The opinion of the court was delivered by: SIRICA
Under a policy instituted in 1975, defendant Washington Hospital Center (WHC) began requiring employees in its Respiratory Therapy Department to pass a standardized examination administered by the National Board of Respiratory Therapy (NBRT) as a condition for keeping their positions as respiratory therapists, receiving promotions and preferential work assignments. According to the policy, if a respiratory therapist fails the examination once, no adverse action is taken. But if a therapist fails the exam twice, the WHC demotes the employee to the position of respiratory technician or, if no such position is available, the employee is discharged. This yet uncertified
class action was brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (1970), and the Civil Rights Act of 1866, 42 U.S.C. § 1981 (1970), for damages and an injunction preventing the WHC from continuing to use the NBRT examination as a condition of employment. The matter is presently before the Court having come on for hearing on plaintiffs' motion for a preliminary injunction.
The examination being challenged is prepared and administered by the NBRT, a body composed of respiratory therapists and physicians practicing in the field of respiratory care. It is given biannually and consists of both a written and an oral component. The written portion of the test consists of 200 multiple-choice questions covering a broad range of subjects dealing with medical science, respiratory therapy equipment and clinical procedures. Upon successful completion of the NBRT examination, a therapist qualifies as being "registered" and receives a credential attesting to success on the test.
Each of the plaintiffs is black. The theory underlying their application for preliminary relief is that use of the NBRT examination violates Title VII in that the test results have impacted disproportionately on black WHC employees. In plaintiffs' view, this disproportionate impact, when considered together with the nature of plaintiffs' present injuries, the comparative hardships on the parties should a preliminary injunction issue, and considerations of the public interest, furnishes an adequate basis for enjoining use of the NBRT examination pending final disposition of the case on its merits. Virginia Petroleum Jobbers Association v. F.P.C., 104 U.S.App.D.C. 106, 259 F.2d 921, 925 (1958).
The governing principles of law are straight-forward. "The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination." McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). To meet this threshold burden, the complainant need only show the discriminatory effect of the challenged employment practice, including "practices that are fair in form, but discriminatory in operation." Griggs v. Duke Power Co., 401 U.S. 424, 431, 28 L. Ed. 2d 158, 91 S. Ct. 849 (1971). Statistical evidence standing alone affords an accepted basis for demonstrating discriminatory effect. Davis v. Washington, 168 U.S.App.D.C. 42, 512 F.2d 956, 958-59 (1975) rev'd, 426 U.S. 229, 96 S. Ct. 3020, 48 L. Ed. 2d 597 (1976); Robinson v. City of Dallas, 514 F.2d 1271, 1273 (5th Cir. 1975). Once a prima facie case of discrimination is presented, the burden shifts to the defendant to show that the discriminatory practice "[bears] a demonstrable relationship to successful performance of the jobs" for which it is used. Griggs, supra, 401 U.S. at 431; Davis, supra, 512 F.2d at 959.
In an effort to demonstrate the discriminatory effect of the NBRT test requirement, plaintiffs point to statistics canvassing the race of WHC employees who have, as required, taken the NBRT examination and their comparative success on it. These statistics indicate that during the period 1961 through 1975
some 35 employees sat for the test, 26 of whom were white, while the remaining 9 were black. These statistics further indicate that all 26 of the white employees who took the exam passed it, while only 4 of the 9 black employees did so. On the basis of these comparative results, plaintiffs bottom their contention that a prima facie showing of discriminatory effect is evident. This Court, however, disagrees.
To be persuasive, statistical evidence must rest on data large enough to mirror the reality of the employment situation. If, on the one hand, the courts were to ignore broadly based statistical data, that would be manifestly unfair to Title VII complainants. But if, on the other hand, the courts were to rely heavily on statistics drawn from narrow samples, that would inevitably upset legitimate employment practices for reasons of appearance rather than substance. The courts must be astute to safeguard both of these conflicting interests. See generally Note, Employment Discrimination: Statistics and Preferences Under Title VII, 59 Va. L. Rev. 462, 466 (1973).
In the instant matter, the Court is convinced that the data offered by plaintiffs represents too slender a reed on which to rest the weighty remedy of preliminary relief. To begin with, the entire sample on which plaintiffs base their prima facie showing consists of a total of 35 employees. With so meager a sample, if just a handful of test results had turned out differently, the comparative percentages of black (44%) and white (100%) success on the exam would have been correspondingly, and substantially, different. In the Court's estimation, "Such small numbers are insufficient to support any conclusion as to whether the rule has a discriminatory effect." Robinson, supra, 514 F.2d at 1273.
Chicano Police Officer's Association v. Stover, 526 F.2d 431 (10th Cir. 1975) is not to the contrary. Plaintiffs rely on Stover for the principle that "The smallness of the sample should not be grounds here for rejecting the proof." Id. at 439. But in Stover, in sharp numerical contrast to the instant case, the statistical evidence before the court reflected a sample many times greater and, hence, significantly more persuasive, than is present here. In light of this striking numerical disparity, Stover is plainly inapposite. Reliance on that case is similarly inappropriate in that there, unlike here, the challenged practice was a local test for which corroborating national statistics were not available.
In rejecting as insufficient the statistical evidence presented by plaintiffs in support of their application for preliminary relief, no view whatsoever is expressed concerning the adequacy of these statistics to support an ultimate finding of discriminatory effect when the case is later resolved on the merits. If, as was pointed out during the hearing in this matter, discovery produces supplemental data
that buttresses the evidence already presented, the Court will give this data whatever consideration it deserves. For present purposes, however, the Court finds that the evidence now before it does not warrant the conclusion that plaintiffs will likely succeed on the merits. Accordingly, plaintiffs' motion for preliminary relief must be denied.
John J. Sirica / United States ...