Full opinion text
OPINION AND ORDER KINNEARY, District Judge. In this action, the named plaintiffs and the class of similarly situated women that they represent challenge certain parts of the tests used by the City of Columbus to select entry-level firefighters since 1979. Plaintiffs Ann Brunet, Lynn Shearrow, Rebecca Schumacher and Edwina Hornung took the tests administered in 1980 and 1984. None of the plaintiffs was selected as a firefighter. Plaintiffs contend in this litigation that they were subjected to discriminatory tests in 1980 and 1984. The defendants are the City of Columbus; the Columbus Civil Service Commission; Dana Rinehart, Mayor of Columbus; and Alphonso Montgomery, Safety Director. For convenience, the defendants are often referred to as “the City”. This action was originally brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.) later the complaint was amended to include a claim under 42 U.S.C. § 1983. Plaintiffs seek injunctive and backpay relief on behalf of themselves and the class of women they represent. Plaintiffs Shearrow, Schumacher and Hornung applied for and took the firefighter selection tests in 1980. Based upon their scores on the exam, plaintiffs were placed upon a rank-ordered list of white applicants, to be selected for further consideration in order from that list. Pursuant to this Court’s Decree in Dozier v. Chupka, 395 F.Supp. 836 (S.D.Oh.1975) (Kinneary, J.), the City has maintained dual hiring lists for black and white applicants for firefighter and one-for-one hiring from those lists to remedy past racial discrimination. Of a total of 626 applicants ranked on the 1980 list, Shearrow ranked 193, Hornung ranked 319, and Schumacher ranked 571. Jt. Ex. 1. Plaintiffs Shearrow and Schumacher timely filed charges of discrimination with the Ohio Civil Rights Commission, Jt. Ex. 30-31, and received right-to-sue letters from the Equal Employment Opportunity Commission. Tr. 214. Plaintiff Ann Brunet took the entry-level firefighter test held in 1984. She was ranked 464 on the list of non-black applicants. Jt. Ex. 5. Like the other plaintiffs, she was not selected as a firefighter. She timely filed a charge of discrimination and received a right-to-sue letter. Jt. Ex. 32, 26. In both 1980 and 1984, the firefighter examination consisted of a written examination and a physical test. In 1980, the written test consisted of four sub-tests: a reading comprehension test, a mechanical reasoning test, and two psychological profiles. Stip. # 11. The reading comprehension test was pass/fail; the remaining three tests were scored, and weighted equally to make up 70% of an applicant’s total score. Stip. # 12. The physical test consisted of seven events, six of which were scored. Timed scores were used to compute a physical exam score which constituted 30% of an applicant’s total score. Stip. # 15. In 1984, a few changes were made, but the general approach remained the same. The written test consisted of a reading comprehension test and mechanical reasoning test, both of which were scored, and weighted equally to constitute 70% of an applicant’s total score. Stip. # 31. The physical test was composed of the same events as in 1980 with the exception of one event, which was dropped. As in 1980, the score on the physical test constituted 30% of an applicant’s total score. Stip. #35. In both years, applicants were ranked in order of their total score on separate eligibility lists for white and black applicants. Stip. #23, 36. From time to time, applicants were taken from the lists in order of their rank to be certified to the Columbus Director of Public Safety for consideration for appointment as firefighters. Before being so certified, however, in both 1980 and 1984, applicants were required to pass a ladder test — which involved climbing a ladder to a height of five stories and descending — and a bicycle ergometer test— which measured heart rate in response to physical stress. Stip. # 24-26, 37. In addition, applicants were required to pass a medical examination and a background check, and to undergo an interview with a board comprised of members of the Division of Fire. Stip. #27, 37. Applicants who met these requirements were then appointed as firefighters, as necessary, in the order of the ranking upon the dual lists. Stip. # 28, 38. During the life of the 1980 lists, a total of 109 applicants were appointed as firefighters, four of whom were female. Stip. # 29. One hundred and twenty-six appointments, including two females, were made from the 1984 list. Stip. # 39. Plaintiffs challenge two components of the firefighter examination: the physical test and the mechanical reasoning test, as discriminatory against female applicants. Plaintiffs contend that the lower scores earned by female applicants on these two components contributed substantially to lower total scores, with the result that fewer female applicants were ultimately selected. Further, they contend, these test components have not been shown by the City to reflect accurately the actual requirements of the job of firefighter. In their amended complaint, plaintiffs set forth two legal theories. First, they contend that the tests employed by the City have an adverse impact upon female applicants and are not job related. First Amended Complaint, ¶ 6. This is a theory of prohibited disparate impact under Title VII. Second, plaintiffs contend that the discriminatory acts of the defendants are intentional and violate § 1983. Plaintiffs did not seriously pursue the claim of intentional discrimination at trial or in their post-trial memorandum. In Part I of this Opinion, the Court briefly states its reasons for concluding that plaintiffs have failed to produce sufficient evidence to justify a finding that the defendants engaged in intentional discrimination against women in connection with recruitment of firefighters. This leaves plaintiffs’ adverse impact theory for consideration. In Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975) the Supreme Court described the burdens of the parties in such a disparate impact case as follows: In Griggs v. Duke Power Co., 401 U.S. 424 [91 S.Ct. 849, 28 L.Ed.2d 158] (1971), this Court unanimously held that Title VII forbids the use of employment tests that are discriminatory in effect unless the employer meets “the burden of showing that any given requirement [has] ... a manifest relationship to the employment in question.” Id., at 432 [91 S.Ct. at 854], This burden arises, of course, only after the complaining party or class has made out a prima facie case of discrimination, i.e., has shown that the tests in question select applicants for hire or promotion in a racial pattern significantly different from that of the pool of applicants. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 [93 S.Ct. 1817, 1824, 36 L.Ed.2d 668] (1973). If an employer does then meet the burden of proving that its tests are “job related,” it remains open to the complaining party to show that other tests or selection devices, without a similarly undesirable racial effect, would also serve the employer’s legitimate interest in “efficient and trustworthy workmanship.” Id., at 801 [93 S.Ct. at 1823]. Id., at 425, 95 S.Ct. at 2375; accord, Harless v. Duck, 619 F.2d 611, 616 n. 6 (6th Cir.), cert. denied, 449 U.S. 872, 101 S.Ct. 212, 66 L.Ed.2d 92 (1980). The burdens are identical in a case involving alleged discrimination on the basis of sex. Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S.Ct. 2720, 2726, 53 L.Ed.2d 786 (1977). The defendants have argued that the plaintiff class has failed to meet its initial burden of showing adverse impact from either the 1980 or 1984 examinations. Upon consideration of the evidence and the arguments of the parties, the Court concludes, in Part II of this Opinion, that the defendants’ arguments are partially meritorious. With respect to the 1980 examination, female applicants who had completed the testing process were selected at essentially the same rate as were similarly situated male applicants. In the judgment of the Court, this fact is fatal to any claim that the 1980 testing and selection process had an adverse impact upon female applicants. However, the Court further concludes that plaintiffs have carried their initial burden of showing that the 1984 testing and examination process had an adverse impact upon female applicants. As a result of these determinations, only plaintiffs’ Title VII claim regarding the 1984 examination remains for consideration. As a result of plaintiffs’ demonstration of adverse impact in the 1984 firefighter examination, it becomes defendants’ burden to show that the tests reflect the actual requirements of the job. This burden is often expressed by saying that the defendants must demonstrate that the test is job-related or, equivalently, valid. Having considered carefully the testimony at trial, including the testimony of the parties’ respective expert witnesses, and having reviewed the documents submitted as exhibits, the Court concludes, in Part III of this Opinion, that the defendants have failed to demonstrate the job-relatedness of the 1984 physical examination. On the other hand, the Court further concludes that defendants have adequately justified the mechanical reasoning test, which has also been challenged by the plaintiffs. In the Court’s Opinion, there are two difficulties with the 1984 physical examination. One problem stems from the fact that defendants employ the test scores to rank candidates for selection as firefighters. “Ranking is a valid, job-related selection technique only where the test scores vary directly with job performance.” Williams v. Vukovich, 720 F.2d 909, 924 (6th Cir.1983), citing Guardian’s Association of New York v. Civil Service Commission, 630 F.2d 79, 100 (2d Cir.1980). Many more persons apply for the position of firefighter than there are available places. In these circumstances, relatively small differences in scores can determine whether an individual is selected as a firefighter. If these relatively small differences in test scores reflect likely differences in job performance, then the test is valid, and there is no violation of Title VII. On the other hand, as the Court concludes is the case here, where these differences in scores have not been shown to reflect differences in likely job performance, selection of applicants in accord with such a test is impermissible under Title VII. In 1975, a report prepared for the City by Battelle concerning hiring criteria for firefighters concluded that physical strength, endurance, agility and health were necessary to perform effectively as a firefighter. Jt. Ex. 24, at 13. The test administered by the City in 1984 is a reasonable test of physical strength in a number of respects that have been shown to reflect the actual physical demands of the job. It appears also to be a reasonable test of health; at least, no one has raised an issue concerning this aspect of the examination process. However, it is a poor test of endurance, and there is no attempt to test agility. The inevitable result of this narrowed focus upon strength is that relatively small differences in strength will tend to determine whether an individual is selected as a firefighter. There is no guarantee, however, that in selecting stronger individuals, individuals with greater endurance and agility are also being selected. Where a test is used to rank individuals for purposes of hiring, it is important that that test cover the range of abilities that are involved in performance of the job. The test administered in 1984 has failed on this count, and is, therefore, invalid when used to rank-order applicants for selection as firefighters. Having concluded that the defendants have failed to show that the 1984 physical test is job-related, the Court then considers, in Part IV of this Opinion, the remedy to which the plaintiffs are entitled. In light of the absence of substantial evidence of intentional discrimination, the Court concludes that the remedy should be precisely tailored to eliminate the discrimination and restore any individuals to the position they would have occupied but for the discrimination. Accordingly, the Court will order the City to prepare a new physical examination for entry-level firefighters, and to demonstrate its job-relatedness. The City must make the initial decision whether to continue to use a scored physical exam for purposes of ranking, or whether to adopt a pass/fail approach. Whichever approach is adopted, the examination must be approved by the Court before it is administered. Further, before administration of the new examination, the Court will require the City to provide notice, in a form approved by the Court, of this new examination and the results of this decision to all females who had applied to take the 1984 firefighter examinations. After the new examination has been administered and the results of the examination are before it, the Court will consider retroactive relief and back pay. To the extent that women perform better on the new examination, the Court will presume that they would have so performed on the 1984 examination but for defendants’ discrimination. In this circumstance, the Court will fashion a remedy requiring defendants to set aside an appropriate number of places for female applicants in future firefighter classes, and determine the back-pay to be awarded to these applicants. On the other hand, if women as a group perform only as well as, or more poorly than their performance on the 1984 examination, then no retroactive relief would be appropriate. It is no part of this remedy that the City be required to select women as firefighters in any particular numbers or ratio. Indeed, under Title VII, the gender of an applicant should be irrelevant. As the Supreme Court has explained: Nothing in the Act [i.e. Title VII] precludes the use of testing or measuring procedures; obviously they are useful. What Congress has forbidden is giving these devices and mechanisms controlling force unless they are demonstrably a reasonable measure of job performance. Congress has not commanded that the less qualified be preferred over the better qualified simply because of minority origins. Far from disparaging job qualifications as such, Congress has made such qualifications the controlling factor, so that race, religion, nationality, and sex become irrelevant. Griggs v. Duke Power Co., 401 U.S. 424, 436, 91 S.Ct. 849, 856, 28 L.Ed.2d 158 (1971). The issue before this Court is not whether women should be firefighters, or how many women should be firefighters. Rather, the issue is whether the test used by the defendants to select firefighters complies with Title VII. When the defendants administer a valid, job-related examination, that examination will determine how