Full opinion text
MEMORANDUM & ORDER BLOCK, Senior District Judge. TABLE OF CONTENTS INTRODUCTION...............................................................404 BACKGROUND................................................................406 A. The Substance of the United States’ Action ................................406 1. The Testing Claims..................................................406 a. Hiring Practices ................................................406 b. Custodian Exam No. 5040 ........................................ 407 c. Custodian Engineer Exam Nos. 8206/8609 .......................... 407 d. Custodian Exam No. 1074 ........................................407 2. The Recruiting Claim................................................408 B. The Settlement Agreement..............................................409 C. The Impact of the Settlement Agreement on Seniority.......................410 1. School Building Transfers............................................411 2. Temporary Care Assignments........................................411 3. Layoffs............................................................412 D. The Fairness Hearing and Magistrate Judge Levy’s Memorandum and Order...............................................................413 E. The Second Circuit’s Remand............................................415 F. The Post>-Remand Interventions..........................................416 1. The Brennan Interventions...........................................416 2. The Caldero and Arroyo Interventions.................................417 G. Post-Remand Challenges By The Brennan Intervenors......................417 1. Challenges to the Reputed Protected Class.............................417 2. Challenges to the Testing Claims......................................418 a. Proof of Discrimination................................... 418 b. Non-Victims of Discrimination....................................419 3. Challenges to the Recruiting Claim....................................420 a. Proof of Discrimination..........................................420 b. Non-Victims of Discrimination....................................421 H. Issues Briefed..........................................................421 DISCUSSION ..................................................................421 Preliminary Matters A. Brennan Intervenors’ Status.............................................421 B. Effect of the Summary Judgment Motions on Action II......................422 C. Protected Class ........................................................422 Title VII A. Statistical Basis For the Affirmative-Action Plan...........................423 1. Testing Claims......................................................425 2. Recruiting Claim....................................................427 B. Relief.................................................................428 1. Transfers and TCAs.................................................431 2. Layoffs............................................................431 Fourteenth Amendment A. Race-Based Classifications ..............................................434 1. Compelling Interest For Race-Based Relief............................434 2. Narrowly Tailored ..................................................438 a. Transfers and TCAs.............................................439 b. Layoffs........................................................440 B. Sex-Based Classifications................................................441 1. Important Governmental Interest.....................................442 2. Substantially Related................................................442 Remaining Matters A. Propriety of Entry of a Consent Judgment.................................443 B. Class Certification......................................................444 RECAPITULATION..................... ......................................446 A. Testing Claims.................. .....................................446 B. Recruiting Claim................ ......................................446 C. Reflections...................... ......................................446 CONCLUSIONS......................... ......................................447 INTRODUCTION In 1993, the New York City Board of Education (the “Board”) conducted a demographic survey of its Custodians and Custodian Engineers (collectively, “custodial employees”); it disclosed that 99% of its 831 permanent custodial employees were men, and that 92% were white. A few years later, in 1996, the United States, in Action I, sued the Board pursuant to section 707(a) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-6(a), claiming that three entry-level examinations that the Board had administered, as well as the recruiting practices it had used to publicize those exams, violated Title VII. The lawsuit resulted in a Settlement Agreement (the “Agreement”) that awarded employment benefits to a group of 59 individuals (the “beneficiaries”) composed of black, Hispanic and Asian men and women, and non-minority females. See Jan. 10, 2005 Decl. of James Lonergan, Ex. I (Agreement). This spawned interventions in that action by two groups supportive of the settlement, and one group opposed. Those supportive were 31 of the 59 beneficiaries (the “Caldero” and “Arroyo” intervenors). Those opposed were four white male custodial employees (the “Brennan” interve-nors), who railed against the adverse effect the Agreement had on their seniority rights in regard to (1) school building transfers, (2) temporary care assignments, and (3) layoffs; rather than rely on their intervention rights, they also, together with two other white male custodial employees, brought a separate action (Action II). In both actions, all the white males assert that their seniority rights were violated in those three aspects under both Title VII and the Fourteenth Amendment, and seek injunctive relief. The two additional white males in Action II also seek monetary damages because they allegedly were denied school building transfers that, under the Agreement, were instead given to two unidentified beneficiaries. After extensive pre-trial proceedings and a protracted procedural history, the issue of the validity of the challenged parts of the Agreement is now presented to the Court by the intervenors’ respective motions for partial summary judgment in Action I. Also before the Court are a motion in Action I by the Board to enter the Agreement as a consent judgment, and motions by the white males in both actions for class-action certification. The Court declines to enter the Agreement as a consent judgment. The Court declares, however, that the Agreement is valid under Title VII, except to the extent that it grants preferential seniority as to layoffs to non-victims of race, national origin and gender discrimination. The Court further declares that the Agreement is also valid under the Fourteenth Amendment, except to the extent that it (1) grants preferential seniority as to layoffs to non-victims of race or national-origin discrimination, and (2) grants relief to racial or ethnic minorities based on the recruiting claim. The Court also declares that one of the 59 beneficiaries is not a member of protected class. Finally, the Court grants class-action status to those whose layoff-protection rights were displaced by non-victims of discrimination. There are issues of fact which must