Petitioners Brief — New York City Transit Authority v. Beazer

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Text

Ocroper Term, 1978

No. 77-1427

o_o

New York Criry Transtr Avutuority, et al.,

Petitioners,

—_vVv.—-

Cart Beazer, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR PETITIONERS

AupHonseé EF. D’AMBROSE

Attorney for Petitioners

New York City Transit

Authority, et al.

370 Jay Street

Brooklyn, New York 11201

Heven R. Cassipy

Joan OFFNER

Evcene Frewvus

of Counsel

INDEX

IED sectttanissiariniintninsiititantinniteniiinaiiinenniinigainienes

Constitutional and Statutory Provisions Involved ........

eee

ID IE TEI vensiscanscarntsrnenecaeneaneetdennnsnnieapinniontonniemmain

fT PDS ATE ye , LOE OR EE ET

I. The Transit Authority's denial of employment

to former heroin addicts participating in meth-

adone maintenance programs is not an unconsti-

tutional denial of due process and equal protec-

tion under the Fourteenth Amendment ................

A. The strict scrutiny standard should not be

CR Te Se ID scinitlitatierecininieisctientennpansitonen

B. The courts below evaluated the Transit Au-

thority’s employment policy in terms of the

strict scrutiny standard ...........................0.00..

C. The Transit Authority’s employment policy

meets the test of rationality under the tradi-

tional standard of scrutiny ..............................

PAGE

Il. The Transit Authority's denial of employment to

former heroin addicts participating in metha-

done maintenance programs is not an unlawful

racial discrimination under Title VII of the Civil

Rights Act of 1964 as amended ............................ 45

A. The District Court erred in finding the Tran-

sit Authority guilty of unlawful discrimina-

tion under Title VII in the absence of proof

of discriminatory intent ............................... 46

B. The evidence in this case was insufficient to

prove a disparate impact in violation of Title

ITTIEE vncanhcseensiesistienencensenesinnnicinniensiaemnnteahintigmnmaniaaaiit 48

CIID cecetetnmniemntmmtimmnmnreiinie 55

[ ee Separately bound and paginated

CrraTions

Cases:

Beazer, et al. v. New York City Transit Authority,

et al., 399 F. Supp. 1082 (SDNY 1975) —..4, 9, 12,19, 21,

22, 23, 26, 28

Beazer, et al. v. New York City Transit Authority,

et al., 414 F. Supp. 277 (SDNY 1975) .......2, 28, 45, 46, 49

Beazer, et al. v. New York City Transit Authority,

et al., 558 F. 2d 97 (2d Cir. 1977) 200... 2, 29, 30, 39, 45

Blake v. City of Los Angeles, 435 F. Supp. 55 (DCD

SE, TIED: scesiehoanicnnpessssnsiieenatiasidinailiasaislateiaaintalacieaiiidiaeitaamass 47

Board of Regents v. Roth, 408 U.S. 564 (1972) 0... 35

Bullock v. Carter, 405 U.S. 134 (1972) 2.00... 36

a Cetin 6 Om Oe He ete oe

PAGE

Cleveland Board of Education v. LaFleur, 414 U.S. 632

TTI shiisdiadiieaessitebdaheninsitidetiabesenttinas siebliiiasinabiiineninnsitiaddl 30, 38, 39

Crawford v. Cushman, 531 F. 2d 1114 (1976) 200000... 40

Dandridge v. Williams, 397 U.S. 471 (1970) ........ 29, 30, 31,

36, 41, 44, 45

Dothard vy. Rawlinson, 433 U.S, 321 (1977) oo... tei 48

Fitzpatrick vy. Bitzer, 427 U.S. 445 (1976) 200. 32, 46

Foley v. Connelie, —— U.S. ——, 46 U.S.L.W. 4327

SEES Eee eR ee RN 37

Friend v. Leidinger, 446 F. Supp. 361 (E.D. Va. Rich-

Or ai aa 47

Frontiero v. Richardson, 411 U.S. 677 (1973) ................ 37

Graham v. Richardson, 403 U.S. 365 (1971) ............ 29, 37, 40

Griffin v. Illinois, 351 US, 12 (1956) oe. 29, 37

Griggs v. Duke Power Co., 401 U.S, 424 (1971) ....46, 48, 52

Hazelwood School District, et al. v. United States, 433

I I 34, 49, 52

Hester v. Southern R. Co., 497 F. 2d 1374 (5th Cir.

eee Se Ss. ee Oe Oe eae Fee 4s

International Brotherhood of Teamsters v. United

States, et al., 431 U.S. 324 (1977) ....... 34, 48, 49, 50, 52, 53

Kirkland y. State Department of Correctional Services,

SSD FP’. Ba GBD (Bd Cie. 197B) non nnccccccncecececccccceceees 49, 52

Korematsu v. United States, 323 U.S. 213 (1944) ........ 29, 37

Lindsley v. Natural Carbonic Gas, 220 U.S. 61 (1911)... 42

Marshall v. United States, 414 U.S. 417 (1974) oo... 42-43

PAGE

Massachusetts Bd. of Retirement v. Murgia, 427 US.

i a ileal 29, 31, 36, 41, 43-45

Mathews v. Lucas, 427 U.S, 495 (1976) ..000.0.....0. eee 37

McGowan v. Maryland, 366 U.S. 420 (1961) ............... 42

Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61

ESR vce nee nen cee Ta 42

Morita y. Southern California Permanente Medical

Group, 541 F. 2d 217 (9th Cir. 1976), cert. den., 429

Ie a aasiemesemuenniniaeuidtineth 49

National League of Cities v. Usery, 426 U.S. 833

SUEEIUTIED > diccesestncehdietiteshdaniecbabiodeakissedabaiesisdnnlnibalaieniiiniabiatizeunsiiuniten 46

Oyama vy. California, 332 U.S. 633 (1948) .................... 29, 37

Perry v. Sinderman, 408 U.S. 593 (1972) ...................... 35

Robinson vy. City of Dallas, 514 F. 2d 1271 (5th Cir.

RT EEE Pek ELSE Sgr eee ene eee 49

Roe v. Wade, 410 U.S. 113 (1978) ................e ee ceceeeecceee 36

San Antonio School District v. Rodriguez, 411 U.S. 1

GITIITIED ; scnsiisisasenhbcsiiciesetadicaniaadesbaiiibitdiaiiniddatianipinepecasitisl 36, 37, 38, 41

Scott v. City of Anniston, 430 F. Supp. 508 (N.D. Ala.

STII icine lace esghlalaeiaibntchetiedeabeacabibte 47

Shapiro v. Thompson, 394 U.S. 618 (1969) 000000... 36

Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535

I aa a leet 36

Stanley v. Illinois, 405 U.S. 645 (1972) 0 e.ccceceeeeenes 38

Sugarman vy. Dougall, 413 U.S. 634 (1973) —........ 30, 39, 40

PAGE

Taylor v. Safeway Stores, Inc., 527 F. 2d 263 (10th

A IES TCR EL ee 49, 52

United States v. Carolene Products Co., 304 U.S. 144

EEF, Fb SEE OREO ae Soe Oe ne CR Se 38, 44

United States Department of Agriculture v. Murry, 413

I i 38

United States vy. State of South Carolina, 445 F. Supp.

1094 (DCD So. Car. 1977), aff'd —— U.S. ——, 98

I i 34, 53

Vlandis v. Kline, 412 U.S. 441 (1973) 200 38

Washington v. Davis, 426 U.S. 229 (1977) 00. 32, 47

Weinberger v. Salfi, 422 U.S. 749 (1975) 0.0... 38, 39, 44

Williams v. Rhodes, 393 U.S. 23 (1968) 0. 36

Constitutional, Federal and

State Statutes:

Constitution of the United States:

A ERIE che eS 46

Fourteenth Amendment ................. 28, 29, 30, 32, 35

Federal Statutes and Regulations:

The Civil Rights Act of 1964, Title VII, 42 USC

$2000e, et sey., as amended .0 28, 32, 45, 46

Civil Rights Attorney’s Fees Award Act of 1976,

SS a ee ee 28, 45

ELIE ELIAS EEE ED 10

SEI Oe al tN ae 52

I 25

Se Oe 25

TPT SE ORE HOR REESE SSH See SES SES Oe estes s ceeeeess

Le ee aeSSSaSerrmnn..___aQm_

a aa a eae = a

PAGE

State Statutes:

New York Executive Law §296.1(d) —...................... 52

Public Authorities Law of New York State §§1200

a 4

EEE 10

Miscellaneous :

1964 U.S. Code Cong. & Ad. News (88th Congress,

Bocend Bonshaw), BUTE nnicccnserieccssssessssnsnioccsstsistnatecses 46

Developments in the Law—Equal Protection, 82

Harv. L. Rev. 1065 (19GB) ..................c0ccccecccecseees 38

“Methadone Maintenance Treatment: A Ten Year

Perspective,” Dole and Nyswander, Journal of

the American Medical Association, Vol. 235, No.

19, pp. 2117-2119, May 10, 1976 ...................ss00e 15

~~ OE hh OR Bm Mw > =

IN THE

Supreme Court of the United States

Ocrosper Term, 1978

No. 77-1427

New York Crry Transrr Avuruoriry, ef al.,

Petitioners,*

—vV eee

Cart Beazer, ef ai.,

Respondents.**

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

—<j>-

BRIEF FOR PETITIONERS

Opinions Below

The opinion of the United States Court of Appeals,

Second Cireuit, of June 22, 1977 is reported at 558 F.2d 97,

* Petitioners, who were defendants in the District Court, appel-

lants-cross-appellees in the appeal to the Cireuit Court are the

New York City Transit Authority, Manhattan and P»onx Surface

Transit Operating Authority, William J. Ronan, individually and

in his capacity as a member and as chairman and chief executive

officer of the New York City Transit Authority and also as a

director and as chairman and chief executive officer of the Man-

hattan and Bronx Surface Transit Operating Authority, and his

successors in office, William L. Butcher, Lawrence ke Bailey,

Harold L. Fisher, William A. Shea, Eben W. Pyne, Leonard

Braun, “Justine” N. Feldman, Donald H. Elliott, Frederic RB.

Powers and Mortimer Gleeson, individually and in their capacities

us members of the New York City Transit Authority and directors

of tl» Manhattan and Bronx Surface Transit Operating Au-

and reprinted as Appendix A of the petition for Writ of

Certiorari (p. la). The opinion of the Usited States Court

of Appeals, Second Circuit, entered on February 1, 1978,

denying petitioners’ petition for rehearing is unreported

and appears as Appendix B of the petition for Writ of

Certiorari (p. 9a). The opinion of the United States Dis-

trict Court for the Southern District of New York dated

August 6, 1975, is reported at 399 F. Supp. 1032 and re-

printed as Appendix C of the petition for Writ of Cer-

tiorari (p. lla). The Supplemental Opinion of the United

States District Court for the Southern District of New

York dated May 5, 1975, is reported at 414 F. Supp. 277

and reprinted as Appendix D of the petition for Writ of

Certiorari.

thority, and their successors in office; Wilbur B. McLaren, indi-

vidually and in his capacity as executive officer for labor relations

and personnel of the New York City Transit Authority, and

his successors in office; Louis Lanzetta, individually and in his

capacity as medical director of the New York City Transit Au-

thority, and his successors in office. The Civil Service Com-

mission of New York; Personnel Department of the City of New

York; Harry I. Bronstein, individually and im his capacity as

a member and as Chairman of the Civil Service Commission of

the City of New York, and director of the Personnel Department

of the City of New York, and his successors in office; David

Stadtmauer and James W. Smith, individually and in their ca-

pacities as members of the Civil Service Commission of New York,

and their successors in office, were dismissed from the action after

the District Court judgment.

