This case, decided on 12/28/16 by the 1st Circuit Court, was (at least to me) at first blush, uninspiring. After reading the case, I believe it has the likelihood of setting a very important precedent regarding the third phase (or prong) in adverse impact case law.
Let us first talk about the facts of the case. From 1999 to 2006 the police department (hereafter 'Department') used hair analysis to assess whether police officers (or applicants) were using drugs such as cocaine, marijuana, opiates, PCP, or amphetamines. The results were negative for 99% of white individuals and 98% black individuals. As a result, nine of the black individuals lost a job or job offer, and one was placed on unpaid suspension and potential reinstatement for agreeing to participate in a drug rehabilitation program in which there was random urinalysis testing. Make note of this point -- it is a key to the case.
The district court granted summary judgment based on the 99 vs. 98 percent difference using the 4/5th rule from the Uniform Guidelines on Employee Selection Procedures (UGESP). The 1st Circuit rejected this logic and found there was a statistically significant difference between the two groups (not a first --- see for example Bew v. City of Chicago, 2001 [252 F.3d. 891]. Obviously there continues to be an interesting practical versus statistical significance debate here, but that is another conversation for another day.
Upon initial remand, the district court again ruled for summary judgment upon remand to determine if the hair test was job related and consistent with a business necessity and, if so, there were equally valid alternatives with less adverse impact. The 1st Circuit upheld the second phase job relatedness ruling, but remanded again on the issue of alternatives. The reasoning was relatively simple --- the extremely high percentages of true positives for both groups. However, the 1st circuit reversed on the issue of alternatives, and here is where it gets interesting.
The 1st Circuit laid out three questions for a successful phase 3 (alternatives) argument as follows:
- First, does the record contain evidence that would allow a jury to find that there was an "alternative" method of meeting the Department's legitimate needs?
- Second, does the record also allow a jury to find that adopting that alternative method would have had less of a disparate impact?
- And finally, could a jury find that the Department "refuses to adopt" that alternative method? We consider each question in turn.
It is how the 1st Circuit analyzed the “refusal to adopt” question (from the UGESP) that is most interesting.
The alternative proposed was a follow-up urinalysis for those testing positive. The logic behind this alternative is that the hair analysis cannot distinguish between drugs that are ingested versus drugs that are present because of exposure. The claim is that for exposure, drugs are more likely to adhere to hairs of black as opposed to white individual. That answered the first of the three questions.
The ruling on the second question followed from the ruling on the first question. If, indeed, there was a greater chance of exposure for black individuals, then, by definition, the hair test would be a false positive and would reduce and, if so, would reduce adverse impact.
This leaves the third and most interesting question relating to “refusal to adopt.” The 1st Circuit, correctly I think, examined the expert opinions for admissions of drug use (rehabilitation and random testing) and reasoned that since it involves random urinalysis testing, then the Department obviously knew about it. There are other issues in this case. But for now, the ultimate ruling (drum roll please) is up to a jury to decide whether there was intent to not use urinalysis.
To sum it all up, the 1st Circuit answered the first and second question in the affirmative (for the plaintiffs). However, it punted ruling on “refusal to adopt” to the district court. That court can make, in my opinion, one of two rulings on this issue. First, that it is simply sufficient for the defendant to know about the alternative and not use it. The second more difficult ruling would be to have to prove motive (active refusal to use). This, I think, would require proof of an attempt to request the employer to use the alternative coupled with a refusal before litigating the issue. The latter would make it more difficult to make the alternatives argument, but not impossible. Guess we’ll have to wait for the remand ruling.
By Art Gutman, Ph.D., Professor, Florida Institute of Technology