In December 2020, then-New Jersey Attorney General Gurbir S. Grewal announced a package of policies intended to limit the use of force by New Jersey’s 38,000 state, county, and local law enforcement officers.

The new policies came roughly two years after NJ Advance Media published The Force Report, a comprehensive statewide database containing almost 73,000 police use-of-force reports from municipal police departments and the New Jersey State Police (NJSP). One of the findings from the report was that in New Jersey, Black people were more than three times as likely to face police force than white people.

While these efforts to root out discriminatory practices in New Jersey law enforcement organizations were focused on officers’ use of force, several recent lawsuits filed against the NJSP suggest an equally nefarious type of discrimination has festered in the shadows at the NJSP: discriminatory promotional policies and practices. 

Although this form of discrimination does not produce the chilling cell phone videos of officers using force that make the rounds on social media and news shows, it is no less consequential a public safety problem. When NJSP troopers with inferior credentials and accomplishments as compared to their peers receive promotions solely on account of their gender, their skin color, or their buddy-buddy relationships with their superiors, New Jerseyans become less safe.

The NJSP has a long, public history of discriminatory promotional policies and practices. Even after multiple lawsuits and consent decrees, and intervention by the U.S. Department of Justice (DOJ), these recent lawsuits imply that any changes the NJSP previously implemented to curb its discriminatory promotional policies and practices appear to have fallen by the wayside.

The NJSP’s Long, Public History of Discrimination

Discriminatory policies and practices at the NJSP date back to its creation in 1921. According to W. Carsten Andresen, Associate Professor of Criminal Justice at St. Edward’s University, the organization was founded to “counter the influence of the state’s rising populations of African Americans and immigrants, whom white residents feared.” 

The NJSP hired its first Black trooper, Paul D. McLemore, in 1961—forty years after it was created. Mr. McLemore testified in April 1999 before the 19-member New Jersey Legislative Black and Latino Caucus that he was subject to racial discrimination and harassment and presented examples of flyers circulated among NJSP troopers that used racial epithets to refer to Black people.

In 1975, the DOJ sued the NJSP, charging it with engaging in a pattern and practice of discrimination in all aspects of employment. At the time of the DOJ’s lawsuit, just 13 of the NJSP’s 1,765 troopers were Black (.7%), five were Hispanic/Latino (.3%), and one was female (.05%). The DOJ found the NJSP to have had no objective or standardized criteria for tenure, promotion, disciplines, or assignments that would have ensured Black and Hispanic/Latino officers and women were treated equitably. On Oct. 7, 1975, the NJSP entered into a consent decree with the DOJ that gave the DOJ monitoring and oversight of the NJSP’s policies and practices, and established minority hiring goals. The consent decree was dissolved in October 1992.

In 1991, Trooper Vincent Bellaran filed a discrimination lawsuit against the NJSP in New Jersey federal court, alleging he had been subjected to a racially hostile work environment. In 1998, U.S. District Judge Mary Cooper ruled in his favor. (Mr. Bellaran then filed a second lawsuit against the NJSP, alleging it retaliated against him for filing his discrimination suit.)

In 1999, the DOJ again sued the NJSP, alleging it had an unconstitutional pattern or practice of performing vehicle stops and searches of Black motorists traveling on New Jersey roadways. The NJSP subsequently entered into another consent decree with the DOJ.

In 2002, New Jersey paid $4 million to settle a race discrimination lawsuit filed by 13 Black NJSP troopers who alleged they were harassed and denied promotions.

In 2010, the DOJ sued the State of New Jersey and the New Jersey Civil Service Commission, alleging they pursued policies and practices that discriminated against Blacks and Hispanics/Latinos and deprived them of employment opportunities on account of their race and/or national origin. The lawsuit focused specifically on the pass/fail use of a police sergeant written exam, the certification of police sergeant candidates based on a combination of candidates’ written exam scores and seniority credits, and New Jersey’s uses of the exam in non-job-related ways.

In November 2011, the DOJ and the defendants entered into a consent decree. Under the decree, New Jersey agreed to develop a new promotion process for selecting candidates for police sergeants in jurisdictions taking part in New Jersey’s civil service system to ensure promotions to police sergeant were based on merit and that qualified candidates were not unnecessarily excluded. In addition, New Jersey agreed to provide $1 million in back pay to Black and Hispanic/Latino police officers who were harmed by New Jersey’s previous practices, and agreed to certify officers for priority promotions who would have been promoted but for the state’s use of the challenged exam.

