Amicus Brief — New York City Transit Authority v. Beazer

IN THE

Supreme Court of the Einited leas ii mz

OCTOBER TERM, 1978 D

No. 77-1427

NEW YORK CITY TRANSIT AUTHORITY, er ai.,

Petitioners,

CARL BEAZER, et ai.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF AMICUS CURIAE OF THE

AMERICAN PUBLIC TRANSIT ASSOCIATION

W. STELL HUIE

DAVID E. FOX

ROBERT P. COCHRAN

Kutak Rock & Huie

1101 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 785-8010

Attorneys for Amicus Curiae

American Public Transit

Association

1100 - 17th Street, N.W.

Washington, D.C. 10036

Washington. OC. @ CLB PUBLISHERS’ « LAW PRINTING CO. e (202) 393-0625

(i)

TABLE OF CONTENTS

INTRODUCTORY STATEMENT .... cc cccevceecens

INTEREST OF THE AMICUS CURIAE ...............

SUMMARY OF PROCEEDINGS 2... ccc ccccccccscens

METHADONE MAINTENANCE AS A FORM OF

DRUG ADDICTION REHABILITATION ...........

SUMMARY OF EVIDENCE IN THE RECORD ..........

SSG CUO th eh were eeseeeseeiueunen

EES GP PRUNE ccc ereresesenesessess

ARGUMENT:

1. THE TRANSIT AUTHORITY’S POLICY OF

NOT HIRING METHADONE USERS DOES

NOT VIOLATE THE EQUAL PROTEC-

TION CLAUSE OF THE FOURTEENTH

i 7G Cas Cb toes Oe eh bes eta ae

A. The Rational Basis Standard of Review

Should be Applied in This Case .............

B. The Transit Authority's Employment

Policy Meets the Rational Basis Test .........

If. THE TRANSIT AUTHORITY’S HIRING

POLICY WITH RESPECT TO METHA-

DONE USERS HAS NOT BEEN APPLIED

WITH DISCRIMINATORY INTENT, NOR

HAS iT HAD A DISCRIMINATORY IM-

PACT UPON MINORITIES UNDER TITLE

Vil OF THE CIVIL RIGHTS ACT OF 1964.......

A. The McDonnell Douglas Standard Should

FF gk eee ae

B. The Griggs Test, if Applied in This Case,

Should be Modified by the Reasoning

Se PP EEE cence cedceheoe ees wenn

(ii)

C. Griggs Must be Applied to the Transit

Authority’s Hiring Practices as a Whole

Rather than to Individual “Subtests” ......... 36

D. Title VII, as Applied to State and Local

Governmental Employers, Requires Proof

of Intent to Discriminate, Not Present in

PG weno e eneesecens sau cenenswes 38

ea ee ne tt ean 42

TABLE OF AUTHORITIES

Cases:

Akins v. Texas, 325 U.S. 398 (1945) .......--0- eee uee 40

Baker v. Columbus Municipal Separate School Dis-

trict, 329 F. Supp. 706 (N.D. Miss. 1971) ........... 41

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

Se ge cece k Geb CS seOReRG Ret weereeeees 18

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

et al., 399 F. Supp. 1032 (SDNY 1975)........... 6,18,26

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

et al., 414 F. Supp. 277 (SDNY 1976) ....... 7,27,40,42

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

ee Pe es OPED S6 ck cece veccuneven 7,18 ,26

Cleveland Board of Education v. La Fleur, 414 U.S.

PP ca bekdeedwkke cede hé644e00 0 b0ees* 18

Crawford v. Cushman, 531 F.2d 1114 (2d Cir.

a ree ee errr Se ee ee ee ee Pee eer eee 18

Dandridge v. Williams, 397 U.S. 471 (1970). . 7,18,19,23,24,25

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) ............. 39

Friend v. Leidinger, 466 F. Supp. 361 (E.D. Va.

Ceara 6 ctw 06 UOT CU REM bea Ge kes 37 38,41

Furnco Construction Corp. v. Waters, 46 U.S.L.W.

a rr 16,27 ,29,30,31,32,34

Griggs v. Duke Power Co., 401 U.S. 424 (1971)... 7,27,28,34

Hodgson v. Greyhound Lines Inc., 499 F.2d 859

RD ia a i i a a te cee an 4

(iii)

International Brotherhood of Teamsters v. United

peees, OF Gh., SHE UWB. FOO CTSTID ccc vcccccesecvecs 30

Jefferson v. Hackney, 406 U.S. 535 (1977) ............ 40

Keyes v. School District No. 1, 413 U.S. 189

SE Gs sede bass wea Pee we reece saecaenee 40

Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61

DG Widwa wes nese eae eee nee ek es 19,24

Marshall v. United States, 414 U.S. 717 (1974) ...... 19,20,22

Massachusetts Board of Retirement v. Murgia, 427

ih PD 6 66605 une ek ekbeeeeeeus se 19,22

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

PP werd ben ke s £06 bao oe RRS Oe e ee 19

McDonneil Douglas Corp. v. Green, 411 U.S. 792

re rere 7,27 ,28 29 ,30,31,32,34

McGowan v. Maryland, 366 U.S. 420 (1961) ........... 19

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

DE cata we ee aaa (ca eed pens ee 39,40

Ohio Bureau of Employment Services v. Hodory,

ee Ss re See. bh ode b-nbesao eeeueen<Bat 23, 25

Schware v. Board of Bar Examiners, 453 U.S. 232

EN er ee ene eer 18

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

GE EEE 655 60 44S bo oue hs Bh bee ekhbeasceue 41

Shapiro v. Thompson, 394 U.S. 618 (1969) .......... 6,18

Smith v. Troyan, 520 F.2d 492 (Sth Cir. 1975) ...... 37, 38

Sugarman v. Dougall, 413 U.S. 634 (1973) ............. 18

Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224

Se CE ab ones 0 4 cae eks cea eneehnes 4

Washington v. Davis, 426 U.S. 229 (1976) ........... 40,41

Wright v. Rockfeller, 376 U.S. 52 (1964) .............. 40

(iv)

Constitutional, Federal and

State Statutes:

Constitution of the United States:

iss ee dee hws 6eebb tae beh wen 40

Fourteenth Amendment ............ 3,6,15,17,25,39,.41

Federal Statutes:

The Civil Rights Act of 1964, Title VII, 42

og A rears 3,7,15,16,26,32

Civil Rights Attorney’s Fees Award Act of

ee ns 6 a 6's C08 Oem kee es es 26

Equal Employment Opportunities Act of 1972,

Pale SE Oe Sb cewecedinvoanness 38

Narcotic Rehabilitation Act of 1966, 18 USC

LBS ay ae BE ee Gn 20

SER TTT OU UUT UTC UET LTTE

State Statutes:

Ohio Rev. Code §4141.29(dM1Ma) ............00.4. 24

Other Authorities:

Bewley and Ben-Aris, “Morbidity and Mortality

From Heroin Dependence: Study of 100 Con-

secutive Patients”, 1 British Medical Journal

727-729 (1968). ...... ee hea ee o's ee ue 4 10

Block, Ellis, and Spielman, “Use of Employment

Criteria for Measuring the Effectiveness of

Methadone Maintenance Programs”, 12 Interna-

tional Journal of the Addictions 161 (1971). ......... 10

Bourne, Methadone: Benefits and Shortcomings,

Drug Abuse Council, Washington, D.C. (1975) ......... 8

Dole and Nyswander, “A Medical Treatment for

Diacetylmorphine Addiction”, 193 J.A.M.A. 80

SE Vikan be aay dS eA ek wes ee bw eb 6 oe cs. 8

Dole and Nyswander, “Heroin Addiction — A

Metabolic Disease”, 120 Archives of Internal

RE eee re 12

Dole, Nyswander, and Warner, “Successful Treat-

ment of 750 Criminal Addicts”, 206 J.A.M.A.

Steen de Vesa bbb we id 6 od caw ee bes 8

(vy)

Epstein, “Methadone, the Forlorn Hope”, 36 Public

eR ee a ay a ere ee

Floyd, Katon, Dupont, and Rubenstein, “Detoxifi-

cation: What Makes the Difference?”, in Pro-

cee 'ines of the Fifth National Conference on

Methadone Treatment, National Association for

the Prevention of Addiction to Narcotics, 1973,

ee Pee rT ee ena 2 ae ee ee

Gearing, “Methadone Maintenance Treatment: Five

Years Later: Where Are They Now?”’, 64 Public

Health Journal (supp.) pp. 44-50 (1974). ...........

Hunt and Odonoff, Follow-up Study of Narcotic

Drig Addiction After Hospitalization, Public

Health Report 77, 1962, pp. 41-54. ...........055.

