United States Court of Appeals 

For the First Circuit 

No. 15-2015 

RONNIE JONES; RICHARD BECKERS; WALTER R. WASHINGTON; WILLIAM E. 

BRIDGEFORTH; SHAWN N. HARRIS; EUGENE WADE; GEORGE C. DOWNING, 

JR.; CLARARISE BRISTOW; MASSACHUSETTS ASSOCIATION OF MINORITY 

LAW ENFORCEMENT OFFICERS; RACHELLE COUCH; KERI HOGAN, 

Plaintiffs, Appellants, 

v. 

CITY OF BOSTON; BOSTON POLICE DEPARTMENT; WILLIAM B. EVANS, 

Commissioner of the Boston Police Department, 

Defendants, Appellees. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. Douglas P. Woodlock, U.S. District Judge] 

Before 

Howard, Chief Judge, 

Selya and Kayatta, Circuit Judges. 

 Lisa J. Pirozzolo, with whom Jared B. Cohen, Jeffrey S. 

Olshan, Wilmer Cutler Pickering Hale and Dorr LLP, Iván EspinozaMadrigal, Oren M. Sellstrom, Laura Maslow-Armand, and Lawyers' 

Committee for Civil Rights and Economic Justice were on brief, for 

appellants. 

 Stephen S. Churchill and Fair Work, P.C. on brief for Fair 

Employment Project, National Workrights Institute, Jewish Alliance 

for Law and Social Justice, Massachusetts Law Reform Institute, 

Boston Society of Vulcans of Massachusetts, Union of Minority 

Neighborhoods, Massachusetts Employment Lawyers Association, 

Brazilian Worker Center, Massachusetts Black Lawyers Association, 
Fair Housing Center of Greater Boston, and Community Change, Inc., 

amici curiae. 

 Michael L. Foreman and Pennsylvania State University, 

Dickinson School of Law, Civil Rights Appellate Clinic on brief 

for National Employment Lawyers Association, Equal Justice 

Society, Justice at Work, and American Civil Liberties Union of 

Massachusetts, amici curiae. 

 Helen G. Litsas, with whom Law Office of Helen G. Litsas was 

on brief, for appellees. 

December 28, 2016 
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KAYATTA, Circuit Judge. Making their second appearance 

before this court are eight police officers, a police cadet, and 

a provisionally hired 911 operator (collectively, the "Officers"), 

who claim that they suffered adverse employment actions by the 

Boston Police Department ("Department") as a result of a racially 

discriminatory hair drug test. Eschewing any claim that the 

Department discriminated against them intentionally, the Officers 

advance a so-called disparate impact claim under Title VII of the 

Civil Rights Act of 1964. See 42 U.S.C. § 2000e-2(k). 

Adjudicating the question of liability under such a claim begets 

a three-prong, sequential inquiry. See Lopez v. City of Lawrence, 

823 F.3d 102, 110–11 (1st Cir. 2016). In our prior opinion, we 

held that the Officers--all of whom identify as black--had 

established under the first prong of that inquiry that the hair 

drug test caused a cognizable disparate impact. See Jones v. City 

of Boston ("Jones I"), 752 F.3d 38, 60 (1st Cir. 2014). We remanded 

the case to the district court to consider the next two prongs by 

determining, either on summary judgment or after trial, as 

appropriate: (1) whether the Department's drug testing program 

was job related and consistent with business necessity; and, if 

so, (2) whether the Department refused to adopt an available 

alternative that would have met the Department's legitimate needs 

while having less of a disparate impact. 
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On remand, the district court again entered summary 

judgment for the Department, concluding that the evidence could 

not support a jury verdict for the Officers on either of the 

remaining prongs of the disparate impact liability inquiry. We 

now vacate that judgment, albeit only in part. Although the drug 

test was indisputably job related and its use was consistent with 

business necessity, a reasonable factfinder could nevertheless 

conclude that the Department refused to adopt an available 

alternative to the challenged hair testing program that would have 

met the Department's legitimate needs while having less of a 

disparate impact. Our reasoning follows. 

I. Background 

Our prior opinion details much of the relevant factual 

background. See Jones I, 752 F.3d at 42–46. In a nutshell, from 

1999 to 2006, the Department administered a hair drug test to 

thousands of officers, cadets, and job applicants. The testing 

procedure called for the gathering of a hair sample, which was 

then "washed" and analyzed for the presence of cocaine, marijuana, 

opiates, PCP, and amphetamines. Upon detecting cocaine in a hair 

sample, a licensed physician would determine whether legally 

administered medication could have caused the positive result. 

