New York City Transit Authority v. Beazer Brief for Respondents
Public Court Documents
January 1, 1978
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Brief Collection, LDF Court Filings. New York City Transit Authority v. Beazer Brief for Respondents, 1978. 2e5dd970-bf9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/55affcd5-fb47-4fb6-8cf2-d091da2aa44e/new-york-city-transit-authority-v-beazer-brief-for-respondents. Accessed October 11, 2025.
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^upnw (Emin o! % iUtiteft States
October Term, 1978
No. 77-1427
New Y ork City Transit Authority, et al.,
Petitioner#,
-v.-
Carl Beazer, et al.,
Respondents.
BRIEF FOR RESPONDENTS
D eborah M. Greenberg
E ric D. Dauber
Patrick R. Cowlishaw
Legal Action Center
19 West 44th Street
New York, New York 10036
E lizabeth B artholet
M ichael Meltsner
M ark C. M orrh-
Attorneys for Respondents
TABLE OF CONTENTS
QUESTIONS PRESENTED .................................. 1
STATEMENT ........................................................ 3
Introduction ........................................................ 4
Proceedings and Decisions Below .................... 6
A. District Court Proceedings ............ 6
B. District Court Decisions ............ 9
C. Court of Appeals Decision ............ 1 1
Fact Findings and Record Below ................... 12
A. The Transit Authority's Absolute Metha
done Policy ....................................... 12
B. The Transit Authority's Failure to
Assess the Need for Its Methadone
Policy ................................................ 16
C. The Nature of Transit Authority
Employment .................................... 25
1. Job positions and employment
structure ............................ 26
2. Employment of disabled
persons ....................................... 30
D. The Suitability of Methadone Main
tenance Patients for Employment
at the Transit Authority ................. 33
- 11 -
1. Origins and rationale of metha
done maintenance treatment 34
2. Physical abilities of metha
done maintenance patients . . . . 37
3. Success of methadone main-
tenanee treatment ................... 42
E. Ability of the Transit Authority to
Select Particular Methadone Main
tenance Patients for Employment . .
SUMMARY OF ARGUMENT
ARGUMENT
I. CONGRESS HAS JUST EXPLICITLY DECLARED
THAT PRACTICES LIKE THAT OF THE TRAN
SIT AUTHORITY ARE UNLAWFUL UNDER
THE REHABILITATION ACT OF 1973. THE
QUESTION OF THE CONSTITUTIONALITY
OF THE POLICY IS OF NO FUTURE PRAC
TICAL SIGNIFICANCE AND THE WRIT SHOULD
BE DISMISSED ................................................ 65
II. THE DECISIONS BELOW THAT THE TRANSIT
AUTHORITY'S METHADONE POLICY IS UN
CONSTITUTIONAL REST SOUNDLY ON APPLI
CATION OF THE TRADITIONAL "RATIONAL
BASIS" STANDARD TO OVERWHELMING
EVIDENCE AND MUST BE AFFIRMED ------ 72
A. The Courts Below Applied the Rational
Basis Standard of Constitutional Review . 74
- I ll -
B. The Courts Below Correctly Concluded
That The Transit Authority's Methadone
Policy Bore No Rational Relationship to
Any Legitimate Governmental Interest . . 78
1. The district court findings of fact
rest on overwhelming evidence com
piled through thorough investigation
and warrant this Court's acceptance 80
2. The legal conclusions below that the
methadone policy violates the Equal
Protection test of rationality are
correct .............................................. 89
a. An individual's past or present
methadone maintenance, stand
ing alone, implies no risk of
poor performance or misconduct 91
b. Identifying employable methadone
patients is of negligible admini
strative cost to the Transit
Authority .................................... 94
c. The constitutional rulings below
do not rest on unsettled scientific
questions .................................... 97
d. The decisions below in no way
affect the safety of the Transit
Authority's operations ............... 99
C. Conclusion .............................................. 102
»
- IV -
III. THE DISTRICT COURT WAS CORRECT IN
HOLDING THAT THE TRANSIT AUTHORITY'S
POLICY VIOLATED TITLE VII IN THAT IT
HAD A RACIALLY DISCRIMINATORY IMPACT
AND WAS UNRELATED TO BUSINESS
NECESSITY ..................................................... 103
A. The Facts as Found by the District Court,
Unchallenged Below, Are Sufficient to
Support a Finding of Disparate Impact of
the Transit Authority's Policies on
Minorities ................................................... 107
B. The Transit Authority Made No Showing
That Its Methadone Policy was Job-Related 114
C. Extension of Title VII Coverage to Public
Employers is a Valid Exercise of Congres
sional Power Under Both the Commerce
Clause and Section 5 of the Fourteenth
Amendment ................................................ 115
1. The Commerce Clause authorizes
application of Title VII to agencies
of state government ........................ 116
2. The extension to state and local
governments of Title VII's prohibi
tion of practices which have a dis
proportionately adverse impact but
which are not the result of a dis
criminatory purpose is a valid exer
cise of congressional power under
the Enforcement Clause of the Four
teenth Amendment ........................... 118
CONCLUSION ..................................................... 126
- v -
TABLE OF AUTHORITIES
CASES
Adickes v. S. H. Kress & Co., 398 U.S. 144
(1970) ............................................................... 74
Albemarle Paper Co. v. Moody, 422 U.S. 405
(1975) ................................................... H I , H 4
Alexander v. Fioto, 430 U.S. 634 (1977)................. 89
Blau v. Lehman, 368 U.S. 403 (1962) .................... 81
Board of Regents v. Roth, 408 U.S. 564 (1972) . . . 79
Bradley v. Vance, 436 F.Supp. 134 (D.D.C.
1974). prob. juris, noted, 98 S.Ct. 2230
(1978) ............................................................ 100
Burrell v. McCray, 426 U.S. 471 (1976).................... 69
California v. Taylor, 353 U.S. 553 (1957) ............ 117
Carter v. Gallagher, 3 Empl. Prac. Dec. (CCH)
118205 (D. Minn. 1971), aff'd in relevant part
452 F.2d 315 (8th Cir. 1971), aff'd in relevant
part 452 F.2d 315, 327 (8th Cir. 1972)(en~banc),
cert, denied, 406 U.S. 950 (1972) .................... 113
Cleveland Board of Education v. LaFleur,
414 U.S. 632 (1974) .................................. 76 , 77
Clyatt v. United States, 197 U.S. 207 (1905).......... 120
Cook v. Hudson, 429 U.S. 165 (1976) ...................... 69
Craig v. Boren, 429 U.S. 190 (1976) ................. 75 , 81
Crawford v. Cushman, 531 F.2d 1114
(2d Cir. 1976) ............................................ 76 , 77
Davis v. Washington, 512 F.2d 956 (D.C. Cir.
