Jones v. City of Boston
845 F.3d 28
1st Cir.2016Background
- From 1999–2006 the Boston Police Department administered a hair drug test to officers, cadets, and applicants; positives could lead to discharge or suspension with rehab/testing options.
- The tested drugs included cocaine; negative hair results were undisputedly accurate for >99% of whites and >98% of blacks; a small percentage of black individuals produced positive hair results and ten plaintiffs lost jobs or offers (others suspended).
- Plaintiffs (all Black) brought a Title VII disparate impact claim, and this court in Jones I held they met the first prong by showing the hair test produced a statistically significant disparate impact.
- On remand the district court granted summary judgment for the Department, finding the hair test was job related and consistent with business necessity and that plaintiffs failed to show the Department refused an available, less-disparate alternative.
- The First Circuit (this opinion) affirms that the hair test was job related and consistent with business necessity, but vacates summary judgment as to the third prong, concluding a reasonable jury could find (1) a viable alternative existed (hair test plus follow-up random urinalysis), (2) that alternative would have had less disparate impact, and (3) the Department refused to adopt it after it was proposed in 2003.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the hair test was job related and consistent with business necessity | Hair test unreliable at distinguishing ingestion vs. environmental contamination, especially for some Black hair types, so it did not meaningfully further employer need | Hair test reliably produced accurate negative results for the vast majority and materially furthered the Department’s need for an abstinent force | Affirmed: hair testing was job related and consistent with business necessity (reasonable jury could find negatives accurate and test materially useful) |
| Whether an available alternative existed that would meet employer needs | Proposed alternative: use hair testing to clear >98% then require follow-up frequent/random urinalysis only for those with positive hair tests (clear false positives before discharge) | Alternative was not shown to have been available or equally effective; urinalysis detects only recent use and may be more manipulable/costly | Reversible issue: record shows Dr. Kidwell suggested the alternative in 2003, creating a triable dispute that the alternative was available at a relevant time |
| Whether the alternative would have less disparate impact | Urinalysis unlikely to produce race-based false positives; follow-up urinalysis would have cleared some Black officers who were false-positive by hair test, reducing disparate impact | Alternative might not match hair test’s 60–90 day detection window; frequent urinalysis could be impractical/costly and legally intrusive | Triable: a jury could find the alternative would have resulted in fewer Black terminations and thus less disparate impact |
| Whether the Department "refused to adopt" the alternative | Department continued the hair-only regime after the 2003 proposal, so it effectively refused a known, viable alternative | Employer discretion to select testing regime; no basis to treat the 2003 proposal as obligating adoption | Triable for some claimants: continuing hair-only testing after the 2003 proposal creates a factual dispute whether the Department refused the alternative; summary judgment vacated as to those officers selected after 2003 |
Key Cases Cited
- Jones v. City of Boston, 752 F.3d 38 (1st Cir. 2014) (earlier panel held plaintiffs established disparate impact under first prong)
- Lopez v. City of Lawrence, 823 F.3d 102 (1st Cir. 2016) (framework for disparate impact analysis and validation standard)
- Ricci v. DeStefano, 557 U.S. 557 (2009) (discusses employer obligation to adopt alternatives and interplay with disparate-impact framework)
- Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) (employer business-necessity inquiry in disparate impact cases)
- Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989) (discusses proof of intent and alternative-adoption implications)