Civil service exams not discriminatory, judge says

A federal judge ruled on Friday that civil service promotional exams used by Boston police and several other departments in the Commonwealth between 2005 and 2008 did not discriminate against minority officers, sparking condemnation from the plaintiffs and a vow to appeal.

The decision from US District Court Judge George A. O'Toole Jr. means that departments are not required to change their testing procedures. Boston police in recent years have earmarked more than $2 million in an effort to make the exams more equitable.

The ruling stated that in all the police departments named in the suit, except Boston, the sample sizes of officers taking the tests, cited by the plaintiffs who filed the suit, were too small to show an "adverse impact" on minorities' success rates.

But in Boston, O'Toole wrote, the use of multiple-choice exams did show "a significant adverse impact on black and Hispanic test-takers," which the city conceded.

Industrial psychologists widely recognize that minority candidates tend to perform less well on such tests, O'Toole said.

However, he sided with the city, which had argued at trial that the testing was "job-related" and that the plaintiffs had been "unable to demonstrate an adequate alternative'' to assess candidates for promotion, according to the 47-page ruling.

The ruling drew swift criticism from Harold Lichten, lead lawyer for the plaintiffs, who included officers from the Boston, Worcester, Springfield, Lowell, Lawrence, and Methuen police departments, along with the MBTA Transit Police.

"The decision is entirely wrong, particularly with respect to the city of Boston," Lichten said, adding that his clients plan to appeal. "We think the judge is wrong, both under the law and under the facts. And we believe his decision is an outlier going against the many, many other cases that have gone the other way throughout the country."

Civil service exams are given to most public sector employees seeking a job or promotion, but competition is fierce among public safety officials looking to move up the ranks. Chiefs and commissioners are required under state law to promote the top scorers.

In Boston, police are promoted to sergeant or lieutenant based mostly on their scores on the exam, but experience and education are also considered to a lesser degree.

Some Boston officers have complained that by relying mostly on exam scores, the department is promoting those who are good at memorizing, but not necessarily at leading in real-life situations on city streets.

"The majority of [the test questions] have nothing to do with the day-to-day operations of a supervisor," said Larry Ellison, a Boston detective and president of the Massachusetts Association of Minority Law Enforcement Officers. "They're someone's theory of something, per se, in a Kansas City study. Some college professor's written a book. . . . I never had a supervisor run back and look at a book before they made a decision."

A spokesman for Boston Commissioner William B. Evans declined to comment on O'Toole's ruling.

"Commissioner Evans and his legal advisers will review the 47-page decision in the coming days," the spokesman, Sergeant Michael McCarthy, wrote in an e-mail. "Until that review is complete, it would not be appropriate to comment."

On Friday, O'Toole wrote that the plaintiffs did show there are alternatives and supplements to the written testing, such as oral interviews, that tend to have less of an adverse impact on minority candidates seeking promotions.

"What they have not been able to show is that there was a particular alternative selection method available for the years in question about which it could confidently be said that it would have reduced adverse impact on minority candidates for promotion to sergeant in the Boston Police Department," O'Toole wrote.

He added that the department took measures in 2002 to lessen the adverse impact on minority officers by supplementing the sergeant test with criteria that included an oral exercise, and those moves failed.

Lichten, the plaintiffs' attorney, fired back in a telephone interview.

"We produced many exams [at trial] used around the country that had less discrimination," he said.

In the ruling, O'Toole wrote that the Boston police sergeant exams in 2005 and 2008 contained a number of questions focused on the rules, regulations, and special orders of the Police Department.

Still, O'Toole wrote, a specialist who testified for the defendants said the written test by itself was not sufficient, since it could not measure attributes such as leadership, decision making, and interpersonal relations.

But the same specialist testified that those areas were covered by a supplemental rating sheet that candidates filled out regarding their police experience and educational background. O'Toole agreed with the specialist.

The lawsuit, which was initially filed in 2007 and argued in a bench trial before O'Toole in 2010 and early 2011, was the latest chapter in a decades-long battle over perceived bias in hiring and promotional exams in Boston.

Former police commissioner Edward F. Davis, who stepped down last fall, had repeatedly said during his tenure that the department was taking steps to change the civil service exam.

Kate Norton, a spokeswoman for Mayor Martin J. Walsh, said on Friday in a statement that "this decision was issued very late today, and will be reviewed by the mayor, our corporation counsel, and the Boston Police Department, to determine the potential impact."