** Respondents, who were plaintiffs in the District Court, respon-

dents-cross-appellants in the appeal to the Cireuit Court are Car!

Beazer; Jose R. Reyes; Francisco Diaz; Malcolm K. Frasier, in-

dividually and on behalf of all others similarly situated. Nathaniel

Wright was added as a named plaintiff-appellee-cross-appellant

member of the class after the District Court trial had begun.

ee ee ee

Jurisdiction

The judgment of the United States Court of Appeals,

Second Cireuit, was entered on June 22, 1977, Appendix A

of the petition for Writ of Certiorari (p. la). A motion

and petition for a rehearing en bane was denied by the

United States Court of Appeals, Second Circuit, on

February 1, 1978, Appendix B of the petition for Writ of

Certiorari (p. 9a). An order granting petitioners’ mo-

tion for stay of mandate was entered on March 10, 1978.

The petition for Writ of Certiorari was filed April 6,

L978, and granted June 26, 1978. (See Appendix 123A.)*

The jurisdiction of this Court rests on 28 U.S.C. § 1254(1).

Constitutional and Statutory Provisions Involved

The Fourteenth Amendment, Section 1 of the Constitu-

tion of the United States; Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e et seq.; the Civil Rights Act

of 1871, 42 U.S.C. § 1983; New York State Public Authori-

ties Law §§ 1200, et seq.; 28 U.S.C. § 1254(1), are set out

in Appendices F-G and I.J of the petition for Writ of

Certiorari.

Questions Presented

I. Is the petitioners’ denial of empioyment to former

heroin addicts participating in methadone maintenance

programs, an unconstitutional denial of due process

and equal protection under the Fourteenth Amend-

ment?

* Hereinafter, references to Supreme Court Appendix will be

designated as “A. p. tae

II. Is the petitioners’ denial of employment to former

heroin addicts participating in methadone maintenance

programs, an unlawful racial discrimination under

Title VII of the Civil Rights Act of 1964, 42 U.S.C.

} 2000e, et seq.?

Statement of Facts

The Class

As defined by the District Court, the class represented

by the named respondents (the plaintiffs below), con-

sists of all those persons who have been or would in the

future be subject to dismissal or rejection as to employ-

ment by the petitioners on the ground of present or past

participation in methadone maintenance programs. (399

F. Supp. at p. 1035).

The Petitioners

The petitioners, the New York City Transit Authority

and its subsidiary, the Manhattan and Bronx Surface

Transit Operating Authority (hereinafter collectively re-

ferred to as the Transit Authority), are public benefit cor-

porations organized under the laws of the State of New

York to operate and maintain all subway and bus transpor-

tation facilities owned by the City of New York. (N.Y.

Public Authorities Law, §§ 1201.1, 1203)

The Transit Authority employs approximately 27,000

persons, including hourly paid and supervisory employees,

in the operation and maintenance of the subway system,

and about 14,000 employees in the bus operations. In addi-

tion, there are about 3500 persons employed in clerical,

administrative and professional titles, and 3600 employed

as transit police officers. The Authority hires approxi-

ne eee id es a ON ee eet

mately 3000 employees annually. (R. Tr. 12/12/74, pp.

24-30, 52, 61)*

The subway and bus system operated by the Transit

Authority carries about six million passengers each busi-

ness day, with a total of about two billion passengers a

year. (R. Tr. 12/12/74, pp. 25, 61)

The Transit Authority’s Policy Regarding Methadone

It is the policy of the Transit Authority to exclude from

employment persons who use narcotic drugs, including

former heroin addicts who are in methadone maintenance

programs. At the same time, the Authority will give indi-

vidual consideration to people with a past history of drug

addiction including those who have completed either a drug

free or a methadone maintenance program, and who have

been completely drug free and have had a stable history

for at least five years. (R. Tr. 1/28/75, pp. 709, 714, 715)

Rule 11(b) of the Transit Authority’s Rules and Regula-

tions provides :

“(b) Employees must not use, or have in their posses-

sion, narcotics, tranquilizers, drugs of the Ampheta-

mine group or barbiturate derivatives or paraphernalia

used to administer narcotics or barbiturate derivatives,

except with the written permission of the Medical

Director-Chief Surgeon of the System.” (Pl. Ex. 58,

appearing in Cireuit Court Appendix at p. 2799)

The Transit Authority’s Executive Officer for Labor Re-

lations and Personnel, Wilbur B. McLaren, testified that in

1969, as a result of a newly negotiated early retirement

plan, a large number of the Authority's experienced opera-

* References are to the Trial Transcript. Since the volumes of

the Trial Transcript are not paginated consecutively, references

are to dates and page numbers of the various volumes.

tions and maintenance employees retired. The accelerated

hiring and training of large numbers of new employees

created a number of operational! problems, including a ser-

ies of accidents, collisions and fires. (R. Tr. 10/25/74, p.

492)

In an effort to deal with these problems, the Transit

Authority undertook a reevaluation of its job standards,

including its physical and medical standards. During the

course of this reevaluation, the Authority became aware,

for the first time, of drug use by a significant number

of employees and applicants for employment. (R. Tr.

10/25/74, pp. 495-499)

The Transit Authority began to use urinalysis as a

method of detecting drug use in applicants for employment

and in the periodic examinations of employees in critical

titles. (Employees in critical titles are required to undergo

physical examinations on an annual or biennial basis, de-

pending on the employee's age.) From January 1971 to

October 1974, the date of McLaren’s testimony, the Au-

thority identified over 600 employees and applicants as

drug users. (R. Tr. 10/25/74, pp. 497-501)

A series of seminars and conferences was initiated by the

Transit Authority to educate key personne! to the problems

connected with drug use, and to try to resolve the question

of whether the Authority could employ drug users. In addi-

tion, McLaren and his staff visited seven or eight drug

clinies in the City and discussed with some of the leading

experts in the field the possibility of hiring participants in

methadone maintenance programs. (R. Tr. 10/25/74, pp.

501, 502, 508, 510, 534)

Through these investigations and consultations, the

Transit Authority learned that the rate of return to drug

and aleohol abuse among methadone patients was very

ea Me telat cil vn ill lla ans i ea mean Allin eal, ae nlllins Cima

ae hem &

high, while the rate of entry into a stable way of life was

very low, that patients on methadone maintenance pro-

grams required extensive psychological reorientation as

part of the treatment program, that the methadone clinics

regarded their medical records as confidential and did not

make material information concerning their patients avail-

able to employers, that the clinics themselves were not

adequately regulated, and that many of the clinies were

unreliable both in terms of the quality of the services

provided to the patients and the information provided to

employers. (R. Tr. 10/25/74, pp. 535-544)

The Transit Authority also took into consideration the

scope and complexity of the transit system and the deploy-

ment of personnel throughout the system, the concern for

the safety of passenger services and for maintaining public

confidence in the transit system. (R. Tr. 10/25/74, pp. 552-

004)

The Transit Authority discounted private industry’s

limited experience with employment of methadone patients

as irrelevant because, as a public employer, the Authority

must hire through the civil service system and cannot en-

gage in the small, selective pilot programs adopted by some

private companies. In addition, it is fairly simple for a

private company to terminate an employee who proves un-

satisfactory, whereas in public employment, once the em-

ployee has completed a brief probationary period, he

cannot be terminated without a formal disciplinary hear-

ing. (R. Tr. 10/25/74, pp. 536-537)

In light of all of the foregoing considerations, the Tran-

sit Authority concluded that it would be unwise to ex-

empt methadone maintained patients from the prohibition

against the employment of drug users.

The Nature of Methadone Treatment

Methadone treatment is appropriate only for people

addicted to heroin, It is a treatment specifically for chronic

heroin addicts, i.c., people who have illegally injected

heroin into the bloodstream several times a day for at least

two years. (R. Tr. 10/22/74, pp. 13, 58)

Methadone is an opiate drug which produces addictive

effects in every way similar to the effects of heroin. (R. Tr.

10/22/74, pp. 62-64) If injected into the bloodstream with a

needle, or taken orally in large doses, it will produce essen-

tially the same effects as heroin. (R. Tr. 1/7/75, p. 41;

1/28/75, pp. 633-637). When controlled doses of methadone

are taken by mouth, the drug is absorbed into the blood-

stream over a period of time, rather than sent rapidly into

the bloodstream as is the case when a drug is injected. As

a result, the concentration of methadone in the blood re-

mains at a stable level for about twenty-four hours, and the

individual does not experience the extreme highs and lows

associated with heroin use. (R. Tr. 1/7/75, pp. 9-11)

When methadone is ingested in sufficiently high doses, it

produces a tolerance or resistance which prevents the meth-

adone user from experiencing any “high” from injecting

heroin. (R. Tr, 1/9/75, p. 187) This effect of methadone

relates solely to heroin. Methadone has no effect whatever

on the use of alcohol, barbiturates, amphetamines or any

other types of drugs. (R. Tr. 10/22/74, p. 92)

Methadone is used both in detoxification programs and

in methadone maintenance programs. In short-term de-

toxification programs, the heroin addict is transferred

from heroin to methadone, with the doses of methadone

gradually reduced to zero over a three week period. Under

this procedure, the patient is detoxified from hoth heroin

re S|

and methadone. As indicated in the District Court opinion

(399 F. Supp. at p. 1038), this detoxification procedure

frequently is unsuccessful, with patients returning to

heroin use.

The treatment of heroin addiction by means of main-

tenance on methadone, rather than by detoxification, was

originated by Dr. Vincent Dole during the 1960s. Dole’s

theory, in essence, was that through the use of carefully

controlled doses of methadone, the craving for heroin could

be blocked, and that this heroin block, maintained through

continued methadone usage, and combined with extensive

social and psychological rehabilitative services, could en-

able the heroin addict to establish a relatively normal life.

(R. Tr. 1/7/75, pp. 7-8, 14)

In 1969-1970, methadone maintenance began to be more

widely used in the treatment of heroin addicts. (R. Tr.

10/25/74, p. 366) In 1974, at the time this case was tried,

there were approximately 40,000 patients in methadone

maintenance programs in the City of New York. Of these,

approximately 26,000 were treated in public or semi-public

programs, and about 14,000 were treated in private pro-

grams. The public and semi-public programs are financed

almost entirely by federal, state and city grants,

As indicated in the District Court’s opinion (399 F. Supp.

at p. 1040), the major public and semi-public methadone

maintenance programs in New York City are the Beth

Israel program, the New York City program, the Bronx

State Hospital program, the Addiction Research and

Treatment Center (ARTC) program, and the New York

State Drug Abuse Control Commission (DACC) program.

Regulations concerning methadone treatment were pro-

mulgated by the United States Food and Drug Administra-

tion effective March 1973. (21 CFR § 130 et seq.) Similar

regulations were promulgated by the New York State Drug

Abuse Control Commission in May 1974. (14 NYCRR Part

2021) Prior to July 1974, the regulation of methadone

clinies in New York City was the responsibility of the FDA.

Thereafter, DACC took over that responsibility. (R. Tr.

1/28/75, p. 614)

There are essentially two types of methadone mainte-

nance programs—the “high dose” and the “low dose” pro-

grams. Detoxification is not one of the goals of the high

dose programs. In this type of program, which is espoused

by Dole and used in the Beth Israel program, the central

goal is to enable the patient to live a relatively normal life,

despite the fact that this may require a lifelong dependence

on methadone. (R. Tr. 1/7/75, pp. 80, 117, 118; 10/22/74,

pp. 19, 20) Sufficiently large doses of methadone (in the

range of 80-100 milligrams per dose) are administered to

establish an effective resistance to heroin, and no emphasis

is placed on future discontinuance of methadone. (R. Tr.