1975) rev'd, 426 U.S. 229 (1976) ...................... I l l
Dick v. New York Life Insurance Co., 359
U.S. 437 (1959) ................................................... 70
Dothard v. Rawlinson, 433 U.S. 321 (1977) .......... 63 ,
108, 109, 111
Ex parte Virginia, 100 U.S. 339 (1880) .................... 121
Foley v. Connelie, 98 S.Ct. 1067 (1978) ................. 99
Fry v. United States, 421 U.S. 542 (1975) ............ 117
Furnco Construction Corp. v. Waters,
____ U.S._____ , 98 S. Ct. 2943 (1978) ............ I l l
Green v. Missouri Pacific Railroad Co.,
523 F.2d 1290 (8th Cir. 1975) ............... I l l , 112
Gregory v. Litton Systems, Inc., 316 F.Supp.
401 (C.D. Cal. 1970), aff'd 472 F.2d 631
(9th Cir. 1972) ................................................. 112
Griggs v. Duke Power Co., 401 U.S. 424 (1971) 63 ,
110, 111, 114
Hutto v. Finney, 98 S.Ct. 2565 (1978) .................... 87
- vi -
- V l l -
James Everard's Breweries v. Day,
265 U.S. 545 (1924) ........................................... 122
Johnson v. Goodyear Tire and Rubber Co.,
491 F.2d 1364 (5th Cir. 1974) .................... 75 , 112
Johnson v. Pike Corp., 332 F.Supp 490
(C.D. Cal. 1971) 113
Jones v. Alfred H. Mayer Co., 392 U.S. 409
(1968) 122
Jones v. New York City Human Resources
Administration, 391 F.Supp. 1064 (S.D.N.Y.
1975) aff'd, 528 F.2d 696 (2d Cir. 1976)........... 112
Katzenbach v. Morgan, 384 U.S. 641 (1977) 122, 123
Lassiter v. Northampton County Board of
Elections, 360 U.S. 545 (1959) ............... 118, 122
McCarthy v. Philadelphia Civil Service Comm'n,
424 U.S. 645 (1976) 78
McCulloch v. Maryland, 17 U.S. (4 Wheat.)
315 (1819) 121
McDonnell Douglas Corp.v. Green, 411 U.S.
792 (1973) I l l
Maher v. Roe, 432 U.S. 464 (1977) ............ 74 , 75
Marshall v. United States, 414 U.S. 417 (1974) 98 , 99
- viii -
Massachusetts Board of Retirement v. Murgia,
427 U.S. 307 (1976) ......................................... 61 ,
74 , 78 , 79 , 89 ,
92 , 94 , 97 , 99 , 101
Matthews v. Lucas, 427 U.S. 495 (1976) ............... 85
NAACP v. Lansing Board of Education,
559 F.2d 1042 (6th Cir. 1977), cert, denied,
434 U.S. 997 (1977) 106
National League of Cities v. Usery, 426 U.S.
833 (1976) ................................ 63 ,
115, 116, 117
Ohio Bureau of Unemployment Services v. Hodory,
431 U.S. 471 (1977) 89
Oregon v. Mitchell, 400 U.S. 112 (1970) ................. 64 ,
119 , 123
Parden v. Terminal Railway Co., 377 U.S.
184 (1964) 117
Regents of the University of California v. Bakke,
___U.S.____, 98 S.Ct. 2733 (1978) .................... 123
Rice v. Sioux City Memorial Park Cemetery,
349 U.S. 70 (1955) ............................. 69 , 70 , 71
Roemer v. Board of Public Works, 426 U.S.
736 (1976) 82
San Antonio Independent School District v.
Rodriguez, 411 U.S. 1 (1973) 61 ,
74 , 75 , 84 , 89
- IX -
Schware v. Board of Bar Examiners, 353 U.S.
232 (1957) .......................................................... 78
South Carolina v. Katzenbach, 383 U.S. 301
(1966) ............................................................... 64 ,
118, 120, 122, 123
Strauder v. West Virginia, 100 U.S. 303 (1880) . . . 121
Sugarman v. Dougall, 413 U.S. 634 (1973) . . . . 76 , 77
Triangle Improvement Council v. Ritchie,
402 U.S. 497 (1971) ........................... 59 , 70 , 71
United States v. California, 297 U.S. 175 (1936) . . 117
United States v. Commercial Credit Co., Inc.,
286 U.S. 63 (1932) .............................................. 81
United States v. School District of Omaha,
565 F.2d 127 (8th Cir. 1977) (en banc),
cert, denied, 434 U.S. 1065 (1978) ! ................. 106
United States v. Texas Education Agency,
579 F.2d 910 (5th Cir. 1978) ........................... 106
Wallace v. Debron Corp., 404 F.2d 674
(8th Cir. 1974) ................................................... 113
Washington v. Davis, 426 U.S. 229 (1976) 106,
115, 116, 122
Weber v. Aetna Casualty & Surety Co.,
406 U.S. 164 (1972) ................... 81
- x -
CONSTITUTION, FEDERAL AND STATE
STATUTES
Constitution of the United States, Fourteenth
Amendment ............................................ passim
Constitution of the United States, Article I, §8,
cl. 3 ................................................... 115, 116
Equal Employment Opportunity Act of 1972,
86 Stat. 103 115
Fed.R.Civ.P. 52(a) ................................................ 8 2
N.Y. Civ. Serv. Law §50.4(c) (McKinney) .......... 85
Rehabilitation Act of 1973, §§7(6), 504, 29 U.S.C.
§§706(6), 794 ................................................ 58 ,
65 , 6 6 , 69
Rehabilitation, Comprehensive Services and
Developmental Disabilities Amendments of
1978, Pub.L.No.___, §122(a)(6)(C)(amending the
Rehabilitation Act of 1973 §7(6), 29 U.S.C.
§706(6) ........................................................ 58 , 67
Supreme Court Rule 19 69
Title VII of the Civil Rights Act of 1964, 42
U.S.C. §2000e et se^.................................... passim
21 U.S.C. §1180 85
OTHER AUTHORITIES
p. Brest, Processes of Constitutional Decision
making (1975) 95
65 Cong. Rec. 7564 (1924)
118 Cong. Rec. 1816 (1972)
- xi -
101
115
124 Cong. Rec. H 12675 (Daily Ed. Oct. 12, 1978)
(Conference Report on H.R. 12467, the Rehabi
litation Comprehensive Services and Develop
mental Disabilities Amendments of 1978, Sec.
