p r e v e n t i o n , the f i r e f i g h t e r u s e s
g u i d e l i n e s l a id d o w n in the c o d e a n d c o m m o n s e n s e to d e t e r m i n e w h e t h e r
h a z a r d o u s c o n d i t i o n s e x i s t . T y p i c a l l y , the f i r e f i g h t e r w i l l a t t e m p t to
g e t m i n o r v i o l a t i o n s c o r r e c t e d h i m s e l f w h i l e r e f e r r i n g m o r e s e r i o u s
p r o b l e m s to the f i r e p r e v e n t i o n b u r e a u . In t h e p r e - f i r e p l a n n i n g f a c e t
of i n s p e c t i o n s , the i n s p e c t o r i j i a k e s n o te of e n t r a n c e s , e x i t s , t y p e of
m a t e r i a l s t o r e d , e t c . so a s to bu i ld up an a d v a n c e k n o w l e d g e of the
l o c a t i o n w h ic h c a n be d r a w n on in c a s e of f i r e .
E d u c a t i o n and T r a i n i n g - (a) 10-30% of a F i r e f i g h t e r ' s T i m e
M o s t e n t r y - l e v e l p e r s o n n e l h a v e had no p r e v i o u s e x p e r i e n c e in f i r e f i g h t i n g .
An a b i l i t y to g r a s p the m a t e r i a l p r e s e n t e d in d e p a r t m e n t - r e l a t e d t r a i n i n g
s e s s i o n s , t h e n , is c r i t i c a l l y i m p o r t a n t . T h e m a t e r i a l c o v e r s a w id e
v a r i e t y of a r e a s f r o m th e u s e of s t a n d a r d f i r e f i g h t i n g e q u i p m e n t ( l a d d e r s ,
b r e a t h i n g a p p a r a t u s , h a n d t o o l s , h o s e s , e t c . ) to f i r e f i g h t i n g t e c h n i q u e s ,
b a s i c h y d r a u l i c s , f i r e c h e m i s t r y , f i r e c o d e s , and th e c h a r a c t e r i s t i c s
of f i r e s in v a r i o u s l o c a t i o n s s t e m m i n g f r o m d i f f e r e n t c a u s e s . F o r
m o r e e x p e r i e n c e d p e r s o n n e l , t h e s e s e s s i o n s c o n s t i t u t e r e f r e s h e r
c o u r s e s a n d a c h a n c e to c a t c h up w i th n e w th i n k in g in th e f i e ld .
N o n - F i r e R e l a t e d R e s c u e - @ 3 -5 % of a F i r e f i g h t e r . ' s T i m e
F i r e f i g h t e r s a r e a l s o c a l l e d on to p e r f o r m n o n - f i r e r e l a t e d r e s c u e and
f i r s t a i d . S uch s i t u a t i o n s c a n r a n g e f r o m a u t o m o b i l e a c c i d e n t s to a
p e r s o n lo c k e d o u t of a h o u s e . In s o m e m u n i c i p a l i t i e s , c e r t a i n f i r e f i g h t e r s
m a y a l s o h a v e to d e a l w i th h e a r t a t t a c k and r e s u s c i t a t i o n c a s e s .
M a i n t a i n and T e s t E q u i p m e n t - & 10-15% of a F i r e f i g h t e r ' s T i m e
F i r e f i g h t e r s a r e a l s o e x p e c t e d to p e r f o r m r o u t i n e m a i n t e n a n c e and
c h e c k s on t h e i r e q u i p m e n t . Although the w o r k is r o u t i n e , th e v a l u e of
m u c h of the e q u i p m e n t and the i m p o r t a n c e of i t s p r o p e r f u n c t i o n i n g m a k e s
t h i s an i m p o r t a n t a c t i v i t y .
■'"'N Ho u s e k e e p i n g ( C le a n and M a i n t a i n Q u a r t e r s ) - («'• 8 - 1 0 % of a F i r e f i g h t e r ' s
T i m e
W h i l e a t the s t a t i o n , th e f i r e f i g h t e r i s e x p e c t e d to w o r k w i th h i s p e e r s
in m a i n t a i n i n g the a r e a .
