Discriminatory Job Knowledge Tests, Police Promotions, and What Title VII Can Learn from Tort Law
58 Pages Posted: 1 Mar 2018 Last revised: 10 Mar 2021
Date Written: March 1, 2018
Selection devices in use by police departments around the nation have stifled advancement for a disproportionate number of otherwise qualified minority candidates, and hindered the desired diversification of the upper ranks. Favoring the skill of memorization of police manuals, these exams have little to do with predicting success as a sergeant or other police supervisor. Yet inertia as well as other forces have kept them in place for decades. The traditional Title VII approach, a disparate impact challenge, has proven unsatisfactory given the relative ease with which the exams can be "content validated" in court.
This article proposes a new approach familiar to tort lawyers - the inference of intent from actions taken with foreseeable or inevitable consequences. When a police agency routinely administers multiple-choice exams, fully aware of the exclusionary impact on minorities, that result can no longer be deemed "unintentional," and the matter should thus be treated as disparate treatment, with all the advantageous liability and remedial consequences that would follow.
The U.S. Department of Justice has harshly criticized police departments in Ferguson, Chicago, Baltimore, and elsewhere following incidents of police killings of unarmed civilians. Each report points to poor supervision of line officers, and lack of diversity in supervisory positions, as major contributing factors. Title VII of the Civil Rights Act of 1964, landmark legislation designed to open employment opportunities to minorities and women, is uniquely positioned to address the problem. But to do so, courts must disentangle these litigations from the hyper-technical world of test validation, and instead apply a commonsense definition of intentional discrimination applied in tort litigation.
Keywords: employment discrimination, civil rights, race
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