Second Circuit Holds Employer Need Not Provide Employer-Specific Data to Show that Examinations Are Job Related

M.O.C.H.A. Society, Inc., v. City of Buffalo, No. 10-cv-2168 (2d Cir. July 30, 2012): The Second Circuit Court of Appeals considered whether an employer can show that examinations having a disparate impact are job related and supported by business necessity when the job analysis did not rely on data specific to the employer. The plaintiffs, Men of Color Helping All, Inc. (M.O.C.H.A.), appealed two judgments dismissing their Title VII allegations that the defendants instituted and used discriminatory examinations resulting in disparate treatment of and a disparate impact on black firefighters. The plaintiffs challenged the testing criterion established by the defendants and questioned whether the examination was job related and supported by business necessity when the statistics, data, and information used to create the test did not come from the defendant or the City of Buffalo itself, and instead was produced from data collected from a statewide job analysis and nationwide fire lieutenant test plans. The Second Circuit rejected the plaintiffs’ arguments and held that the defendant met its burden of showing job-relatedness because the test applied a statewide job analysis and it was reasonable to infer that the same tasks and skills applicable to firefighters across the state were applicable to firefighters within the City of Buffalo. The court explained that the examination was “both content related and representative.” This case suggests that data, statistics, or information that is employer-specific is not necessarily required for an employer to demonstrate job-relatedness and business necessity.