Amended May 27, 2016.
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FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS. Hon. George A. O'Toole, Jr., U.S. District
L. Lichten and Stephen S. Churchill, with whom Benjamin
Weber, Lichten & Liss-Riordan, P.C., and Fair Work, P.C.,
were on brief, for appellants.
I. Robin-Vergeer, Attorney, Department of Justice, Civil
Rights Division, Appellate Section, with whom Sharon M.
McGowan, Attorney, Civil Rights Division, Vanita Gupta,
Acting Assistant Attorney General, P. David López,
General Counsel, and Carolyn L. Wheeler, Acting Associate
General Counsel, Appellate Services, Equal Employment
Opportunity Commission, were on brief for amicus the United
States of America.
Hodge, with whom John M. Simon, Geoffrey R. Bok, Stoneman,
Chandler & Miller LLP, Susan M. Weise, Attorney, City of
Boston Law Department, and Lisa Skehill Maki, Attorney, City
of Boston Law Department, were on brief, for appellee City of
F. Kavanaugh, Jr., with whom Christopher K. Sweeney, and
Conn. Kavanaugh Rosenthal Peisch & Ford, LLP, were on brief,
for appellees Massachusetts Bay Transportation Authority,
Daniel Grabauskas, and the Board of Trustees of the
Massachusetts Bay Transportation Authority.
M. Brown, Assistant City Solicitor, City of Lowell Law
Department, with whom Christine Patricia O'Connor, City
Solicitor, City of Lowell Law Department, was on brief for
appellees City of Lowell, Massachusetts, and Appointing
Authority for the City of Lowell, Massachusetts.
Norris, with whom Joshua R. Coleman, and Collins, Loughran &
Peloquin, P.C., were on brief, for appellees City of
Worcester, Massachusetts, Michael O'Brien, City Manager
of Worcester, and Konstantina B. Lukes, Mayor of the City of
I. Wilson, Associate City Solicitor, City of Springfield Law
Department, with whom Edward M. Pikula, City Solicitor, and
John T. Liebel, Associate City Solicitor, were on brief, for
appellees City of Springfield, Massachusetts, and Mayor
Domenic J. Sarno, Jr.
D. Ruano, Attorney, Office of the City Attorney, City of
Lawrence, Massachusetts, and Charles D. Boddy, Jr., Attorney,
Office of the City Attorney, City of Lawrence, Massachusetts,
on brief for appellees City of Lawrence, Massachusetts, and
Mayor John Michael Sullivan.
Regan Jenness, Attorney, Office of the City Solicitor, City
of Methuen, on brief for appellees City of Methuen,
Massachusetts, and Mayor William M. Manzi, III.
L. Foreman, Civil Rights Appellate Clinic, Dickinson School
of Law, Pennsylvania State University, on amicus brief of
National Urban League and the National Association for the
Advancement of Colored People.
Klein, Kevin Costello, Corinne Reed, Klein Kavanagh Costello,
LLP, Mark S. Brodin, Professor, Boston College Law School,
and Ray McClain, Director, Employment Discrimination Project,
Lawyers' Committee for Civil Rights Under Law, on amicus
brief of Massachusetts Association of Minority Law
Enforcement Officers, New England Area Conference of the
National Association for the Advancement of Colored People,
Urban League of Eastern Massachusetts, and Professor Mark S.
L. Brown, Christopher J. Petrini, and Petrini & Associates,
P.C., on amicus brief of International Municipal Lawyers
Association, Massachusetts Municipal Lawyers Association,
Massachusetts Municipal Association, National Public Employer
Labor Relations Association, Massachusetts Chiefs of Police
Association, Inc., and Fire Chiefs Association of
Torruella, Lynch, and Kayatta, Circuit Judges.
