EQUAL OPPORTUNITIES COMMISSION
CITY OF MADISON
210 MONONA AVENUE
RECOMMENDED FINDINGS OF FACT CONCLUSIONS OF
LAW AND ORDER
Case No. 2574
A complaint was filed with the Madison Equal Opportunities Commission (MEOC) on November 1, 1979 alleging race discrimination in regard to employment. The complaint was investigated by MEOC Human Relations Investigator Mary Pierce and an Initial Determination dated April 20, 1980 was issued finding probable cause to believe discrimination had occurred as alleged.
Conciliation failed or was waived, and the matter was certified to public hearing. A hearing was held beginning on March 30, 1981. Attorney Jeff Scott Olson of JULIAN AND OLSON, S.C. appeared on behalf of the Complainant who also appeared in person. Attorney Thomas Kennedy of BRYNELSON, HERRICK, GEHL AND BUCAIDA appeared on behalf of the Respondent who also appeared by employee-representative Warren E. Robertson. Based upon the record of the hearing and after consideration of the post-hearing briefs submitted by the parties, the Examiner proposes the following Recommended Findings of Fact, Conclusions of Law and Order:
RECOMMENDED FINDINGS OF FACT
RECOMMENDED CONCLUSIONS OF LAW
Essentially, the heart of this case is that the Complainant made out a prima facie1 case of discrimination, and the Respondent offered virtually no evidence that its business practice was job-related. What little evidence that was offered did not even approach the Respondent's burden of proof, particularly in light of the fact that the Respondent had 109 (of 227) able bus drivers employed at the time of the hearing who were hired prior to the testing requirement being placed on applicants.2 Respondent's burden to show job-relatedness or business necessity in a disparate impact case is far greater than the burden on the Respondent that is applied in a disparate treatment case.3
Respondent did, however, posit the "bottom-line" approach defense4 and established this argument by statistical testimony. Essentially, while the Complainant established that the Respondent's test had a discriminatory effect on black applicants, the Respondent's actual hiring process did not. That is possible because although a statistically significant lower percentage of blacks passed the test (32% blacks vs. 55.8% whites passed), most of the blacks who did pass were hired while a higher percentage of the whites were kept on the waiting list.
In a disparate treatment case, Furnco v. Waters5 holds that an employer's actual workforce statistics are probative of whether or not discrimination has occurred in an individual instance, though such statistics are not normally conclusive of disparate treatment (or the lack thereof).
The question here is whether an employer's workforce statistics can be an absolute defense in a disparate impact case where a phase of the employer's hiring policy is shown to have a discriminatory effect on blacks but where the Respondent's overall hiring policy does not. I hold that such workforce statistics are not an absolute defense. To hold otherwise would encourage Respondents to devise tests and procedures that have the effect of limiting the number of black and other protected class individuals that eventually qualify for hire.
Essentially, the Respondent's test screened out at least two to six more black individuals than it should have.6 At this time, rather than having one black on its waiting list, the Respondent would be expected to have at least three to seven blacks on that list in addition to the six blacks already employed. Based on the abilities of those excluded individuals, there are times when the Respondent should have more than six blacks employed. However, by applying a "bottom-line" approach, it would be possible for an employer to manipulate its hiring process by the use of non-job-related testing devices to disproportionately screen out blacks and consequently limit the number of blacks actually employed to the minimum number necessary to avoid legal liability. While there is no showing that this Respondent specifically intended to do that, the practical effect of the Respondent's actions are exactly that. Consequently, there are at least two to six black individuals who ought to have passed the test and have been considered for hire around the time Jones took the test. Even if not hired, at least they should have been moving up on the Respondent's waiting list. And, equal opportunity to be hired is exactly one right that the ordinance protects.
While the Respondent's test clearly had a disparate impact on blacks, there is no showing that the Respondent would have hired him had he passed the test; he might just as likely been placed on the waiting list. And given that the Respondent's ("bottom-line") overall hiring practices were not discriminatory, this is a mitigating circumstance (absent actual intent on the part of the Respondent to limit the hire of blacks to a minimum number) for remedy although I have ruled it does not preclude liability.
Signed and dated this 24th day of November, 1981.
Allen T. Lawent
cc: Attorney Jeff Scott Olson
Attorney Barbara J. Swan
1See Griggs v. Duke Power, 401 U.S. 424, 91 S.Ct. 849 (1971). In this case, the Complainant showed by a preponderance of the evidence, including agreement by the Respondent's own expert witness, that the Respondent's written test had a statistically significant disparate impact in that blacks failed it at a much higher rate (68%) than whites (44.2%).
2It was not improper for the Respondent to attempt to find the most qualified applicants; however, when the Respondent uses a test that does not measure minimal job qualifications, such test requires very close scrutiny where it is established that it has a disparate impact.
3See Griggs, supra. Also see Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir., 1971). The combination of lack of validation and the fact that 109 of 227 bus drivers were hired without the test refuted the Respondent's business necessity argument.
3The Respondent points chiefly to Washington v. Davis, 426 U.S. 229 (1976). Washington was decided on constitutional grounds and was not a Title VII case. In fact, the Supreme Court indicates that the outcome under Title VII might have been different. The Court stated specifically:
"Under Title VII, Congress provided that when hiring and promotion practices disqualifying substantially disproportionate numbers of blacks are challenged, discriminatory purpose need not be proved, and that is an insufficient response to demonstrate some rational basis for the challenged practices."
The court goes on to discuss the validation requirement and to indicate that a Title VII inquiry is a more probing and rigorous one of the Respondent than the Fifth Amendment inquiry applied in Washington (which required a showing of intent).
In construing the Madison Equal Opportunities Ordinance, Title VII presedents are considered. In this case therefore, Washington v. Davis does not specifically apply. The Complainant's brief at pp. 15-22 also adequately distinguishes Espinoza v. Farrah Mfg., 414 U.S. 86 (1973), New York City Transit Authority v. Beazer, 440 U.S. 568, n.25 (1979), and Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978) as well as Federal Court decisions cited by the Respondent.
5Furnco Construction Corp. v. Waters 438 U.S. 567 (1978).
6By screening out minority applicants by virtue of a written test, the effect is to limit the number of employees that eventually qualify for hire to the minimum number necessary to avoid legal liability In this case, six blacks were hired (five after the first time they took the test) and one was placed on the waiting list. At least two to six more blacks would have been expected to have passed the written test. Consequently, up to 50% of the black applicants were denied the opportunity to at least make the waiting list. This is exactly what the law protects: equal opportunity.