Disparate Impact Threat Can Set Policy

By Bill Wright

A recent disparate impact claim over drug testing sets the stage for participants to dictate improvements in employer policies.  In Jones et al v. Boston, No. 15-2015 (1st Cir. Dec. 28, 2016), the court considered claims by police officers who had been adversely affected by the police department’s drug testing based on hair samples.  Previously, the officers had shown that the hair testing was 99% accurate for white officers but only “over 98%” accurate for black officers.  (The difference was claimed to be due to environmental contamination of the hair, that became more likely due to cosmetic treatments minority officers used more often.)  The court determined that this difference – less than 1% – was statistically significant and therefore could support a disparate impact claim.  The court then considered whether use of the hair sample test was job-related and consistent with business necessity and whether the department “refused” to implement a less discriminatory alternative.

All parties agreed that drug testing was job-related.  The officers contended that the hair test was not consistent with business necessity because it was not 100% accurate.  Fortunately for employers, the court rejected this argument.  Business justifications do not need to be “anything near 100% accurate.”

The court also ruled the officers had identified a less discriminatory alternative — conducting a follow-up urinalysis test whenever the hair analysis came back positive.  Although the additional test would only detect very recent drug use, adding it would, obviously, reduce the number of false positives and, therefore, was less discriminatory.  Finally, the court ruled that the department had “refused” to implement this additional test because the officers’ expert witness had raised the alternative during the litigation.

The result? When employees challenge an employer’s policy, they may get to trial by (a) showing any statistically significant difference in outcome for minority individuals and (b) proposing any improvement on the employer’s policy that the employer fails to implement.  Employers will have to carefully consider the risks when employees suggest improvements in policies, claiming disparate impact.