Full opinion text
MEMORANDUM OPINION KEADY, Chief Judge. In these consolidated complex employment discrimination actions, private plaintiffs and the United States challenge procedures of Mississippi public welfare officials for the selection of three classes of employees as racially discriminatory in violation of federal regulatory, statutory, and constitutional law. The issues of liability and relief were bifurcated on December 6, 1976, and, commencing July 5, 1978, District Judge Orma R. Smith conducted a ten-day nonjury trial on the liability phase, during which extensive testimony and voluminous documentary exhibits were received in evidence. The actions were transferred to Chief Judge William C. Ready on October 23, 1981, and are finally ripe for decision. Accordingly, the court hereby submits its findings of fact and conclusions of law pursuant to Rule 52(a), F.R.Civ.P. FINDINGS OF FACT GC 73-5 Private plaintiffs' action was first instituted on January 15, 1973. After the filing of the second amended complaint on August 29, 1975, and entry of numerous court orders, the action now stands as follows. Five plaintiffs, Dorothy Walls, Deborah Gambrell, Marlene Johnson, Julia Collier, and Emily Butler O’Bryant, all members of the black race, have been certified under Rule 23, F.R.Civ.P., to represent a class composed of “all black persons who did, or will in the future, apply for employment in the position of Clerk (any grade), Eligibility Worker, or Social Worker (any grade) in the Mississippi State Department of Public Welfare or county departments of public welfare and who have been, or in the future may be, denied such employment or otherwise discriminated against in hiring or terms and conditions of such employment on account of race or color.” Defendants include the Mississippi State Department of Public Welfare (hereinafter Department or MSDPW), its Commissioner and state board members, the Mississippi Classification Commission (formerly the Merit System Council; both agencies are hereinafter the state merit system agency), and the Leflore County Welfare Department and its director. The latter two defendants are certified to represent defendant classes of “all county departments of public welfare in the State of Mississippi and the County Directors of all such Departments.” In addition, as required by order of the court dated August 11, 1975, plaintiffs sue as parties necessary for just adjudication the United States, United States Department of Health and Human Services (formerly Department of Health, Education and Welfare) and its Secretary, United States Department of Agriculture and its Secretary, and the United States Civil Service Commission (formerly Office of State Merit Systems) and its Chairman. No relief, however, is sought against the federal defendants. All individual defendants are sued in official capacities only. Private plaintiffs generally challenge three aspects of the Department’s employment selection procedure: (1) use of minimum educational qualifications for positions of Clerk/Typist (high school degree or equivalent), Eligibility Worker (60 hours college credit), and Social Worker (college degree); (2) requirement of scoring at least 50% on allegedly unvalidated and invalid written examinations as a prerequisite to being considered for positions of Clerk/Typist, Eligibility Worker, and Social Worker; and (3) the manner in which individuals meeting the above two requirements are selected for employment from “certificates of eligibles.” According to the complaint, these employment procedures discriminate against blacks in violation of 42 U.S.C. § 1981, 42 U.S.C. § 1983, Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.), and the thirteenth and fourteenth amendments to the United States Constitution. Plaintiff Dorothy Walls, spouse of counsel for private plaintiffs Johnnie Walls, meets the minimum educational qualification for positions of Eligibility Worker and Social Worker and took and passed both written tests in August 1971. Although interviewed and considered for employment several times, Walls was not offered a Department position until after this action was filed. Walls filed EEOC charges of discrimination on August 9,1972, and October 12, 1972, and received right-to-sue letters on February 5,1973, and June 18,1973. Plaintiff Deborah Gambrell possesses the minimum educational requirements for Eligibility Worker and Social Worker and took and passed the Eligibility Worker examination on October 16, 1971. Although interviewed and considered for employment more than 10 times, Gambrell was not offered a position until after this action was filed. Gambrell filed an EEOC charge of discrimination on October 12, 1972, and received right-to-sue letters on February 5, 1973, and June 18, 1973. Plaintiff Marlene Johnson meets the minimum educational requirements for Eligibility Worker and Social Worker and took and passed a written examination in October 1968, but did not score sufficiently high on that examination to be considered for employment. Plaintiff Julia Collier possesses a high school degree and took and passed the Clerk/Typist examination on February 27, 1973. Although interviewed and considered for employment, Collier was never hired by the Department. Plaintiff Emily Butler O’Bryant meets the minimum educational requirements for Eligibility Worker and Social Worker and took and failed both examinations in October 1971. Consequently, O’Bryant was never considered for employment. State defendants assert a cross-claim against the Secretaries of the Departments of HHS and Agriculture and the Chairman of the Civil Service Commission, alleging that federal defendants required and/or encouraged use of the challenged employment procedures and further assured the state that the contested selection devices meet all federal regulatory, statutory, and constitutional requirements. The state officials seek injunctive relief against the federal Department heads requiring them to furnish valid examinations or technical, financial, and advisory assistance to enable the state to establish valid minimum job requirements. Furthermore, the state defendants seek to require cross-defendants to withdraw any federally-imposed selection devices found to be unlawful. GC 75-108 The action brought by the United States was filed on August 28, 1975, against the Mississippi State Department of Public Welfare, its Commissioner and board members, and the Mississippi State Classification Commission and its director, and generally presents the same three challenges asserted by private plaintiffs. A counterclaim filed against the United States was dismissed by the court on July 26, 1976. As defensive matter, however, defendants contend that the government is estopped from asserting its claims. After the filing of the United States action, defendants, in November 1975, suspended utilization of written tests pending the outcome of these lawsuits. Background The Mississippi State Department of Public Welfare is the state agency created to administer within Mississippi the federal grant-in-aid programs established in the late 1930’s by the Social Security Acts and amendments thereto. See Miss.Code Ann. § 43-1-1 et seq. (1972). The various social service programs administered by the Department include aid to dependent children, food assistance, and adoptions. The Department is responsible for, inter alia, providing protective custody for abused children, day