Fired officers can’t sue city over allegedly biased drug test

African-American police officers who were fired or suspended after failing hair-sample tests to detect illegal drug use could not sue the city of Boston for discrimination, a U.S. District Court judge has ruled.

The plaintiff officers argued that blacks failed the hair test at a rate of more than two standard deviations from test results for whites. That, the plaintiffs contended, was a statistically significant enough number to make a prima facie showing that the test disparately impacted blacks in a discriminatory manner.

But Judge George A. O’Toole disagreed, applying the Equal Employment Opportunity Commission’s “four-fifths rule,” under which test results demonstrating a white failure rate of less than 80 percent of the black failure rate would be considered evidence of adverse impact.

“In this case, over the range of eight years in which the hair test was required, … the passing rate for African Americans was at least 97 percent of the passing rate for whites,” O’Toole wrote, granting the city’s motion for summary judgment. “Under the Four-Fifths Rule, the question is not even close; the EEOC would not regard the results to amount to adverse impact.”

The 22-page decision is Jones, et al. v. City of Boston, et al.

Broad impact

The city was represented by Helen G. Litsas of Arlington and Michael K. Clarkson of Ogletree, Deakins, Nash, Smoak & Stewart in Boston.

Clarkson said the potential implications of the decision are fairly broad.

“It shows that the four-fifths rule can be enough to grant summary judgment for defendants [in a disparate impact case] even in the face of statistical significance,” he said, explaining that the sample size in the suit — based on test results for thousands of officers annually over an eight-year period — was big enough that African-American test results were often two or more standard deviations from white results.

“This is new for the 1st Circuit and for the U.S. District Court in Massachusetts, and it’s an important principle for disparate impact cases with a large sample size,” he said. “In a practical sense, this means it’s important to make sure you run the numbers through both a statistical significance analysis and the four-fifths rule [when defending this type of case].”

Clarkson said the decision is also significant for its judicial recognition of the legitimacy and reliability of the hair test used by the Boston Police Department.

“If Judge O’Toole thought the BFD’s hair test was flaky, I don’t think he would have granted summary judgment,” Clarkson said.

Harold Lichten of Lichten & Liss-Riordan in Boston, who was not involved in Jones, currently represents plaintiffs in a federal lawsuit, also before O’Toole, alleging that state civil service firefighter and police exams have a disparate negative impact on minorities. Lichten said he was not surprised by the ruling in Jones.

“While it’s possible some courts may have gone the other way, it’s well within the mainstream of decisional law on the question of what constitutes disparate impact,” he said.

Lichten added that Clarkson’s advice to lawyers defending disparate impact cases holds true for plaintiffs’ lawyers as well.

“Anyone thinking about bringing a disparate impact claim should first run the numbers to see if there’s a significant disparate impact between the rates at which minorities and non-minorities fail or [perform poorly] on a particular test,” he said. “If you run the numbers and you’re not around 80 percent — say you’re at 95 or 96 percent — there’s a caution that it might not be worth taking the case.”

One of the plaintiffs’ lawyers in the case, Doreen M. Rachal of Bingham McCutchen in Boston, said her clients are disappointed and considering their options for an appeal. She declined to comment further.

Hair instead of urine

Sometime during the 1990s, the Boston Police Department began testing samples of officers’ hair instead of urine to detect evidence of illegal drug use.

The department apparently made the switch because the hair test can detect drugs up to three months after use, while evidence of drug use disappears from urine samples in a matter of days.

Over an eight-year period, the department conducted approximately 1,600 to 2,000 tests annually. Undisputed evidence showed that white officers passed the test at rates of 99 to 100 percent, while blacks passed at rates between 97 and 99 percent.

Each of the plaintiffs in the case failed the hair test at some point during the time period and were either fired or suspended.

In September 2005, they sued the city of Boston in U.S. District Court alleging that the use of the hair test disparately impacted African-American officers in violation of state and federal anti-discrimination law.

To support their claim, the plaintiffs relied on statistical evidence from a proposed expert showing that the rate at which African Americans failed the test was two standard deviations from the white failure rate. That, the plaintiffs alleged, was statistically significant to the extent that it should constitute a prima facie showing of disparate impact.

The city moved for summary judgment, arguing that while the raw numerical difference in positive test results for black officers versus white officers may have appeared statistically significant due to the large number of people being tested each year, it did not, in fact, provide evidence of disparate impact under the EEOC’s four-fifths rule.

Accordingly, the city argued, the plaintiffs’ statistical evidence was not, on its own, enough to establish a prima facie case.

Insufficient showing

“For the plaintiffs to meet the burden of establishing a prima facie case, the statistical disparities they are able to demonstrate ‘must be sufficiently substantial that they raise an inference’ that the challenged employment practice causes a disparate impact on an identified racial group,” O’Toole said, quoting the U.S. Supreme Court’s 1988 decision in Watson v. Fort Worth Bank & Trust.

While the Supreme Court had not identified a single controlling test for disparate impact, the EEOC suggested its four-fifths test as a rule of thumb, O’Toole observed.

Using that as a benchmark, the judge said, the plaintiffs failed to make the required showing of disparate impact allowing them to move forward.

“The plaintiffs rely on evidence that differences in the rates at which African Americans failed rather than passed the hair test, were statistically significant to the extent of between two to four standard deviations,” O’Toole said. “[But] focusing on the failure rates, rather than the passing rates, eludes the point of the Four-Fifths Rule, where the EEOC addressed ‘selection’ rates rather than ‘exclusion’ rates.”

More importantly, the judge continued, the plaintiffs were attempting to give statistical significance “a significance it does not have.” Statistical significance examines the question of causation or, in other words, the likelihood that an outcome is the result of an identified factor as opposed to a random result, O’Toole explained.

Statistical significance is not a measure of impact, O’Toole said. “By contrast, the Four-Fifths Rule is intended as a measure of impact.”

In order to accept the plaintiffs’ argument based on statistical significance in failure rates alone, one would have to completely ignore the four-fifths rule, O’Toole said.

“[I]f it is considered [in that context], a finding of actionable disparate impact is impossible,” he said. “In sum, the plaintiffs have no authority for the proposition that a showing of two or more standard deviations in failure rates alone is sufficient to establish a prima facie case.”

O’Toole further rejected the plaintiffs’ arguments that the city deprived them of procedural due process during the testing and disciplinary proceedings and that the discipline they received as a result of the drug testing amounted to disability discrimination.