Klein, “Evaluation Methodology”, 12 International

Journal of the Addictions 837 (1977). ..........4..

Perkins and Black, “Summary of a Methadone

Maintenance Treatment Program”, 126 Ameri-

can Journal of Psychiatry 10 (1970). ..............

Ruiz, Longred, et al., “Social Rehabilitation of

Addicts: A Two-Year Evaluation’, 12 Interna-

tional Journal of The Addictions 173 (1977). ........

Stimmel, Goldbert, Rotkopf, and Cohen, “Ability

to Remain Abstinent After Methadone Detoxifi-

cation: A Six-Year Study”, 237 J.A.M.A. 1216

DE ° gckiryn tap acai aes bees ee Sea wes 664 es

Wallace and Keil, “Illicit Opiate Use During Metha-

done Maintenance’, 13 International Journal of

ee ny es TES 6 k's 640 HON ooo Ete 2%

Zinbert, “The Crisis in Methadone Maintenance’”’,

296 New England Journal of Medicine 1000

I Ses ig ei teal a alg enh ae sn aa os ing

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1978

.

No. 77-1427

NEW YORK CITY TRANSIT AUTHORITY, er ai.,

Petitioners,

CARL BEAZER, et ai.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF AMICUS CURIAE OF THE

AMERICAN PUBLIC TRANSIT ASSOCIATION

INTRODUCTORY STATEMENT

Presently at issue before this Court is the hiring

policy of the New York City Transit Authority (the

“Transit Authority”) which excludes from employment

all former heroin addicts on methadone maintenance

programs.’

Aithough methadone maintenance is designed and

'Despite the District Court’s belief that this amounted to a

blanket exclusionary policy, 399 F. Supp. 1032, 1036, the

record shows that the Transit Authority will give individual

consideration to former addicts who have completed a metha-

done maintenance program and remained drug free for at least 5

years. (R. Tr. 1/28/75, pp. 709, 714, 715.)

touted as a form of drug abuse rehabilitation, the

Transit Authority believes that the program not

only fails to rehabilitate even half of its former heroin

addict patients, but that it is also impossible to judge

under any screening process yet known which former

heroin addicts have been or will be successfully rehabili-

tated.

This conclusion, which led the Transit Authority to

adopt its policy, is fully supported by evidence in the

record that: As many as 90% of such individuals return

to illicit drug use or continue such use while in the

methadone program, infra at p. 9, n. 11; Many continue

to exhibit the general characteristics of drug addiction,

such as lethargy, undependability, unpredictable vio-

lence and criminal activity, infra at pp. 11 and 14;

Accurate information as to which methadone patients

have been successfully rehabilitated is virtually impos-

sible to obtain, infra at p. 13. Methadone program

patients, in short, are not only a poor employment risk

aS a group, but there is no acceptable way of screening

them so that the few good risks can be found.

Therefore, the safety of the transit riding public, the

safety of its employees, the preservation of its property

and the efficient operation of the transit system

required the adoption by the Transit Authority of its

exclusionary policy.

The District Court upheld the Transit Authority’s

policy with respect to what it called “sensitive” job

classifications,’ a decision which has not been appealed

by Respondents, but held the policy to be in violation

>The District Court defined “sensitive” job classifications to

include “subway motorman, subway conductor, subway tower-

man, bus driver, and jobs dealing with high voltage equipment,”

399 F. Supp. at 1058.

3

of the Equal Protection Clause of the Fourteenth

Amendment with respect to what it termed “non-

sensitive” jobs.?

In a subsequent opinion, the District Court held that

the Transit Authority’s policy also violated Title VIi

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

seq., with respect to “‘non-sensitive”’ jobs. In so finding,

the District Court totally disregarded the fact that 46%

of the Transit Authority’s work force is black or

Hispanic, and that such minorities are represented

throughout all job categories (Def. Ex. P, R. Tr.

2/12/75, p. 1476). In addition, the District Court found

that the Transit Authority had no intent to discrimi-

nate, but held that fact to be irrelevant to the

Respondents’ Title VII claim.

The specific issues before this Court, therefore, are

whether the Transit Authority’s policy excluding metha-

done users from employment violates either the Equal

Protection Clause or Title VII when applied to so-called

“non-sensitive”’ job classifications.

INTEREST OF AMICUS CURIAE

This brief Amicus Curiae of the American Public

Transit Association (““APTA’’)* is submitted in compli-

ance with the requirements of Rule 42 of the Rules of

the Supreme Court and pursuant to consent of all

>To describe any transit system job as “non-sensitive” fails to

recognize the nature and magnitude of a transit authority’s

responsibility to the public, the interaction between transit

employees and the public, and the unpredictable behavior of

methadone maintained former heroin addicts. See pp. 5 and

8-15, infra.

*The American Public Transit Association is a not for profit

corporation dedicated to representation of the interests and

concems of public transit. Its membership includes more than

300 public and private bus and rail mass transit systems

throughout the country. APTA members provide more than 90%

parties.°

The issues before the Court in this case affect not

only the New York City Transit Authority, but the

mass transit industry as a whole. The scope of the

industry and the impact which this case may have on

public safety and confidence, management and hiring

policies, as well as operations and expenses, is immense.

Each year the transit industry provides more than 8

billion rides to members of the public, and in any one

instance a single train, for example, may carry as many

as 2500 passengers. The magnitude of this responsibility

has resulted in an extraordinarily high standard of care

in the operation of transit facilities for the use of the

public. In addition, most mass transit systems are

publicly owned and funded, at least in part, by tax

revenues. Therefore, such systems owe a duty to the

tax-paying public to operate in the most efficient

manner possible, consistent with a concern for the

safety of the public and the transit system’s employees.

The District Court’s ruling, requiring the Transit

Authority to screen and hire methadone using job

applicants for “non-sensitive’” positions, jeopardizes

‘Letters from Ms. Joan Offner, on behalf of the New York

City Transit Authority dated August 18, 1978, and from Mr.

Eric Balber on behalf of Respondents Beazer, et al., dated

August 22, 1978, copies of which have been filed separately with

the Court.

*A public carrier's extraordinary duty of care is well

documented in the law of every state and therefore necessarily

affects the decision making process of transit management at all

levels of operation. Usery v. Tamiami Trail Tours, Inc., 531 F.2d

224, 234 (Sth Cir. 1976); Hodgson v. Greyhound Lines, Inc.,

499 F.2d 859, 865 (7th Cir. 1974).

these important public duties and deprives transit man-

agement of the ability to determine the quality of its

employee work force.

The District Court’s conclusion that there is such a

thing in a transit system as a “non-sensitive” job, a

conclusion reached by the lower court without any

substantial input from the parties, is absolutely central

to Respondents’ case. APTA submits that there are no

“non-sensitive” job classifications when the nature and

magnitude of a transit system’s responsibility to the

public is properly taken into account.

Based upon testimony in the record regarding such

tendencies, infra, p. 14, the transit industry has good

reason to fear that a methadone using employee, no

matter what his job classification, might assault or

steal from another employee, or might through

negligence or some willful or uncontrollable act

damage the transit system’s property or endanger the

lives of employees and riders. It is neither difficult nor

unduly speculative for a transit system to envision a

mechanic failing to properly fix or maintain some vital

bus or subway part because he has returned to illicit

drugs or because he is under tremendous physical and

emotional pressure to do so. Such an error could

endanger many lives. It is also easy to envision even a

bus washer or station maintenance employee unpredict-

ably and for no logical reason assaulting another

employee or a transit rider or doing so in order to

obtain money to support a return to hard drugs, infra,

pp. 11 and 14. Any member of a transit system’s

security force will wear or have access to firearms, and

any employee who works in any capacity near central

control equipment (the computerized equipment con-

trolling train separation and speed) could accidentally

Or purposefully cause a catastrophic collision or

derailment.

Less dramatic, but just as real a concern to transit

management, is the methadone maintained employee

who has an unusually high absentee rate, performs his

job lethargically and unsatisfactorily, and suffers chron-

ically from the side-effects and after-effects of heroin

addiction. All of these concerns are real, not conjec-

tural. In fact, there is the statistical certainty, as

evidenced in the record, infra at p. 9, that if the

Transit Authority did not have its present hiring policy,

a large percentage of methadone using employees would

return to the use of illegal drugs while in the transit

system’s work force. Under such circumstances, APTA

submits that no job classification can be considered

““non-sensitive.””

Because this matter is of such grave concern to the

mass transit industry, APTA submits this brief in the

hope of providing an additional perspective to the

factual problems and legal issues at hand.

