733 F.

2d 220

34 Fair Empl.Prac.Cas. 1065,

34 Empl. Prac. Dec. P 34,337
James BUSHEY, Roger D. Bell, Robert W. Ferber, William J.
Norton, Robert J. Seitz, George Bartlett, Charles Page,
Wayne Wilhelm, Wayne L. Strack, Robert Fucci, Gary H.
Filion, Edward D. Rogan, Miles Barnes, Donald E. Clark and
Gerald Sweeney, each individually and on behalf of all
others similarly situated, Plaintiffs-Appellees,
v.
NEW YORK STATE CIVIL SERVICE COMMISSION;
Joseph Valenti, in
his capacity as President of the New York State Civil
Service Commission and Civil Service Commissioner;
Josephine Gambino and James McFarland, in their capacity as
Civil Service Commissioners; the New York State Department
of Correctional Services; and Thomas A. Coughlin, III, in
his capacity as Commissioner of the New York State
Department of Correctional Services, Defendants-Appellants,
and
Gerald A. Wells, Wilbur I. Wright, Joseph P. Bates, Thomas
D. Haskell, and Percy Jones, Intervenors-Appellants.
No. 779, Docket 83-7893.

United States Court of Appeals,

Second Circuit.
Argued Feb. 15, 1984.
Decided April 16, 1984.

Richard R. Rowley, Albany, N.Y. (Ronald G. Dunn and Mark T. Walsh,

Jr., Rowley, Forrest & O'Donnell, P.C., Albany, N.Y., of counsel), for
plaintiffs-appellees.
Ann Horowitz, Asst. Atty. Gen., New York City (Robert Abrams, Atty.

Gen. of the State of N.Y., Melvyn R. Leventhal, Deputy First Asst. Atty.
Gen., Barbara B. Butler, and Brenda S. Spears, Asst. Atty. Gen., New
York City, of counsel), for defendants-appellants.
Paul A. Crotty, New York City (John D. Shyer and Richard W. Mark,
Donovan, Leisure, Newton & Irvine, New York City, of counsel), for
intervenors-appellants.
Before TIMBERS, MESKILL and PIERCE, Circuit Judges.
PIERCE, Circuit Judge:

Defendants-Appellants ("Defendants" or "the State") and IntervenorsAppellants ("Intervenors") appeal from an order and judgment of the United
States District Court for the Northern District of New York, Roger J. Miner,
Judge, filed October 4, 1983, 571 F.Supp. 1562, denying Defendants' and
Intervenors' motions for summary judgment and granting Plaintiffs-Appellees'
("Plaintiffs") motion for summary judgment. The district judge also enjoined
Defendants from making appointments to the position of Correction Captain
("Captain") of the New York State Department of Correctional Services
("Correctional Services") from an eligibility list that was based on certain
examination scores adjusted to eliminate what Defendants perceived to be the
adverse racial impact against minority candidates of a written examination
administered by the New York State Civil Service Commission ("Civil
Service"). The district judge agreed with Plaintiffs, who are nonminority
candidates for the position of Captain, that the State's adjustment of the
minority candidates' raw test scores discriminated against nonminority
candidates in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
Secs. 2000e-2 to 2000e-17 (1976 & Supp. V 1981) ("Title VII").

For the reasons set forth below, we reverse the order and judgment of the
district court and we remand for further proceedings consistent with this
opinion.

I. BACKGROUND
3

This action represents the most recent chapter in the controversial history of
promotional examinations administered by the Civil Service for supervisory
titles in the State's Correctional Services. The instant dispute began on January
30, 1982, when the Civil Service and the Correctional Services conducted
Promotional Examination No. 37-526 for the position of Correction Captain. At
the time the examination was given, no minority officers held permanent

appointments as Captains in the State's prisons. After administering the test, the
Civil Service tabulated each candidate's right and wrong answers to arrive at
the candidates' raw scores. The tabulation results indicated that nonminority
candidates had passed the test at about twice the rate as minority candidates,1 as
follows:
4