now be resolved as to (1) whether there was sufficient evidence of discrimination in respect to one of the challenged exams; (2) the number of non-female blacks, Hispanics and Asians who received relief under the recruiting claim; (3) the number of blacks and Hispanics receiving preferential seniority for purposes of layoffs under the testing claims who were not actual victims of discrimination; and (4) the identities of the individual beneficiaries who received the transfers sought by the two additional white males in Action II. BACKGROUND A. The Substance of the United States’ Action The United States initiated Action I on January 30, 1996. Although it alleged both pattern and practice disparate-treatment claims — requiring proof of intentional discrimination — and disparate-impact claims, it pursued' only the disparate-impact claims. The United States claimed that the Board’s hiring practices for custodial employees (the “custodial positions”) violated Title VII in two respects: (1) that three written tests, administered as a prerequisite for obtaining a custodial position, had a disparate impact on blacks and Hispanics (the “testing claims”); (2) that the Board’s recruiting practices for those tests had a disparate impact on blacks, Hispanics, Asians and females (the “recruiting claim”). The relevant tests were three entry-level exams: Custodian Exam No. 5040, Custodian Engineer Exam Nos. 8206/8609, and Custodian Exam No. 1074. 1. The Testing Claims a. Hiring Practices The Board periodically administered written, multiple-choice civil-service examinations to identify eligible candidates for permanent custodial positions. Those who passed the exams and met the other eligibility requirements — which included, inter alia, English-language proficiency — -were ranked and placed on eligibility lists. When a position became available, the top three candidates on the relevant list were interviewed, and one was appointed. Unsuccessful interviewees could be interviewed two more times; if they were not successful, they were removed from the list. The eligibility list created from Exam No. 5040 governed the hiring of Custodians between the spring of 1987 and the fall of 1990; 154 of 678 placed on that list were hired. The eligibility list created from Exam No. 1074 governed the hiring of Custodians from early 1997 until early 2000; 244 of 524 were hired. The eligibility list created from Exam Nos. 8206/8609 governed the hiring of Custodian Engineers between the spring of 1991 and early 1994; 46 of 335 were hired. If there were no eligible candidates when a custodial position became available, the Board solicited resumes for “provisional” — as opposed to “permanent” — positions. The most qualified applicants were selected for interviews, and the most qualified interviewee was hired. b. Custodian Exam No. 5040 Custodian Exam No. 5040 was administered in December 1985. The Department of Personnel then reviewed the “experience papers” of each successful exam-taker to determine if the applicant had the required amount of experience and/or education as advertised in the notice publicizing the exam; a negative determination could be administratively appealed. Applicants who passed the exam and had the requisite experience were given a “practical oral” exam, which was graded on a pass/fail basis. Those who passed were deemed eligible to be hired as Custodians. c. Custodian Engineer Exam Nos. 8206/8609 Custodian Engineer Exam Nos. 8206/8609 were administered in May 1989. The Department of Personnel ■ then reviewed the “experience papers” of each successful exam-taker to determine if the applicant had (1) the required amount of experience and/or education as advertised in the notice publicizing the exam, and (2) a license to operate a high pressure boiler; a negative finding in regard to experience papers could be administratively appealed. Unlike Custodian Exam No. 5040, there was no “practical oral” exam; rather, those who met the experience prerequisites were deemed eligible to be hired as Custodian Engineers. d.Custodian Exam No. 1074 Custodian Exam No. 1074 was administered in January 1993. Applicants who passed the exam were then given a further, practical written exam, which was graded on a pass/fail basis. The Department of Personnel then reviewed the “experience papers” of each applicant who had passed both the initial multiple-choice exam and the practical exam to determine if the applicant had the required amount of experience and/or education as advertised in the notice publicizing the exam; a negative finding in regard to experience papers could be administratively appealed. Those who met the minimum prerequisites were deemed eligible to be hired as Custodians. In support of its testing claims, the United States relied on a statistical analysis of pass rates compiled by Bernard R. Siskin, Ph.D. (“Dr. Siskin”) and Dr. Leonard Cupingood, Ph.D. (“Dr. Cupingood”); their results were as follows: _No. 5040 No. 8206 No. 1074 Passing white applicants 58.1% 85.1% 61.7% Passing black applicants_14.1%_50.0%_14,4% Passing Hispanic applicants_27.7%_71.1%_30.8% Pass rate for black applicants divided by pass rate for white applicants_24.3%_58.8%_23,3% Pass rate for Hispanic applicants divided by pass rate for white applicants_47.7%_83.5%_49.9% Disparity between the pass rate for white and black applicants (# of Standard Deviations)_13.85_5.14_12,51 Disparity between the pass rate for white and Hispanic applicants (# of Standard Deviations)_8.09_2.15_8,06 2. The Recruiting Claim The recruiting claim centered on the practices the Board used to recruit individuals for the exams; the United States contended that those practices primarily consisted of limited advertising and word-of-mouth referráis having a disparate impact on women and minorities. In support of this claim, the United States relied on the expertise of Orley Ashenfelter, Ph.D. (“Dr. Ashenfelter”), who deduced that the numbers of black, Hispanic, Asian and female applicants for each exam were statistically less than those who would be expected to take the exam. Dr. Ashenfelter recognized that the relevant comparator group should be composed of those members of the labor pool who possessed the requisite qualifications to take the exam; however, because such data were nonexistent, Dr. Ashenfel-ter used prior work experience as a proxy for those qualifications: First, he identified the actual applicants’ most common prior occupations, regardless of their race or gender, by reviewing their experience papers. He next used data prepared from the 1980 and 1990 decennial censuses by the Bureau of the Census (“Census Data”) to calculate the fraction of those engaged in those common occupations in New York City who were members of each of the protected classes; although the Census Data did not include data on previous work experience, it did include data on occupations. (as of the previous year), race, ethnicity, gender and place of work. Finally, he assumed that the expected fraction of the protected-class applicants was the average of their representation in these occupations weighted by the fraction of applicants who worked in these jobs. His results were as follows: _Exam No. 5040_ Estimated Representation Expected # of Actual # of in Labor Pool Applicants Applicants Z-Statistic (# of Standard Deviations) Blacks 24.9% 439 341 5.41 Hispanics 24.9% 439 218 12.16 Asians 3.2% 56 15 5.61 Females 15.9% 