SUMMARY OF PROCEEDINGS

This case arises in a somewhat unusual context. The

District Court’s opinion, filed on August 6, 1975, 399

F. Supp. 1032 (S.D. N.Y. 1975), set forth findings of

fact and conclusions of law directed solely to the

question of whether the Transit Authority’s hiring

policy with respect to placement of methadone users in

“non-sensitive” job classifications violated the Equal

Protection Clause of the Fourteenth Amendment. The

Court, however, failed to clearly state whether it was

applying a “strict scrutiny” standard of review, appli-

cable to deprivation of fundamental rights or based

upon suspect classifications such as race or alienage,

Shapiro v. Thompson, 394 U.S. 618 (1969), or a “rational

basis” analysis applied to all other state actions

challenged under the Equal Protection Clause. Dan-

dridge v. Williams, 397 U.S. 471 (i970). Although the

lower court opinion frequently employs rational basis

language, its searching review, and weighing and

balancing of the evidence suggests the application of the

strict scrutiny standard.

In affirming the District Court, the Court of Appeals’

decision also reflects the application of a strict scrutiny

standard, in that the decision cites two strict scrutiny

cases. 558 F.2d 97, 99 (2d Cir., 1971).

The Title VII issue was not addressed until May 5,

1976, when the District Court entered its Supplemental

Opinion, 414 F. Supp. 277 (S.D. N.Y. 1976),

conciuding without additional findings that Title VII

had also been violated, and awarding attorneys’ fees

thereunder. Again, the rationale for the decision was

left in question because the Court did not clearly

indicate whether it was applying the Griggs v. Duke

Power Co., 401 U.S. 424 (1971), “disparate impact”

standard or the McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973), “disparate treatment’ analysis.

Because the District Court subsequently changed the

basis for its award of attorneys’ fees, the Court of

Appeals did not address Title VII at all. 558 F.2d at

99-100 (1977).

On June 26, 1978, this Court granted a writ of

certiorari in this matter, certifying only the equal

protection and Title VII issues for appeal. 46 U.S.L.W.

3792 (1978).

METHADONE MAINTENANCE

AS A FORM OF DRUG ADDICTION

REHABILITATION

Methadone maintenance as a treatment for heroin

addiction began in 1964 when Drs. Dole and Nyswar.-

der showed that heroin addicts maintained on a

constant dose of methadone, rather than being rapidly

withdrawn as had been the previous practice, became

more alert and energetic, and less dependent upon

regular doses of heroin. Additional patients were

included in the study, and they too demonstrated

positive behavior changes.” Based on the __ initial

successes of Dole and Nyswander,® researchers began

to initiate large-scale maintenance programs in other

cities. The 1971 establishment of the Special

Action Office for Drug Abuse Prevention

provided a strong governmental commitment to metha-

done maintenance accompanied by infusion of sub-

stantial federal money into drug abuse treatment. Thus,

there was a massive expansion of methadone programs

around the country, peaking in 1975 at '35,000

patients, with 35,000 patients in New York City

alone.’

Sadly, however, methadone maintenance has failed to

live up to the expectations generated by Dole and

Nyswander’s early experiences. Inflated hopes for a

heroin ‘“‘cure” created by intense initial publicity have

’Dole and Nyswander, “A Medical Treatment of Diacetyl-

morphine (heroin) Addication”, 193 J.A.M.A. 80 (1964).

®Dole, Nyswander, and Warner, “Successful Treatment of 750

Criminal Addicts”, 206 J.A.M.A. 2708 (1968).

* Bourne, Methadone: Benefits and Shortcomings, Drug Abuse

Council, Washington, D.C., 1975, p. 3.

9

not been realized.'® Maintenance programs have attracted

tens of thousands of addicts to treatment and to

contact with treatment personnel, and have enabled

some individual patients to reorder their lives in a

constructive manner. However, according to such

measures as retention in the treatment program,

abstinence from drugs following detoxification, avoid-

ance of drug abuse during treatment, and reduced

criminality, the percentage of patients who actually

achieve this transformation is much smaller than

originally predicted.'' Studies have repeatedly shown that

seldom more than 50% of such individuals are capable of

holding a steady and responsible job,'? and that this figure

often falls as low as 17-20%.'* In addition, those

17d, at 19. See Also Zinbert, “The Crisis in Methadone

Maintenance”, 296 New England Journal of Medicine 1000,1001

(1977).

"Bourne, supra, note 9, at 3.

274 at 4-5 (noting that the one-year retention rates for

methadone programs varied from 20% to 80%, but averaged at

only 50%).

'3Stimmel, Goldbert, Rotkopf, and Cohen, “Ability to

Remain Abstinent After Methadone Detoxification: A Six-Year

Study”, 237 J.A.M.A. 1216 (1977). This study measured the

ability of 335 patients (out of 823 total admissions) at New

York City’s Mount Sinai Methadone Maintenance and Aftercare

Treatment Program who were successfully detoxified over a

six-year period. Of this group only 17% were considered by the

staff to have properly completed treatment; 30% were detoxified

due to voluntary discharge; 30% for violations of program rules;

and 24% were arrested. Eighty percent were located for the

follow-up study. Only 35% of those contacted had remained

drug-free, 58% had returned to narcotic use, 4% were incarce-

rated, and 4% were dead. See also Hunt and Odonoff, Follow-up

10

few studies that have shown unusually high success

rates have been subjected to serious methodological

criticism.'*

Study of Narcotic Drug Addiction After Hospitalization, Public

Health Report 77, 1962, pp. 41-54. (90% of 1,912 addicts

discharged from the Public Health Service Hospital were back on

drugs within a six-month period); Gearing, “Methadone Mainte-

nance Treatment: Five Years Later: Where Are They Now?”, 64

Public Health Journal (supp.) pp. 44-50 (1974) (83% of patients

discharged from New York detoxification programs within five

years had either been arrested at least once, hospitalized for a

second detoxification, or enrolled in a treatment program);

Bewley and Ben-Aris, “Morbidity and Mortality From Heroin

Dependence: Study of 100 Consecutive Patients”, 1 British

Medical Journal 727-729 (1968) (86% of addicts in British study

unable to achieve abstinence).

Bloch, Ellis, and Spielman, “Use of Employment Criteria for

Measuring the Effectiveness of Methadone Maintenance Pro-

grams”, 12 International Journal of the Addictions 161 (1977)

(although 70% employment rate reported, the sample selected

included only patients who had been in the program longer than

two years, and half again of these were further excluded for

unknown reasons); Epstein, “Methadone the Forlorn Hope”, 36

Public Interest 3 (1974) (disputing magnitude of crime reduction

rate reported by Dr. Gearing in the New York Program); Bourne,

supra, note 9 at 8-10 (success rates based on employment statistics

are speculative because much of the reported employment is in

the drug abuse field, the statistics often omit dropout rates,.and

there is little regard for the type, amount, or quality of the work

done). Bourne notes that “[p]erhaps as with crime rates the

most one can say about the relationship between methadone

maintenance and productivity is that there appears to be a

qualitative correlation, but one of largely indeterminable magni-

tude. Manipulation of data and admission criteria, definitional

problems with regard to individuals who held brief, part-time, or

temporary jubs, all seem to obscure accurate measurement of the

magnitude of the correlation.” /d. at 9; See also Wallace and

Keil, “Illicit Opiate Use During Methadone Maintenance”, 13

International Journal of the Addictions 241 (1978) (citing

Those who ultimately prove unsuited for employ-

ment often exhibit such behavior as return to illegal

drug abuse'® and/or criminal activity.'* Even Dole and

Nyswander have now recognized that prolonged addic-

tion appears to cause serious psychological and physio-

logical changes not remedied by methadone mainte-

Studies arguing that methadone “success” may be related to

methodological querks, this study argues that Dole and Nyswan-

der’s original blockade theory of methadone action has yet to be

scientifically confirmed); Klein, “Evaluation Methodology”, 12

International Journal of the Addictions 837 (1977) (studies

evaluating the success of methadone treatment critiqued based on

vague or ambiguous criteria measures and unverified patient

self-reports; the author concludes that “available data does not

allow for resolution of the pro- or anti-methadone conflict.”

'SRuiz, Longred, et al., “Social Rehabilitation of Addicts: A

Two-Year Evaluation”, 12 International Journal of the Addic-

tions 173 (1977) (36% and 54% of patients in two New York

clinics showed at least one positive urine test containing illicit

drugs during six months following admission, primarily indicat-

ing barbiturates and cocaine); Perkins and Black, “Summary of a

Methadone Maintenance Treatment Program”, 126 American

Journal of Psychiatry 10 (1970) (20% of methadone patients at

New York’s Beth Israel used illicit drugs as shown by urine

samples during a two-year period); Floyd, Katon, DuPont, and

Rubenstein, “Detoxification: What Makes the Difference?”, in

Proceedings of the Fifth National Conference on Methadone

Treatment, National Association for the Prevention of Addiction

to Narcotics, 1973, pp. 284-87 (growing evidence of alcohol and

valium abuse among methadone patients).