many women are to become firefighters. I. Plaintiffs have alleged in their amended complaint that the defendants engaged in intentional discrimination by employing the physical and mechanical reasoning tests to select firefighters and have also addressed this matter in a perfunctory manner in their post-trial memorandum. Plaintiffs contend that intent to discriminate can be inferred from the following evidence. First, prior to 1975, job announcements for the position of firefighter were restricted to males. Tr. 25. Second, only five of 832 firefighters are women. Tr. 203. Third, plaintiffs have presented evidence about bias against women on the part of the Director of the Training Academy. Tr. 198-202; 819-822. It appears that this led to his removal as head of the Training Academy. Tr. 821. Finally, plaintiffs argue that the defendants, at various times, were aware of less discriminatory testing methods than those they were employing, but refused to adopt them. However, there is substantial evidence in the record showing that the City made efforts to encourage women to apply as firefighters and to complete the selection process. Marie Hardin, Equal Employment Opportunity Administrator for the City, testified at length about her efforts to recruit females to participate in both the 1980 and 1984 selection processes. Tr. 810-819. These efforts included maintaining contact with female applicants after their appointment. Tr. 818. Further, although the Court heard testimony from two incumbent female firefighters, Francisca Figueroa and Yolanda Stewart, no evidence of discriminatory treatment was offered by these witnesses. Tr. 156-184; 770-805. In addition, there appears to be no discrimination against women in the administration of the physical examination, as plaintiff Shearrow admitted in her testimony. Tr. 192. Plaintiff Brunet testified that she was permitted to practice the physical examination before taking it and received hints and assistance from firefighters during those practice sessions. Tr. 224-225. In light of the evidence before it, the Court cannot draw the inference of intentional discrimination suggested by the plaintiffs. Plaintiffs’ evidence of intent to discriminate is at best impressionistic. Further, there is substantial evidence suggesting the absence of discrimination. Accordingly, judgment must be rendered for the defendants on plaintiffs’ claim of intentional discrimination under § 1983. II. In this section of this Opinion, the Court considers whether plaintiffs have met their initial burden of showing that the examinations administered in 1980 and 1984 had an adverse impact upon the class of women they represent. Having considered the evidence before it and the arguments of the parties, the Court concludes that plaintiffs have failed to show adverse impact in the case of the 1980 examination, but have shown adverse impact in the case of the 1984 examination. Because they present separate questions, each examination will be discussed separately. Prior to trial, defendants filed a motion for partial summary judgment, arguing that plaintiffs had failed to carry their initial burden of showing that the 1980 firefighter’s examination had an adverse impact upon women. This motion was not ruled upon prior to trial. At trial, defendants renewed their contention at the close of plaintiffs’ evidence, seeking dismissal of plaintiffs’ claims arising from the 1980 examination. The Court reserved ruling upon defendants’ motion and now renders its Opinion. The facts pertinent to defendants’ motion are not in dispute; indeed, they have been stipulated by the parties. In 1980, the Columbus Municipal Civil Service Commission received applications from a total of 1,577 individuals, of whom 83 were females and 1,494 were males. Stip. #9. The Civil Service Commission required all applicants to meet certain minimal requirements, e.g., having completed tenth grade in school. These requirements eliminated eight male applicants and no female applicants. Stip. # 9. Accordingly, 83 female applicants and 1,486 male applicants were invited to the first stage of the 1980 testing process, the written test. Thirty-five female applicants and 387 male applicants failed to appear for the written test. Stip. # 10. In 1980, the written test consisted of four subtests: a reading comprehension test, a mechanical aptitude test, and two psychological tests. The reading comprehension test was graded pass/fail, and applicants who failed were eliminated from further consideration. Three females and seventy-four males failed this test. Stip. #11. The remaining three tests were scored. All applicants who took the written test, including those who failed the reading comprehension subtest, were invited to the next stage, the physical capabilities test. Of the 48 females invited, 20 failed to appear; 303 of the 1,099 invited males failed to appear. Twenty-eight females completed the physical capabilities test; of these, twenty-five were placed on the 1980 eligibility list. Seven hundred ninety-six males completed the test, and 722 were placed on the eligibility list. Stip. # 13. A total of 109 applicants were appointed as firefighters for the 1980 eligibility lists: four were females and 105 were males. Stip. # 29. These appointments were made from dual lists for black and white applicants according to a process of one-for-one hiring mandated by this Court’s order in Dozier v. Chupka, 395 F.Supp. 836 (S.D.Oh.1975). Stip. # 28. All four female applicants were appointed from the black list. Defendants argue that, taken as a whole, the 1980 testing process did not have an adverse impact upon women. Of the twenty-eight females who completed the testing process, four — or 14% — were ultimately hired. Of the 804 males who similarly completed the process, 105 — or 13% — were hired. Thus, defendant asserts, when the process is evaluated from the point of view of its ultimate result, there is no detrimental impact upon women. Defendants’ reliance upon hiring ratios among actual applicants appears reasonably grounded in the relevant case law. Berkman v. City of New York, 536 F.Supp. 177, 206 n. 19 (E.D.N.Y.1982) aff'd, 705 F.2d 584 (2nd Cir.1983). In response, plaintiffs argue that the Court should focus upon the components of the testing process, specifically the physical test, and evaluate the discriminatory impact, if any, of these components. Plaintiffs contend that this approach is compelled by the decision of the Supreme Court in Connecticut v. Teal, 457 U.S. 440, 102 S.Ct. 2525, 73 L.Ed.2d 130 (1982). In addition, plaintiffs offer statistics to show differences in the average scores of men and women on the 1980 firefighter examination. Plaintiffs argue that these differences in mean scores show adverse impact. With respect to the issue of whether the 1980 firefighter’s test as a whole or its components is the appropriate unit of analysis, it is apparent to the Court that the central issue between the parties is the interpretation of Connecticut v. Teal, supra. In Teal, a state agency required that employees achieve a passing score on a written examination in order to be promoted to supervisor. The passing rate on the examination for black candidates was approximately 68% that for white candidates. It was undisputed that the examination, by itself, had an adverse impact upon blacks. Id., at 442, n. 4, 102 S.Ct. at 2528, n. 4. However, the