The individual who tested positive was also permitted to submit a 

second sample for a so-called "safety-net" test. 
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The results were negative for over 99% of the white 

individuals tested and over 98% of the black individuals tested. 

The Officers now before us, however, were among the fewer than two 

percent of black individuals who tested positive for cocaine. As 

a result, nine lost a job or job offer, and one received an unpaid 

suspension subject to participation in a drug rehabilitation and 

testing program. 

In the first go-around, the district court relied on a 

rule of thumb promulgated by the U.S. Equal Employment Opportunity 

Commission ("EEOC") to declare that there was no actionable 

disparate impact, because the one-percent difference in pass rates 

between white and black officers was so miniscule as to be of no 

practical significance. We, in turn, found the EEOC rule of thumb 

not controlling. See id. at 52. Instead, because the difference 

in exam results by race was indisputably statistically 

significant, we concluded that the Officers prevailed as a matter 

of law on the first prong of the three-prong disparate impact 

inquiry. Id. at 60. On remand, the case was randomly assigned to 

a new district court judge in accord with the district's customary 

practice. 

In short order, the parties marshalled their evidence, 

mostly in the form of competing expert opinions concerning the 

reliability of the test, together with affidavits from the Officers 

denying drug use. In a lengthy and attentive opinion, the district 
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court found that no reasonable jury could rule in favor of the 

Officers on either of the two remaining prongs. Specifically, the 

court found that the Department "demonstrated . . . the business 

necessity and job relatedness of the hair drug test," Jones v. 

City of Boston, 118 F. Supp. 3d 425, 440 (D. Mass 2015), and that 

the Officers failed to offer "any compelling evidence of the 

[Department's] refusal to consider and adopt an alternative 

equally valid procedure," id. at 446. The Officers appeal both 

findings. 

II. Discussion

Ruling on a motion for summary judgment, the district 

court was required to assume that any disputes of material fact--

including conflicting opinions offered by competent experts--could 

be resolved by the jury in the Officers' favor. See CortésIrizarry v. Corporación Insular de Seguros, 111 F.3d 184, 191 (1st 

Cir. 1997). On appeal, we must also so assume, see Sensing v. 

Outback Steakhouse of Fla., LLC, 575 F.3d 145, 153 (1st Cir. 2009), 

and we consider the summary judgment ruling de novo, Martinez v. 

Petrenko, 792 F.3d 173, 179 (1st Cir. 2015). 

A. Job-Relatedness and Consistency with Business Necessity

We consider first whether a reasonable jury could find 

that the Department's use of the hair drug test to terminate or 

suspend officers was "job related . . . and consistent with 

business necessity." 42 U.S.C. § 2000e-2(k)(1)(A)(i). The parties 
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agree that "abstention from drug use is an important element of 

police officer behavior," and is thus job related. The Officers 

also quite understandably concede that selecting police officers 

for retention or discharge based on that job-related behavior is 

consistent with business necessity. The pivotal question, 

therefore, is whether a reasonable jury could nonetheless find 

that the hair drug test as used by the Department was so unreliable 

that its use did not meaningfully further the Department's 

legitimate need for a drug-abstaining police force. See Jones I, 

752 F.3d at 54 (suggesting that the hair test would have to be "so 

unreliable that its results have no significant correlation with 

drug use"); see also Lopez, 823 F.3d at 111 ("[A] selection 

practice is valid if it materially enhances the employer's ability 

to pick individuals who are more likely to perform [their jobs] 

better than those not picked." (emphasis added)). 

Certainly, the evidence would allow a reasonable jury to 

find that the hair test as employed by the Department was not 100% 

reliable because (according to the Officers' experts) it could not 

always distinguish between ingestion of drugs and contamination of 

the hair by environmental exposure to drugs. The Officers' experts 

further testified that this inability to distinguish unerringly 

between ingestion and exposure could well have caused the disparate 

impact because, at the margins, black hair, especially if damaged 

by some cosmetic treatments more commonly used by black 
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individuals, is more likely to absorb and retain contaminants to 

which the hair might be exposed. 

So far, so good for the Officers. The problem, though, 

is that a finding that all of the test's few positive results might 

not have accurately distinguished between ingestion and exposure 

logically falls short of establishing that using the test to move 

towards a drug-abstaining police force did not further the 

Department's important needs. To evaluate the reliability of the 

hair drug test in this context, one must consider the test as a 

whole and the relative numbers of errors among both the positive 

and negative results. 

