In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1867

Sheila R. Bew, Rainier Conley,
Walter Griffin, et al.,

Plaintiffs-Appellants,

v.

City of Chicago and Illinois Local
Government Law Enforcement
Officers Training Board,

Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 96 C 1488--Rebecca R. Pallmeyer, Judge.

Argued January 18, 2001--Decided May 15, 2001



  Before Bauer, Manion, and Diane P. Wood,
Circuit Judges.

  Bauer, Circuit Judge. Plaintiffs,
probationary police officers discharged
for failing the Illinois Law Enforcement
Officers Certification Examination,
complain that the exam as administered by
the defendants, the City of Chicago and
the Illinois Local Government Law
Enforcement Officers Training Board, had
a disparate impact on African-American
and Hispanic (hereafter "minority")
officers in violation of Title VII. The
parties agree that plaintiffs established
prima facie disparate impact. This appeal
focuses on whether the City and the Board
established that the minimum passing
score and the rule that probationary
officers pass the exam in three tries
("three strikes rule") satisfied the
business necessity standard. We believe
that the defendants met their burden of
showing business necessity and we affirm
the district court’s decision.
I. Background

  The Board is charged under state law to
enforce the Illinois Police Board
Training Act 50 ILCS 705/1 by setting
minimum standards for the training of
police officers. As part of its efforts,
the Board created an exam for
probationary officers. After their
graduation from the police academy,
officers are assigned regular job duties
on a probationary basis until they pass
the exam. The City administered the exam
on a voluntary basis in exchange for
additional training monies until 1996,
when the exam became mandatory under
Illinois law. Plaintiffs are nine of the
failing African-American officers.

  To develop the certification exam, the
Board hired Justex Systems Inc.,
consultants with experience in peace
officer training. Justex surveyed active
officers and their supervisors to
determine the knowledge and skills
essential for entry-level police
officers. It then developed performance
objectives, and a training curriculum for
the police academy, and designed the
certification exam to test the new
curriculum. Justex employed a multi-step
process when developing the exam. Justex
designed a multiple-choice exam, each
question having four potential answers.
It created an 800 question pool. Each
question had four possible answers.
Justex tested the questions on graduating
recruits for six months. After analyzing
the results, Justex modified the
questions, eliminating or changing some
because they were misleading and some
because minorities disproportionately
chose the wrong answer.

  Justex then tackled the task of setting
the minimum passing score. Justex created
exams which allotted to various subjects
the same emphasis they were given in the
police academy curriculum. Justex pre-
tested the exam on recent graduates who
had studied the new curriculum and on
incumbent officers who had two to five
years of experience on the police force.
For minimum score purposes, Justex
considered only the incumbent officers’
pre-tests and determined that the average
exam score was 145.43 (rounded to 145)
out of 200. To effectuate the dual goals
of ensuring that probationary officers
possessed the requisite knowledge and to
avoid failing too many graduates, thereby
wasting money that the City had invested
in recruit training, Justex determined
that the pre-test failure rate should be
no higher than 30%.
  Justex contacted other police
certification boards to determine how
they set their minimum scores. Most used
standard deviations. Applying this
method, Justex calculated that the
standard deviation for the incumbents’
pre-test scores was 13 points. Setting
the passing score at one deviation below
the pre-test mean resulted in a cut-off
score of 132, or 66% correct. Using this
minimum passing score, only 19.6% of the
pre-tested incumbent officers failed the
exam. Further, Justex was confident that
the pass rate of the actual test-takers
would exceed that of the incumbent police
officers because the real test-takers
would (1) be recent graduates, (2) be
familiar with the new police curriculum,
which the certification exam was
specifically designed to test, and (3)
possess a strong motivation to study and
put forth true effort while taking the
exam. After some debate about using a 70%
cut-off score, the Board adopted Justex’s
recommendation for the minimum passing
score of 132 or 66%. Probationary
officers had three chances to pass the
certification exam. The score acted as an
absolute cut-off, not a rank-ordering. In
some years, all recruits passed the exam.


  From January 1990 until February 1998,
only 33 of 5,181 probationary officers,
less than 1%, failed the exam. Thirty-
two, or 97%, of the failing officers were
minorities despite the fact that minority
officers only comprised approximately 50%
of probationary officers. The over-all
pass rate for African-Americans was
98.24% as compared to 99.96% for whites.