‘Ruiz, Longred, et al., supra, note 15 at 173 (12% and 14% of

two New York patient populations were arrested at least once

during the first 18 months of treatment).

12

nance.'? Additionally, methadone programs have been

persuasively criticized because of the questionable

morality of substituting one addictive opiate for

another;'* the reason being that any legitimate drug

abuse treatment should lead to abstinance and not to

continued dependency.

Despite extensive medical and scholarly treatment

and study of methadone maintenance methodology and

results, as set forth herein, none of the articles or books

have suggested that there is any dependable way to

identify in advance, even after lengthy treatment, those

former addicts who will ultimately be successfully

rehabilitated.

In short, drug abuse rehabilitation remains an inexact

science. The characteristics of drug addiction, such as

lethargic, undependable and criminal behavior, remain

significant characteristics of methadone maintenance

patients despite the continuing efforts of the medical

profession.

SUMMARY OF EVIDENCE IN THE RECORD

In addition to the medical uncertainty of methadone

maintenance treatment programs, there are many prac-

tical considerations fully documented by creditable

evidence in the record, which more than justify the

Dole and Nyswander, “Heroin Addiction — A Metabolic

Disease’, 120 Archives of Internal Medicine 19 (1967) (pro-

longed opiate drug addiction alleged to produce permanent

metabolic changes that require permanent opiate maintenance).

‘Bourne, supra, note 9 at 17; Zinberg, supra, note 10 at

1001.

13

Transit Authority’s policy. Just a few of the problems

reflected in the record, which the New York

City Transit Authority and other members of the

transit industry would face in attempting to adequately

screen methadone using job appiicants, as the District

Court opinion suggested, may be summarized as

follows:

1. Methadone treatment programs vary greatly in

quality, many fail to conform to federal and state

regulations and, in fact, a large portion of the total

methadone distribution is handled by private

physicians for profit without any attendant coun-

seling services (R. Tr. 1/9/75 p. 251);

2. Even those clinics which do meet certain minimum

standards are so over-extended that they are

almost completely unable to address and analyze

the side effects, physical and psychological, of

methadone treatment in each individual patient (R.

Tr. 1/10/75, pp. 424-426);

3. Advice regarding the employability of a given

patient is both inadequate and suspect for a

number of reasons (R. Tr. 1/9/75, p. 168) — a)

there are very few professional employees associ-

ated with these programs who are qualified to

make employability decisions (R. Tr. 1/10/75, p.

349; b) a great deal of information pertinent to

employment is subject to doctor-patient confi-

dentiality (R. Tr. 10/25/74, p. 424) and federal

regulatory confidentiality requirements (42 CFR

§2.1 et seq.); c) rapid staff turnover makes it even

more difficult for the clinic to supply, or the

employer to obtain accurate information (R. Tr.

1/9/75, p. 257); and d) there is an inherent

conflict of interest which often leads methadone

programs to give unjustifiably high recommenda-

14

tions to patients in order to place them in jobs,

whether or not they are qualified (R. Tr.

10/22/74, pp. 38-39; 1/10/75, p. 347).

Even if a transit authority were to undertake the

substantial additional expenses and commitment of

administrative resources necessary in order to make, the

best possible employability decisions under the cir-

cumstances, the record reveals that insurmountable

difficulties would remain. Studies indicate that any-

where from approximately 50% to 90% of methadone

maintained patients continue to use heroin or other

hard drugs on occasion. (R. Tr. 10/22/74, pp. 23-24;

1/10/75, p. 418). In addition, methadone withdrawal is

known to be accompanied by increased consumption of

alcohol and abuse of amphetamines and barbiturates (R.

Tr. 1/10/75, p. 454), and such disruptive physical side

effects as vomiting, nausea, respiratory infection, hepa-

titis, tympano mastoiditus, and dizziness (R. Tr.

10/22/74, p. 26; 10/25/74, pp. 432, 438, 448). There is

also evidence that addiction to heroin, and perhaps even

methadone use, leads to long lasting physiological and

psychological disorders which may be evidenced un-

expectedly in unpredictable and sometimes violent

behavior (R. Tr. 1/7/75, p. 128; 10/22/74, pp. 69-70).

This increased propensity for violent or even criminal

behavior (R. Tr. 1/28/75, pp. 629-30, 645-46, 677-78)

is one of the more disturbing characteristics of

methadone maintained former addicts. Hiring from such

a group would put any transit system in a particularly

difficult situation given a common carrier’s extraordi-

narily high standard of care with respect to the

public.'® Placing an employee with such statistically

'%See note 4, supra.

15

proven propensities in any job position might well be

considered negligence per se on the part of the Transit

Authority if someone were robbed, assaulted or injured

as result of an employee’s willful, negligent, or

uncontrollable act.

As the Respondents’ witness Dr. Dupont said during

examination by the Court, an employer must “take a

leap of faith” in hiring a methadone using applicant (R.

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

QUESTIONS PRESENTED

I. Is the Petitioner’s denial of employment in “non-

sensitive” positions to former heroin addicts partici-

pating in methadone maintenance programs an

unconstitutional denial of equal protection under the

Fourteenth Amendment?

Il. Is the Petitioner’s denial of employment to former

heroin addicts participating in methadone mainte-

nance programs unlawful racial discrimination under

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

§ 2000e ef seq.?

SUMMARY OF ARGUMENT

I. The Equal Protection Clause of the Four-

teenth Amendment

The Respondents’ equal protection claim is valid only

if there is no rational basis for the classification which

they claim to be discriminatory. The record, however,

clearly provides such a rational basis for the Transit

16

Authority’s conclusion that an exclusionary policy is

necessary.

Despite the recognized fact that some percentage of

methadone treatment patients are employable, the

record is also unquestionably clear that many are not

only unemployable but dangerous to their fellow

employees and to the transit riding public, that the

science of drug addiction treatment remains highly

subjective, and that it is often impossible to obtain the

type of accurate information that even a highly trained

physician would need in order to make an educated,

but still uncertain, judgment as to employability.

Il. Title VII of the Civil Rights Act of 1964

Due to the procedural history of this case the Title

VII issue was inadequately explored by the District

Court and totally disregarded by the Court of Appeals.

Nonetheless, because of the District Court’s finding that

the questioned classification was not formulated or

applied with discriminatory intent, the Title VII claim

may be disposed of in favor of Petitioner without

remand for further findings. In view of this Court’s

- recent decision in Furnco Construction Corp. v. Waters,

46 U.S.L.W. 4966 (June 29, 1978), and the constitu-

tional basis of the application of Title VII to state and

local governments, it is clear that discriminatory intent,

actual or implied, remains a necessary element of a

Title VII claim.

In addition, the District Court misapplied Title VII

when it singled out one job requirement among the

many job-related considerations which go into every

17

hiring decision, and failed to give any consideration

whatever to the Transit Authority’s overall hiring

results.

THE TRANSIT AUTHORITY’S POLICY OF

NOT HIRING METHADONE USERS DOES

NOT VIOLATE THE EQUAL PROTECTION

CLAUSE OF THE FOURTEENTH AMEND-

MENT

Respondents have alleged and maintained throughout

this litigation that the Transit Authority’s rule ex-

cluding methadone maintenance patients, as well as

present and past drug addicts, from “‘non-sensitive” job

positions is an irrational classification in violation of the

Equal Protection Clause of the Fourteenth Amendment.

it is submitted, for the reasons set forth below, that

this contention is erroneous.

A.The Rational Basis Standard of Review

Should be Applied in This Case.

This Court has on many occasions outlined the two

separate tests which may be applied to an equal

protection claim: the “strict scrutiny” test, applied

when the challenged action operates to infringe or deny

a fundamental right or employs a suspect classification

such as race or sex, requires that the defendant show

that there is no reasonable, less discriminatory alterna-

18

tive. Shapiro v. Thompson, 394 U.S. 618 (1969); and

the “rational basis” test, applied in the absence of a

fundamental right or suspect classification, merely

requires that there be some evidence of a rational

relationship between the legitimate purpose of the

classification and the means of achieving that purpose.

Dandridge v. Williams, 397 U.S. 471 (1970). Neither

the District Court nor the Court of Appeals, however,

have directly addressed the question of which test

should be applied in the present case.

