Jones v. City of Boston
118 F. Supp. 3d 425
D. Mass.2015Background
- From 1999–2006 the Boston Police Department (BPD) required annual hair samples for drug testing; Psychemedics conducted the analyses. Of ~15,057 tests, 85 were positive for cocaine; black officers tested positive at a higher rate than white officers.
- Plaintiffs (ten black officers/applicants) each tested positive and suffered adverse employment consequences; they denied ingestion and alleged false positives due to external contamination and hair-type differences.
- Plaintiffs sued under Title VII (disparate impact), ADA, § 1983 equal protection, and Massachusetts law; only the Title VII disparate-impact claim survived in part on appeal to the First Circuit.
- The First Circuit held plaintiffs made a prima facie disparate-impact showing (statistical significance) and remanded for the district court to decide business necessity and availability of less-discriminatory alternatives.
- A Massachusetts Civil Service Commission (and Suffolk Superior Court on review) found hair tests insufficient alone to prove just cause for discharge; those decisions reinstated several officers. The state decision does not preclude BPD from litigating business necessity in federal court.
- The district court (Woodlock, J.) granted summary judgment for the City of Boston, holding the hair test met job-relatedness/business necessity and plaintiffs failed to identify an equally valid, less-discriminatory alternative supported by extensive data.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether state Commission decision precludes BPD from relitigating reliability of hair tests (issue preclusion) | Commission’s factual findings about test unreliability should bar relitigation in federal court | State decision applied different legal standard (just cause) and did not resolve identical issue; BPD may relitigate business-necessity question | No preclusion: issues not identical; state findings do not prevent BPD from defending business necessity here |
| Whether hair testing is job-related and meets business necessity under Title VII | Hair test is insufficiently reliable due to contamination risk, cuticle/cortex binding, and racial hair-treatment differences; not predictive of ingestion | Psychemedics reliably detects cocaine/metabolites at cutoff; decontamination and metabolite ratios make positives significantly correlated with use; error rate too small to defeat correlation | Hair testing is job-related and sufficiently predictive/significantly correlated with drug use for summary judgment purposes; plaintiffs’ hypothetical contamination evidence insufficient to create a triable issue |
| Whether plaintiffs proved a less-discriminatory alternative that is equally valid | Urinalysis or hybrid (hair + confirmatory urine/other measures) would have less disparate impact and be equally effective | Urinalysis has short detection window, is more easily adulterated, and is not a practical equally valid substitute; hybrid proposals lack supporting data | Plaintiffs failed to produce the extensive statistical evidence required to show an equally valid alternative; summary judgment for BPD granted |
| Whether plaintiffs may use late-disclosed expert affidavit (Dr. Kidwell) on alternatives and hair physics | Dr. Kidwell’s affidavit explains contamination mechanics and proposes alternatives; should be considered | Late expert disclosure violates Rule 26 and should be excluded | Court exercised discretion to consider affidavit (was in record long-term) but found the affidavit/speculative proposals lack empirical data to establish an equally valid alternative |
Key Cases Cited
- Jones v. City of Boston, 752 F.3d 38 (1st Cir. 2014) (First Circuit held plaintiffs met prima facie disparate-impact showing)
- Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) (business-necessity/job-relatedness standard for disparate-impact defenses)
- Griggs v. Duke Power Co., 401 U.S. 424 (1971) (employer must show manifest relationship between test and job performance)
- Ricci v. DeStefano, 557 U.S. 557 (2009) (requirements for adopting/discarding selection procedures; context of collective bargaining considered)
- Univ. of Tennessee v. Elliott, 478 U.S. 788 (1986) (state agency factfinding may have preclusive effect in federal courts)
- B & B Hardware, Inc. v. Hargis Indus., Inc., 135 S. Ct. 1293 (2015) (agency adjudications can, in some contexts, support issue preclusion)