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BUSHEY ET AL. v. NEW YORK STATE CIVIL SERVICE COMMISSION ET AL.

January 7, 1985

BUSHEY ET AL
v.
NEW YORK STATE CIVIL SERVICE COMMISSION ET AL.



C.A. 2d Cir. Reported below: 733 F.2d 220.

[ 469 U.S. Page 1117]

Certiorari denied.

JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and JUSTICE WHITE join, dissenting.

In Steelworkers v. Weber, 443 U.S. 193 (1979), this Court held that a private employer does not violate Title VII of the 1964 Civil Rights Act when it voluntarily undertakes "affirmative action," as long as that action is taken "to eliminate conspicuous racial imbalance in traditionally segregated job categories." Id., at 209. But the Weber Court began its analysis by stating:

 "We emphasize at the outset the narrowness of our inquiry. Since the Kaiser-USWA plan does not involve state action, this case does not present an alleged violation of the Equal Protection Clause of the Fourteenth Amendment." Id., at 200.

I believe that this case squarely presents the question left open in Weber.

The controversy here centers on a written examination required of all applicants seeking the position of "Correction Captain" in the New York State prison correctional system. The exam results are combined with credit for seniority and Armed Forces service to arrive at a ranking list, which list is used to fill positions as they become open. The specific test in issue was administered to 275 candidates on January 30, 1982. Thirty-two of these were minority candidates, and 243 were nonminority. The test was an

[ 469 U.S. Page 1118]

     objective test consisting of 103 questions. Of the minority candidates, eight, or 25%, passed the examination by scoring 70% or higher. Forty-eight percent of the nonminorities passed.

The State reviewed these results in light of a rule of the Equal Employment Opportunity Commission, which states that evidence that an employer selects minority candidates for employment positions at a rate that is less than 80% of the selection rate for nonminorities "will generally be regarded . . . as evidence of adverse impact," see 29 CFR ยง 1607.4(D) (1984). It concluded that the test's minority selection rate of approximately 50% demonstrated an adverse impact on minority candidates. Given this statistical disparity, the fact that the State had been sued by minorities with respect to two prior examinations for correctional officer positions,*fn1 and the lack of any indication that minorities would not perform equally well in the position of Correction Captain, the State unilaterally decided to raise the scores of minority candidates by establishing a separate normalization curve for minority candidates and equating the mean of that curve with the mean for nonminorities. The upshot of this action was that eight more minority candidates passed the test; although no nonminority candidates were taken off the list the scores of all minority candidates were increased, and the highest scoring minority candidate became the highest scoring of all the candidates.

Petitioners are several nonminority candidates who claim they were injured by the State's action because they were "bumped" down the ranking list by minority candidates whose scores were increased. They brought suit claiming that the State's unilateral adoption of race-conscious employment policies violated Title VII and the Fourteenth Amendment. The District Court agreed that the State's action violated Title VII*fn2 for three reasons: first, it did not believe that the evidence supplied by the State established a prima facie case of discrimination; second, it did not believe in

[ 469 U.S. Page 1119]

     any event that the State could take race-conscious action when it had not attempted or considered rebutting a prima facie case with proof that the employment decisions were based on legitimate job-related criteria -- in this case a professionally developed job-related examination; and third, it thought the remedy adopted by the State was "fundamentally flawed." 571 F. Supp. 1562 (1983).

The Court of Appeals for the Second Circuit reversed. 733 F.2d 220 (1984). It held that the State had properly determined that a prima facie case was made out by reference to the EEOC guidelines. It then reasoned that the State was not required to rebut this case before taking the affirmative race-conscious steps taken here. The court suggested that the District Court's analysis was contrary to Title VII's policy favoring voluntary compliance because it only permitted the State to take race-conscious actions after there had been a judicial determination that the Act had been violated. Such a rule would actually promote litigation, and would only result in the State waiting to be sued and then settling. The court relied on its prior opinion in Kirkland v. New York State Dept. of Correctional Services, 711 F.2d 1117 (1983), cert. denied, 465 U.S. 1005 (1984), in which it had approved a settlement with respect to the results of the written examination for Correction Lieutenant. The court also relied on Weber, supra, noting that in Weber this Court had approved voluntary affirmative action even in the absence of a determination that the employer had discriminated. In a footnote, the opinion refused to distinguish Weber on the ground that this case involved a public employer. 733 F.2d, at 227, n. 8. Finally, the court rejected the District Court's ...


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