122(a)(6)(C)) 67
124 Cong. Rec. S 19001-02 (Daily Ed. Oct. 14. 1978) 58 ,
67 , 6 8 , 93 ,
97 , 99 , 101
124 Cong. Rec. H 13476 (Daily Ed. Oct. 14, 1978) 67
G. Gunther, Constitutional Law - 1978 Supplement 75
H. R. Rep. No. 92-238, 92d Cong., 1st Sess. (1971) 115,
125
Note, Employment Discrimination Against Rehabi
litated Addicts, 49 N.Y.U.L.Rev. 67 (1974) TT 107
S.Doc. No. 14, 90th Cong., 1st Sess. (1967) .......... 101
S.Rep. No. 168, 77th Cong., 1st Sess. (1941) .......... 101
S.Rep. No. 92-415, 92d Cong., 1st Sess. (1971) 115, 125
Metropolitan Transportation Authority, Metropolitan
Transportation Authority Annual Report - 1976 . . 66
National Institute on Alcohol Abuse and Alcoholism,
Alcohol, Drug Abuse and Mental Health Admini
stration, Public Health Service, Department
of Health, Education and Welfare, State Alcohol
ism Profile Information System, National Status
Report Update, Vol. II (May 1978) ................. 106
- xii -
National Institute on Drug Abuse, Alcohol, Drug
Abuse, and Mental Health Administration,
Public Health Service, Department of Health,
Education and Welfare, State Statistics, 1977,
Statistical Series E, Number 8 (1978) . . . . . . 106
Temporary State Commission to Evaluate the Drug
Laws, Employing the Rehabilitated Addict,
New York State Legislative Document No.
10 (1973) ............................................................ 80
U.S. Commission on Civil Rights, For All the People
...By All the People: A Report on Equal Oppor
tunity in State and Local Government Emplo
ment (1969) 124
In t h e
§uprm ? (Unurt nf t o United States
October Term, 1978
No. 77-1427
New Y ork City T ransit A uthority, et al.,
Petitioners,
-v -
Carl Beazer, et al.,
Respondents.
BRIEF FOR RESPONDENTS
QUESTIONS PRESENTED
Expressed in the terms and circumstances of the
case, certiorari has been granted to review the following
two questions:
1. Whether the New York City Transit Authority's
policy of excluding from employment in any of its non
- 2 -
safety-sensitive positions all present or past patients in
methadone maintenance treatment programs violates the
Equal Protection and Due Process Clauses of the
Fourteenth Amendment, where both courts below, apply
ing the traditional, least intrusive standard of review to
an extensive trial record, found that the Authority's
policy bears "no rational relationship" to any of its
legitimate needs?
2. Whether the Transit Authority’s policy violates
Title VII of the Civil Rights Act of 1964 in that it has a
grossly disparate adverse impact on blacks and Hispanics
and is not justified by business necessity?
Additionally, as argued at pp. 65-71, infra, respond
ents contend that an appropriate threshold question is
whether the writ of certiorari should be dismissed in
light of recent Congressional action which makes clear
that the Transit Authority's policy is unlawful under the
Rehabilitation Act of 1973.
STATEMENT
- 3 -
In its statement of the case the Transit Authority
attempts to shape this litigation into a new form bearing
little, if any, relation to its history below. Making no
reference to the massive record in plaintiffs' favor
compiled in the district court, or to the fact that it left
the district court's findings unchallenged in the court of
appeals (Pet. 2a),-- the Transit Authority attempts to
resurrect and retry here factual controversies that have
already been conclusively laid to rest. Moreover,
- The forms of citation used in this brief are as
follows:
A. ___A refers to pages of the appendix in this
Court.
CA ___a refers to pages of the court of appeals
appendix.
T r.___ /___ /___ , p .___ refers to pages of the dated
transcripts of trial.
Dep. p. ___ refers to pages of transcripts of
depositions.
PI. Ex.___refers to plaintiffs' trial exhibits.
Pet. ___a refers to opinions and orders of the
courts below as reproduced in the appendix to the
petition for certiorari.
Pet. Br. refers to petitioners' brief.
Where cited material in the original record is
reproduced in the court of appeals appendix, there is a
parallel citation to that appendix.
through inaccuracy, omission and careful selectivity, the
Authority has fundamentally distorted the factual con
text within which this case has been adjudicated and has
attempted to create serious misimpressions regarding the
scope of the relief which has been granted. Respondents
are compelled, therefore, to restate the case completely.
INTRODUCTION
This action—brought pursuant to 42 U.S.C. §1983,
the Fourteenth Amendment and Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §2000e et seq.—challenged
the legality of the New York City Transit Authority's
policy of denying employment to any person who had
ever been treated in a methadone maintenance pro-
2 /gram.- The policy was absolute, applying to every one
of the Transit Authority's 47,000 jobs—from janitors, file
clerks and secretaries to painters, plumbers, and
- The action was brought by four named plaintiffs.
Two of the plaintiffs had been dismissed by the Transit
Authority and two had been rejected as job applicants
because of their participation in methadone maintenance
programs. A class, as described in the district court
opinion (Pet. 16a), was certified under Fed.R.Civ.P.
23(b)(2).
mechanics. While some of these jobs were admittedly
safety sensitive, most were no more so than the common
occupations in our society. Under the policy any job
applicant or current employee who was found to have a
history of methadone maintenance treatment was auto
matically rejected or fired with no consideration of
individual qualifications, demonstrated work perfor
mance, or years of service at the Transit Authority or
elsewhere.
The United States District Court for the Southern
District of New York, in a decision later upheld by the
United States Court of Appeals for the Second Circuit,
held that the application of the Transit Authority's
methadone policy to all positions was not "rationally
related to . . . safety . . . or any other needs of the TA"
(Pet. 19a), and thereby violated the Equal Protection and
Due Process Clauses of the Fourteenth Amendment. The
court explicitly left to the Transit Authority discretion
to exclude methadone maintenance patients entirely
from all safety-sensitive jobs. As to non-sensitive jobs,
the court left to the Transit Authority discretion to
require that methadone maintenance patients have been
successfully enrolled in treatment for at least a year,
and to take into account any relevant factors in their
personal backgrounds or treatment histories. Pet. 66-
67a.
- 5 -
PROCEEDINGS AND DECISIONS BELOW
A. District Court Proceedings
The district court conducted a thoroughgoing fac
tual inquiry into the following issues: (1) the scope of the
Transit Authority's employment policy respecting metha
done patients and the process by which the Transit
Authority had formulated that policy; (2) the nature of
Transit Authority employment and the needs of the
Authority regarding the performance of its employees
and the safety of its operations; and (3) the nature of
methadone maintenance treatment and the performance
abilities of methadone patients. After extensive discov
ery and stipulations of fact regarding Transit Authority
employment and the formulation of the Authority's
methadone policy, the court set the case down for a trial
which eventually consumed some three weeks.
Plaintiffs made a lengthy presentation on the
nature of methadone maintenance treatment and the
characteristics of methadone patients through testimony
from many of the leading authorities on the subject.