care services for children of welfare clients, background investigations relative to adoptions, elderly feeding programs, counseling for unwed mothers, and family planning. At the time of trial, the Department had a budget of approximately $360 million and employed approximately 3,600 persons, about 80% of whom were employed in the contested positions of Clerk/Typist, Eligibility Worker, and Social Worker. The food assistance program alone provides aid to approximately 350,000 persons. Of the Department’s total number of clients, about 70% are black. The Department is governed by a state board of public welfare consisting of five members appointed by the governor with advice and consent of the Senate. § 43-1-3. The state board appoints a Commissioner of Public Welfare who serves at the board’s pleasure and is responsible for the general administration of the Department. Dr. Robert L. Robinson served as Commissioner from April 24, 1972, until May 25, 1973, when Max M. Cole assumed the duties of the office. On June 17, 1976, Cole became deputy commissioner for operations and was succeeded in the Commissioner’s post by Fred W. St. Clair, who held the position at the time of trial. The Department has five regional offices throughout the state, located in Grenada, Brandon, Hattiesburg, Brookhaven, and Pontotoc. Most of the Department’s employees, however, are employed in its 84 county offices. Approximately 75% of the Department’s funding is received from federal sources. Receipt of these funds is contingent upon federal approval of state plans for management and distribution of the funds in compliance with federal regulations. Accordingly, each year the Department submits to the federal grantor agency (at all times pertinent hereto, HEW and the Department of Agriculture) for its approval a plan outlining its proposed use of federal monies. One of the federal conditions for funding is employment of individuals based on a merit system of personnel selection. The Department’s implementation of its merit system is aided by the state merit system agency, an eight-member body ultimately responsible for enforcement of the merit system of employment required of the Department and other federally funded state agencies. George W. McCarthy served as the state merit system’s director from 1964 until 1974. The Civil Service Commission supervises the state merit system agency and the Department to ensure compliance with federal merit regulations. The challenged selection process may be briefly summarized. Applications for employment are submitted to the state merit system, which conducts examinations throughout the state. Individuals satisfying all job prerequisites, i.e., possessing minimum educational qualifications and scoring 50% or better on the written examination, are ranked by the state merit system according to test score (i.e., person scoring the highest is first) on a register of persons eligible for the position in the county or counties where the applicant has indicated availability for employment. The ranking of names is required by the federal standards. The personnel department is notified by the county director or department head of a vacancy and requests the state merit system to issue a “certificate of eligibles” which, prior to 1976, consisted of the names of the top five individuals on the register for the particular position, ranked according to test score. After interviewing the applicants, the county director returns the certificate of eligibles, along with comments and usually a recommendation as to who should be employed, to the Commissioner of Public Welfare, who makes the official appointment. The Commissioner is ultimately responsible for the appointment of all Department personnel except the 84 county directors, who are appointed jointly by the Commissioner and Governor. See § 43-1-9. A recommendation by the county director for appointment of an individual is accorded weight by the Commissioner in making the appointment. At time of trial, the Department had never employed a black as county director. Affirmative Action and Recruitment Efforts Prior to 1971, the Department had a history of employing few, if any, blacks as clerk/typist, social welfare worker or eligibility worker. In recognition of that fact, at trial former Commissioners Robinson and Cole, as well as then Commissioner St. Clair, testified as to the initiation of affirmative action programs at the Department during their respective tenures. Robinson testified that when he took office in April 1972, he “could see by looking around that there wasn’t [sic] enough blacks on the staff and ... set about to do something about it.” The Department’s first affirmative action plan was drafted shortly thereafter and forwarded to HEW which, in a June 1 letter, commented on what it perceived as “real weaknesses,” and made several recommendations. A formal plan, consisting of a two-page memorandum, was circulated on June 21, 1972, to all staff members, who were told that the Department must emphasize a “policy of nondiscrimination within the practice of recruitment, training, promotion, retention, or any other personnel action.” The plan, which was to be implemented by county directors at the county level and the directors of personnel and training at the state level, provided that the Department, in conjunction with the state merit system office, would widely publicize recruiting by sending notification of examination dates to newspapers, state employment offices, radio stations, television stations, and junior and senior colleges. In addition, each county director was to maintain a mailing list of “individuals and organizations to whom receipt of notice of examination would result in the potential applicants being informed of such examinations.” Mailing lists were to be forwarded to the state merit system for its use in all agency recruitment efforts. The affirmative action program also provided that all Department and state merit system recruitment literature would indicate that the agency is “an equal opportunity employer.” Since county directors were responsible for advertising job vacancies, the means employed varied, some directors utilizing only “word-of-mouth” efforts. County directors and department heads were directed to “utilize suitable judgment in the selection of applicants, based on factors closely related to the actual job itself.” The 1972 plan was submitted to HEW with an attachment which stated in part that the Department, in conjunction with the state merit system, would “review all job specifications with particular emphasis on minimum requirements ... to insure that there are no requirements which would tend to eliminate any person who has competency to perform the duties from examination or consideration.” Although HEW approved the plan in November 1972, an HEW official wrote Robinson on March 29, 1973, expressing concerns with implementation of the program and suggesting revisions. The letter noted that the weaknesses pointed out in HEW’s June 1, 1972, communication had not been addressed in the plan. HEW also expressed concern “about any real effort to investigate the reason for the number of complaints for the various local departments,” and recommended: 1. appointment of a person to devote at least part time to development, implementation, and monitoring the affirmative action program; 2. development of a method of internal processing of complaints; 3. revision of the