Jones, et al v. City of Boston, et al

Filing

OPINION issued by Jeffrey R. Howard, Chief Appellate Judge; Bruce M. Selya, Appellate Judge and William J. Kayatta , Jr., Appellate Judge. Published. [15-2015]

Case: 15-2015

Document: 00117098657

Page: 1

Date Filed: 12/28/2016

Entry ID: 6058206

United States Court of Appeals
For the First Circuit
No. 15-2015
RONNIE JONES; RICHARD BECKERS; WALTER R. WASHINGTON; WILLIAM E.
BRIDGEFORTH; SHAWN N. HARRIS; EUGENE WADE; GEORGE C. DOWNING,
JR.; CLARARISE BRISTOW; MASSACHUSETTS ASSOCIATION OF MINORITY
LAW ENFORCEMENT OFFICERS; RACHELLE COUCH; KERI HOGAN,
Plaintiffs, Appellants,
v.
CITY OF BOSTON; BOSTON POLICE DEPARTMENT; WILLIAM B. EVANS,
Commissioner of the Boston Police Department,
Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]

Before
Howard, Chief Judge,
Selya and Kayatta, Circuit Judges.

Lisa J. Pirozzolo, with whom Jared B. Cohen, Jeffrey S.
Olshan, Wilmer Cutler Pickering Hale and Dorr LLP, Iván EspinozaMadrigal, Oren M. Sellstrom, Laura Maslow-Armand, and Lawyers'
Committee for Civil Rights and Economic Justice were on brief, for
appellants.
Stephen S. Churchill and Fair Work, P.C. on brief for Fair
Employment Project, National Workrights Institute, Jewish Alliance
for Law and Social Justice, Massachusetts Law Reform Institute,
Boston Society of Vulcans of Massachusetts, Union of Minority
Neighborhoods, Massachusetts Employment Lawyers Association,
Brazilian Worker Center, Massachusetts Black Lawyers Association,

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Fair Housing Center of Greater Boston, and Community Change, Inc.,
amici curiae.
Michael L. Foreman and Pennsylvania State University,
Dickinson School of Law, Civil Rights Appellate Clinic on brief
for National Employment Lawyers Association, Equal Justice
Society, Justice at Work, and American Civil Liberties Union of
Massachusetts, amici curiae.
Helen G. Litsas, with whom Law Office of Helen G. Litsas was
on brief, for appellees.

December 28, 2016

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KAYATTA, Circuit Judge.

Entry ID: 6058206

Making their second appearance

before this court are eight police officers, a police cadet, and
a provisionally hired 911 operator (collectively, the "Officers"),
who claim that they suffered adverse employment actions by the
Boston Police Department ("Department") as a result of a racially
discriminatory hair drug test.

Eschewing any claim that the

Department discriminated against them intentionally, the Officers
advance a so-called disparate impact claim under Title VII of the
Civil

Rights

Act

of

1964.

See

42

U.S.C.

§

2000e-2(k).

Adjudicating the question of liability under such a claim begets
a three-prong, sequential inquiry.

See Lopez v. City of Lawrence,

823 F.3d 102, 110–11 (1st Cir. 2016).
held

that

the

Officers--all

of

whom

In our prior opinion, we
identify

as

black--had

established under the first prong of that inquiry that the hair
drug test caused a cognizable disparate impact.

See Jones v. City

of Boston ("Jones I"), 752 F.3d 38, 60 (1st Cir. 2014). We remanded
the case to the district court to consider the next two prongs by
determining,
appropriate:

either

on

summary

judgment

or

after

trial,

as

(1) whether the Department's drug testing program

was job related and consistent with business necessity; and, if
so, (2) whether the Department refused to adopt an available
alternative that would have met the Department's legitimate needs
while having less of a disparate impact.

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On remand, the district court again entered summary
judgment for the Department, concluding that the evidence could
not support a jury verdict for the Officers on either of the
remaining prongs of the disparate impact liability inquiry.
now vacate that judgment, albeit only in part.

