Friday, December 30, 2016

Jones v. City of Boston: Does the use of hair samples to test for illegal drug use discriminate against African Americans?

In Jones v. City of Boston, No. 15-2015 (1st Cir. Dec. 29, 2016), the United States Court of Appeals for the First Circuit concluded that African American former police officers had presented sufficient evidence for a jury to find that they were subjected to unlawful race discrimination under Title VII of the Civil Rights Act of 1964 when they were fired or suspended by the Boston Police Department because they had tested positive for cocaine use.

As recognized by the court, the Boston Police Department has a legitimate need to ensure that its officers abstain from drug use. However, in testing for drug use, the Department must minimize any potential discriminatory effects.

The plaintiffs alleged that the use of a hair test may generate false positives because it may not always distinguish between ingestion of drugs and contamination of the hair by environmental exposure to drugs. In addition, the hair of black individuals is more likely to absorb chemicals to which it is exposed than is the hair of white individuals. Because of false positives, the Department's hair test may have had the effect of screening out African Americans at a higher rate (about 1.3%) than white individuals (about .3%) even if the two groups use drugs at a comparable rate.

Under Title VII, if an employer practice has the effect of disproportionately excluding individuals of a particular race, then the practice must be job related and consistent with business necessity. Moreover, if there is an alternative practice that is equally effective in advancing the employer's interests while having less of a discriminatory impact, then the employer must use that alternative.

In this case, the Department clearly had a legitimate need to test for drug use, so the primary issue was whether there was a less discriminatory alternative that the defendant should have used. The plaintiffs contended that, instead of using a hair test alone, the Department should have augmented the hair test with random urinalysis tests for individuals who tested positive on the hair test. By adding the urinalysis tests, the Department might have been able to reduce or eliminate any potential disparate impact on African Americans caused by the hair test since there was no reason to believe that urinalysis tests disproportionately screen out any racial group.

You might wonder, why shouldn't the Department have used urinalysis tests alone? The reason is, there were particular advantages to using the hair test. The hair test is less intrusive than a urinalysis test; the hair test can detect cocaine use within the previous 90 days whereas the urinalysis test only detects cocaine use within the previous 2 days; and urinalysis testing may be more vulnerable to tampering. Thus, substituting urinalysis tests would not have been as effective in promoting the Department's interests.

On the other hand, the Department's own practices established that it viewed more targeted urinalysis testing as sufficient to meet its needs:
[T]he Department already used a series of negative urinalysis tests as a basis to reinstate suspended officers who tested positive on the hair test: officers who tested positive on the hair test under the challenged practice could choose to admit to drug use; receive a forty-five day unpaid suspension; undergo drug rehabilitation; and submit to frequent, random urinalysis for three years. . . . Additionally, Department policy has long permitted supervisors with a reasonable suspicion that an officer is using drugs to order urinalysis screening of that officer. That the Department used urinalysis in these scenarios -- where officers had already tested positive for drugs or were reasonably suspected of using drugs -- naturally suggests that the Department viewed random urinalysis as an acceptably reliable method for detecting drug use on a targeted (rather than mass) basis.
Based on this evidence, the court held that a jury could reasonably conclude that the Department violated Title VII by failing to adopt a less discriminatory alternative for detecting illegal drug use.

That is the heart of the court's legal analysis, but for those with a hankering for a more technical legal discussion, let's reflect on the court's discussion of Title VII's less discriminatory alternative provision. Title VII states that an employer violates the Act if the plaintiff establishes the existence of a less discriminatory alternative employment practice and the employer "refuses to adopt such alternative employment practice."

This strikes me as an exceptionally poorly written provision. It suggests that a violation requires that the employer have actively refused to adopt an alternative specifically presented to it by the plaintiff. This would mean that the violation occurs during the course of litigation. This interpretation, while suggested by the text, makes no sense. 

But does a violation at least require that the employer have known about the alternative at the time it adopted the practice at issue? Surely, the employer could not have "refused" to adopt an alternative that it did not even know about. But, as the court concluded, if knowledge is required, then the employer's refusal would constitute intentional discrimination: if an employer is faced with two equally effective alternatives, and it chooses the one that has a greater disparate impact on African Americans, then the employer must have chosen that alternative because it intended to discriminate against African Americans. 

Since a disparate impact violation does not require an intent to discriminate, it would seem that an employer need not actually know about the alternative. Thus, instead of requiring that the employer have known about the alternative, Title VII merely requires that the alternative have been available. In other words, an employer violates Title VII if there was a less discriminatory alternative available at the time it excluded the plaintiff, regardless of whether the employer knew about the alternative. While this interpretation does not readily flow from the statutory text, it is the most sensible one, and it reflects the Supreme Court's approach in Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989), and in Ricci v. DeStefano, 557 U.S. 557 (2009).

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.