(1976), the Supreme Court stressed that the 1972 amendment was primarily based on Section 5. Id., at 453, n.9, 96 S. Ct. 2666.
It is the position of the City that Washington v. Davis, supra, which held that intent to discriminate must be proven in a discrimination action based on constitutional equal protection, bars Congress from legislatively prohibiting, pursuant to Section 5, any practices which are not prohibited by the strictures of the first four sections of the Fourteenth Amendment. In support of its position, the City cites several lower court decisions which have held that intent must be proven against a municipal employer. For example, in Friend v. Leidinger, 446 F. Supp. 361 (E.D.Va.1977), the court reasoned that Congress' power to enforce the Fourteenth Amendment under Section could be no broader than the constitutional provision which Congress was seeking to vindicate and that, in light of Washington v. Davis, supra, intent must be proven. Similarly, the court in Scott v. City of Anniston, 430 F. Supp. 508 (N.D.Ala.1977), stated that "it is simple logic that a statute can be no broader than its Constitutional base." Id., at 515. We decline to follow these decisions because we believe they misconstrue the grant of legislative authority inherent in Section 5.
The relationship between Section 5 and the substantive provisions of the Fourteenth Amendment was examined in Katzenbach v. Morgan, 384 U.S. 641, 86 S. Ct. 1717, 16 L. Ed. 2d 828 (1966), where the Supreme Court concluded that Congress was empowered to legislatively prohibit a voting test pursuant to Section 5 which was not violative of the equal protection clause of the Fourteenth Amendment. In Lassiter v. Northampton Elections Board, 360 U.S. 45, 79 S. Ct. 985, 3 L. Ed. 2d 1072 (1959), the Supreme Court had upheld a literacy test challenged on the ground that it violated the Fourteenth Amendment. Subsequently, Congress enacted the Voting Rights Act of 1965, 42 U.S.C. §§ 1973, Et seq., Section 4 of which prohibited tests such as the one upheld in Lassiter. Thus, the Court in Katzenbach was squarely faced with the issue of whether Congress may legislatively prohibit a voting device pursuant to Section 5 when the device was not violative of the substantive strictures of the Amendment. The Court began its analysis by noting that by "including § 5 the draftsmen sought to grant to Congress by a specific provision applicable to the Fourteenth Amendment, the same broad powers expressed in the Necessary and Proper Clause, Art. I, § 8, cl. 18." Id., 384 U.S. at 650, 86 S. Ct. at 1723. The Court pointed out that the test that is to be used in examining an exercise of Section 5 power is the test formulated in McCulloch v. Maryland, 17 U.S. 316, 4 Wheat. 316, 4 L. Ed. 579 (1819), with regard to the Necessary and Proper Clause. Id., 384 U.S. at 651, 86 S. Ct. 1731. That test is phrased in terms of whether the legislative action in question constitutes "appropriate legislation" under Section 5, keeping in mind that Section 5 "is a positive grant of legislative power authorizing Congress to exercise its discretion in determining whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment." Katzenbach v. Morgan, supra, 384 U.S. at 651, 86 S. Ct. at 1723, 1724. The Court stressed that it was for Congress to "assess and weigh the various conflicting considerations," Id., at 653, 86 S. Ct. at 1725, and that the Court could only determine if there was a basis for Congress to resolve the conflict as it did. Id. Applying these standards, the Court found that the Voting Rights Act was "appropriate legislation" and was "plainly adapted" to further the aims of the Equal Protection Clause and, thus, was a valid exercise of Section 5 authority.