First was the director of the President's Special Action
Office for Drug Abuse Prevention and the National
Institute on Drug Abuse, the coordinating agencies in the
field of drug abuse treatment and research for the
- 6 -
federal government, which for a decade has undertaken a
vast commitment of resources and support to methadone
maintenance as the primary treatment modality for
heroin addiction. Tr. 10/22/74, pp. 3-69, 107, 116; CA 513—
81a, PI. Ex. 30. He was followed by clinicians with direct
experience treating methadone patients, and by indepen
dent researchers with specialized knowledge about meth
adone patients' medical condition, functional abilities,
3/social rehabilitation, and vocational experiences.-
Plaintiffs also presented testimony from major
employers who had had direct experience with the work
performance of methadone maintenance patients in a
wide variety of jobs, including highly skilled and safety-
sensitive positions.-^
The Transit Authority called witnesses to describe
the nature of Transit Authority employment, and one
expert, a pharmacologist of limited knowledge and
experience whose testimony the court found "too specu
lative to be of much value". Pet. 20a; Pet. 33a.
- 7 -
Tr. 10/24/74, pp. 300-10, 312-27, CA 681-711a, 712-
35a, PI. Ex. 35-37; Tr. 10/25/74, pp. 362-91, 417-50, CA
762-823a, PI. Ex. 40.
- Tr. 10/24/74, pp. 332-53, CA 736-61a, PI. Ex. 38; Tr.
10/25/74, pp. 568-73, CA 1145-55a, PI. Ex. 39; Tr.
10/29/74, pp. 575-87, 589-619, 636-65, CA 1156-1241a, PI.
Ex. 42-44.
- 8 -
Then, at the court's request, the court and counsel
made a comprehensive eight hour inspection of the
Transit Authority's various facilities—organized and con
ducted by the Authority—to obtain a first hand view of
the performance and risks involved in different job
positions. Tr. 10/30/74, pp. 769-71, CA 1336-38a; Tr.
11/27/74, p. 3, Ct. Ex. A, CA 292-303a.
Although both parties indicated after the inspec
tion that they had concluded their proof, the court
expressed concern that the evidence so disproportion
ately favored plaintiffs that perhaps it had not received
a balanced and complete factual picture. This concern
led—at the court's insistence—to nine additional trial
days and an "exhaustive effort" to determine "whether
all sides of the problems involved in the case had been
thoroughly explored." Pet. 20-21a. Through twenty-two
5/additional witnesses - the court probed in further detail
the process by which the Transit Authority's policy had
been formulated, the nature of the Transit Authority's
operations and the specific duties of its various employ
ees, the opinions of medical authorities of varying points
- Six of these witnesses were court witnesses (CA
317a,1608-09a), selected primarily because they had
authored articles arguably critical of methadone treat
ment cited by the Transit Authority at trial.
of view, and the operational and clinical experiences of
New York City's major methadone treatment programs.
B. District Court Decisions
On August 6, 1975, the district court issued an
opinion containing fifty-one pages of fact findings. Pet.
13-64a. Relying on what it found to be overwhelming
evidence, the court concluded that the Transit Author
ity's absolute methadone policy was utterly without
rational justification:
Plaintiffs have more than sustained their
burden of proving that there are substantial
numbers of persons on methadone maintenance
who are as fit for employment as other compar
able persons.
No one can have the slightest doubt about the
heavy responsibilities of the TA to the public,
including their duty respecting the safety of
millions of persons who are carried on its subways
and buses. However, in my view, the blanket
exclusionary policy against persons on methadone
maintenance is not rationally related to the safety
needs, or any other needs, of the TA.
• • • •
. . . [T] he crucial point made so strongly by
plaintiffs' witnesses was never convincingly chal
lenged—that methadone as administered in the
maintenance programs can successfully erase the
physical effects of heroin addiction and permit a
former heroin addict to function normally both
mentally and physically. It is further proved
beyond any real dispute that among the 40,000
- 1 0 -
persons in New York City on methadone mainten
ance (as in any comparable group of 40,000 New
Yorkers), there are substantial numbers who are
free of anti-social behavior and free of the abuse
of alcohol or illicit drugs; that such persons are
capable of employment and many are indeed
employed. It is further clear that the employable
can be identified by a prospective employer by
essentially the same type of procedures used to
identify other persons who would make good and
reliable employees . . . .
This proof applies with equal, if not greater,
force to those former heroin addicts who have
successfully completed participation in a metha
done program.
Pet. 19-22a.
Accordingly, the court held that the Transit
Authority's policy violated the Equal Protection and Due
Process Clauses of the Fourteenth Amendment. How
ever, the court explicitly left the Authority with
unfettered discretion to continue a total exclusion of
methadone maintenance patients from safety-sensitive
positions, as well as a wide degree of latitude in
determining whether to employ methadone maintenance
patients in non-sensitive positions:
I wish to stress certain things not compelled by
my holding. The TA is not required to hire any
present or past methadone maintained person
where there is a legitimate reason to question the
person's ability or competence—including a legiti
mate reason to believe that the person is abusing
illicit drugs or alcohol . . . . The TA is not pre
vented from making reasonable rules and regula
tions about methadone maintained persons—such
l i
as requiring satisfactory performance in a pro
gram for a period of time such as a year, or
forbidding methadone maintained persons employ
ment in sensitive categories such as that of
subway motorman, subway conductor, subway
towerman, bus driver, and jobs dealing with high
voltage equipment. . .
Pet. 67a (emphasis in original).
On January 24, 1977 the court entered a permanent
injunction and judgment incorporating this limited con
stitutional decision. The judgment also directed payment
to plaintiffs of counsel fees pursuant to the Civil Rights
Attorney's Fees Award Act of 1976, 42 U.S.C. §1988, and
Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§2000e et seq. Pet. 75-80a.-/
C. Court of Appeals Decision
On June 22, 1977 the court of appeals unanimously
affirmed the district court's constitutional ruling. Pet. 1-
8a. The court characterized the district court's opinion
as "comprehensive and carefully limited". Pet. 2a. It
noted that the district court had adopted a "rational
Prior to Congressional enactment of the 1976 Act,
solely for the purpose of determining the plaintiffs' right
to a fee award, the district court had found the Transit
Authority's policy violative of Title VII in light of its
disproportionate racial impact. Pet. 71a.
- 1 2 -
relationship" standard of constitutional review and had
correctly applied that standard to factual findings which
the Transit Authority had not even challenged. The
factual findings, the court of appeals found, were
"overwhelmingly" supported by the record. Pet. 2a.
Given the Civil Rights Attorney's Fees Award Act
of 1976 as a basis for plaintiffs' fee award, the court of
appeals expressly refused to reach the issue of the
Authority's liability under Title VII. Pet. 3a.
FACT FINDINGS AND RECORD BELOW
The decisions of the district court and the court of
appeals are rooted in clear, detailed findings of fact
compelled by a massive record. Contrary to the
impression the Transit Authority's brief attempts to
create, there is virtually no conflicting evidence regard
ing the central facts at issue.
A. The Transit Authority's Absolute Methadone Policy
The claims of the Transit Authority (Pet. Br. 5)
regarding the scope of the very policy about which this
case revolves provide a glaring example of its attempt to
create factual controversies where there are none.
