Boston PD Rank-Ordered Promotions Held Discriminatory

Ten black police sergeants sued the City of Boston under Title VII of the Civil Rights Act of 1964, alleging that the multiple-choice examinations the Department administered in 2005 and 2008 to select which sergeants to promote to the rank of lieutenant had a racially disparate impact on minority candidates and were insufficiently job-related to pass muster under Title VII. A trial court recently found the City’s practices to be discriminatory.

The Court found the case important enough that it began its long (20,000-word) opinion with these introductory comments: “This is a profoundly important case, one that evokes the finest of our nation’s aspirations to give everyone equal opportunity and a fair shot. In deciding this case, the Court first emphasizes what this case is not about: this is not a case about conscious racial prejudice. Rather, the Plaintiffs’ case is rooted in their allegation that the seemingly benign multiple-choice examination promotion process, while facially neutral, was slanted in favor of white candidates.”

The Department usually selects promotional candidates from a list in strict rank order based on the candidates’ performance on the promotional exam. If the candidates have tied scores, the Department may consider factors such as past work history and diversity. The Department may “bypass” a candidate on the list – that is, to step out of strict rank order – but the employer must have a defensible reason for the bypass, such as a history of disciplinary infractions.

In 2005, 127 sergeants took the lieutenant promotional exam: 104 were white, 22 black, and one Hispanic. The passing rate of the written exam for minorities was 50%, and for whites, 88%. Twenty-seven sergeants were promoted: 25 were white, one was black, and one was Hispanic.

In 2008, 91 sergeants took the promotional exam: 65 were white, 25 were black, and one was Hispanic. The passing rate for minorities was 69%, and for whites was 94%. Thirty-three were promoted: 28 were white and 5 were black.

The Court found that these results established a “disparate impact” on minorities, requiring the City to prove that the tests were job-related and consistent with business necessity. The Court found that the City failed to prove that its tests were job-related. The Court observed that “when using a multiple choice exam, the test developer must convert a job analysis into a test plan to ensure a direct and strong relationship between the job analysis and the exam. The Court cannot find, however, that the test plan ensured a strong relationship between the job analysis and the exam.”

At its core, the Court’s opinion was that the City failed to prove that “a higher score is likely to result in better job performance. The state statute that the City argues requires civil service employers to promote in strict rank order cannot serve as an affirmative defense for the City: Title VII relieves employers of state hiring requirements which purport to require or permit any discriminatory practice. Banding based on scores that have no statistical difference to diminish the adverse impact of a rank-order system seems consistent with the statutory scheme and applicable case law under Title VII.

“The Plaintiffs have won their case. The Court and the parties must now proceed to the remedial phase of the lawsuit. The Court invites the parties to reach an agreement concerning an appropriate remedy. If they cannot, the Plaintiffs shall propose a remedy within 30 days of the date of this order, and the Defendants shall respond within 30 days thereafter.”

Smith v. City of Boston, 2015 WL 7194554 (D. Mass. 2015).