The Long Saga Of Memphis PD’s Affirmative Action Plan Continues

Other than perhaps the plans in place in the Chicago police and fire departments, no affirmative action plan has been subject to more litigation than that used for promotions by the Memphis Police Department. Over the years, courts have struck down numerous promotions on the grounds that they violate the rights of either minority or non-minority employees. A decision just before the turn of the new year saw yet another promotional examination overturned.

A brief history of the years of litigation includes the following:

1979. The City entered into a consent decree with the Afro-American Police Association, agreeing that “historically blacks have been excluded from or limited in hiring and promotional opportunities within its police department.” The consent decree committed the City to develop a validated promotional examination, and to the extent that qualified black applicants are available. . .the percentage of promotions awarded to blacks at each rank shall constitute at least the percentage which blacks constitute in the next rank below.”

1979-1994. While the City reiterated its promises to institute properly validated promotion tests, it failed to do so. In a 1994 decision, the Sixth Circuit Court of Appeals noted that “incredibly, the City continues to make police and fire department promotions according to procedures that have not been validated.” In a later lower court decision in the same case, a court held that the City’s use of affirmative action violated the equal protection rights of white employees.

1996. Working with the Department of Justice, the City developed a promotion process made up of four components: A written test, performance evaluations, seniority points, and a performance test/simulation that required candidates to demonstrate their abilities and skills of interviewing victims and suspects. The four sections received the following weights in calculating a final overall score: Performance test, 50%; written test, 20%; performance evaluations, 20%; and seniority, 10%. The process used no cut-off score for the written examination.

While the 1996 test was not challenged as being discriminatory, the Memphis Police Association filed a grievance complaining that the 1996 process violated its contract with the City. An arbitrator rejected the grievance.

2000. The City modeled its sergeant promotional process after the one it used in the 1996 process, with the four components receiving the following weights: Job knowledge test, 20%; video-based practical test, 50%; performance evaluations, 20%; and seniority, 10%. Unlike the 1996 process, the 2000 process utilized a cutoff score on the written test as an initial hurdle in the promotion process. When not enough African-American candidates passed the written examination, the City lowered the passing score so that 389 of the 444 candidates passed the written examination.

The City discovered that portions of the practical exercise component of the test had been leaked to certain applicants prior to their taking the test, thereby compromising the results. The City responded to the compromise of the promotion process by excluding the practical component from consideration in scoring and increasing the weight given to the written test and the performance evaluations from 20% to 45%. A court later held that the elimination of the practical exercise test violated the City’s own civil service rules.

2002. While the lawsuit over the 2000 examination was pending, the City conducted another promotional examination for sergeant, with test security tightened to prevent the kind of compromise that occurred in 2000. All candidates were informed in advance of the format of the test and the weighting of the various components, and this structure was reflected in the actual process administered. A study guide was provided to all candidates to “level the playing field.”

Out of 274 African-American candidates and 240 white candidates, 86 African-Americans were selected for promotion, compared to 176 whites. On January 10, 2003, the City took the unusual step of promoting all 264 patrol officers selected at one time instead of its usual practice of promoting on the basis of need over a two-year period. In the meantime, a group of minority applicants challenged the 2002 promotions in court on the grounds that the testing process violated their equal protection rights.

In the latest judicial pronouncement on the City’s promotional and affirmative action systems, a federal trial court held that the 2002 examination was racially discriminatory. The Court easily found that the test had a disparate impact on minority applicants, imposing on the City the burden of proving that the examination was job-related and consistent with business necessity.

The Court had little difficulty finding that the examination was job-related, concluding that the test was scientifically constructed based upon an analysis of 44 “knowledge, skills, abilities and personal characteristics (KSAPs) needed for successful performance as a sergeant.” The Court rejected the argument that the City could not use seniority as part of the scoring process, concluding a bona fide seniority system does not violate the law even if it perpetuates past discrimination. Under this precedent, a seniority system is valid as long as there is no intent to discriminate and it has been maintained free from any illegal purpose.”

The Court also found that the City’s tests were reliable, and that the use of a rank-ordered promotional list complied with equal protection requirements.

Where the Court found that the City’s processes ran afoul of the law was the City’s failure to use alternative tests that did not have a discriminatory impact.

Citing an EEOC regulation, the Court noted that “where two or more selection procedures are available which serve the user’s legitimate interest in efficient and trustworthy workmanship, and which are substantially equally valid for a given purpose, the user should use the procedure which has been demonstrated to have the lesser adverse impact.” The Court questioned why the City could not have simply re-used the practical exercise it used in 1996, which had “substantial content validity and had less adverse impact than any test used in the 2002 process.” The Court also pointed to a promotional process used in Chicago, one with which the City’s promotional expert was familiar, as testing for the same qualities as the City’s examination, but as having no adverse impact on minorities.

Striking down the 2002 examination, the Court concluded: “It is of considerable significance that the City had achieved a successful promotional program in 1996 and yet failed to build upon that success. While the 1996 process was not perfect it appears to have satisfied all of the legal requirements of promotional processes. The 2000 process departed substantially from the 1996 model in its abandonment of the practical exercise and re-weighting of the remaining elements. The 2002 processes, while arguably more sophisticated than its predecessors, suffered from a grossly disproportionate impact on minority candidates.

“It is unnecessary for the Court to scrutinize the advisability of incorporating assessments of qualities such as integrity and conscientiousness or the relative merits of the Chicago process. It is sufficient to acknowledge that the existence of such alternative measures and methods belies the City’s position that it had no choice but to go forward with the 2002 promotion process despite its adverse impact because no alternative methods with less adverse impact were available.”

The Court struggled with the issue of the remedy it should award, and was clearly chary of overturning more than 100 promotions. Eventually, the Court ruled that the City promote each adversely-impacted minority candidate who had not “already been promoted to the rank of sergeant within 30 days.” The Court also ordered the City to pay back pay to the non-promoted candidates, retroactive to the dates of the first denial of their promotions.

Johnson v. City of Memphis, 2006 WL 3827481 (W.D. Tenn. 2006).