Jones v. City of Boston, No. 12-2280 (1st Cir. May 7, 2014)

By Paul Mollica

The First Circuit holds that ten African American police officers presented sufficient evidence to prove that police department drug testing, using hair samples, had a disparate impact on the basis of race, in violation of Title VII. The parties are remanded to the district court to determine, among other things, whether the use of hair samples is a reliable test, or generates too many false positives among black test subjects.

Jones v. City of Boston, No. 12-2280 (1st Cir. May 7, 2014): Since 1999, under the department’s collective bargaining agreement, police officers have been required to participate in periodic drug testing. Officers who test positive for illegal drugs must submit to a further medical examination, have a second test (with a different hair sample), and – if not cleared – are subject to penalties from a 45-day suspension up to termination.

The plaintiffs did not challenge the need for such drug screening, but allege that the use of hair samples (which they contend are unreliable, producing false positives) lands harder on blacks than whites. As the panel summarizes,

“[t]he plaintiffs’ principal claim is that the department’s program, which used hair samples to test for illegal drug use, caused a disparate impact on the basis of race in violation of Title VII of the Civil Rights Act of 1964. During the eight years for which the plaintiffs present data, black officers and cadets tested positive for cocaine approximately 1.3% of the time, while white officers and cadets tested positive just under 0.3% of the time.”

Expressed another way, “in 2003, an average year during the period: 6 of 529 black officers and cadets tested positive, or 1.1% of that group, while 3 of 1260 white officers and cadets tested positive, or 0.2% of that group.” The parties did not contest the statistics.

Although the district court entered summary judgment in favor of the defendant, the panel reverses and orders entry of a partial judgment in favor of plaintiffs that they established their prima facie case of disparate impact.

Referring to the statistical showing and sample size, the panel describes the methodology applied to assess whether the disparity is one that should be deemed sufficiently significant to trigger disparate impact. The panel considers that, “in many situations, two standard deviations or more will generate an inference of nonrandomness for a social scientist.” Over the period 1999-2006, meanwhile, the plaintiffs’ expert reported 7.14 standard deviations between blacks and whites.

The department urged another analysis based on the “four-fifths” rule, a commonly-used test of significance in civil rights cases:

“The four-fifths rule provides that where an employment practice results in a ‘selection rate’ for any racial group less than four-fifths of the ‘selection rate’ for another group, these statistics ‘will generally be regarded by [f]ederal enforcement agencies as evidence of’ disparate impact. 29 C.F.R. § 1607.4(D). For example, if an employer hires 14% of black applicants and 20% of white applicants, the four-fifths rule would indicate a disparate impact, because fourteen is less than four-fifths of twenty.”

The main defense argument was that the plaintiffs’ study revealed no “practical significance,” that is, that there can be no inference of discrimination – even with two or more standard deviations – where the numerical size of the disparity is negligible. The department contended that the statistics in this case flunked the four-fifths test, and so lacked practical significance.

The panel rejects this argument, holding that to import practical significance into the analysis lacked any statutory basis and would be difficult to administer:

“To begin, the concept of practical significance is impossible to define in even a remotely precise manner. We are aware of no test generally accepted by statisticians that we might employ to gauge practical significance (as we employ, for example, the notion that a p-value less than five percent provides good reason to presume that a difference in outcomes is not the result of chance). With no objective measure of practical significance, the label may mean that simply the person applying it views a disparity as substantial enough that a plaintiff ought to be able to sue over it. Courts would find it difficult to apply such an elusive, know-it-when-you-see-it standard, let alone instruct a jury on how to do so, and parties may find it impossible to predict results.”

*   *   *   *

“Ultimately, we find any theoretical benefits of inquiring as to practical significance outweighed by the difficulty of doing so in practice in any principled and predictable manner. We therefore conclude that a plaintiff’s failure to demonstrate practical significance cannot preclude that plaintiff from relying on competent evidence of statistical significance to establish a prima facie case of disparate impact.”

The panel also parries the department’s arguments contesting the data sample. It declined to exclude from the sample those “who opted to avoid termination in the wake of a positive test result by undergoing drug rehabilitation or resigning,” and a cadet who was not hired. The city also challenged the aggregation of eight years of statistics on appeal, but the panel finds that it did not adequately present that argument in the district court, and thus waived it.

In the end, the panel holds that “[b]ecause we have rejected both the department’s limited challenge to the plaintiffs’ showing of statistical significance and the department’s advocacy of a practical significance requirement, we see no remaining issue of fact that could permit a reasonable jury to reject the plaintiffs’ prima facie proof of disparate impact.” Hence, it reverses the district court’s holding on this point and remanded the case for further proceedings.

The panel declines to resolve the issue of whether the drug test is “job-related . . . and consistent with business necessity.” Whether the use of hair samples significantly correlated with actual drug use, the panel holds, is a factual inquiry upon which the sizeable record goes both ways.

Finally the panel affirms summary judgment on the plaintiffs’ due process, tort and Americans with Disabilities Act claims.