score upon the written examination was not the sole criterion for promotion. Rather, it was used to generate a list of eligible candidates. Selections from the list were made by considering past work performance, recommendations of candidates’ supervisors and seniority. The result of this selection process was that approximately 23% of the black candidates on the eligible list were promoted to supervisor, while only 13.5% of the white candidates were promoted. Id., at 444,102 S.Ct. at 2529. Thus, the state argued — and this was the sole issue before the Supreme Court — that this “bottom line” result should be considered a complete defense to a race discrimination suit. Even though the state had argued that the bottom line result was a defense, the Court construed the issue as whether plaintiffs had made a prima facie case. Id., at n. 7, and p. 451, 102 S.Ct. n. 7, and p. 2532. The Supreme Court rejected the “bottom line” approach urged by the state. The Court focused upon § 703(a)(2) of Title VII, which provides: It shall be an unlawful employment practice for an employer to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(2). The Court reasoned that the statute speaks, not in terms of jobs and promotions, but rather “in terms of limitations and classifications that would deprive any individual of employment opportunities.” Id., at 448, 102 S.Ct. at 2531, emphasis in original. Thus, the Court concluded: When an employer uses a non-job-related barrier in order to deny a minority or woman applicant employment or promotion, and that barrier has a significant adverse effect on minorities or women, then the applicant has been deprived of an employment opportunity “because of ... race, color, religion, sex, or national origin.” ... Relying on § 703(a)(2), Griggs explicitly focused on employment “practices, procedures, or tests,” 401 U.S. at 430 [91 S.Ct. at 853] that deny equal employment “opportunity,” id. at 431 [91 S.Ct. at 853] ... The examination given to respondents in this case surely constituted such a practice and created such a barrier. Id., at 448-449, 102 S.Ct. at 2531. Teal differs from the instant case in the respect that the challenged component of the selection process, the written examination, was graded pass/fail. Here, however, the challenged portions of the testing process were given a numerical score, which was used, along with other similar scores, to rank candidates on eligibility lists. Thus, the written examination in Teal constituted a “barrier” in the sense that it precluded candidates from further consideration. The challenged components of the testing process here, even though lower scores on these components may lessen a candidate’s overall chance of acceptance, do not preclude further consideration of that candidate. The question that the Court must decide is whether this difference amounts to a distinction. For the following reasons, the Court concludes that Teal is distinguishable from the instant case and, therefore, rejects plaintiffs’ contention that the bottom line result does not negate adverse impact. In Teal, the actual holding of the Court is: [Respondent's claim of disparate impact from the examination, a pass-fail barrier to employment opportunity, states a prima facie case of employment discrimination under § 703(a)(2), despite their employer’s nondiscriminatory “bottom line,” and that “bottom line” is no defense to this prima facie case under § 703(h). Id., at 452, 102 S.Ct. at 2533. Thus, the holding is limited by its terms to a pass/fail barrier. Concededly, there is language in the opinion that sweeps more broadly. It does not appear that this language is essential to the reasoning of the majority opinion, however. The critical premise in the majority’s reasoning is that the pass/fail subtest eliminated individuals from further consideration. In addressing the precise issue before the Court, Schlei and Grossman, in their widely cited text on employment discrimination, comment: It seems probable that Teal’s rejection of the bottom line approach with respect to components that constitute a “pass/fail barrier” to further consideration in the selection process will not be applied to multicomponent selection processes where all candidates complete all components of the process before the selection is made. Although the majority did not specifically address this issue, the Second Circuit decision below, which was affirmed, specifically so held, and the four Justices in dissent so interpreted the majority opinion. B. Schlei & P. Grossman, Employment Discrimination Law (2nd ed. 1983), at 1377-1378. In Teal, the Second Circuit had written: Teal v. State of Connecticut, 645 F.2d 133, 138 (2nd Cir.1981), aff'd, 457 U.S. 440, 102 S.Ct. 2525, 73 L.Ed.2d 130 (1982), quoting Kirkland v. New York State Dept. of Correctional Services, 374 F.Supp. 1361, 1370 (S.D.N.Y.1974). Where all of the candidates participate in the entire selection process, and the overall results reveal no significant disparity of impact, scrutinizing individual questions or individual sub-tests would, indeed, “conflictQ with the dictates of common sense.” In Smith v. Troyan, 520 F.2d 492 (6th Cir.1975), cert. denied, 426 U.S. 934, 96 S.Ct. 2646, 49 L.Ed.2d 385 (1976), the Sixth Circuit held that, where the overall examination process had no disparate racial impact, it was error to require a defendant to prove that a component of the overall process was job-related, even though blacks fared less well on that sub-test. As in the instant case, the score on challenged sub-test was added to scores on other subtests and used to rank eligible candidates. 363 F.Supp. 1131, 1134-1135, 1144-1145 (N.D.Oh.1973). In these circumstances, the Court concluded, the plaintiff had failed to demonstrate prima facie that the test was unlawfully discriminatory. Id. at 497. The Court observed: Though general ability, or intelligence, tests have often been invalidated for their racially disproportionate impacts ... (cites omitted) ..., the disproportionate impacts have been in the hiring, rather than in the test results in and of themselves. Id., at 497-498. Teal does not squarely overrule this result, which must, therefore, be considered to be controlling law in this Circuit. The Uniform Guidelines on Employee Selection Procedures (“Guidelines”), 29 C.F.R. §§ 1607.1 et seq., also support the viéw that individual components of a testing procedure need not be justified by an employer where the entire testing procedure does not have an adverse impact. Where the total selection process does not have an adverse impact, [t]he Federal enforcement agencies ... will not expect a user to evaluate the individual components for adverse impact, or to validate such individual components, and will not take enforcement action based upon adverse impact of any component of that process, including the separate parts of a multipart selection procedure ... 