  The City moved for summary judgment
arguing that the comparative pass rate of
98.24% for African-Americans legally
precluded a finding of disparate impact.
Under EEOC guidelines, disparate impact
is deemed established if minority pass
rates are 80% or less than the pass rate
for non-minorities. See 29 C.F.R. sec.
1607.4(D). The district court properly
noted that the 80% guideline may be
ignored when other statistical evidence
indicates a disparate impact. See id. The
district court found that the "test for
difference between independent
proportions" yielded a Z-score more than
five standard deviations from the norm,
and that this statistic established prima
facie disparate impact. The City renewed
its motion for summary judgment, arguing
that even if plaintiffs could establish a
prima facie case of disparate impact
discrimination, the City was entitled to
summary judgment because the exam and its
minimum passing score were business
necessities. Again, the district court
denied summary judgment and the case
proceeded to a trial before the court. At
trial, the defendants presented testimony
from Thomas Jurkanin, the Board’s
executive director, who explained how the
Board developed the certification exam.
He testified that the Board did not have
confidence in probationary officers who
could not obtain a score of 132. Further,
Dr. Larry Hoover, co-owner of Justex,
testified. He explained that there is no
scientific way to determine a cut-off
score which will separate "good" officers
from "bad."

  The district court ruled that plaintiffs
established a prima facie case of
disparate impact discrimination, thereby
shifting the burden to defendants to
prove that the exam and cut-off scores
were business necessities. The court
found that defendants successfully
shouldered their burden because the exam
bore a manifest relationship to the job,
and the cut-off score was "reasonable,
justified and consistent with
professional standards."

II. Discussion
  Title VII employs a burden-shifting
approach for disparate impact claims:

(1)(A) An unlawful employment practice
based on disparate impact is established
under this subchapter only if--

(i) a complaining party demonstrates
that a respondent uses a particular
employment practice that causes a
disparate impact on the basis of race,
color, religion, sex, or national origin
and the respondent fails to demonstrate
that the challenged practice is job
related for the position in question and
consistent with business necessity; or

(ii) the complaining party makes the
demonstration described in subparagraph
(C) with respect to an alternative
employment practice and the respondent
refuses to adopt such alternative
employment practice.
42 U.S.C. 2000e-2(k). Plaintiffs chose to
proceed under the first option. The
district court correctly found that the
certification exam created a disparate
impact based on race. Defendants do not
contest this finding. Our analysis there
fore focuses solely on whether defendants
have rebutted the prima facie showing by
proving that the cut-off score and three
strikes rule were job related business
necessities.

  The 1991 Civil Rights Act codifies the
concepts of business necessity and job
relatedness "enunciated by the Supreme
Court in Griggs v. Duke Power Co., 

 (1971), and in other Supreme
Court decisions prior to Wards Cove
Packing Co. v. Atonio, 

(1989)." Pub.L. 102-166 sec. 3. Griggs
does not distinguish business necessity
and job relatedness as two separate
standards. It states that: "The
touchstone is business necessity. If an
employment practice which operates to
exclude [a protected group] cannot be
shown to be related to job performance,
the practice is prohibited." 401 U.S. at
431. To satisfy the standard, an
employment test must "bear a demonstrable
relationship to successful performance of
the jobs for which it was used." See id.
We review the district court’s decision
for clear error.


  A.   Cut-off Score

  The law further refines the business
necessity and job related test to apply
to cut-off scores. We use the EEOC’s
standard: "Where cut-off scores are used,
they should normally be set so as to be
reasonable and consistent with normal
expectations of acceptable proficiency
within the work force." 29 C.F.R. sec.
1607.5(H). The district court correctly
summarized this standard when it stated:
"the Certification Exam ’must be scored
so that it properly discriminates between
those who can and cannot perform the job
well.’" Bew v. City of Chicago, 

 at *6 (N.D. Ill. Mar. 31, 2000)
(citing Thomas v. City of Evanston, 

, 429 (N.D. Ill. 1985)).
Explaining how cut-off scores can meet
the business necessity requirement, we
previously stated that cut-off scores
pass muster if, for example, they are
based on "’a professional estimate of the
requisite ability levels, or, at the very
least by analyzing the test results to
locate a logical ’break-point’ in the
distribution of scores.’" Gillespie v.
Wisconsin, 

, 1045 (7th Cir.
1985) (quoting Guardians Ass’n of New
York City v. Civil Serv. Comm’n, 

, 105 (2d Cir. 1980)).