1/7/75, pp. 78, 80; 10/25/74, pp. 379-380) Dole expressed

opposition to governmental policies which established de-

toxification as an obligatory goal. (R. Tr. 1/7/75, p. 78)

In low dose programs, where the dosage is in the range

of 40 milligrams per dose, the principal goal is detoxifica-

tion. Proponents of low dose programs, including Dr.

Beny J. Primm and Dr. Irving Lukoff of Addiction Re-

search and Treatment Corp., criticized the high dose pro-

grams which place patients on methadone indefinitely,

because “our experience with methadone is not that long.

The long-term effects are simply still an unknown element.

It is still a powerful drug and the less you can give and get

away with the better off you are.” In addition, they con-

sider that it is easier to detoxify a person from a lower

methadone dosage. (R. Tr. 10/25/74, p. 459; 1/27/75, pp.

481, 482)

Finally, there are the non-methadone, residential drug-

free programs such as Phoenix House and Odyssey House

which are based on the premise that the problems under-

lying drug abuse are psychological in nature. Dr. Mitchell

S. Rosenthal, the director of Phoenix House, expressed

the view that methadone has been “overpromoted” as a

method of dealing with the problems of drug abuse. He

testified that it is necessary to work with a patient over

a long period of time—generally eighteen to twenty-four

months—“in order to undo the kinds of emotional problems

that have led to drug abuse,” and to help the patients “to

develop new kinds of inner resources so that they can re-

main drug-free.” (R. Tr. 1/10/75, pp. 409, 428a)

In the high dose and low dose programs, methadone

treatment requires the patient to appear at the clinic, take

an oral dose of methadone, and participate in a counseling

and rehabilitation program. (R. Tr. 10/22/74, p. 15)

The heroin addict who enters a methadone program is

given progressively larger doses of methadone until he is

brought up to a stabilizing fixed dose on which he is then

*,saintained for an indefinite period of time. This stabiliz-

ing process takes about 8-10 weeks. (R. Tr. 1/27/75, p. 547)

Patients who are stabilized at a high dose level generally

are more resistant to heroin usage than patients stabilized

at a low dose level. (R. Tr. 1/9/75, p. 187) Federal regula-

tions require the patient to come to the clinic for dosage

a minimum of six days a week for the first three months.

As time goes on, if the patient appears to make progress,

ie., adheres to the rules of the clinic and appears to make

changes in his way of life, the requirement to appear at

the clinic is relaxed to five times a week, then four, then

three. After a minimum of two years on the program, the

patient may be permitted to reduce his visits to the clinic

to twice a week. Patients who are not required to visit

the clinic every day, come in on their scheduled day, drink

the day’s dose of methadone at the clinic, and take home

the doses for the other days. (R. Tr. 1/10/75, pp. 334-336)

In addition to the daily dosage of methadone, patients

are expected to participate in counseling sessions. ‘he

counseling is necessary because, in Dr. Dole’s words, the

heroin addict is “a social casualty” and the drug addiction

is only a part of the total problem. (R. Tr. 1/7/75, p. 15)

Similarly, Dr. Robert L. DuPont, Jr., Director of the

Special Action Office for Drug Abuse Prevention in the

Executive Office of the President, testified that the heroin

addict typically does not have a job and has a very chaotic

personal life. (R. Tr. 10/22/74, pp. 15-16) The District

Court opinion noted that “there is substantial agreement

that many persons attempting to overcome heroin addic-

tion have psychological or life-style problems which reach

beyond what can be cured by the physical taking of doses

of methadone.” (399 F. Supp. at p. 1039)

With regard to the counseling and rehabilitation pro-

gram, the clinics do not require the patient to see the

counselor a specific number of times a week. In the first

eight to ten weeks, the patient may see a counselor every

day. Thereafter, he might see a counselor once a week. (R.

Tr. 1/27/75, p. 5384) While counseling is considered a major

aspect of methadone maintenance programs, there was

considerable testimony to the effect that little counseling

actually occurs. Dr. Rosenberg of Phoenix House and Dr.

Judianne Densen-Gerber of Odyssey House testified that

while methadone clinics theoretically recognize the need

for rehabilitative services, in practice “the majority of

them do very little other than supply the methadone.”

(R. Tr. 1/10/75, p. 424; 1/28/75, p. 755) Similarly, Dr.

James C. Higgins, a consultant to various Veterans Ad-

ministration hospitals, testified that the methadone patients

generally do not avail themselves of the counseling ser-

vices at the clinics. (R. Tr. 1/10/75, p. 458) Dr. Primm

of ARTC confirmed that the extensive rehabilitation and

counseling services which the methadone programs profess

to give are not actually provided, that on any given day

approximately one-third of the patients fail to appear,

that some who do come in, stay only for their methadone

dosage and do not stay for counseling, and that the monitor-

ing which is supposed to be done by the governmental regu-

latory agencies is lax. (R. Tr. 1/27/75, pp. 526-528)

The ARTC program has a ratio of forty patients to one

counselor. (R. Tr. 1/27/75, pp. 528-530) The Beth Israel

program has a ratio of fifty patients to one counselor, with

the counselor seeing perhaps three or four patients in a

day. (R. Tr. 2/3/75, p. 871) DACC requires a minimum

patient-counselor ratio of 50 patients to one counselor.

(R. Tr. 1/28/75, p. 691) On the other hand, Dr. DuPont

testified that the typical caseload for a counselor should be

about twenty patients. He added that there is consider-

able variation from one clinic to another regarding the

specific credentials associated with counseling. (R. Tr.

10/22/74, p. 16)

Results of Methadone Maintenance Treatment

While a number of witnesses at the trial testified to the

value of methadone maintenance as a treatment for heroin

addiction, at the same time they acknowledged that metha-

done maintenance had serious limitations and uncertain-

ties and that it failed to achieve its goal for the majority

of patients.

Dr. Seymour Joseph, Deputy Commissioner of DACC,

testified that about fifty percent of methadone patients

“have appeared to do pretty well in a methadone main-

tenance treatment program” but that the other fifty per-

cent are not suitable subjects for rehabilitation and should

not be participating in the program. He testified that there

are many individuals for whom methadone is inappropri-

ate, and who, while participating in methadone mainte-

nance programs, continue to steal, to be unproductive, to

engage in multiple drug abuse, and to remain alienated

from their families. (R. Tr. 1/28/75, pp. 629-630, 645-646,

677-678)

The affidavit of Dr. Daniel Redner, Director of the

Jerome Avenue Clinic of the New York City Methadone

Maintenance Program, introduced into the record by the

respondents,* states that only ten patients out of six hun-

dred in the entire Jerome Avenue Clinic were deemed

to have achieved a sufficient level of responsibility and

rehabilitation after two years in treatment to qualify for

reduction of their mandatory clinic visits to two days a

week.

Both Dr. Primm and Dr. Higgins testified to the dis-

ruptive behavior of many patients at the methadone clinics,

including gathering outside the clinic and exchanging drugs

and alcohol with each other. (R. Tr. 1/10/75, pp. 453-456 ;

1/27/75, pp. 535-587) In additidn, Dr. Joseph and Dr.

Harold J. Trigg, Chief of the Methadone Maintenance

and Drug Addiction Services at Beth Israel Medical Cen-

ter, testified to the problems connected with the take-

home doses given to many patients. Dr. Joseph testified

* Respondents’ Redner affidavit is Appendix D to the Memo-

randum in Support of Plaintiff's Motion to Supplement and

Modify the Court’s Order of May 20, 1976. The affidavit appears

in the Cireuit Court Appendix at pp. 404-406.

that if a patient had been evaluated improperly and had

not attained a sufficient level of responsibility before being

given the privilege of taking home medication, he might

get outside the clinic door and drink al! the take-home

doses at once. (R. Tr. 1/28/75, pp. 637-640) Dr. Trigg 'tes-

tified that there is a “sizable problem” of methadone

patients selling their take-home doses on the street. (R.

Tr. 1/10/75, pp. 326, 327)

Dr. DuPont testified that for some patients, methadone

maintenance is an interim step toward total detoxification.

However, many patients require continued methadone use

for many years. He said that as long as these stabilized

patients remain on methadone, they are able to lead rela-

tively normal lives. However, when they stop taking

methadone, they suffer the same withdrawal symptoms as

heroin addicts, often experience a deterioration in their

lives, and revert to heroin use. (R. Tr. 10/22/74, pp. 19-20,

27)

Dr. Lowinson of Bronx State Hospital testified that the

demands of methadone maintenance are “rigorous,” since

under federal regulations, the patient must continue to

report to the clinic at least twice a week for as long as he

remains on the program. She stated that “this can prove

to be a burden and it drives patients out of treatment.”

(R. Tr. 2/7/75, p. 1143) Similar observations were made

by Dr. Dole. (R. Tr. 1/7/75, pp. 29-30)

Dr. Dole had no information on what percentage of his

patients had successfully detoxified and remained drug

free for one year, nor did he have any data on the current

status of patients who had been in methadone treatment

and then left it. (R. Tr. 1/7/75, p. 124)*

* More recently, Dr. Dole published an article in the Journal

of the American Medical Association (Vol. 235, No. 19, May 10,

With regard to detoxification, the little data available

indicated that the number of people who successfully

detoxified from methadone was very small. (R. Tr. 10/22/

74, pp. 20-22) In the Bronx State Hospital program, 10%

of the methadone patients became drug free. (R. Tr.

2/7/75, pp. 1142-1143) Likewise, in the St. Luke’s Hospital

methadone program, 10% of the methadone patients were

successfully detoxified and the rest had to be placed back

on methadone. (R. Tr. 1/9/75, p. 280) Similar results were

experienced in the Beth Israel program. (R. Tr. 2/3/75,

p. 922) Dr. DuPont testified that past studies had been

done which indicated a very high relapse rate to heroin by

people who had left methadone programs. (R. Tr. 10/22/

74, p. 21)

Alcohol and Drug Abuse

There was general agreement among the expert witnesses

at the trial that there was “very substantial” drug and

alcohol abuse by patients on methadone maintenance. (R.

Tr. 1/10/75, pp. 417-419, 453-454; 1/27/75, p. 508; 1/28/75,

p. 677; 2/12/75, pp. 1390-1392)

A well known study by Drs. Chambers and Taylor indi-

eated that 97.4% of methadone patients in treatment at

least fourteen months had used illicit drugs sometime in the

course of a selected one month period. While Dr, DuPont

1976), in which he cited a recent sample study of 204 persons

who had left treatment two years earlier. Of the 204, 138 had

relapsed to the use of illicit opiates, 32 were seriously alcoholic,

16 were addicted to sedatives or using cocaine, 53 had been ar-

rested, 19 had died, and only 22 could be classified by even a

lenient standard as being in satisfactory status. The “lenient

standard” referred to in the article did not involve an evaluation

of the former patients in terms of their ability to function in

society. The article defined “lenient standard” as follows: “{T]}hey

have no legal problems, and deny use of opiates or other major

drugs of abuse and alcoholism.”

questioned the accuracy of the Chambers-Taylor report, he

himself had found that among methadone patients in treat-

ment an average of eleven months, 42.6% had used illicit

drugs, principally amphetamines, at least once in the course

of a one month period. DuPont added that a former heroin

addict on methadone is more likely to abuse drugs than a

person with no history of addiction. (R. Tr. 10/22/74, p.

