{"id":162,"date":"2022-11-03T20:16:44","date_gmt":"2022-11-04T00:16:44","guid":{"rendered":"https:\/\/blogs.duanemorris.com\/classactiondefense\/?p=162"},"modified":"2022-11-03T20:16:44","modified_gmt":"2022-11-04T00:16:44","slug":"massachusetts-state-court-rules-in-class-action-that-a-multiple-choice-promotional-test-discriminated-against-minority-police-officers","status":"publish","type":"post","link":"https:\/\/blogs.duanemorris.com\/classactiondefense\/2022\/11\/03\/massachusetts-state-court-rules-in-class-action-that-a-multiple-choice-promotional-test-discriminated-against-minority-police-officers\/","title":{"rendered":"Massachusetts State Court Rules In Class Action That A Multiple-Choice Promotional Test Discriminated Against Minority Police Officers"},"content":{"rendered":"

\"\"<\/a>By Gerald L. Maatman, Jr., Jennifer A. Riley, and Gregory Tsonis <\/strong><\/em><\/p>\n

Duane Morris Takeaways \u2013<\/strong><\/em>\u00a0In Tatum et al. v. Commonwealth of Massachusetts, et al.<\/em>, C.A. No. 0984-CV-00576 (Mass. Sup. Ct. 2022), a Massachusetts state court judge conducted a class trial found<\/a> that a multiple-choice promotional exam – used for years by various police departments to determine promotions – discriminated against Black and Latino police officers in violation of Massachusetts law. \u00a0In analyzing the test format, which largely required \u201crote memorization,\u201d the court opined that the exam failed to adequately test for the relevant job qualifications, as well as the police departments\u2019 use of a ranking system from which candidates were selected for promotion.\u00a0 Ultimately, the court held that the test and ranking system adversely impacted minorities and interfered with their ability to promote to sergeant.\u00a0 The decision demonstrates why employers must be careful to implement policies and processes that do not have a discriminatory impact, even if on their face such policies and practices appear to be neutral.<\/p>\n

Case Background<\/strong><\/p>\n

The Commonwealth of Massachusetts\u2019 Human Resource Division (\u201cHRD\u201d), for 50 years, administered a written multiple-choice test to police officers to determine promotion to sergeant.\u00a0 Id<\/em>. at 4.\u00a0 Officers were ranked almost exclusively according to their scores on the written examination, with individuals at the top of the list being first in line for promotion.\u00a0 In 2007, certain police officers that were subject to the written examination sued the Commonwealth of Massachusetts, and the municipalities in which they worked as police officers. They alleged that the testing process unfairly discriminated against them due to their race and national origin in violation of state and federal law.\u00a0 Id<\/em>. at 2.\u00a0 \u00a0The U.S. Court of Appeal for the First Circuit, in an interlocutory appeal, held that state defendants did not qualify as \u201cemployers\u201d under Title VII and were entitled to sovereign immunity, thereby resulting in the dismissal of state law claims against the state defendants, which the plaintiffs subsequently re-filed in state court.\u00a0 Id<\/em>.\u00a0 Though the Massachusetts state court initially dismissed the entire action based on the First Circuit decision, the Massachusetts Supreme Judicial Court remanded several claims, rejected the defense of sovereign immunity, and held that the plaintiffs could be entitled to relief under Massachusetts law prohibiting discrimination.\u00a0 Id<\/em>. at 3.\u00a0 The state trial court subsequently certified a class of current and former police officers that took the written examination administered by HRD in certain years between 2005 and 2012.\u00a0 Id<\/em>.<\/p>\n

Ultimately, the plaintiffs lost their federal court case after a bench trial, with the federal court finding that the tests had a disparate impact on minorities but that plaintiffs failed to prove that Boston refused to adopt an alternative test with less disparate impact.\u00a0 Id<\/em>.\u00a0 Though the defendants in the state court case tried to dismiss the entire state court action based on the federal court\u2019s decision, the Massachusetts Appeals Court held that defendants did not show issue preclusion and it authorized the case for trial.\u00a0 Id<\/em>. at 3-4.\u00a0 The state trial court conducted a two-week bench trial in June and July of 2022 limited to the issue of class-wide liability.\u00a0 Id<\/em>. at 1.<\/p>\n

The State Court\u2019s Findings <\/strong>O<\/strong>f Fact <\/strong>A<\/strong>nd Conclusions <\/strong>O<\/strong>f Law <\/strong><\/p>\n

