The Second Circuit upheld a fire department promotional test in M.O.C.H.A. Society v. City of Buffalo, Nos. 11-2184-cv, 10-2168-cv, 7/30/2012. The two docket numbers are there because of separate appeals for testing in 1998 and 2002. In both cases district court (same judge) granted summary judgment to the city on disparate treatment regarding the 1998 testing and on the overall testing procedure in 2002. The court ruled for the city on disparate impact after a bench trial regarding the 1998 test and foreclosed litigation on what was essentially the same situation in 2002. Here’s what makes the case interesting, straight from the opinion of the Court of Appeals:

Can an employer show that promotional examinations having a disparate impact on a protected class are job related and supported by business necessity when the job analysis that produced the test relied on data not specific to the employer at issue? We answer that question in the affirmative based on the record developed in these related cases. While employer-specific data may make it easier for an employer to carry his burden in the second step of Title VII analysis, such evidence is not required as a matter of law to support a factual finding of job relatedness and business necessity.

The appellate court noted that the trial judge, John T. Curtin, had longstanding experience with promotions in the Buffalo Fire Department, starting with a 1978 finding of a pattern-or-practice of discrimination against African Americans, Latinos, and women. Presumably Judge Curtin would be no pushover for a weak showing of validity. (more…)