Promotional Testing: Memphis and The Two Year Eligibility List Fourteen Years Later…

Column by Contributing Fire Law Author Bill Maccarone

This past week the Sixth Circuit of the U.S. Court of Appeals handed down a key decision in the battle over promotional testing procedures in Memphis, Tennessee. While the case involves promotion to Sergeant in the Memphis Police Dept., it will undoubtedly have effects across all public safety organizations, including fire departments.

A little background: the case began in 2000 after the City of Memphis, a city with a history of racial and gender based discriminatory testing processes in both police and fire departments administered a promotional test for police officers that had a significant disparate-impact on racial minorities. The 2000 exam consisted of the following weighted components; “a “low fidelity” (i.e., no role-play) video based practical test, 50%; job knowledge test, 20%; performance evaluations, 20%; seniority, 10%.”. These components were developed by an industrial and organizational psychologist, under the supervision of a Department of Justice consultant in an effort to avoid racial disparities.

The City discovered questions from the video portion of the exam had been leaked to certain test takers and therefore discredited that portion of the exam while reweighting the remaining components. This reweighting resulted in a disparate impact and prompted the first suit. Ultimately, the City agreed to invalidate the entire testing process for the 2000 Sergeants exam.

In an attempt to avoid another testing fiasco, the original plaintiffs, their expert representative, and a consultant working for the City, under the supervision of a U.S. District Court Judge and the Dept. of Justice worked together to develop a racially neutrally testing process. The 2002 test was comprised of five equally weighted components consisting of; “an investigative logic test; a job knowledge test; an application-of-knowledge test; a grammar and clarity test; and a “low-fidelity” video-based practical test.” The results were another racially biased examination and two additional law suits were filed. Both minority test takers AND non-minority test takers were represented classes with the several suits. The court consolidated all the cases.

As an illustration, of the bias following the 2002 exam, 86 out of the 274 African American police officers that took the exam were promoted (31.4%), while 176 out of the 240 white candidates that took the exam were promoted (73.3%).

As many of you remember disparate-impact (in a nut-shell), can occur when an employer uses a neutral-appearing testing process that has the effect of discriminating against a protected class. This theory arises under Title VII of the Civil Rights Act of 1964 (As amended in 1991). The U.S. Supreme Court has established a three step procedure for disparate-impact type cases. First, the plaintiff (employee) must show that a disparate impact occurred. The second step requires the defendant (employer) to show the discriminatory process is justified through a “business necessity” or is “manifestly related” to job duties. If both step one and two are satisfied, then the burden shifts back to the plaintiff (employee) to show that the “business necessity” or the “manifestly related” job duties requirement can be met by using alternative measures that do not create the discriminatory effect. (See generally, Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971); Also see, Ricci v. DeStefano, 557 U.S. 557, 577-78 (2009).)

The U.S. District Court in the Western District of Tennessee found the 2002 test “valid and reliable” however, it created a disparate impact on minority candidates and “less discriminatory valid alternatives were available”. In essence, the lower court felt the test could have been altered to produce the same quality candidate, while reducing or eliminating any racial inequity. This decision was entered in July of 2005.

Fast forward to October 27, 2014; the U.S. Crt. of Appeals, 6th Circuit entered a new decision that affirmed, reversed, and remanded certain parts of various lower district court ruling from 2005. Specifically, the Court of Appeals held that plaintiffs failed to adequately show that the proposed alternative testing methods to reduce or eliminate the disparate impact were as reliable or valid as the process the City chose. In fact, the Court characterized the “plaintiffs proposed alternatives as “broad suggestions.” Additionally, certain aspects of the testing measures “suggested” by the plaintiffs were considered by the Appeals Court to be more subjective than the methods the City utilized, and could not be considered “an equally valid, less discriminatory alternative. In short, the plaintiffs proved the 2002 test created a disparate impact, the city proved the test content and process was sufficiently job-related, and the plaintiffs failed to illustrate a better alternative.

The unfortunate aspect of this entire scenario involves the great deal of time, energy, costs (both human and financial), that this type of litigation breeds. There are no winners. The case is still open and the lower court will revisit some of the issues and deliver another opinion consistent with the Appeals Court ruling. Twelve years after the ill-fated test. What should the answer be? What is the toll internally on employee morale; turn-over, discipline, etc.?

As an illustration of the financial costs associated with this testing process, the district court awarded approximately $901,000 in attorney’s fees and expenses, and an additional $88,000 of interest. (See Johnson et. al., v. Memphis, No. 00-2608 & 04-2017; Billingsley et. al., v. Memphis, No. 04-2013, U.S. Dist. Western TN, June 21, 2012.). Following fourteen years of litigation, expert witnesses, depositions, filings, etc., and still the only promotions being made from patrol officer to sergeant for the time period in question are court ordered. This does not take into account the costs associated with the officer’s promotions, back pay, etc. It also doesn’t account the estimated $400,000 cost for administering the ill-fated 2002 exam. In the end the Court of Appeals vacated the damages award and remanded the issue back to the District Court with instructions to re-evaluate in light of the new decision. It is unclear what if any award will follow in the years to come.


William Maccarone, Esq. is a Fire Lieutenant in North Kingstown, R.I. He began his fire career in 1999, was promoted to Lieutenant in 2009, and is currently assigned to Engine Co. 2. He served as an Executive Board member and Vice President of North Kingstown Firefighters Association, IAFF, Local 1651. Bill has a Bachelor’s Degree of Arts from Rhode Island College, with a double major in Political Science and Public Administration, with a minor in Labor Studies, a Master of Science Degree from University of Rhode Island, in Human Resources and Labor Relations, and a Juris Doctorate Degree from Roger Williams School of Law, in Bristol R.I. He is a member of the R.I. and Mass. state bars.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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