plan in accordance with HEW’s June 1972 letter; 4. local and state implementation of the plan; and 5. incorporation of the plan’s principles in on-going training programs. HEW’s suggestions were incorporated in a revised affirmative action plan dated May 10, 1973, which set a goal of employing thirty minorities between July 1, 1973 and December 31, 1973; established an internal mechanism for handling applicant and employee complaints of discrimination; stated that training programs would be available to all employees regardless of race and that such programs would include in their agendas the affirmative action program; and assigned to the Department’s Deputy Commissioner for Administration a part-time Equal Employment Opportunity Officer to coordinate the affirmative action plan, collect statistical and informational data concerning implementation of the plan, work with various Department divisions to ensure successful operation of the plan, and advise the Deputy Commissioner on possible revisions and updating of the plan. Robinson emphasized the affirmative action plan at monthly meetings with county directors. Director of Personnel Margaret Jackson, who in June 1972 had refused to allow NAACP officials to review the affirmative action plan or discuss it with her, was given the responsibility of coordinating the program at the state level. Robinson was of the opinion that a significant increase in black employment would take from three to five years. During the first year of the Department’s affirmative action plan, i.e., from July 1972 to June 1973, blacks were employed in 20 of 285 Eligibility Worker appointments (7%); 19 of 206 Clerk/Typist appointments (9%); and 2 of 24 Social Worker appointments (9%). In deciding who to appoint to a position, Robinson, who rarely interviewed prospective employees, considered the individual’s test score and county director’s recommendation, as well as information secured from independent sources. Former Commissioner Cole, who took office in May 1973, testified that affirmative action efforts were intensified during his term. He stressed the importance of the subject through staff meetings and memoranda. In August 1973, however, after the Civil Service Commission’s annual EEO survey, it noted in a letter to the state merit system director McCarthy that “[t]he Department needs to concentrate its efforts in increasing the number of minorities employed at all levels of the agency.” On November 10, 1973, Cole circulated a memorandum that the Department had met the goal of employment of 30 minority individuals from July 1 to December 31, 1973. In fact, from July 1 to the date of the memorandum, 31 blacks had been hired and five minorities had been promoted. He also notified regional administrators and county directors that the Department was in the process of reorganization which required review of all class specifications to determine if the minimum requirements then existing were proper and appropriate. Furthermore, a mailing list had been developed and was being used by the merit system in all recruitment campaigns; the recruitment literature included the phrase “An Equal Opportunity Employer.” Cole transmitted another memorandum on June 24,1974, advising that since November 10, 1973, 42 blacks had been appointed. Of this number, 14 were in the Clerk/Typist category, and 17 Eligibility Workers. Additionally, three blacks received promotions during the same time period. In 1975 Cole appointed Billie Sims, a black female, to the newly-created position of Equal Employment Opportunity technician to promote affirmative action by contacting minority groups and making recruitment visits to predominantly black colleges. Sims wrote to previously qualified blacks whose names had been removed from registers, asking them to contact her if they were still interested in employment and stating: “We are giving priority to those persons having previously qualified for these positions with the Department of Public Welfare whose names have been removed from the register. ... Every effort will be made in trying to get you employed.” Effective September 1975, the Department instituted a policy of notifying persons scoring less than 75% on examinations that they could retake the test within 60 days. As commissioner, Cole gave weight to the county director’s recommendation in appointing individuals, but accorded little consideration to a person’s rank on a certificate of eligibles. Upon his appointment as commissioner on June 17, 1976, St. Clair became aware of the need to hire more blacks and personally assumed the responsibility for minority recruitment. He required county directors to submit monthly reports indicating blacks and whites hired and, Sims having been promoted to supervisor, appointed Patricia Greene as equal employment opportunity coordinator, a position under the direct supervision of personnel director Lorraine Winstead. St. Clair admitted that Margaret Jackson, personnel director until 1976, did not have his confidence in promoting the affirmative action plan. In late 1976 or early 1977, the mailing list used to announce job vacancies was expanded so that approximately 1,000 announcements were mailed by the state merit system office to various individuals and groups, and news releases for vacancies were utilized. St. Clair endeavored to stress the need for minority hiring at staff meetings held three times a year with all county directors. In appointing individuals to positions, St. Clair gave no weight to a person’s rank on the certificate of eligibles. Workforce Data Notwithstanding the foregoing affirmative action efforts, the Department’s employee composition indicates that no real gains in minority employment were made until 1976, after suspension of written examinations. According to 1970 census data, blacks then comprised 29.6% of Mississippi’s total labor force. Moreover, it is indisputable that the percentage of blacks applying for positions in contest equals, if not exceeds, the percentage of blacks in the labor force. The following table depicts the Department’s workforce composition, including positions of Social Worker I (SWI), Eligibility Worker (EW), and Clerk/Typist (CTI-III) from 1971 until 1978. Plaintiffs’ expert statistician, Dr. Peter Kolesar, testified with regard to the statistical significance of the degree of black underrepresentation in the Department’s employ for all years shown above except 1978. It is uncontradicted in the evidence that a statistician rejects a hypothesis of neutral selection whenever the confidence level, based on statistical analyses, is 95% or better, which means that there are only five chances in 100 that the difference between white and black selections is attributable to chance. For the years 1971, 1973 and 1976, a comparison of Mississippi’s black labor force of 29.6% to the Department’s workforce indicated that the degree of underrepresentation of blacks was statistically significant at a confidence level of 95% or better in practically all positions; furthermore, the underrepresentation of blacks in the positions of Social Worker I, Eligibility Worker, and Clerk/Typist I was statistically significant at the 99% confidence level for all three years, i.e., there was only one chance in 100 that the low number of blacks employed in those positions was attributable to chance. Kolesar also analyzed the number of blacks hired in positions of Social Worker I, Eligibility Worker, and