Police promotional testing and disparate impact
Those of us who have chosen policing as a way of life have a keen understanding of how difficult it is to get promoted to higher rank. There is a lot on the line: prestige, money, and often our future retirement income. It isn’t unusual for an officer to spend 25 years and not be promoted—either by choice, circumstance, or the competitiveness of the process.
If one chooses to enter the race it means countless hours away from family to study the material required. So, imagine if you were a white or Hispanic officer and you came out first on a promotional examination and the test was thrown out by your city because not enough African-American officers would be promoted. What if the situation was reversed and the test was thrown out because not enough white officers would be promoted? Either way, it’s a tough pill to swallow, but this is exactly what happened to a group of white and Hispanic firefighters in the City of New Haven, Connecticut because of something called “disparate impact.”
The case is presently before the United States Supreme Court and could have far-reaching implications for police hiring and promotion. It is not the intent of this article to take a side on the issue of reverse discrimination—my intent is to explain the facts of the case before the court so the reader will be informed about disparate impact, and Title VII of the Civil Rights Act of 1964.
Ricci v. Destefano
In April of 2009 the United States Supreme Court heard arguments in a reverse discrimination case (Ricci v Destefano) filed by white and Hispanic firefighters from the City of New Haven, Connecticut. Between November and December of 2003, promotional examinations were administered for the position of Fire Captain. The testing process consisted of a written examination and oral examination, each of which was weighted at fifty percent of a candidate’s total score. Final tests results were that 14 of the 15 highest scores were white applicants and the other a Hispanic. No black candidates were within the top 15. Note that out of the 41 applicants for fire captain, a number of black candidates passed the exam but did not score high enough to be promoted under the City of New Haven’s promotional examination process.
According to articles in the Hartford Courant and New Haven Register the city charter “expressly required that each vacancy be filed from among the top three scores; and promotions must be based on merit as determined by the competitive examinations.” The charter expressly prohibits “favoring any candidate based on his or her race.” City officials—indicating that the test results violated the disparate impact provisions in Title VII of the Civil Rights Act—threw out the results of the examinations because no black candidates scored high enough to be considered for promotion.
In 2004, the higher-scoring white and Hispanic firefighters filed a lawsuit claiming reverse discrimination. The case made its way through the Commission on Human Rights to the United States District Court, District of Connecticut, which found for the city. Then in 2007 the firefighters appealed to the United States Second Circuit Court of Appeals which denied the appeal. The attorney for the firefighters then appealed to the United States Supreme Court which agreed to hear the case.
In April and May of this year the Supreme Court heard arguments in the case and their decision is pending. A central issue in the case is whether the test results reflected a significant disparate impact against African-American applicants or whether white applicant was the subject of discrimination due to their race.
Title VII of the Civil Rights Act of 1964
In 1971, The United States Supreme Court in Griggs v Duke Power Company (U.S. 424, 431-2) found that Tile VII prohibits not only overt discrimination, but also practices that may be fair in form, but discriminatory in operation. Examples of practices that may be subject to disparate impact include written examinations, interviews, height/weight, and education requirements. According to 42 U.S.C. 2000e-2(k)(1)(A)(1) “the plaintiff must prove, generally through statistical comparisons, that the challenged practice or selection device has a substantial adverse impact on a protected group “. There are different methodologies of measuring adverse impact and whether or not the testing method resulted in “significant adverse impact” to a protected class. The EEOC’s Uniform Guidelines on Employee Selection Criteria finds an adverse impact if members of a protected class are selected at a rate less than eighty percent (80 percent) or four-fifths of that of another group. Another method is to use standard deviations—if the difference between the number of members of the protected class selected and the numbers that would be anticipated in a random selection system is more than two or three standard deviations.
So, it’s going to be very interesting what the United States Supreme Court ultimately decides in the New Haven firefighters’ case. Regardless of how the court decides in the case it certainly will be a benchmark for all future police examinations—both entry level and promotional. This is troubling because in every examination process I administer I meet with candidates and tell them, “Everyone has an equal chance walking in the door.” What I mean by this is that the testing process will be fair, objective, and valid. I have no control over what a town, city, or court does with the results of the testing process. As that famous American philosopher Yogi Berra said, “The future isn’t what is used to be.”
Be safe out there!
Larry the Jet