200 12.81 Exam No. 8206 Estimated Representation in Labor Pool Expected # of Applicants Actual # of Applicants Z-Statistic (# of Standard Deviations) Blacks 2.1% 91 41 4.94 Hispanics 17.6% 73 42 3.95 Asians 4.9% 20 2.76 Females 9.4% 40 6.01 Exam No. 1074 Estimated Representation in Labor Pool Expected # of Applicants Actual # of Applicants Z-Statistic (# of Standard Deviations) Blacks 21.4% 300 215 5.54 Hispanics 23.1% 324 203 7.66 Asians 6.0% 84 25 6.65 Females 14.7% 209 71 10.34 Although Dr. Ashenfelter found a statistically significant disparity between the expected and actual number of applicants for each group and for each exam, he offered no opinion as to any cause for the disparities. B. The Settlement Agreement Magistrate Judge Levy presided over pretrial proceedings, which commenced on October 3, 1997. As recounted by him, after “years of highly contentious discovery, entailing the retention of numerous experts by both sides, the production of thousands of pages of documents, the taking of approximately thirty depositions, many applications to the court regarding discovery disputes, and over three months of arms-length settlement negotiations[,]” United States v. New York City Bd. of Educ., 85 F.Supp.2d 130, 135 (E.D.N.Y.2000), vacated, 260 F.3d 123 (2d Cir.2001), the United States and the Board executed the Agreement on February 11, 1999, and jointly moved to enter it as a consent judgment. The Agreement contains many provisions that are not in dispute, such as requiring the Board to implement a comprehensive recruitment plan designed to increase the number of black, Hispanic, Asian and female applicants for custodial positions, see Agreement ¶ 18, and requiring the Board to consult with an expert designated by the United States before using written examinations to hire new custodial employees. See id. ¶ 28. At issue are the remedies granted to the beneficiaries in Paragraphs 13-16. As of the date of the Agreement, a group of 54 individuals had been identified as blacks, Hispanics, Asians or white females eligible for relief, and were listed in Appendix A of the Agreement; they all had previously been hired as provisional employees and although 43 still were, 11 had, by that time, acquired permanent status. The Agreement also offered relief to blacks, Hispanics, Asians and white females who might be hired as provisional custodial employees between the date of the Agreement and the date of anticipated court approval, provided they had taken one or more of the challenged exams; these individuals, together with those set forth in Appendix A, were defined in the Agreement as “Offerees.” See Agreement ¶ 4. Under Paragraph 13, all of the Offerees who were provisional employees would be granted permanent positions upon court approval of the Agreement. Under Paragraphs 14-16, the Offerees were granted retroactive seniority. As for those listed in Appendix A, if the Offeree did not take any of the challenged exams, the retroactive seniority date was the date that he or she was provisionally hired; if the Offeree did take one or more of the challenged exams, the retroactive seniority date was the earlier of (1) the date he or she was provisionally hired, or (2) a “median date” for the exam. For those who would be hired as Custodians after the Agreement, and hence were not listed in the Appendix, their retroactive seniority date would be the earliest provisional hire date for a Custodian listed in the Appendix (February 28, 1992); for those who would be hired as Custodian Engineers, their retroactivity seniority would date to the earliest provisional hire date in the Appendix for a Custodian Engineer (April 13, 1990). Furthermore, the Agreement provided that the award of retroactive seniority would “apply for all purposes for which seniority is applied except any applicable probation requirement.” Agreement ¶ 14. C. The Impact of the Settlement Agreement on Seniority A custodial employee’s seniority rights begin to accrue on the date of the employee’s appointment to a permanent position. Of the four Brennan intervenors, Morten-sen passed Exam No. 5040 and was appointed as a permanent Custodian on October 15, 1990. Brennan passed Exam Nos. 5040, 8206 and 1074, and was appointed as a permanent Custodian on or about March 24, 1997. Ahearn passed Exam Nos. 8206 and 1074, and was also appointed as a permanent Custodian on or about March 24, 1997. Spring passed Exam No. 1074 and was appointed as a permanent Custodian on June 23, 1997. Though Mor-tensen, Brennan and Ahearn were later appointed permanent Custodian Engineers, they retained the seniority rights that they had accrued as permanent Custodians. By contrast, the Offerees’ seniorities, as reflected in Appendix A, ranged from January 23, 1989, to February 12, 1996 for Custodians, and from April 13, 1990, to June 28, 1996 for Custodian Engineers, even though at the time the Agreement was executed in early 1999, 43 Offerees were still provisional employees not accruing any seniority. By virtue of the Agreement, all Offerees have greater seniority than Brennan, Ahearn and Spring, and 16 have greater seniority than Mor-tensen; consequently, as now explained, the Brennan intervenors’ rights to school building transfers, temporary care assignments, and layoff protection have been adversely impacted. 1. School Building Transfers The Board periodically affords permanent custodial employees the opportunity to bid for a transfer to an open school building by distributing to them a list of the schools that have vacancies; in the two years after the Board implemented the Agreement, it issued six such lists. A custodial employee’s salary depends on the school building to which he or she is assigned; therefore, a transfer may equate to a salary increase. The collective bargaining agreement (“CBA”) between the Board and the custodial employees’ union provides that transfers are governed by a combination of seniority and performance ratings. With limited exceptions, all permanent custodial employees are eligible to bid for a transfer to a different school upon completion of a one-year probationary period. Custodians and Custodian Engineers are separately divided into seniority bands. The custodial employee in the highest seniority band, provided that he or she has the requisite licensure for that particular school, is awarded the transfer. However, when there is more than one custodial employee in that seniority band, the one with the higher performance rating — defined as the average of the principal’s ratings over the preceding two years — will receive the transfer unless the rating differential is equal to or less than a quarter point; in that case, the one with the most seniority will be awarded the transfer unless the school’s principal vetoes the candidate or the candidate has received a performance rating of less than three. The CBA provides that “[seniority of all candidates shall be determined solely by time served [as a permanent employee] together with time served in the predecessor title for that level [as a permanent employee,]” CBA at 23-24; for example, an employee who served five years as a Custodian and ten years as a Custodian Engineer Level 1, the new title for Custodians, would have fifteen years of seniority- 2. Temporary Care Assignments The Board has a practice for filling temporary vacancies caused by illness, vacation or leave through Temporary Care Assignments (“TCA”) to