KAYATTA, Circuit Judge.
selecting police officers for promotion to the position of
sergeant in 2005 and 2008, the City of Boston and several
other Massachusetts communities and state employers adapted a
test developed by a Massachusetts state agency ("
HRD" ) charged under state law with creating
a selection tool that " fairly test[s] the knowledge,
skills and abilities which can be practically and reliably
measured and which are actually required" by the job in
question. Mass. Gen. Laws ch. 31, § 16. There is no
claim in this case that defendants intentionally selected the
test in order to disadvantage any group of applicants. To the
contrary, the evidence is that the test was the product of a
long-running effort to eliminate the use of race or other
improper considerations in public employment decisions.
percentage of Black and Hispanic applicants selected for
promotion using the results of this test nevertheless fell
significantly below the percentage of Caucasian applicants
selected. Some of those Black and Hispanic applicants who
were not selected for promotion sued, claiming that the use
of the test resulted in an unjustified " disparate
impact" in violation of Title VII notwithstanding the
absence of any intent to discriminate on the basis of race.
42 U.S.C. § 2000e-2(k)(1)(A)(i). After an eighteen-day
bench trial, the district court determined, among other
things, that the use of the test did have a disparate impact
on promotions in the City of Boston, but that the test was a
valid selection tool that helped the City select sergeants
based on merit. Lopez v. City of Lawrence, No.
07-11693-GAO, at *37, *60-62 (D. Mass. Sept. 5, 2014). The
court further found that the plaintiffs failed to prove that
there was an alternative selection tool that was available,
that was as (or more) valid than the test used, and that
would have resulted in the promotion of a higher percentage
of Black and Hispanic officers. Id. at *60-79.
Finding that the district court applied the correct rules of
law and that its factual findings were not clearly erroneous,
plaintiffs in this suit (the " Officers" ) sought
promotion in the police departments operated by the
Massachusetts municipalities or state agencies sued in this
case. Id. at *7-8. All parties agree that affirmance
of the judgment in favor of Boston would result in affirmance
of the judgment in favor of the other defendants as well, so
we focus our discussion for simplicity's sake on the
evidence concerning Boston. Because this is an appeal of
fact-finding and application of law to fact following a trial
on the merits, we describe
the facts in a manner that assumes conflicting evidence was
resolved in favor of the prevailing party unless there is
particular reason to do otherwise. Wainwright Bank & Tr.
Co. v. Boulos, 89 F.3d 17, 19 (1st Cir. 1996) (" We
summarize the facts in the light most favorable to the
verdict-winner [ ], consistent with record support." ).
Development of the Exams Over Time
1971, Congress noted that the United States Commission on
Civil Rights (" USCCR" ) found racial
discrimination in municipal employment " more pervasive
than in the private sector." H.R. Rep. No. 92-238, at 17
(1971). According to the USCCR, nepotism and political
patronage helped perpetuate preexisting racial hierarchies.
U.S. Comm'n on Civil Rights, For All the People, By All
the People: A Report on Equal Opportunity in State and Local
Government Employment, 63-65, 119 (1969), reprinted in 118
Cong. Rec. 1817 (1972). Police and fire departments served as
particularly extreme examples of this practice. See, e.g.,
Wesley MacNeil Oliver, The Neglected History of Criminal
Procedure, 1850-1940, 62 Rutgers L.Rev. 447, 473 (2010)
(" Officers who delivered payments to their superiors
were practically assured of retention and even promotion,
regardless of their transgressions." ); Nirej S. Sekhon,
Redistributive Policing, 101 J. Crim. L. & Criminology 1171,
1191 (2011) (" Police departments were prime sources of
patronage jobs." ).
police department was no exception: As far back as the
nineteenth century, a subjective hiring scheme that hinged on
an applicant's perceived political influence and the
hiring officer's subjective familiarity with the
candidate (or the candidate's last name) was seen as the
primary culprit behind a corrupt, inept, and racially
exclusive police force. See, e.g., George H. McCaffrey,
Boston Police Department, 2 J. Am. Inst. Crim. L. &
Criminology 672, 672 (1912) (" This system worked very
unsatisfactorily, however, because places on the police force
were invariably bestowed as a reward for partisan
the state and local levels, Massachusetts officials
eventually gravitated toward competitive exams as a tool to
accomplish an important public policy of moving away from
nepotism, patronage, and racism in the hiring and promoting
of police. Boston Chapter, N.A.A.C.P., Inc. v.