29 C.F.R. § 1607.4(C). Although not binding upon this Court, the Uniform Guidelines are entitled to substantial deference as the interpretation of the Act by the enforcing agency. Albemarle Paper Co. v. Moody, 422 U.S. 405, 431, 95 S.Ct. 2362, 2378, 45 L.Ed.2d 280 (1975). Furthermore, there is some question whether Teal should be applied in case, like the instant case, which is brought as a class action. In Coser v. Moore, 587 F.Supp. 572 (E.D.N.Y.1983), aff'd, 739 F.2d 746 (2nd Cir.1984), the district court construed Teal to be inapplicable in the case of a class action by women alleging system-wide discrimination on the basis of sex. The court interpreted Teal as involving a claim by individuals who failed a written examination with a proven adverse impact. The error of the district court in Teal was to foreclose proven and unrebutted individual claims of discrimination by looking to an employer’s treatment of a group. Id. 587 F.Supp. at 588, emphasis in original. The case before the Coser court involved an attempt by a class of women to prove sex discrimination in hiring and promotions on a university-wide basis. To prove their case, the plaintiff class presented evidence of under-utilization of women in specific departments and divisions of the university. In response, the university presented evidence of lack of discrimination in university-wide hiring. The plaintiffs argued that this evidence was no defense under Teal. The issue was thus analogous to the issue presented by the instant case. The court rejected this reliance on Teal, reasoning as follows: Unlike the individual plaintiffs in Teal, plaintiffs here are a class of women seeking to prove by disparate impact analysis that Stony Brook has a pattern and practice of discrimination against women. If successful, that finding would then enable individual plaintiffs to rely on an inference of discrimination when they seek to prove their individual claims ... [T]he issue is whether Stony Brook’s neutral criteria have an adverse impact upon a group, and upholding Stony Brook’s defense against plaintiffs’ class action claims would not foreclose valid individual claims of discrimination, as the “bottom line” defense did in Teal. Id. at 588, emphasis in original. In the instant case as in Coser, plaintiffs are asserting a group claim. It follows that their proof of adverse impact necessarily depends upon the fortunes of the group. Thus, Teal’s focus upon the individual appears misplaced in the context of the instant case. Alternatively, plaintiffs propose to demonstrate adverse impact of the entire examination and selection process by focusing upon the differences in average scores of men and women on the 1980 firefighter exam. According to calculations made by plaintiffs’ expert Dr. Joseph Cranny, the average (or mean) total score of females on the 1980 examination was 80.13, while the average score for males was 85.21. Jt.Ex. 6. On the physical agility test alone, females averaged 36.00 while males averaged 49.98. Cranny also calculated a correlation of .36 between the score on the physical test and the overall test score. This showed, in his words, that there is a “slight tendency” for people who do well on the physical test to do well on the total test. Cranny Depo. of Dec. 21, 1984, at 27; Tr. 260. Finally, Cranny calculated that the statistical likelihood of these differences in scores arising by chance was extremely small. Plaintiffs argue that the differences in average scores means that women have less chance of being selected as firefighters than men. This lessened opportunity arises because candidates are selected in order of their scores upon the tests. Furthermore, a significant part of these differences in scores arise from the physical tests challenged in this litigation. Accordingly, plaintiffs conclude that women have been denied an equal opportunity to be considered for the position of firefighter. Upon consideration, the Court declines to draw the inference of denial of equal opportunity from the differences in average scores. It is surely relevant to note that the actual result of the 1980 selection process was that women were hired at a slightly higher rate than men. It is difficult to ascribe any meaning to the notion of denial of equal opportunity when it is considered in light of this fact. Title VII does not require employers to equalize the probabilities of hiring of the average members of two groups. Rather, it requires that actual individuals enjoy opportunities for employment free from discriminatory barriers. The reliance upon differences in mean scores is misplaced for an additional reason. There are far more applicants than there are available jobs in the Columbus Fire Department. Consequently, only the applicants earning the highest scores have any realistic chance of being hired. Thus, it is the impact of the examination upon the highest scorers, not the average impact that is significant. See United States v. City of Chicago, 549 F.2d 415, 429 (7th Cir.), cert. denied, 434 U.S. 875, 98 S.Ct. 225, 54 L.Ed.2d 155 (1977). Plaintiffs’ statistical expert admitted at trial that it was possible that there be significant differences in average scores for men and women on a test and yet that selection ratios be essentially the same due to the fact that all selections would occur from only a small region of the distributions. Tr. 376-377. Plaintiffs contend that the use of mean-difference analysis to show adverse impact was approved by Judge Duncan in Police Officers for Equal Rights v. City of Columbus, 644 F.Supp. 393 (S.D.Ohio 1985). One issue in that case was whether the sergeants promotional examinations administered by the Columbus Police Department had an adverse impact upon black police officers. Dr. Joseph Cranny appeared as an expert witness for the plaintiffs. He sought to show adverse impact by three methods: examination of selection ratios under the %’s rule of the Guidelines, mean difference analysis, and analysis of pass/ fail ratios. The Court concluded that plaintiffs had proven adverse impact under the %’s rule. Id. at 88. The Court also noted that plaintiffs has shown a difference in mean scores. Id. at 89. Thus, the case cannot properly be relied upon to support the contention that mean-difference analysis alone can be relied upon to prove adverse impact. The same is true of Walls v. Mississippi State Dept. of Public Welfare, 542 F.Supp. 281, 293 (N.D.Miss.1982), aff'd in relevant part, 730 F.2d 306 (5th Cir.1984) and Thomas v. City of Evanston, 610 F.Supp. 422, 427 (N.D.Ill.1985), both of which are also cited by plaintiffs. One case that does support the plaintiffs’ reliance on differences in average scores is Burney v. City of Pawtucket, 559 F.Supp. 1089 (D.R.I.1983). One issue in the case was whether physical agility requirements of a police academy had an adverse impact upon women. In order to graduate from the police academy, a recruit was required to score at least a “C” in each course, including a physical test. The score in the physical test was based equally upon performance upon certain physical tests and the subjective estimate by instructors of the recruit’s achievement and attitude. Id., at 1095-1096. Women earned lower scores on the test than did men. The defendants argued, however, that, notwithstanding their lower scores on the physical tests, all of the women who had entered the academy had graduated. Further, their scores on the physical test did not prevent women from graduating at or near the top of their classes. Id., at 1099. The Court rejected these argument, citing Teal for the proposition that such “bottom-line” arguments were no defense. This Court is unpersuaded by the reasoning of the Burney court. The plaintiff in Burney had been dismissed from the police academy for accumulating excessive demerits in the physical training program. Id., at 1100. Thus, as to her, adverse