P E R S O N A L D E M A N D S
■ A
'l
Note- T h e pu r pose_fi£_this s e c t i o n i s to i n d i c a t e s o m e p o t e n t i a l l y
m e a s u r a b l e ^ s y c h o logj,c-a^ d i m e n s i o n s t h a t m i g h t a f f e c t a f i r e f i g h t e r ' s
p e r f o r m a n c e in e a c h of the m a j o r a c t i v i t i e s p r e v i o u s l y l i s t e d .
K n o w l e d g e of s p e c i f i c a r e a s ( e q u i p m e n t , f i r s t a i d , f i r e c o d e s , e t c . )
h a s no t b e e n in c l u d e d .
E x t i n g u i s h i n g F i r e s and R e s c u e
I m m e d i a t e M e m o r y
M e c h a n i c a l A p t i t u d e
A g g r e s s i v e n e s s
W i l l i n g n e s s to F o l l o w O r d e r s •
S p a t i a l R e l a t i o n s
P e r c e p t u a l S p e e d
P h y s i c a l S t r e n g t h / E n d u r a n c e
A b i l i t y to W o r k U n d e r P r e s s u r e
I n s p e c t i o n s f o r th e P u r p o s e of F i r e P r e v e n t i o n and P r e - F i r e P l a n n i n g
B o th V e r b a l and Q u a n t i t a t i v e A b i l i t y
H u m a n R e l a t i o n s
E d u c a t i o n and T r a i n i n g
G l o b a l I n t e l l i g e n c e
M e c h a n i c a l A p t i t u d e
N o n - F i r e R e l a t e d R e s c u e
A b i l i t y to W o r k U n d e r P r e s s u r e
M e c h a n i c a l A pti tude
H u m a n R e l a t i o n s A b i l i t y
H o u s e k e e p i n g
H u m a n R e l a t i o n s A b i l i ty
W i l l i n g n e s s to F o l l o w O r d e r s
Maintain and 1 esl Kquipment
>8,
1
M e c h a n i c a l A p t i t u d e
R e s p o n s i b i l i t y
W i l l i n g n e s s t o F o l l o w O r d e r s
i
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P O S I T I O N D E S C R I P T I O N II 1
P o s i t i o n T i t l e : F i r e m a n - P r i v a t e
M u n i c i p a l i t y : M e r i d e n
I n c u m b e n t : A l b e r t Z o s h
R e p o r t s to: L t . F i n n a n c e
D i v i s i o n / D e p a r t m e n t : F i r e D e p a r t m e n t E n g i n e Co . 5, L a d d e r 2
D a te o f I n t e r v i e w : 1 1 / 1 4 / 7 2
S U M M A R Y O F P O S IT IO N
( P r i m a r y r e s u l t s t h a t t h i s p o s i t i o n m u s t a c c o m p l i s h )
E x t i n g u i s h f i r e s . P e r f o r m r e s c u e o p e r a t i o n s in f i r e a n d n o n f i r e s i t u a t i o n s
( i n c l u d i n g e m e r g e n c y i n h a l a t o r a n d o x y g e n a d m i n i s t r a t i o n a s n e e d e d ) . A s s
in f i r e p r e v e n t i o n by c o n d u c t i n g s e m i - a n n u a l b u i l d in g i n s p e c t i o n s .
P R I N C I P A L A C T I V I T I E S
( A c t i v i t i e s e n g a g e d in o n t h e j o b , i n c l u d i n g t he a p p r o x i m a t e p e r c e n t a g e of
t i m e s p e n t i n t he a c t i v i l y a n d a r a n k i n g of t h e a c t i v i t i e s in o r d e r of c r i t i c a l i t y . )
A c t i v i t y
F i r e p r e v e n t i o n v i a s e m i - a n n u a l i n s p e c t i o n s
of h o m e s , f a c t o r i e s a n d b u s i n e s s p r e m i s e s
S t a n d b y d u ty on p h o n e s a n d a l a r m i n d i c a t o r s
E x t i n g u i s h i n g f i r e s a n d r e s c u e
D r i l l s - t r a i n i n g a n d e d u c a t i o n
M a i n t a i n i n g a n d t e s t i n g e q u i p m e n t
H o u s e w o r k - c l e a n i n g a n d m a i n t a i n i n g q u a r t e r s
a t f i r e h o u s e ( k i t c h e n , t o i l e t s , b e d r o o m s , e t c . )
R e s c u e of p e o p l e a n d a n i m a l s (not f i r e - r e l a t e d )
% of T i m e
" 40
• 15
10
To
10
10
5
C r i t i c a l U 1
2
5
1
3
6
(
N O T E : T h e a b o v e r e p r e s e n t s o n ly the 1 0 -h o u r
d a y t i m e s h i f t ( e x c e p t f o r e x t i n g u i s h i n g f i r e s ) .
