MBJ Victory: SJC Affirms Public Employer’s Use of Affirmative Action

Morgan, Brown & Joy recently prevailed before the Supreme Judicial Court of Massachusetts in significant decision upholding a public employer’s right to use affirmative action in promotion decisions.  See Brackett v. Civil Service Commission, et al., 447 Mass. 233 (2006).  At issue in Brackett  was the  validity of a 1996 decision by the Massachusetts Bay Transportation Authority (“MBTA”) to promote, under Personnel Administration Rules PAR. 10 (Rule 10), six  minority and female candidates to the ranks of sergeant and lieutenant over white male officers with higher test scores.  Rule 10 allows for “special certifications based on race, color, national origin or sex” in accordance with an appointing authority’s affirmative action plan.  The plaintiffs were the disappointed white male police officers who claimed that their constitutional rights were violated as a result of being bypassed for the promotions, and who further claimed that Rule 10 was an invalid exercise of rule-making authority by the Human Resources Division of the Commonwealth of Massachusetts.  After reviewing the record compiled before the Civil Service Commission, the SJC upheld Rule 10 and the constitutionality of the MBTA’s promotion decisions.  Specifically, the SJC concluded that the challenged promotions were narrowly tailored to serve the MBTA’s compelling interest of eliminating past racial and gender discrimination in the hiring and promotion practices of its police department.  In addition, the SJC acknowledged that the Commonwealth’s civil service law does not require that promotions be made strictly on rank order.  Rather, that law allows public employers to consider a combination of different factors that fairly test an applicant’s ability to perform the duties of the position, including race, ethnicity, and gender.