The Department employs thousands of officers. It would 

like to know which officers abstain from drug use and which do 

not. As best the record reveals--and no party argued otherwise to 

the district court--the negative hair test results were all 

accurate. This means that the hair test was accurate in the 

overwhelming majority of cases, reliably confirming that almost 

all officers, irrespective of race, very likely abstained from 

using the tested-for drugs within as many as ninety days prior to 

the test. This undisputed high degree of accuracy is far beyond 

what we have recently and repeatedly indicated satisfies the 

employer's burden of proving that a challenged employment practice 

furthers an important need of the employer. See Jones I, 752 F.3d 

at 54; see also Lopez, 823 F.3d at 111. It also eliminates any 
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reason to look at the technical guidance for assessing job 

relatedness promulgated by the EEOC. See Lopez, 823 F.3d at 112. 

Of course, unless the test was 100% accurate at 

distinguishing exposure from ingestion, obtaining a drugabstaining police force in this manner could well have been unfair 

to some of the few officers who received positive results.1 As we 

will discuss, this potential unfairness was the focus of a state 

administrative "just cause" adjudication. The second prong of the 

disparate impact inquiry, though, focuses only on the reliability 

of the test in meeting the employer's needs. See Albemarle Paper 

Co. v. Moody, 422 U.S. 405, 431 (1975). And as we have previously 

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

need be anything near 100% reliable (few tests are) to be 

consistent with business necessity (keeping in mind that the 

presence of an alternative method that would have had less of a 

disparate impact will still be relevant under the third prong of 

the inquiry). 

Notwithstanding the foregoing reasoning, the Officers 

argue that a ruling in 2013 by the Massachusetts Civil Service 

Commission ("MCSC") collaterally precludes the Department from 

claiming that the hair test was job related and consistent with 

business necessity. In that ruling, the MCSC overturned most (but 

 1 The Officers do not claim that all of the positive results 

were inaccurate. 
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not all) of the Officers' dismissals, determining that a positive 

hair test was insufficiently reliable by itself to establish just 

cause for termination by a preponderance of the evidence. Both 

the Massachusetts Superior Court, see Bos. Police Dep't v. Civil 

Serv. Comm'n, Nos. 13-1250-A & 13-1256-A, slip op. at 20–21 (Mass. 

Super. Ct. Oct. 6, 2014), and the Massachusetts Court of Appeals, 

see Thompson v. Civil Serv. Comm'n, 59 N.E.3d 1185, 1190 (Mass. 

App. Ct. 2016), have since affirmed the MCSC's conclusions 

regarding the reliability of the positive results generated by the 

hair drug test. 

We review the applicability vel non of issue preclusion 

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

(1st Cir. 1995). A party advocating for issue preclusion must 

show (among other things) that "the issues raised in the two 

actions are the same" and "the determination of the issue was 

necessary to that judgment." Manganella v. Evanston Ins. Co., 700 

F.3d 585, 591 (1st Cir. 2012). "The identity of the issues need 

not be absolute; rather, it is enough that the issues are in 

substance identical." Id. (citing Montana v. United States, 440 

U.S. 147, 155 (1979)). 

The issue before the MCSC was whether a positive test 

result by itself was just cause for terminating a tenured public 

employee. That is simply not an issue in this case. The Officers 

nevertheless point out that the MCSC made a subsidiary finding 
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that the positive results failed to show that drug ingestion was 

more likely than not. There is nothing in this finding, though, 

that conflicts with the district court's central conclusion that 

use of the hair drug test furthered the Department's legitimate 

need to have a police force comprised of officers who abstain from 

using the tested-for drugs. Indeed, the MCSC expressly stated 

that the test "has a legitimate place in narrowing down which of 

its few officers may reasonably be suspected of abusing illicit 

drugs." This statement supports, rather than precludes, the 

district court's conclusion that the use of the drug test furthered 

a significant employer need. The MCSC parted company with the 

district court only to the extent that the MCSC was required to 

ask a further question not germane to the district court's inquiry, 

i.e., whether a reasonable suspicion of illicit drug use was "just 

cause" for terminating a tenured public employee. 

We therefore agree with the district court that the 

record in this case (even including the MCSC's findings) renders 

unreasonable any claim that the Department has not proved that its 

use of the hair test was job related and consistent with business 

necessity. 