- 1 3 -
From the outset, this action has challenged the
Transit Authority's flat, across-the-board employment
policy barring current, as well as former, methadone
patients from all Transit Authority positions. A.24A et
seq. The all encompassing nature of this policy has never
seriously been disputed. Indeed, the evidence is over
whelming that the Transit Authority's methadone policy
is but part of an even more sweeping rule under which
the Transit Authority will not employ any person with
any history of narcotic usage.
In its answer to plaintiffs' amended complaint the
Transit Authority unequivocally admitted that "the Tran
sit Authority dotes] not employ persons who use or have
a history of using narcotic drugs, including methadone."
A.60A (emphasis added). Much the same language was
used by the Authority during discovery when asked by
interrogatory to give a detailed description of its
employment policy respecting drug-free former heroin
addicts: "It is the present policy of the Authority, as it
was of its predecessors, not to employ or retain in its
employment any person who is presently using heroin or
other narcotic drug or has a history of such usage." PI.
Ex. 1, no. 31, p. 3-4, Tr. 10/22/74, p. 147 (emphasis
added). The accuracy of the interrogatory answer was
unambiguously confirmed during depositions of the cur
rent and former chief executive officers of the Authority
14 -
(Yunich Dep. p. 5-6, CA 2672-73a; Ronan Dep. p. 8, CA
7/2657a),- the Authority's executive officer for labor
relations and personnel (McLaren Dep. 1/31/74, pp. 43-44,
CA 2477-78a), and the Authority's medical director
(Lanzetta Dep. pp. 41-43, CA 2415-17a).-/
In the face of these clear consistent admissions,
the Transit Authority in its brief in this Court (Pet. Br.
5) has nonetheless insisted on placing in contest the
overall nature of its methadone policy—claiming that
while it will not employ current methadone patients, it
will individually consider for employment former metha
done patients and other persons with a prior addiction
history who have been drug-free for at least five years.
This contention is entirely inconsistent with the Transit
7/ Eight months before the lawsuit was filed the
former chief executive officer of the Transit Authority
had similarly stated the Transit Authority's policy in a
letter to the chairman of the New York State Temporary
Commission to Evaluate the Drug Laws:
It is the present policy of the Transit Authority
not to employ or to retain those individuals who
are participants in a narcotic rehabilitation pro
gram. We do not distinguish between those who
have completed any rehabilitation or are now on a
program. PI. Ex. 6, Tr. 10/22/74, p. 157 (emphasis
added).
8 /
- All portions of depositions cited in this brief were
received in evidence at trial. See Tr. 2/12/75, p. 1470.
- 1 5 -
Authority's litigation posture below.- It is, moreover,
without support in the record.
The only hint in the record of some moderation in
the Transit Authority's policy came three months after
the trial of this case began, when the Transit Authority's
executive officer for labor relations and personnel
claimed (during his third trial appearance) that the
Authority had very recently decided to "give individual
consideration" to job applicants who had been drug-free
for "from five to ten years." Tr. 1/28/75, p. 709, CA
1106a. It is this, and only this, testimony that the Transit
Authority cites (Pet. Br. 5) to indicate that it has an
individual policy respecting the employment of drug-free
persons. Upon cross examination, however, it became
clear that the Transit Authority had not in fact made a
policy change. It had only decided that it might consider
whether to make a change in the future:
Let me clarify one thing. When I say we are
reviewing the cases [of individual drug-free appli
cants], I didn't really mean that. It is reviewing
the procedure. We are trying to find at what
point we would exercise—settle on a policy in this
area.
9/
E.g., Transit Authority Court of Appeals Brief 4
(question presented was whether the Transit Authority
was constitutionally required to employ "persons who are
or in the past had been maintained on methadone").
- 16 -
Id.> at p. 725, CA 1122a. The very limited nature of this
shift in the Transit Authority's litigation posture was
noted by the district court.— ̂ And the record does not
contain one scintilla of evidence that, except in the
context of this litigation, the Transit Authority has ever
knowingly employed anyone with a prior addiction his
tory—despite the fact that it hires 3000 persons annu
ally.—̂ Pet. 55a.
B. The Transit Authority's Failure to Assess the Need
for Its Methadone Policy
Contrary to the claims of the Transit Authority
(Pet. Br. 6-7), it has never made a bona fide assessment
of the relationship of its methadone policy to its
legitimate needs. The Transit Authority's complete
— "The TA has indicated that there might be some
flexibility with respect to a person who had once used
methadone, but had been free of such use for a period of
five years or more. But even on this point, there is no
official directive indicating that the person would be
considered for employment." Pet. 18a.
—̂ In any case, even the Transit Authority's own
belated suggestion of a shift in policy toward drug-free
persons, however lacking in credibility, leaves uncon
tested the fact that it excluded all persons with a history
of narcotic usage well into the time of trial.
- 17 -
failure to make such an assessment was abundantly clear
to the district court, and it permeated both the record
and the history of the district court proceedings.
Through discovery it was established relatively
early in the case that the Transit Authority's methadone
policy came into being without even an affirmative
decision being made to adopt it. As the Transit
Authority's medical director testified, the Authority had
an old rule against narcotic use by its employees, and
when methadone maintenance treatment was developed
it was automatically included within the scope of the
rule's prohibition without any consideration being given
to the difference between it and other narcotic use:
Q. Would you describe to me generally the
process by which the policy of not hiring and not
retaining in your employ ex-addicts was formu
lated . . . ?
A. I couldn't tell you because it was there, I mean
the thing is, you bring up a subject that I think no
one was aware of drug addicts until lately, I think
maybe when I became medical director, and it was
one of the standards you know, that drug addicts
or barbiturates or any dependent drugs, you would
be disqualified.
• • • •
Q. Was there a policy on Methadone when you
became medical director?
A. Again, you bring up the word Methadone, it is
a narcotic and as long as narcotics disqualify, it
wouldn't have to be named Methadone, it is a
narcotic.
- 18 -
Lanzetta Dep., pp. 63-64, CA 2432-33a.
Once the methadone policy came into being respon
sible officials at the Transit Authority made no attempts
to appraise the need for it—their attention was directed
solely to enforcement measures. William Ronan, who
served as chief executive officer of the Transit Author
ity during almost all of the pre-trial history of the
12/case,— testified to this effect with great specificity:
Q. Was the drug policy . . . ever reviewed by you
as part of any internal review . . . ?
A. In terms of an overall review of personnel
policy, we accepted the existing personnel policies
which seemed to be satisfactory, and there was no
major overhaul of the personnel policy during the
time that I was there.
Q. I believe that you stated earlier that at those
times that you did consider whether the policy
should be continued, you consulted with persons
from among your cadre of Executive Officers.
A. Actually, it was not a question of whether we
thought the policy should or should not be con
tinued. That was never discussed. It was the
question of implementation of the existing policy.
1 2 /— Ronan was chairman of the Transit Authority from
March, 1968 until May, 1974. A. 75-76A. The trial of the
case began five months after he left office. It is during
his tenure that the Transit Authority alleges (Pet. Br. 5-
7) that it conducted an assessment of the need for its
methadone policy.
