PrintJanuary 8, 2010
DoJ Civil Rights Division sues New Jersey
The Star-Ledger reports that once again the Department of Justice is interfering with testing--this time for New Jersey policement--based on "disparate impact:"
New Jersey's civil service test for police officers seeking a promotion to sergeant discriminates against African-American and Hispanic candidates, according to a lawsuit filed by the U.S. Department of Justice Thursday.
Even African-Americans and Hispanics who pass the multiple-choice test are less likely to receive promotions because their scores are lower, according to the 10-page lawsuit filed against the state and the Civil Service Commission. The suit seeks to block the state from using the test.
At least 120 municipal and county police departments in New Jersey have used the discriminatory system from 2000 to 2008, according to Department of Justice spokesman Alejandro Miyar.
Eighteen of the state's 20 largest cities and townships, including Newark, use the same test.
[snip]
Civil Service Commission spokesman Mark Perkiss said the test is developed internally and administered annually with different questions each year. "We've been testing for this position for decades," he said.
[snip]
The Department of Justice is arguing the state has violated Title VII, which prohibits employment discrimination, because it hasn't proved that the test, which some departments require for promotions to sergeant, is an essential tool for determing fitness for the job.
[snip]
The lawsuit says the state and the Civil Service Commission "have pursued and continue to pursue policies and practices that discriminate against African-American and Hispanic candidates and that deprive or tend to deprive African Americans and Hispanics of employment opportunities."
It seems to me disparate impact is not the determining factor in Title VII suits.
In Ricci v. DeStefano the Supreme Court just rejected a private suit by firefighters whose only Title Vii claim was based on "disparate Impact".
It will be interesting to see whether the state can defend along the same lines as the Court there found dispositive of the issue--that regardless of the disparate impact argument, the alternative (discarding rational, race neutral testing) would subject it to disparate treatment litigation by non-black, non-Hispanic applicants.
Is this merely the Administration's churning the waters to further encourage a racial spoils system despite a negative impact on public safety?
Clarice Feldman