custodial employees. Under the TCA program, a custodial employee is assigned to an additional school to attend to such vacancies; the employee then divides his or her time between the two schools (without having to work additional hours) and collects a portion of the management fee for the second school. The process for awarding TCAs is not set forth in the CBA. To be eligible for a TCA, a custodial employee must have attained permanent-employee status and completed the one-year probationary period. Each borough maintains three lists of those eligible for TCAs; one for Custodian Engineers, one for Custodians and one for Custodians with fifteen or more years of seniority. Eligible custodial employees are placed on the applicable TCA list for the borough in which they work in the order that they completed their probationary periods; therefore, placement on a TCA list typically correlates with the date an employee is appointed as a custodial employee, given that the date of completion of the probationary period occurs one year after the employee’s start date. When a temporary vacancy arises, the Board offers the TCA to the custodial employee who is at the top of the applicable list. After the completion of the TCA, the employee is placed on the bottom of the list. On average, an opportunity for a TCA arises once every two years and, on average, each TCA lasts two months. The award of permanent-employee status had a nominal effect on the Brennan intervenors since it increased the number of custodial employees on the TCA lists, thereby reducing the frequency with which a custodial employee obtains a TCA. Additionally, it affected the relative placement on the list of Mortensen, who was appointed as a permanent Custodian Engineer after the beneficiaries completed their one-year probationary periods. See Brennan Intervenors’ Reply Mem. of Points & Authorities in Further Support of their Motion for Partial Summary Judgment at 31 n. 11 (“The Brennan Interve-nors do not dispute that the Offerees should not lose their jobs.”); October 6, 2005 Oral Argument Tr. at 13 (“MR. ROS-MAN: It does come down to seniority, yes. The retroactive seniority agreements were not the only provisions that affected our seniority, our relative seniority.”). 3. Layoffs The New York Civil Service Law provides that layoffs of custodial employees are made “in the inverse order of original appointment on a permanent basis,” N.Y. Civ. Serv. L. § 80(1); a Custodian with more seniority has precedence over, and would be laid off later than, a Custodian Engineer with less seniority. Furthermore, the date of original appointment is the date that an individual is appointed to a permanent position provided that he or she provides “continuous service” in that position, see id. § 80(2) (defining “original appointment” as “the date of [the employee’s] first appointment on a permanent basis ... followed by continuous service ... on a permanent basis”); one who serves as a provisional employee nonetheless provides “continuous service” when he or she served in a permanent position immediately before and after. See id. (“[A] period of employment on a ... provisional basis ... immediately preceded and followed by permanent service ... shall not constitute an interruption of continuous service[.]”). Accordingly, for those Custodian Engineers who previously served as Custodians, their dates of original appointment are the dates that they were appointed as Custodians — not the later appointments as Custodian Engineers. See Arroyo Ex. 83 (Gladstein Dep. Tr.) at 31-32. The New York Civil Service Law speaks in terms of “permanent appointment,” not “seniority.” The parties, however, citing the language in the Agreement providing that the award of retroactive seniority applies for all purposes for which seniority plays a role, all agree that the award of retroactive seniority constructively altered the date of original appointment of the beneficiaries. D. The Fairness Hearing and Magistrate Judge Levy’s Memorandum and Order Paragraph 34 of the Agreement required the parties to request the Court to conduct a “fairness hearing” to consider all objections to the Agreement and “resolv[e] all disputes regarding the proposed conversion of Offerees from provisional to permanent status and granting of retroactive seniority, so that the Settlement Agreement may be entered by the Court.” On March 4, 1999, the Court authorized Magistrate Judge Levy to conduct the hearing, see United States v. New York Bd. of Educ., CV-96-374 (E.D.N.Y. Mar. 4, 1999), which took place on May 27, 1999. On June 2, 1999, the parties, pursuant to 28 U.S.C. § 636(c), conferred jurisdiction on the magistrate judge to render a final judgment. Prior to the hearing, the parties published notice of the Agreement in various newspapers and provided actual notice of the Agreement to more than 2,000 individuals, advising that any objections had to be filed by April 27, 1999. The notices resulted in objections by over 300 individuals, as well as a motion to intervene pursuant to Fed.R.Civ.P. 24(a) by the Brennan interve-nors. In a comprehensive decision rendered on February 9, 2000, Magistrate Judge Levy approved the Agreement and entered it as a consent judgment. See New York City Bd. of Educ., 85 F.Supp.2d at 133. Recognizing that “voluntary settlements in Title VII cases enjoy a presumption of validity,” especially “when the consensual agreement at issue has been reached by a federal government agency charged with protecting the public interest and seeing that anti-discrimination laws are enforced and violations remedied[,]” id. at 137, the magistrate judge identified the standard of review as “whether the proposed agreement is lawful, fair, reasonable, adequate, and consistent with the public interest,” id. at 136 (citing EEOC v. Hiram Walker & Sons, Inc., 768 F.2d 884 (7th Cir.1985), and Vulcan Soc’y v. City of New York, 96 F.R.D. 626 (S.D.N.Y.1983)), adding that where, as here, a settlement agreement implements race-conscious remedies, “the court reviewing the settlement must determine whether (1) there is an existing condition that serves as a proper basis for the creation of race-conscious remedies; and (2) the specific remedies of the compromise agreement are reasonable and lawful.” Id. (citing Kirkland v. New York State Dep’t of Corr. Servs., 711 F.2d 1117 (2d Cir.1983)). Statistically significant disparities led Magistrate Judge Levy to conclude that the United States had established a prima facie case of disparate-impact discrimination for each of the three exams, as well as for the recruitment for the exams. With respect to the testing claims, Magistrate Judge Levy set forth, for each exam, the pass rates of whites, blacks and Hispanics in the relevant labor market, and then found the differences in the pass rates for blacks and Hispanics, as compared to whites, to be statistically significant. With respect to the recruiting claim, Magistrate Judge Levy relied upon Dr. Ashenfelter’s “undisputed” and “unrebut[ted]” report. See id. at 143-45. Next, Magistrate Judge Levy determined that the Agreement was fair and reasonable since it averted “a complex, expensive, and lengthy trial[,]” id. at 146, and because the retroactive-seniority provisions were “entirely consistent with and clearly m[et] Title VII’s objective of eradicating discrimination.” Id. at 147. In that latter regard, he reasoned: [T]he relief is narrowly