- 1 9 -
I would not want to give you the impression that
there has been a discussion as to any recom
mended change in the policy. I recall no such
discussion of anyone or anyone suggesting to me
as the Chairman and Chief Executive Officer,
either from the Board level or the Executive
level—I recall no one having raised the question
that we should change the policy. Discussions
were in terms of the implementation of the
policy, as I recall.
Ronan Dep., pp. 6-7, CA 2655-56a. This failure to act
persisted despite the condemnation of the Transit
Authority's policy by an official state investigatory
13/commission— and the Authority's own Impartial Disci-
14/plmary Review Board.—
13/— The New York State Temporary Commission to
Evaluate the Drug Laws condemned the Transit Author
ity's methadone policy and characterized plaintiff
Beazer's dismissal from the Transit Authority as "[t] he
most revealing example of the manner in which prejudice
against addicts can overwhelm all other relevant con
siderations. . . ." Temporary State Commission to
Evaluate the Drug Laws, Employing the Rehabilitated
Addict, New York State Legislative Document No. 10
28-30 (1973).
14/— The Impartial Disciplinary Review Board is a joint
labor-management body that may review and make
recommendations regarding Transit Authority disciplin
ary decisions even though it has no legal power to alter
them. A.108A. In reviewing plaintiff Beazer's dismissal
(continued next page)
- 2 0 -
Since it was apparent at an early point that the
Transit Authority had not previously considered its
methadone policy, the court offered it the opportunity to
do so in the course of the litigation. Thus, a few months
after the action was filed the New York City Civil
Service Commission—at that time a party defendant-
proposed to join with the Transit Authority in a coopera
tive study of the the feasibility of employing methadone
maintenance patients in Transit Authority jobs. CA 73-
75a. The court urged the Transit Authority to accept
this proposal, and, since it appeared to do so, the court
informally stayed proceedings. At an early stage,
however, it became clear that, whatever the results of
the study, the Transit Authority had no intention of
revising its methadone policy. The study was subse
quently abandoned. Tr. 1/13/77, p. 139, CA 54-64a. As
its opinion and recommendation stated, in part:
The Board feels that it is incumbent upon the
Union and the Authority to reconsider the rules
and practices of the Transit System as it relates
to drug users. They should particularly examine
the merits of the relatively new methadone
program. Perhaps, through their careful consider
ation of the drug problem as it relates to the
employees of the Authority, they will find a way
to help employees, such as Carl Beazer, who have
struggled so valiantly and well to overcome the
drug habit.
Tr. 10/22/74, p. 155, PI. Ex. 5, CA 2693a.
2 1 -
the court later observed, the Transit Authority's sole
interest in the study had been to use it as a possible
means of validating its existing exclusionary policy:
. . . [T] here was a lot of evasion and it finally
turned out there wasn't any objective study. All
they were doing was . . . simply trying to persuade
the [City] personnel department that there was
enough backing for their preconceived notion and
that's all.
They had no intention of reevaluating anything
and that was admitted finally after a lot of
questioning.
Tr. 1/13/77, p. 139; see also Tr. 12/12/74, p. 115, CA 1034a.
No serious assessment, was ever conducted by the
Transit Authority. Immediately prior to trial it stipu
lated that it had "never studied the requirements
of . . . TA jobs . . . to determine the . . . ability of . . .
persons participating in methadone maintenance pro
grams to perform the various jobs." A. 79A.
The complete and continued unwillingness of the
Transit Authority to evaluate its own policy deeply
concerned the district judge. After hearing the first day
of trial testimony and examining the extensive discovery
evidence and pre-trial stipulations submitted by the
parties he expressed his concern at length:
THE COURT: . . . [T] he Transit Authority has
a practice but not a policy . . . . [Njobody re
members how it was exactly developed and it has
been used but not scrutinized. I don't find any
22 -
evidence that the Transit Authority has really
made an intelligent evaluation of whether or not
the methadone people can or cannot work on the
various jobs.
• • • •
. . .[T] here is nothing I have seen that indi
cates that the Transit Authority has really at
tempted to find out the reasons pro and con, and
so I am here as a federal court starting from
scratch, taking up a case to see whether there is a
rational ground for the Transit Authority practice
where the Transit Authority itself has not made
any attempt to do that. You can do it better than
I can if you do it. You are the employer.
MR. SUMMERS: What might be "desirable,"
your Honor, is a different matter than what is
constitutionally required, you know.
• • • •
[THE COURT:] I think that the Transit
Authority, for its own sake, should have examined
this problem . . . and come up with some cogent
policy that really is a policy and a policy means
something thought out, not just stumbled into.
Tr. 10/22/74, pp. 184-87.
Throughout the trial the district judge asked for
evidence describing what, if any, policy making process
the Transit Authority had engaged in. He received in
response vague, self-serving testimony from Wilbur
McLaren, Transit Authority executive officer for labor
relations and personnel. This testimony, the sole support
offered by the Transit Authority for its present claim
(Pet. Br. 6-7) that its methadone policy resulted from a
reasoned review, was filled with obvious misconceptions
regarding methadone.—' Much of it was offpoint,
relating purely to enforcement of the Transit Authority's
policy against employing drug abusers.— ̂ Indeed, to the
extent that the testimony dealt with relevant subjects, it
was contradicted by other evidence, including the wit-
17 /ness' own statements.— A month after hearing the
15 /
15/— Given the evidence already before the district
court, McLaren's misconceptions were apparent and
would have been so to anyone who had given any
objective consideration to the subject. See pp. 36-44,
infra.
lfi /
— The Transit Authority has misleadingly cited (Pet.
Br. 6) to a portion of this offpoint testimony (Tr.
10/25/74, pp. 501, 502, 508, 510, 534) as the basis for the
proposition that the Transit Authority initiated "seminars
and conferences" regarding persons with drug histories
and discussed with "some of the leading experts in the
field" the possibility of employing methadone patients.
Pet. Br. 6. When read in context (see, e.g., district
court's comments at p. 506) the testimony at pp. 501 and
502 of the transcript actually describes the Transit
Authority's search for better methods and professional
help in detecting drug abusers so they could be dis
charged from its workforce. The testimony at pp. 510
and 534, though more misleading (see n. 17 infra), relates
to the same topic. And the testimony on p. 508 refers to
the abortive Transit Authority-Civil Service Commission
study described on pp. 20-21, supra.
17/— For example, during some of the testimony cited by
the Transit Authority (Tr. 10/25/74, pp. 510, 534, 535-44)
(continued next page)
24 -
testimony, the judge, while asking for more evidence on
what the Transit Authority had done to formulate its
policy, evaluated what was already before him:
I think the answer is already in the record.
You really haven't done much of anything.
Tr. 11/27/74, p. 26, CA 312a.