The state court found a \u201cmassive amount of evidence proving the known and unjustified disparate impact\u201d of HRD\u2019s testing format.\u00a0 Id<\/em>. at 1. Turning first to the format of the test, the court noted that exam questions \u201clargely test for rote memorization of facts and passages taken directly from textbooks that candidates are asked to study,\u201d and studies commissioned by the HRD over the years to measure the test\u2019s efficacy \u201cdid not identify test-taking skills and lack of test-related anxiety as job related.\u201d\u00a0 \u00a0\u00a0Id<\/em>. at 8.\u00a0 The multiple choice portion of the test accounted for 80% of a candidate\u2019s score, with 20% coming from an \u201cEducation and Experience\u201d form that each candidate would complete.\u00a0 Id<\/em>.\u00a0 The court explained that the allocated percentages had no discernible basis, and further disparaged the Education and Experience portion since every officer received 14 of the 20 available points simply for being able to sit for the exam.\u00a0 Id<\/em>. at 8, 28.\u00a0 Though HRD worked with consultants and subject matter experts to identify the knowledge, skills, and abilities (\u201cKSAs\u201d) important to the job of sergeant, the court noted that the multiple choice questions could only test for 22% to 40% of the relevant KSAs and \u201cdid not in fact test for some skills that could have been tested\u201d due to the types of multiple choice questions asked.\u00a0 Id<\/em>. at 13-15. \u00a0Rather than focusing on abstract knowledge and memorization of academic textbooks, the court reasoned that questions testing situational judgment, for example, should have been used but were not.\u00a0 Id<\/em>. at 19.<\/p>\n

Given the format of the multiple-choice exam and the types of questions asked, the court observed that a racial disparity existed based on test-taking ability, and not on job qualifications.\u00a0 Noting that \u201c[t]est taking skills are built through practice,\u201d the court adopted the opinions of expert witnesses who testified that \u201cminorities, in general, have had fewer opportunities to participate in our educational system\u201d and differences in average test scores of minorities on tests of cognitive abilities \u201cis due to socioeconomic differences, lack of access to opportunity, and structural racism that exists within the system.\u201d\u00a0 Id<\/em>. at 26.\u00a0 Ultimately, the court found that \u201c[b]ecause HRD failed to test many important KSAs, measured test-taking skills and memorization, enabled test-related anxiety to affect results and failed to ask questions that focused upon measuring job-related knowledge, its format did not rank candidates for promotional purposes on a basis that was substantially job related.\u201d\u00a0 Id<\/em>. at 14.<\/p>\n

The court also noted that HRD had knowledge of the shortcomings and adverse impact of its tests before and during their use.\u00a0 A 1987 job analysis conducted by a consulting firm recommended that a written test \u201cdid not assess many of the attributes needed for the job\u201d and \u201cshould account for no more than 40% of the overall score.\u201d\u00a0 Id<\/em>. at 16.\u00a0 In addition, a study conducted for the Boston Police Department in 2000 advised HRD that an examination should include non-written components, such as an assessment center and performance review system.\u00a0 Id<\/em>. at 17.\u00a0 The failure to include a performance based assessment technique, the court explained, \u201cinjects extraneous influences (such as test-taking ability and temporary memorization skills) into the selection process.\u201d\u00a0 Id<\/em>.\u00a0 Analysis of the rate of minorities\u2019 promotion to sergeant showed that minorities were promoted at a drastically lower rate than non-minority officers.\u00a0 Id<\/em>. at 17-19.<\/p>\n

The court further determined that Defendants failed to adopt alternatives that would have minimized or eliminated the adverse impact of the tests on minority test-takers.\u00a0 The tests could have contained fewer questions, reducing the \u201clarge cognitive loads\u201d and memorization required, in order to reduce the adverse impact.\u00a0 Id<\/em>. at 45.\u00a0 Rather than using questions that require \u201crote memorization,\u201d HRD could have used questions that tested situational judgment and were written in plain language instead of \u201cconvoluted phrases.\u201d\u00a0 Id<\/em>.\u00a0 Most notably, banding, in which scores within a range are treated as equal, would have reduced adverse impact because there was no evidence that a police officer that scored one point higher than another was more qualified or would make a better sergeant.\u00a0 Id<\/em>. at 45-46.\u00a0 Further, HRD adopted 11-point bands in 2009 at the recommendation of a consultant.\u00a0 Id<\/em>.\u00a0 Finally, the use of other testing methods, such as oral assessments and performance reviews, to assess nonwritten skills \u201csuch as leadership, conscientiousness, calmness under pressure, decision-making, interpersonal skills, and oral communication\u201d would have reduced the adverse impact of the tests.\u00a0 Id<\/em>. at 47.<\/p>\n

