Recommendation 10.4 Reevaluate hiring qualifications and testing.

Title VII of the Civil Rights Act prohibits employment practices that have a disparate impact on people based on their race, color, religion, gender (including gender identity, sexual orientation, and pregnancy),[i]or national origin. Enacted in 1964, this law applies even to “facially neutral” practices, which are not discriminatory as written (i.e., on their face) but can be in practice.[ii]For hiring or promotions, departments should ensure their testing practices don’t exclude qualified applicants from underrepresented groups.

Even when department leaders can justify a certain hiring practice, they should explore alternatives if the practice disproportionately disqualifies applicants of color, women, or other underrepresented groups. In other words, just because a practice is technically valid doesn’t mean it’s the only (or best) way to screen applicants. And they should explore other criteria to measure other job qualifications, such as interpersonal skills and cultural sensitivity, to balance its adverse effect. Specifically, departments should:

Reevaluate hiring and promotional tests to remove barriers to applicants from marginalized communities. The use of cognitive, written, and physical performance tests in hiring and promotion decisions may also pose barriers to applicants from underrepresented populations. While officers should have certain cognitive and physical abilities to perform their jobs well, department leaders should identify the minimum level of ability necessary.

Police departments can’t use tests for hiring and promotion that disparately impact certain groups — unless the tests measures skills that predict job performance.[iii]Requiring officer applicants to pass a math test, for example, may measure skills that are not needed to carry out the duties of the job.[iv]Many facially neutral criteria, such as evaluations that measure cognitive skills or physical strength, disproportionately disqualify women, people of color, and applicants from other underrepresented groups.[v]

Departments should study their tests to ensure they don’t have a disparate impact. If tests have a statistically significant disparate impact on underrepresented groups, departments must show that they’re job-related and a legitimate business necessity.[vi]Even if a test is valid, however, the department must consider whether an alternative test exists that’s equally valid but has less of an impact on underrepresented groups.[vii]

In general, written tests adversely impact applicants of color.[viii]These tests, however, may not accurately measure the skills needed for the job, and other measures might be better.[ix]Leaders at the St. Paul Police Department in Minnesota realized that applicants of color tended to score lower than White applicants on written and situational tests but tended to score higher than White applicants in interviews.[x]In response, the department changed its written test to assess the most important qualities for the job, such as personal history and community engagement. This allowed leaders to create a more diverse staff; the officers of color who were subsequently hired were equally qualified and had a genuine interest in engaging in community policing.

Departments should also scrutinize whether the way they’re using test scores has a disparate impact,[xi]especially because Black and Latinx applicants are often at a disadvantage because they tend to score lower than Whites.[xii]Thus, they should study whether their cut-off scores meaningfully distinguish between qualified applicants and adjust them to reduce any disparate impact while meeting their organizational needs.[xiii]

Physical performance tests, meanwhile, disproportionately impact women, and also must be job-related and consistent with a business necessity.[xiv]For this reason, departments have begun to modify or exclude these tests from the hiring process. In Wisconsin, the Madison Police Department noticed that many women were failing the application process — and sometimes not applying — because of a physical performance test that included a bench-press.[xv]The department reassessed its test to measure upper-body strength and gave applicants the option to do push-ups instead — and eventually eliminated the bench-press requirement altogether, recognizing that success at a bench-press did not predict employee performance.

Departments may be limited in how much they can modify their hiring criteria. In some states, Peace Officer Standards and Training boards (POSTs) or similar entities set qualification requirements or minimum standards for tests.[xvi](And smaller agencies that don’t have the resources to support hiring processes might have to rely on hiring officers who’ve been POST certified, narrowing their pool of candidates.)[xvii]In those instances, departments should ensure their hiring criteria meet the minimum standards required by their POST, while carefully assessing whether the criteria can be adjusted without triggering litigation. They can also advocate for changes to state standards and certification processes.

At the same time, department leaders can apply criteria to increasethe number of candidates from underrepresented backgrounds. Language skills beyond English may be a relevant preference in communities with large Latinx populations,[xviii]for example, or with significant populations of people with limited English proficiency.

Reviewing hiring and promotion criteria ensures that they meaningfully predict job success and don’t create barriers for people from marginalized communities who can contribute to departments’ success and effectiveness. In short, there is no inherent conflict between a robust hiring process and an inclusive one.

Evaluate pre-employment background qualifications to ensure they don’t adversely impact applicants from marginalized communities. Most departments have qualification criteria that determine an applicant’s eligibility to become an officer. Some of these criteria have adverse or disparate impacts on applicants of color. So-called “morality” tests, such as background checks, drug tests, and polygraph examinations, claim to “measure” moral character.

