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Before Lynch, Chief Judge, Torruella and Howard, Circuit Judges.

Plaintiffs, minority police officers, have brought a disparate impact race claim under Title VII, 42 U.S.C. § 2000e-2(k)(1)(A)(i), against a state agency that prepares and administers promotional examinations for local police officers under the state civil service system. The Title VII claim depends on the state being the “employer” of the officers.

Plaintiffs have also sued their direct employers, various cities and the Massachusetts Bay Transportation Authority (MBTA), as the appointing authorities who make the police promotions decisions. Plaintiffs make the same claim against the state agency and the appointing authorities: that the state promotions examinations have an impermissible disparate impact on minority candidates. They seek the same relief against both sets of defendants. Massachusetts and its agency, the Human Resources Division (HRD), deny they are an “employer” as that term is used in Title VII. They say that the Eleventh Amendment therefore immunizes them from suit because Congress has not clearly expressed any intention to abrogate Eleventh Amendment immunity when the state functions as it did here.

 
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