Jones v. City of Boston

Court of Appeals for the First Circuit
845 F.3d 28 (2016)

ELI5:

Rule of Law:

Under Title VII, an employer may be liable for a disparate impact claim if it refuses to adopt an available, alternative employment practice that would have a lesser disparate impact and still serve the employer's legitimate needs, even if the challenged practice is job-related and consistent with business necessity.

Facts:

From 1999 to 2006, the Boston Police Department (Department) administered a hair drug test to its officers, cadets, and applicants to screen for cocaine and other substances.
The test produced a statistically significant higher rate of positive results for cocaine among black individuals than among white individuals.
The plaintiffs, eight black police officers, a police cadet, and a 911 operator (the Officers), all tested positive for cocaine under this program.
As a direct result of their positive test results, nine of the Officers were terminated or had job offers rescinded, and one was suspended without pay.
The Officers consistently denied having used cocaine, asserting that their positive results were inaccurate.
In 2003, during the course of litigation, the Officers' expert, Dr. Kidwell, submitted an affidavit to the Department proposing an alternative testing method.
The proposed alternative involved conducting the initial hair test, but for any individual who tested positive, a follow-up series of random urinalysis tests would be required before any adverse employment action was taken.

Procedural Posture:

The Officers filed a lawsuit against the Boston Police Department in the U.S. District Court for the District of Massachusetts, alleging a disparate impact claim under Title VII.
The district court granted summary judgment in favor of the Department, concluding there was no actionable disparate impact.
The Officers, as appellants, appealed to the U.S. Court of Appeals for the First Circuit.
In the first appeal (Jones I), the First Circuit reversed the district court's judgment, holding that the Officers had established a prima facie case of disparate impact, and remanded the case.
On remand, the district court again granted summary judgment for the Department, finding the test was a business necessity and that the Officers had failed to propose a viable alternative.
The Officers again appealed to the U.S. Court of Appeals for the First Circuit.

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Issue:

Does an employer's continued use of a drug testing policy that has a disparate racial impact violate Title VII when a less discriminatory, equally effective alternative practice has been made available to the employer during the course of litigation?

Opinions:

Majority - Kayatta, Circuit Judge

Yes. An employer violates Title VII if it refuses to adopt an available, less discriminatory alternative to a challenged employment practice that serves its legitimate business needs. The court affirmed that the Department's hair test was job-related and consistent with business necessity (Prong 2 of the disparate impact test) because it reliably identified the vast majority of officers as drug-free, which meaningfully furthered the Department's legitimate need for a drug-abstaining police force. However, the court found a triable issue of fact on the third prong. A reasonable jury could find that the Officers' proposed alternative—hair testing followed by urinalysis confirmation for positive results—would have equally served the Department's needs, as the Department already used urinalysis in other contexts. A jury could also find this alternative would have had a lesser disparate impact, as urinalysis does not share the hair test's alleged racial bias concerning environmental contamination, which would necessarily reduce the number of black officers disciplined. Finally, the Department's continued use of the hair-test-only policy after the alternative was proposed by the Officers' expert in a 2003 affidavit could constitute a 'refusal to adopt' it. Therefore, the claims of officers who suffered adverse actions after this proposal could proceed to trial.

Analysis:

This decision clarifies the application of the third prong of the Title VII disparate impact analysis, specifically the 'refusal to adopt' element. It establishes that an alternative practice can be proposed during litigation, and an employer's failure to adopt it from that point forward can create liability. The case reinforces that plaintiffs need not prove the alternative is perfect, only that it is equally effective and less discriminatory. This holding provides a crucial pathway for plaintiffs to succeed in disparate impact cases even when the employer's initial practice meets the 'business necessity' defense.

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