useal-2b.jpgBy Anthony Califano and Lynn Kappelman

On September 28, 2012, in Jones, et al. v. City of Boston, et al., No-05-11832, 2012 U.S. Dist. LEXIS 141440 (D. Mass. Sept. 28, 2012), Judge George A. O’Toole of the U.S. District Court for the District of Massachusetts granted the City of Boston’s summary judgment motion against Plaintiffs, a group of police officers alleging disparate impact race discrimination. 

The Boston Police Department (“BPD”) uses hair testing to determine whether its police officers are using illegal drugs. Id. at *2. After Plaintiffs had failed the hair test, the BPD took adverse employment actions against each of them. Plaintiffs sued the BPD and its Commissioner claiming, among other things, that the BPD hair tests had a disparate impact on African-American officers and, as such, violated Title VII and Massachusetts anti-discrimination law. Id. at *3. 

To meet their initial burden of establishing a prima facie case of disparate impact race discrimination, Plaintiffs relied on their expert witness’s statistical evidence. Specifically, Plaintiffs’ expert had found “evidence that differences in the rates at which African-Americans failed, rather than passed their hair test, were statistically significant to the extent of between two to four standard deviations.” Id. at *6-7 (emphasis in original). However, it was undisputed that, over the eight years that the BPD required hair testing, African-American officers had passed the test at rates between 97% and 99%, while Caucasian officers passed at rates between 99% and 100%. Id. at *6. Nevertheless, Plaintiffs argued that their statistical evidence regarding the test failure rates satisfied their prima facie burden. Judge O’Toole disagreed.

In his decision, Judge O’Toole noted that “[f]or the plaintiffs to meet their 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.” Id. at *4 (internal citations omitted). The Court reasoned that no one test controls in measuring disparate impact and “‘the utility of statistical evidence depends on all of the surrounding facts and circumstances.’” Id. at *4-5 (internal citations omitted). Judge O’Toole also observed that the First Circuit has approved of the EEOC’s “Four-Fifths Rule,” which is a “rule of thumb” (not a hard and fast rule) for measuring the sufficiency of statistical evidence in employment cases. Id. at *5. The “Four-Fifths Rule” states:

A selection rate for any race . . . which is less than four-fifths . . . of the rate for the group with the highest rate will generally be regarded by the federal enforcement agencies as evidence of adverse impact, while a greater than four-fifths rate will generally not be regarded . . . as evidence of adverse impact.

Id. (quoting 29 C.F.R. § 1607.4(D)).

Applying the Four-Fifths Rule in this case, Judge O’Toole held that that Plaintiffs had not established their prima facie case and “the question is not even close” because “the passing rate for African Americans was at least 97% of the passing rate for whites.” Id. at *6. In reaching his decision, Judge O’Toole rejected Plaintiffs’ reliance on the statistical significance of failure rates, stating that “[f]ocusing on failure rates, rather than passing rates, eludes the point of the Four-Fifths Rule, where the EEOC addressed ‘selection’ rates rather than ‘exclusion’ rates.” Id. at *7. 

Implications Of The Ruling

It is clear from this decision that employers and their counsel should look at the totality of the circumstances when challenging statistical evidence, because viewing the same data from a different perspective may yield a more favorable outcome. It also serves as a reminder that courts in the First Circuit employ the EEOC’s Four-Fifths Rule when reviewing statistical evidence regarding the disparate impact an employer’s actions have had on a particular protected group.