The District Court, while speaking in terms of

“rational relation” and “rational basis,” 399 F. Supp. at

1057, cited and apparently relied upon cases which

applied the strict scrutiny standard.*° Certainly, the

District Court’s searching review of the evidence,

acknowledging the significance of the Transit Author-

ity’s concerns, balancing those concerns against the

needs of the plaintiff class, and concluding that less

offensive means of achieving its goals were available to

the Transit Authority, falls in the category of strict

scrutiny, by whatever name it is called.

Similarly, the Court of Appeals spoke in terms of

applying the “rational relation” test, but relied solely

upon cases in which a strict scrutiny standard was

applied.*' 588 F.2d at 99.

*°Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94

S. Ct. 791, 39 L.Ed.2d 52 (1974); Sugarman v. Dougall, 413

U.S. 634, 93 S. Ct. 2842, 37 L.Ed.2d 853 (1973); Schware v.

Board of Bar Examiners, 353 U.S. 232, 77 S. Ct. 752, 1 L.Ed.2d

796 (1957); Baker v. Columbus Municipal Separate School

District, 329 F. Supp. 706 (N.D. Miss. 1971), aff'd, 462 F.2d

1112 (Sth Cir, 1972).

""Sugarman v. Dougall, 413 U.S. 634 (1973); Crawford v.

Cushman, 531 F.2d 1114 (2d Cir. 1976).

19

Respondents, on the other hand, now admit that

rational basis, and not strict scrutiny, is the appropriate

measure of their equal protection claim. (Brief in

Opposition to Certiorari, p. 21.) This conclusion is

undeniably correct in view of the fact that employment

by the state or any political subdivision of the state is

not a fundamental right, Massachusetts Board of

Retirement v. Murgia, 427 U.S. 307, 313 (1976), nor is

a classification based upon addiction to narcotics a

suspect classification. Marshall v. United States, 414

U.S. 417, 421-22 (1974). Application of the rational

basis test is, therefore, appropriate.

B.The Transit Authority’s Employment Policy

Meets the Rational Basis Test.

The rational basis test was described by this Court in

Dandridge v. Williams, 397 U.S. 471 (1970), by

reference to several earlier characterizations:

If the classification has some “reasonable basis,”

it does not offend the Constitution simply because

the classification “is not made with math, .natical

nicety or because in practice it results in some

inequality.”” Lindsley v. Natural Carbonic Gas Co.,

220 U.S. 61, 78, 31 S.Ct. 337, 340, 55 L.Ed. 369.

“The problems of government are practical ones

and may justify, if they do not require, rough

accommodations — illogical, it may be, and

unscientific.”” Metropolis Theatre Co. v. City of

Chicago, 228 U.S. 61, 69-70, 33 S.Ct. 441, 443,

57 L.Ed. 730. “‘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, 81 S.Ct. 1101, 1105, 6

L.Ed.2d 393.

20

397 U.S. at 485.

The clear message in this language and in numerous

other cases decided before and after Dandridge, is that

in the absence of some fundamental right or suspect

classification, the duly authorized actions of a state or

political subdivision thereof will be upheld as long as

any creditable evidence provides a rational basis for the

action in question.

Given these guidelines, it is submitted that neither

the District Court nor the Court of Appeals properly

applied the rational basis test, if they in fact applied it

at all. As shown above, this fact is most vividly

demonstrated by the District Court opinion, which

dedicated page after page to analysis of evidence in the

record supporting the Transit Authority’s policy. In

each instance, though giving substantial credence to the

concerns of the Transit Authority, the District Court

chose to explain away those concerns by suggesting

alternative means of dealing with the problems. In so

doing the Court chose to ignore or cast aside a great

deal of highly creditable evidence which, it is sub-

mitted, more than satisfies a proper application of the

rational basis test to the facts of this case.

Among the many equal protection decisions rendered

by the Supreme Court in recent years, at least three are

closely analogous to the present circumstances and

provide a more appropriate application of the rational

basis test to the facts of this case. Perhaps the most

instructive case factually is Marshall v. United States,

414 U.S. 717 (1974), where the Court upheld a

provision of the Narcotic Rehabilitation Act of 1966,

18 U.S.C. §4251, et seq., disallowing the benefits of

that Act to narcotics addicts with two or more prior

a rn ee ee ee

21

felony convictions. Even though the two felony

limitation was in a sense arbitrary, in that the line

could have just as easily been drawn at one or three

convictions, the Court concluded that this was a matter

of “legislative, not judicial choice.” 414 U.S. at 428.

More to the point, however, the Court recognized, and

documented at some length, the difficulty and uncer-

tainty involved in medical rehabilitative treatment of

narcotics addicts:

As testimony before both the House and Senate

committees revealed, the treatment process for

narcotics addiction is an arduous and a delicate

undertaking, particularly in the after care stage

when the subject is released into an unstructured

environment which requires from the addict strict

Obedience to the limitations of the prescribed

regime and full cooperation in the rehabilitative

efforts. (footnote 9 set forth below)

Additionally, 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 rehabilitation of nar-

cotics addicts thus remains shrouded in uncer-

tainty. Indeed, even the premise that drug addic-

tion is one of the significant root causes of crime

is not without challenge. (citations omitted) As

testimony before the Congress revealed, no evi-

dence to date has demonstrated more than a

speculative chance for the successful rehabilitation

of narcotics addicts. (emphasis added)

- * ~

When Congress undertakes to act in areas

fraught with medical and scientific uncertainties,

legislative options must be especialiy broad and

courts should be cautious not to rewrite legisla-

tion, even assuming, arguendo, that judges with

22

more direct exposure to the problem might make

wiser choices.

414 U.S. at 426-427.

In footnote 9 of the Marshall opinion the Court

further relied upon Senate Committee Report findings

that treatment of drug addicts is at best an inexact

science.

The Senate Report states:

“The process is extremely complex and difficult,

involving sustained therapy, principally psychiatric,

and perhaps a return to the community in stages,

utilizing short visits, a halfway house, a work

camp, or some similar facility.... In addition,

some sanction should be available to enforce the

cooperation of the addict in the post-hospitaliza-

tion period.” S. Rep. No. 1667 at 15.

Id. at 426.

These concerns, expressed by this Court in its 1974

opinion, the same year in which the present matter

reached trial, appear to be similar to the concerns

which led the Transit Authority to adopt its policy of

not employing drug addicts and methadone treatment

patients in either sensitive or non-sensitive job classifica-

tions. Although the line might have been drawn in a

different place, the Transit Authority certainly had

sufficient grounds, based upon the uncertainties of

methadone treatment, as recognized by the Court in

Marshall, to rationally conclude that it was in the best

interest of the public to adopt such a rule.

Another recent decision of this Court which bears

directly upon the present circumstances is Massachusetts

Board of Retirement v. Murgia, 427 U.S. 319 (1976),

wherein the Court upheld a Massachusetts statute

setting mandatory retirement for state police at the age

ee eee oe

SO .

23

of 50. Notwithstanding clear evidence in the reco. that

some individuals over 50 years of age are as physically

capable of performing a state policeman’s duties as

many others under 50, and that physical examinations

could have been substituted for the arbitrary standard,

the Court found no violation of equal protection.

There is no indication that §26(3)(a) has the

effect of excluding from service so few officers

who are in fact unqualified as to render age 50 a

a wholly unrelated to the objective of the

statute.

That the State chooses not to determine fitness

more precisely through individualized testing after

age 50 is not to say that the objective of assuring

physical fitness is not rationally furthered by a

maximum-age limitation. It is only to say that

with regard to the interest of all concerned, the

State perhaps has not chosen the best means to

accomplish this purpose. But where rationality is

the test, a State “does not violate the Equal

Protection Clause merely because the classifications

made by its laws are imperfect.” Dandridge y.

Williams, 397 U.S., at 485, 90 S.Ct. at 1161

(footnotes omitted)

427 U.S. at 316.

Unlike the circumstances in Murgia, the record

reveals in the present case that it is unlikely that the

Transit Authority could determine, with any amount of

effort and expense, which methadone user applicants

for employment are most likely to be reliable

employees. Consequently it was not irrational, as in

Murgia, for the Transit Authority to deal with the

situation by excluding all such applicants.

Similarly, in Ohio Bureau of Employment Services y.

Hodory, 431 U.S. 471 (1977), this Court upheld an

24

Ohio statute denying unemployment benefits to all

persons whose unemployment is “due to a labor dispute

other than a lockout.” Ohio Rev. Code

§4141.29(d)(1)(a). Again setting forth the parameters

of equal protection analysis, the Ohio Bureau Court

stated that:

Appellee in effect urges that the Court consider

only the needs of the employee seeking compensa-

tion. The decision of the weight to be given the

various effects of the statute, however, is a

legislative decision, and appellee’s position is

contrary to the principle that the “the Fourteenth

Amendment gives the federal courts no power to

impose upon the States their views of what

constitutes wise economic or social policy.”’ Dan-

dridge v. Williams, 397 U.S. 471, 486, 90 S.Ct.