101) Dr. Rosenthal testified that about 70% of methadone

patients abuse other drugs while in methadone programs.

(R. Tr. 1/10/75, pp. 417-419)

In this regard, the statistics relied on by the District

Court are misleading because they are limited to patients

who have been in methadone programs at least six months.

(399 F. Supp. at p. 1046) The Court cited the testimony of

Dr. Trigg that of the 6500-7000 patients in the Beth Israel

methadone program at the end of December 1974, approxi-

mately 5000 had been in the program for one year or more,

and of that number, about 70-75% were free of illicit

drug use. While the District Court apparently regarded

these statistics as indicative of the success of the program,

they in fact disclose that only about 3500 of the 6500-7000

methadone patients in the Beth Israel program were free

of illicit drug use. The District Court used the same ap-

proach in evaluating the statistics on drug abuse at the

other major clinics. For patients who had been in the City

methadone program and the Bronx State Hospital program

more than six months, 21% and 23% respectively showed

signs of drug and alcohol abuse. The court did not indicate

what the percentage of drug abuse was for patients who

had been in those programs less than six months. The court

similarly cited the ARTC program data to the effect that

among patients who had been in treatment a year or more,

60-70% were free of drug or alcohol abuse. There were no

statistics as to the rate of aleohol and drug abuse among

the ARTC patients who had been in treatment less than

one year.

Thus, the District Court’s statistical analysis failed to

deal with the total picture of drug and alcohol abuse by

methadone patients. In addition, even in the case of those

patients who had been in treatment at least six months, and

therefore were in the group regarded by the clinics as hav-

ing the best chance of achieving stability, the statistics

cited above show that between 20 and 40% showed signs of

alcohol and drug abuse.

Employment

There was considerable testimony as to the serious risks

involved in the employment of methadone patients. Drs.

Dole and Gollance testified that a patient in the first few

months of methadone maintenance is “in a risky situation”

and not ready for stable employment. (R. Tr. 1/7/75, pp.

89-90 ; 1/9/75, p. 155)

Dr. DuPont testified that the employer faces the risks

involved in hiring a person who has once “gotten off the

track” and who may feel pressure to relapse to heroin and

the “lure of the street, the tendency to backslide,” including

the crime associated with the acquisition of heroin. (R. Tr.

10/22/74, pp. 42, 49) DuPont stated further that it would

require a “leap of faith” for an employer to hire a metha-

done patient who did not have a recent work history. (R.

Tr. 10/22/74, p. 41)

With regard to the types of patients enrolled in the

clinics, Dr. Lukoff of ARTC testified that about one-third

of the patients had become heroin addicts at a very early

age—15, 16, 17—and were usually “the most criminal,”

least educated and least likely to have family ties. About

40-45% of this group dropped out of the methadone pro-

grams by the end of the first year. Lukoff stated that the

other two-thirds had become addicts at about age 21, and

tended to have been in school, to have held jobs, been in the

military, married; that this group was more amenable to

goals of rehabilitation. (R. Tr. 1/9/75, pp. 266-273) Aec-

cording to Drs. Lukoff and DuPont, approximately one-

third of the heroin addicts who enter methadone mainte-

nance programs drop out within the first year. This process

was characterized as a “self-cleansing’ process. Of the

remaining two-thirds of the patients, they considered ap-

proximately one-half to two-thirds to be employable. (R.

Tr. 10/22/74, p. 121; 1/9/75, pp. 273, 274, 283, 284; 2/12/75,

p. 1408)

Dr. Trigg disagreed with Dr. Lukoff’s statement that a

substantial number of heroin addicts entering methadone

programs had stable family relationships and had been

able to keep jobs. Trigg testified that 99% of heroin ad-

dicts are not able to work, have no desire to work while

they are on heroin, and that one of the “cardinal symp-

toms” of heroin addiction is that a person is not holding

down a job. (R. Tr. 1/10/75, pp. 321-323)

Dr. Trigg testified that of the entire methadone patient

population in the Beth Israel program, about 33% were

employable. (R. Tr. 1/10/75, p. 345) Dr. Joseph of DACC

testified that about 50% of the patients in his program

would be considered employable. (R. Tr. 1/28/75, pp. 645,

646)

The District Court opinion cited a statistical study con-

dueted by Dr. Frances Gearing of the Columbia School of

Public Health which found that 59% of the patients studied

were gainfully employed. (399 F. Supp. at p. 1047) How-

ever, the court’s opinion failed to note that Dr. Gearing’s

study was structured in such a way as to reflect only those

patients who remained in treatment for a substantial period

of time. (R. Tr. 10/30/74, pp. 862-865) The study did not

give an accurate picture of the employability of the total

methadone clinic population. The validity of Dr. Gearing’s

reports was questioned by Dr. Lukoff, who observed:

“IT think there are problems connected with the way she

handled the data which probably exaggerates success

to some extent. ... It exaggerates, perhaps, the success

because you’re dealing only with survivors in the pro-

gram and the survivors in the program are generally

your better patients. If you want to understand the full

impact of the treatment on the addict population, that’s

another question altogether and requires a different

kind of answer.” (R. Tr, 10/25/74, pp. 467, 468)

The other statistics cited by the District Court on the

question of employability similarly glossed over the fact

that they related to patients who had been participating in

methadone programs for a minimum of six months to one

vear. (R. Tr. 1/27/75, pp. 514, 515; 2/12/75, p. 1408)

In its analysis of the employability of methadone main-

tained patients, the District Court repeated the type of

analysis it had made in connection with alcohol and drug

abuse, viz., it relied on statistics which were limited to pa-

tients who had been participants in methadone programs

for a substantial period of time, and failed to deal with the

question of the employability of the total patient popula-

tion of the methadone clinics.

In addition, even within the group characterized by the

clinics as successful methadone patients, the statistics cited

above show that from 30-50% were considered by the clinics

to be unemployable.

The respondents introduced into evidence recent policy

statements of the New York City and New York State Per-

sonnel Departments encouraging the employment of drug-

free former addicts and methadone patients. (P. Exs. 7

and 11, R. Tr. 10/22/74, pp. 159, 161, appearing in Cireuit

Court Appendix at pp. 2694 and 2739) No testimony was

presented by the respondents with regard to any experi-

ence public employers might have had with the employment

of methadone patients through the civil service system.

The District Court’s recital of the successful employ-

ment of methadone patients by various private employers

does not withstand examination. The list of such companies

cited in the court’s opinion (399 F. Supp. at p. 1047) was

derived from a mere list of corporate names furnished

by representatives of some of the methadone clinics, with-

out any specific supportive data. (R. Tr. 10/25/74, pp.

422, 423)

Eileen Wolkstein, Director of the Vocational Rehabili-

tation Department at Beth Israel, recited a list of large

companies participating in pilot programs of employment

of methadone patients. (R. Tr. 10/25/74, pp. 422, 423)

However, when asked for specific information concerning

the success or failure of those programs, she was able to

cite only a study of twenty-six methadone patients hired

by private companies. This group of twenty-six had been

carefully pre-screened, had to have been on methadone

maintenance a minimum of nine months, free of any drug

abuse, with a demonstrated ability to work, very recent

significant work history, and no outstanding medical prob-

lems. (R. Tr. 10/25/74, pp. 428-432) As indicated by Dr.

Dole, the patients in the Wolkstein study were a very

select minority of methadone patients. (R. Tr. 1/7/75, pp.

105-106) Over the course of fifteen months of employ-

ment, six people in this carefully selected group of twenty-

six became the subject of disciplinary proceedings for ex-

cessive lateness and absence, and one was fired. (R. Tr.

10/25/74, pp. 430, 447, 448)

The testimony of the various corporate representatives

produced at the trial by the respondents made it clear that

their experience was limited to small pilot programs in-

volving the employment of carefully selected rehabilitated

drug addicts, very few of whom were methadone patients.

Charles D. Ades of Chemical Bank testified that his

company had hired thirteen carefully screened former

drug addicts, only three of whom were methadone patients.

Twenty months later, four had been fired, one for drug

abuse and three for poor attendance. The one who was

fired for drug abuse was one of the three methadone main-

tained persons. (R. Tr. 10/24/74, pp. 338, 341, 544-348,

353-354)

The official of the Sheetmetal Workers International

Association, cited by the District Court as testifying that

the Association was “bringing methadone maintenance pa-

tients into its apprenticeship program” (399 F. Supp. at

p. 1047), testified that over a three year period, he had

hired a total of six persons who were enrolled in a metha-

done maintenance program for at least six months. (R.

Tr. 10/24/74, pp. 335, 337)

Henry D. Biggart of the Off-Track Betting Corporation

testified that OTB had undertaken a special program to

hire people with a history of drug addiction, and that in

the course of this effort, it had hired a total of 39 ex-

addicts, 20 of whom were methadone patients, into part-

time positions. (R. Tr. 10/29/74, p. 663)

Thomas J. Doyle of Consolidated Edison Company testi-

fied that his company had hired about one hundred former

drug abusers. He did not indicate how many of that group

were drug free and how many were methadone maintained

patients, stating only that “few” methadone patients had

been discharged from employment. He had specific data

only with respect to thirteen “very select” methadone pa-

tients who, he testified, were performing well. He stated

that applicants were carefully screened, and that “when

applicants met our standards of proven stable rehabilita-

tion, their success rate was about 65° over a two year

period.” (Pl. Ex. 39, R. Tr. 10/25/74, p. 568, appearing in

Cireuit Court Appendix at pp. 1145-1148)

Paul J. Kolisch of Bernzomatic Corp. testified that he

had hired nine drug free former addicts referred by a local

rehabilitation center. All were temporarily hired for a

period of one to six months as part of a rehabilitation

program. None of these individuals was a methadone

patient. (R. Tr. 10/29/74, pp. 577-587)

James Peterson of Kennecott Copper Company testi-

fied that his company maintained an in-house drug coun-

seling program for employees with drug problems. He did

not know how many, if any, persons in the program were

methadone patients. (R. Tr. 10/29/74, pp. 590-595)

Determination of Employability

The record in this case dues not support the statement

of the District Court that the Transit Authority can de-

termine the employability of methadone patients by its

usual screening procedures. (399 F. Supp. at p. 1048) On

the contrary, the expert witnesses agreed that a methadone

patient who applies for employment involves special risks

for the employer, and that in order to make a judgment

regarding employability, the employer would need an un-

usual amount of advice and help. (R. Tr. 1/7/75, p. 97;

1/9/75, p. 155; 1/28/75, pp. 684-685) The expert witnesses

were not in agreement as to how the employer would go

about obtaining such advice and help.

Drs. Dole and Gollance suggested that the employer

consult “a good experienced person in a methadone clinic

or a consultant with broad experience in the field of addic-

tion with knowledge of methadone treatment.” (R. Tr.

1/7/75, p. 97; 1/9/75, p. 155) The quality of the evaluation

obtained of course would depend on the quality of the

person making the evaluation. (R. Tr. 1/9/75, pp. 169-170)

Dr. Trigg did not agree that the Transit Authority should

refer a methadone patient to a consultant for evaluation,

stating “I am not sure that that is sufficient insurance for

the TA.” He testified further that while the Transit Au-

thority could get information from the clinics, a better pro-

cedure “that would perhaps give the TA greater insurance

as to what it was getting” would be a certification board

that would evaluate both the clinies and the patients. (R.

Tr. 1/10/75, p. 347) Such a certification board was created

in 1969-1970, but through lack of official governmental sup-

port, it ceased to function after a short period of time. (R.

