United States v. New York City Board of Education, 96-CV-374 (RML) (E.D.N.Y. 2000), 96-CV-374 (RML).

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UNITED STATES OF AMERICA, Plaintiff, v. NEW YORK CITY BOARD OF EDUCATION; CITY OF NEW YORK, WILLIAM J. DIAMOND, Commissioner, New York City Department of Citywide Administrative Services (in his official capacity); and NEW YORK CITY DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES, Defendants.

96-CV-374 (RML).

United States District Court, E.D. New York.

September __, 2000.

BILL LANN LEE, Acting Assistant Attorney General United States Department of Justice Civil Rights Division, Washington, D.C. BY: Marybeth Martin, Esq., Aaron D. Schuham, Esq., Meredith Burrell, Esq. Counsel for Plaintiff.

MICHAEL D. HESS Corporation Counsel of the City of New York New York, N.Y., BY: Norma A. Cote, Esq., Counsel for Defendants.

MEMORANDUM AND ORDER

ROBERT M. LEVY, Magistrate Judge.

By Notice of Motion dated February 18, 2000, defendants move for approval of their proposal (the "Proposed Alternative Use") to reduce the adverse impact of Custodian96cv374mo.pdf Engineer (BOE) Examination # 7004 (the "7004 Exam"). For the reasons stated below, the Proposed Alternative Use is approved.

Background and Procedural History

In February of this year, this court issued a Memorandum and Order approving the settlement of this action. See United States v. New York City Bd. of Educ., 85 F. Supp. 2d 130, 136 (E.D.N.Y. 2000).¹ Familiarity with that decision is assumed. Briefly, however, the United States filed this action in January 1996 alleging that defendants (1) failed and/or refused to recruit blacks, Hispanics, Asians, and women on the same basis as white, non-Hispanic men for the positions of Custodian and Custodian Engineer; (2) failed and/or refused to hire and promote blacks and Hispanics on the same basis as whites for the positions of Custodian and Custodian Engineer; and (3) used entry-level and promotional written examinations for the positions of Custodian and Custodian Engineer that disproportionately excluded blacks and Hispanics from employment and have not been shown to meet the requirements of federal law. Defendants denied all of the allegations and, after engaging in a long and often contentious discovery process, the parties negotiated and executed a Settlement Agreement in February 1999 (the "Settlement Agreement").

The Settlement Agreement resolved all of the issues that were or could have been raised by the United States in its complaint. Its provisions are too numerous and extensive to recount in detail here, but in essence the settlement concerned three civil service examinations for the positions of school Custodian and Custodian Engineer that were given between 1985 and 1993. See New York City Bd. of Educ., 85 F. Supp. 2d at 135-36. The Settlement Agreement prohibits defendants from discriminating on the basis of race, national origin, or gender in the recruitment or selection of any employee, applicant or prospective applicant for the positions of Custodian and Custodian Engineer with the New York City Board of Education, and it requires defendants to implement a comprehensive recruitment program to increase the numbers of qualified black, Hispanic, Asian, and female applicants for those positions. Id. at 135. It also prohibits defendants from using the written examinations challenged in the lawsuit again and states that if defendants develop any new written examinations before February 2003, they are to consult with the United States' designated expert and comply with the Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. § 1607, et seq. (1998). Id. at 136.

Included in the Settlement Agreement is a provision stating that

[d]efendants will consult with an expert to be designated by the United States on ways to attempt to reduce any adverse impact of [the 7004 Exam] through any means that complies with federal law. Accordingly, Defendants shall not establish an eligible list from [the 7004 Exam] until this consultation effort has been completed.

(Settlement Agreement ¶ 26.) Pursuant to this provision, defendants were required to consult with an expert designated by the United States on ways to reduce any adverse impact of the 7004 Exam, which was given in 1997, but the results of which have not yet been used to select applicants for Custodian Engineer positions.