In view of the "four-fifths" rule of the Equal Employment Opportunity

Commission ("EEOC") Uniform Guidelines on Employee Selection, 29 C.F.R.
Sec. 1607.4(D) ("Guidelines"),2 the State determined that the Captains'
examination had an adverse racial impact on minority candidates because the
passing rate of minority candidates was approximately fifty percent lower than
the passing rate of nonminority candidates. Taking into account other factors
that it felt reinforced its conclusion of adverse impact,3 the State adjusted both
the minority and nonminority candidates' scores by converting them to separate
frequency distributions and then equating or normalizing them with the
respective means. The effect was to increase to fifty percent the percentage of
minorities who passed the test. From the State's perspective, this adjustment
served to correct the adverse racial impact of the test by equalizing the passing
rate of minority and nonminority candidates. In practical terms, the adjustment
added eight minority candidates to the eligibility list without removing any of
the 119 nonminorities from the list.

By acting to eliminate the perceived adverse impact of the examination on

minorities, the State sought anticipatorily to avoid litigation it assumed
minority candidates would bring challenging reliance on the test to promote
candidates to the position of Captain. Such litigation had resulted from the use
of past promotional examinations with respect to Correction Sergeants in 1972,
Kirkland v. New York State Department of Correctional Services, 374 F.Supp.
1361 (S.D.N.Y.1974), aff'd in part and rev'd in part, 520 F.2d 420 (2d
Cir.1975), cert. denied, 429 U.S. 823, 97 S.Ct. 73, 50 L.Ed.2d 84 (1976), on
remand, 482 F.Supp. 1179 (S.D.N.Y.), aff'd, 628 F.2d 796 (2d Cir.1980), cert.
denied, 450 U.S. 980, 101 S.Ct. 1515, 67 L.Ed.2d 815 (1981) ("Kirkland
Sergeants"), and Correction Lieutenants in 1981, Kirkland v. New York State
Department of Correctional Services, 552 F.Supp. 667 (S.D.N.Y.1982), aff'd,
711 F.2d 1117 (2d Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 997, 79
L.Ed.2d --- (1984) ("Kirkland Lieutenants").

The State did not succeed in staving off litigation; this time it was initiated by
the nonminority candidates, who brought the instant action contending, inter
alia,4 that the State's adjustment of candidates' raw scores involved "reverse
discrimination" in violation of Title VII. In its answer to the complaint, the
State responded that it acted in good faith and in compliance with applicable

law by voluntarily adjusting the raw scores to eliminate the examination's

adverse impact. A group of minority candidates moved to intervene as
defendants to assert that the written test had a facially discriminatory impact
against them, that the use of separate frequency distributions to eliminate such
adverse impact was proper, and that the remedial action taken by the State was
the minimum necessary given the past pattern of discrimination that had been
the subject of the Kirkland Sergeants and the Kirkland Lieutenants actions. The
district judge granted the application to intervene by an order dated February
16, 1983.
7

In June, 1983, all parties moved for summary judgment. After hearing oral
argument and reviewing the papers submitted by the parties in support of their
respective positions, 5 Judge Miner denied Defendants' and Intervenors'
motions, granted Plaintiffs' motion for summary judgment, and enjoined
Defendants from making appointments to the position of Captain based on the
eligibility list.

The district judge based his conclusion on three principal grounds. He held that
the factors considered by the State--the distribution of scores from the written
test, the litigation history of prior Correctional Services examinations for
supervisory titles, the absence of empirical data indicating that minority and
nonminority candidates would not perform equally well as Captains, and the
availability of some data regarding the job performance of minority candidates
in the two supervisory titles directly below Captain--6 did not establish a prima
facie case of adverse racial impact vis-a-vis minority candidates. Moreover, he
held that even assuming, arguendo, that the State had shown in defense of its
actions a prima facie case of adverse racial impact, it still had acted in violation
of Title VII because it had not proved that the inference of racial discrimination
arising from a showing of adverse impact could not be rebutted by proof that
the differences in test performance were job-related. In effect, the district judge
held that before taking any voluntary action to eliminate the adverse racial
impact of its selection process, the State, as an employer, had to meet the
following two burdens: (1) make out a prima facie case of discrimination (in
this context, adverse impact), and (2) prove that such prima facie case was not
rebuttable. Finally, the district judge concluded that "[e]ven assuming the
propriety of the need for defendants' actions in remedying the alleged
discriminatory impact of [the] promotional procedures, the method by which
defendants chose to effect their remedy was itself fundamentally flawed."