In 2012, an Essex County jury awarded Detective Sergeant Brian Royster more than $1 million regarding his claims he was denied promotions and given unfair assignments after raising the alarm about racial bias in how the NJSP and the Attorney General’s Office handled misconduct investigations. In 2017, the New Jersey Supreme Court reduced that award to $500,000.

In 2014, Major Gerald Lewis sued the NJSP for allegedly trying to force him out by making him the target of a sham, racially motivated investigation.

In 2015, Trooper Georgina Sirakides and a dozen other female troopers sued the NJSP, alleging sexual harassment and discrimination in a white-male-dominated environment.

Recent Lawsuits Suggest History Is Repeating Itself at the NJSP

Winston Churchill famously said “those who fail to learn from history are condemned to repeat it.” Today, it appears as though history is repeating itself at the NJSP in the form of discriminatory promotional policies and/or practices that are preventing non-white and non-male troopers from ascending to the rank of sergeant and above.

In late 2021, our law firm filed four lawsuits on behalf of 11 current and former NJSP troopers in New Jersey Superior Court. The lawsuits allege the NJSP’s promotional policies and/or practices for the promotion of troopers to the rank of sergeant and above may be non-discriminatory on their face, but are unlawful because they provide far too much subjectivity and allow for abuse and manipulation in the selection process. Notably, troopers are selected for promotion based on input from delegated decision makers who are predominantly white and who we allege are, more often than not, biased toward the troopers they have personal relationships with.

Two of our clients, a white gay male and a Black gay female, allege they were unlawfully discriminated against and denied promotional opportunities because of their sexual orientation. Both are currently lieutenants in the NJSP.

Another one of our clients, who held the rank of sergeant first class, alleges he was denied promotional opportunities on account of his disability.

Four of our clients, all female, allege they were consistently discriminated against in all aspects of their NJSP duties—from working in facilities with no women’s locker rooms, to being assigned entry-level positions despite decades of experience, to being passed over for promotions in favor of less senior, less decorated men. One woman is currently a major in the NJSP, two are lieutenants, and one is a trooper.

Four of our clients, each Hispanic/Latino men, allege they were consistently passed over for promotions on account of their backgrounds. One man contends he was passed over for promotion more than 20 times in his career, while the others contend they were passed over merely six or eight times. One man is currently a captain in the NJSP, one is a lieutenant, one is a sergeant first class, and one is a retired captain. 

The lawsuits allege the NJSP’s promotional policies and practices do not and cannot serve a substantial legitimate non-discriminatory interest, and that interest is otherwise attainable with lesser adverse impact. Thus, the lawsuits allege, while the NJSP’s promotional policies and practices may be facially neutral employment practices, they have had a disproportionately adverse impact on protected groups. These lawsuits allege that, when these promotional policies and practices are combined with the high level of subjectivity in the selection process, the policies and practices are a form of unlawful disparate-impact discrimination.

New Jerseyans Pay the Price for Discriminatory Promotional Practices in the NJSP

We will not litigate these lawsuits in the pages of this publication. But we feel compelled to describe our clients’ claims generally because their lawsuits are a matter of considerable public interest.

When local and state law enforcement organizations employ promotional policies and practices that are tainted with favoritism and subjectivity, we New Jerseyans pay the price. There’s a good chance the beneficiaries of these policies and practices are not as qualified as some of their colleagues to hold important positions and make tough decisions that affect our daily lives. Worse, these beneficiaries may be beholden to the people who placed them in their positions, and may prioritize doing right by them over doing what’s best for New Jerseyans. 

Our clients and other litigants allege the NJSP has prevented upstanding and qualified non-white, non-male, and non-heterosexual troopers from ascending its ranks because of discrimination, cronyism, and a failure to abide by merit-based criteria for promotions. These allegations suggest that today the NJSP is having trouble outrunning its century-long history of discrimination against people who are not white males.

Philip S. Burnham, II, is the principal attorney at Burnham Douglass Attorneys at Law, based in Marlton and Northfield. Michelle J. Douglass is of counsel at the firm. They can be reached at [email protected] and [email protected], respectively.

Reprinted with permission from the February 28, 2022 edition of the New Jersey Law Journal © 2022 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or [email protected].