tailored, as only persons who are qualified for the positions of Custodian and Custodian Engineer will receive remedial relief, and no current permanent employee will be displaced. Indeed, the number of Offerees who will receive permanent positions is quite small in comparison with the number of individuals who may have been afforded relief had this matter proceeded to final adjudication. Plus, the Agreement does not establish any permanent numerical requirements or quotas; once the Offerees are converted to permanent status with retroactive seniority, the defendants will be required to recruit minority and female candidates actively and to hire on a nondiscriminatory basis, but will not be required to achieve or maintain any specific percentage of minorities or women in the relevant workforce. Id. at 147. Magistrate Judge Levy rejected the objections by “current permanent employees who allege[d] that retroactive seniority for the Offerees may adversely affect their relative seniority rights.... ” Id. at 147. In doing so, he relied on Dr. Siskin’s “unchallenged” opinion that the granting of retroactive seniority would have, at worst, a “limited” economic impact on custodial employees; the magistrate judge concluded, therefore, that “the impact of this relief on the incumbent [custodial employees] w[ould] be minimal and dispersed, and [thus,] the remedy [was] unquestionably legal and reasonable.” Id. at 149-51. Additionally, Magistrate Judge Levy denied the proposed Brennan intervenors’ intervention motion, rejecting their argument that they had an absolute right to intervene because they were adversely affected by the Agreement. The crux of his reasoning was his belief that the Offerees were basically being restored to the employment rights they would have enjoyed if not for the Board’s unlawful discriminatory practices. See id. at 155. Following Magistrate Judge Levy’s approval, the Board notified 63 Offerees that they were entitled to relief under the Agreement. Each Offeree had the option to consent to the Agreement or to pursue claims against the Board by withholding consent. See Agreement ¶ 40. Fifty-nine of the Offerees consented, one declined, and three resigned. See Dec. 23, 2004 Decl. of Emily Martin, Ex. 54 (Apr. 8, 2002 Decl. of James Lonergan) ¶ 7. According to a “Relief Chart” prepared by the United States, 31 of the accepting Of-ferees were awarded relief under the recruiting claim; of that group, 12 received relief based on race or national origin, and 19 based on gender. See Nov. 15, 2004 Statement of Michael E. Rosman, Ex. 54 (Relief Chart for United States Response to Contention Interrogatories) (“Relief Chart”). The remaining 28 were awarded relief under the testing claims, all based on their race or national origin. See id. The Board awarded the consenting Of-ferees relief under the Agreement on the dates that it received the Offerees’ acceptances, which ranged from February 22 to March 14, 2000; thus, accepting Offerees who were still provisional employees received permanent-employee status sometime in between those two dates. See id., Ex. 50 (U.S. v. Board of Ed. Relief Granted). The Board thereafter fully implemented the Agreement. E. The Second Circuit’s Remand The proposed Brennan intervenors appealed the denial of their intervention motion. On August 3, 2001, the Second Circuit vacated Magistrate Judge Levy’s consent judgment, holding that the proposed Brennan intervenors’ intervention motion should have been granted. See New York City Bd. of Educ., 260 F.3d at 129. In doing so, it noted that “where a proposed intervenor’s interests are otherwise unrepresented in an action, the standard for intervention is no more burdensome than the standing requirement, and that appellants’ interest in the underlying action and the Agreement is for purposes of standing identical to that of the Offer-ees.” Id. at 131 (citation omitted). Commenting that the magistrate judge’s ruling had “put the cart before the horse” by holding that the proposed Brennan in-tervenors’ interest was insufficient because their employment status and seniority rights “were presumptively obtained as the result of discriminatory practices[,]” id. at 129 (emphasis added), the court explained that “while the presumption of validity of a settlement agreement may shift the burden of showing invalidity [of the Agreement] to non-party objectors, it carries no weight in the determination of whether an interest is sufficient for intervention under Rule 24(a).” Id. at 129-30. In that regard, the circuit court explained that Rule 24(a) “requires not a property-interest but, rather, ‘an interest relating to the property or transaction which is the subject of the action[,]’ ” id. at 130 (quoting Rule 24(a)(2)), and held that the proposed Brennan intervenors possessed such an interest because they claimed that the Agreement was “not justified by any demonstrated past discrimination and that their loss of relative seniority as a result of the Agreement is itself impermissible discrimination.” Id. at 130. The circuit court also noted that the proposed Brennan intervenors’ interest in their seniority was “cognizable under Rule 24(a)(2)” because “the effects of a loss of relative seniority rights should not be regarded as too speculative and remote to justify intervention save, perhaps, in a case where a concrete effect on an employee is impossible.” Id. at 131-32. The court explained, as an example, how seniority would adversely affect the proposed Brennan intervenors’ ability to transfer: If a [Beneficiary] obtains a desirable transfer, all comparable employees with more seniority than [a Brennan interve-nor] but less than that of the [Beneficiary] may seek transfers at the next level of desirability, thereby foreclosing the particular appellant. The effects of the loss of relative seniority are not easily forecast and may not even be perceived as they happen. To take an alphabetical example, if employee Z is moved up to just above employee A, then the effects of that move on employee T will turn on the preferences of employees A through S. Where transfers among buildings are concerned, size (and therefore salary) will be important in determining whether an employee will exercise seniority to seek a transfer, but some employees will also be motivated by other factors, such as location. If employee Z secures a transfer, a chain reaction will begin with various openings and transfers occurring based on a variety of decisions by A through S. After all is played out, employee T may well find it impossible to reconstruct what transfer might have been available to him/her but for the moving-up of employee Z. Id. at 132. The circuit court declined to rule on the merits of Magistrate Judge Levy’s consent judgment because the proposed Brennan intervenors had “argued convincingly that they were denied the opportunity to develop a record that would have permitted a full and appropriate ruling on the fairness and constitutionality of the Agreement.” Id. at 133. Accordingly, the court acknowledged that “the best course [was] to remand the case to allow for a full development of the record.” Id. F. The Post-Remand Interventions 1. The Brennan Interventions After the case was remanded, the Brennan intervenors, now having attained that status as a consequence of the circuit court’s decision, filed a complaint in intervention asserting that the challenged provisions violated Title