Lopez v. City of Lawrence, Massachusett
823 F.3d 102
1st Cir.2016Background
- In 2005 and 2008 Massachusetts HRD-developed promotional exams (80-question multiple-choice = 80% + an education & experience (E&E) rating = 20%) were used to rank candidates for police sergeant; municipalities promoted strictly in rank order from HRD lists.
- Black and Hispanic candidates passed and were promoted at markedly lower rates than white candidates; statistical evidence established a disparate impact.
- Plaintiffs (Officers) sued under Title VII, alleging disparate impact; no claim of intentional discrimination.
- The district court held after trial that the exams had a disparate impact but were nevertheless valid (content-valid under the Uniform Guidelines) and that plaintiffs failed to prove an available, equally or more valid alternative with less adverse impact.
- The First Circuit affirmed: it found no clear error in the district court’s factual findings (crediting defendant expert Outtz) and no legal error in applying the disparate impact framework (ask whether practice causes disparate impact; if so, whether job-related/business necessity; if so, whether plaintiffs proved a less-discriminatory alternative).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the exams were the cause of a disparate impact | Exams produced statistically significant lower promotion rates for Black/Hispanic officers | No dispute that exams produced disparate impact (defendant focused on justification) | Disparate impact established (agreed by all parties) |
| Whether the exams were job-related and consistent with business necessity (valid) | Exams were not content-valid: relied on stale/defective job analyses and failed to test critical supervisory KSAs; E&E was minimal and not representative | Exams were content-valid as a whole: based on 1991/2000 job analyses; written test + E&E produced a representative sample of critical KSAs; expert Outtz’s testimony supported minimal validity | Affirmed: district court did not clearly err; the combined exam was minimally valid and satisfied business necessity |
| Whether using rank-order selection required a separate validation showing | Rank-order selection can magnify adverse impact; must separately validate ranking use and its relation to job performance | Rank-ordering permissible where evidence shows higher scores predict better job performance; BPD presented such evidence | Affirmed: district court properly examined rank-ordering and found sufficient evidence connecting higher scores to better job performance |
| Whether plaintiffs identified an available alternative with equal or greater validity and less adverse impact | Plaintiffs proposed assessment centers, structured interviews, banding, etc., arguing these generally reduce adverse impact | Defendants: selection ratios (few openings, many applicants), cost and logistics, and lack of proof that alternatives would materially reduce disparate impact | Affirmed: plaintiffs failed to prove a viable alternative that was available and would have meaningfully reduced adverse impact; burden not met |
Key Cases Cited
- Ricci v. DeStefano, 557 U.S. 557 (2009) (standards for disparate-impact/ disparate-treatment tensions and business-necessity inquiry)
- Jones v. City of Boston, 752 F.3d 38 (1st Cir. 2014) (First Circuit summary of disparate-impact framework and evidentiary burdens)
- Boston Chapter, N.A.A.C.P., Inc. v. Beecher, 504 F.2d 1017 (1st Cir. 1974) (prior First Circuit discussion of test validity and job-performance fit)
- Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988) (discussion of validation studies and criterion-related validity)
- Johnson v. City of Memphis, 770 F.3d 464 (6th Cir. 2014) (court scrutiny of rank-order selection where scores are closely bunched)