Promotional Test Need Not Be Based On Materials Pertinent To Particular Employer

Over the years, the M.O.C.H.A. Society of Buffalo, Inc., a fraternal organization of African American firefighters in Buffalo, New York, has brought a number of race discrimination lawsuits against the City of Buffalo. The latest lawsuit involved a fairly unique question: Can an employer show that promotional examinations having a disparate impact on a protected class are job related and supported by business necessity when the job analysis that produced the test relied on data not specific to the employer at issue? The federal Second Circuit Court of Appeals answered the question “yes,” and upheld the City’s promotional process in the face of a race discrimination claim.

The case began in December 1997, when the City asked the New York State Civil Service Department to create a promotional examination for the position of fire lieutenant. It was then standard practice for Buffalo to rely on the Civil Service Department for examinations for municipal civil service positions rather than to devise its own tests. In making the request, Buffalo provided the Civil Service Department with its fire department’s most recent job specifications for the fire lieutenant position, the position’s anticipated salary level, and promotion eligibility criteria.

Dr. Wendy Steinberg, an associate personnel examiner with the Civil Service Department, created the “Lower Level Fire Promotion” test series that was provided in response to Buffalo’s request. Steinberg testified that this test series was devised for use in promoting candidates to various firefighting positions, including fire lieutenant, in fire departments across New York.

To create the Lower Level Fire Promotion test series, Steinberg spent three years conducting a job analysis of firefighters of all ranks from fire departments across New York. Steinberg’s job analysis had a dual focus: (1) The tasks firefighters perform and (2) the skills, knowledge, abilities, and personal (SKAP) characteristics a person would be expected to possess on the very first day in a particular position. Steinberg testified as to how her job analysis was consistent with the joint standards of employment test design published by the American Psychological Association, the American Education Research Association, and the National Council on Measurement in Education, as well as with guidelines promulgated by the Equal Employment Opportunity Commission.

In beginning her job analysis, Steinberg first collected job specifications from various New York fire departments for each submitted firefighting job title. From these specifications, she assembled a list of 190 identified tasks performed by firefighters of various ranks, which she reviewed with a panel of experts on the administration of fire departments. Steinberg then used the task list to create a statewide survey that, in April 1995, asked firefighters to rank each identified task according to how critical it was to the performance of firefighters’ specific jobs within their departments. In the end, of 5,934 task surveys sent out, 2,502 responses were received.

This process ultimately yielded six sets of task and SKAP categories that became the sub-test areas for the challenged fire lieutenant promotional examinations: (1) Fire attack and suppression, (2) fire prevention, (3) rescue and first response, (4) understanding and interpreting written material, (5) training practices, and (6) supervision. When Buffalo used the test, 42.6% of African-Americans passed, while 74.3% of whites passed the test. As the Court noted, there was “no dispute that M.O.C.H.A. carried its prima facie burden to demonstrate disparate impact” of the test.

The Court then turned to the heart of M.O.C.H.A.’s claim, that because the challenged test was premised on the Civil Service Department’s statewide job analysis, in which Buffalo firefighters barely participated, the analysis amounted to only an “other cities guess” that the survey results were consistent with the job actually performed by lieutenants in the Buffalo Fire Department. While the Court found “Buffalo’s minimal participation in the Civil Service Department’s three-year statewide job analysis of firefighter positions to be perplexing,” it found that fact did not undermine the conclusion that the test was job related and consistent with business necessity.

The Court held that “application of the statewide job analysis to Buffalo was not a stab in the dark. Rather, it was based on a sound inference that, because reliable statistics showed that fire lieutenants across the state (and even the nation) shared the same critical tasks requiring the same critical skills, it was more likely than not that the same tasks and skills were critical to the fire lieutenant job in Buffalo. The law permits inferential fact finding even though it may be less certain than findings from direct evidence, and even when the burden of proof is beyond a reasonable doubt. Thus, despite Buffalo’s failure meaningfully to participate in the statewide analysis of the fire lieutenant position, we are satisfied that the trial court still could find from the totality of the evidence that the Civil Service Department’s statewide job analysis was – more likely than not – suitable to identifying the tasks and skills relevant to the performance of that job in Buffalo.

“Survey data warranting 95% statistical confidence showed that persons across New York with the title of fire lieutenant identified the same tasks as critical to their jobs regardless of the size or location of the fire department where they served. Indeed, 90% of surveyed New York fire lieutenants, when asked to rank specified tasks according to their criticality in the performance of the respondents’ jobs, provided virtually identical responses, and those who departed did so only slightly. Such data made it highly likely that the job of fire lieutenant, wherever performed in New York, had the same critical tasks and required the same critical skills. Indeed, state survey data showed greater consistency across New York with respect to the position of fire lieutenant than with other high-ranking firefighter positions, where responses were more variable.

“From the totality of this evidence, we are satisfied that the district court could make a preponderance finding that the Civil Service Department’s statewide job analysis for the position of fire lieutenant was suitable even to a jurisdiction such as Buffalo, which had participated only minimally in that analysis, and further, that the test developed from that analysis was job related to the lieutenant position as performed in the Buffalo Fire Department.”

M.O.C.H.A. Society, Inc. v. City of Buffalo, 689 F.3d 263 (2d Cir. 2012).