On May 14th we wrote about the concept of “disparate impact” discrimination.  While courts have often held that although a standardized test may be neutral and non-discriminatory on its face, and therefore demonstrate no discriminatory intent, nonetheless the impact of such a test may disproportionately fall upon minorities, and therefore be found to be discriminatory, despite the lack of intent.

We wrote about a good example of “disparate impact” discrimination -- a case filed in Florida by the EEOC against the City of Jacksonville, contending that the City put in place written examinations for the promotion of firefighters to four ranks which have a disproportionately adverse impact on black test takers; that is, they have a “disparate impact” on African-American candidates, and are not job-related or consistent with business necessity.  

Today we highlight a newly-filed lawsuit that combines allegations of both “disparate impact” and “disparate treatment” discrimination (although the facts and claims in the complaint are somewhat intertwined).  In that case, two applicants for the position of entry level police officer have sued the Pittsburgh police department, alleging that (1) of the 368 police officers the city has hired since 2001, only 14 of them were black; and that (2) the police department illegally considered race when making hiring decisions.

As to “disparate impact,” besides citing the above-referenced statistics, plaintiffs allege that the police hiring process gave “unfair consideration” to factors unrelated to a candidate’s merit, including whether candidates had family or friends in the police force.

As to “disparate treatment,” plaintiffs claim that there were photographs taken of them which were circulated during the final stage of the hiring process, by which the police department was able to consider race in making the final, unappealable hiring selection. Plaintiffs claim that despite their passing background, physical fitness, drug and reading tests, they were passed over for hiring in favor of several applicants below them on the list. They contend that “There was no objective, merit-based reason” why they were not hired.

The police department has, of course, not as yet had the opportunity to respond to the suit.