Clerk/Typist I — III by the Department in 1972, 1973 and 1975 (1974 data was not available). The following table depicts the hires made in those years in contested classes. Again comparing these figures to the 29.6% black labor force, Kolesar concluded that the shortfalls in the number of blacks hired in the contested positions was statistically significant at the 99% confidence level. The same result was reached by looking only at offers of probationary and temporary appointments from January 1, 1973, to October 31, 1974, and comparing this data to the number of black applicants taking examinations between May and October 1975. This evidence is unchallenged. As of January 1973, when private plaintiffs filed their action, 32 of the Department’s 84 county offices did not employ a black, while 20 other county offices had a black employed only in the position of “homemaker,” essentially a housekeeping job. The Education Requirement The Department requires a college degree for Social Workers, two years (60 hours) of college for Eligibility Workers, and a high school diploma or its equivalent for Clerk/Typists. As of 1970, 14.9% of Mississippi’s blacks and 52.6% of whites, 25 years of age or older, completed high school, while 3.7% of blacks and 10.0% of whites possessed a college degree. At the time of filing suit, private plaintiffs had attained the minimum educational requirement for the position(s) for which they applied. Although federal standards once required minimum educational requirements for certain positions, these mandatory restrictions were deleted in 1970; since that time the responsibility for determining appropriate educational qualifications has rested with the Department. In August 1973, the Civil Service Commission recommended that the Classification Commission reevaluate its college degree requirement for Social Workers and “explore the propriety of establishing valid requirements which include substitution of appropriate experience for formal education where valid.” At the same time, there was a recommendation for a partial merger of Eligibility Worker and Social Worker positions. As stated: The Eligibility Worker and Social Worker I positions were reviewed and found to have similar statements of duties. The minimum qualification requirement for Eligibility Worker is “successful completion of two years of college (60 or more semester hours) in an accredited college or university” and provides for no substitutions. The minimum qualification for Social Worker I is “graduation from a four-year college or university” with no substitutions. The first portion of this test for both positions is the same. There is an additional set of questions for the Social Worker I position. In view of the preceding, it is recommended that these positions be reevaluated and a determination made relative to the possibility of the Eligibility Worker position being used as the entrance level position and access to the Social Worker I position by both original appointment and promotion. To justify its use of minimum educational requirements in the contested classifications, the state officials at trial relied upon the functions performed by persons in those positions. Social Workers handle child neglect and abuse cases and are therefore required to work within the state court system. They are also involved in providing services to adults. Former county director and Commissioner Cole testified: [T]heir work involves great detail because they are dealing with the human feelings of individuals, and it takes a very sensitive type of person ... The more know-how they have the better equipped they are to carry out their job and their responsibilities. They have to develop a plan for each person that comes before them, set that plan up, show a short range goal, a long range, and have all that recorded. And they are scrutinized by their individual supervisor, as well as reports furnished to the supervisor in the field office and also in the state office in Jackson. An Eligibility Worker interviews clients, assists them in completing applications, and determines the client’s eligibility for assistance. The latter requires knowledge of various federal regulations and policies. Furthermore, the worker must refer applicants to community resources and other avenues for benefits. As described by Cole, an Eligibility Worker must be “doctor, lawyer, indian chief in order to carry out their responsibility on a day to day basis.” However, manuals necessary for determining eligibility are available at each county office, and the Department provides training sessions for incoming Eligibility and Social Workers covering all major areas of duties, and does not expect persons hired in those positions to have knowledge of the various procedures before undergoing training. The Clerk/Typist acts as receptionist and is usually the first person a client meets upon entering the office. She fills out a data card including client identifying information, transcribes intake interviews, and performs typing and filing duties. This individual, according to Cole, must be “kind, gentle, and understanding of the individual and also expedite that individual’s time from the waiting room into the intake office so they can be seen without a long delay.” Cole, professing strong belief in education, testified that “every Social Worker should have a college degree .. . [T]he more education that individual has the better treatment and more prompt service that a client receives.” Cole also thought that Eligibility Workers should have a college degree, rather than the two-year college requirement, because of the complexity of federal regulations and because of the need to “get along with the client . .., with their fellow workers, ... [and] other agencies within the state.” As to the minimum high school diploma requirement for Clerk/Typist workers, Cole stated: I sincerely believe that they should have a high school education for one basic reason, because in high school you usually are required to have at least three or four years of English, you are required to have at least one or two years of typing. The better the individual is with English and typing and with other related high school courses the better Clerk they are going to make. . .. [T]he more educated the individual is the better job they are going to do. The clerk has to type, file, answer the phone, and many times they are one of the most responsible individuals within the office, to keep an office going when there is absence in the area of Social Workers or Eligibility Workers, or even sometimes when the Director is out. Plaintiffs do not contradict the foregoing description of the work performed by these department employees. Use of Examinations The original examinations for the Clerk/Typist and Social Worker positions were received from the Civil Service Commission by request of the state merit system office, which request included class specifications for the position for which the test was being sought with a description of job duties, minimum educational or experience qualifications, and the knowledges, skills, and abilities considered by the Department to be necessary to successful job performance. The test for the Eligibility Worker position, however, was not received from the Civil Service Commission, but was developed by the state merit agency from questions, largely taken from Social Worker examinations, provided by the Civil Service