B. Refusal to Adopt Available Alternative that Would Have Met 

Employer's Legitimate Needs with Less Disparate Impact

Our conclusion that a reasonable jury would have to find 

that the hair drug test was job related and consistent with 
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business necessity does not mean that it was necessarily lawful to 

use the disparately impactful test. Rather, it brings us to the 

third and final prong of the disparate impact liability inquiry: 

whether the evidence could support a jury finding that the 

Department nevertheless "refuses to adopt an available alternative 

employment practice that has less disparate impact and serves the 

employer's legitimate needs." Ricci v. DeStefano, 557 U.S. 557, 

578 (2009) (citing 42 U.S.C. § 2000e-2(k)(1)(A)(ii), (C)). 

Application of this prong in this case turns on the answers to 

three questions: First, does the record contain evidence that 

would allow a jury to find that there was an "alternative" method 

of meeting the Department's legitimate needs? Second, does the 

record also allow a jury to find that adopting that alternative 

method would have had less of a disparate impact? And finally, 

could a jury find that the Department "refuses to adopt" that 

alternative method? We consider each question in turn. 

1. Could a reasonable jury find that an alternative 

drug-testing method would have met the Department's 

legitimate needs?

With relatively little explanation or elaboration, the 

Officers' opening brief offers four proposed alternatives to the 

hair drug test, only one of which it subsequently contends the 

Department refused to adopt even though it would have been equally 

effective in meeting the Department's needs and less disparately 

impactful. The parties refer to that alternative as "hair testing 
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plus urinalysis." By this, the Officers mean the following: 

first, administer the hair test to all officers (which will clear 

over 98% of the individuals tested); then, administer a follow-up 

series of random urinalysis tests only to those officers who 

receive positive results on the hair test; and discharge (or 

suspend, pending rehabilitation and further drug testing) only 

those who flunk one of the follow-up random urinalysis tests.2 

This approach would have fully replicated the results of 

the hair test alone except, a jury might find, it would have 

cleared those who received a positive hair test yet were likely 

not using cocaine. And if the urinalysis tests continued randomly 

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

 2 The district court found that the Officers failed to show 

that use of urinalysis testing in lieu of hair testing would have 

sufficed. Urinalysis detects only very recent cocaine use (within 

two days), whereas hair testing detects cocaine use for a much 

longer period (within as many as ninety days). If urinalysis were 

administered frequently enough to all officers, it might be 

prohibitively expensive. See Watson v. Fort Worth Bank & Tr., 487 

U.S. 977, 998 (1988) (plurality opinion) ("Factors such as the 

cost or other burdens of proposed alternative selection devices 

are relevant in determining whether they would be equally as 

effective as the challenged practice in serving the employer's 

legitimate business goals."). Particularly if it were 

administered on thousands of occasions, urinalysis might be easier 

to tamper with. And as a more intrusive test (especially if done 

in a manner that avoids tampering), its use without individualized 

suspicion might well be legally problematic. See Guiney v. Police 

Comm'r, 582 N.E. 2d 523, 526–27 (Mass. 1991). The Officers concede 

little of the foregoing, but nevertheless do not press on appeal 

the substitution of urinalysis as an alternative to hair testing. 
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a period of drug abstention equal to that confirmed by a negative 

hair test. 

Would this alternative have equally met the Department's 

needs? A reasonable jury might so find. Keep in mind that the 

Department already used a series of negative urinalysis tests as 

a basis to reinstate suspended officers who tested positive on the 

hair test: officers who tested positive on the hair test under 

the challenged practice could choose to admit to drug use; receive 

a forty-five day unpaid suspension; undergo drug rehabilitation; 

and submit to frequent, random urinalysis for three years. The 

only difference between the challenged practice and the proposed 

"hair testing plus urinalysis" alternative is that firing (or 

suspension and drug rehabilitation) preceded the urinalysis 

testing in the actual regime, whereas no change in employment 

status would have occurred until after urinalysis confirmation in 

the alternative scheme. Additionally, Department policy has long 

permitted supervisors with a reasonable suspicion that an officer 

is using drugs to order urinalysis screening of that officer. That 

the Department used urinalysis in these scenarios--where officers 

had already tested positive for drugs or were reasonably suspected 

of using drugs--naturally suggests that the Department viewed 

random urinalysis as an acceptably reliable method for detecting 
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drug use on a targeted (rather than mass) basis.3 To the extent 

that a concern with urinalysis is its manipulability, a jury could 

find that the more frequent and randomized nature of the Officers' 

proposed urinalysis program would have sufficiently minimized such 

a concern.4

Crucially, the alternative would have retained the main 

benefit of the challenged drug testing program: using a relatively 

unintrusive, easy-to-supervise hair test to generate the negative 

results that confirm that almost all officers, regardless of race, 

do not use illegal drugs. All in all, we think that this is a 

close enough call that a jury could conclude that the Officers' 

proffered alternative equally would have met the Department's 

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

evidence, it might conclude that the alternative test method would 

have saved the Department from losing several veteran officers who 

were not using cocaine. 