Upon review, we hold that the district court erred with respect to each of these
grounds in granting summary judgment in favor of Plaintiffs. Consequently, we
reverse and remand.

II. DISCUSSION
A. Prima Facie Case of Adverse Impact
10

Plaintiffs argue that the district court held that the raw scores on the
examination did not establish a prima facie case of adverse impact because, in
Plaintiffs' words, the "statistical sample of Black and Hispanic candidates was
simply too small to serve as a basis for a finding that the adverse impact was
due to race or national origin." This contention, however, mischaracterizes the
holding of the district judge, who expressly stated that he was "not prepared to
hold that a pool consisting of thirty-two minorities and 240 or so nonminorities,
is, as a matter of law, an inadequate number from which to draw statistical
inferences." Instead, relying on a report submitted by Dr. Kavanagh, Plaintiffs'
statistical expert, the district judge held that the admitted differences in score
distributions resulted from differences in the prior experiences of several of the
minority candidates. The record does suggest that of the candidates who took
the examination, at least eleven of them qualified because of their experience as
Correctional Supervising Officers with the Office of Drug Abuse Services
("ODAS"). Of those eleven, six were minority candidates. The district court,
relying on the affidavit of Plaintiffs' expert, reasoned that the difference in test
scores resulted not from an adverse racial impact of the test, but from this
difference in employment experience between minority and nonminority
candidates.

11

This reasoning does not comport with adverse impact analysis. The case law
clearly provides that a prima facie case is established by a showing that an
examination has an adverse racial impact on minority candidates. Thereafter,
legitimate, job-related explanations for differences in score distributions
become relevant to rebut the prima facie showing of adverse racial impact. See,
e.g., Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375,
45 L.Ed.2d 280 (1975); Griggs v. Duke Power Co., 401 U.S. 424, 431-36, 91
S.Ct. 849, 853-56, 28 L.Ed.2d 158 (1971); Kirkland Lieutenants, 711 F.2d at
1132; Guardians Association of New York City Police Department, Inc. v. Civil
Service Commission, 630 F.2d 79, 86-87 (2d Cir.1980), cert. denied, 452 U.S.
940, 101 S.Ct. 3083, 69 L.Ed.2d 954 (1981); Vulcan Society of New York City
Fire Department, Inc. v. Civil Service Commission, 490 F.2d 387, 391-92 (2d
Cir.1973). Contrary to this approach, Judge Miner held that there had been no
prima facie showing of adverse racial impact because the ODAS experience of
some of the minority candidates explained the differences in score distributions.
In other words, he turned to job-related explanations, which might be
appropriate to rebut a prima facie showing of adverse impact, in order to
determine that the prima facie case had not been made in the first place. This

court previously rejected such an approach, urged by nonminority intervenors

in the Kirkland Lieutenants case, by noting that "[a]lthough lack of experience
may be relevant to the question of a test's job validity, it does not affect the
question whether a prima facie case has been properly established." Kirkland
Lieutenants, 711 F.2d at 1132. Even if prior experience were relevant to the
prima facie showing of adverse impact, which it is not, we note, as the court in
Kirkland Lieutenants stated, that the difference "in responsibility between
Office of Drug Abuse [Services] officers and officers working at minimum and
medium security [Correctional Services] facilities has been held to be
negligible." Id. (citing Stokes v. New York State Department of Correctional
Services, 569 F.Supp. 918 (S.D.N.Y.1982)).
12