Tr. 1/10/75, pp. 445-450) As a possible alternative to a

certification board, Trigg suggested that the employer

could consult “a panel of experts—-primarily physicians.”

(R. Tr. 2/3/75, p. 852)

Dr. DuPont testified that the clinics could be useful to the

employer, but that they “obviously are interested in placing

people in employment, so that the employer has to make

his own independent judgment.” (R. Tr. 10/22/74, pp. 38,

39)

Thus, the options available to the Transit Authority

would be to place a heavy reliance on the recommendations

of the employees of the methadone clinics, or to hire a

panel of medical consultants to evaluate methadone appli

cants.

The problems of evaluating methadone patients are com-

pounded by federal regulations declaring the records of

methadone clinics to be confidential. (42 CFR § 2.1 et seq.)

Under these regulations, no information may be given to

an employer by the clinic without the consent of the metha-

done patient. (42 CFR § 2.31) Even where the patient’s

consent is obtained, the clinic’s disclosures to the employer

“should be limited to a verification of the patient’s status

in treatment or a general evaluation of progress in treat-

ment.” (42 CFR § 2.38(c)) More specific information may

be given onlv if:

“The program has reason to believe, um the basis of past

experience or other credible information (which may in

appropriate cases consist of a written statement by the

employer), that such information will be used for the

purpose of assisting in the rehabilitation of the patient

and not for the purpose of identifying the individual

as a patient in order to deny him employment or ad-

vancement because of his history of drug or aleohol

abuse.” (42 CFR § 2.38(d)(1))

By virtue of these confidentiality requirements, all of the

experts questioned at the trial testified that the only infor-

mation the clinics would provide to the employer would be

the patient’s attendance at the clinic and the counselor's

evaluation of the patient’s progress. (R. Tr. 10/29/74, p.

663 ; 1/9/75, pp. 176, 177; 1/28/75, p. 670; 2/3/75, pp. 1060-

1061) Dr. DuPont stated that methadone clinics are pro-

hibited from informing the employer of evidence that the

patient is using illicit drugs. He added that it would be con-

trary to federal policy regarding confidentiality for an

employer to try to make it a condition of employment that

the clinic advise the employer of any illicit drug use. (R.

Tr. 10/22/74, pp. 104-107, 111, 112)

Consequently, the employer would be hiring the metha-

done patients on the basis of conclusory statements by

clinic personnel without specific supportive data. In addi-

tion, after hiring the methadone patient, the employer

would not be able to obtain specific data concerning the pa-

tient’s performance in the methadone treatment program,

unless the employer made the written commitment, specified

in the federal regulation, that such information would not

adversely affect the patient’s employment. An employer

unwilling to make such a commitment is burdened with the

necessity of maintaining an ongoing surveillance of the em-

ployee, including frequent urinalyses to detect drug abuse.

The Transit Authority’s Policy Regarding Alcohol

The District Court placed considerable emphasis on dif-

ferences between the Transit Authority’s policy regarding

the employment of alcoholics and its policy regarding the

employment of drug addicts.

The court acknowledged that the Transit Authority re-

fuses to consider for employment any applicant who has an

alcohol problem. (399 F. Supp. at p. 1056) Thus, the Au-

thority’s policy with regard to applicants for employment

who have alcohol problems is identical with its policy with

regard to applicants who have drug problems.

The difference noted by the District Court was that “the

TA is willing to continue in employment a substantial num-

ber of persons with existing alcohol problems.” (399 F.

Supp. at p. 1056)

With regard to current employees, Rule 11(a) of the

Transit Authority’s Rules and Regulations prohibits Au-

thority employees from drinking alcoholic beverages dur-

ing their tours of duty or at any time to an extent making

them unfit to report for duty or to be on duty. (Pl. Ex. 58,

appearing in Circuit Court Appendix at p. 2798) Rule 11(a)

is not limited to aleoholics, but covers individual instances

of drinking.

Employees suspected of violation of Rule 11(a) are sub-

jected to disciplinary proceedings which may result in sus-

pension and dismissal. (A pp. 96A-99A) If an employee

against whom such charges are sustained at a trial board

hearing, has less than three years of service and holds a

position in which he is directly engaged in operations, such

as Motorman, Conductor or Bus Operator, he will be dis-

missed, If the employee violating Rule 11(a) holds such an

operating position and has more than three years of service,

he will be demoted to a non-critical position. If the em-

ployee violating Rule 11(a) holds a non-critical position,

he is given a hearing and is subject to discipline. (A pp.

96A-99A )

All employees found in violation of Rule 11(a) are re-

ferred to the Transit Authority’s Employee Counseling

Service, an organization in existence within the Authority

since 1956, which provides assistance to employees with

drinking problems. Employees may also voluntarily seek

such assistance. If the Service determines that persons

referred to it have alcoholism problems, they are invited to

participate in the Service’s program which requires con-

sistent attendance at a specified number of Aleoholics

Anonymous meetings, together with regular reporting to

the Counseling Service. (A pp. 99A-L00A)

The Transit Authority’s Executive Officer, Wilbur B.

McLaren, testified that the alcoholism program had been in

effect for many years, that it had been partially successful,

but that the Authority had many problems connected with

the program. He testified that it was “beyond [the Au-

thority’s] capability” to take on a drug problem in addition

to the problems presented by the alcoholism program. (R.

Tr. 10/25/74, pp. 554-556)

The Decisions Below

The District Court found, under 42 U.S.C. § 1983, that

the Transit Authority’s exclusion of present and past meth-

adone maintained persons from employment was a viola-

tion of the due process and equal protection clauses of the

Fourteenth Amendment. (399 F. Supp. 1032) The Court

subsequently issued an Amended Permanent Injunction and

Judgment (Petition for Certiorari, Appendix EK, p. 75a)

in which it ordered the Authority to give individual con-

sideration to each methadone maintained employee or ap-

plicant for employment and awarded back pay.

Thereafter, the District Court issued a supplemental

opinion finding the Transit Authority guilty of discrimina-

tion under Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e, et seq., as amended, for the sole purpose of

establishing jurisdiction to award attorneys’ fees, (414 F.

Supp. 277) Following enactment of the Civil Rights Attor-

neys’ Fees Awards Act of 1976, 42 U.S.C. § 1988, the Dis-

trict Court issued the aforesaid Amended Permanent In-

junction and Judgment (Petition for Certiorari, Appendix

1), p. 75a) basing its award of attorneys’ fees on that Act.

The attorneys’ fees awarded by the District Court were in

the sum of $375,000 for legal services performed up to

January 24, 1977.

The United States Court of Appeals, Second Circuit

(558 I°.2d 97), affirmed the opinion of the court below under

42 U.S.C. § 1983, except that it reversed the dismissal as to

three of the named plaintiffs, remanded the case to the

District Court for determination of positions to which those

plaintiffs should be reinstated and the amount of back pay

(lue them, and deducted $50,710 from the attorneys’ fees

awarded. The Second Cireuit found it unnecessary to reach

the Title VIT question because before the decree became

final, Congress enacted the Civil Rights Attorneys’ Fees

Awards Act of 1976, thereby providing an alternative basis

for the attorneys’ fees award.

Summary of Argument

The Transit Authority’s denial of employment to former

heroin addicts participating in methadone maintenance

programs is not an unconstitutional denial of due process

and equal protection under the Fourteenth Amendment.

The employment sought in this case is not a fundamenta!

right, deprivation of which could be justified only by a

compelling state interest. Massachusetts Bd. of Retirement

v. Murgia, 427 U.S. 307, 313 (1976) ; Dandridge v. Williams,

397 U.S. 471, 485 (1970). Nor is the class involved herein,

former heroin addicts in methadone maintenance pro-

grams, within the suspect categories which have been

enumerated by this Court (e.g. race, Korematsu v. United

States, 323 U.S. 213 [1944]; alienage, Graham y. Richard-

son, 403 U.S. 365 [1971]; ancestry, Oyama v. California,

332 U.S. 633 [1948]; and wealth in the context of criminal

proceedings, Griffin y. Illinois, 351 U.S. 12 [1956]).

Since the case at bar involves neither a suspect classi-

fication nor a fundamenial right, the traditional or “re-

strained” standard of review should be applied under the

guidelines of Dandridge vy. Williams, 397 U.S. 471, 485

(1970).

The courts below evaluated the Transit Authority’s em-

ployment policy in terms of incorrect standards of judicial

scrutiny. In concluding that this policy was an unconsti-

tutional denial of due process and equal protection under

the Fourteenth Amendment, both the District Court (399

F. Supp. at p. 1058) and the Cireuit Court (558 F.2d at

p. 99) expressly relied on cases (principally Sugarman v.

Dougall, 413 U.S. 634 [1973] and Cleveland Board of Edu-

cation v. LaFleur, 414 U.S. 632 [1974]), which had applied

the strict scrutiny standard reserved for cases involving

a suspect classification or a fundamental interest.

As an agency charged with the responsibility for provid-

ing safe, prompt and dependable transportation to the

people of the City of New York, the Transit Authority’s

objective is to employ persons in all job categories who are

reliable, not only in terms of safety standards, but also in

terms of attendance, punctuality, and general ability to

function well in the routine and challenge of daily work.

The Transit Authority weighed these concerns together

with consideration of the weaknesses in implementation of

methadene maintenance programs by the methadone clinics,

the controversy within the drug addiction field concerning

the efficacy of methadone treatment, the unemployability of

the majority of methadone patients, the difficulties facing

the employer in attempting to evaluate the employability

of methadone patients and in monitoring methadone pa-

tients after employment to determine continued employ-

ability, and the rigidity of the civil service system which re-

quires forma] disciplinary proceedings in order to termi-

nate the employment of unsatisfactory employees who have

acquired tenure after a brief probationary period.

Each of the foregoing reasons was amply supported by

the testimony of the various expert witnesses at the trial.

However, by reason of their application of the strict

scrutiny standards, the courts below erroneously empha-

sized the beneficial results of methadone maintenance for

a minority of methadone patients, and ignored the body

of evidence demonstrating the uncertainties and failures

of methadone maintenance for the majority of methadone

patients.

While the evidence indisputably demonstrated that the

majority of methadone maintained patients are unemploy-

able, the courts below focusec their attention on the

minority of such patients who are employable. They gave

no weight to the substantial difficulties facing the employer

in evaluating the employability of methadone maintained

patients.

The record in this case demonstrates the rational basis

for the Transit Authority’s policy, and the absence of the

invidious discrimination necessary for a finding of uncon-

stitutionality under the traditional standard of scrutiny.

Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307

(1976) ; Dandridge v. Williams, 397 U.S. 471 (1970). There

is no basis for the finding of unconstitutionality.

The District Court ruled that the Transit Authority’s

policy of excluding methadone maintained persons from

employment had a disparate impact on Blacks and His-

panics and therefore constituted unlawful employment dis-

crimination in violation of Title VII of the Civil Rights

Act of 1964 (42 U.S.C. 2000e) as amended. The ruling was

made for the express and sole purpose of establishing juris-

diction for an award of attorneys’ fees.

A finding of unlawful discrimination under Title VII

should not be made against a government agency such as

the Transit Authority merely on the basis of disparate

impact without proof of discriminatory intent.

The 1972 amendment to Title VII, extending its juris-

diction to state and local government, was based on the

Fourteenth Amendment. Fitzpatrick v. Bitzer, 427 U.S.

445, 453 (1976) In Washington v. Davis, 426 U.S. 229

(1977), this Court made clear that in discrimination claims

arising under the Fourteenth Amendment, proof of pur-

poseful discrimination is required.

