Superior Court Faults Boston Police Department’s Decision Not To Hire Black Applicant
Rules That A CWOF Is “Not A Reasonable Justification” For Bypass
Boston, MA – The Lawyers’ Committee for Civil Rights and Economic Justice and our Board Member David Godkin from Birnbaum & Godkin LLP, received a favorable decision from the Suffolk Superior Court finding that the Boston Police Department erroneously considered a decades-old Continued Without a Finding (CWOF) disposition in order to “bypass” a Black applicant for a police officer job. The Court’s decision limits the use of CWOFs in civil service hiring, holding that a stale CWOF is “not a reasonable justification” for removing a candidate from the civil service list in favor of lower-ranking candidates.
In 2017, the Lawyers’ Committee filed a complaint for judicial review on behalf of Keon Finklea, a Black man and a native Bostonian who scored high on the civil service exam and had glowing references from prior employers. In bypassing him for the position of police officer, however, the Boston Police Department (BPD) cited a 16 year-old CWOF he received when he was a teenager for an incident involving a stolen tire that a friend gave to him.
The Court upheld the Civil Service Commission’s decision finding that a decades-old CWOF, which was subsequently dismissed, is not a bar to employment as a police officer. While Massachusetts law does disqualify applicants with felony convictions from civil service employment, the Court makes clear that “there is no such statutory definition in Massachusetts under which a CWOF would be considered a conviction.” See Finklea v. Boston Police Dept., C.A. No. 1784CV00999, 11 (2018).
“BPD is already one of the least diverse public safety agencies,” said Sophia Hall, Staff Attorney at the Lawyers’ Committee and counsel to Mr. Finklea. “Improperly creating blanket disqualifications related to contact with the criminal justice system will only further diminish diversity because racial disparities are inherent in our nation’s criminal justice system.” The EEOC has already taken the position that employers’ use of criminal background checks can violate anti-discrimination statutes. See EEOC Enforcement Guidance, Consideration of Arrest and Conviction Records in Employment Decision Under Title VII of the Civil Rights Act of 1964 (2005).
Attorney Hall called the alternate ground that BPD had put forward for bypassing Mr. Finklea – his driving record – equally problematic in the way it is applied by BPD. She noted that the Court in its order sent the case back to the Civil Service Commission to justify this alternate ground as well, requiring the Commission to provide “further explanation … whether or not the [Department’s] guidelines sufficiently guarded against bias, favoritism, or political considerations.”
This decision is only one of many steps towards shedding light on the obscure and subjective nature of BPD’s employment processes. Just last year, the Civil Service Commission conducted an investigation into BPD’s hiring practices, finding numerous irregularities and ordering remedial measures. The Civil Service has also recently called for a hearing into a request for investigation of BPD by the Lawyers’ Committee regarding improper use of residency preference in a mannerthat disproportionately harms minority veterans.