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Minority officers win legal round over promotion exams

Minority police officers who say civil service promotional ­exams are biased won a key victory Friday when the Supreme Judicial Court ruled that the state agency that creates the controversial tests could face employment discrimination lawsuits.

In a 6-to-1 ruling, the state’s highest court said the state’s Human Resources Division, as the designer of the tests used by the Boston police and other municipal forces, is a major player in employment decisions made at the local level.

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Writing for the majority, Justice Fernande R.V. Duffly said the plaintiffs are not alleging that the division is crafting exams deliberately aimed at preventing minority officers from being promoted. Instead, she wrote, the issue is the “disparate impact’’ that test results have on Hispanic, African-American, and other minority candidates.

“A violation of a plaintiff’s right to be free from discrimination in opportunities for promotion may be established by proof of the disparate impact of an employment practice on promotional opportunities for employees of a particular race, color, or national origin,’’ Duffly wrote. She added that “discrimination based on proof of disparate impact does not require proof of discriminatory intent.’’

According to the SJC and a lawyer for the officers, minority officers say they are as qualified to be promoted to sergeant as other candidates, but miss out because the state continues to generate tests that are biased against them, pushing down their ranking on promotion lists.

Attorney Stephen S. Churchill said in a phone interview that the SJC has now warned the state to change its ways or face discrimination lawsuits with potential pricetags in the millions of dollars.

The ruling “should provide an incentive for the state to find ways to work on developing a better exam,’’ Churchill said. “Minority officers who were not promoted as a result of this type of exam could bring claims against HRD.’’

The SJC did not rule whether the assertions of workplace discrimination were valid, but sent the matter back to Superior Court where, Churchill said, the plaintiffs will seek to convert the case into a class-action lawsuit for minority officers who took promotional ­exams in 2005, 2006, 2007, and 2008.

“The SJC decision is procedural only; there is no finding that [the Human Resources ­Division] exam discriminated in any way,” said Alex Zaroulis, communications director for the Executive Office of Administration and Finance.

The agency “firmly believes its exam does not discriminate and will defend it in the Superior Court,” Zaroulis said.

The battle in state courts is running in parallel with litigation in US District Court in ­Boston where Judge George O’Toole has been mulling a challenge to the state civil service exam since February 2011.

In his dissent, justice Robert Cordy wrote that he believed the majority was wrong to ­extend workplace discrimination law to a state agency that only creates tests and never ­employs a single police officer.

Globe reporter Maria Cramer contributed to this report. John R. Ellement can be reached at ­ellement@globe.com.
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