Commission. Most examinations consist of 120 multiple choice items with four possible answers. Ninety items in the Social Worker and Eligibility Worker tests are identical. The Civil Service Commission maintains an examination unit which prepares the majority of test items, although some are prepared independently under contract. The item writer is selected on the basis of knowledge in the field for which the item is to be used, e.g., social workers usually prepare social worker test items. Items are coded by type and level of difficulty and placed into blocks of similar items. Except for random deletion of some questions to limit the number of test items, the state merit system never changed the content of examinations received from the Civil Service Commission. Former state merit system director McCarthy testified that, after attending an item writing seminar in Washington, D. C., he was convinced that these tests were the best ones available for use. As early as 1971, however, the Civil Service Commission and McCarthy were aware that the tests had a disparate impact on blacks. When a request for examination materials was returned in May 1973 for insufficient class specification data, McCarthy talked with federal officials regarding a validation study. Department employees completed questionnaires concerning job duties, and sent this data to Civil Service’s Atlanta regional office which neither completed the study nor countermanded or advised against the continued use of the examinations. The use of written examinations for employment selection was once federally required, though this was not true after 1970. The criteria was then somewhat modified. At all times pertinent, the federal standards for merit selection provided as follows: Selection for entrance to the career service will be through open competition. The selection process will maximize reliability, objectivity, and validity through a practical and normally multipart assessment of applicant attributes necessary for successful job performance and career development. Applicants will meet the minimum requirements of the job class. The parts of the total examination will consist, in various combinations as appropriate to the class and to available manpower resources, of such devices as work-sample and performance tests, practical written tests, individual and group oral examinations, ratings of training and experience, physical examinations, and background and reference inquiries. In August 1973, the Civil Service Commission recommended that the state merit system reevaluate its examination process to include, as well as written tests, a rating of training and experience and, where practical, use of oral examinations. According to Civil Service Commission officials, the state had the responsibility of determining what type of written tests should be used. A cover letter attached to examinations sent from the federal agency stated, “[i]t is intended that you review the suggested examinations for use appropriate to your needs, in accordance with applicable Federal standards.” These same officials acknowledged that the only practical alternative to using federally developed tests, furnished to a state without charge, was to develop its own tests after a costly and timeconsuming validation process. Accordingly, the Civil Service officials had reason to believe that the Mississippi state agencies would rely upon their examinations without material change. Hence, McCarthy, acting on the assumption that the examinations supplied by the federal government to the state were “good tests,” felt no concern that they could not be legally administered. Plaintiffs’ expert statistician analyzed results from persons taking examination in the contested classes from May to October 1975. Significant differences existed in the mean test scores for blacks and whites passing the examination: for the Social Worker examination, whites passing the test averaged 84.73 and blacks 76.41; for Eligibility Worker, whites averaged 79.47 and blacks 74.40; for Clerk/Typist, whites averaged 89.02 and blacks 78.76. Furthermore, the white-pass rate was significantly higher than the black-pass rate: for the Social Worker test, the white-pass rate was 148% of the black-pass rate; for Eligibility Worker, 183%; and for Clerk/Typist, 136%. Kolesar also compared the actual number of blacks and whites passing and failing the examinations to the number of blacks and whites passing and failing one would expect if the examination process had equal impact. The following table illustrates his finding in this regard. Thus, Kolesar’s statistical computations regarding the above testing data indicated that the differences between all black and white examination results were statistically significant at the 99% confidence level, or sufficient to cause a statistician to reject the hypothesis that the tests had equal impact on whites and blacks. This statistical evidence stands unchallenged in the record. Validation Studies As previously noted, the Department in November 1975 suspended the use of written examinations in the three contested classifications. In the fall of 1977, the state merit system office retained a Jackson consulting firm to conduct a validation study of these examinations. This study, begun in January 1978, consisted of two distinct components: a content validity aspect performed by David Morris to determine the relationship between the tests and job tasks, and a criterion validity portion performed by Max McDaniel to ascertain the relationship between job performance and test scores. Content Validity The first step in the content validity study sought to determine which tasks were necessary for successful performance of job duties in the contested positions. Based on interviews with three job incumbents in each position and job descriptions of the positions prepared by public welfare officials, Morris developed lists of task statements and knowledges, skills, and abilities needed for each job. These task statements were given to approximately twenty incumbents in each position to verify if the task was actually performed, how much time was devoted to it, whether it was critical to job performance, and whether knowledge of the task was necessary at job entry. The list of knowledges, skills, and abilities (KSAs) was given to the same incumbents to rate whether unnecessary, desirable, necessary at full performance, or necessary at entry. Incumbents also ranked tasks and KSAs in order of their importance on the job. After receiving responses from incumbents, Morris reviewed the tests and clustered examination items according to similarity, e.g., one section dealing with vocabulary, one with mathematics, etc. Next, two Education professors in predominantly black state universities with Ph.D. degrees in psychology reviewed the tasks and KSAs to determine which related to any test sub-part (e.g., vocabulary). These “judges” had no experience in social work, clerical skills, or vocational psychology. Individual test questions were not reviewed to determine if they in fact bore a relationship to any task or knowledge; rather, if both “judges” concluded that a KSA or a task statement related to a test subpart, that subpart was found to have content validity. Morris’ final conclusions were that all examinations for the contested classes had content validity since the test subcategories were viewed as related to at least one KSA identified with the