McLaren vaguely described a process by which he
allegedly sought out a number of persons knowledgeable
about methadone maintenance treatment and received
from them information to the effect that methadone
patients are unemployable. On cross examination,
however, he admitted that the only established authori
ties on methadone maintenance whom he could definitely
recall having talked with were Drs. Gollance, Dole and
Trigg. Tr. 10/25/74, 562-63. In later testimony McLaren
described how he had actually contacted Dole solely for
the purpose of finding means of more accurately
identifying active addicts so the Transit Authority's
existing drug policy could be better enforced, and he
expressly denied having discussed with Dr. Dole the
employability of methadone patients. Tr. 12/12/74, p.
179. ("Q: Do you recall no conversation in which you
discussed with him possible employment of methadone
maintained persons? A: No, I do not." Moreover, to the
extent that Dole, Gollance and Trigg had advised
McLaren — whether gratuitously or otherwise —
regarding the Transit Authority's methadone policy, it
was to tell him that methadone maintenance patients
were suitable for Transit Authority employment. See
Transit Authority stipulations at A. 80-81A; Tr. 1/7/75,
pp. 64-65, CA 1545-46a; Tr. 1/9/75, p. 154, CA 1633a.
Gollance and Dole had even offered to help the Transit
Authority in the process of selecting methadone patients
(continued next page)
- 2 5 -
Viewed in context, the Transit Authority's present
claims regarding the process by which it formulated its
policy evaporate. In large part the district court
determined to what extent the Transit Authority's policy
was rational because of the Transit Authority's past and
continued refusal to look to rational factors on its own.
C. The Nature of Transit Authority Employment
The district court made detailed findings regarding
the nature of Transit Authority employment. Pet. 54-
62a.— Those findings, virtually unchallenged here (see
for jobs. Tr. 1/7/75, pp. 65-67, CA 1546-48a; Tr. 1/9/75,
p. 163, CA 1642a.
McLaren also mischaracterized his relationship
with Dr. Trigg, indicating that Trigg was his regular
consultant on the employability of methadone patients.
Tr. 10/25/74, 544-46. Trigg denied any such role, stating
categorically that he had been retained by the Transit
Authority solely for the limited purpose of determining
whether Transit Authority employees facing discharge
due to alleged drug abuse were in fact drug abusers.
E.g., Trigg Dep. 3/21/74, pp. 48-51, CA 2619-27a.
18 /— These findings were based on many stipulations
made on the subject (A. 87-102A), the extensive testi
mony of Transit Authority officials (e.g., Tr. 1/31/75, pp.
777-947, CA 1998-2069a; Tr. 2/12/75, pp. 1256-1356, 1419-
59), an on-site tour of Transit Authority operations (see
(continued next page)
- 26 -
Pet. Br. 4-5), clearly establish that most Transit Author
ity jobs are neither unique nor safety-sensitive. Further
more, "it is perfectly clear that large numbers of the
employees in the TA perform work essentially similar to
the type of work done in other businesses and industries
where methadone maintained persons appear to be
successfully employed." Pet. 55a.
1. Job positions and employment structure
The Transit Authority's 47,000 employees hold
about 400 different job titles, the majority of which are
non-operating positions involving common tasks. Pet.
56a. Among the non-operating positions are, for ex
ample:
number
account clerks 25
accountants 54
bookkeeping machine operators 49
car cleaners 950
caretakers 229
carpenters 167
cashiers 32
clerks 664
p. 8, supra; Tr. 11/27/74, pp. 1-5, CA 287-303a) and
masses of documentary material (e.g., Tr. 2/12/75, p.
1467, PI. Ex. 60; CA 333-61a.
- 2 7 -
collecting agents 145
keypunch operators 57
i n omasons 198
messengers 12
painters 679
plumbers 207
porters (janitors) 1162
stenographers 92
stock assistants 103
stockmen 72
token sellers 4145
turnstile maintainers 141
typists 223
watchmen 162
Pet. 56a; Tr. 2/12/75, p. 1467, PI. Ex. 60.
About 3400 Transit Authority employees work in
so-called "city-wide" civil service job titles and, by the
Transit Authority's own stipulation, perform tasks that
are essentially the same as those performed by persons
employed throughout New York City agencies (where
discrimination against methadone maintenance partici-
pants is expressly prohibited).— Pet. 53a; A84A. In job
— ̂ The "city-wide" job titles include those positions
most commonly found in municipal government, such as
clerks and secretaries. Employment standards for such
titles are established uniformly for all agencies
including the Transit Authority — which are under the
jurisdiction of the New York City Civil Service
Commission. Under the Commission's medical standards
and official policy directives present and former
methadone patients are entitled to be considered individ-
(continued next page)
titles peculiar to the Transit Authority large numbers of
employees also do obviously non-sensitive, and often
menial, work. For example, the Transit Authority's 950
"car cleaners" do no more than sweep, wash and
otherwise clean up subway cars. Pet. 58-59a. Another
5600 persons work in the Transit Authority's subway
stations, cleaning, selling tokens and repairing turnstiles.
Pet. 62a. And about 3000 persons are employed in the
Transit Authority's various shops where, under super
vision, they perform maintenance tasks like painting and
body work on subway cars. Pet. 60a.
The Transit Authority has built into its employment
system a variety of mechanisms to ensure against
inadequate job performance. Before Transit Authority
employees are hired they must go through a thorough
background investigation, medical examination and civil
service test (Tr. 2/12/75, pp. 1284-85, 1287-92, 1356).
After being hired and as a condition of any promotion
ually for employment in city-wide titles in use in the
Transit Authority. However, as the district court
described, the Transit Authority has evaded these provi
sions through use of the "one in three rule" contained in
the New York Civil Service Law which allows the Transit
Authority to pass over job candidates who have been
certified for appointment by the Civil Service Commis
sion. Pet. 51-53a.
they must complete lengthy probationary terms during
which they are subject to especially close supervision.
Pet. 57a; Tr. 1/31/75, p. 820-21, CA 2042-43a.
After probation, almost all Transit Authority non
operating employees still work under the direct super
vision of a foreman or supervisor. Pet. 57a. Most
operating employees are similarly supervised; those that
are not directly supervised must report in each morning
to a foreman who determines their fitness for duty and
who is trained to detect alcohol and drug abuse problems.
Tr. 2/12/75, pp. 1262-66, 1280; Tr. 1/31/75, pp. 808-13, CA
2030-35a.
The system is also carefully structured to ensure
that the more responsibility a job entails the more
checks there are against poor performance. For ex
ample, entry-level positions are generally low-level
unskilled jobs, and higher level jobs can be obtained only
after years of satisfactory on-the-job performance.
Transit Authority workers often must begin employment
as "helpers" or "trainees" and perform under close
individual supervision for a year or more before they are
even eligible for promotion to more responsible levels.
Pet. 62a.
Finally, the Transit Authority's disciplinary struc
ture provides for immediate action against unfit em
ployees. The Transit Authority can, and does, immedi
ately suspend from active service employees who report
unfit for duty, including employees under the influence
of alcohol or drugs. Crannan Dep., p. 1264.