T h e 1 4 - h o u r n i g h t s h i f t h a s no d u t i e s e x c e p t
r e s p o n d i n g to a l a r m s a n d o t h e r e m e r g e n c i e s .
i
l
t
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i
W O R K E N V I R O N M E N T
P h y s i c a l W o r k i n g C o n d i t i o n s
V a r i e s - o u t d o o r w o r k in v a r y i n g w e a t h e r c o n d i t i o n s . P o t e n t i a l l y d a n g e r o u s
f i r e f i g h t i n g a n d r e s c u e s i t u a t i o n s .
N a t u r e of S u p e r v i s i o n
D i r e c t o n - t h e - j o b s u p e r v i s i o n , m o s t l y v e r b a l , a s s i t u a t i o n w a r r a n t s .
S u p e r v i s o r y D u t i e s
N o n e .
N O N - O B V I O U S S K I L L S
(Sk i l l s i m p o r t a n t f o r the j o b b u t n o t o b v io u s f r o m n a t u r e of a c t i v i t i e s p e r f o r m e d . }
POSITION DESCRIPTION //2
Position Title: Fireman
Municipality: New Haven
Incumbent: Boris Starzyk
Reports to: Lt. Wm. Ryan
Division/ Department: F ire Department S. E. Truck &: Engine Company
Date of Interview: 11/13/72
SUMMARY OF POSITION
(Primary results that this position must accomplish)
Extinguish fires and perform rescue work as needed. A ss is t in fire prevention
by means of building inspections and education and training programs.
P R I N C I P A L A C T I V I T I E S :
{ A c t iv i t i e s e n g a g e d in on the jo b , i n c l u d i n g the a p p r o x i m a t e p e r c e n t a g e of
t i m e s p e n t in the a c t i v i t y a n d a r a n k i n g of th e a c t i v i t i e s in o r d e r of c r i t i c a l i t y . )
A c t i v i t y % of T i m e C r i t i c a l i t y
F i r e p r e v e n t i o n - m a k i n g p e r i o d i c i n s p e c t i o n s
of h o m e s , f a c t o r i e s a n d s h o p s 34 2
E d u c a t i o n a n d t r a i n i n g
oco*_
A 3
M a i n t e n a n c e of e q u i p m e n t 15 5
E x t i n g u i s h i n g f i r e s , r e s c u e w o r k 10 l
H o u s e k e e p i n g 8 . 6
R e s c u e - n o n f i r e f i r s t a i d , e t c . 3 4
WO R K E N V I R O N M E N T
P h y s i c a l W o r k i n g C o n d i t i o n s ■
Varies fgom routine indoor work (in maintenance, odu. alien, housekeeping, etc.I
to outdoor work in all weather and most dangerous conditions. Work 42-hour ■
week, alternating between day and night shifts.
Nature of Supervision • -l; ,. . |
Supervised via standing written instructions, daily written orders and on-the-spc
verbal commands.
Supervisory Duties
N O N - O B V I O U S S K I L L S
(Skills important for the job but not obvious from nature of activities performed.
Instant reflexes.
Diplomacy during routine inspections of business and residential p rem ises .
\
• — N
A p p e n d be B
B R I E F D E S C R I P T I O N F R O M T H E P E R S O N A L I T Y R E S E A R C H
F O R M ' S T E S T M A N U A L AS TO T H E C H A R A C T E R I S T I C S
T H O U G H T T O B E P R E S E N T IN AN IN D IV ID U A L WH O S C O R E S
" H I G H " ON A S P E C I F I C S C A L E
Scale Description of Probable "High" Scorer
Achievement Aspires to accomplish difficult tasks; maintaining high 8
standards and is willing to work toward distant goals; pon
positively to competition; willing to put forth effort to a tta i* |
excellence. H
Affiliation Enjoys being with friends and people in general; accepts B
people readily; makes efforts to win friendships and m ain-B
tain associations with people.