But many candidates fail these tests because of minor infractions, such as driving violations, drug charges, or poor credit.^[xix]Driving violations, of course, are not always given for reckless driving; sometimes they are given for faulty equipment (i.e., a vehicle was not properly equipped or functioning). These “violations” adversely impact people in low-income communities, who are disproportionately people of color, and often stem from racial profiling in the first place.[xx]

Bad credit adversely affects low-income applicants, and especially those of color, who tend to have lower credit scores than White applicants.[xxi]Low credit scores among people of color often result from “existing racial inequities in our credit system and economy[,]”[xxii]such as “redlining” (when lenders refuse to provide conventional loans in predominantly Black and Latinx neighborhoods).

During the housing boom in the 2000s, people of color were disproportionately targeted for subprime mortgages, which led to higher rates of default and foreclosure and destroyed credit scores in many Black and Latinx communities.[xxiii]The use of credit scores as screening criteria also has a chilling effect on applicants from marginalized communities; if they know their credit score is low, they may not apply because they expect to be disqualified.[xxiv]

Hiring officials should, of course, screen applicants to ensure they are of good moral character and well suited to interact with the public — and to screen outapplicants who have histories of violence or biases toward particular communities. To balance against unnecessarily disqualifying applicants who would otherwise make good officers, departments should modify the criteria causing the adverse impact or exclude them from their vetting process, and use alternative procedures to vet candidates that do not have the same adverse impact.[xxv]

When using criminal background checks, departments should consider the nature of the crime and how much time has elapsed.[xxvi]For example, for drug offenses, some departments consider the type of drug used and how long ago it was consumed[xxvii]when screening applicants. Candidates who experimented with drug use during high school or college often fail these tests.[xxviii]To reduce the drop-out rate, the Chicago Police Department removed past marijuana use as a disqualifying factor in part because it has been legalized in many states.[xxix]

[i]Equal Emp. Opportunity Comm’n, What You Should Know About EEOC and the Enforcement Protections for LGBT Workers, https://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm#examples. (last visited Jan. 18, 2019). Title VII was amended with the Pregnancy Discrimination Act in 1978, which made it illegal to discriminate against a woman based on pregnancy, childbirth, or a related medical condition. SeePub. L. 95-555, 92 Stat 2076 (1978) (now codified at 42 U.S.C. § 2000e-(k)).

[ii]See42 U.S.C. § 2000e-(k); Griggs v. Duke Power Co., 401 U.S. 424, 430 (1971).

[iii]U.S. Dep’t of Labor, Testing and Assessment: An Employer’s Guide to Good Practices 2-3 (1999), http://uniformguidelines.com/testassess.pdf(criteria having a disparate impact must be job-related and a business necessity).

[iv]SeeGriggs, supra note 37, at 430-36; Advancing Diversity in Law Enforcement, supra note 1, at 20-21.

[v]Advancing Diversity in Law Enforcement, supranote 1, at 20-21; see, e.g., Compl., U.S. v. Rhode Island & Rhode Island Dep’t of Corr. (R.I. Feb. 10, 2014), https://www.justice.gov/sites/default/files/crt/legacy/2014/03/13/rhodeislandcomp.pdf (discussing the statistically significant difference in pass rates on the written and video examinations between Black and Latinx applicants compared to White applicants for the Rhode Island Department of Corrections); Compl., U.S. v. Pennsylvania & Pennsylvania State Police, no.1:14-cv-01474-SHR (M.D. Pa. July 29, 2014), https://www.justice.gov/sites/default/files/crt/legacy/2014/07/31/pennsylvaniapdcomp.pdf (describing the difference in pass rates between men and women on the physical fitness test for the Pennsylvania State Police).

[vi]Advancing Diversity in Law Enforcement, supranote 1, at 51, 53-54; see42 U.S.C. § 2000e-(k).

[vii]See, e.g., Ricci V. DeStefano, 557 U.S. 557, 587, 615 (2009) (“[T]he City could be liable for disparate-impact discrimination only if the examinations were not job related and consistent with business necessity, or if there existed an equally valid, less-discriminatory alternative that served the City’s needs but that the City refused to adopt.”); Advancing Diversity in Law Enforcement, supra note 1, at 20-21.

[viii]Advancing Diversity in Law Enforcement, supranote 1, at 20-21, 53-54.

[ix]Id.

[x]Id. 32-33.

[xi]Id.at 51, 53-54.

[xii]Mark S. Brodin, Discriminatory Job Knowledge Tests, Police Promotions, and What Title VII Can Learn from Tort Law, 59 B.C. L. Rev. 2319, 2344 (2018), https://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=3700&context=bclr  (pointing out that “racial subgroup differences on cognitive tests are so large that they will create substantial reductions in the number of black applicants hired, to an extent that far exceeds the performance advantages of these tests.”) (internal citations omitted); see alsoSusan Sturm & Lani Guinier, The Future of Affirmative Action: Reclaiming the Innovative Ideal, 84 Cal. L. Rev. 953, 996 (1996) (“It is incontestable that the existing meritocracy [relying on cognitive test scores] excludes people based on their race, gender, and class status. It is also without question that the construction of our conventional meritocracy disproportionately includes people who are wealthy, male, and white.”).