Applying these standards to the 1972 amendment to Title VII, we hold that it is "appropriate legislation" and that it is "plainly adapted" to the end of enforcing the Equal Protection Clause. There can be no doubt that the amendment was the result of congressional weighing and evaluation of the problem of discrimination by municipal employers, See S.Rep.No.92-415, 92nd Cong., 1st Sess., pp. 10-11 (1971); 118 Cong.Rec. 1816 (1972) (remarks of Senator Williams, floor manager of the bill); H.Rep.No.92-238, 92nd Cong., 1st Sess., p. 19, Et seq. (1971); U.S.Code Cong. & Admin.News 1972, p. 2137. Further, it is clear that the application of the Griggs standard is "plainly adapted" to the end of eliminating intentional discrimination, as well as to the end of eliminating the racially disparate consequences of facially neutral employment screening devices in the municipal employment context. The City argues, however, that, even if the 1972 amendment can be premised on Section 5, National League of Cities v. Usery prohibits such an incursion into the sovereign affairs of the municipality. We do not agree. The Usery Court made it clear that it was expressing no view as to whether a different result would obtain if it were examining an exercise of Section 5 power. National League of Cities v. Usery, supra, 426 U.S., at 852, 96 S. Ct. 2465. In conclusion, therefore, we hold that the Griggs standard has been mandated by Congress in actions against municipal employers under Title VII; that Congress was validly exercising its power pursuant to Section 5 of the Fourteenth Amendment; and, that, therefore, the plaintiffs need not prove that the City intended to discriminate against minorities in the development and administration of the 1977 Fire Command series written examination. See Firefighters Institute v. City of St. Louis, 549 F.2d 506 (8th Cir. 1977); Harrington v. Vandalia-Butler Board of Education, 418 F. Supp. 603 (S.D.Ohio 1976).
VI. Statistical Evidence
It is well established that statistical evidence alone, where persuasive, may be sufficient to prove that a testing device has a grossly disproportionate impact. Teamsters v. United States, supra, 431 U.S., at 339, 97 S. Ct. 1843; Robinson v. City of Dallas, 514 F.2d 1271, 1273 (5th Cir. 1975). However, the Teamsters Court made it clear that no hard and fast rules can be applied with regard to statistical evidence and that a court should not abdicate its responsibility as a finder of fact in deciding a case simply on the basis of statistics because "statistics are not irrefutable; they come in infinite variety and, like any other kind of evidence, they may be rebutted. In short, their usefulness depends on all of the surrounding facts and circumstances." Id., 431 U.S. at 340, 97 S. Ct. at 1856-1857. Therefore, as a starting point from which to examine the impact of a testing device or an employment criterion, courts have looked at the relative success rates for each racial group or, in the alternative, have examined the rate at which an employment criterion disqualifies racial groups. See, e.g., Griggs v. Duke Power Co., supra (high school diploma requirement was met by 34% Of white males, but was met by only 12% Of black males). Secondly, the court must ascertain whether the number of candidates is so small that the statistical results do not reflect the "reality of the employment situation," Dendy v. Washington Hospital Center, 431 F. Supp. 873, 876 (D.D.C.1977), or that the statistical universe is so small that the results achieved are due merely to chance or random distribution. Id. See also Perham v. Ladd, 436 F. Supp. 1101 (N.D.Ill.1977); Stewart v. General Motors Corporation, 542 F.2d 445 (7th Cir. 1976); Ochoa v. Monsanto Corp., 473 F.2d 318 (5th Cir. 1973). Thirdly, statistical evidence tending to show a disparate impact, though based on a relatively small number of employment decisions, may be augmented by evidence of significant acts of discrimination, Kaplan v. Internat'l Alliance of Theatrical, 525 F.2d 1354 (9th Cir. 1975), which must be viewed in the context of the past employment practices of the defendant. See Teamsters v. United States, supra.
VII. The Prima Facie Case
Plaintiffs seek to prove a Prima facie case on the basis of the statistical results of the 1977 Fire Command series viewed in the historical and institutional context in which the examinations were given. (N.T. 3-4.) Specifically, they argue that: (1) the pass rates of blacks and whites is grossly disparate and clearly violates the Griggs standard; (2) the number of candidates can be statistically analyzed; (3) it can be demonstrated that the proportions of passing candidates was not simply due to chance; and, (4) the statistics are bolstered by evidence of a history of discrimination by the City.
In response, the City argues that: (1) although the passing rates do demonstrate a grossly disparate impact, in light of the small numbers of black candidates, the results are due to chance alone; (2) there is no statistically significant difference in the mean scores for blacks and whites on the examination; and, (3) the statistics are not sufficiently augmented by evidence of a history of discrimination or evidence of specific acts of current discrimination.
