In 2008, more than 30 San Francisco police officers filed a class-action lawsuit against the police department, the police chief at the time, and the City and County of San Francisco. The officers claimed that the department intentionally changed its promotion system in a way that resulted in systematic age discrimination.
Under the previous system, officers who wanted to become detective investigators would take a inspectors' exam. Under that system, the officers’ careers followed a relatively predictable path of advancement. Moreover, the plaintiffs say, the inspectors’ exam promotional system was put in place due to a previous class-action discrimination case.
In 2006, nevertheless, the department changed that system and eliminated the inspectors' exam, allowing anyone to apply for promotion to inspector who had passed a sergeant’s exam. According to the plaintiffs, under the new system not a single one of those officers slated for advancement under the old system was promoted.
The plaintiffs say the new system, which they call an example of “unchecked age bias that pervades the culture of the department,” had a disparate impact upon officers over age 40, who now earn substantially less than younger, less-experienced officers. Therefore it legally constitutes age discrimination.
However, citing the 2011 U.S. Supreme Court ruling in Wal-Mart v. Dukes, which sharply limited concerted plaintiff action in employment law cases, the district court refused to certify their case as a class action.
In a hearing this week before the 9th Circuit Court of Appeals, the only issue was whether that refusal was a mistake. As the judge sharply pointed out, however, both sides had trouble keeping that issue separate from the main question of whether the policy constitutes age discrimination.
The attorney representing San Francisco insisted that the plaintiffs had to show specific, statistical proof of age discrimination before they could proceed as a class action, and then began to accuse the plaintiffs of having “sliced and diced their statistics” artificially.
“And therefore,” the judge interrupted, “if they are wrong they lose.” In other words, the battle of statistics is an issue for the trial, not this hearing.
The ruling hasn’t been issued, but the judge seemed sympathetic to the plaintiffs. “I guess I have much less to say on this appeal,” she said, “because it appears clear that there was a substantial disparate impact that basically reduced the chance that the over-40 employees would get to do the investigative work.”
Source: Courthouse News Service, "S.F. Cops Claiming Age Bias Battle in 9th Circuit," Dave Tartre, Sept. 11, 2013