We

Although the drug

test was indisputably job related and its use was consistent with
business necessity, a reasonable factfinder could nevertheless
conclude

that

the

Department

refused

to

adopt

an

available

alternative to the challenged hair testing program that would have
met the Department's legitimate needs while having less of a
disparate impact.

Our reasoning follows.
I.

Background

Our prior opinion details much of the relevant factual
background.

See Jones I, 752 F.3d at 42–46.

In a nutshell, from

1999 to 2006, the Department administered a hair drug test to
thousands of officers, cadets, and job applicants.

The testing

procedure called for the gathering of a hair sample, which was
then "washed" and analyzed for the presence of cocaine, marijuana,
opiates, PCP, and amphetamines.
sample,

a

licensed

physician

Upon detecting cocaine in a hair
would

determine

whether

legally

administered medication could have caused the positive result.
The individual who tested positive was also permitted to submit a
second sample for a so-called "safety-net" test.

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The results were negative for over 99% of the white
individuals tested and over 98% of the black individuals tested.
The Officers now before us, however, were among the fewer than two
percent of black individuals who tested positive for cocaine.

As

a result, nine lost a job or job offer, and one received an unpaid
suspension subject to participation in a drug rehabilitation and
testing program.
In the first go-around, the district court relied on a
rule of thumb promulgated by the U.S. Equal Employment Opportunity
Commission

("EEOC")

to

declare

that

there

was

no

actionable

disparate impact, because the one-percent difference in pass rates
between white and black officers was so miniscule as to be of no
practical significance.
not controlling.
in

exam

We, in turn, found the EEOC rule of thumb

See id. at 52.

results

by

race

Instead, because the difference

was

indisputably

statistically

significant, we concluded that the Officers prevailed as a matter
of law on the first prong of the three-prong disparate impact
inquiry.

Id. at 60.

On remand, the case was randomly assigned to

a new district court judge in accord with the district's customary
practice.
In short order, the parties marshalled their evidence,
mostly in the form of competing expert opinions concerning the
reliability of the test, together with affidavits from the Officers
denying drug use. In a lengthy and attentive opinion, the district

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court found that no reasonable jury could rule in favor of the
Officers on either of the two remaining prongs.

Specifically, the

court found that the Department "demonstrated . . . the business
necessity and job relatedness of the hair drug test," Jones v.
City of Boston, 118 F. Supp. 3d 425, 440 (D. Mass 2015), and that
the Officers failed to offer "any compelling evidence of the
[Department's]

refusal

to

consider

and

equally valid procedure," id. at 446.

adopt

an

alternative

The Officers appeal both

findings.
II.

Discussion

Ruling on a motion for summary judgment, the district
court was required to assume that any disputes of material fact-including conflicting opinions offered by competent experts--could
be resolved by the jury in the Officers' favor.

See Cortés-

Irizarry v. Corporación Insular de Seguros, 111 F.3d 184, 191 (1st
Cir. 1997).

On appeal, we must also so assume, see Sensing v.

Outback Steakhouse of Fla., LLC, 575 F.3d 145, 153 (1st Cir. 2009),
and we consider the summary judgment ruling de novo, Martinez v.
Petrenko, 792 F.3d 173, 179 (1st Cir. 2015).
A.

Job-Relatedness and Consistency with Business Necessity
We consider first whether a reasonable jury could find

that the Department's use of the hair drug test to terminate or
suspend officers was "job related . . . and consistent with
business necessity." 42 U.S.C. § 2000e-2(k)(1)(A)(i). The parties

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agree that "abstention from drug use is an important element of
police officer behavior," and is thus job related.

The Officers

also quite understandably concede that selecting police officers
for retention or discharge based on that job-related behavior is
consistent

with

business

necessity.