A statute cannot be construed more broadly than its con-

stitutional base. To the extent that Title VII asserts juris-

diction over the employment practices of government em-

ployers, it must be construed in accordance with the Four-

teenth Amendment standard for evaluating discrimination

claims, i.e., there must be proof of racially discriminatory

purpose. In the case at bar, the District Court acknowl-

edged that the Transit Authority’s employment policy

was not adopted with a racially discriminatory purpose.

Accordingly, the finding of unlawful discrimination was

improper.

Even if a violation of Title VII could be established

against a government agency employer on the basis of dis-

parate impact without proof of discriminatory intent, the

evidence in this case was totally inadequate to support the

finding of discrimination.

The District Court found disparate impact solely on the

basis of statistics purporting to show (1) that of the

employees referred to the Transit Authority’s medical con-

sultant for suspected violation of its drug policy, 81%

were Black and Hispanic and 19% were white; and (2)

that between 62% and 65% of methadone maintained per-

sons in New York City are Black and Hispanic.

The first set of statisties is irrelevant in the context of

this case, since it did not include any methadone maintained

persons, nor did it indicate how many, if any, of the per-

sons referred to the medical consultant, were discharged

from employment. In addition, the statistics were compiled

on the basis of a total number of fifty-four individuals

referred to the medical consultant over a period of twenty-

six months. The group from which the statisties were de-

rived was so small as to render the statisties virtually mean-

ingless.

The second set of statistics purported to be based on

a random sampling of the total methadone patient popula-

tion in New York City. In fact, it covered only the patients

treated at the public and semi-public methadone clinics.

It did not reflect information on the patients treated at the

various private clinics who make up over one-third of the

total methadone patient population in New York City. In

addition, although no more than 30-50% of methadone pa-

tients are employable, these statistics did not consider the

employability of the sample. There were no statistics with

regard to the racial or ethnic composition of that portion

of the methadone patient population which could be con-

sidered employable.

The District Court refused to consider the Transit Au-

thority’s impressive work force statistics which show that

46% of the Authority’s empioyees are Black and Hispanic,

and that these minority groups are employed throughout

the Authority in all job categories. The District Court like-

wise refused to consider any of the evidence dealing with

the obvious job-relatedness of the Authority’s denial of

employment to methadone patients. Instead, the Court

placed its blind reliance on irrelevant and incomplete statis-

tics. These statistics were totally inadequate to support a

finding of disparate impact under Title VII. International

Brotherhood of Teamsters v. United States, et al., 431 U.S.

324 (1977); Hazelwood School District, et al. v. United

States, 433 U.S. 299 (1977).

Even if a disparate impact had been shown, the finding

of unlawful discrimination was unwarranted in light of the

demonstrated business necessity for the Transit Authority’s

employment policy. The obvious job-relatedness of the

policy, together with the substantial economic and adminis-

trative burden of attempting to evaluate the employability

of individs:: methadone patients, and of maintaining con-

tinuing medical monitoring of methadone patients after

employment, demonstrated the requisite business necessity.

United States v. State of South Carolina, 445 F. Supp.

1094, 1115 (D.C.D. So. Car. 1977), aff'd —— U.S. —,

98 S. Ct. 756 (1978).

No support exists in this case for liability under Title

VII.

ARGUMENT

The Transit Authority’s denial of employment to

former heroin addicts participating in methadone main-

tenance programs is not an unconstitutional denial of

due process and equal protection under the Fourteenth

Amendment.

The courts below found that the Transit Authority’s

denial of employment to former heroin addicts participat-

ing in methadone maintenance programs was an unconstitu-

tional denial of due process and equal protection under the

Kourteenth Amendment.* As defined by the District Court,

the class represented by the named respondents consists

of all those persons who have been or would in the future

be subject to dismissal or rejection as to employment by

the Transit Authority on the ground of present or past

participation in methadone maintenance programs.

A. The strict scrutiny standard should not be

applied in this case.

qual protection issues are evaluated under either the

traditional standard or the strict standard of judicial

serutiny.

Under the strict scrutiny standard, the governmental

body must demonstrate that the classification being re-

viewed is based upon some compelling government inter-

* No procedural due process claim was made in this case. Re-

spondents concede that tenured employees suspected of violation

of the Transit Authority’s drug rule are given a formal hearing

in accordance with the requirements of State Civil Service Law,

Section 75. (A pp. 93A-94A), see Board of Regents v. Roth, 408

U.S. 564 (1972) ; Perry v. Sinderman, 408 U.S. 593 (1972).

est and is structured narrowly and with precision. The

classification “is not entitled to the usual presumption of

validity.” San Antonio School District v. Rodriguez, 411

U.S. 1, 16 (1973).

The strict scrutiny standard is appropriate “only when

the classification impermissibly interferes with the exer-

cise of a fundamental right or operates to the peculiar

disadvantage of a suspect class,” Massachusetts Bd. of Re-

tirement v. Murgia, 427 U.S. 307, 312 (1976); San Antonio

School District v. Rodriguez, supra, 411 U.S. at p. 16.

The fundamental rights which this Court has declared

subject to strict scrutiny are constitutionally protected

rights and liberties, such as rights of a uniquely private

nature, Roe v. Wade, 410 U.S. 113 (1973) ; the right to vote,

Bullock v. Carter, 405 U.S. 134 (1972); the mght of inter-

state travel, Shapiro v. Thompson, 394 U.S. 618 (1969) ;

First Amendment rights, Williams v. Rhodes, 393 U.S. 23

(1968); the right to procreate, Skinner v. Oklahoma ez rel.

Williamson, 316 U.S. 535 (1942).

This Court has specifically excluded governmental em-

ployment, such as that involved in the present case, from

the fundamental right category, and has “expressly stated

that a standard less than strict scrutiny ‘has consistently

heen applied to state legislation restricting the availability

of employment opportunities.’” Massachusetts Bd. of Re-

tirement v. Murgia, 427 U.S. 307, 313 (1976); Dandridge

v. Williams, 397 U.S. 471, 485 (1970).

Consequently, the case at bar does not involve a funda-

mental right requiring application of strict scrutiny stand-

ards. Nor does the class involved herein, methadone users,

constitute a suspect class within the contemplation of equal

protection analysis.

The classes which have been designated as suspect,

thereby warranting strict scrutiny, are those which are

“saddled with such disabilities or subjected to such a his-

tory of purposeful unequal treatment, or relegated to such

a position of political powerlessness as to command extra-

ordinary protection from the majoritarian political proc-

ess.” San Antonio School District v. Rodriguez, supra, 411

U.S. at p. 28. See also, United States v. Carolene Products

Co., 304 U.S. 144, 152-153, fn. 4 (1938).

Suspect classifications which have been enumerated by

this Court are race, Korematsu vy. United States, 323 U.S.

213 (1944); alienage, Graham vy. Richardson, 403 U.S. 365

(1971) (but see Foley v. Connelie, —— U.S. —~—, 46 U.S.

L.W. 4237 [1978]) ; ancestry, Oyama v. California, 332 U.S.

633 (1948); and wealth in the context of criminal proceed.

ings, Griffin v. Illinois, 351 U.S. 12 (1956).

Certain other classifications which seem to have been

accorded some intermediate level of scrutiny, apparently

because they share to a considerable extent the characteris-

tics of the suspect categories, are sex, Frontiero v. Richard-

son, £11 U.S. 677 (1973) and illegitimacy, Mathews v. Lucas,

427 U.S. 495 (1976).

The class involved in the instant case, methadone users,

has none of the “traditional indicia of suspectness” set out

by this Court in Rodriguez, supra, at p. 28. The members

of this class have not suffered a history of purposeful dis-

crimination by reason of methadone use or been subjected

to disabilities on the basis of immutable characteristics of

birth. See Frontiero yv. Richardson, 411 U.S. 677, 686

(1973). Whatever psychological or sociological factors al-

legedly lead at individual to heroin addiction and even-

tually to the use of methadone, the category of methadone

user is not immutable and would include only those who

had participated in the voluntary, illicit use of a controlled

substance, heroin. Methadone use does not create a “dis-

crete and insular” group, United States v. Carolene Prod-

ucts Co., 304 U.S. 144, 152-153, n.4 (1938) in need of the

extraordinary protection of strict judicial scrutiny. There

is no justification for adding this group to the suspect

classifications which call for strict judicial scrutiny.

The strict scrutiny standard together with the traditional

scrutiny standard discussed in subsection C, infra, form

the “two-tier” standard of review of equal protection issues

(see Rodriguez, supra, 411 U.S. at pp. 40-44; Justice

Srewart Concurring Opinion, pp. 60-62; Developments in

the Law—Equal Protection, 82 Harv. L. Rev. 1065 [1969]}).

Several decisions of this Court have appeared to apply

an additional standard of review, viz., an “irrebuttable pre-

sumption” formulation, to equal protection analysis, e.g.

Stanley v. Illinois, 405 U.S. 645, 653 (1972); Vlandis v.

Kline, 412 U.S. 441 (1973); United States Department of

Agriculture v. Murry, 413 U.S. 508 (1973) ; and Cleveland

Board of Education v. LaFleur, 414 U.S. 632 (1974). In

these cases, the Court rejected legislative classifications

which included irrebuttable presumptions of qualification.

However, in Weinberger v. Salfi, 422 U.S. 749 (1975), the

irrebuttable presumption decisions were explained in terms

of strict scrutiny and traditional scrutiny standards. The

Court characterized the decisions in Stanley and LaFleur

as involving fundamental rights of family and childbearing,

and the decisions in Viandis and Murry as involving irra-

tional classifications. Salfi, supra, at pp. 771-772. Accord-

ingly, the irrebuttable presumption formulation appears to

have been substantially curbed, if not entirely discarded.

Since the case at bar involves neither a suspect classifi-

cation nor a fundamental right, the strict scrutiny standard

should not be applied.

B. The courts below evaluated the Transit Authority’s

employment policy in terms of the strict scrutiny

standard.

In concluding that the Transit Authority’s denial of

employment to former heroin addicts participating in

methadone maintenance programs was an unconstitutional

denial of due process and equal protection, both the District

Court and the Second Cireuit xpressly relied on cases

which had applied the strict scrutiny standard.

The principal cases cited by the District Court as “[d]eci-

sions dealing with the basic doctrines” were Cleveland

Board of Education v. LaFleur, 414 U.S. 632 (1974), and

Sugarman v. Dougall, 413 U.S. 634 (1973). (399 F. Supp. at

p. 1057) The Second Cireuit likewise declared that the

finding of unconstitutionality “rests on the solid founda-

tion of Sugarman vy. Dougall . .. and our own Crawford

v. Cushman, 531 F. 2d 1114...” (558 F. 2d at p. 99).

Kach of the cited cases had applied the strict scrutiny

standard.

In Cleveland Board of Education vy. LaFleur, a manda-

tory maternity leave case, this Court ruled that “there is a

right ‘to be free from unwarranted governmental intrusion

into matters so fundamentally affecting a person as the

decision whether to bear or beget a child’,”’ and that “public

schoo] maternity leave rules directly affect ‘one of the basic

civil rights of man’...” (ZaFleur, supra, 414 U.S. ai p.

640). Thus, LaFleur dealt with governmental interference

with a fundamental right, thereby calling for strict judi-

cial scrutiny. (See Weinberger v. Salfi, 422 U.S. 749, 771

[1975].) Crawford v. Cushman, which declared unconstitu-

tional a requirement for the discharge from employment of

pregnant Marines, was based expressly on LaFleur. (531

F. 2d at pp. 1124-1125)

In Sugarman y. Dougall, this Court ruled that since

aliens are a suspect class (Graham v. Richardson, 403 U.S.