VII and the Fourteenth Amendment; the United States and the Board moved to dismiss the complaint. On February 28,- 2002, before that motion was fully briefed, Magistrate Judge Levy, with consent from the United States, the Board and the Brennan intervenors, approved the Agreement except for the challenged provisions (i.e., Paragraphs 13-16). Subsequently, Magistrate Judge Levy noted that the Brennan intervenors had maintained that “they ha[d] no intention of attempting to establish liability against any party ... and that they d[id] not ... seek any remedy in this case other than a judgment denying approval of [the challenged provisions]”; consequently, he ruled that “[t]o the extent that [the Brennan intervenors’ complaint in intervention] could be interpreted as asserting legal claims against any party, they are stricken” and that “[t]he Intervenors’ pleading w[ould] be redesignated as ‘Objections in Intervention,’ and ... w[ould] not require a responsive pleading from either the United States or the [Board].” United States v. New York City Bd. of Educ., CV-96-374, slip op. at 11-12 (E.D.N.Y. Sept. 30, 2002). The Brennan intervenors timely objected to Magistrate Judge Levy’s ruling; they also invoked their rights as parties to the action to object to the magistrate judge’s jurisdiction to render a final determination, thereby placing the litigation back in the hands of the Court. 2. The Caldero and Arroyo Interventions In April 2002, subsequent to the Second Circuit’s remand, the United States decided that it would no longer defend the lawfulness of the Agreement’s remedies for those beneficiaries who had not taken any of the challenged exams. On June 17, 2003, the parties entered into a stipulation, “so ordered” by the Court, permitting intervention by the Caldero intervenors, being “a group of 22 beneficiaries who received permanent appointments and/or retroactive seniority under the Agreement pursuant to the United States’ recruiting claim.” United States’ Mem. of Points and Authorities in Response to this Court’s Order of July 20, 2004 (“United States Mem. of Law”) at 6. Then, in September 2003, the United States decided that it would no longer defend the grant of retroactive seniority provided to the beneficiaries who took and failed the exams unless it was “make-whole” in nature. The Court consequently granted intervention to the Arroyo intervenors, see Minute Entry of July 9, 2004, “a group of nine beneficiaries who received permanent appointments and/or retroactive seniority under the Agreement pursuant to the United States’ testing claim.” United States’ Mem. of Law at 6. G. Post-Remand Challenges By The Brennan Intervenors 1. Challenges to the Reputed Protected Class According to the Brennan intervenors, four of the beneficiaries — Kevin LaFaye, Steven Lopez, and brothers Anthony and Nicholas Pantelides — were not Hispanic because, although they had at least one parent or grandparent of Hispanic origin, they lacked any strong cultural or linguistic ties to that group. Additionally, the Brennan intervenors contended that Ciro Dellaporte (“Dellaporte”), one of the 12 males who received relief under the recruiting claim, was not a member of any protected class; although identified as Hispanic in the Board’s records, Dellaporte was of Italian ancestry and had no cultural or linguistic ties to a Spanish-speaking country. LaFaye’s father was born in Puerto Rico, as was the mother of the Pantelides brothers; one of Lopez’ grandparents was born in Mexico. None of the four spoke Spanish; however, Spanish was spoken in LaFaye’s childhood home and the Pantel-ides brothers’ mother generally spoke Spanish to their maternal grandmother. By contrast, none of Dellaporte’s parents or grandparents was born in a Hispanic country; moreover, he never identified himself as Hispanic. Eventually, the Board realized that Dellaporte was not entitled to relief under the Agreement. See Defs.’ Mem. of Law in Opp. to Brennan Intervenors’ Objections at 63 n. 26 (“Defendants do not defend [Dellaporte’s] appointment as part of the remedy in this case.”). 2. Challenges to the Testing Claims a. Proof of Discrimination The Brennan intervenors concede that Exam Nos. 5040 and 1074 had a disparate impact on blacks and Hispanics. They further concede that Exam No. 8206 had a disparate impact on blacks. They dispute, however, that it had a disparate impact on Hispanics; if correct, Luis Torres, the one Hispanic allegedly adversely affected by that exam, see Relief Chart, should not have received any relief. The Brennan intervenors’ challenge regarding Exam No. 8206 was based on the opinion of Dr. Phillip Bobko (“Dr. Bobko”), an expert retained by the Board at a time when it was disputing the United States’ claims. According to Dr. Bobko, there was not a statistically significant disparity for Hispanics on Exam No. 8206 when unqualified test-takers (i.e., those who lacked the minimum qualifications based on a review of the applicants’ experience papers) were removed from the population. Because the Board initially made qualification determinations only for test-passers, Dr. Bobko had to derive the number of unqualified test-failers based on data generated from a post-hoc review conducted by the Board. Dr. Bobko calculated that when unqualified test-takers were removed, the pass rate of Hispanics was 89.3% of the pass rate of whites. Drs. Siskin and Cupingood opined that the Board’s post-hoc review was not a “credible” basis for determining which test-takers were unqualified because, unlike test-passers, test-failers could not administratively appeal an adverse determination. Jan. 10, 2005 Deck of Charles E. Leggott, Ex. 22 (Drs. Siskin and Cupin-good’s May 1, 2003 Comments on Dr. Scharf s Report) at 4. Instead, Drs. Siskin and Cupingood calculated pass rates for a population composed of qualified test-passers (since the number of unqualified test-passers was known) and all test-failers (since the number of unqualified test-fail-ers was unknown); for this population, the pass rate of Hispanics was 77.7% of the pass rate of whites, a disparity of 2.51 standard deviations. In addition, Drs. Siskin and Cupingood calculated pass rates based on three alternative assumptions: (1) the percentage of unqualified test-failers equaled the percentage of unqualified test-passers; (2) the percentage of unqualified test-failers was twice the percentage of unqualified test-passers; and (3) the percentage of unqualified test-failers was three times the percentage of unqualified test-passers. Given those assumptions, the pass rate of Hispanics was, respectively, 82.5%, 88.4%, and 95.2% that of whites, resulting in disparities of between 1.95 and 0.37 standard deviations. b. Non-Victims of Discrimination The Brennan intervenors acknowledge that seven of the beneficiaries were victims of discrimination under the testing claims and received appropriate make-whole relief: Lloyd Bailey, Joseph Christie, Belfield Lashley, Gilbert Rivera, Peter Robertin, Felix Torres and Mayra Zephri-ni (Cintron). They contend, however, that the beneficiaries that fall into the following categories received relief under the Agreement that went beyond what they would have received but for discrimination: First, some of the beneficiaries who were afforded relief under the testing claim took and passed one of the challenged exams, but failed other parts of the hiring process. For example, the Brennan