The

pivotal

question,

therefore, is whether a reasonable jury could nonetheless find
that the hair drug test as used by the Department was so unreliable
that

its

use

did

not

meaningfully

further

the

Department's

legitimate need for a drug-abstaining police force.

See Jones I,

752 F.3d at 54 (suggesting that the hair test would have to be "so
unreliable that its results have no significant correlation with
drug use"); see also Lopez, 823 F.3d at 111 ("[A] selection
practice is valid if it materially enhances the employer's ability
to pick individuals who are more likely to perform [their jobs]
better than those not picked." (emphasis added)).
Certainly, the evidence would allow a reasonable jury to
find that the hair test as employed by the Department was not 100%
reliable because (according to the Officers' experts) it could not
always distinguish between ingestion of drugs and contamination of
the hair by environmental exposure to drugs. The Officers' experts
further testified that this inability to distinguish unerringly
between ingestion and exposure could well have caused the disparate
impact because, at the margins, black hair, especially if damaged
by

some

cosmetic

treatments

more

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commonly

used

by

black

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individuals, is more likely to absorb and retain contaminants to
which the hair might be exposed.
So far, so good for the Officers.

The problem, though,

is that a finding that all of the test's few positive results might
not have accurately distinguished between ingestion and exposure
logically falls short of establishing that using the test to move
towards

a

drug-abstaining

police

Department's important needs.

force

did

not

further

the

To evaluate the reliability of the

hair drug test in this context, one must consider the test as a
whole and the relative numbers of errors among both the positive
and negative results.
The Department employs thousands of officers.

It would

like to know which officers abstain from drug use and which do
not.
the

As best the record reveals--and no party argued otherwise to
district

accurate.

court--the

negative

hair

test

results

were

all

This means that the hair test was accurate in the

overwhelming majority of cases, reliably confirming that almost
all officers, irrespective of race, very likely abstained from
using the tested-for drugs within as many as ninety days prior to
the test.

This undisputed high degree of accuracy is far beyond

what we have recently and repeatedly indicated satisfies the
employer's burden of proving that a challenged employment practice
furthers an important need of the employer.
at 54; see also Lopez, 823 F.3d at 111.

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See Jones I, 752 F.3d
It also eliminates any

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reason

to

look

at

the

Page: 9

technical

relatedness promulgated by the EEOC.
Of
distinguishing

course,

unless

exposure

the

from

Date Filed: 12/28/2016

guidance

for

Entry ID: 6058206

assessing

job

See Lopez, 823 F.3d at 112.
test

was

ingestion,

100%

accurate

obtaining

a

at

drug-

abstaining police force in this manner could well have been unfair
to some of the few officers who received positive results.1

As we

will discuss, this potential unfairness was the focus of a state
administrative "just cause" adjudication.

The second prong of the

disparate impact inquiry, though, focuses only on the reliability
of the test in meeting the employer's needs.
Co. v. Moody, 422 U.S. 405, 431 (1975).

See Albemarle Paper

And as we have previously

stated, see Lopez, 823 F.3d at 119, there is no reason why a test
need

be

anything

near

100%

reliable

(few

tests

are)

to

be

consistent with business necessity (keeping in mind that the
presence of an alternative method that would have had less of a
disparate impact will still be relevant under the third prong of
the inquiry).
Notwithstanding the foregoing reasoning, the Officers
argue that a ruling in 2013 by the Massachusetts Civil Service
Commission ("MCSC") collaterally precludes the Department from
claiming that the hair test was job related and consistent with
business necessity.

In that ruling, the MCSC overturned most (but

1

The Officers do not claim that all of the positive results
were inaccurate.

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not all) of the Officers' dismissals, determining that a positive
hair test was insufficiently reliable by itself to establish just
cause for termination by a preponderance of the evidence.

Both

the Massachusetts Superior Court, see Bos. Police Dep't v. Civil
Serv. Comm'n, Nos. 13-1250-A & 13-1256-A, slip op. at 20–21 (Mass.
Super. Ct. Oct. 6, 2014), and the Massachusetts Court of Appeals,
see Thompson v. Civil Serv. Comm'n, 59 N.E.3d 1185, 1190 (Mass.
App.