impact was established by the fact of her dismissal. The average scores of women on the physical tests are irrelevant to this. More generally, the Burney court, perhaps because it was faced with a case involving an individual claim, appears to have confused the theories of disparate impact and disparate treatment. In any event, it appears that Burney is out of line with the great weight of authority. Plaintiffs also assert that hiring ratios are unreliable in the instant case due to existence of dual hiring lists for black and white firefighters. The four women hired in 1980 were all selected from the black list. The list of black candidates was substantially shorter than the white list, and thus the process of one-for-one hiring led to hiring from further down the black list. Had there been only one list in 1980, plaintiffs contend, no women would have been hired. Thus, but for the dual lists, no women would have been hired from the 1980 lists. This argument is beside the point, even though it may well be factually correct. It is beside the point because the narrow issue presently before the Court is whether plaintiffs, as representatives of a class, have proven adverse impact by the 1980 firefighter examination. This is plaintiffs’ initial burden, and must be carried before defendants are required to justify the examination by showing that it is job-related. Whether plaintiffs would more easily have been able to carry their burden had things been different in 1980 is irrelevant. If the class of female applicants in 1980 was not adversely affected by the firefighter examination, then defendants are not liable for their acts connected with the 1980 exam and plaintiff are not entitled to a remedy with respect to that exam. The Court must decide a case such as instant one upon the facts before it, not upon theoretical possibilities. See Schlei and Grossman, supra, at 102 n. 94. In his testimony at trial, plaintiffs’ expert witness suggested that the equivalence of the hiring ratios in 1980 for male and female applicants was a “complete statistical artifact.” Tr. 282. This artifact arose because selection ratios for both males and females derive from large numbers of applicants and small numbers of appointments. Tr. 281-282. Even if this is correct, it is of no consequence for this case. It is the plaintiffs’ burden to prove adverse impact, not the burden of the defendants to prove absence of adverse impact. The Court also declines to assign any significance to the fact that 20 of 48 — or 42% — female applicants failed to appear from the physical exam, while only 303 of 1099 males — or about 28% — failed to appear. It is true that courts must be mindful of the possibility of deterrence of applicants before relying upon data regarding actual applicants. Dothard v. Rawlinson, 433 U.S. 321, 330, 97 S.Ct. 2720, 2727, 53 L.Ed.2d 786 (1977). While these numbers might suggest that some female applicants were deterred from appearing for the physical examination, compare Tr. 286-287 and Jt.Ex. 8, this suggestion is not supported by the evidence produced at trial. At trial, Dr. Gerald Barrett testified that he had made an informal survey of fire testing dropouts in the City of Akron. He found that women and blacks tend to drop out of the testing process at a higher rate than white males. He attributed this to a variety of factors, including change of career orientation and increased knowledge about the job of firefighter. Tr. 663-664. This testimony was corroborated by the testimony of Marie Hardin based upon her experiences in Columbus, Tr. 817, as well as the statement of named plaintiff Hornung that she is no longer interested in becoming a firefighter. Tr. 188. For these reasons, the Court concludes that plaintiffs have failed to prove adverse impact from the 1980 firefighter’s examination. Accordingly, defendants’ motion to dismiss plaintiffs’ Title YII claims regarding the 1980 examination must be GRANTED. Fed.R.Civ.P. 41(b). As in the case of the 1980 examination, the facts relevant to adverse impact in the 1984 examination have largely been stipulated. In 1984, a total of 2,886 males and 354 females appeared for the written test. Stip. # 32. Four hundred and fifteen males and fifty-two females failed the written test. Consequently, 2,471 males and 302 females were invited to take the physical test. Stip. #33. Of those invited, 1,343 males and 83 females appeared and completed the physical test. Stip. #35. Two females and 124 males have been selected from the 1984 eligibility lists; no further selections from the 1984 list are anticipated. Stip. #39. In 1984, the selection ratio for women was two out of 83, or 2%; for men, it was 124 out of 1,343, or 9%. The Guidelines have suggested as a rule of thumb that if the selection ratio of the protected group is less than 80% of the selection ratio of the non-protected group, there is likely to be adverse impact in the selection process. 29 C.F.R. § 1607.4(D). Here, the selection rate for female applicants is only about 22% that for male applicants. Further, Dr. Cranny testified at trial that he had performed a chi-square analysis upon these selection ratios, to determine the probability that these observed differences in selection ratios arose by chance. He testified that, using a one-tailed test, the observed difference was significant at the .05 level, that is, that there is only one chance in twenty that it was the mere result of chance. Tr. 285. Dr. Cranny admitted that the chi-square test was not significant if a two-tailed test was employed. Id. Although defendants question this use of a one-tailed test, the Court concludes that it is appropriate where, as here, the raw numbers indicate that women are selected at a lesser rate than men. In these circumstances, the question being asked is whether this apparent difference is real or a statistical artifact. This question is appropriately answered by a one-tailed test. There is no indication in this record that in reality women are being selected a higher rate than men in 1984. The Court concludes from this showing of violation of the 80% rule and the chi-square analysis that there was adverse impact upon women in the 1984 firefighter examination taken as a whole. This conclusion is corroborated by plaintiffs’ evidence regarding differences in mean scores of men and women upon the exam. Tr. 266-271; Jt.Ex. 7. As explained above, differences in mean scores may properly be relied upon to corroborate a showing of adverse impact by the 80% rule or chi-square analysis. Police Officers for Equal Rights v. City of Columbus, supra, at 88-89. Thus, plaintiffs have met their initial burden with respect to the 1984 firefighter examination. III. Because plaintiffs have shown adverse impact upon women in the 1984 examination, it becomes the defendants’ burden to show that the test has a “manifest relationship to the employment in question.” Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S.Ct. 849, 854, 28 L.Ed.2d 158 (1971). In making this showing, “[t]he touchstone is business necessity.” Id., at 431, 91 S.Ct. at 853. The standard of proof of job-relatedness has been stated by the Supreme Court as follows: [Discriminatory tests are impermissible unless shown, by professionally acceptable methods, to be “predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated.” 29 CFR § 1607.4(c). Albermarle Paper Co. v. Moody, 422 U.S. 405, 431, 95 S.Ct. 2362, 2378, 45 L.Ed.2d 280 (1975). In this section of this Opinion, the Courts makes its findings of fact and conclusions of law in support of its determination that defendants have failed to carry their burden. The 1984 Examination As has been noted, the 1984 firefighter examination consisted of a written test and a physical test. The written test had two components, a reading comprehension test and a mechanical reasoning test. Plaintiffs’ expert, Dr. Cranny, performed a statistical analysis of the scores of men and women on the 1984 examination and its various components. This analysis is not challenged by the defendants. On the total examination, men, as a group, achieved an average score of 78.5, while the average score of women, as a group, was 65.0. Jt.Ex. 7, at 5. Womens’ scores ranged from about 46 to about 82.4 while mens’ scores ranged from 0 to about 93. Jt.Ex. 7, at 5; Tr. 267-269. These total scores were the result of a series of statistical manipulations to standardize the raw scores on the various component tests. Stip. # 36. No issue has been raised regarding the propriety of these statistical manipulations. The highest score earned by a woman on the 1984 examination was 82.4. Three hundred and fifty-five white males and twenty-one black males earned higher scores. A total of 126 individuals were ultimately hired as firefighters from the 1984 lists. Had there not been dual hiring lists mandated by Court order, consequently, no females would have been hired as firefighters. In fact, two females were hired, both from the black eligibility list. The differences in male and female total scores resulted primarily from lower female scores on two components of the total test: the physical test and the mechanical reasoning test. Plaintiffs’ challenge is directed to these two components. There was no significant difference between the sexes on the reading comprehension test. Jt.Ex. 7, at 5; Tr. 270. On the mechanical reasoning test, men earned an average score of 19.6, while womens’ scores averaged 15.1. Jt.Ex. 7, at 5. The greatest disparity occurred on the physical test, where men averaged 76.1, while women averaged 44.5. A statistical analysis of test scores by defendants’ expert, Dr. Frank Landy, confirmed what is apparent from the raw numbers: the differences in male and female total scores are due primarily to the differences in scores upon the mechanical and physical tests. Jt.Ex. 11; Tr. 275-278. The 1984 firefighter physical capability test consisted of seven events. All seven events had pass levels, and it was necessary that a candidate pass in order to be considered for hiring. However, the pass levels were set very low, and it appears very few persons failed the physical exam. Five of the six events were scored. Jt.Ex. 52, 53. The events were administered to groups of applicants, at approximately ten minute intervals. 1) Beam Walk: Applicants were required to walk the length of a twenty foot beam that was four inches wide while carrying a roll of hose. The event was pass/fail only, and was not timed. Three tries were allowed. In 1984, one male failed the beam walk. Stip. # 36. Because virtually everyone passed this event, it is of the little consequence in this litigation. 2) Manual Dexterity: Applicants were required to screw three metal plugs into three threaded intakes on a piece of fire equipment, a multiversal, and then unscrew them. The event was timed, and a higher score was earned by completing the event more quickly. At a minimum, the event had to be completed in two minutes. In 1984, women scored about the same on this test event than did men. The average time of women was 26.8 seconds, while that of men was 25.5 seconds. Jt.Ex. 7, at 5; Tr. 272. This difference, however, was not statistically significant. Tr. 272. This event had been recommended for inclusion on the test by the Five Training Academy staff, who had experienced problems with recruits who lacked manual dexterity. The suggestion of plaintiffs’ expert, Dr. John Magel, an exercise physiologist, that women might be disadvantaged on this event due to less experience with tools than men, Tr. 467-468, is contradicted by the essential equality of average scores. See also Tr. 735-736. This event is a direct simulation of a common firefighting task, as firefighter Yolanda Stewart testified. Tr. 779-780. Francisca Figueroa suggested that there could be a problem with failing to line up the threads properly if one tried to work too fast on the job. Tr. 164-165. This does not appear to be a serious problem, however. 3) Sandbag Drag or Carry: Applicants were required to carry or drag a sand dummy through a designated serpentine course defined by a line, on the floor running around a number of poles. The dummy was the approximate size of a small duffle bag, with straps to grip, and weighed 125 pounds. The event was timed. Further, if the applicant chose to drag the dummy, or dropped it on any part of the course, the time was doubled. Also, if a pole was knocked over, a two-second penalty was imposed. Men performed substantially better than women on this test event. The mean time for men was 19.5 seconds, while that of women was 38.2 seconds. Because the event was timed, the lower score is better. This difference is statistically significant. Jt.Ex. 7, at 5; Tr. 272-273. The event was designed to test an applicant’s ability to drag or carry adults or children. Jt.Ex. 23. The event is an imperfect simulation. It appears from both expert and firefighter testimony that the weight of the bag is reasonable. Tr. 718-723; 784. However, the shape of the bag makes it awkward to carry, depriving individuals of the opportunity to use lifting techniques and leverage. Tr. 468-471; 786-787. An articulated dummy could readily have been used. Tr. 324. There is little sense to be made of doubling the score if the bag was dragged; the testimony at trial was that victims are typically dragged from a building, due to the presence of smoke. Tr. 69; 169; 827-828. No rationale appears for placing a premium on extréme speed; the testimony at trial indicates that the speed necessary depends on the circumstances. Tr. 108-169; 827. This event measures primarily upper body strength and anaerobic capacity. 4) Pike Pole Pull: The applicant pulls on a handle attached to a rope which runs through pulleys and is attached to a 75 pound weight. A repetition consists of pulling down the handle until it strikes a stand, and then returning the handle back to its original position; this, of course, involves lifting and lowering the 75 pound weight the distance of travel of the handle. The entire event lasts one minute. To pass, five repetitions must be completed in that time. The event is also scored: the more repetitions completed, the higher the score. The scores of males were substantially better than those of females. On the average, men accomplished 58.2 repetitions, while women performed 38.9 repetitions. Jt.Ex. 7, at 5. Unlike the other timed events, here the higher raw score is better. Tr. 273-274. The pike pole pull is a rough simulation of the actual use of pike poles, a rod with a hook on the end, to rip out walls and ceilings to search for fires. From the testimony at trial, the Court concludes that the seventy-five pound weight reasonably reflects the physical demands of the job. Jt.Ex. 21; Tr. 708-717. However, the simulation of the job is questionable, in a number of respects. Actual use of a pike pole involves both push and pull phases; the event tests only the pull phase. No rationale appears for the requirement of hitting the stand with the pole; this appears to be merely a device for score-keeping without any analogue in the actual use of the pike pole. It also appears that shorter persons — women tend to be shorter than men — were slightly disadvantaged by the event, because they could use their entire body to less advantage. Tr. 475; 715-716. This bias could have been eliminated by making the apparatus adjustable. And, the test appears to over-emphasize speed as compared with actual practice. The experts agree that the event measures upper body strength and the anaerobic capacity of the upper body. Jt.Ex. 20, at 3-4; Tr. 474. 