Abstract
This exploratory analysis seeks to determine the extent to which written exams are required by law for police and firefighters across the United States and whether, in fact, they are being used. The continued use of written exams has served as a major obstacle to the attainment of social equity based on race in these uniformed services. The study also explores the use and importance of nonconventional testing methods (e.g., assessment centers). The study finds that while civil service laws in most jurisdictions do not require the use of written exams, police and fire departments continue to rely on them in hiring and/or promotion. It further shows that nonconventional methods are used in some capacity, but written exams either supplement these methods or are integrated into them.
Keywords
The 2009 Ricci v. DeStefano decision was a catalyst for renewed interest in the employment tools used for promoting as well as hiring in police and fire departments. The decision reminded us that written tests, despite all the challenges and indeed lawsuits they have generated, continue to be relied upon for hiring and promotion in the uniformed services. It is the use of written exams that has perhaps been the biggest obstacle for police and fire departments to achieve social diversity based on race and ethnicity. A question that thus ensues is, “Do civil service laws, which mandate the pursuit of ‘merit,’ explicitly require the use of written, paper-and-pencil exams?”
This study provides an exploratory analysis of the extent to which written exams are required by police and fire departments across the United States and the degree to which they are actually relied upon. It also explores the use and importance of nonconventional testing methods (e.g., assessment centers).
Background
There is a long history of discrimination by police and fire departments against women and people of color in the United States. Prior to the passage of the Equal Employment Opportunity Act (EEOA) of 1972, the uniformed services faced no legal restrictions in terms of who they could hire, fire, demote, or promote. After passage of the EEOA, police and fire departments, now prohibited from overt discrimination, set up covert barriers to the hiring of women and people of color. The most common were height and weight requirements. In addition, some police and fire departments attempted to set gender as a bona fide occupational qualification (BFOQ) to prevent women from being hired. 1 A 1969 report by the U.S. Commission on Civil Rights (USCCR), cited by Congress in its hearings for the EEOA, 2 found that “barriers to equal employment [for African Americans] are greater in police and fire departments than in any other area of State and local government” (USCCR, 1969, p. 119).
During this period, the concept of “merit” also grew in importance. The historical antecedents of merit in government employment have been addressed widely in the public personnel literature, but, interestingly enough, its resurgence virtually coincided with the development and implementation of affirmative action policies. The use of written “merit” exams with no relation to job performance was now an added barrier to the employment of people of color in police and fire departments. In fact, the 1969 Commission on Civil Rights report referenced earlier stated, “A merit system of public personnel administration does not eliminate discrimination against members of minorities. It proclaims objectivity, but does not assure it. Discrimination occurs both in recruiting and in selection among final applicants” (USCCR, 1969, p. 119).
The report also noted that merit exams were relied upon due to historical precedent but often without purpose or significance. The Civil Rights Commission notes, for example, that “a staff member of the State welfare merit council of the California Department of Social Welfare said of the written examination for social workers: ‘We’re testing for something, but we don’t know what’” (USCCR, 1969, p. 41). And so, the debates around “merit” versus “equity” were played out widely in professional circles and journals (see, for example, Krislov & Rosenbloom, 1981; Lovrich, Steel, & Hood, 1986; Riccucci, 1991), as government employers elusively pursued the “best” person for the job.
Today, government employers as well as unions continue to extol the use of written merit exams as the best way to hire the most “qualified” persons for the job, notwithstanding the lack of evidence to support this. While the intent to discriminate may be absent, the exams continue to adversely affect persons of color in both police and fire departments. 3 This is clearly illustrated by the 2009 U.S. Supreme Court decision in Ricci v. DeStefano. Briefly, in 2003, the New Haven, Connecticut, Fire Department administered a promotion exam for lieutenant and captain. Seventy-seven candidates took the lieutenant exam, of which 19 were African American and 15 Latino. None of the African Americans or Latinos passed the exam. Of the 41 applicants taking the captain examination, 8 were African American and 8 Latino. No African American and 2 Latinos (at least 1 self-identified as White) passed.
The city determined that the exam had an adverse impact on the African American and Latino candidates and, fearing litigation—or possibly seeking to promote diversity—discarded it. Nineteen White firefighters and one White Latino firefighter filed suit against the city alleging reverse discrimination under Title VII of the Civil Rights Act, and the Equal Protection Clause and the First Amendment of the U.S. Constitution. Both the federal district court and the U.S. Appeals Court for the Second Circuit ruled against Ricci and for the city. Ricci appealed to the High Court, which reversed the lower court decisions, ruling instead for the White firefighters on the grounds that the city could not demonstrate a “strong basis” for concluding that the tests might be vulnerable to a disparate-impact claim (see, for example, Mitchell, 2013; Peffer, 2009; Schneid, 2012).
