On May 14th we blogged about “disparate impact” discrimination by highlighting a recent case in which the EEOC sued the City of Jacksonville contending that it’s written examinations for the promotion of firefighters had a disproportionately adverse impact on black test takers, and were not job-related or consistent with business necessity.

Yesterday, a federal appeals court in New York ruled that although firefighter examinations in Buffalo, New York for lieutenant candidates had a disparate impact on black firefighters (black applicants had a significantly lower pass rate than white candidates), nonetheless the examinations were, in fact, “job related and consistent with business necessity."

The black candidates had sued alleging that the City of Buffalo had used a statewide New York State Civil Service Department analysis as to which skills and other attributes should be tested, but that there was little or no analysis as to the skills and other attributes that should be tested specific to Buffalo.   The lower court had previously held that that there indeed was a disparate impact, but that “[s]ubstantial empirical evidence, reinforced by expert review and jurisdictional comparisons, showed that fire lieutenants across New York performed the same critical tasks and required the same critical skills, regardless of the location and size of their departments.”   

The appeals court was required to decide the 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? (emphasis added).” 

It held that:

 “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 (emphasis added.)”

This is a good example of a disparate impact case, and an example of a situation where in spite of a finding that a test disparately impacts a protected class, the municipality successfully demonstrated a defense of job relatedness and business necessity.  It should be noted that this was not an easy case, and that the court decision was not unanimous.