Lawsuit Alleges New Jersey Sergeant Promotional Exams are Badly Biased

Posted on January 8, 2010 by Donald Barbati

 

As reported in the Trentonian on January 8, 2010, the United States Department of Justice filed a lawsuit against the State of New Jersey alleging that New Jersey’s widespread use of a written exam to promote police sergeants discriminates against blacks and Hispanics. The lawsuit, filed in federal court in Newark, accuses New Jersey of civil rights violations for using a written exam in which black and Hispanic candidates scored significantly and consistently lower than their white counterparts.

Moreover, according to the complaint, even when minority candidates passed the test, they were not promoted as often as white candidates because their scores were lower and promotions were granted first to those with the highest scores and most seniority. Significantly, the Department of Justice has not taken issue with using seniority as a factor for promotions. As such, the lawsuit seeks to stop New Jersey from continuing to use the exam and asks the court to order it to offer relief to officers “harmed” by the exam by extending them promotions, back pay and retroactive seniority.

Test scores from 2000 to 2008 reviewed by the Justice Department showed that 89 percent of the white candidates who took the exam passed, compared to 77 percent of Hispanics and 73 percent of black candidates. With the exception of the New Jersey State Police, most law enforcement agencies across the state use the exam.

“This complaint should send a clear message to all public employers that employment practices with unlawful discriminatory impact on account of race or national origin will not be tolerated,” said Thomas Perez, Assistant Attorney General for the Civil Rights Division. “The Justice Department will take all necessary action to ensure that such discriminatory practices are eliminated and that the victims of such practices are made whole.”

In a similar case, a federal judge in July sided with the Justice Department in ruling that New York City had discriminated against minorities in its hiring of firefighters, causing blacks and Hispanics to comprise only 10 percent of the fire department’s work force, even though most city residents are minorities.

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U.S. Supreme Court Rules for White Firefighters Over Promotions

Posted on June 29, 2009 by Donald Barbati

 

On June 29, 2009, the U.S. Supreme Court ruled that white firefighters in New Haven, Connecticut were unfairly denied promotions because of their race, reversing a decision that high court nominee Sonia Sotomayor endorsed as an appeals court judge.

New Haven was wrong to scrap a promotion exam because no African-Americans and only two Hispanic firefighters were likely to be made lieutenants or captains based on the results, the Court said in a 5-4 decision. The city said that it had acted to avoid a lawsuit from minorities.

The ruling could alter employment practices nationwide and make it harder to prove discrimination when there is no evidence it was intentional. “Fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions,” Justice Anthony Kennedy said in his opinion for the Court. He was joined by Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia, and Clarence Thomas.

In dissent, Justice Ruth Bader Ginsburg said the white firefighters “understandably attract this court’s sympathy. But they had no vested right to promotion. Nor have persons received promotions in preference to them.” Justices Stephen Breyer, David Souter, and John Paul Stevens signed onto Ginsburg’s dissent, which she read aloud in Court.

The decision had its origins in New Haven’s need to fill vacancies for lieutenants and captains in its fire department. It hired an outside firm to design a test, which was given to 77 candidates for lieutenant and 41 candidates for captain. Fifty six firefighters passed the exams, including 41 whites, 22 blacks and 18 hispanics. Of those, only 17 whites and two whites could expect promotion. 

The city eventually decided to not use the exam to determine promotions. It said it acted because it might have been vulnerable to claims that the exam had a “disparate impact” on minorities in violation of the Civil Rights Act of 1964. The white firefighters said the decision violated the same law’s protection on intentional discrimination.  

The city declined to validate the test after it was given, a step that could have identified flaws or determined that there were no serious problems with it. In addition, city officials could not say what was wrong with the test, other than the racially skewed results. 

Justice Kennedy said, “The city could be liable for disparate-impact discrimination only if the examinations were not job related” or the city failed to use a less discriminatory alternative. We conclude that there is no strong basis in evidence to establish that the test was deficient in either of these respects.” 

Alternatively, Ginsburg said the court should have assessed “the starkly disparate results” of the exams against the backdrop of historical and ongoing inequality in the New Haven fire department. As of 2003, she said, only one of the city’s 21 fire captains was African-American.

Until this decision, Ginsburg said, the civil rights law’s prohibitions on intentional discrimination and disparate impact were complimentary, both aimed at ending workplace discrimination. “Today’s decision sets these paired directives at odds,” she said.

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