Having put aside the district court's erroneous interpretation of the prima facie
case, we turn to Defendants' assertion that the test scores, and the application of
the EEOC's "four-fifths" rule, established a prima facie showing of adverse
impact. It is well-settled in the case law that "[a] prima facie violation of [Title
VII] may be established by statistical evidence showing that an employment
practice has the effect of denying the members of one race equal access to
employment opportunities." New York Transit Authority v. Beazer, 440 U.S.
568, 584, 99 S.Ct. 1355, 1365, 59 L.Ed.2d 587 (1979); see also Albemarle v.
Moody, 422 U.S. at 425, 95 S.Ct. at 2375 (prima facie case of adverse impact
established by proof "that the tests in question select applicants for hire or
promotion in a racial pattern significantly different from that of the pool of
applicants"); Kirkland Lieutenants, 711 F.2d at 1130 (upholding district court's
finding of a "prima facie case of employment discrimination through a
statistical demonstration of disproportionate racial impact"); Guardians v. Civil
Service, 630 F.2d at 88 ("statistics showing a significantly disparate racial
impact have consistently been held to create a presumption of Title VII
discrimination"); Vulcan Society v. Civil Service, 490 F.2d at 392-93
(upholding district court's finding of adverse impact by comparing test passing
rates of minority and nonminority candidates). Similarly, "[w]hile courts are
not bound by the EEOC Guidelines, the Supreme Court has declared that the
guidelines should be shown 'great deference.' " Teal v. Connecticut, 645 F.2d
133, 137 n. 6 (2d Cir.1981) (quoting Griggs, 401 U.S. at 433-34, 91 S.Ct. at
854-55, and citing Albemarle v. Moody, 422 U.S. at 431, 95 S.Ct. at 2378),
aff'd, 457 U.S. 440, 102 S.Ct. 2525, 73 L.Ed.2d 130 (1982); see also Guardians,
630 F.2d 88 ("By any reasonable measure, including ... the four-fifths rule of
the EEOC Guidelines, Exam No. 8155 had a disparate racial impact.").

13

Herein, the differences between the score distributions of minority and

nonminority candidates were sufficient to establish a prima facie showing of
adverse impact. Twenty-five percent of the minority candidates passed the test

whereas nonminority candidates passed at a rate of forty-nine percent. Thus, the

passing rate of minority candidates was approximately fifty percent lower than
the passing rate of the nonminority candidates. In other words, about five
minority candidates passed the Correction Captain examination for every ten
nonminority candidates who passed it.
14

In short, the test data established a prima facie case of adverse impact against
minority candidates as a group. We cannot conclude, however, that the test
data, by itself, establishes adverse impact as to Hispanic candidates, who were
included within the minority grouping, since the record indicates that fifty
percent--two of the four--of the Hispanic candidates who took the test passed it.
It remains an open question, to be explored fully on remand, whether as to the
Hispanic candidates there exists, on the basis of other factors cited by the State,
"a sufficiently serious claim of discrimination to serve as a predicate" for the
State's voluntary remedial actions. 7 Kirkland Lieutenants, 711 F.2d at 1130.

B. Burden to Rebut
15

The district court also held, and Plaintiffs argue on appeal, that even if
Defendants had made a prima facie showing of adverse racial impact, before
adopting remedial measures they still had to demonstrate that such a case was
not rebuttable by proof that the score distribution differences were not jobrelated. In other words, the district judge ruled that before taking steps to rectify
a perceived violation of Title VII, the State, as an employer, had to meet two
burdens--first establish a prima facie case of discrimination and then prove that
such prima facie case was not rebuttable through job-related explanations. We
hold that, in the context of this case, the imposition of the latter burden on a
party seeking to comply voluntarily with Title VII is contrary to the case law
and the statute's underlying policy.

16

As this court noted recently, "[i]t is settled that voluntary compliance is a

preferred means of achieving Title VII's goal of eliminating employment
discrimination." Kirkland Lieutenants, 711 F.2d at 1128; see also Carson v.
American Brands, Inc., 450 U.S. 79, 88 n. 14, 101 S.Ct. 993, 998-99 n. 14, 67
L.Ed.2d 59 (1981) ("[in] enacting Title VII, Congress expressed a strong
preference for encouraging voluntary settlement of employment discrimination
claims"); Alexander v. Gardner-Denver Co., 415 U.S. 36, 44, 94 S.Ct. 1011,
1017, 39 L.Ed.2d 147 (1974) ("[c]ooperation and voluntary compliance were
selected as the preferred means for achieving this goal"). By requiring proof of
not only a prima facie case of adverse impact, but also of the inability to rebut
such a case, the district court in effect posited a rule, contrary to the stated
policy of voluntary compliance, permitting an employer, here the State, to take