position. Summaries of the results regarding the individual examinations follow. (a) Clerk/Typist Examination. Nineteen incumbents, five of whom were supervisors, were asked to determine the importance of 20 tasks and 27 KSAs. Only one of the 20 tasks reviewed was considered by as much as 50% of employees to be necessary at entry. Two other tasks were found by 42.1% as necessary at entry, while no other task was deemed to be necessary at entry by more than 26.3% of incumbents. In addition, 10 of the 27 KSAs were considered by at least 50% of incumbents to be necessary at entry, and six others were viewed by between 40 and 50% as so necessary. Two different written examinations (Form A and Form B) were used to test potential Clerk/Typists during the relevant time period. Both forms consisted of the following eight subparts: English Grammar (constituting 8% of the examination); Graph Reading Ability (17%); Vocabulary (17%); Basic Math (17%); Alphabetical Filing (8%); Office Procedure (8%); Spelling Ability (17%); and Punctuation Ability (8%). The following table depicts the number of total tasks and KSAs viewed by the professors as related to a test section, as well as the number of related tasks and KSAs which were found by more than 50% and 40% of incumbents to be necessary at entry. As shown by the above table, two sections in both examinations, Basic Math and Alphabetical Filing, together constituting 25% of the tests, bore relationships to only one KSA each that was found by more than 40% of incumbents to be necessary at entry. (b) Eligibility Worker Examinations. Twenty incumbents, 10 of whom were supervisors, rated the importance of 23 task statements and 73 knowledges, skills, and abilities proposed to relate to the position of Eligibility Worker. No task statement was viewed by more than 20% of incumbents as necessary at entry. Furthermore, only 18 of the 73 KSAs (or 25%) were judged by at least 50% of incumbents to be necessary at entry, while an additional four KSAs were viewed by between 40% and 50% of employees as so necessary. The Eligibility Worker examination consisted of nine subparts: Economics (constituting 9% of the test); Governmental Aspects (17%); Vocabulary (16%); Basic Math (4%); Graph Reading Ability (15%); Sociological Aspects (15%); Public Relations and Interviewing Skills (8%); Specific Governmental Aspects Relating to the Welfare Agency (11%); and Reading Comprehension (4%). Significantly, no relationship was found between three test subparts (Economics, Governmental Aspects, and Specific Governmental Aspects Relating to the Welfare Agency), together constituting 37% of the examination and any task or KSA viewed by more than 20% of incumbents as necessary at entry. Furthermore, although a relationship was found between 44 of the 73 KSAs and some section of the examination, only 12 of these were viewed by at least 50% of incumbents as necessary at entry, while an additional two were found by between 40% and 50% of employees to be so necessary. (c) Social Worker Examinations. Twenty incumbents, ten of whom were supervisors, rated the importance of 19 task statements and 104 KSAs purported to be necessary for performance of Social Worker duties. No task statement was viewed by more than 25% of employees as necessary at entry. Moreover, only 25 (or 24%) of the KSAs were determined by at least 50% of incumbents to be necessary at entry, while an additional two were so viewed by between 40% and 50% of employees. Four different examination forms (A, B, C and D) were used during relevant times as a selection device for the Social Worker position. Form A of the Social Worker test consisted of seven subparts: Economics and Governmental Aspects (constituting 21% of the examination); Vocabulary (8%); Graph Reading and Basic Math (8%); Graph Comprehension Ability (4%); Social Work Knowledges and Abilities (17%); Social Science Aspects (17%); and Public Relations and Interviewing Skills, Welfare Agency Aspects (25%). A relationship was found between some test section and 36 of the 104 KSAs (34%), although only 12 of these were viewed by at least 50% of incumbents to be necessary at entry. The Economics and Govémmental Aspects category did not bear a relationship to any task statement or KSA determined by more than 30% of incumbents to be necessary at entry. The Social Worker examination Form B consisted of six sections: Economics and Governmental Aspects (constituting 21% of the test); Vocabulary (8%); Graph Reading and Basic Math (8%); Graph Comprehension Ability (8%); Social Work Knowledges and Abilities (33%); and Public Relations and Interviewing Skills, Welfare Agency Aspects (21%). A relationship was found between some subpart of this examination and 39 of the 104 KSAs, only 12 of which were viewed by at least 50% of incumbents to be necessary at entry. Two sections of the test (Economics and Governmental Aspects; Vocabulary), together constituting 29% of the examination, were found to relate to only one KSA found by at least 50% of incumbents to be necessary at entry, and that KSA was “professionalism — ability to transmit the air of a professional Social Worker and assume role of authority.” Form C of the Social Worker Test consisted of six subparts: Economics and Governmental Aspects (constituting 21% of the examination): Vocabulary (8%); Graph Reading and Basic Math (8%); Graph Reading Ability (8%); Sociological Aspects, Social Work Knowledges and Abilities (33%); and Public Relations and Interviewing Skills, Welfare Agency Aspects (21%). A relationship was found between test categories and 45 of the KSAs, 15 of which were viewed by at least 50% of incumbents to be necessary at entry, and one more was so viewed by 45%. The only KSA relating to Economics and Governmental Aspects section found by at least 50% of incumbents to be necessary at entry was “professionalism.” Furthermore, the only KSAs relating to the Public Relations and Interviewing Skills, Welfare Agency Aspects subpart and viewed by at least 40% of incumbents to be necessary at entry are what may be described as “personal characteristics” (ability to deal with hostility; objectivity; professionalism; integrity and honesty; ability to relate to and accept people from a broad range of backgrounds; patience; respect for individuality of others; empathy and sensitivity; self-knowledge; flexibility; and ability to function under stress). The Social Worker examination Form D differed somewhat from the other forms in that it included 135, and not 120, questions, and included the following sections: Economics and Governmental Aspects (constituting 11% of the test): Reading Comprehension (7%); Organization of Material (4%); Vocabulary (8%); Graph Reading Ability (4%); Graph Reading and Basic Math (8%); Public Relations and Interviewing Skills (10%); and Sociological and Welfare Agency Aspects (48%). A relationship was found between some subpart and 49 of the KSAs, only 11 of which were viewed by at least 50% of incumbents to be necessary at entry. Only one KSA (ability to relate to and accept people from a broad range of backgrounds) relating to the Economics and Governmental Aspects section was viewed by at least 50% of incumbents as necessary at entry, and no KSA relating to Organization of Materials was viewed by more than 25% of incumbents to be necessary at entry. Furthermore, only four KSAs relating to the Sociological and Welfare Agency Aspects subpart, constituting almost