 3 Similarly, while it may be within the scope of inquiry to 

consider the putative costs of the Officers' proposed alternative, 

see Watson, 487 U.S. at 998 (plurality opinion), a reasonable jury 

could find that there would have been no material cost 

differential, especially given that the Department had shown a 

willingness to assume those costs by virtue of the rehabilitation 

option that it offered (and continues to offer) to all officers 

who tested positive on the hair test. 

4 We note that the challenged hair test program itself was 

not intended to catch all use of illegal drugs. Rather, the aim 

was to ensure that there was at least a sixty- to ninety-day period 

of abstention. 
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2. Could a reasonable jury find that the alternative 

would have generated less of a disparate impact? 

In Jones I, we observed that "[a] plaintiff who subjects 

a defendant's job-related practice to the sensitivity of a large 

sample analysis can fairly be required to show through statistical 

evidence, and with equal confidence, that the proffered 

alternative practice will have a smaller impact, except where the 

alternative is self-evidently incapable of causing a 

differential." 752 F.3d at 53. The Department reads this 

statement as always requiring a new, large-sample statistical 

analysis that specifies the precise impact of an alternative 

practice. We reject this overly narrow reading of the manner by 

which statistical evidence can be marshalled. Rather, the 

plaintiff in some situations can use the statistically determined 

impact of the challenged process as a baseline, and demonstrate 

that the alternative practice must necessarily be less. Suppose, 

for example, that an employer selected job applicants by height, 

creating a disparate gender impact revealed through a large-sample 

statistical analysis. If the proposed alternative were to use a 

random selection tool (such as a coin flip), it would be selfevident that the impact would be less; hence, there would be no 

need for actually running the numbers through a new analysis. 

Here, if the jury were to believe the Officers and their 

experts rather than the Department and its experts, it would be 
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self-evident that the "hair testing plus urinalysis" alternative 

would have generated less of a disparate impact than that revealed 

by the large-sample statistical analysis of the hair drug test 

results. The jury could find that the hair test alone can generate 

false positives for some black individuals, that black individuals 

have no greater likelihood of receiving a false positive result 

from urinalysis than do white individuals,5 and that the Officers 

(who swear that they did not use cocaine) more likely than not 

received false positive results that urinalysis would have 

identified as such. Given such findings, the alternative would 

necessarily have resulted in the termination of a lower ratio of 

black officers to white officers. That is, because the statistical 

analysis of the challenged practice shows an overall disparate 

impact of X, where the number of black officers with positive 

results was Y, a reduction in Y alone would necessarily have 

resulted in an overall disparate impact of less than X. 

None of this is to say that the jurors must so find. 

The jury could conclude, for example, that the hair test as 

administered by the Department did not generate false positives 

based on race, and hence, that the alternative would not have had 

a lesser disparate impact. The point is that, though the evidence 

is conflicting, the mathematical import of either conflicting view 

 5 This point is undisputed. 
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is self-evident. A jury could therefore find that the Officers' 

proposed alternative would have had less of a disparate impact 

than that resulting from the challenged practice. 

3. Could a reasonable jury find that the Department 

"refuses" to adopt the alternative? 

Title VII requires as an element of a successful 

disparate impact claim a finding that "the [employer] refuses to 

adopt such alternative employment practice." 42 U.S.C. § 2000e2(k)(1)(A)(ii). This language is susceptible to a number of 

different readings. Does an employer only "refuse to adopt" an 

alternative practice if the employer knows it will meet its needs 

and have less of a disparate impact? If this were a correct 

reading, then a finding for plaintiffs on the third prong of the 

disparate impact inquiry would effectively constitute a finding of 

intentional discrimination. Cf. Wards Cove Packing Co. v. Atonio, 

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

alternative "would belie a claim by petitioners that their 

incumbent practices are being employed for nondiscriminatory 

reasons"), superseded by statute, Civil Rights Act of 1991, Pub. 

