Alan Schorrs Employment Case of The Week ending May 9, 2014
Jones v. City of Boston, 2014 U.S. App. LEXIS 8560 (1st Cir., May 7, 2014)
Mark Twain was once famously quoted as saying, There are three kinds of lies: lies, damned lies, and statistics." That quote was referenced in the First Circuits decision in Jones v. City of Boston. In this case, the Appellate Court reversed summary in a disparate impact case, finding that a 1% difference in hair follicle drug testing created a disparate impact between black and white police applicants. Because of the way statistics were used to create a finding of disparate impact where such a seemingly small differential existed makes this case very notable and worth storing away. The opinion uses the terms white and black to differentiate the races, and I will do the same in analyzing the case.
A very small percentage of officers and cadets, either white or black, tested positive for cocaine during the period covered by this lawsuit. Of those who did test positive, however, there were more black employees than white employees even though over two-thirds of the officers and cadets tested were white. As an example, 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. While the difference is less than 1%, the statisticians established that the failure rate for blacks was more than 5 times that of whites. Calculating the standard deviations, the statistics looked like this:
Year # Tested / # Positive Standard Deviation
1999 521/15 1491/10 3.43
2000 537/4 1467/3 1.35
2001 530/3 1404/3 0.81
2002 532/15 1375/4 4.41
2003 529/6 1260/3 2.01
2004 522/4 1260/4 1.92
2005 529/3 1289/1 1.43
2006 522/5 1289/2 1.95
Total 4222/55 10,835/30 7.14
In analyzing this chart, the Court stated:
This evidence does not establish that the differences in outcomes were large. It shows, instead, the extent to which we can be confident that the differences in outcomes, whether large or small, were not random. To the extent the facts make it appropriate to consider the eight-year aggregate data as a single sample, we can be almost certain that the difference in outcomes associated with race over that period cannot be attributed to chance alone. Nor can randomness be viewed as other than a very unlikely explanation for results in at least three of the years viewed in isolation.
The Court also noted testimony from experts that hair treatments more common in the black community and the existence of more melanin in the hair of black applicants could cause the difference in positive tests. But the defendants pointed out that Asians also have high melanin levels, yet no Asian had ever tested positive. The Court then conducted a very thorough review of different methods of establishing disparate impact, which is a textbook on how to prove disparate impact and should be carefully read by any practitioner who is involved in disparate impact litigation. Ultimately, the Court reversed and held that disparate impact had been conclusively proven.
The Court remanded for further litigation on the issues of whether the drug testing program was job-related and consistent with business necessity, and whether plaintiffs offered an adequate alternative.
Drug-testing continues to be a source of continuing litigation and ever-changing legal standards. Likewise, the use of statistics in disparate impact cases continues to make this one of the most interesting and challenging aspects of employment law.
Plaintiff/Appellants Counsel: John F. Adkins, with whom Laura Maslow-Armand, Lawyers' Committee for Civil Rights and Economic Justice, Doreen M. Rachal, and Bingham McCutchen LLP were on brief, for appellants.
Defendant/Appellees Counsel: Helen G. Litsas, with whom Nicole I. Taub, Staff Attorney, Office of the Legal Advisor, was on brief, for appellees.
Joel Z. Eigerman on brief for Jewish Alliance for Law & Social Action, Boston Society of Vulcans, Community Change, Inc., Massachusetts Law Reform Institute, Union of Minority Neighborhoods, Justice at Work, Inc., The National Workrights Institute, Blacks in Law Enforcement of America, and NAACP Boston, amici curiae in support of appellants.
Stephen Churchill and Lichten & Liss-Riordan, P.C., on brief for Massachusetts Employment Lawyers Association, Fair Employment Project, American Civil Liberties Union of Massachusetts, Union of Minority Neighborhoods, Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, Civil Rights Clinic at Howard University School of Law, Fair Housing Center of Greater Boston, Massachusetts Law Reform Institute, Justice  at Work, Inc., The National Workrights Institute, Blacks in Law Enforcement of America, and NAACP Boston, amici curiae in support of appellants.
Richard Pianka, ATA Litigation Center, and Prasad Sharma on brief for American Trucking Associations, Inc., amicus curiae in support of appellees.
Mark A. de Bernardo, Joseph E. Schuler, and Jackson Lewis LLP on brief for The Council for Employment Law Equity, amicus curiae in support of appellees.
Mark A. de Bernardo, Matthew F. Nieman, and Jackson Lewis LLP on brief for The Institute for a Drug-Free Workplace, amicus curiae in support of appellees.
Peter A. Biagetti and Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., on brief for Psychemedics Corporation, amicus curiae in support of appellees.
Judges: Before Torruella, Howard, and Kayatta (Opinion), Circuit Judges.
Trial Judge: George A. OToole, Jr., U.S.D.J.