Ct.

2016),

have

since

affirmed

the

MCSC's

conclusions

regarding the reliability of the positive results generated by the
hair drug test.
We review the applicability vel non of issue preclusion
de novo.

Monarch Life Ins. Co. v. Ropes & Gray, 65 F.3d 973, 978

(1st Cir. 1995).

A party advocating for issue preclusion must

show (among other things) that "the issues raised in the two
actions are the same" and "the determination of the issue was
necessary to that judgment."

Manganella v. Evanston Ins. Co., 700

F.3d 585, 591 (1st Cir. 2012).

"The identity of the issues need

not be absolute; rather, it is enough that the issues are in
substance identical."

Id. (citing Montana v. United States, 440

U.S. 147, 155 (1979)).
The issue before the MCSC was whether a positive test
result by itself was just cause for terminating a tenured public
employee.

That is simply not an issue in this case.

The Officers

nevertheless point out that the MCSC made a subsidiary finding

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that the positive results failed to show that drug ingestion was
more likely than not.

There is nothing in this finding, though,

that conflicts with the district court's central conclusion that
use of the hair drug test furthered the Department's legitimate
need to have a police force comprised of officers who abstain from
using the tested-for drugs.

Indeed, the MCSC expressly stated

that the test "has a legitimate place in narrowing down which of
its few officers may reasonably be suspected of abusing illicit
drugs."

This statement supports, rather than precludes, the

district court's conclusion that the use of the drug test furthered
a significant employer need.

The MCSC parted company with the

district court only to the extent that the MCSC was required to
ask a further question not germane to the district court's inquiry,
i.e., whether a reasonable suspicion of illicit drug use was "just
cause" for terminating a tenured public employee.
We therefore agree with the district court that the
record in this case (even including the MCSC's findings) renders
unreasonable any claim that the Department has not proved that its
use of the hair test was job related and consistent with business
necessity.
B.

Refusal to Adopt Available Alternative that Would Have Met
Employer's Legitimate Needs with Less Disparate Impact
Our conclusion that a reasonable jury would have to find

that the hair drug test was job related and consistent with

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business necessity does not mean that it was necessarily lawful to
use the disparately impactful test.

Rather, it brings us to the

third and final prong of the disparate impact liability inquiry:
whether

the

evidence

could

support

a

jury

finding

that

the

Department nevertheless "refuses to adopt an available alternative
employment practice that has less disparate impact and serves the
employer's legitimate needs."
578

(2009)

(citing

42

Ricci v. DeStefano, 557 U.S. 557,

U.S.C.

§

2000e-2(k)(1)(A)(ii),

(C)).

Application of this prong in this case turns on the answers to
three questions:

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?
1.

We consider each question in turn.

Could a reasonable jury find that an alternative
drug-testing method would have met the Department's
legitimate needs?

With relatively little explanation or elaboration, the
Officers' opening brief offers four proposed alternatives to the
hair drug test, only one of which it subsequently contends the
Department refused to adopt even though it would have been equally
effective in meeting the Department's needs and less disparately
impactful.

The parties refer to that alternative as "hair testing

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plus urinalysis."

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By this, the Officers mean the following:

first, administer the hair test to all officers (which will clear
over 98% of the individuals tested); then, administer a follow-up
series of random urinalysis tests only to those officers who
receive positive results on the hair test; and discharge (or
suspend, pending rehabilitation and further drug testing) only
those who flunk one of the follow-up random urinalysis tests.2
This approach would have fully replicated the results of
the hair test alone except, a jury might find, it would have
cleared those who received a positive hair test yet were likely
not using cocaine.