As numerous scholars and policy makers have noted for decades, the lack of diversity in police and fire departments hampers the ability of these departments to be effective in their communities, not only in terms of executing their functions but also in terms of legitimacy. Indeed, the vast body of literature on representative bureaucracy points to the improved efficacy of diverse government bodies (see, for example, Bradbury & Kellough, 2011; Hindera, 1993; Meier, 1993; Meier & Nicholson-Crotty, 2006). For example, Sowa and Selden (2003) find that to the extent that persons of color are better represented in government agencies or departments, there is a greater likelihood that public policies that favor persons of color will be adopted.
The research on representative bureaucracy also leads to increased confidence in these uniformed services (see, for example, Gade & Wilkins, 2013). Theobald and Haider-Markel (2008) point out that police departments gain greater legitimacy among the residents when they reflect the racial makeup of their communities. This, in turn, builds healthier, more satisfied communities.
Although progress has been made in the uniformed services in terms of hiring, particularly in police departments, persons of color are still not well represented in upper-level police or fire hierarchies. Table 1 provides descriptive data on the overall diversity of police and fire departments across the country. As the data show, in 2012, only 12.8% of the nation’s city police and county patrol officers were African American, 3.1% were Asian, and 13.8% Latino. For firefighters in that same year, only 7.7% were African American, 1.1% Asian, and 9.9% Latino. 4 While gains have been made over the years, their representation particularly in fire departments may be considered low as compared with the relatively high urban population of these groups. That is, the racial composition of police and fire departments in urban areas may not reflect the demographics of those areas. The aggregate data do not capture these incongruities. Moreover, these figures do not reflect the representation of these groups in leadership positions in police and fire departments across the country. A breakdown of the data by rank (e.g., sergeant, lieutenant, captain, assistant chief, and chief) is virtually impossible to acquire. 5
Social Diversity in Police and Fire Departments, 2012.
Given the proliferation of civil service reform throughout state and local governments where in many cases merit exams have been eliminated altogether, a question that remains is whether written exams are even required by law for police and firefighting. If they are not required, why do municipalities continue to rely on them when (a) they may not be the best indicators of performance and (b) they have a deleterious effect on social diversity efforts? This study seeks to answer these questions.
Data and Method
Data collection for this study consisted first of an extensive review of civil service law in state governments and where appropriate, large cities. That is, in those states where examination authority is decentralized, municipal laws in the form of codes and ordinances were reviewed in the largest cities (in the 10 most populous states, 2 cities were evaluated). In Connecticut, for example, the state does not prepare and administer exams for local governments. Rather, municipalities are charged with this personnel function, and, therefore, a review of local civil service law was conducted to ascertain whether written exams are required by law for police and firefighting positions. 6 In Massachusetts, however, testing is centralized at the state level; thus, state civil service law was reviewed to determine whether written exams are required by law.
Relevant webpages were then reviewed to determine whether written exams are actually being used and/or whether nonconventional testing methods such as assessment centers are currently in use. Where necessary, follow-up emails or phone calls to civil service or personnel offices were made.
Findings
As Table 2 indicates, virtually all states have decentralized civil service testing procedures for public employees to the local or city level. Only four states have centralized testing, where the state develops and administers tests for state as well as local government employees. 7 An additional state, Michigan, centralizes its testing system for police but decentralizes it for fire departments. Table 2 further shows whether civil service law requires, or makes optional, the use of written exams for police and firefighters. The data also indicate whether the system is “mixed,” whereby written tests are required in some cities or departments but not others. For example, in California, where testing is decentralized to the local level, written exams are required by law for hiring in police and fire in the largest city, Los Angeles, but not for promotions. In San Diego, which is the second largest city by population, written exams are not specified by law for hiring or promotion in police or fire (see Table 3).
Status of Written Exams for Police and Fire by State.
Optional means that the civil service law states that written exams may be used but does not require they be used.
Mixed means written exams are required in some cities/departments but not others. See Table 3, for elaboration.
For Massachusetts, entry-level police and firefighting exams are centralized; for promotion exams, they are decentralized.
New York City and Buffalo are exempt from the State’s Civil Service Law; they develop their own exams.
Pennsylvania is decentralized for police and fire but centralized for some jobs such as those in aging and in children and family services.
Status of Written Exams by City.