one-half of the total examination, were determined by at least 50% of incumbents to be necessary at entry, and these KSAs are what may be described as “personal characteristics” (objectivity; professionalism; ability to relate to and accept people from a broad range of backgrounds; and respect for individuality of others). (d) Plaintiffs’ Criticisms of Content Validity Study. Plaintiffs’ testing experts took issue with the methodology employed in the content validity study. Noting that in effect incumbents were given a list of task statements and told they were relevant to their job, Dr. Brent Baxter stated that a better procedure would be to allow incumbents to formulate their own lists of tasks necessary to adequate job performance. He also pointed out confusing instructions given employees. For example, incumbents were told “if you have a very specialized job try to answer the question more in terms of the job as it is usually done, as it is done by most of the people who do that job, or in terms of the various specialties,” thus allowing a choice of three ways in which the question might be answered. Baxter also questioned the way in which tasks and KSAs were framed. For example, task statement # 4 for Social Workers was as follows: Investigates complaints of neglect or abuse with a helping approach by obtaining as much information as possible on initial referral, assessing whether information indicates the child is in immediate danger, inspecting the premises, interviewing with guardians, and observing the child for signs of abuse; makes an appropriate plan to help protect children which may involve part or all of the following: Filing a report, periodic visits to see the child and family, referrals to family services, mental health center, parents anonymous, social summary, looking for a possibility among relatives, and termination of parental rights. Because the task included so many different areas, 83 KSAs were determined necessary for its fulfillment. In addition, KSAs were broadly framed (e.g., knowledge of general governmental aspects, knowledge of general economic aspects, knowledge of general sociological aspects) and some were actually personal characteristics rather than true knowledges (e.g., self-acceptance, emotional stability, flexibility). As noted by Baxter, “you would almost be forced to say that somebody ought to know something about those things on every job.” This expert was of the view that the large extent of the professors’ disagreement concerning whether tasks or KSAs related to an examination subpart was due to the broadness of the task and KSA definitions, and concluded that the validity study could not be used to determine that test questions related to performance of essential tasks on the job. Dr. Joel Lefkowitz echoed Baxter’s concerns with the validity study and concluded that there was insufficient evidence to establish the content validity of the examinations, noting: To say that each test area ... was related to an ability or knowledge really overlooks the fact that you are over-generalizing . .. many test items being justified by perhaps a very few ability statements, irrespective of the importance of those ability statements, irrespective of whether or not they are needed at entry, irrespective of how vague and general they are, and so general as to apply to any employee ... in any situation. Criterion Validity A criterion validity study, prepared by Dr. McDaniel, was used to determine the degree of relationship between test scores and a measure of job performance. From task statements used in the content validity study, rating dimensions for job performance were prepared to be used by employees’ supervisors to rate an incumbent’s job performance on a 1 to 9 scale, a rating of 4 being average. Including one “overall” dimension on which supervisors were asked to rate employees’ overall performance, Clerk/Typists were rated on 14 dimensions; Eligibility Workers on 15; and Social Workers on 11 dimensions. The samples of incumbents used for the study consisted of 161 Clerk/Typists (37 black and 124 white); 222 Eligibility Workers (78 black and 144 white); and 134 Social Workers (32 black and 192 white). All employees selected for this study had been employed after use of examinations as a selection device had been suspended. A few days after supervisors’ rating were completed and returned, they were asked to re-rate employees based on the same dimensions in order to ensure reliability of the first rating. Upon completion of this step in the study, job incumbents were then tested with all examinations relevant to their positions. The tests were scored by the Classification Commission, and McDaniel correlated the results, which follow. (a) Clerk/Typist. Blacks scored lower than whites on the overall performance dimension (average black rating was 5.81 and white 6.31) as well as on the mean performance ratings, i.e., the average of all dimensions other than the overall dimension (black mean rating 5.67 and white 6.09). The difference in the overall rating was statistically significant at the 95% confidence level, although the difference in mean ratings was not. The difference between black and white test scores was also statistically significant at the 95% confidence level — blacks scored 70.11 on the Clerk/Typist Form A test and whites 85.85; and blacks scored 81.03 on the Form B examination, whites scoring 90.98. Test scores on both forms were found to have a positive relationship, significant at the 95% confidence level, to seven of the thirteen (other than “overall”) job dimension ratings, while an additional relationship, marginally significant at the 90% confidence level, was found for the Form B test. Only one of the task statements from which Clerk/Typist job dimensions were derived was viewed by as much as 50% of incumbents to be necessary at entry; two others were viewed by 42.1% of incumbents as so necessary. (b) Eligibility Worker. Differences between black and white overall and mean ratings by supervisors were not statistically significant, although the difference in average test scores (66.41 for blacks, 82.49 for whites) was statistically significant at the 95% confidence level. Unlike the analyses concerning Clerk/Typist and Social Worker positions, McDaniel concluded that the sample size of Eligibility Workers was large enough to conduct a differential validity study to determine whether the test was a valid indicator of job performance for whites and blacks alike. A correlation of white rating and test scores indicated a positive relationship, statistically significant at the 95% confidence level, for seven of the 14 dimensions, and an additional dimension marginally significant at the 90% level. As to black incumbents, fewer positive relationships were found between test scores and performance ratings. A correlation statistically significant at the 95% confidence level was found between test scores and only three of 14 job dimensions, while six additional dimensions were marginally significant at the 90% confidence level. None of the task statements from which Eligibility Worker job dimensions were derived was viewed by more than 20% of incumbents to be necessary at entry. (c) Social Worker. Whites were rated higher than blacks on the overall ratings, and this difference was statistically significant at the 95% confidence level. Whites also scored higher on the mean ratings, but not significantly so. The