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December 20, 1972

Alfred E. Davis et al., Plaintiffs
Walter E. Washington et al., Defendants

Gesell, D.J.

The opinion of the court was delivered by: GESELL


This phase of this class action involves a claim that promotions by the Metropolitan Police Department (MPD) from patrolman to sergeant discriminate against blacks in violation of the Fifth Amendment and 42 U.S.C. ยง 1981. A promotion roster is maintained by the MPD, ranking qualified candidates on the basis of their combined score determined by (1) a supervisory report weighted 50 percent; (2) a true-and-false examination weighted 20 percent; and (3) a multiple-choice critical-incident test of judgment and supervisory competence weighted 30 percent. Only the third aspect of the promotion procedure is challenged. Testimony was taken from various testing experts and police officials over a period of two days following extensive discovery resulting in agreement as to much of the pertinent statistical data and formal matters relating to procedures. The parties submitted detailed post-trial briefs, with proposed orders, in support of their positions.

 Plaintiffs contend that they are entitled to relief because results on (3), the multiple-choice critical-incident test, reflect a disproportionate number of black failures vis-a-vis white failures and because the test has not been validated as job-related. Defendants claim the tests for the disputed years 1969, 1971 and 1972 have been validated as job-related and that they accordingly met the burden, if any was legally placed on them by the statistical analysis of the test scores.

 It should be pointed out at the outset that there is absolutely no proof nor is it even contended that defendants in any way knowingly discriminated. Indeed, it is apparent from the entire record that the MPD has sought to encourage black recruitment and advancement and has one of the best records of effort and success of any police department in the nation. The issue, on the contrary, is highly technical. Plaintiffs have placed into sharp focus the nature of proof required to validate test procedures relied on for promotion where a limited number of specialized supervisory positions is available. Unfortunately the Courts have had little experience with validation and its application to alleged employment discrimination. As this litigation well illustrates, the subject involves an inexact, evolving science where very few premises are yet generally accepted and numerous variables emerge in the context of widely differing employment situations. Before turning to consideration of the few authorities which provide some guidance in this specialized field, it will be appropriate to outline the procedures followed in this particular instance.

 The multiple-choice judgment supervisory test consisting of 40 questions is based upon critical incidents developed by a bi-racial Board of five senior police officers who are detailed for several months to the project. These officers have available the advice of a trained, experienced psychological tester and of experts from the United States Civil Service Commission. By unanimous vote they select the 40 questions from a group of some 125 proposed questions submitted from top officers throughout the department in response to a request from the Board designed to elicit questions based on actual experience in the field where correct action depended on judgment. The questions used are all based on actual experience with concrete incidents encountered by sergeants in their regular duty. Care is taken to state the questions in police vernacular, to avoid ambiguity and to present clear-cut alternatives. The incidents proposed and used involve supervisory judgments on significant phases of the work which a sergeant on patrol or field duty has previously encountered. Seventy percent of the sergeants engage in this type of duty and judgment questions in specialized areas such as homicide are avoided. A detailed procedure which has been fully implemented exists for candidates to challenge a particular question and seek its elimination in the marking of all test papers. A new test along these lines is developed for each year the test is given.

 Since the questions are based on actual experience, hypotheticals are not used. The incidents are deemed significant for job performance by experienced professionals. Testing procedures and selection of incidents actually used are monitored by qualified, professionally trained testers. There is a substantial body of learning that supports the use of actual incidents to measure supervisory judgment and that indicates such questions are one of the most accurate measures of subsequent job performance. The weighting of 30 percent given this phase is based purely on the judgment of police and testing professionals, supported in general terms by performance studies made in other fields. The following table illustrates the relative rates of success for blacks and whites applying for promotion overall and on the particular written test in contest. Percentage Rates of Success: Black versus White Year-number in top group 1972(200) 1971(191) 1969(233) Final Promo- W: 17.8 20.8 22.4 tional List B: 13.4 10.8 13.7 Written Test W: 18.2 21.6 22.0 Part II B: 12.8 9.5 13.3


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