After conferring with plaintiff's expert and devising the Proposed Alternative Use for the 7004 Exam results, defendants asked the court to schedule a Fairness Hearing and sent notice of the scheduled hearing to all interested parties, inviting objections from those whose interests might be adversely affected. (Declaration of Norma A. Cote, dated April 19, 2000 ("Cote Decl."), ¶ 2; Declaration of Joseph Boswell, dated April 19, 2000, ¶ 2.)² Defendants received approximately 134 written objections,³ as well as 23 identical form petitions with numerous signatories opposing the Proposed Alternative Use. (Id. ¶ 5.) A Fairness Hearing was then held on April 26, 2000 to consider those objections and hear counsel's arguments. (See Transcript of Hearing, dated April 26, 2000.) This Memorandum and Order addresses the remaining issue in this case, namely the fairness and reasonableness of the Proposed Alternative Use for the results of the 7004 Exam.

Adverse Impact of the 7004 Exam

Defendants developed the 7004 Exam and administered it in December 1997, long before the parties reached a settlement in this case. As an initial matter, anyone seeking to take the exam was required to submit proof of education and experience in order to satisfy the minimum qualifications for the Custodian Engineer position. (See Notice of Examination, annexed as Exhibit A to the Declaration of Carol Wachter, dated February 18, 2000 ("Wachter Decl.").) The exam consisted of two separate written test batteries, both administered to test takers on the same day: (1) an 80-question multiple-choice cognitive test (the "competitive test"), and (2) a 40-question multiple-choice practical test (the "practical test"). (See Wachter Decl. ¶ 3.) Defendants originally intended to set minimum pass marks of seventy percent for both the competitive test and the practical test, and then to establish an "eligibility list" of minimally qualified test takers who passed the practical test, in descending rank order based on their scores on the competitive test, adjusted for veterans' credits where applicable. (Wachter Decl. ¶ 3 and Exhibit A; Lonergan Decl. ¶ 4.) In other words, defendants' normal practice would be to select candidates for the Custodian Engineer position in top-down fashion off of a rank-order eligibility list.

As explained, the Settlement Agreement required the United States and defendants to work together to ameliorate any disparate impact the 7004 Exam might have on black and Hispanic test takers. Specifically, the United States agreed not to challenge the 7004 Exam under Title VII in a separate lawsuit, and in exchange defendants agreed to engage in good faith, meaningful consultation with the United States and its experts to reduce any unlawful adverse impact caused by the 7004 Exam. (See Settlement Agreement ¶ 26.)

Pursuant to that part of the Settlement Agreement, defendants provided substantial information to the United States regarding the 7004 Exam, including job analyses and test results. The United States' designated experts then reviewed the exam results and various proposed alternative uses of those results. The experts concluded that the 7004 Exam would have a statistically significant adverse impact on minimally qualified blacks and Hispanics if selection for Custodian Engineer positions were made on a descending rank-order basis.⁴

Specifically, plaintiff's statistics expert, Dr. Bernard Siskin,⁵ analyzed the extent to which the 7004 Exam has a disparate impact on the basis of race or national origin by measuring the difference in the pass rates of white test takers versus those of black and Hispanic test takers. (Declaration of Bernard R. Siskin, Ph.D., dated March 2, 2000, ¶ 4.) As Dr. Siskin explains in his uncontested declaration, a test is ordinarily deemed to have a disparate impact if the disparity in pass rates is statistically significant. (Id.) A disparity is considered statistically significant if the likelihood of such a disparity occurring by chance is less than one in twenty, or .05. (Id. ¶ 5.) As an alternative to probability values, Dr. Siskin explained that one can express the difference in pass rates in units of standard deviation.⁶ Thus, a disparity that has a .05 probability of occurring by chance represents a disparity of 1.96 units of standard deviation. (Id. ¶ 5, n. 6.) The higher the standard deviation, the smaller the probability that the difference is due to chance alone. In other words, if a disparity is statistically significant, then one can reasonably conclude that the test has a negative impact on minorities. (Id. ¶ 5.)

It is undisputed that the following pass rates apply for the 7004 Exam:⁷

Competitive Test

            Total    Passed8    Failed    Pass Rate    Percent of White    Disparity with
                                                            Pass Rate           Whites in Units of
                                                                                Standard Deviation
White       493      470               23         95.3          _____               _____
Black       73        52               21         71.2          74.7                6.94
Hispanic    121      103               118        85.1          89.3                4.32

Practical Test

            Total    Passed9    Failed    Pass Rate    Percent of White    Disparity with
                                                            Pass Rate           Whites in Units of
                                                                                Standard Deviation
White        489       408             81         83.4          _____               _____
Black        73         41             32         56.2

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