It is important to note that a number of states abolished their civil service systems wholly or partly, including Florida, Georgia, Texas, and Arizona, with others moving in that direction (e.g., Colorado, Indiana, Mississippi, and Tennessee). But this has not affected civil service testing at the local level. For example, in states such as Florida, Georgia, and Texas, where testing is decentralized, the personnel reforms covered only state employees, not local.
Elaborating on Table 2, the data in Table 3 show whether written exams are required for police and fire by city and whether they are actually used. Recall that in the more populous states, two cities are included. Also note that if the civil service law makes written tests optional, it appears in Table 3 as not being required. As the data show, for most cities, written exams are not required by law for hiring or promotion in police and fire departments across the country. Yet, in virtually every case, they are being used as part of the evaluation process. Although a sensitive topic to local officials, due to its litigiousness, some city human resources managers expressly stated that written exams are used because “they have always been used.” In effect, it has become such a pattern and practice, so ingrained in the cultural fabric of public sector human resources that, despite liability concerns, the use of written tests is not even being questioned.
Mired in tradition and custom, perhaps cities as well as states continue to interpret “merit and fitness” to involve the use of written exams; this may serve as a signal to communities that they are selecting the “most qualified” persons to serve as police and firefighters. But while civil service laws require “merit and fitness,” they do not necessarily mandate written tests, as seen in Table 3. This written-exam ethos is so entrenched that today’s personnel and human resources officials have not considered the fact that, first, there is no empirical proof that written exams are positively correlated with merit or qualifications and, second, they are not bound by law to administer written exams to police and firefighters. This remains one of the most confounding paradoxes in public sector human resources management today.
In other cases, the continued practice of relying on written exams may be tied to labor unions. Consider, for example, New Haven, the city involved in the Ricci decision; there is no requirement that written exams be administered in the fire department for entry or upper-level positions. The city relies on written tests based on language first used in its contract with the local firefighters’ union over two decades ago. The contract language specifies the use of written exams for promotions, which account for 60% of the total score, and an oral exam, which would account for the remaining 40%. The city has simply adhered to the union’s preference notwithstanding consultants’ findings that the examination structure and weighting system were unsound (see Schneid, 2012). Indeed, Justice Ruth Bader Ginsberg, pointed to such evidence in her dissenting opinion in the Ricci ruling. Relying on testimony by Donald Day of the Northeast Region of the International Association of Black Professional Firefighters, Ginsberg wrote, Day contrasted New Haven’s experience with that of nearby Bridgeport, where minority firefighters held one-third of lieutenant and captain positions. Bridgeport . . . had once used a testing process similar to New Haven’s, with a written exam accounting for 70 percent of an applicant’s score, an oral exam for 25 percent, and seniority for the remaining five percent . . . Bridgeport recognized, however, that the oral component, more so than the written component, addressed the sort of “real-life scenarios” fire officers encounter on the job . . . Accordingly, that city “changed the relative weights” to give primacy to the oral exam . . . Since that time . . . Bridgeport had seen minorities “fairly represented” in its exam results. (Ricci v. DeStefano, 2009, p. 614)
8
One question that ensues is why would a city allow a labor union to dictate staffing procedures in police and fire departments? Granted, these unions, especially in the Northeast, have historically enjoyed a good deal of power, but when social equity issues are at stake, should the city not exercise greater leadership? The point here is that cities that have no legal mandate to require written tests possess the ability to change testing procedures. While they may face resistance from unions, personnel policy tends to be management prerogative, and so, if municipalities desire to see changes in testing, they have the legal power to do so. 9
The use of written exams can also run into high costs when they are challenged.
Consider, for example, the case of Chicago, where an entry-level written test for firefighters in 1995 was found by a federal district court to be discriminatory based on race (Lewis v. Chicago, 2005). The city attempted to fight the charge on the grounds that the discrimination charges were time-barred under Title VII of the Civil Rights Act of 1964 as amended. The city argued that the petitioners by law were required to file charges with the U.S. Equal Employment Opportunity Commission (EEOC) within 300 days after the unlawful employment practice occurred. In 2010, the U.S. Supreme Court ruled the charges were not time-barred. The Court ruled that the “question is not whether a claim predicated on [the] conduct is timely but whether the practice thus defined can be the basis for a disparate-impact claim at all. It can” (Lewis v. Chicago, 2010, p. 2194, emphasis in original). 10 The decision cost the city around US$45 million, which did not include the city’s legal fees (see Tonowski, 2011).