5) Equipment Hoist: The applicant pulls a rope that runs over a roller to lift a sixty-five pound weight to a third-story window. The event is timed, and the more quickly the weight is raised, the better the score. After it is raised, the weight must be gently lowered to the ground. The lowering is not timed; however, if the weight is dropped, a penalty is assessed. In this timed event, the mean score for men was 10.7 seconds; the mean score for women was 26.9 seconds. Jt.Ex. 7, at 5. The event was designed to simulate raising ladders and hose by means of a hose roller, an actual piece of fire equipment. Jt.Ex. 28. It does not appear, however, that hoisting is done very often in actual firefighting, mainly because the roller takes too long to set up. Tr. 160-161, 175-176, 778. There is no indication why the weight of sixty-five pounds was chosen. Taller persons appear to enjoy a slight advantage in the event. Tr. 729. The experts agree that the test measures primarily muscular strength and anaerobic capacity of the arms. Jt.Ex. 20, at 4; Tr. 476-477. 6) Stairway Climb: The applicant was required to climb six flights of stairs and descend as rapidly as possible while wearing fire gear and carrying equipment, a roll of hose. The fire gear and equipment weighed about forty-seven pounds. The event was timed, and the score depended upon how quickly the event could be completed. The mean score for men was 65.7 seconds, while that of women was 102.2 seconds. Jt.Ex. 7, at 5. The standard deviation of the men’s score was 12.6; this means that approximately two-thirds of the male applicants in 1984 completed the event in a time ranging between 53.1 seconds and 78.3 seconds. The standard deviation of the womens’ score was 22.6, so that the comparable range was 79.6 to 124.8 seconds. Firefighters must frequently climb stairs, though it appears that in tall buildings they use elevators when possible. Sometimes firefighters must climb six or more stories. Tr. 763; 788-789. When equipment must be carried up many stories, it is shuttled up two or three flights of stairs at a time in a relay; this operation, called staging, is more efficient. Tr. 887. Firefighters infrequently run up stairs, both for safety reasons and to marshall their energy to perform when they arrive at the fire. Tr. 162-164; 789; 843-844. This test measures anaerobic power to sprint; performance does not depend primarily upon cardiovascular endurance or aerobic capacity. Tr. 505-510, 512; 547; 766-767. Three events on the test — the sandbag drag or carry, the pike pole pull, and the equipment hoist — measure primarily upper body strength. Further, the test tends to measure anaerobic capacity of the various muscles used. No event measures primarily aerobic capacity. The ten minute resting period between events contributed to the overall anaerobic character of the test. This observation that the various test events tend to measure similar physical abilities is confirmed by the statistical analysis performed by defendants’ expert, Dr. Landy. This shows quite substantial statistical correlations among scores on the various events. Jt.Ex. 11. Two of these events — the beam walk and manual dexterity test — had no significant impact upon the relative scores of men and women. Thus, the issues in this case turn upon the job-relatedness of four test events: the sandbag drag or carry, pike pole pull, equipment hoist, and stairway climb. These events were timed, with the exception of the pike pole pull, where the number of repetitions determined the score. In all cases, speed was of the essence. On the three timed events, the average time of women was roughly twice that of men. In the pike pole pull, men completed approximately 50% more repetitions, on the average. These differences determined the differences in total score between men and women upon the physical portion of the examination. And, to a substantial extent, they determined the differences between men and women in total score upon the written and physical examinations. Accordingly, the fairness of 1984 physical test stands or falls upon the validity of these four test events. There is a very scanty record regarding the other component of the 1984 firefighter examination under challenge here, the mechanical reasoning test. In 1984, it consisted of thirty written questions, and was scored by adding the number of questions answered correctly. Stip. # 31. It constituted 35% of an applicant’s total score. Id. There is no indication in the record why this 35% weighting was selected. Nor is there any indication of the content of the mechanical reasoning test, other than that conveyed by its name. As noted above, women scored less well than men on the mechanical test, averaging 15.1 as against 19.6, respectively. Jt.Ex. 7, at 5. The range of men’s scores from 9 to 29 was somewhat higher than women’s score range, which was from 8 to 23. Scores upon the mechanical reasoning test were highly correlated with total test scores; the correlation coefficient was .85. Jt.Ex. 11. Test Development An event that looms large over the test development process is this Court’s judgment and decree in Dozier v. Chupka, 395 F.Supp. 836 (S.D.Oh.1975). In Dozier, this Court concluded that the division of fire had employed standards and criteria for the selection of firefighters that had a racially discriminatory impact upon members of the plaintiff class, black male applicants for the position of firefighter. In 1973, the fire department had administered a written aptitude test to applicants. The Court considered the validation attempts undertaken by the defendants and concluded that the written examination had not been validated. 395 F.Supp. at 854. On April 16,1975, the Court entered a remedial decree enjoining the defendants from further discrimination on the basis of race. Further, the Court ordered the defendants to develop criteria for selection of firefighters and to validate these criteria in compliance with the Equal Employment Opportunity Guidelines on Testing as set forth in 26 C.F.R. §§ 1607.1 et seq. Id. at 859-860. In 1973, prior to the entry of the Dozier decree, a two-step selection process had been used by the fire department. First, all applicants took a written examination; to be considered further, an applicant must pass that examination. The next step was a physical agility test, which also was initially graded pass/fail. Applicants who passed both tests were then ranked on an eligibility list, their relative position being determined by adding their two test scores and certain bonus points, if any, for military serv