Beecher, 504 F.2d 1017, 1022 (1st Cir. 1974) ("
[C]ivil service tests were instituted to replace the evils of
a subjective hiring process . . . ." ); see generally
League of Women Voters of Mass., The Merit System in
Massachusetts: A Study of Public Personnel Administration in
the Commonwealth 3-5 (1961). At the statewide level, this
movement resulted in legislation and regulations aimed at
ensuring that employees in civil service positions are "
recruit[ed], select[ed] and advanc[ed] . . . on the basis of
their relative ability, knowledge and skills" and "
without regard to political affiliation, race, color, age,
national origin, sex, marital status, handicap, or
religion." Mass. Gen. Laws ch. 31, § 1.
The 2005 and 2008 Exams
these purposes and shaped by decades of Title VII
litigation, the examinations at issue in this case
allowed no room for the subjective grading of applications.
The total score of a test-taker who sat for the promotional
2005 or 2008 was determined bye two components: an 80-question
written examination scored on a 100-point scale and an "
education and experience" (" E& E" ) rating,
also scored on a 100-point scale. The written examination
counted for 80% of an applicant's final score and the E&
E rating comprised the remaining 20%. Applicants needed an
overall score of seventy to be considered for promotion. On
top of the raw score from these two components, Massachusetts
law affords special consideration for certain military
veterans, id. § 26, and individuals who have
long records of service with the state, id. §
subject matter tested on the 2005 and 2008 examinations can
be traced back to a 1991 " validation study" or
" job analysis report" performed by the state
agency responsible for compiling the exam. See 29 C.F.R.
§ 1607.14 (technical requirements for a content validity
study under the Uniform Guidelines on Employee Selection
Procedures); see also Watson v. Fort Worth Bank &
Tr., 487 U.S. 977, 991, 108 S.Ct. 2777, 101 L.Ed.2d 827
(1988) (opinion of O'Connor, J.) ( " Standardized
tests and criteria . . . can often be justified through
formal 'validation studies,' which seek to determine
whether discrete selection criteria predict actual on-the-job
1991 report was prepared by the Massachusetts Department of
Personnel Administration (" DPA" ), the predecessor
to HRD. In preparing the report, DPA surveyed police officers
in thirty-four jurisdictions nationwide, issuing a
questionnaire that sought to ascertain the kinds of "
knowledge, skills, abilities and personnel
characteristics" that police officers across the country
deemed critical to the performance of a police sergeant's
responsibilities. The report's authors distilled the
initial results from this survey and their own knowledge
regarding professional best practices into a list of critical
police supervisory traits. They then distributed this list in
a second survey to high-ranking police officers in
Massachusetts, who were asked to rank these traits according
to how important they felt each was to a Massachusetts police
sergeant's performance of her duties. DPA further refined
the ranking of key skills and traits through focused
small-group discussions with police sergeants and conducted a
" testability analysis" of which skills could
likely be measured through the written examination or the E&
E component. In 2000, HRD engaged outside consultants to
refresh the findings of the 1991 examination through a
process similar to, though less thorough than, DPA's
approach in 1991.
written question and answer component of the examination
consisted of multiple choice questions that covered many
topic areas, including the rules governing custodial
interrogation, juvenile issues, community policing, and
firearm issues, to name a few. The text of individual
questions was often closely drawn from the text of materials
identified in a reading list provided by the Boston Police
(" BPD" ) to test-takers in advance of the exams.
example, one question on the 2008 promotional exam asked
applicants to accurately complete the following statement:
According to [a criminal investigations textbook on the
reading list], a warrantless search and seizure is
A. after stopping a vehicle for a traffic violation and
writing a citation.
B. after obtaining the consent of the person, regardless of
whether obtained voluntarily or nonvoluntarily.
C. when possible loss or destruction of evidence exists.
D. when a quick search of the trunk of a motor vehicle is
addition to completing the question and answer component of
the examination, applicants listed on the E& E rating sheet
their relevant work experience, their degrees and
certifications in certain areas, their teaching experience,
and any licenses they held. Points were assigned
based on the listed education and experience. For example,
applicants could receive up to fifteen points in recognition
of their educational attainment, with an associate's
degree providing up to three points and a doctorate providing
up to twelve.
collecting and scoring the exams, HRD provided the
municipalities with a list of passing test-takers eligible
for promotion, ranked in order of their test scores. Mass.
Gen. Laws ch. 31, § 25. Each of the municipal defendants
in this case selected ...