“The best test takers are not necessarily the best police sergeants.” With that opening line, a Superior Court judge ruled that the multiple-choice police sergeant’s promotional examination, administered for decades by the Commonwealth’s Human Resource Division (HRD), discriminated against minority police officers. Candidates for promotion take the exam and then are ranked with a total score: 80% is derived from the examination results and 20% is derived from the candidates’ education and experience. Those candidates at the top of the list are first in line for promotion. In Tatum et al. v. Commonwealth of Massachusetts, the judge found that the examination failed to adequately test for relevant job qualifications and that the exam result, combined with the ranking system, adversely impacted minority candidates.
In 2007, several officers sued the state and some municipalities, alleging that the exam unfairly discriminated against them due to race and national origin. While it took well over a decade of protracted litigation in state and federal court, ultimately Judge Douglas Wilkins conducted a two-week bench trial during the summer of 2022 concerning the issue of liability (a separate trial concerning damages is scheduled for March 2023).
The judge found that there was a “massive amount of evidence proving the known and unjustified disparate impact” of the test. The exam result accounted for 80% of the candidate’s total score, and the judge found that the 80% allocation had no discernible basis, based mostly on “rote memorization of facts and passages” from the study materials and not on situational judgment, skills, and knowledge. The judge noted that HRD knew that the examination was racially biased but failed to adopt alternatives that would have minimized the adverse impact of the exam on minority candidates. In sum, the judge found that a racial disparity existed based on test-taking ability alone and not on the qualifications of the candidate. Thus, the candidates were not ranked on a basis that was substantially job-related.
As a result of this case, the firefighter promotional examination scheduled for November was cancelled and HRD will need to develop a new exam process. This case does not affect those individuals already promoted. Further, the method of promotion is generally a mandatory subject of bargaining with the union, so affected municipal police and fire departments can and should negotiate with the unions on alternate methods of promotion.