remedial actions only where there could be a judicial determination of racial

discrimination.
17

This court expressly rejected such an approach when it was urged in the context
of a voluntary settlement by nonminority employees who intervened to oppose
the settlement agreed to by the parties in the Kirkland Lieutenants case. 711
F.2d at 1129-30. Herein, Plaintiffs' situation is analogous to the position of the
intervenors in Kirkland Lieutenants, where minority employees challenged the
State's use of an examination to promote candidates to the position of
Correction Lieutenants. Id. at 1121. In Kirkland Lieutenants, the nonminority
intervenors argued that "before any race-conscious relief can be granted to
plaintiff class, there must be a judicial determination that Exam 36-808 and its
resulting eligibility list are not job-related and are therefore racially
discriminatory, i.e., a mere statistical showing of disproportionate impact does
not amount to a proper basis for settlement." Id. at 1129. This contention is
essentially the same one raised by Plaintiffs herein and adopted by the district
court; that is, this contention amounts to a claim that the State must prove the
inability to rebut the prima facie case by showing that the differences in score
distributions were not job-related. In Kirkland Lieutenants, this court rejected
this argument on the ground that it "would turn Title VII law on its head since
... job-relatedness is never presumed ...." Id.; see Guardians v. Civil Service,
630 F.2d at 86-87; Vulcan Society v. Civil Service, 490 F.2d at 391-92.
Moreover, "if intervenors' [in the instant case, Plaintiffs'] position were
adopted, no Title VII testing case could be settled by agreement until a judicial
determination on the test's job validity was made. Such a result would seriously
undermine Title VII's preference for voluntary compliance ...." Kirkland
Lieutenants, 711 F.2d at 1130 (citations omitted). Consequently, as Judge
Lumbard wrote in Kirkland Lieutenants in the context of voluntary settlements,
"a prima facie case of employment discrimination through a statistical
demonstration of disproportionate racial impact constitutes a sufficiently
serious claim of discrimination to serve as a predicate for a voluntary
compromise containing race-conscious remedies." Id.

18

Plaintiffs attempt to distinguish Kirkland Lieutenants on the ground that the

compliance plan therein was adopted on the basis of "arms' length" settlement
negotiations. This distinction, however, is unpersuasive. It implies that the
interests of nonminority employees were somehow more protected in Kirkland
Lieutenants, where the State adopted the remedial plan under negotiation
pressure from minority candidates, than they were in the instant case, where the
State adopted the plan without such direct pressure.

19

Moreover, Plaintiffs' purported distinction would create an anomalous situation.

It would require an employer, in this case the State, to issue a presumptively

discriminatory eligibility list, wait to be sued by minority candidates, and only
then seek a settlement pursuant to Kirkland Lieutenants. Such an approach
would serve no purpose other than to impede the process of voluntary
compliance with Title VII and cause the proliferation of litigation in all such
cases, thereby generating litigation costs and favoring litigious over nonlitigious
employees.
20

The "rebuttal burden" urged by Plaintiffs and adopted by the district court also
is contrary to the Supreme Court's approach in United Steelworkers of America
v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979).8 Without
requiring a judicial determination of racial discrimination (in fact, the defendant
therein denied that it had engaged in past discrimination), the majority in
Weber upheld, as permissible under Title VII, an affirmative action plan
"designed to eliminate conspicuous racial imbalance in traditionally segregated
job categories." Id. at 209, 99 S.Ct. at 2730 (footnote omitted). In doing so, the
Court rejected the contention raised by nonminority plaintiffs that a judicial
determination of racial discrimination was a necessary predicate to the adoption
of race-conscious remedial measures. The broadness of the majority's view is
suggested by Justice Blackmun's concurrence, which in urging a narrower
ground nevertheless noted that "[t]he Court ... declines to consider the narrow
'arguable violation' approach and adheres instead to an interpretation of Title
VII that permits affirmative action by an employer whenever the job category in
question is 'traditionally segregated.' " Id. at 212, 99 S.Ct. at 2731.9

21

In short, we hold that consistent with Kirkland Lieutenants, 711 F.2d at 1130,
and Weber, 443 U.S. at 209, 99 S.Ct. at 2730, a showing of a prima facie case
of employment discrimination through a statistical demonstration of
disproportionate racial impact constitutes a sufficiently serious claim of
discrimination10 to serve as a predicate for employer-initiated, voluntary raceconscious remedies.11

