validation reports (and none exist), and no one save a precious few even saw the actualexaminations, let alone the underlying testing data.Movants submit that no candidate can justify being promoted from a deficient evaluationand selection process that discriminates against any group – especially in the context of this casewhere everyone simply ignored test validity altogether. Movants are now at the place theywould have been in 2004 had the City certified the lists but before any promotions had beenmade – with one notable addition: the identification of all the promotees – existing and putative -- is now known. There is not a single black firefighter among the first 14 promotions; there areonly two, maybe three in the next proposed group of promotions.
In the testing context, thisindicates that the test itself may be flawed.
This is why validation is so important and why it is so curious to Movants as to why theexaminations have never been addressed in this case. It is possible that a selection process thathas an adverse impact can still pass muster, if it can be demonstrated by the City that theexamination was sufficiently job related and consistent with business necessity to be valid andthe plaintiffs cannot demonstrate that there are alternative measures that are equally valid thathave less adverse impact.
See, 42 U.S.C. 2000e-2(k).If additional promotions are made at this point, Movants could be irreparably harmed.
The City and the Plaintiffs also did not dispute that there was a prima facie case of disparate impact. Movants arenot really sure how this determination was made, since adverse impact ordinarily cannot be determined until all theselections have been made, i.e., promotions are made and the eligibility list lapses. But in any event, that issue hasbeen resolved with this Court’s order: the identities of the putative promotees is known and impact ratios can now becalculated with certainty.
In any given population of equally qualified individuals, one would expect to see a relatively even distribution of selections made at random, or chance. When the results are not as would be expected in random selection within arelevant range, then the issue of test validity arises. See, Uniform Guidelines on Employee Selection, 29 C.F.R.1607, et al.
While there is Supreme Court dicta relating to the “good faith belief” as being a defense to a disparate impact suit,in fact no such defense exists in disparate impact cases. First, the statute is clear what the burdens are and whichparty bears them. Second, there is no case law that supports such a radically new defense, either. Third, this caseuntil now has never been a disparate impact case, only a disparate treatment case. Therefore, any issues relating todisparate impact were not even before the Supreme Court in this case.
Case 3:04-cv-01109-JBA Document 178 Filed 12/07/2009 Page 3 of 5