In selecting police officers for promotion to the position of sergeant in 2005 and 2008, the City of Boston and several other Massachusetts communities and state employers adapted a test developed by the State’s Human Resources Division (HRD), charged under state law with creating a selection tool that “fairly test[s] the knowledge, skills and abilities which can be practically and reliably measured and which are actually required” by the job in question. HRD’s testing process was the product of a long-running effort to eliminate the use of race or other improper considerations in public employment decisions.
HRD’s 2005 and 2008 examinations for police sergeant allowed no room for the subjective grading of applications. The total score of a test-taker who sat for the promotional examination in 2005 or 2008 was determined by two components: an 80-question written examination scored on a 100-point scale and an “education and experience” rating, also scored on a 100-point scale. The written examination counted for 80% of an applicant’s final score and the education and experience rating comprised the remaining 20%. Applicants needed an overall score of 70 to be considered for promotion. On top of the raw score from these two components, Massachusetts law affords special consideration for certain military veterans and individuals who have long records of service with the state.
The subject matter tested on the 2005 and 2008 examinations dates back to a 1991 “validation study” or “job analysis report” performed by the State. In conducting the validation study, the State surveyed police officers in 34 jurisdictions nationwide, issuing a questionnaire that sought to ascertain the kinds of knowledge, skills, abilities and personnel characteristics that police officers across the country deemed critical to the performance of a police sergeant’s responsibilities. The State then distributed the resulting list to high-ranking police officers in Massachusetts, who were asked to rank the traits according to how important they felt each was to a Massachusetts police sergeant’s performance of her duties.
Because many officers achieved at least the minimum passing score of 70 and there were relatively few openings for promotion to sergeant, all of those who were promoted scored well above the minimum in both 2005 and 2008. In 2005, nine of the 224 black and Hispanic candidates who took the exam were promoted, whereas 57 of the 401 other candidates were promoted. In 2008, one of the 213 black and Hispanic test-takers was promoted, whereas 25 of the 291 other candidates were promoted. The average scores for those who the statisticians called “minority test takers” fell below the average scores for the “non-minority test takers” by 6.4 points in 2005 and 6.6 points in 2008.
When a group of black and Hispanic test takers in the Boston Police Department challenged the test results on race discrimination grounds, the matter wound up before the federal First Circuit Court of Appeals. The Court rejected the lawsuit and upheld the validity of the testing process.
One of the key questions before the Court was whether the test was “job-related and consistent with business necessity,” the standard applied whenever a test or job standard has a disparate impact on a protected class of employees. In turn, this raised the question as to whether the test was “valid.” As the Court noted, “in simple terms, a selection practice is valid if it materially enhances the employer’s ability to pick individuals who are more likely to perform better than those not picked.”
The Court found the test met the standards for validity. The Court cited the testimony of an expert witness that “the exams were based on job analyses that validly identified the critical skills used by actual police sergeants and that the tests covered a representative sample of the content of the job. The expert went on to opine that the written question and answer portion of the exam, standing alone, nevertheless did not pass muster because it fell short of testing a representative sample of the key qualities and attributes that were identified by the two validation reports. However, the addition of the education and experience component effectively pushed the selection device as a whole across the finish line to show validity. It did this because the level and extent of work and educational experience and accomplishments listed by each applicant served as a useful, if imperfect, proxy for the kinds of qualities that were deemed to be important to a sergeant’s daily responsibilities, yet were insufficiently tested by the examination’s question and answer component.”
The officers also argued that the City of Boston’s rank-order selection process – quite independently from the written examination itself – led to a disparate impact on the basis of race. The Court disagreed, observing that while “the use of a ranking device requires a separate demonstration that there is a relationship between higher scores and better job performance, Boston’s selection method reliably predicts a candidate’s suitability for the job, such that persons who perform better under the test method are likely to perform better on the job. Rank ordering furthers the City’s interest in eliminating patronage and intentional racism under the guise of subjective selection criteria. Such a goal is itself a reasonable enough business need so as to provide some weight against a challenge that is unaccompanied by any showing that rank order selection itself caused any disparate impact in this case.”
Lopez v. City of Lawrence, 2016 WL 2897639 (1st Cir. 2016).