FDNY Hiring Test Ruled Illegally Discriminatory

There exists a significant racial disparity between the population of the City of New York and the makeup of the Fire Department of New York. In 2002, 25 percent of the city’s residents were black, and 27 percent were Hispanic. At the same time, 2.6 percent of FDNY firefighters were black, and 3.7 percent were Hispanic.

The federal government sued the City of New York, contending that its entrance-level examination for the position of firefighter had a disparate impact on black and Hispanic candidates in violation of Title VII of the Civil Rights Act of 1964.

A federal court recently agreed, finding that “from 1999 to 2007, FDNY used written examinations with discriminatory effects and little relationship to the job of firefighter to select more than 5300 candidates for admission to the New York City Fire Academy. These examinations unfairly excluded hundreds of qualified people of color from the opportunity to serve as New York firefighters. The Court holds that the City’s reliance on these examinations constitutes employment discrimination in violation of Title VII.”

The City’s entrance examination proceeded in several stages. The process began with an 85-question multiple-choice examination. Candidates who passed the examination were allowed to take the physical performance test (PPT), but those who failed the written examination could not take the PPT. The PPT consisted of eight physical tasks, and a candidate had to pass a minimum of six tests to achieve a passing score overall. A passing candidate’s score on the PPT was simply a percentage of the number of tasks successfully completed.

Candidates who passed both the written examination and the PPT were placed on a “rank-order” eligibility list. The raw score from the written examination and the PPT were standardized by subtracting the average score for all candidates from an individual’s score and then dividing that number by the standard deviations of the test. The resulting scores from both the written examination and the PPT would then be divided in half and added together to create a “combined weighted standard score.” Eventually, the scores were adjusted to add any “residency,” “legacy,” or “veteran” points. This elaborate process resulted in a list of candidates eligible to be appointed to Academy classes in order of rank.

The Court found that the federal government had established that “for each of the pass/fail uses of the examinations, the pass rates of whites and minority candidates were between 10.5 and 33.9 units of standard deviation. For each of the rank-order uses of the examination, the analyses demonstrate that the disparities between the rankings of whites and minority candidates were between 4.6 and 9.7 units of standard deviation. The Second Circuit has repeatedly recognized that standard deviations of more than two or three units can give rise to a prima facie case of disparate impact because of the low likelihood that such disparity resulted from chance.”

The Court then turned to whether the City had established that examinations were “job-related” and “consistent with business necessity.” The Court was unconvinced that the examinations were job-related, finding that “even considered in the light most favorable to the City, the undisputed evidence paints an extremely troubling picture of the test construction process and the content that the City sought to test. The City has failed to meet its burden to show that its reliance on the challenged examinations was warranted by a valid business justification. The City’s arguments are riddled with serious defects, and the facts it presents patently fail to satisfy the demands of test validation. Insufficient evidence was presented for a reasonable fact finder to conclude that the challenged examinations were related to the job of a firefighter and relied upon as a matter of business necessity.”

The Court found that the City started the test construction process correctly, but then quickly veered from what was legally required: “A reasonable fact finder could conclude that the City’s job analysis adequately began by identifying tasks and abilities important to the job of entry-level firefighter. Yet, the undisputed evidence shows that the City nonetheless failed to establish the relationship between the tasks it identified and the abilities it sought to test. No outside expertise was utilized to construct test questions. Instead, the City relied upon panels of firefighters to write the questions for the challenged examinations. While input from incumbent firefighters was crucial in developing what tasks firefighters do, input from testing professionals was needed to devise questions that could assess which candidates would better perform those tasks. In addition, the City has presented no evidence that it performed any sample testing to ensure its examinations adequately and reliably tested the nine identified abilities. In sum, the City has not offered any evidence of a competent test construction process.”

The Court had serious questions about other aspects of the City’s testing process. For example, the Court commented that “compounding these failings, the City has imposed arbitrary pass/fail scores, unrelated to the qualifications for the job of entry-level firefighter, and has constructed eligibility lists based on distinctions in test scores that are unrelated to corresponding differences in the qualification of firefighter candidates.”

After granting summary judgment to the federal government, the Court signaled that the next issue for consideration would be the appropriate remedy.

United States v. City of New York, 2009 WL 2180836 (E.D. N.Y. 2009).

NOTE: The Court’s 40-page opinion contains a lengthy analysis of how the test construction process should occur, and what an employer can do in order to avoid liability where test results have a disparate impact.

This article appears in the September 2009 issue