The Port Authority of New York and New Jersey is an agency created by agreement between the states of New York and New Jersey to develop transportation facilities in the New York metropolitan area. The Port Authority's 13 facilities are policed by the Port Authority's Public Safety Department.

The Department's promotional process requires officers to have served two years as an officer or detective as of the date of the promotional examination, meet certain attendance requirements, and pass an examination. Beginning in 1996, all officers who passed were equally eligible for promotion without regard to score.

Commanding officers of the various facilities were responsible for recommending eligible officers for promotion. Some commanding officers made the recommendations themselves, while others delegated full authority to the officers' direct supervisors. The Department had no set criteria or protocols for recommendation for promotion.

From 1996 to 2001, the next step in the promotion process was the so-called “Chief's Board,” at which chiefs and deputy chiefs would review the promotion folders of the officers recommended for promotion. The Chief's Board then decided which officers to recommend to the superintendent, who made the final decision. After 2001, a new superintendent disbanded the Chief's Board, and solicited recommendations for promotion from deputy chiefs, who in turn asked assistant chiefs to collect recommendations from the commanding officers of each facility.

Before 2001, no Asian-American officer had ever been promoted to sergeant. On January 31, 2001, the Asian Jade Society, on behalf of its members, filed a charge of discrimination with the EEOC. When the EEOC issued a “right to sue” letter, the Society brought a federal court lawsuit.

After a trial, a jury found that the Department's promotion practices had a disparate impact upon Asian-American police officers. The jury also found that the Port Authority had a pattern or practice of intentional discrimination against Asian-American police officers, and that certain specific Asian-American officers had been discriminated against as part of this pattern or practice. In addition, the jury found that the Port Authority's decision not to promote those officers was motivated by their ethnicity.

The Port Authority requested that the judge overturn the jury's verdict or, in the alternative, order a new trial. The Court rejected both requests.

The main thrust of the Port Authority's argument was that the statistical evidence presented by the Society's expert, Dr. Cavanaugh, was insufficient to support the jury's findings of discrimination. The Port Authority's point was a technical one – that only a level of “statistical significance at the 5% level” is generally sufficient to warrant an inference of discrimination.

The Court disagreed, finding that “where statistics are based on a relatively small number of occurrences, the presence or absence of statistical significance is not a reliable indicator of disparate impact. In such an instance, other indicia raising an inference of discrimination must be examined. Dr. Cavanaugh determined that between 1996 and 2001, there was approximately a 13% likelihood that the examination results were due to chance as opposed to intentional discrimination, given the fact that no Asian-American officers out of 12 candidates were promoted as opposed to 36 of 259 Caucasian candidates. On cross examination, Dr. Cavanaugh stated that although his results were not significant at the 5% level, he believed the small sample size made it impossible to provide statistical evidence at the 5% level even with perfect discrimination.

“Each plaintiff testified about his qualifications, service record, awards, commendations, and achievements, and the Port Authority had an opportunity to cross-examine each plaintiff. The plaintiffs presented evidence that the Port Authority's promotion process lacked clear standards and guidelines, and that non-Asian-American officers who may have been less qualified were promoted, sometimes even after one of the plaintiffs had been recommended for promotion by the Chief's Board. The jury deliberated for several days and made a number of requests to review the evidence presented at trial. The jury verdict reflects careful attention to whether each plaintiff had proven his individual case. Ultimately, I cannot conclude that the verdict could only have been a result of sheer surmise and conjecture or that the evidence was so overwhelmingly in favor of the Port Authority that a reasonable and fair-minded jury could not have returned its verdict.”

Port Authority Police Asian Jade Soc. of New York & New Jersey, Inc. v. Port Authority of New York and New Jersey, 2010 WL 132349 (S.D. N.Y. 2010).

This article appears in the March 2010 issue