■
A ggression Enjoys combat and argument; easily annoyed; som etim es ™
willing to hurt people to get his way; may seek to "get even"
with people whom he perceives as having harmed him. ĵ |
Autonomy Tries to break away from restraints, confinement, or restri
tions of any kind; enjoys being unattached, free, not tied tofl
people, places, or obligations; may be rebellious when facet
with restraints. am
B
Dominance Attempts to control his environment, and to influence or
direct other people; expresses opinions forcefully; enjoys m
the role of leader and may assum e it spontaneously. 9
Endurance Willing to work long hours; doesn't give up quickly on ' ■
problem; persevering, even in the face of great diffiew /; |
patient and unrelenting in his work habits.
■
Exhibition Wants to be the center of attention; enjoys having an audienB
engages in behavior which wins the notice of other s; may enjc
being dramatic or witty. j|
Harmavoidance Does not enjoy exciting activ ities, especially if danger is
involved; avoids risk of bodily harm; seeks to m aximize |
personal safety.
Impulsivity Tends to act on the "spur of the moneht" and without deli- |
beration; gives vent readily to feelings and wishes; speaks
freely; may be volatile in emotional expression. ■
Nurturance
|
Gives sympathy and comfort; a ss is ts others whenever
possible, interested in caring for children, the disabled, oa
the infirm; offers a "helping hand" to those in need; rcadil>|
performs favors for others.
Sen lo D e s c r i p t i o n of P r o b a b l e " H i g h " .S c o r n ’
O r d e r C o n c e r n e d w i th k e e p i n g p e r s o n a l e f f e c t s a n d s u r r o u n d i n g s
n e a t a n d o r g a n i z e d ; d i s l i k e s c l u t t e r , c o n f u s i o n , l a c k of
o r g a n i z a t i o n ; i n t e r e s t e d in d e v e l o p i n g m e t h o d s f o r k e e p i n g
m a t e r i a l s m e t h o d i c a l l y o r g a n i z e d .
P l a y Does m a n y t h i n g s " j u s t f o r f u n ; " s p e n d s a good d e a l of t in
p a r t i c i p a t i n g in g a m e s , s p o r t s , s o c i a l a c t i v i t i e s a n d o t h e r
a m u s e m e n t s ; e n j o y s j o k e s a n d funny s t o r i e s ; m a i n t a i n s a
l i g h t - h e a r t e d , e a s y - g o i n g a t t i t u d e t o w a r d l i f e .
S o c i a l R e c o g n i t i o n D e s i r e s to be h e l d in h ig h e s t e e m b y a c q u a i n t a n c e s ; c o n c e r
a b o u t r e p u t a t i o n a n d w h a t o t h e r p e o p l e t h i n k of h i m ; w o r k s
f o r th e a p p r o v a l a n d r e c o g n i t i o n of o t h e r s .
U n d e r s t a n d i n g W a n t s to u n d e r s t a n d m a n y a r e a s of k n o w le d g e ; v a l u e s
s y n t h e s i s of i d e a s , v e r i f i a b l e g e n e r a l i z a t i o n , l o g i c a l thoug!
p a r t i c u l a r l y w h e n d i r e c t e d a t s a t i s f y i n g i n t e l l e c t u a l c u r i o s i
I n f r e q u e n c y R e s p o n d s in i m p l a u s i b l e o r p s e u d o - r a n d o m m a n n e r ,
p o s s i b l y due to c a r e l e s s n e s s , p o o r ‘c o m p r e h e n s i o n , pass iv>
n o n - c o m p l i a n c e , c o n f u s i o n , o r g r o s s d e v i a t i o n .
. " %
*&*■
R E F E R H N G E S
*
* *'
A n i k c c f , A. M , a n d l l r y a n , J . L.
K u d c r i n t e r e s t p a t t e r n a n a l y s i s of f i r e p r o t e c t i o n s t u d e n t s a n d
g r a d u a t e s . J o u r n a l o f S o c i a l P s y c h o l o r y . 1958 , 4 8 . 1 9 8 - 1 9 8 .
B ut o s , O. K. ( e d . ) 1 l ie S i x t h M e n i a l M e a s u r e m e n t s Ye a r l m o k .
H i g h l a n d P a r k . N e w J e r s e y : T h e G r y p h o n " Tv ' e s s , 7 % 5 T
B u r o s , O. K. ( e d . ) T h e S e v e n t h M e n t a l M e a s u r e m e n t s Y e a r b o o k .
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