intervenors claim that Nicholas Pantelides passed the challenged exam but failed the associated practical exam, and that Stephen Lopez passed the challenged exam but was rejected as a result of his experience papers. If true, these individuals would not qualify as victims of discrimination because they passed the exam that allegedly discriminated against them. Second, some black and Hispanic beneficiaries who were afforded relief under the testing claims passed the first challenged exam that they took, and were hired. If so, those individuals would not be victims of discrimination because they passed the exam that allegedly discriminated against them; furthermore, the Brennan interve-nors contend that awarding them retroactive seniority to a date earlier than their date of hire put them in a position better than they would have been in but for discrimination. Third, some of the beneficiaries who were afforded relief under the testing claims would have failed other parts of the hiring process even if they had passed the exam. This contention was based on the Board’s post-hoc inquiry of the beneficiaries’ qualifications. Awarding relief to individuals who would have failed other parts of the hiring process would go beyond make-whole relief because it would put them in positions better than they would have been in but for the discrimination. Finally, some of the beneficiaries were awarded retroactive seniority from the date they were hired as provisional hires, as opposed to the median hire date, even though their provisional hire date occurred before any individual was hired from the eligibility list for the discriminatory exam. For example, the Brennan intervenors contend that Jose Casado took and failed Exam No. 1074, but was hired as a provisional Custodian on June 16, 1995; the first person hired off the list associated with Exam No. 1074 had a reporting date of March 27, 1997 (almost two years after Casado was hired); nonetheless, Casado was afforded relief under the testing claims, and received a retroactive seniority date of June 16, 1995 — before he could have been hired but for discrimination (i.e., March 27, 1997). If true, awarding such relief put those individuals in positions better than they would have been in but for discrimination. 3. Challenges to the Recruiting Claim a. Proof of Discrimination After the circuit court’s remand, the Brennan intervenors retained their own expert, William J. Carrington, Ph.D. (“Dr. Carrington”), to review Dr. Ashenfelter’s report. In Dr. Carrington’s report, he noted that there were two alternative explanations for the disparity found by Dr. Ashenfelter: (1) the significant minimum qualifications required (e.g., females were significantly under-represented in the occupations that Dr. Ashenfelter identified as the most common ones among applicants), and (2) different interests in Custodial Positions; he also noted that Dr. Ashenfelter did not account for English-language proficiency. Additionally, Dr. Carrington posited that the statistics might not be reliable because of the small sample size of the census data for certain occupations, as well as temporal mismatches (i.e., the decennial census data yielded only data from 1980 and 1990 whereas Dr. Ashenfelter required data from the non-census years in which the challenged exams were administered— 1985, 1989 and 1993). Thereafter, the Board retained an expert, Amy Henderson, Ph.D. (“Dr. Henderson”), to review Dr. Carrington’s report. Dr. Henderson noted that Dr. Carrington did not “offer [any] new statistical evidence” and “never testfed] the implications of his criticisms.” Dec. 23, 2004 Decl. of Emily Martin, Ex. 34 (A Critique of William J. Carrington’s Report of Findings) at 2. For example, with regard to Dr. Carrington’s claim that English proficiency might have accounted for the discrepancy between actual and expected test-takers, Dr. Henderson tested that claim against the data for Exam No. 8206 and found that English proficiency was not a significant factor. The Caldero intervenors also retained an expert, Joyce P. Jacobsen, Ph.D. (“Dr. Jacobson”), to review the reports of Drs. Ashenfelter and Carrington. Dr. Jacobsen concluded that Dr. Ashenfelter’s approach was “reasonable” because it used the best available data, and that the results were “statistically significant[,] supporting the hypothesis of a systematic shortfall in the proportions of minorities and women applying for [custodial positions].” Dec. 14, 2004 Decl. of Joyce P. Jacobsen ¶ 12; id., Ex. 1 at 2. With regard to Dr. Carrington’s report, like Dr. Henderson, Dr. Jacobsen concluded that it was “unconvincing and d[id] not provide alternative calculations.” Id. ¶ 12. In addition to challenging the statistical evidence of disparities, the Brennan inter-venors also argue that there was no evidence that the disparities were caused by the Board’s recruiting practices. In this regard, they rely on information provided by the Board during discovery: Each exam was published in The Chief, the City’s civil-service newspaper. In addition, the Board’s Office of Recruitment distributed “Exam for Jobs” booklets to agencies and organizations on its mailing lists; during the relevant time periods, the list comprised 1,300 to 3,000 persons and organizations, including “libraries, colleges, high schools, community-based organizations, community boards throughout [New York] City, human resources administrations, Training Assessment and Placement centers, organizations serving the disabled communities such as the Federation of Employment and Guidance Services, certain trade schools, and youth organizations throughout the City such as YMCA and Boys Clubs.” Nov. 15, 2004 Statement of Michael E. Rosman, Ex. 26 (Defs.’ Responses and Objections to the Caldero In-tervenors’ First Interrogatories to Defs.) at 4. The Board also posted notices within its own agencies. See id., Dep. Exs. (Ro-senfeld Dep. Tr. at 13, 33-34). b. Non-Victims of Discrimination The Brennan intervenors maintain that some of the Asian and female beneficiaries who were afforded relief under the recruiting claim took the first challenged exam for which they were qualified. They reason that those individuals who learned about the first exam and took it did not suffer from any recruiting discrimination; those individuals who took the first exam for which they were qualified, but received retroactive seniority to an earlier date, were awarded relief that went beyond make-whole relief because it put them in positions better than they would have been in but for discrimination. H. Issues Briefed On July 20, 2004, the Court issued an order setting a briefing schedule and instructing the parties to address four issues: (1) Can paragraphs 13-16 of the settlement agreement be entered as a consent judgment? (2) If so, what legal standard governs judicial approval or disapproval of paragraphs 13-16? (3) If not, what legal standard governs the review of the legality of the benefits awarded pursuant to paragraphs 13-16? (4) Does the evidence meet the applicable standard? Order of July 20, 2004, at 2. These issues were fully briefed by May 2005, and the Court held oral argument on October 6, 2005. DISCUSSION Preliminary Matters A. Brennan Intervenors’ Status Magistrate Judge Levy improperly relegated the Brennan intervenors to the status of objectors-in-intervention, rather than parties to the litigation, and redesignated their complaint as “Objections in Intervention”; therefore, he ruled that responsive pleadings would not be required. Given that the Brennan intervenors seek to enjoin the implementation of those parts of the Agreement affecting their seniority rights, and the circuit court’s recognition that they had standing to do so, they are entitled to the status of full, unqualified parties to the litigation. Cf. McNamara v. City of Chicago, 138 F.3d 1219, 1221 (7th Cir.1998) (“A plaintiff who would have been no better off had the defendant refrained from the unlawful acts of which the plaintiff is complaining does not have standing under Article III of the Constitution to challenge those acts in a suit in federal court.”). B. Effect of the Summary Judgment Motions on Action II That the United States and the Board have not until now had an opportunity to interpose an answer to the Brennan intervenors’ complaint does not preclude the Court from addressing the legality of the Agreement; the parties have moved for summary judgment regarding its validity, and it is well-settled that issue need not be joined as a predicate for seeking summary judgment. See Fed.R.Civ.P. 56 (“A party seeking to recover upon a claim ... may, at any time after the expiration of 20 days from the commencement of the action ..., move ... for a summary judgment in the party’s favor upon all or any part thereof.” (emphasis added)). Even though the summary judgment motions are directed only to Action I, the focused issue they address — the legality of the Agreement — is common to both actions, which have been consolidated under Fed R. Civ. P. 42(a). The central purpose of that rule is to give the court broad discretion to manage its docket “so that the business of the court may be dispatched with expedition and economy while providing justice to the parties.” 9 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2381 (2d ed.1995). The Court will exercise that discretion since resolution of the summary judgment motions in Action I applies with equal force to Action II; it will also best serve the interests of all parties, as well as the effective and expeditious administration of justice, to facilitate the end of this decade-long litigation. C. Protected Class The Brennan intervenors claim that five of the 59 beneficiaries are not members of a protected class because each lacks the requisite cultural or linguistic ties to qualify as Hispanic. The Economic Employment Opportunity Commission (“EEOC”) “defines national-origin discrimination broadly as including, but not limited to, the denial of equal employment opportunity because of an individual’s, or his or her ancestor’s, place of origin; or because an individual has the physical, cultural or linguistic characteristics of a national origin group,” 29 C.F.R. § 1606.1 (emphasis added); therefore, an ancestral place of origin is sufficient to establish membership in a protected class. Under the EEOC’s definition of national origin, Dellaporte did not qualify because the Board, which no longer defends his appointment, improperly listed him on its records as Hispanic; plainly, he is of Italian ancestry and has no Hispanic cultural or linguistic ties. He is, therefore, not entitled to any benefits under the Agreement. However, the remaining four — La-Faye, Lopez and the Pantelides brothers— do qualify because LaFaye’s father and the Pantelides’ mother were born in Puer-to Rico, and Lopez’s grandfather was born in Mexico. Title VII Consistent with the doctrine of constitutional avoidance, the Court will first determine whether the Brennan intervenors’ Title VII rights have been violated before addressing their Fourteenth Amendment claims. See Bechtel v. Competitive Technologies, Inc., 448 F.3d 469, 476 (2d Cir.2006) (“A fundamental and long-standing principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.” (citations and quotations omitted)). A. Statistical Basis For the Affirmative-Action Plan Both disparate treatment and disparate impact claims are cognizable under Title VII. See Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971) (explaining that Title VII “proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation”); Robinson v. Metro-North Commuter RR Co., 267 F.3d 147, 160 (2d Cir.2001) (“[Wjhere the inquiry in a pattern-or-practice disparate treatment claim is focused on determining the existence of discriminatory intent, disparate impact claims are concerned with whether employment policies or practices that are neutral on their face and were not intended to discriminate have nevertheless had a disparate effect on the protected group.”). By pursuing its Title VII disparate-impact claims against the Board, the United States had the burden of establishing a prima facie case that the Board engaged in “a particular employment practice that cause[d] a disparate impact on the basis of race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(k)(1)(A)(i). To make that showing, it had to “(1) identify a policy or practice, (2) demonstrate that a disparity exists, and (3) establish a causal relationship between the two.” Robinson, 267 F.3d at 160. A disparate impact and its causal relationship to an employment practice is usually established by statistical evidence, which (1) must reveal “that the disparity is substantial or significant,” and (2) must be “of the kind and degree sufficient to reveal a causal relationship between the challenged practice and the disparity.” Id. (citations omitted). The employer can rebut that prima facie burden “by introducing evidence to show that either no statistically significant disparity in fact exists or the challenged practice did not cause the disparity.” Id. at 161. Alternatively, it may refute the requisite causal connection by “demonstrating a business justification for the policy or practice.” Id. Seeking to satisfy its prima facie burden in its Title VII action challenging the Board’s employment practices, the United States adduced significant statistical evidence. Although the litigation was settled before an adjudication as to whether the United States had sustained its burden, these statistics serve to satisfy the requisite evidentiary showing by the Board in the face of the Brennan intervenors’ own Title VII claim challenging the Agreement, except as it relates to the testing claim involving Exam No. 8206. As the Supreme Court made clear in Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987), drawing upon its prior decision in United Steelworkers of America v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979), an employer seeking to justify the adoption of an affirmative-action plan in the face of a challenge under Title VII need not point to its own prior discriminatory practices, nor even to evidence of an “ ‘arguable violation’ on its part[,]” 480 U.S. at 630, 107 S.Ct. 1442; rather, “it need point only to a ‘conspicuous imbalance ... in traditionally segregated job categories,’” so long as the plan does not “unnecessarily trammel” the interests of those adversely affected by the plan. Id. at 630, 638, 107 S.Ct. 1442. Johnson equated “conspicuous imbalance” with “manifest imbalance,” and held that “in determining whether an imbalance exists that would justify taking sex or race into account, a comparison of the percentage of minorities or women in the employer’s work force with the percentage in the area labor market or general population is appropriate in analyzing jobs t