C. Adjustment Methodology
22

The district judge also held that "[e]ven assuming the propriety of the need for
defendants' actions in remedying the alleged discriminatory impact of [the]
promotional procedures, the method by which defendants chose to effect their
remedy was itself fundamentally flawed." Despite the possible statistical
weaknesses in the State's approach,12 the relevant question under Weber is
whether in practical terms the plan "unnecessarily trammel[ed] the interests" of
the nonminority employees. 443 U.S. at 208, 99 S.Ct. at 2730. Herein, as in
Weber, the adjustment plan did not displace any nonminority candidates from

the eligibility list (it merely added eight minority candidates to the list), did not
place an absolute bar to the advancement of nonminority candidates, and was
only temporary in nature. Moreover, the plan in the instant case was tailored
narrowly to eliminate the adverse impact of the test and did not aim at
maintaining a racial balance in futuro. Yet, we agree with the Court of Appeals
for the District of Columbia that "Weber [does not] support[ ] the proposition
that no purported affirmative action plan is ever unlawful unless it requires
discharge, permanently bars advancement, or maintains racial balance ...."
Parker v. Baltimore and Ohio Railroad Co., 652 F.2d 1012, 1014
(D.C.Cir.1981). We conclude that herein the record is insufficient to determine
whether the State's adjustment plan trammeled the interests of the nonminority
candidates. Therefore, we remand to the district court for a full exploration of
this disputed issue. See id. (concluding that the record did not contain sufficient
information on the effect of affirmative action plan on nonminority employees,
and holding that therefore "a crucial fact remained disputed, and ... summary
judgment was premature").
III. CONCLUSION
23

For the foregoing reasons, we reverse the judgment and order of the district
court and we remand for further proceedings consistent herewith.

The Hispanic candidates were included in the minority grouping even though
they had a 50% passing rate (two out of four)

Nonminority ..
Minority .....

Test Takers
243
32

Passing
Candidates
119
8

Passing
Rate
49%
25%

29 C.F.R. Sec. 1607.4(D) provides, in pertinent part, that

[a] selection rate for any race, sex, or ethnic group which is less than four-fifths
( 4/5) (or eighty percent) of the rate for the group with the highest rate will
generally be regarded by the Federal enforcement agencies as evidence of
adverse impact, while a greater than four-fifths rate will generally not be
regarded by Federal enforcement agencies as evidence of adverse impact.
In other words, under the Guidelines, a selection rate for minorities lower than
80% of the selection rate for the highest scoring group may be regarded as
evidence of adverse impact.

Defendants' Memorandum of Law in Opposition to Plaintiffs' Motion for

Summary Judgment listed these factors as follows:

[T]he basis for the decision to use differential scoring was the adverse impact
of the written test, the litigation history of examinations for Corrections
supervisory security titles, the lack of any empirical data indicating that
minority and non-minority candidates for Captain would not perform equally
well on the job, and the availability of data regarding the performance of
minorities and non-minorities in the two supervisory titles directly below
Correction Captain.
The first two factors are discussed in the text. As to the third factor, the State
explains the absence of data about minority performance in the position of
Captain by noting that at the time of the examination, no minority persons held
permanent positions as Correction Captains. The fourth factor involved
empirical data that demonstrated that minorities and nonminorities performed
equally well in the categories of Lieutenants and Sergeants. Appendix at 30203; Kirkland v. New York State Department of Correctional Services, 482
F.Supp. 1179, 1182 (S.D.N.Y.), aff'd, 628 F.2d 796 (2d Cir.1980), cert. denied,
450 U.S. 980, 101 S.Ct. 1515, 67 L.Ed.2d 815 (1981).
4

Plaintiffs' complaint also asserted pursuant to 42 U.S.C. Sec. 1983 a violation of

their fourteenth amendment rights under the United States Constitution, as well
as violations of 42 U.S.C. Sec. 1981 and Title VI of the Civil Rights Act of
1964, 42 U.S.C. Sec. 2000d et seq. The district court rejected these claims and
Plaintiffs do not renew them on appeal. Therefore, these claims are not before
us. We also are foreclosed by the Supreme Court's recent decision in Pennhurst
State School and Hospital v. Halderman, --- U.S. ----, 104 S.Ct. 900, 79 L.Ed.2d
67 (1984), from considering the claim in Plaintiffs' complaint that Defendants
failed to comply with state law