And if the urinalysis tests continued randomly

over the course of more than ninety days, they would have confirmed

2

The district court found that the Officers failed to show
that use of urinalysis testing in lieu of hair testing would have
sufficed. Urinalysis detects only very recent cocaine use (within
two days), whereas hair testing detects cocaine use for a much
longer period (within as many as ninety days). If urinalysis were
administered frequently enough to all officers, it might be
prohibitively expensive. See Watson v. Fort Worth Bank & Tr., 487
U.S. 977, 998 (1988) (plurality opinion) ("Factors such as the
cost or other burdens of proposed alternative selection devices
are relevant in determining whether they would be equally as
effective as the challenged practice in serving the employer's
legitimate
business
goals.").
Particularly
if
it
were
administered on thousands of occasions, urinalysis might be easier
to tamper with. And as a more intrusive test (especially if done
in a manner that avoids tampering), its use without individualized
suspicion might well be legally problematic. See Guiney v. Police
Comm'r, 582 N.E. 2d 523, 526–27 (Mass. 1991). The Officers concede
little of the foregoing, but nevertheless do not press on appeal
the substitution of urinalysis as an alternative to hair testing.

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a period of drug abstention equal to that confirmed by a negative
hair test.
Would this alternative have equally met the Department's
needs?

A reasonable jury might so find.

Keep in mind that the

Department already used a series of negative urinalysis tests as
a basis to reinstate suspended officers who tested positive on the
hair test:

officers who tested positive on the hair test under

the challenged practice could choose to admit to drug use; receive
a forty-five day unpaid suspension; undergo drug rehabilitation;
and submit to frequent, random urinalysis for three years.

The

only difference between the challenged practice and the proposed
"hair testing plus urinalysis" alternative is that firing (or
suspension

and

drug

rehabilitation)

preceded

the

urinalysis

testing in the actual regime, whereas no change in employment
status would have occurred until after urinalysis confirmation in
the alternative scheme.

Additionally, Department policy has long

permitted supervisors with a reasonable suspicion that an officer
is using drugs to order urinalysis screening of that officer. That
the Department used urinalysis in these scenarios--where officers
had already tested positive for drugs or were reasonably suspected
of using drugs--naturally suggests that the Department viewed
random urinalysis as an acceptably reliable method for detecting

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drug use on a targeted (rather than mass) basis.3

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To the extent

that a concern with urinalysis is its manipulability, a jury could
find that the more frequent and randomized nature of the Officers'
proposed urinalysis program would have sufficiently minimized such
a concern.4
Crucially, the alternative would have retained the main
benefit of the challenged drug testing program: using a relatively
unintrusive, easy-to-supervise hair test to generate the negative
results that confirm that almost all officers, regardless of race,
do not use illegal drugs.

All in all, we think that this is a

close enough call that a jury could conclude that the Officers'
proffered alternative equally would have met the Department's
needs.

Indeed, if a jury believed the thrust of the Officers'

evidence, it might conclude that the alternative test method would
have saved the Department from losing several veteran officers who
were not using cocaine.

3

Similarly, while it may be within the scope of inquiry to
consider the putative costs of the Officers' proposed alternative,
see Watson, 487 U.S. at 998 (plurality opinion), a reasonable jury
could find that there would have been no material cost
differential, especially given that the Department had shown a
willingness to assume those costs by virtue of the rehabilitation
option that it offered (and continues to offer) to all officers
who tested positive on the hair test.
4

We note that the challenged hair test program itself was
not intended to catch all use of illegal drugs. Rather, the aim
was to ensure that there was at least a sixty- to ninety-day period
of abstention.

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2.

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Could a reasonable jury find that the alternative
would have generated less of a disparate impact?

In Jones I, we observed that "[a] plaintiff who subjects
a defendant's job-related practice to the sensitivity of a large
sample analysis can fairly be required to show through statistical
evidence,

and

with

equal

confidence,

that

the

proffered

alternative practice will have a smaller impact, except where the
alternative

is

differential."

self-evidently
752

F.3d

at

incapable

53.

