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The NAACP has filed a federal civil rights suit against New Jersey’s Department of Personnel, alleging that a test used for some entry-level local, county and state law enforcement jobs discriminates against African-Americans and Hispanics. The complaint, filed March 19 in Newark, N.J., asks that the state be enjoined from classifying applicants “on the basis of written examinations that have a discriminatory impact, when such examinations have not been shown to be job-related and consistent with business necessity.” National Association for the Advancement of Colored People v. New Jersey Department of Personnel, 01-CV-1320. NAACP attorney David Rose says a better test would measure life experiences and include psychological profiles for dependability and adjustment, in addition to testing cognitive ability. The disputed test — the Law Enforcement Exam — is used to qualify municipal, county, campus and housing police, as well as state rangers, county corrections officers, sheriff’s officers and county juvenile detention officers. The LEE has only been in use since last year. The Personnel Department developed and instituted it as the result of last year’s settlement of a long-running suit by the U.S. Department of Justice, U.S. v. State of New Jersey, 88-5087, which charged that the pre-existing test — the Law Enforcement Candidate Record — discriminated against women and minorities. However, in the current suit, the NAACP alleges that the LEE is “not job-related” and that its use violates Title VII of the Civil Rights Act of 1964. The suit comes on the heels of last year’s settlement of an NAACP suit against the state police, NAACP v. State of New Jersey, Dept. of Law and Public Safety. The agency agreed to postpone the requirement of a four-year college degree, to abandon the LECR and to substitute a battery of three tests: a cognitive portion involving math and reading; a video portion to test situational judgments and a portion dealing with biodata, policies and procedures, and dependability and adjustments in personality. The current complaint against the Personnel Department identifies no preferable alternative test but refers to other written examinations. These include “a written test battery widely available for use for candidates for law enforcement officer positions that measured not only cognitive abilities, but also a broader range of other abilities and characteristics that are important to successful performance of law enforcement positions.” Rose, a partner at Washington, D.C.’s Rose & Rose, says one test that would pass muster is the Protective Services Profile developed by Aon Consulting, a test used by the Secaucus, N.J., Police Department. Unlike traditional tests, Aon measures more than cognitive ability. It includes a biodata component about work and school experience and psychological profiles that measure adjustment and dependability. “The dependability factor has a significant correlation with successful performance,” he says. “Life experiences are supposed to measure what a lot of the paper and pencil tests don’t. They are designed to measure whether you will do something as distinct from whether you can do it.” Rose says he met with Justice Department and state Personnel Department lawyers in 1999 and urged the state to look at the Aon test as a substitute for the LECR. He partly attributes New Jersey’s willingness to drop the LECR to the sale of copies of the exam “on the street.” Personnel Department spokesman William O’Brien denies knowledge of any such street sales. “We decided to go to a new test instrument because we thought it was a better measure.” Rose says that when the state failed to get back to him on what it was going to do about testing, he filed a complaint, Charge No. 171990493, with the Equal Employment Opportunity Commission in 1999. Rose says that complaint raised essentially the same issues as those in the March 19 suit. The EEOC reached no determination, and Rose obtained a Sept. 27, 2000, right-to-sue letter. The statutory 90-day period to file would have expired before the end of 2000, but the complaint alleges that the state agreed to extend the period until March 19. Since then, Rose says, the Personnel Department has provided him with some results of last fall’s test using the LEE, but he cannot comment on them. O’Brien says the results of the 2000 test will be released soon, possibly as early as this week. Though he will not characterize the release of the results as having been delayed, he acknowledges that the qualifying test usually is administered in May or June, with results available in August. One reason scoring took longer is that the LEE is a new test and “there was nothing to measure it against,” he notes. Rose says he faxed a copy of the NAACP complaint to Douglass Derry of the Attorney General’s Office last week. Derry declines comment. Rose says he filed in federal court to take advantage of U.S. District Judge William Bassler’s experience presiding over the Justice Department’s suit against the Personnel Department. The NAACP’s suit has also been assigned to Bassler. Local counsel for Rose in the Personnel Department and state police litigations is Jonathan Hyman of the Rutgers Constitutional Litigation Clinic.

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