365 [1971]), classifications based on alienage are subject

to close judicial scrutiny. The Court found that New York’s

broad exclusion of aliens from employment in the competi-

tive classified civil service could not withstand this close

scrutiny. Sugarman, supra, 413 U.S. at pp. 642-643.

Immediately following its analysis of LaFleur and Sugar-

man, the District Court declared that “Under the above

authorities,” the Transit Authority’s “blanket ban” against

the employment of methadone patients violated the due

process and equal protection clauses of the Fourteenth

Amendment (399 F. Supp. at p. 1058). It is evident that

the Court believed that the constitutional requirements for

individualized employment policies expressed in LaFleur

and Sugarman were equally applicable to the case at bar.

The District Court’s misapprehension of the constitu-

tional standards applicable to this case distorted its entire

perception and evaluation of the evidence presented at the

trial.

While the evidence clearly demonstrated the unemploy-

ability of the majority of methadone patients and the mag-

nitude of the alcohol and drug abuse problem, the Court

failed to deal with these issues in terms of the total patient

population of the methadone clinics. Rather, it focused its

attention on statistics which were limited to the more stable

patients who had been participants in methadone programs

for a substantial period of time. The Court similarly

glossed over the significant difficulties facing the employer

in attempting to evaluate the employability of methadone

patients. (See Statement of Facts, supra, pp. 24-26.)

Under the influence of the strict scrutiny standard, the

District Court emphasized the beneficial results of metha-

done maintenance for a minority of patients in methadone

maintenance programs, and ignored the body of evidence

demonstrating the uncertainties and failures of methadone

maintenance for the majority of such patients. The Dis-

trict Court’s analysis was adopted by the Second Circuit

on the appeal.

C. The Transit Authority’s employment policy meets

the test of rationality under the traditional standard

of scrutiny.

Since this case involves neither a fundamental right nor

a suspect category, the traditional standard of review

should be used in evaluating the challenged classification.

The traditional or “restrained” standard of review

utilizes a “relatively relaxed standard” under which the

classification being considered is presumed to be valid.

This standard of review requires only that the classifica-

tion bear some rational relationship to legitimate govern-

mental purposes. Massachusetts Bd. of Retirement vy.

Murgia, 427 U.S 307, 314 (1976) ; San Antonio School Dis-

trict v. Rodriguez, 411 U.S. 1, 40-41 (1973).

In Dandridge v. Williams, 397 U.S. 471, 485 (1970), this

Court has said:

“...a State does not violate the Equal Protection Clause

merely because the classifications made by its laws are

imperfect. If the classification has some ‘reasonable

basis,’ it does not offend the Constitution simply be-

cause the classification ‘is not made with mathematical

nicety or because in practice it results in some in-

equality.’ Lindsley v. Natural Carbonic Gas, 220 U.S.

61, 78. ‘The problems of government are practical ones

and may justify, if they do not require, rough accom-

modations—illogical, it may be, and unscientific.’

Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61,

69-70. ‘A statutory discrimination will not be set aside

if any state of facts reasonably may be conceived to

justify it.’ McGowan v. Maryland, 366 U.S. 420, 426.”

(emphasis added)

Asan agency charged with the responsibility for providing

safe, prompt and dependable transportation to the peo-

ple of the City of New York, the Transit Authority's objec-

tive is to employ persons in all job categories who are re-

liable, both in terms of safety standards, and in terms of

attendance, punctuality, and general ability to function

well in the routine and challenge of daily work.

The evidence in this case demonstrated the weak-

nesses in implementation of methadone maintenance pro-

grams by the methadone clinics, the controversy within

the drug addiction field concerning the efficacy of metha-

done treatment, the unemployability of the majority of

methadone patients, the difficulties facing the employer

in attempting to evaluate the employability of methadone

patients, and the difficulties involved in monitoring metha-

done patients after employment to determine continued

employability. Many of these concerns were recognized by

this Court in Marshall v. United States, 414 U.S. 417 (1974),

in a decision rendered at about the same time as the trial

being conducted in the case at bar. In Marshall, the Court

observed that:

“ . . there is no generally accepted medical view as to

the efficacy of presently known therapeutic methods of

treating addicts and the prospect for the successful re-

habilitation of narcotics addicts thus remains shrouded

in uncertainty. .. . As testimony before the Congress

revealed, no evidence to date has demonstrated more

than a speculative chance for the successful rehabilita-

tion of narcotics addicts.” 414 U.S. at p. 426.

These problems weighed together with the Transit

Authority’s responsibilitv for the safe, efficient and eco-

nomical maintenance of a vast rapid transit system, its

objective of employing persons able to meet reasonable

standards of reliability, and the rigidity of the civil service

system which requires formal] disciplinary proceedings in

order to terminate the employment of unsatisfactory em-

ployees who have acquired tenure after a brief proba-

tionary period, amply justified the Transit Authority’s

refusal to exempt methadone patients from its policy of

barring drug users from employment.

In Massachusetts Bd. of Education vy. Murgia, 427 U.S.

307, this Court reaffirmed the principle that under the tra-

ditional standard of scrutiny, perfection in establishing the

classification ' neither possible nor necessary. The Court

found that a state statute providing for mandatory retire-

ment of all uniformed state police officers at age 50 was not

a denial of equal protection, stating: |

“There is no indication that [the state statute] has the

effect of excluding from service so few officers who are

in fact unqualified as to render age 50 a criterion wholly

unrelated to the objective of the statute.” 427 U.S. at

pp. 315-316.

While the State might not have chosen the best means to

accomplish its objective of assuring physical fitness, the

Constitution did not require it to determine fitness more

precisely through individualized testing after age 50.

Murgia at pp. 314, 316.

Similarly, in the present case, the fact that, arguendo,

some methadone patients might be qualified to be Transit

Authority employees in some positions would not render the

Authority’s general prohibition unconstitutional. The

Transit Authority is not required to make individualized

determinations when it “can rationally conclude not only

that generalized rules are appropriate to its purposes and

concerns, but also that the difficulties of individual determi-

nations outweigh the marginal increments in the precise

effectuation of [governmental] concern which they might be

expected to produce.” Weinberger v. Salfi, 422 U.S. 749,

785 [1975].

The fact that the Transit Authority has a program to

assist certain employees with drinking problems does not

require it to undertake a similar program for drug addicts.

The Equal Protection Clause does not require the govern-

mental body to “choose between attacking every aspect of

a problem or not attacking the problem at all.” Dandridge

v. Williams, 397 U.S. 471, 486-487 (1970). It is not required

to deal with “aii iike evils, or none.” U.S. v. Carolene Prod-

ucts Co., 304 U.S. 144, 151 (1938).

The “leap of faith” (see Statement of Facts, p. 19,

supra) that would be necessary for the Transit Authority

to hire methadone patients is not constitutionaliy man-

dated. While employment opportunities may be an import-

ant aspect in the rehabilitation of drug addicts, there is no

constitutional imperative requiring the Transit Authority

to participate in that rehabilitation effort. As this Court

observed in Murgia, supra, 427 U.S. at pp. 316-317:

“We do not make light of the substantial economic and

psychological effects premature and compulsory retire-

ment can have on an individval; nor do we denigrate

the ability of elderly citizens to continne to contribute

to society. The problems of retirement have been well

documented and are beyond serious dispute. But ‘{WJe

do not decide today that the [Massachusetts statute]

is wise, that it best fulfills the relevant social and eco-

nomic objectives that {Massachusetts} might ideally

espouse, or that a more just and humane system could

not be devised’. .. We decide only that the system

enacted by the Massachusetts Legislature does not

deny appellee equal protection of the laws.”

There does not exist in this case the “invidious diserimi-

nation” necessary to a finding of unconstitutionality under

the traditional standard of scrutiny. Dandridge v. Wil-

liams, 397 U.S. 471, 483 (1970).

Il.

The Transit Authority’s denial of employment to

former heroin addicts participating in methadone main-

tenance programs is not an unlawful racial discrimi-

nation under Title VII of the Civil Rights Act of 1964

as amended.

In a supplemental decision, the District Court found the

Transit Authority guilty of unlawful discrimination under

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e,

et seq., as amended. (414 F. Supp. 277) This decision was

made for the express and sole purpose of establishing

jurisdiction for an award of attorneys’ fees. (414 F. Supp.

at p. 278)*

*The Second Circuit (558 F.2d at pp. 99-100) found it un-

necessary to reach this question because before the decree became

final, Congress enacted the Civil Rights Attorneys Fees Awards

Act of 1976, 42 U.S.C. § 1988, thereby providing an alternative

basis for the attorneys’ fees award.

A. The District Court erred in finding the Transit

Authority guilty of unlawful discrimination under

Title VII in the absence of proof of discriminatory

intent.

The District Court ruled that the Transit Authority’s

policy of excluding methadone maintained persons from

employment had a disparate impact on Blacks and His-

panics and therefore constituted unlawful employment dis-

crimination under Title VIT. The Court conceded the

policy was “not adopted with a purpose of racial diserim-

ination.” (414 F. Supp. at p. 279)

This Court’s decision in Griggs v. Duke Power Co., 401

U.S. 424 (1971), which established the principle that proof

of a racially disproportionate impact is sufficient to estab-

lish a violation of Title VII, was decided in 1971, at which

time Title VII covered only private employment.

The original enactment of Title VII in 1964, which pro-

hibited discrimination because of race, color, religion, sex

and national origin in private employment was based on

the Commerce Clause, Article 1, Sectien 8 of tae Constitu-

tion. (1964 U.S. Code Cong. & Ad. News [88th Congress,

Second Session} 2401, 2402, 2475)

In 1972, Title VIL was amended to extend its coverage to

state and local government employment. (Pub. L. 92-261,

Mar. 24, 1972, 86 Stat. 103) The 1972 amendment was based

on the Fourteenth Amendment. Fitzpatrick v. Bitzer, 427

U.S. 445, 453, and fn. 9 (1976). Coverage of state and local

government employment could not be based on the Com-

merece Clause. See National League of Cities v. Usery, 426

U.S. 833 (1976), in which this Court declared that Congress

had exceeded its powers under the Commerce Clause in en-

acting a statute which sought to regulate employment deci-

sions of state and local governments. The decision pro-

hibited such regulation not only as to the States them-

selves but as to “such subordinate arms of a state govern-

ment” as provide “integral governmental services.” 426

U.S. at p. 855, fn. 20.

Since Title VII jurisdiction over state and local govern-

ment employers is based on the Fourteenth Amendment, in

evaluating Title VII complaints against such employers,

it is necessary to look to the Fourteenth Amendment stand-

ard for adjudicating discrimination claims.

Washington vy. Davis, 426 U.S. 229 (1977), made clear

that in discrimination claims arising under the Fourteenth

Amendment, proof of purposeful discrimination is re-

quired. The Court stated:

“We have never held that the constitutional standard

for adjudicating claims of invidious racial discrimina-

tion is identical to the standards applicable under Title

VI, and we decline to do so today.

The central purpose of the Equal Protection Clause

of the Fourteenth Amendment is the prevention of of-

ficial conduct discriminating on the basis of race... .

But our cases have not embraced the proposition that a

law or other official act, without regard to whether it

reflects a racially discriminatory purpose, is uncon-

stitutional solely because it has a racially dispropor-

tionate impact.”’ 426 U.S. at p. 239.

