Nationally, the continued use of selection devices by police departments—such as multiple-choice examinations requiring memorization of police manuals—stifles advancement for a disproportionate number of otherwise qualified minority candidates, and hinders the desired diversification of the upper ranks. These exams have little to do with predicting success as a sergeant or other police supervisor. The traditional Title VII approach, a disparate impact challenge, has proven unsatisfactory given the relative ease with which the exams can be “content validated” in court. This Article proposes a new approach familiar to tort lawyers—the inference of intent from actions taken with foreseeable or inevitable consequences. When a police agency routinely administers multiple-choice exams, fully aware of the exclusionary impact on minorities, the results can no longer be deemed “unintentional,” and the matter should be treated as disparate treatment. Significantly, each U.S. Department of Justice report following the incidents of police killings of unarmed civilians in Ferguson, Chicago, Baltimore, and elsewhere, found poor supervision of line officers and lack of diversity in supervisory positions to be major contributing factors to these tragedies. Title VII of the Civil Rights Act of 1964, landmark legislation designed to open employment opportunities to minorities and women, is uniquely positioned to address the problem. But to do so, courts must disentangle these litigations from the hyper-technical world of test validation, and instead apply a common-sense definition of intentional discrimination as applied in tort litigation.
Mark S. Brodin, Discriminatory Job Knowledge Tests, Police Promotions, and What Title VII Can Learn from Tort Law, 59 B.C. L. Rev. 2319 (2018), https://lawdigitalcommons.bc.edu/bclr/vol59/iss7/4