  Defendants have shown that the cut-off
score is "reasonable and consistent with
normal expectations of acceptable
proficiency within the work force." The
exams mirrored the content and emphasis
of the police academy curriculum,
creating a correlation between a
probationary officer’s score and her
mastery of the knowledge necessary to be
a police officer. Further, Justex
adequately ensured the reliability of the
exam by pre-testing and modifying
questions based on the pre-test results.
See Bryant v. City of Chicago, 

, 1099 (7th Cir. 2000). To determine
the cut-off score, Justex engaged in more
pre-testing to determine how incumbent
officers performed. Although Justex began
considering the standard deviation method
of setting cut-off scores because it was
an industry standard, Justex explored
whether the method met the Board’s and
City’s needs. Particularly, the score
satisfied the City’s desire to certify
only well-trained officers as well as the
financial reality that the City had
finite training funds and required
adequate numbers of officers for staffing
purposes. Indeed, given that the overall
passing score exceeded 99%, we cannot
conclude that plaintiffs’ demand to be
reinstated is reasonable. To reduce a
cut-off score to the point where all
test-takers pass likely renders the test
a futile exercise because it ceases to
act as a measuring device. The cut-off
score met the business necessity and job
relatedness standard.

  Plaintiffs contend the certification
exam’s cut-off score is arbitrary because
it does not separate probationary
officers who will adequately perform
their jobs from those who will not. As
proof, plaintiffs point out that the
probationary officers were performing
their probationary police duties
satisfactorily. However, we do not hold
cut-off scores to standards so strict
that they must select all good job
performers and reject all bad. See
Guardians Ass’n of New York City, 630
F.2d at 90. Such a standard would be
nearly impossible for any test to meet.


  B.   Three Strikes

  Plaintiffs did not challenge the "three
strikes rule" explicitly before the
district court. Although the three
strikes analysis in plaintiffs’ brief
occasionally appears geared toward the
cut-off score, we assume that the "three
strikes rule" argument references the
requirement that probationary officers
pass the certification exam in three
tries or less. The City argues that
plaintiffs’ "three strikes" argument is
waived. The City is technically correct
that the three strikes argument is new.
However, when a new argument supports a
claim made before the district court, we
will usually address it. See Yee v. City
of Escondido, 

, 534-35 (1992)
("Once a federal claim is properly
presented, a party can make any argument
in support of that claim; parties are not
limited to the precise arguments they
made below."). Challenging the passage
requirement generally is not a separate
claim from contesting the minimum passing
score. Both are arguments in support of
the claim that the certification exam as
administered violates Title VII. Of
course, a party cannot add new facts to
the record, but here, the three strikes
argument grows out of the facts presented
to the district court.

  The three strikes argument is
inextricably connected with the validity
of the certification exam and the
propriety of the minimum score.
Plaintiffs readily admit and the district
court correctly found that the
certification exam was job related and
content valid. In light of this finding
and our holding that the cut-off score
was appropriate, it stands to reason that
defendants may require probationary
police officers to pass the certification
exam. In other words, requiring
plaintiffs to pass an exam, which,
despite its disparate impact, is in all
ways permissible under Title VII,
comports with the business necessity and
job related standards. See Griggs v. Duke
Power Co., 401 U.S. at 436 ("Nothing in
the Act precludes the use of testing or
measuring procedures; obviously they are
useful. What Congress has forbidden is
giving these devices and mechanisms
controlling force unless they are
demonstrably a reasonable measure of job
performance."). Defendants’ generous
policy of allowing probationary officers
three opportunities to pass the exam does
not impact the legal result.

  For the foregoing reasons, we AFFIRM the
district court’s decision. Like the
district court, we find it unnecessary to
address whether the Board is an employer
for the purposes of Title VII because the
plaintiffs have not otherwise sustained
their Title VII suit.