Defendants contend that at the close of oral argument on the summary

judgment motions before the district judge, they requested but were denied
leave to submit late an affidavit in response to the affidavit of Plaintiffs' expert,
Dr. Kavanagh, submitted in support of Plaintiffs' motion for summary
judgment. We assume that on remand Defendants will have an opportunity to
introduce evidence in support of their position

As to the last two factors, see supra note 3

Our discussion infra is not meant to suggest that only a prima facie showing of
adverse impact can serve as a sufficient predicate to voluntary remedial
measures under Title VII. As discussed below, Kirkland Lieutenants, 711 F.2d
at 1130, only requires "a sufficiently serious claim of discrimination." On
remand, the State may show such a claim as to the Hispanic candidates on the

basis of factors other than the subject examination scores

8

We reject Plaintiffs' contention that Weber, 443 U.S. 193, 99 S.Ct. 2721, 61
L.Ed.2d 480, is inapplicable because the employer in Weber was a private
entity whereas here it is a public entity. See, e.g., Kirkland Lieutenants, 711
F.2d at 1130 (applying Weber); Bratton v. City of Detroit, 704 F.2d 878, 884 n.
18 (6th Cir.1983) (applying Weber in suit by nonminority policemen against
the City of Detroit), cert. denied, --- U.S. ----, 104 S.Ct. 703, 79 L.Ed.2d 168
(1984); Local Union No. 35 v. City of Hartford, 625 F.2d 416, 425 (2d
Cir.1980) (applying Weber in suit against the City of Hartford), cert. denied,
453 U.S. 913, 101 S.Ct. 3148, 69 L.Ed.2d 997 (1981)

During oral argument, a question was raised as to whether a nonminority person

ever had held a permanent appointment to the position of Captain in a State
prison. The record apparently does not offer evidence with respect to this issue.
On remand, the parties may wish to explore this point in connection with our
discussion supra note 7 and the standard set forth in Weber, 443 U.S. at 209, 99
S.Ct. at 2730

10

This holding is not intended to suggest that a showing of adverse racial impact
is the only "sufficient serious claim of discrimination" that can serve as a
predicate for voluntary remedial measures under Title VII. See supra notes 7
and 9

11

Contrary to Plaintiffs' contention, the Supreme Court's decision in Furnco

Construction Corp. v. Waters, 438 U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957
(1978), does not require an opposite result. Therein, minority employees
brought a Title VII action against an employer, alleging discrimination on the
basis of race. The Supreme Court reversed, holding that the circuit court erred
in making a judicial determination of discrimination by merging the prima facie
showing of disparate treatment under McDonnell Douglas Corp. v. Green, 411
U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and its progeny with the
rebuttal question. Herein, we do not merge the prima facie and rebuttal
questions. We only hold that consistent with Kirkland Lieutenants, 711 F.2d at
1130, and Weber, 443 U.S. at 209, 99 S.Ct. at 2730, a judicial determination of
racial discrimination is not a prerequisite to an employer adopting voluntary,
race-conscious remedies to comply with Title VII

12

In concluding that the normalization and standardization process employed by

the State was methodologically flawed, the district judge relied principally on
the affidavit of Dr. Kavanagh, Plaintiffs' expert, which states that
a normal distribution of scores achieved by a sufficient number of test takers
when placed on a graph plotting the number of candidates achieving each score

will result in a so-called "bell curve" which is created because most of the
candidates receive marks in the middle range of scores while there are
relatively few candidates who receive the highest scores or the lowest scores.
Such a bell curve is ... known as a normal distribution.... I have plotted the
scores, and upon plotting the scores of the non-minority candidates, ... the
result is a typical bell curve. By contrast, when the scores of the 34 minority
candidates are plotted on a graph, the line resulting is relatively flat, it is not a
bell curve and prohibits standardizing scores based on the normal curve. The
fact that there are only 34 minority candidates, not the minimum 100 needed to
allow normalization ... exacerbates an already incorrect methodology.
Appendix at 282 (emphasis in original). On appeal, Defendants contend that
the district judge denied them the opportunity to respond to the statistical
arguments set out in Dr. Kavanagh's affidavit. See supra note 5.