As a result of the myriad shortcomings of HRD\u2019s written tests, the Court described at length the statistically significant adverse impact of the tests on minority test-takers across all years as compared to white test-takers in the form of lower passing rates, lower overall scores, lower rate of promotion of minority police officers, and increased delay in promotion of minority police officers.\u00a0 Id<\/em>. at 34-42.\u00a0 Given the adverse impact on scoring and the use of a rank-order list to determine promotions, the court found an adverse impact on the ability and timeliness of minority police officers to achieve promotion to sergeant.\u00a0 Id<\/em>. at 57.\u00a0 The multiple-choice format of the exam and the ranking of candidates were not job-related, the court also held, given the invalidity of the exam and ranking process.\u00a0 Id<\/em>. at 61-63.\u00a0 Based upon its factual findings, the court held that \u201c[o]verwhelmingly persuasive evidence proves that HRD interfered with the class members’ rights to consideration for promotion to police sergeant without regard to race or national origin.\u201d\u00a0 Id<\/em>. at 75.<\/p>\n

Implications for Employers<\/strong><\/p>\n

The Tatum<\/em> decision illustrates why employers with criteria for promotion must be cognizant of how such testing systems may adversely impact classes of individuals in violation of state and federal law.\u00a0 While the testing system used in this case appeared neutral, in practice the test and ranking system resulted in less promotions and increased delay in promotions for minorities.\u00a0 This case demonstrates the potential for costly and years-long class action lawsuits stemming from employer policies and practices in determining promotions.\u00a0 Given these risks, it behooves employers to ensure that neutral policies and practices do not adversely impact groups of individuals.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Gerald L. Maatman, Jr., Jennifer A. Riley, and Gregory Tsonis Duane Morris Takeaways \u2013\u00a0In Tatum et al. v. Commonwealth of Massachusetts, et al., C.A. No. 0984-CV-00576 (Mass. Sup. Ct. 2022), a Massachusetts state court judge conducted a class trial found that a multiple-choice promotional exam – used for years by various police departments to … <\/p>\n

Continue reading “Massachusetts State Court Rules In Class Action That A Multiple-Choice Promotional Test Discriminated Against Minority Police Officers”<\/span><\/a><\/p>\n","protected":false},"author":575,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2],"tags":[40,56,34],"ppma_author":[7,9,8],"class_list":["post-162","post","type-post","status-publish","format-standard","hentry","category-general","tag-discrimination","tag-disparate-impact","tag-title-vii"],"authors":[{"term_id":7,"user_id":575,"is_guest":0,"slug":"gmaatman","display_name":"Gerald L. Maatman, Jr.","avatar_url":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-content\/uploads\/sites\/56\/2022\/09\/maatmangerald-100x100.jpg","author_category":"","last_name":"Maatman Jr.","first_name":"Gerald L.","job_title":"","user_url":"https:\/\/www.duanemorris.com\/attorneys\/geraldmaatman.html","description":"Read Gerald's bio.<\/a>"},{"term_id":9,"user_id":576,"is_guest":0,"slug":"jariley","display_name":"Jennifer A. Riley","avatar_url":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-content\/uploads\/sites\/56\/2023\/08\/rileyjennifer-100x100.jpg","author_category":"","last_name":"Riley","first_name":"Jennifer A.","job_title":"","user_url":"https:\/\/www.duanemorris.com\/attorneys\/jenniferriley.html","description":"Read Jennifer's bio.<\/a>"},{"term_id":8,"user_id":577,"is_guest":0,"slug":"gtsonis","display_name":"Gregory Tsonis","avatar_url":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-content\/uploads\/sites\/56\/2022\/09\/tsonisgreg-100x100.jpg","author_category":"","last_name":"Tsonis","first_name":"Gregory","job_title":"","user_url":"","description":"Read Gregory's bio.<\/a>"}],"_links":{"self":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/posts\/162","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/users\/575"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/comments?post=162"}],"version-history":[{"count":0,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/posts\/162\/revisions"}],"wp:attachment":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/media?parent=162"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/categories?post=162"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/tags?post=162"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/ppma_author?post=162"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}