The results of the examinations are presented below in tabular form and show that, by any standard, the impact on black candidates was grossly disproportionate:
A comparison of the passing rates by race shows that no black candidates passed any of the examinations, while 32% To 40% Of the white candidates passed. Such a disparity in passing rates far exceeds that of the employment criterion struck down in Dothard v. Rawlinson, supra. In Dothard, the Supreme Court found that a Prima facie case had been proven with regard to a height requirement which disqualified 33% Of the women candidates, but only disqualified 1% Of the men candidates. Dothard v. Rawlinson, supra, 433 U.S., at 329, 97 S. Ct. 2720. See also Jackson v. Nassau Co. Civ. Ser. Comm., 424 F. Supp. 1162 (E.D.N.Y.1976). Therefore, we find that the examinations had a grossly disproportionate impact on minority candidates.
A more difficult question presented is whether these figures are based upon a statistical universe sufficiently large to be probative, and whether or not these statistics reflect the "reality of the employment situation." Dendy v. Washington Hospital Center, supra. We must find that the results were not merely due to chance or random distribution due to the small number of employment decisions and that the determination of adverse impact is statistically significant, See Commonwealth v. O'Neill, 473 F.2d 1029 (3d Cir. 1973), in order to find that a Prima facie case has been proven. To this end, the plaintiffs presented the testimony of Dr. Jagbir Singh, a statistician who addressed the question of how likely it was that these results were merely due to chance. In response, the City presented the testimony of Dr. Allen Sockoloff. Dr. Singh testified that he examined the data and performed a "Fisher exact probability test" ("Fisher test"), by which he calculated the exact probability of observing the results which actually occurred under the hypothesis that blacks and whites had an equal opportunity to pass. Statistically, he examined the question, "Does a smaller proportion of blacks score at or above the cut-off point?" Dr. Singh performed the test on three sets of data. First, he examined the results of the Battalion Chief examination and concluded that the probability of observing 105 candidates, 99 of whom were white and 6 of whom were black, and having all of the 40 passing candidates be white was .0513 or 5.13%. (N.T. 169.) Second, he aggregated the results of the three examinations and calculated that the probability of having 154 candidates for three different tests 145 white candidates and 9 black candidates and having all of the 58 passing candidates be white was .014 or 1.4% (N.T. 170.) Lastly, because some of the candidates took more than one examination, he calculated that, out of the total of 178 examinations taken (169 by white candidates and 9 by black candidates), the probability of having only 62 whites pass was .0189 or 1.89%. (N.T. 196.) The last two aggregated calculations would be very persuasive if premised upon valid assumptions. However, the City argues that it has not been shown that the tests are similar enough from the psychometric point of view to be aggregated for purposes of determining adverse impact. Further, the City argues that the results of the tests performed on that data received from the Battalion Chief examination was not significant at the 5% Level and that, therefore, the plaintiffs have not proven a Prima facie case with regard to that examination. The plaintiffs argue in response that it was valid to aggregate the scores and that the results of the Battalion Chief analysis are statistically significant.
The Court notes that Dr. Singh agreed on cross-examination that, if it were not proper from a psychometric point of view to aggregate the results of the three examinations, his statistics would not be valid. (N.T. 182.) The plaintiffs attempted to prove the propriety of aggregation through the testimony of Dr. Felix Lopez, an expert in test construction, who testified as follows:
Q. . . . Do you have an opinion as to whether for purposes of analyzing the statistical impact of the cutting score it's appropriate as a matter of psychometrics (to) aggregate the three examinations and determine whether there is an adverse impact taken collectively?
A. . . . I certainly feel that it is perfectly legitimate to do that in this case.
(N.T. 63.) On the other hand, the City's expert on test construction, Mr. David Wagner, testified that it was not valid to aggregate the scores (N.T. 425), and this opinion was echoed by Dr. Sockoloff in his testimony. (N.T. 305.) While it would appear that we must choose between diametrically opposed positions held by equally impressive and knowledgeable experts, when Dr. Lopez was provided with an opportunity to explain his opinion, this conflict disappears. On cross-examination, he testified that it was his practice to examine the test content for the three jobs, then to look at the common elements (here, 61 out of 117, or 53% Of the questions were common to all three examinations) (N.T. 149), and that he then "would combine the 61 common items . . . and look what that is doing to the total score . . . I would do some kind of analysis like that." (N.T. 154.) On cross-examination, he further explained his position:
Q. Dr. Lopez, would you combine the three distributions . . . to determine disparate impact?