NELA Joins Amicus Brief Challenging Summary Judgment Ruling In Disparate Impact Case Against Boston Police Department

By Matthew Koski posted 03-28-2016 03:28 PM


On March 11, 2016, NELA joined the Equal Justice Society, Justice at Work, the American Civil Liberties Union of Massachusetts, and the Charles Hamilton Houston Institute for Race and Justice in filing an amicus brief in support of the Plaintiff-Appellants in Jones v. City of Boston, currently pending in the U.S. Court of Appeals for the First Circuit.

The Jones plaintiffs challenged a drug test administered by the Boston Police Department from 1999 through 2006, as discriminatory against African-American officers. The “hair test” at issue attempts to determine whether a person has used cocaine by testing the amount of cocaine and cocaine metabolites in his/her hair. The individual plaintiffs are African-American officers who tested positive and – though they adamantly denied any drug use – were terminated from the Department as a result, after many years of decorous service. There is a significant body of evidence demonstrating that the hair test is not reliable, as it fails to distinguish accurately between environmental exposure and ingestion. Moreover, it is prone to generate false-positives for African-Americans, due to the physical characteristics of their hair and their hair grooming practices.

In an earlier appeal, the 1st Circuit ruled that the plaintiffs had demonstrated a prima facie case of disparate impact, but on remand the district court granted summary judgment to the Department regarding business necessity and on the availability of a less discriminatory alternative. In a parallel administrative proceeding, the Massachusetts Civil Service Commission ruled, in the context of reviewing the individual terminations at issue, that the hair test is too unreliable to serve as the sole grounds for a “just cause” termination.

This appeal challenges the manner in which the district court applied the standards governing summary judgment, and in particular the way in which it evaluated elements (business necessity) on which the Department has the burden of proof.

The amicus brief provides the court with important historical context regarding the development of the law governing disparate impact, and its importance to addressing systemic discrimination in professions, like law enforcement, with deeply-imbedded cultures of exclusion that would otherwise be practically impossible to remedy.

After providing that background, the brief turns to the problems raised by the manner in which the district court evaluated both “business necessity” and “availability of a less-discriminatory alternative” in the context of resolving a motion for summary judgment. As the brief argues, the district court applied a “watered-down” version of the business necessity requirement to the Department and a heightened version of the less discriminatory alternative standard to the plaintiffs. This is particularly problematic at the summary judgment stage, because doing so necessitated drawing a number of inferences against the plaintiffs, weighing the evidence inappropriately, and engaging in its analysis as if the plaintiffs, not the Department, would have burden of establishing business necessity on the merits.

The brief was drafted by Professor Michael L. Foreman, the Director of the Civil Rights Appellate Clinic at Penn State’s Dickinson School of Law, and is available for download from the Amicus Library on the NELA Exchange.