POLITICS
02/18/2015 04:35 pm ET Updated Feb 19, 2015

Dozens of African-American Cops In Tennessee Face Demotions Over Discrimination Lawsuit

ASSOCIATED PRESS

WASHINGTON -- Dozens of African-American police officers in Memphis, Tennessee, are facing demotions to the positions they held over a decade ago in response to a ruling in a discrimination lawsuit the officers brought against the city.

African-American officers sued the Memphis Police Department in the early 2000s, alleging that the tests the city used to determine promotions discriminated against minorities. A lower court sided with the plaintiffs, and some of them were promoted afterwards. But last fall, a federal appeals court overturned the decision.

The officers may still appeal to the U.S. Supreme Court. But in the meantime, the city is considering demoting 28 of the 62 plaintiffs back to the positions they held when the lawsuit was first brought.

As the nation's attention has turned to cases of police brutality against African-Americans, the issue of how police forces represent the diversity of their communities has come under additional scrutiny. In Memphis, the potential demotions demonstrate how cases over disparate impact -- or practices that appear neutral but can be illegal if they disproportionately hurt minorities -- can be difficult to win and lead to unforeseen consequences for those who bring them.

"The city wants to give an ultimatum: If you all continue on [with the lawsuit], we're going to demote you back to patrolman," said Lt. Tyrone Currie, the treasurer of the Afro American Police Association Memphis branch, which supports the plaintiffs. He noted that most of the officers have over 20 years on the job and have earned equivalent benefits, while patrolmen tend to be officers in their early 20s.

"You should not retaliate against people just because they're exercising their constitutional right to an appeal," he added.

George Little, chief administrative officer for the City of Memphis, said that since some of the plaintiffs have made more money since their promotions in the wake of the initial ruling, it's also now within the city's right to get its money back. "We can say fine, not only are we going to bump you back to whatever your former position was, we want our money back that you weren't entitled to," he said.

However, he noted, the city considers collecting back pay from the cops to be a punitive measure, and "we're not out to punish the plaintiffs."

Absent a settlement agreement, "demotion is basically what we're looking at right now," he said. Later, he added, "They'd go back to the rank they were at when all this started."

Last month, Little floated that the demotions could begin in February, but this week he said he could not comment on the timeline. The Memphis Police Department did not respond to a request for comment.

Legal disputes have stretched on for decades over whether the tests Memphis uses to promote police officers have a disparate impact on minorities. All the way back in 1979, the city acknowledged in a consent decree that "historically, blacks have been excluded from or limited in hiring and promotional opportunities within its police department."

This latest lawsuit concerns testing issues that began in 2000. That year, the city implemented a promotional test that had both written and practical portions, but the practical part was leaked. So the city cut that exercise altogether, which some plaintiffs alleged discriminated against minorities.

A court agreed that the test was invalid. The city came back with a new test two years later. That time around, the results showed a clear racial disparity: Thirty-one percent of the African-American candidates were promoted, compared to 73 percent of the white candidates.

In 2006, a district court determined that the city's testing procedure in 2002 violated Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race and other factors. Based on that order, 28 plaintiffs with passing exam scores and sufficient work experience were promoted.

But what appeared to be a major win for the plaintiffs did not last. In October, the U.S. Court of Appeals for the Sixth Circuit reversed the ruling that Memphis violated Title VII. The plaintiffs also lost their appeal to the full court in December, but they still have the opportunity to petition the Supreme Court.

Michael Foreman, a law professor at Pennsylvania State University who is an expert on civil rights and employment issues, said that the appeals court set a very high bar in the Memphis case, even compared to similar cases around the country.

Samuel Bagenstos, a law professor at the University of Michigan who served as the No. 2 official in the Civil Rights Division of the Department of Justice from 2009 to 2011, said that Memphis appears to be "interpreting what the court has said as giving them the authority to do what they want to do."

Bagenstos said that it "doesn't seem like the right result" to knock the officers back to the positions they held 15 years ago. "We don't wind the clock back to 2000, we try to figure out what the world would look like now," he said. He also noted that "it's really rare and aggressive" for an employer to seek back pay, although it could be a negotiating strategy to get the plaintiffs to go away.

The lawyer who is representing the police officers could not be reached for comment. But Currie of the Afro American Police Association said that the plaintiffs are "very stressed out." He added that case has been bad for morale and is creating divisiveness among officers. Police Director Toney Armstrong told WREG last fall that more than 300 officers have left the Memphis Police Department in three years.

"If we let this stay as it is, can you imagine the impact it would have on promotions in the future? Anybody can discriminate, any group can be discriminated against," Currie said. "If we just drop it, you'll just have the same old thing repeating itself."

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