[xiii]Advancing Diversity in Law Enforcement, supranote 1, at 53-54.

[xiv]Id.at 21, 31-32, 51, 53-54; see alsoConsent Decree, United States v. City of Lubbock, No.: 5:15-CV-234, at 4-5, (N.D. Tex. 2016), https://www.justice.gov/opa/file/862461/download(noting that 37.2 percent of female applicants passed the physical fitness test to become a probationary officer as compared to 80.7 percent of male applicants).

[xv]Advancing Diversity in Law Enforcement, supranote 1, at 32.

[xvi]Id.at 20, 30.

[xvii]Id.at 20, 23, 30.

[xviii]See, e.g., The Model Police Officer, supranote 8, at 8.

^[xix]See, e.g., Kevin Morison, Office of Cmty. Oriented Policing Servs., Hiring for the 21st Century Law Enforcement Officer: Challenges, Opportunities, and Strategies for Success 18 (2017), https://www.ric-zai-inc.com/Publications/cops-w0831-pub.pdf; Dave Collins and Lisa Marie Pane, ‘We Have a National Crisis’: Police Relax Old Standards to Fill Positions Fewer Want, The Sacramento Bee (Nov. 14, 2016), https://www.sacbee.com/news/nation-world/national/article114717463.html.

[xx]See, e.g., David L. Carter & Andra J. Katz-Bannister, Racial Profiling: Issues and Responses for the Lansing, Michigan Police Department, (Dec. 2000), https://www.lansingmi.gov/DocumentCenter/View/1032/Racial-Profiling-Issues-and-Responses-for-the-Lansing-Michigan-Police-Department-PDF?bidId; ACLU, Picking Up the Pieces: A Minneapolis Case Study, https://www.aclu.org/issues/racial-justice/race-and-criminal-justice/picking-pieces.

[xxi]Carl F. Matthies, Kirsten M. Keller & Nelson Lim, RAND Ctr. on Quality Policing, Identifying Barriers to Diversity in Law Enforcement 3 (2012), https://rand.org/content/dam/rand /pubs/occasional_papers/2012/RAND_OP370.pdf.

[xxii]Sarah Ludwig, Credit Scores in America Perpetuate Racial Injustice. Here’s How, The Guardian (Oct. 13, 2015), https://www.theguardian.com/commentisfree/2015/oct/13/your-credit-score-is-racist-heres-why.

[xxiii]Ylan Q. Mui, For black Americans, financial damage from subprime implosion is likely to last, Wash. Post (July 8, 2012), https://www.washingtonpost.com/business/economy/for-black-americans-financial-damage-from-subprime-implosion-is-likely-to-last/2012/07/08/gJQAwNmzWW_story.html?utm_term=.b1fb0c7b04db.

[xxiv]As a related example, the U.S. Department of Education recommends that institutions of higher learning remove inquiries into criminal records from the application process because of the chilling effect it can have on prospective students who have an arrest history. SeeU.S. Dep’t of Educ., Education Department Pushes for Alternatives to Criminal History Questions in College Admissions (May 9, 2016), https://www.ed.gov/news/press-releases/education-department-pushes-alternatives-criminal-history-questions-college-admissions.

[xxv]U.S. Dep’t of Labor, Testing and Assessment: An Employer’s Guide to Good Practices 2-4 (1999), http://uniformguidelines.com/testassess.pdf.

[xxvi]Advancing Diversity in Law Enforcement, supranote 1, at 21, 56.

[xxvii]Neil Baxley, Recruiting Officers in the New Millennium, 48 Law & Order, article excerpt (2000), https://www.questia.com/magazine/1P3-52216565/recruiting-officers-in-the-new-millennium (noting that multiple departments “now take into consideration the type and amount of drugs used, the length of time since last use and the nature of the offense.”); see alsoRand Corp., Police Recruitment and Retention for the New Millennium: The State of Knowledge 82 (2010), https://www.rand.org/content/dam/rand/pubs/monographs/2010/RAND_MG959.pdf(asserting that many agencies have “become more tolerant of experimental drug use, bad credit history, and minor arrest records to attain larger numbers of applicants”); Int’l Ass’n of Directors of Law Enforcement Standards and Training, Model Minimum Standards 25-26 (undated), https://www.iadlest.org/Portals/0/IADLEST%20Model%20Minimum%20Standards%20document.pdf?ver=2019-01-11-113813-143(establishing criteria for policy academy admission that allow past “experimental” use of marijuana and a “dangerous drug or narcotic”).

[xxviii]Baxley, supranote 62, at article excerpt.

[xxix]Fran Spielman, Past ‘Pot’ Use Will No Longer Bar You from Becoming a Chicago Cop, Chicago Sun Times, July 20, 2018, https://chicago.suntimes.com/cannabis/chicago-police-department-relaxes-hiring-rules-regarding-past-marijuana-use/.