differences between white and black test scores were statistically significant for all four tests: for Form A, blacks averaged 56.56 and whites 79.07; Form B, blacks averaged 57.25 and whites 75.51; Form C, blacks averaged 60.61 and whites 75.51; and Form D, blacks averaged 79.93 and whites 99. For Form A of the examination, a relationship, statistically significant at the 95% confidence level, was found between test scores and four job dimensions, while one other job dimension related at the 90% confidence level. Ratings on only two job dimensions were found to correlate positively with scores on Form B of the test at the 95% confidence level. For Form C, ratings on two job dimensions bore a 95% confidence level relationship to test scores, and two others were marginally significant at the 90% level. Only one job dimension significantly related to Form D test scores at the 95% confidence level, while two others were marginally significant at the 90% level. None of the task statements from which job dimensions were derived was found by more than 25% of incumbents to be necessary at entry. Dr. McDaniel concluded that the examinations at issue were criterion validated since scores on each bore a positive relationship to some aspect of job performance. Another of defendants’ experts, Dr. William Owens, testified that the criterion validity study was “a better study than most” and agreed that it indicated a low significant positive correlation between job performance and test scores. (d) Plaintiffs’ Criticisms of Criterion Validity Study. Dr. Baxter was of the view that supervisors should have been better instructed and given an opportunity to observe employees performing job dimension duties before rating them. Furthermore, he noted that there was no assurance that an employee’s immediate supervisor, having most intimate knowledge of job performance, was responsible for rating the employee. Baxter also criticized the “concurrent” nature of the criterion validity study; for example, since tests and ratings were administered at approximately the same time, it was likely that a person’s experience on the job better enabled him to perform satisfactorily on the test. Baxter was of the opinion that the study was a very poor measure of eventual job performance since the difference in black and white test scores was 6.5 times larger than the difference in job performance as rated by supervisors. For example, Clerk/Typists with ratings of 6 scored from 60 to 110 on the Clerk/Typist Form B examination. Similarly, Eligibility Workers with performance ratings of 7 had test scores ranging from 50 to 110, thus showing that test score had little bearing on actual job performance. Lefkowitz also took issue with the “concurrent” nature of the study, and also noted that the study did not take into account any element of bias, whether in the sample, ratings, or the examinations themselves. Concerning sample bias, for example, it was reasonable to assume that Social Workers taking four examinations would undergo a learning process during the test-taking and might, therefore, perform better on Form D than on Form A. As to rating bias, supervisors’ ratings should have been measured against some objective index of performance, e.g., job tenure, cases disposed of successfully, etc. Furthermore, since raters were anonymous, the possibility of evaluating racial bias was precluded. Finally, the studies did not analyze the possibility of test bias, i.e., whether an examination was a valid predictor of job performance for whites but not blacks. Lefkowitz concluded that although the examinations might have low positive validity, there was no evidence that the tests were useful in predicting successful job performance and, in light of the significant adverse impact on blacks, the tests should not be used. This expert summarized the following impracticable consequences had Eligibility Workers who took the examination as part of the validity study been rejected because of a failing grade: 1. Test shows “adverse impact” a. 75% Pass Rate for Blacks b. 99% Pass Rate for Whites c. Pass Rate for Blacks is 76% of White Pass Rate 2. Test is not very useful (practical) a. 31% Misclassifications [i.e., people passing test performed poorly on the job; people failing test did well on the job] b. No improvement in proportion of successful employees who would have been selected by the test (70%) over proportion successful without use of the test (68%) 3. Test would have considerable “social cost” a. Almost half (47%) of all applicants failing the test succeeded on the job b. Moreover, this pertains almost exclusively to Blacks (only 1 White failed) 4. Test is unfairly biased against blacks a. Pass Rate for Blacks is only 76% of the White Pass Rate, BUT b. The success rates on the job are virtually identical, 67% and 69% respectively. The court finds as a fact on disputed evidence that defendants failed to demonstrate that the written examinations employed by them either had a substantial relationship to the tasks of the job being tested for to have content validity or provided test scores for reliably measuring job performance. Selections from Certificates of Eligibles As a third selection step, persons possessing the minimum educational qualification and passing an examination are placed on a certificate of eligibles for employment consideration by county directors who interview the eligibles, recommending one or more for appointment by the Commissioner. Again, statistician Kolesar presented several analyses concerning this phase in the selection process to determine if it impacted on black applicants. Kolesar first looked at mixed certificates of eligibles, i.e., those containing the names of at least one black and at least one white, from March 24,1972, until October 31,1974, during which time a total of 1,179 names appeared on certificates for positions of Eligibility Worker, Social Worker I, and Clerk/Typist I. The following table indicates the numbers of blacks and whites appearing on certificates of eligibles, as well as the actual number of black and white selections and the numbers one would expect from a racially neutral selection process. The table also shows the percentage of blacks and whites appearing on certificates and eventually selected. Thus, the white selection rate was 208% of the black selection rate for all three positions combined; 164% for the Clerk/Typist I position; 242% for Eligibility Workers; and 169% for the Social Worker I job. Other than data on the Social Worker position, which contained a small sample size, all the above differences in white and black selection were statistically significant at the 99% confidence level. Kolesar also considered the rate of nonselection from all-white and all-black certificates issued between March 24, 1972, and October 31, 1974. For all three positions combined, selections were made in 78.4% of all-white certificates, but only 35.7% of all-black ones. This difference was statistically significant at the 99% confidence level. For Eligibility Worker certificates, there were 18 all-black and 105 all-white certificates during this time period. Of these, 89 selections were made — 6 black and 83 white. A racially neutral process would result in 13 black and 76 white selections. Selections were made in 79% of all-white certificates, but only 33.3% of all-black ones. This difference was statistically significant at the 99% confidence level, and the