A statute cannot be construed more broadly than its con-

stitutional base. To the extent that Title VII asserts juris-

diction over the employment practices of government em-

ployers, it must be construed in accordance with the con-

stitutional test enunciated in Washington vy. Davis, i.e.,

there must be proof of discriminatory purpose. See Blake

v. City of Los Angeles, 435 F. Supp. 55 (DCD Cal. 1977):

Scott v. City of Anniston, 480 F. Supp. 508 (N.D. Ala.

1977); Friend v. Leidinger, 446 F. Supp. 361, 386 (E.D.

Va. Richmond Division 1977).

Since the Transit Authority’s employment policy was

not adopted with a racially discriminatory purpose, the

finding of unlawful discrimination was improper.

B. The evidence in this case was insufficient to prove

a disparate impact in violation of Title VII.

Even if a violation of Title VII could be established

against a government agency employer solely on the basis

of disparate impact, the evidence in this case was totally

inadequate to support the finding of discrimination,

In Griggs v. Duke Power Co., 401 U.S. 424 (1971) this

Court stated that Title VII required:

“ .. the removal of artificial, arbitrary, and unnecessary

barriers to employment when the barriers operate in-

vidiously to discriminate on the basis of racial or other

impermissible classification.” 401 U.S. at p. 431.

In order to establish a prima facie case of disparate

impact, the plaintiff must show that a facially neutral em-

ployment standard has a disproportionate impact on an af-

fected group. While statistics are a recognized means of

establishing a prima facie case of disparate impact, this

Court has made clear in /nternational Brotherhood of

Teamsters v. United States, et al., 431 U.S. 324, 340 (1977)

that:

“... [SJtatistics are not irrefutable; they come in in-

finite variety and, like any other kind of evidence, they

may be rebutted. In short, their usefulness depends on

all the surrounding facts and circumstances. See e.g.

Hester v. Southern R. Co., 497 F. 2d 1374, 1379-1381

(CA5).”

See also, concurring opinion of Justice Rexneuisr, in

Dothard v. Rawlinson, 433 U.S. 321, 338 (1977).

The effectiveness of the statistics used by a plaintiff will

depend on the size of the statistical sample (/nternational

Brotherhood of Teamsters v. United States, et al., supra,

431 U.S. at pp. 339-340 fn. 20; Robinson vy. City of Dallas,

514 F. 2d 1271, 1273 [5th Cir. 1975]; Morita v. Southern

California Permanente Medical Group, 541 F. 2d 217, 220

(9th Cir. 1976], cert. den., 429 U.S. 1050 [1977]); the rele-

vancy of the statistics (Taylor v. Safeway Stores, Inc., 527

F, 2d 263, 272 [10th Cir. 1975]; Kirkland v. State Depart-

ment of Correctional Services, 520 F. 2d 420, 428 [2d Cir.

1975]) ; and the applicable labor market (Hazelwood School

District, et al. v. United States, 433 U.S. 299, 308, fn. 13

[1977]).

In the instant case, the District Court conceded that the

employment policy in question was “not adopted with a

purpose of racial discrimination,” (414 F. Supp. at 279)

and based its decision entirely on two sets of statistics.

The first set of statistics was that “of the TA employees

referred to the TA’s medical consultant for suspected viola-

tion of its drug policy since July 1972, 81% were Black

and Hispanic and only 19% were white.” (414 F. Supp. at

p. 278) This information was derived from a letter to

respondents’ counsel from Dr. Harold L. Trigg, Chief of

the Methadone Maintenance and Drug Addiction Services

at Beth Israel Medical Center, who also serves as medical

consultant to the Transit Authority.*

The Trigg letter stated that for the period from July 19,

1972 through October 1, 1974, the racial and ethnic break-

down of individuals referred to him by the Transit Au-

*The Trigg letter was stipulated into the record (See R. Tr.

10/22/74, p. 176) and appears in the Cireuit Court Appendix

at p. 587.

thority was as follows: 39 Blacks, 5 Hispanics and 10

whites.

It was stipulated by the parties during the trial that:

“TA employees showing physical manifestations of drug

abuse other than the definite presence of morphine or

methadone or other illicit drug in the urine, are referred

for consultation to Dr. Harold Trigg of Beth Israel

Medica! Center, who reports his impression to the TA

whether the individual is abusing or has abused drugs.

The TA accepts Dr. Trigg’s impression of the case.”

(A. p. 86A, emphasis supplied)

Since the people referred to Dr. Trigg by the Transit

Authority specifically did not include those whose urine

showed the presence of methadone, no methadone main-

tenance patients would have been included in the group

from which the District Court derived its 81% minority

figure. Moreover, there is no evidence as to what diagnosis

Dr. Trigg made with respect to any of the individuals in

the group, nor is there any evidence as to how many, if

any, of these individuals were discharged from employ-

ment. Thus, this set of statistics is totally irrelevant to the

question of whether the Transit Authority’s exclusion of

methadone maintained persons from employment had a

disparate impact on employment opportunities for Blacks

and Hispanics.

Furthermore, the entire group involved in this set of

statistics consisted of fifty-four people who were referred

to Dr. Trigg over a twenty-six month period. The size of

the sample is so small as to be meaningless in light of the

Transit Authority’s total work force of over 40,000 em-

ployees. /nternational Brotherhood of Teamsters +. United

States, et al., 431 U.S, 224, fn. 20 (1977).

The second set of statistics relied on by the District

Court was that “Between 62% and 65% of methadone

maintained persons in New York City are Black and His-

panic, meaning that there are almost twice as many Blacks

and Hispanics as there are whites in this category.” (414

F. Supp. at p. 279) This set of statisties is derived from

a letter to respondents’ counsel from Peter L. Vogelson,

Coordinator of Field Service for the Methadone Informa-

tion Center of Rockefeller University. (Pl. Ex. 21, R. Tr.

10/22/74, pp. 176-177, Cireuit Court Appendix p. 588)

The Vogelson letter stated that the racial/ethnic break-

down of the methadone patient population for Metropolitan

New York City was as follows: Black, 38.5% White,

33.14%, Puerto Rican, 22.5%, and Undefined, 5.85%. Thus,

the percentage of Blacks was slightly higher than the per-

centage of Whites, and the percentages of Whites was sub-

stantially higher than the percentage of Puerto Ricans.

The Vogelson letter stated that the cited percentages

were based on a random sample of 1400 patients and

reflected the “total population” of methadone maintenance

patients in Metropolitan New York City. However, the

Rockefeller University Methadone Information Center does

not receive information from the private methadone clinics

and consequently, does not have information on the ap-

proximately 14,000 patients treated at the various private

clinies. (R. Tr. 1/7/75, Dole, 113-116; 1/9/75, Lukoff, 251-

252, 399 F. Supp. at p. 1040) Therefore these statistics

did not reflect information on more than one-third of the

total methadone patient population in New York City.

Moreover, the Vogelson statistics did not consider the

employability of the sample. As shown in the Statement

of Facts, supra, at pp. 18-21, no more than 30-50% of meth-

adone patients are employable.

In order to establish a prima facie case with statistical

data, the statistics must be closely related to the specific

issues involved in the ease. Taylor vy. Safeway Stores, Inc.,

524 F.2d 263, 272 (10th Cir. 1975); Kirkland v. State De-

partment of Correctional Services, 520 F.2d 420, 428 (2d

Cir. 1975). Obviously, the employability of the sample is

an essential element of the statistics used to make the

prima facie case. Griggs v. Duke Power Co., 401 U.S. 424

(1971); Hazelwood School District vy. United States, 433

U.S. 299 (1977); International Brotherhood of Teamsters

v. United States, et al., 431 U.S. 324, fn. 20 (1977).

The Vogelson statistics, in addition to being based on

an incomplete sampling, contained no racial or ethnic in-

formation with regard to employable methadone patients.

Consequently, these statistics, like the Trigg statistics,

supra, have no bearing on whether the Transit Au’ burity’s

employment policy had a disparate impact on the employ-

ment opportunities for Blacks and Hispanics, and are

totally inadequate to establish a prima facie case.

Despite the glaring defects of the two sets of statistics

discussed above, the District Court placed its total reliance

on those statistics, and expressly refused to consider what

it conceded to be a “liberal amount” of employment of mi-

norities by the Transit Authority. (414 F. Supp. at p. 279)

The Transit Authority’s EEO-4 form for 1974* shows

that 46% of the Authority’s work force is Black and His-

panic, and that these minority groups are employed

* In late 1973, pursuant to the regulations of the Equal Employ-

ment Opportunity Commission (29 C.F.R. § 1602.30), the Transit

Authority began, for the first time, to maintain records of the

racial and ethnie identity of its employees. The Authority has

never maintained records of the racial and the ethnic identity of

individual applicants for employment. Such records are not re-

quired by the EEOC and are prohibited by State law (New York

Executive Law § 296.1(d)).

throughout the Authority in all job categories, including

officials and administrators, professionals, technicians,

clericals, skilled crafts and service and maintenance em-

ployees. (Def. Ex. P, R. Tr. 2/12/75, p. 1476, appearing in

the Cireuit Court Appendix at pp. 2985-2997) These sta-

tistics are particularly impressive when placed against the

background of statistics from the United States Depart-

ment of Commerce, Bureau of the Census, which indicate

that the civilian work force for the New York Standard

Metropolitan Statistical Area for 1970 was approximately

15.0% Black and 5.1% Hispanic. (A., p. 104A)

Yet, the District Court refused to consider either the

Transit Authority’s work force statistics or any of the evi-

dence dealing with the obvious job-relatedness of the Au-

thority’s refusal to employ methadone patients. The Court

thus fell prey to the blind reliance on statistics against

which this Court cautioned in International Brotherhood of

Teamsters v. United States, et al., 431 U.S. 324, 340 (1977).

Since the respondents failed to prove disparate impact,

it was not incumbent on the Transit Authority to show that

its policy was a business necessity. Nevertheless, the Au-

thority was able to demonstrate business necessity. A

determination of whether the employment policy in ques-

tion is a business necessity includes considyration of the

alternative practices available to the employer. “In exam-

ining alternatives, the risk and cost to the employer are

relevant.” United States v. State of South Carolina, 445

IK. Supp. 1094, 1115 (D.C. D. So. Car. 1977), aff'd —— U.S.

——, 98 S. Ct. 756 (1978).

The only alternative available to the Transit Authority

would be individualized consideration of each methadone

patient who applies for employment. This approach would

require the Authority either to place a heavy reliance on

the recommendations of the employees of the methadone

clinies or to hire a panel of medical consultants to evaluate

methadone applicants. In addition, after hiring the metha-

done patient, the Authority would have to maintain an on-

going surveillance of the employee, including frequent

urinalysis to detect drug abuse. An additional problem in

this process of individualized evaluation is the federal regu-

lation declaring records of methadone clinics to be confi-

dential, thereby imposing on the employer the burden of

employing methadone patients on the basis of conclusory

statements by clinic personnel without specific supportive

data.

The obvious job-relatedness of the Transit Authority’s

policy, particuiarly in the context of a large and sprawling

transit system, together with the substantial economic and

administrative burden of attempting to evaluate the em-

ployability of individual methadone patients, and of main-

taining continuing medical monitoring of methadone pa-

tients after employment, demonstrated the requisite

business necessity.

CONCLUSION

For the reasons stated, it is respectfully submitted that

the judgments of the Courts below should be reversed and

the complaint should be dismissed.

Respectfully submitted,

Aupuonse E. D’AmBrRosE

Attorney for Petitioners

New York City Transit

Authority, et al.

370 Jay Street

Brooklyn, New York 11201

Heven R. Cassivy

Joan OFFNER

EvuGene Freipus

of Counsel

September 5, 1978

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.