Zamlen v. City of Cleveland

906 F.2d 209, 30 Fed. R. Serv. 555, 1990 U.S. App. LEXIS 9247, 53 Fair Empl. Prac. Cas. (BNA) 70, 53 Empl. Prac. Dec. (CCH) 40,004, 1990 WL 77214
CourtCourt of Appeals for the Sixth Circuit
DecidedJune 11, 1990
DocketNo. 88-3614
StatusPublished
Cited by42 cases

This text of 906 F.2d 209 (Zamlen v. City of Cleveland) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zamlen v. City of Cleveland, 906 F.2d 209, 30 Fed. R. Serv. 555, 1990 U.S. App. LEXIS 9247, 53 Fair Empl. Prac. Cas. (BNA) 70, 53 Empl. Prac. Dec. (CCH) 40,004, 1990 WL 77214 (6th Cir. 1990).

Opinion

ALAN E. NORRIS, Circuit Judge.

Plaintiffs appeal from an order of the district court entering judgment for defendants in this class action lawsuit alleging intentional discrimination under 42 U.S.C. § 1983, and municipal conduct causing a prohibited disparate impact under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The suit, which was brought on behalf of entry-level female firefighters in the City of Cleveland, challenged the rank-order written and physical capabilities selection examination established by the city as perpetuating the exclusion of women from firefighting positions. The district court granted defendants’ motion for a directed verdict on the charge of intentional discrimination and, at the close of all the evidence, found for defendants on the Title VII claim.

Citing Spurlock v. United Airlines, Inc., 475 F.2d 216, 219 (10th Cir.1972), the district court concluded that the possibility of hiring unqualified firefighters poses such significant risks to the public that it was appropriate to hold the city to a lighter burden of proving that its employment criteria were job-related than would be the ease if the job at issue did not implicate public safety. The district court then concluded that the examination was job-related and validated according to content, construct and criterion-related validation studies and that plaintiffs failed to establish the existence of a less restrictive alternative. Finally, the district court held that there was a sufficient correlation between higher test scores and job performance to warrant a rank-order hiring procedure. Zamlen v. City of Cleveland, 686 F.Supp. 631 (N.D.Ohio 1988).

On appeal, the unsuccessful female applicants challenge the decision of the district court on five bases: (1) the section 1983 claim was improperly dismissed on a motion for a directed verdict because they presented a prima facie case of intentional discrimination; (2) the district court improperly excluded the testimony of women firefighters; (3) the district court improperly allocated the burdens and invoked the Spurlock doctrine; (4) the 1983 entry-level [212]*212firefighter examination was not properly-validated; and (5) plaintiffs demonstrated less restrictive alternatives to the challenged examination. For the reasons that follow, we affirm the district court.

I. BACKGROUND

Much has been written about historical discrimination based upon race, sex, and national origin in public service occupations such as law enforcement and firefighting.1 In order to address the problem, many municipalities have employed rank-order written and physical abilities tests which ostensibly allow employers to select candidates who possess the highest degree of skills required to perform the job.2 Although these tests have been designed to eliminate discriminatory hiring practices, some have been shown to have a disparate impact on women and, for that reason, are challenged.

Two claims are usually advanced in support of the argument that rank-order physical tests unfairly discriminate against women. First, it is said that these tests measure attributes in which men traditionally excel, such as speed and strength (anaerobic traits), while ignoring those in which women traditionally are said to excel, such as stamina and endurance (aerobic traits). Second, it is claimed that the tested attributes are not necessarily related to the skills which the specific job requires. The examination at issue was challenged for precisely these reasons.

As of 1977, the city had never hired any woman firefighters. In that year, it hired Dr. Norman Henderson, a tenured professor of psychology at Oberlin College who had significant experience developing tests for various municipalities throughout the country, to design, administer and score an entry-level firefighter examination. Dr. Henderson was again hired to develop and administer an entry-level exam in 1980.

No women were hired after the 1977 and 1980 examinations were scored and the applicants ranked. Out of 911 applicants who took both the written and physical portions of the examination in 1980, 18 were female. Only one female, or 5.6% of the women who took the exam, scored high enough to be placed on the eligibility list. With a ranking of 634, however, she was too far down the list to be hired. In contrast, 787 male applicants, or 88.2%, were placed on the eligibility list.

In 1983, Dr. Henderson was once again hired by the city to design and administer an exam for firefighters. In light of the female applicants’ poor performance on the 1977 and 1980 examinations, and in order to minimize any disparate impact which his previous examinations may inadvertently have had on female applicants, Dr. Henderson prepared a new job analysis. The purpose of this new job analysis was to;

(1) establish a list of tasks required of entry-level firefighters;
(2) determine the frequency with which each task is performed and its importance to acceptable job performance;
(3) group tasks into broad job dimensions;
(4) assess the knowledge, skills and abilities required for learning and adequately performing critical and highly important job tasks;
(5) determine overall knowledge, skills and abilities required for entry-level fire[213]*213fighters with respect to the above tasks; and
(6) identify and define abilities and skills to be tested based upon the above data.

He then compiled an initial tasks list based upon a 1974 survey of 271 Cleveland firefighters. In the survey, firefighters rated 95 firefighting tasks in terms of frequency and importance. This initial list was then reviewed in conjunction with the Ohio Trade and Industrial Education Fire Service Training Manual and tasks lists from other cities. Dr. Henderson then produced a revised list consisting of 150 tasks and submitted this list to Chief William E. Lee, Director of the Cleveland Fire Training Academy. Chief Lee pared this list down to a final checklist of 135 tasks. Dr. Henderson also prepared a list of 12 intellectual and perceptual abilities relevant to effective firefighting.

Based upon this initial research, Dr. Henderson developed final written and physical components of the examination. The written component was designed to test reading comprehension, the ability to follow directions, mathematical skills, and other forms of cognitive reasoning. The physical component consisted of three events:

Event 1: Overhead Lift — using a 33 lb. barbell, candidates must lift the barbell overhead repeatedly for one minute or up to a maximum of 35 lifts.
Event 2: Fire Scene Set Up and Tower Climb

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906 F.2d 209, 30 Fed. R. Serv. 555, 1990 U.S. App. LEXIS 9247, 53 Fair Empl. Prac. Cas. (BNA) 70, 53 Empl. Prac. Dec. (CCH) 40,004, 1990 WL 77214, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zamlen-v-city-of-cleveland-ca6-1990.