Table 4 indicates the cities included in the sample that rely on assessment centers or similar tools as part of the selection and promotion process in police and fire departments. As the data show, only 18 cities out of 61 have adopted assessment centers as part of their evaluation process. However, they are being used in conjunction with written exams. That is to say, assessment centers supplement the process but do not replace the use of written exams. Or, as in some cities such as Albuquerque, Oklahoma City, Portland, Oregon, and San Diego, the written exam must be passed first before advancing to the assessment center, which also includes written tests. This is interesting in that the common belief, even expressed by courts, is that assessment centers can be relied upon to promote diversity. But, in practice, assessment centers are not alternative tools; that is, they do not replace the use of written exams, rather they supplement them. In some cases, assessment centers are relied upon only when an applicant has passed the written exam. In effect, cities continue to place the greatest emphasis on written exams, which can undermine social equity measures.
Cities in Sample Relying on Assessment Centers, by Department and Rank.
Note. Assessment centers can consist of any number of exercises but generally include, for example, role playing, simulations, in-basket exercises, and group problem-solving exercises. Some may include a written exam.
Added for promotion to police sergeant as condition of settlement to lawsuit; see U.S. v. New Jersey Civil Service Commission (2012).
Not Available is coded for those cities, which, after repeated requests, did not respond to our follow-ups.
Sometimes, cities will add a nonconventional testing component as a result of a lawsuit or consent decree. For instance, a video component was added to the exam process for promotion to police sergeant in a number of jurisdictions in New Jersey, including Jersey City and Newark. This was done as a result of a lawsuit filed by the U.S. Justice Department against the state’s Civil Service Commission. The suit alleged that its written exam for promotion to police sergeant discriminated against African Americans and Latinos. In settling the suit, the state entered into a consent decree where it agreed to develop a new written exam and add the video portion as part of its new promotion process for selecting candidates for police sergeant (see U.S. v. New Jersey Civil Service Commission, 2012). According to the Commission’s Police Orientation Guide, Candidates will assume the role of a Police Sergeant as they view scenarios associated with the duties of a Police Sergeant. Each video will present information and circumstances which candidates will have to consider before responding to the questions. For example, on the video you may see someone who is speaking directly to you about a problem or situation that could require your attention. While the video will depict one specific situation, it will be broken into segments so that a specific question or questions may be asked. These video segments could range anywhere from 10 seconds to nearly a minute. (New Jersey Civil Service Commission, 2013)
It is important to note that a newly developed written, multiple-choice exam is also part of the promotion process throughout these New Jersey jurisdictions. Seniority accounts for 20% of the final score, and the combined test scores, written and video, account for 80%.
In sum, the findings indicate that while civil service laws in most jurisdictions do not require the use of written exams, police and fire departments continue to rely on them in hiring and/or promotion. Also noteworthy, there seems to be a renewed interest or resurgence in the use of assessment centers by cities (see Thornton & Potemra, 2010). However, they have not been used as a replacement or alternative to written exams.
Discussion and Conclusion
The status of persons of color in police and firefighting professions has always been of particular interest in public administration. Studies have pointed, historically, to their lack of representation in these uniformed services especially at the upper levels (see, for example, Cayer & Sigelman, 1980; Lewis, 1989; Riccucci & Saldivar, 2012; Wilkins & Williams, 2008, 2009), and cities continue to face lawsuits over exams that adversely affect African Americans and Latinos (see, for example, Riccucci & Saldivar, 2012; U.S. v. City of New York, 2009, 2010, 2013 11 ). Written exams have historically been an obstacle for persons of color. Yet, as found here, cities for the most part do not even require the use of written exams in most cases. Without legal requirements, cities seem to be relying on civil service rules originating over a century ago.
To be sure, it is not being argued here that testing be eliminated altogether for police and firefighting jobs. That would be foolhardy. Indeed, a number of components to the hiring and promotion process remain essential, such as the oral, medical, and psychological exams and background checks (agility exams are also key for hiring in fire departments). Rather, the question here is, given the amount of screening that occurs, does the written exam actually represent added value to the assessment process? Or, is it simply a way to illustrate to the public that standards are being upheld? Or, is it to assuage incumbents who were required to take written exams and that standards would be “lowered” without them? Or, is it what we may call the “banality of testing”; that is, notwithstanding the abuses of the past, bureaucrats today accept the premises of civil service or merit systems without question and, therefore, view it as a normal, customary function of personnel or human resources. As we approach the second decade of the 21st century, cities are encouraged to reexamine their hiring and promotion procedures for police and firefighters.
Footnotes
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.