The

of

Department

causing
reads

a
this

statement as always requiring a new, large-sample statistical
analysis that specifies the precise impact of an alternative
practice.
which

We reject this overly narrow reading of the manner by

statistical

evidence

can

be

marshalled.

Rather,

the

plaintiff in some situations can use the statistically determined
impact of the challenged process as a baseline, and demonstrate
that the alternative practice must necessarily be less.

Suppose,

for example, that an employer selected job applicants by height,
creating a disparate gender impact revealed through a large-sample
statistical analysis.

If the proposed alternative were to use a

random selection tool (such as a coin flip), it would be selfevident that the impact would be less; hence, there would be no
need for actually running the numbers through a new analysis.
Here, if the jury were to believe the Officers and their
experts rather than the Department and its experts, it would be

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self-evident that the "hair testing plus urinalysis" alternative
would have generated less of a disparate impact than that revealed
by the large-sample statistical analysis of the hair drug test
results. The jury could find that the hair test alone can generate
false positives for some black individuals, that black individuals
have no greater likelihood of receiving a false positive result
from urinalysis than do white individuals,5 and that the Officers
(who swear that they did not use cocaine) more likely than not
received

false

positive

identified as such.

results

that

urinalysis

would

have

Given such findings, the alternative would

necessarily have resulted in the termination of a lower ratio of
black officers to white officers. That is, because the statistical
analysis of the challenged practice shows an overall disparate
impact of X, where the number of black officers with positive
results was Y, a reduction in Y alone would necessarily have
resulted in an overall disparate impact of less than X.
None of this is to say that the jurors must so find.
The jury could conclude, for example, that the hair test as
administered by the Department did not generate false positives
based on race, and hence, that the alternative would not have had
a lesser disparate impact.

The point is that, though the evidence

is conflicting, the mathematical import of either conflicting view

5

This point is undisputed.

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is self-evident.

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A jury could therefore find that the Officers'

proposed alternative would have had less of a disparate impact
than that resulting from the challenged practice.
3.

Could a reasonable jury find that the Department
"refuses" to adopt the alternative?

Title

VII

requires

as

an

element

of

a

successful

disparate impact claim a finding that "the [employer] refuses to
adopt such alternative employment practice."
2(k)(1)(A)(ii).

42 U.S.C. § 2000e-

This language is susceptible to a number of

different readings.

Does an employer only "refuse to adopt" an

alternative practice if the employer knows it will meet its needs
and have less of a disparate impact?

If this were a correct

reading, then a finding for plaintiffs on the third prong of the
disparate impact inquiry would effectively constitute a finding of
intentional discrimination.

Cf. Wards Cove Packing Co. v. Atonio,

490 U.S. 642, 660-61 (1989) (observing that a refusal to adopt an
alternative
incumbent

"would

practices

belie
are

a

claim

being

by

petitioners

employed

for

that

their

nondiscriminatory

reasons"), superseded by statute, Civil Rights Act of 1991, Pub.
L. No. 102-166, 105 Stat. 1074; Albemarle Paper Co., 422 U.S. at
425 ("Such a showing would be evidence that the employer was using
its tests merely as a 'pretext' for discrimination.").

As we have

previously observed, however, "proof of a disparate impact claim

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requires no proof of intentional discrimination."

Entry ID: 6058206

Jones I, 752

F.3d at 50; see also Ricci, 557 U.S. at 583.
Other possible readings of the statute remain.

Is it

enough that the alternative was available and not used, or must
its

availability

have

been

known?

Must

it

be

specifically

proposed, like a dinner special at a restaurant, or is it enough
that it was on the known menu of options and not selected?
are

we

to

make

("refuses")?
nuances.
there

are

of

the

statute's

use

of

the

present

What
tense

The parties provide no express discussion of these

Indeed, their briefs contain no acknowledgement that
meaningfully

statutory text.

different

possible

readings

of

the

The only cases upon which the Officers rely are

the Seventh Circuit's decisions in Adams v. City of Chicago, 469
F.3d 609 (7th Cir. 2006), and Allen v. City of Chicago, 351 F.3d
306 (7th Cir. 2003).

