Buffalo firefighter examination withstands disparate impact challenge

The City of Buffalo administered civil service examinations that had a disparate impact on black test-takers, who sued under Title VII claiming that the tests were not sufficiently job-related and therefore illegal because the test was not sufficiently relevant to test-takers in the city. The Court of Appeals sides with the city.

The case is M.O.C.H.A. Society v. City of Buffalo, decided on July 30. Disparate impact has been in the news lately, most notably because the Supreme Court a few years ago ruled in favor of the City of New Haven in Ricci v. Destefano, in a high-profile disparate impact challenge involving minority firefighters. The Buffalo case also involves firefighters, who took the exam in 1998 and 2002. Here's the issue: "can an employer show that promotional examinations having a disparate impact on a protect 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," that is, the City of Buffalo? Writing for a 2-1 majority, Judge Raggi answers "yes" to that question, stating:

While employer-specific data may make it easier for an employer to carry his burden at the second step of Title VII analysis, such evidence is not required as a matter of law to support a factual finding of job relatedness and business necessity. Where, as here, the district court hears extensive evidence as to how an independent state agency (1) determined, based on empirical, expert, and anecdotal evidence drawn from fire departments across New York and the nation, that the job of fire lieutenant, wherever performed, involves common tasks requiring essentially the same skills, knowledge, abilities, and personal characteristics; and (2) developed a general test based on those findings, we conclude that the district court had sufficient evidence to make a preponderance finding that Buffalo’s use of that test to promote firefighters to the rank of fire lieutenant was job related and consistent with business necessity.

In other words, in creating the 1998 examination, the State Civil Service Department used a thorough job analysis from fire departments around the state, but not the City of Buffalo, which administered the test for its employees. That survey helped the test maker to draft questions for the lieutenant promotional test. For some reason, she was unable to gather too much information from Buffalo firefighters, but she determined that the information from other departments was close enough to create a test for Buffalo promotional candidates. A similar job analysis governed the 2002 test. The Court of Appeals concludes the the district court could deem this test legal under Title VII and that it was relevant to Buffalo firefighters.

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. ... 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.