1153, 1162, 25 L.Ed.2d 491 (1970). In consider-

ing the constitutionality of the statute, therefore,

the Court must view its consequences, not only for

the recipient of benefits, but also for the contribu-

tors to the fund and for the fiscal integrity of the

fund.

431 U.S. at 490.

Even though Ohio’s statute was so broad as to

include employees who were not voluntarily unem-

ployed as a result of a labor dispute, the Court

acknowledged the state’s right to establish such classifi-

cations where some rational basis may be cited.

Although one might say that this system provides

only “rough justice,” its treatment of the em-

ployer is far from irrational. “If the classification

has some ‘reasonable basis,’ it does not offend the

Constitution simpiy because the classification ‘is

not made with mathematical nicety or because in

practice it results in some inequality.’ Lindsley v.

Natural Carbonic Gas Co., 220 U.S. 61, 78, 31

CE RE

ae

25

S.Ct. 337, 55 L.Ed. 369.” Dandrid li

, Ed. , ge v. Williams,

397 U.S. at 485, 90 S.Ct. at 1161. The rationality

of this treatment is, of course, independent of any

apa of the workers collecting compensa-

ion.

431 U.S. at 491, 97 S.Ct at 1909-10.

Perhaps the most important aspect of the Ohio

Bureau decision, from the standpoint of the Transit

Authority and the transit industry, is the welcome

recognition that the needs of the employee are not the

only meaningful measure of rationality. The present

case provides an excellent example of an instance in

which the employees’ or applicants’ needs may be

genuine, but cannot rationally be said to outweigh the

needs of the Transit Authority, the transit riding public

and the taxpayer.

Where, as here, the challenged action is based upon

the employer’s rational concern about the difficulty of

recruiting and selecting qualified employees, the po-

tential risk of harm to the transit riding public, and the

additional personnel and supervision costs which would

be borne by the taxpaying public if such a hiring

program were undertaken, the Equal Protection Clause,

as interpreted by the decisions of this Court, is not

violated.

THE TRANSIT AUTHORITY’S HIRING

POLICY WITH RESPECT TO METHADONE

USERS HAS NOT BEEN APPLIED WITH

DISCRIMINATORY INTENT, NOR HAS IT

HAD A DISCRIMINATORY IMPACT UPON

MINORITIES IN VIOLATION OF TITLE VII

OF THE CIVIL RIGHTS ACT OF 1964

26

As discussed at greater length above, the Respon-

dents’ complaint contained allegations of discrimination

in violation of Title VII of the Civil Rights Act of

1964, 42 U.S.C. §2000e, et seg. However, the District

Court’s original findings and decision, entered August 6,

1975, 399 F.Supp. 1032, addressed only the equal

protection claim. Not until Respondents moved for an

award of attorneys’ fees pursuant to 42 U.S.C.

§2000e-5(h), did the District Court file an opinion

summarily concluding that Title VII had been violated

and awarding attorneys’ fees in excess of $350,000.

As the Court of Appeals acknowledged, the Respon-

dents “‘concededly pressed their Title VII claim for the

sole purpose of obtaining attorneys’ fees’ under the

Act. 558 E.2d 97, 99 (1977). Following enactment of

the Civil Rights Attorneys’ Fees Award Act of 1976, 42

U.S.C. §1988, however, the District Court entered its

Amended Permanent Injunction and Judgment award-

ing, inter alia, attorneys’ fees based upon this new

statutory provision rather than upon §2000e-S(h),

which must be premised upon a violation of the Civil

Rights Act. Because of this later ruling, the Court of

Appeals found it unnecessary to deal with the Title VII

issues presented in this case. 558 E.2d at 99-100.

This procedural confusion has left the Title VII issue

without thorough consideration or delineation in the

lower courts. The District Court held in its brief

opinion that “Title VII does not require a purpose or

intent to carry out racial discrimination” and that the

Transit Authority’s policy “while not adopted witn a

purpose of racial discrimination, has been shown to

have a substantially greater impact on minority groups

than on whites.’ The District Court went on to

concude that “[s]ince the policy is not grounded in

_~

ae

27

any business necessity, it violates Title VII.” 414 F.

Supp. at 278-279. In so holding the District Court

appears to have relied almost exclusively upon Griggs v.

Duke Power Co., 401 S.Ct. 424 (1971).

It is submitted, at the outset, that this is an

inappropriate and inadequate treatment of the complex

and profoundly important Title VII questions raised in

this case. Whatever the present status of the lower

court’s Title VII holding may be, however, the

conclusion that Title VII has been violated is believed

to be incorrect for at least the following reasons:

1. The 4fcDonnell Douglas Corporation v. Green, 411

U.S. 792 (1973), “disparate treatment” test, and

not the Griggs “disparate impact” standard, should

have been applied to this case, as modified and

explained by this Court’s recent decision in Furnco

Construction Corporation v. Waters, 46 U.S.L.W.

4966 (June 29, 1978).

2. Even if the Griggs test is appropriate, that standard

should also be modified by the Court’s reasoning

in Furnco.

3. Even if the Griggs test is applied, the Transit

Authority’s employment policy with respect to

methadone users is only a “subtest” of the

Authority’s overall employment qualification re-

quirements and, therefore, should be judged in

light of overall hiring results.

4. A Title VII claim against the Transit Authority, a

municipal rather than a private corporation, re-

quires proof of intent to discriminate, admittedly

lacking in the present case.

28

A.The McDennell Douglas Standard Should be

Applied in This Case.

The standard of Title VII review originally set forth

in Griggs v. Duke Power Co., supra, was there applied

to employment testing, where intelligence, ethnic and

social background, and formal education have _his-

torically been used as facially non-discriminatory hiring

standards. The Court held that such tests, if they have a

disparate impact upon minority job applicants, must be

justified as being job related in order to avoid the

presumption of racially discriminatory intent. 401 U.S.

at 431. Even arguably job related tests or requirements

must pass this “business necessity” requirement by

showing that there is no reasonable alternative means

by which to achieve the same goal without discrimina-

tory impact. The Griggs Court’s principle line of

reasoning appears to have been that employment tests

have been so misused by employers in the past, and are

so difficult to objectively review for discriminatory

intent, that an extraordinary standard was justified. /d.

at 432. The fact that Griggs was a class-action does not

appear to have been a controlling factor in determining

that such a standard was needed.

McDonnell Douglas Corp. v. Green, supra, on the

other hand, was a non-class action case which addressed

other employment practices which allegedly result in

discrimination because of “disparate treatment” of a

minority applicant or employee. In this situation the

Court fashioned a very different standard. A plaintiff

may prove a prima facie case of discrimination by

showing that: 1) he belongs to a racial minority; 2) he

applied and was qualified for the job or promotion; 3)

was turned down; and 4) subsequently, the employer

continued to look for employees with the same

oie

29

qualifications. 411 U.S. at 802. Such circumstances are

adequate to imply intent, however, the employer has

the opportunity to rebut that presumption by showing

“some” legitimate nondiscriminatory reason for the

employee’s rejection.” /d. at 802. Proof of business

necessity, by showing that there is no reasonable

alternative to rejection of the employee, is not required.

That respondents have alleged discriminatory impact

and seek to represent a class should not, without more,

determine the standard by which their claim will be

judged. Rather, the substantive nature of the claim

should determine the standard applied.

Because the present case does not involve an

employment test, and because the challenged employ-

ment practice is merely one of many standards by

which all Transit Authority job applicants are screened,

it is believed that McDonnell Douglas provides the most

appropriate analysis for this case.

This Court recently, in Furnco Construction Corpora-

tion v. Waters, 46 U.S.L.W. 4966 (June 29, 1978),

expiained at great length, and to some extent modified,

the McDonnell Douglas “disparate treatment” analysis

with respect to an allegedly discriminatory hiring

practice. In so doing the Court noted that the Griggs

analysis, applied by the District Court in this case, was

inappropriate because the alleged discrimination did not

involve an employment test. A close review of the

Furnco decision, therefore, is the most appropriate

means of analyzing the present status of the McDonnell

Douglas standard, and its proper application to this

case.

In Furnco, the plaintiffs were three black bricklayers

who sought but were initially denied employment on a

30

construction project. It was admitted that these

individuais were qualified for the jobs they sought, and,

in fact, two were later hired. Although the District

Court found no violation of Title VII, the Court of

Appeals held that the facts presented a prima facie case

of race discrimination not adequately rebutted by the

employer. This Court granted certiorari to consider “the

exact scope of the prima facie case” and “the nature of

the evidence necessary to rebut such a case.” 46

U.S.L.W. at 4967.