L. No. 102-166, 105 Stat. 1074; Albemarle Paper Co., 422 U.S. at 

425 ("Such a showing would be evidence that the employer was using 

its tests merely as a 'pretext' for discrimination."). As we have 

previously observed, however, "proof of a disparate impact claim 
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requires no proof of intentional discrimination." Jones I, 752 

F.3d at 50; see also Ricci, 557 U.S. at 583. 

Other possible readings of the statute remain. Is it 

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

its availability have been known? Must it be specifically 

proposed, like a dinner special at a restaurant, or is it enough 

that it was on the known menu of options and not selected? What 

are we to make of the statute's use of the present tense 

("refuses")? The parties provide no express discussion of these 

nuances. Indeed, their briefs contain no acknowledgement that 

there are meaningfully different possible readings of the 

statutory text. The only cases upon which the Officers rely are 

the Seventh Circuit's decisions in Adams v. City of Chicago, 469 

F.3d 609 (7th Cir. 2006), and Allen v. City of Chicago, 351 F.3d 

306 (7th Cir. 2003). The Department, too, urges us to follow the 

Seventh Circuit, pointing specifically to Allen. The formulation 

employed in Allen and repeated in Adams is that "the statutory 

scheme requires plaintiffs to demonstrate a viable alternative and 

give the employer an opportunity to adopt it." Adams, 469 F.3d at 

613 (quoting Allen, 351 F.3d at 313). Adams elsewhere seems to 

suggest that the employer is given an opportunity to adopt the 

alternative if the employer "had an opportunity" to adopt it, see 

id. at 613, 616, and that such an "opportunity" existed if the 
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alternative was "available," see id. at 614, and the employer was 

free to adopt it, see id. at 615 n.4. 

Confronted with the limited briefing on point, and the 

parties' consensus in pointing to Seventh Circuit precedent, we 

will follow the path of Allen and Adams by default (rather than by 

decision). We asked at oral argument whether there was evidence 

in the record that the "hair testing plus urinalysis" alternative 

was available to the Department at a time relevant to this lawsuit. 

The Officers' counsel directed us only to the fact that in 2003, 

they gave the Department an affidavit signed by their expert, 

Dr. Kidwell, proposing the alternative. This affidavit by 

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

district court. The affidavit appears to be an expert disclosure 

detailing Dr. Kidwell's opinions on hair testing as well as "more 

enlightened approach[es] to drug testing," which include hair 

testing followed by random, frequent urinalysis. It is dated 

June 3, 2003. Plaintiffs' "Additional Statement of Material Facts" 

states that "[a]s early as 2003, Dr. Kidwell suggested alternative 

methods" of testing for drug use to the Department, pointing to 

this affidavit as evidence of the fact. The Officers make no claim 

that the alternative was otherwise "available" before Dr. Kidwell 

proposed it. Exactly when in 2003 the suggestion was made is not 

revealed. We infer that it was when the affidavit was served on 

the Department's counsel sometime that year. In any event, the 
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affidavit does indeed propose that the Department could use what 

we refer to as the "hair testing plus urinalysis" alternative. 

Accordingly, we agree with the Officers that the summary 

judgment record reveals a material dispute of fact concerning 

whether, sometime in 2003, the Department, by continuing to 

administer the challenged hair test, "necessarily . . . refused to 

adopt" the alternative made available to it by the suggestion of 

Dr. Kidwell. See Ricci, 557 U.S. at 589. The parties appear to 

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

termination or suspension after Dr. Kidwell submitted his 

affidavit to the Department in 2003. Those Officers, but not the 

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

disparate impact inquiry. Precisely which Officers' claims 

survive based on this timeline can be determined in the district 

court on remand. 

III. Conclusion 

In sum, we affirm the district court's ruling on summary 

judgment that the Department's use of the hair test was job related 

and consistent with business necessity, but we vacate the district 

court's grant of summary judgment to the Department on the third 

prong of the disparate impact inquiry. The record contains 

sufficient evidence from which a reasonable factfinder could 

conclude that hair testing plus a follow-up series of random 

urinalysis tests for those few officers who tested positive on the 
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hair test would have been as accurate as the hair test alone at 

detecting the nonpresence of cocaine metabolites while 

simultaneously yielding a smaller share of false positives in a 

manner that would have reduced the disparate impact of the hair 

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

factfinder could conclude that the Department in 2003 refused to 

adopt this alternative. We remand for further proceedings 

consistent with this opinion. The district court will decide at 

the time of final judgment whether costs of this appeal are to be 

shifted in favor of a finally prevailing party under any applicable 

statute.