The Department, too, urges us to follow the

Seventh Circuit, pointing specifically to Allen.

The formulation

employed in Allen and repeated in Adams is that "the statutory
scheme requires plaintiffs to demonstrate a viable alternative and
give the employer an opportunity to adopt it."
613 (quoting Allen, 351 F.3d at 313).

Adams, 469 F.3d at

Adams elsewhere seems to

suggest that the employer is given an opportunity to adopt the
alternative if the employer "had an opportunity" to adopt it, see
id. at 613, 616, and that such an "opportunity" existed if the

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alternative was "available," see id. at 614, and the employer was
free to adopt it, see id. at 615 n.4.
Confronted with the limited briefing on point, and the
parties' consensus in pointing to Seventh Circuit precedent, we
will follow the path of Allen and Adams by default (rather than by
decision).

We asked at oral argument whether there was evidence

in the record that the "hair testing plus urinalysis" alternative
was available to the Department at a time relevant to this lawsuit.
The Officers' counsel directed us only to the fact that in 2003,
they gave the Department an affidavit signed by their expert,
Dr.

Kidwell,

proposing

the

alternative.

This

affidavit

by

Dr. Kidwell is the same evidence on which plaintiffs relied in the
district court.

The affidavit appears to be an expert disclosure

detailing Dr. Kidwell's opinions on hair testing as well as "more
enlightened approach[es] to drug testing," which include hair
testing followed by random, frequent urinalysis.

It is dated

June 3, 2003. Plaintiffs' "Additional Statement of Material Facts"
states that "[a]s early as 2003, Dr. Kidwell suggested alternative
methods" of testing for drug use to the Department, pointing to
this affidavit as evidence of the fact. The Officers make no claim
that the alternative was otherwise "available" before Dr. Kidwell
proposed it.
revealed.

Exactly when in 2003 the suggestion was made is not

We infer that it was when the affidavit was served on

the Department's counsel sometime that year.

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affidavit does indeed propose that the Department could use what
we refer to as the "hair testing plus urinalysis" alternative.
Accordingly, we agree with the Officers that the summary
judgment record reveals a material dispute of fact concerning
whether,

sometime

in

2003,

the

Department,

by

continuing

to

administer the challenged hair test, "necessarily . . . refused to
adopt" the alternative made available to it by the suggestion of
Dr. Kidwell.

See Ricci, 557 U.S. at 589.

The parties appear to

agree that some (but not all) of the Officers were selected for
termination

or

suspension

after

affidavit to the Department in 2003.

Dr.

Kidwell

submitted

his

Those Officers, but not the

others, could succeed at trial under the third prong of the
disparate

impact

inquiry.

Precisely

which

Officers'

claims

survive based on this timeline can be determined in the district
court on remand.
III. Conclusion
In sum, we affirm the district court's ruling on summary
judgment that the Department's use of the hair test was job related
and consistent with business necessity, but we vacate the district
court's grant of summary judgment to the Department on the third
prong of the disparate impact inquiry.
sufficient

evidence

from

which

a

The record contains

reasonable

factfinder

could

conclude that hair testing plus a follow-up series of random
urinalysis tests for those few officers who tested positive on the

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hair test would have been as accurate as the hair test alone at
detecting

the

nonpresence

of

cocaine

metabolites

while

simultaneously yielding a smaller share of false positives in a
manner that would have reduced the disparate impact of the hair
test.

We also think that, on the present record, a reasonable

factfinder could conclude that the Department in 2003 refused to
adopt

this

alternative.

We

consistent with this opinion.

remand

for

further

proceedings

The district court will decide at

the time of final judgment whether costs of this appeal are to be
shifted in favor of a finally prevailing party under any applicable
statute.

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