The touchstone in cases such as Furnco and the

present case, according to the Court “is always whether

the employer is treating ‘some people less favorably

than others because of their race, color, religion, sex or

national origin.’ /nternational Brotherhood of Teamsters

v. United States, supra (431 U.S. 344) at 335 n. 15.”

46 U.S.L.W. at 4969. (emphasis added). Justice Rhen-

quist, speaking for the majority, noted that the four

step method of establishing a prima facie case of

“disparate treatment” suggested in McDonnell Douglas,

supra, 411 U.S. at 802, “‘was never intended to be rigid,

mechanized, or ritualistic,” Furnco, supra, at 4969, and

that proof of a prima facie case “raises an inference of

discrimination only.”’ /d. The inference of discnmina-

tory intent is allowed, as it was in Griggs, because of

the difficulty, and sometimes impossibility, of proving

actual intent, and because our experience allows us to

reasonably infer that such “acts, if otherwise unexplain-

ed, are more likely than not based onthe consideration

of impermissible factors.” /d. It is clear, however, that

such an inference is only an acceptable alternative for

proof of actual discriminatory intent when unrebutted,

and not a removal of intent, actual or implied, as a

necessary element of proof in a Title VII action.

ee

31

This conclusion is borne out by this Court’s further

analysis in Furnco of the employer’s proper response to

a prima facie case.

When the prima facie case is understood in the

light of the opinion in McDonnell Douglas, it is

apparent that the burden which shifts to the

employer is merely that of proving that he based

his employment decision on a legitimate considera-

tion, and not an illegitimate one such as race....

To dispel the adverse inference from a prima facie

showing under McDonnell Douglas, the employer

need only “articulate some legitimate nondis-

criminatory reason for the employee’s rejection.”

McDonnell Douglas, supra, at 802.

Id. at 4969.

Of course, the employee must be given the oppor-

tunity to prove that the employer’s explanation of his

actions are merely ‘“‘a pretext for discrimination.” /d. A

court may not, however, find a violation of Title VII

simply because “different practices would have enabled

the employer to at least consider, and perhaps hire,

more minority employees.” /d.

Finally, this Court addressed the employer's use of

favorable minority hiring statistics as a means of

disproving discriminatory intent. While being careful to

point out that hiring statistics do not necessarily

disprove discriminatory practices in any specific in-

stance, this Court held that such favorable statistics

may be highly probabtive evidence which the Furnco

Court of Appeals was in error to disregard.

A McDonnell Douglas prima facie showing is not

the equivalent of a factual finding of discrimina-

tion, however. Rather, it is simply proof of actions

taken by the employer from which we infer

discriminatory animus because experience has

proved that in the absence of any other explana-

32

tion it is more likely than not those actions were

bottomed on impermissible considerations. When

the prima facie showing is understood in this

manner, the employer must be allowed some

latitude to introduce evidence which bears on his

motive. Proof that his work force was racially

balanced or that it contained disproportionately

high percentage of minority employees is not

wholly irrelevant on the issue of intent when that

issue is yet to be decided.

Id. at 4970.

If this Court’s teaching in Furnco may be applied to

the present case, it is apparent that the District Court

erred in several respects. First, the District Court

erroneously concluded that intent, actual or implied,

was not a necessary element of a Title VII violation. In

fact, the Court specifically found that the Transit

Authority’s policy was “not adopted with a purpose of

racial discrimination.” 414 F. Supp. at 278 and 279.

Nonetheless, relying solely upon the disparate impact of

the Transit Authority’s policy, the District Court found

a Title VII violation.

Second, the District Court applied an erroneous

standard for rebuttal of a prima facie case when it

concluded in a single sentence that “[s]ince the policy

is not grounded in any business necessity, it violates

Title VII.” 414 F. Supp. at 279. Such a standard, as

stated and as applied, is directly in conflict with this

Court’s teaching in Furnco and McDonnell Douglas that

“the employer need only ‘articulate some legitimate

nondiscriminatory reason for the employee’s rejection.’

McDonnell Douglas, supra, at 802.” Furnco, supra, at

4969. In any event, it is believed that the District Court

was clearly erroneous in its findings of fact under either

standard in concluding that use of the narcotic drug

wegen "

wh

33

methadone as an exclusionary job criterion, was “not

shown to be related to job performance.” 414 F.

Supp. at 278. Indeed, the record is replete with

evidence indicating that at least a certain percentage of

all methadone users are totally unemployable because

they have already returned to or will return to use of

other narcotic drugs, exhibit criminal tendencies, are

unreliable and untrustworthy, and are safety risks both

to the public and to other employees.??

Third, the District Court refused to even consider the

Transit Authority’s statistical proof that its employee

work-force was approximately 46% minority (Def. Ex.

P, R. Tr. 2/12/75, p. 1476), while the general

population within its jurisdiction was only 15% black

and 5% Hispanic. 414 F. Supp. at 279. This is in direct

contrast to this Court’s admonition that such evidence,

though not dispositive, is relevant to the issue of

discriminatory intent and, therefore, should not be

ignored. /d. at 4970.

In short, the District Court simply failed to recognize

the employer’s right, in the absence of discriminatory

intent, to make a reasonable business judgment that the

difficulty involved in determining which members of

this group are employable, and the attendant risks if an

incorrect decision is made, justify exclusion of the

See Notes 11 through 16, supra, and references to the Trial

Record at pp. 12-15, supra.

34

entire class.?3

B.The Griggs Test, if Applied in This Case,

Should be Modified by the Reasoning Set

Forth in Furnco.

The Furnco decision does not make clear how much,

if any, of its analysis is applicable to a Griggs “disparate

impact” case as opposed to the McDonnell Douglas

“disparate treatment” situation to which the Court was

there addressed. Griggs, of course was a class action

employment test case, as noted by the Furnco Court at

footnote 7, 46 U.S.L.W. at 4968, while McDonnell

Douglas was a non-class action employment practice

claim.

The argument set forth in Part A, above, is based

upen the belief that the employment test nature of

Griggs is a more significant factor in determining the

applicability of that standard than the fact that Griggs

also involved a class action. Similarly, it is believed that

just because McDonnell Douglas was not a class action

does not preclude application of its reasoning to class

action matters. If this Court should conclude, however,

that the Griggs guidelines must be applied to the

present case, it is submitted that that test must be

231t should be noted ihat this clascification, unlike many

others, does not affect persons who have no control over their

membership in such class. Despite unfortunate societal pressures

which may impact certain people more than others, the

classification of addicts, ex-addicts and methadone users is a

voluntary class, which by its nature presumes the commission of

the feloneous criminal act of possession and use of an illegal

narcotic drug.

> ea

Re -* eee See

35

reinterpreted in light of the reasoning and conclusions

set forth in Furnco.

The Griggs test, at least as applied by the lower

courts, eliminating actual or even implied intent and

applying a rigorous alternative means analysis to the

business necessity requirement, 401 U.S. at 431-432, is

substantially different from the McDonnell Douglas

analysis as understood in light of Furnco.** As set forth

above, Furnco now makes it clear that at least implied,

if not actual, discriminatory intent must be shown and

that any implication of such intent may be removed if

the trier of fact concludes that the challenged employ-

ment practice is based upon a valid, non-discriminatory

purpose.

There appears to be no valid reason why a plaintiff

who alleges representation of a class in addition to

personal discrimination should invoke such a different

standard as that presently being applied by the courts

under the auspices of Griggs. If such a disparity is

allowed to survive, a class action claim might be

successful without proof of intent even though no

individual member of the class would be able to prove a

night to relief under Furnco once individual claims are

submitted to the Court. Such a substantive preference

for class actions might also burden the courts with cases

not otherwise suited for class treatment.

It seems similarly incongruous to apply a different

standard to employment tests than is applied to other

forms of job requirements or hiring practices. Again, if

Title VII requires evidence of intent as outlined in

Furnco, 46 U.S.L.W. at 4969, it is difficult to imagine

what theory would justify the elimination of such a

4See p. 28, supra.

36

fundamental requirement only when employment tests

are in question.

The standards set forth in Furnco, on the other

hand, may be applied equally to the problems which

the Griggs analysis was meant to remedy — the

difficulty of proving actual intent and the discrimina-

tory impact of unexplained employment standards.

Under Furnco, unlawful intent may be implied unless

the employer offers a non-discriminatory explanation

satisfactory to the trier of fact. Title VII does not,

however, empower a court to “impose a duty to adopt

a hiring procedure that maximizes hiring of minority

employees.” /d. at 4969, in the absence of such implied

intent.

Thus, even if the lower court was correct in applying

the Griggs standard to the present case, Griggs, like

McDonnell Douglas, should be understood and applied

in light of Furnco.

C.Griggs Must be Applied to the Transit

Authority’s Hiring Practices as a Whole

Rather Than to Individual “Subtests”’.

Even if this Court determines that Griggs provides

the appropriate standard for review of this case, and

that that standard is not modified by the teaching of

Furnco, the Transit Author*»’s policy may yet be

upheld. District court and ~+ of appeals decisions

since Griggs have been asked to apply the Griggs

analysis to an infinite variety of circumstances. As in

the present case, the employment examination analysis

designed for Griggs does not always fit well with such

variant circumstances. Courts seem to agree, however,

37

that the Griggs standard must be applied to the

employer’s hiring policies as a whole, and not to

individual rules. In other words, an entire testing

program and its effects upon hiring should be ex-

amined, as opposed to focusing upon individual ques-

tions contained in the examination and the disparate

impact such a single question or requirement might

have. For example, in Smith v. Troyan, 520 F.2d at

492 (Sth Cir. 1975), the Fifth Circuit determined that

use of the Army General Classification Test (AGCT) as

one means of judging the qualifications of police force

recruits was not a violation of Title VII simply because

it had a disparate impact on blacks and women. Rather,

the Court stated that the disparate impact must be

found in hiring and not in the results of any specific

test or requirement. Thus, the Court concluded:

That blacks fare less well than whites on the

AGCT, a “subtest” in the process of hiring East

Cleveland police officers, is insufficient in itself to

require defendants to justify the AGCT as being

job-related. Carried to its logical extreme, such a

criterion would require the elimination of indi-

vidual questions marked by poorer performance by

a racial group, on the ground that such a question

was a “‘subtest”’ of the “subtest.”

520 F.2d at 498.

Similarly, the District Court in Friend vy. Leidinger,

446 F. Supp. 361 (E.D.Va. 1977), refused to find Title

VII violations in each individual employment standard

or requirement, but rather reasoned that:

The Court is of the opinion that it is the entire

selection procedure, not any given segment of it,

that must be examined for adverse impact under

Title VII. The fact that any stage in a selection

procedure has an apparent adverse impact upon

38

blacks could be nullified by a corrective procedure

which would have an apparent adverse impact

upon whites, so that the final result would show

no racial bias.

447 F. Supp. at 372.

The employment policy now in question before this

Court is in actuality no more than a “subtest” of the

type addressed in Smith v. Troyan, supra, and Friend v.

Leidinger, supra. Determining whether a job applicant is

an addict, ex-addict or methadone user is only one

factor in a long list of considerations addressed by the

Transit Authority in each employment decision. When

the Transit Authority’s entire selection and hiring

procedure is reviewed, it will be found that the Transit

Authority, as acknowledged but not considered relevant

by the District Court, 399 F. Supp. at 279, has an

exemplary record of minority employment in all levels

of responsibility .?°

Under such circumstances it is submitted that this

Court should conclude, as did the Smith and Friend

courts, that a prima facie case has not been established.

D.Title VII, as applied to State and Local

Governmental Employers, Requires Proof of

Intent to Discriminate, Not Present in This

Case.

In 1972 Congress amended Title VII to cover, for the

first time, discrimination in employment by states and

their political subdivisions. Equal Employment Oppor-

tunities Act of 1972, P.L. 92-261, 86 Stat. 103,

(amendment to §701i(a), 42 U.S.C. §2000e(a)). The

*5See pp. 3 and 33, infra.

eet Ceres ee em

39

House of Representatives Committee Report relating to

this particular provision of the 1972 Amendments

clearly indicated that the Fourteenth Amendment to

the Constitution was the intended source of Congress’

power:

The expansion of Title VII coverage to State

and local government employment is firmly em-

bodied in the principles of the Constitution of the

United States. The Constitution has recognized

that it is inimical to the democratic form of

government to allow the existence of discrimina-

tion in those bureaucratic systems which most

directly affect the daily interactions of this

Nation’s citizens. The clear intention of the

Constitution, embodied in the Thirteenth and

Fourteenth Amendments is to prohibit all forms of

discrimination.

Legislation to implement this aspect of the

Fourteenth Amendment is long overdue, and the

committee believes that an appropriate remedy has

been fashioned in this bill.

H.R. Rep. No. 92-238, p. 19 (1971); 1972 U.S. Code

Cong. & Admin. News 2137, 2154.

Thus, when faced with the necessity of determining

the constitutional source of Congress’ power to extend

Title VII to state and local government in Fitzpatrick v.

Bitzer, 427 U.S. 445 (1976), this Court concluded that:

There is no dispute that in enacting the 1972

Amendments to Title VII to extend coverage to

the States as employers, Congress exercised its

power under §5 of the Fourteenth Amendment.

See, e.g., H.R. Rep. No. 92-238, p. 19 (1971). Cf.

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

(1976).

427 U.S. at 453 note 9.

ee ear

40

The Bitzer Court’s reference to National League of

Cities v. Usery, 426 U.S. 833 (1976), is also instructive

as to the constitutional source of the 1972 amendment.

In National League of Cities this Court struck down an

attempt by Congress to use its Commerce Clause

powers to regulate employment decisions of state and

local governments. 426 U.S. at 855. The Court reasoned

that any federal regulation which operates “to directly

displace the States’ freedom to structure integral

operations in areas of traditional governmental func-

tions,... are not within the authority granted Congress

by [the Commerce Clause].” /d. at 852.

It would appear, therefore, that the Fourteenth

Amendment is not only the intended constitutional

basis for the extension of Title VII to state and local

governments, but that the Commerce Clause, upon

which the remainder of Title VII is based, could not

provide an alternative source of power.

As discussed at length above, the traditional Griggs

employment test standard of review, if held to be

unrefined by Furnco. supra, has been generally held not

to require proof of intent to discriminate. In fact, the

District Court concluded in this matter that evidence of

intent was irrelevant based upon its understanding of

Griggs, 414 F. Supp. at 278.

A different standard, however, requiring proof of

intent, has been applied in cases arising under 42 U.S.C.

§1983 and the Fourteenth Amendment. Keyes ».

School Dist. No. 1, 413 U.S. 189, 205 (1973);

Jefferson v. Hackney, 406 U.S. 535, 548 (1972); Wright

vy. Rockefeller, 376 U.S. 52 (1964); Akins v. Texas, 325

U.S. 398, 403-404 (1945). More recently, the Supreme

Court, in Washington v. Davis, 426 U.S. 229 (1976) has

4]

reaffirmed the Constitutional equal protection intent

requirement, in this instance as applied under the Fifth

Amendment. As to the contention that such a holding

creates a disparaty between treatment of a discrimina-

tion claim under the Constitution as opposed to Title

VII, the Washington v. Davis court stated simply that:

“We have never held that the Constitutional

standard for adjudicating claims of invidious racial

discrimination is identical to the standards appli-

cable under Title VII, and we decline to do so

today.”

426 U.S. at 239.

The question, then, is how can Title VII be

interpreted, as applied to state and local governments,

to relieve the claimant of proving intent, when the

constitutional basis for that provision, the Fourteenth

Amendment, has been repeatedly held to require proof

of intent? At least three district courts have concluded

that it cannot. Scott v. City of Anniston, Alabama, 430

F. Supp. 508 (N.D. Ala. 1977); Blake v. City of Los

Angeles, 435 F. Supp. 55 (C.D. Cal. 1977): Friend y.

Leidinger, 446 F. Supp. 361 (E.D. Va. 1977).

The simple conclusion, reached by each of these

district courts, is that “a statute can be no broader than

its Constitutional base,” 430 F. Supp. at 515, and that:

It follows that in Title VII cases against a state

or local government the statute is to be construed

in accordance with the Constitutional test adopted

by the Court in Washington, supra, i.e., there must

be proof of discriminatory racial purpose.

Id. See also Friend, 446 F. Supp. at 386, and Blake,

435 F. Supp. at 64.

In view of the District Court’s finding in the present

case that the Transit Authority did not employ the

42

challenged classification with any racially discriminatory

intent, 414 F. Supp. at 279, the analysis set forth

above, if accepted by this Court, would require not

only reversal, but entry of judgment in favor of the

Petitioner.

CONCLUSION

For the reasons set forth herein, APTA respectfully

requests that this Court reverse the judgments of the

lower courts and enter judgment in favor of the

Petitioner.

Respectfully submitted,

W. STELL HUIE

DAVID E. FOX

ROBERT P. COCHRAN

Attorneys for Amicus Curiae

American Public Transit Association

1101 Connecticut Ave., N.W.

Washington, D.C. 20036

Dated: September 8, 1978