2. Employment of disabled persons
The non-sensitivity of most Transit Authority jobs
is confirmed by its employment policies respecting
alcoholics, diabetics, epileptics and cardiac patients who
concededly could create risks if employed in safety-
sensitive positions.
The Transit Authority stipulated below that, in
contrast to its policy excluding former addicts presently
or in the past maintained on methadone, it does not
maintain a blanket rule barring the employment of
alcoholics. Instead, it considers the "hiring of such
persons on an individual basis in light of factors such as
their rehabilitation and the safety sensitivity of the job
to which they seek appointment." A.96A. Moreover, the
Transit Authority does not dismiss active alcoholics
discovered in its employ. Although drinking on the job or
reporting unfit for duty by reason of drinking is a
violation of Transit Authority rules, employees with
three years of service are virtually never dismissed for a
first offense. Pet. 63a; A.98A. If a first offender works
in a critical position he is transferred to less sensitive
duties; if he works in a non-critical area he is suspended
31-
from work for a maximum of three days. Pet. 63a.—
About 50-60 percent of the Authority's job positions are
classified as non-critical for purposes of its alcoholism
policy. E.g., McLaren Dep. 1/31/74, p. 136, CA 2518a.
These positions include a wide variety of jobs such as
office work; maintaining subway track, tunnels and
structures; and cleaning and repairing subway cars. Pet.
2 0 /
— ̂ For a detailed description of the Transit Author
ity's alcoholism policy see testimony of Joseph Warren,
director of the Transit Authority's alcoholism program,
Warren Dep., CA 2538a et seq. It should be noted that
the Transit Authority's statement that it refuses to
consider. applicants with alcoholism problems (Pet. Br.
26) refers only to current alcoholism problems.
21/— The Transit Authority also makes available an m-
house counseling program to its employees with drinking
problems. It was stipulated that the success rate of the
counseling program "is only approximately 60%, since
some participants have relapses into drinking and some
employees referred to the program drop out or refuse to
participate. Nevertheless, persons who do not succeed in
the . . . [pjrogram are allowed to continue in the employ
of the Authority as long as their on-the-job performance
remains adequate." A. 100A.
The Transit Authority also stipulated that em
ployees in safety sensitive positions whose drinking
problems have not been discovered by the Authority may
(continued next page)
The Transit Authority has also stipulated that it
gives individual consideration to job applications from
diabetics, epileptics and persons with heart disease.
A.94-95A. Employees from any of these groups would
obviously pose a safety risk if all Transit Authority jobs
were sensitive. For example, an endocrinologist and
assistant professor of medicine at Columbia University
testified that, even when in treatment, diabetics are in a
substantially more unstable and dangerous physical con-
. . 22/ dition than normal individuals.—
participate in the counseling program on a confidential
basis. "Such enrollment is not reported to the employees'
supervisors, and they are not required to accept a
demotion in position. . . . Persons have enrolled in the
counseling service on a confidential basis while serving in
such highly sensitive positions as motormen, towermen,
dispatchers, and trainmasters." A. 100-101A; Pet. 64a.
About 2300-2400 employees currently participate
in the Transit Authority's alcoholism counseling program.
Pet. 64a.
2 2 /— Diabetics are subject to comas, especially under
stress, and they generally suffer serious vascular changes
leading to a significantly increased incidence of strokes
and heart attacks. Tr. 10/25/74, pp. 373-76, CA 776-79a.
D. The Suitability of Methadone Maintenance Patients
for Employment at the Transit Authority
"Myths and misconceptions abound" concerning
methadone maintenance treatment (Pet. 20a), and here,
as below, the Transit Authority clings to them in an
attempt to justify its policy. Former addicts in
methadone treatment are simply not—as the Transit
Authority contends—an undifferentiated mass of incur
ables incapable of either doing everyday jobs or being
selected for them. Indeed, as the district court's findings
establish, methadone patients as a group bear no inherent
characteristic making them any less suited for employ
ment than anyone else:
. . . [M] ethadone as administered in . . . main
tenance programs can successfully erase the
physical effects of heroin addiction and permit a
former heroin addict to function normally both
mentally and physically.
• • • •
. . . [A] mong the 40,000 persons in New York
City on methadone maintenance (as in any com
parable group of 40,000 New Yorkers), there are
substantial numbers who are free of anti-social
behavior and free of the abuse of alcohol or illicit
drugs . . .
• • • •
. . . [S] uch persons are capable of employment
and many are indeed employed . . . [and] the
employable can be identified by a prospective
employer by essentially the same type of proce-
- 3 4 -
dures used to identify other persons who would
make good and reliable employees.
Pet. 21a.
The court's findings rested on a trial which had
afforded "a unique opportunity" to explore objectively
the relevant issues in depth. Pet. 20a. Testimony came
from an extraordinary gathering of leading drug treat
ment authorities, including both supporters and critics of
methadone maintenance. As described supra pp. 8-9, the
district court's demand for evidence was extraordinary.
After hearing virtually unchallenged testimony from
array of persons be called so that every viewpoint could
be heard and every relevant issue explored. In the end it
was abundantly clear that, despite the public controversy
regarding some other aspects of methadone maintenance
treatment, there was no genuine controversy regarding
the key facts at issue here.
1. Origins and rationale of methadone maintenance
treatment
The origins and overall medical rationale of
methadone maintenance treatment were described to the
district court primarily by Robert L. DuPont, Jr., M.D.,
then the senior federal official in the field of drug abuse
treatment and research— and Vincent P. Dole, M.D., a
professor at Rockefeller University and senior physician
24/to Rockefeller University Hospital.— Dr. Dole was
called as a court's witness. See p. 8 n. 5, supra. Order
filed 1/2/75, CA 317a.
Fifteen years ago Dr. Dole and Dr. Marie
Nyswander, a psychiatrist experienced in the treatment
of heroin addicts, initiated an extensive study of heroin
metabolism at Rockefeller University Hospital. The
study demonstrated that former heroin addicts adminis
tered stable doses of methadone on a sustained basis
show the alert behavior, activity and interest of normal,
non-addicted individuals. As a result of the Dole-
Nyswander study, a pilot methadone maintenance treat
ment program was established at the Beth Israel Medical
Center in New York City. E.g., Pet. 25a; Tr. 10/22/74,
pp. 9-12, CA 530-33a; Tr. 1/7/75, pp. 5-14, CA 1485-94a.
Eventually thousands of heroin addicts were admit
ted to methadone maintenance treatment at Beth Israel
23/
23/ . .— Dr. DuPont was director of the President's Special
Action Office on Drug Abuse Prevention and the Na
tional Institute on Drug Abuse. See DuPont curriculum
vitae, Tr. 10/22/74, p. 8, PI. Ex. 30, CA 513-22a, 529a.
— ̂ See Dole curriculum vitae, Tr. 1/7/75, p. 4, PI. Ex.
48, CA 1480a, 1484a.
- 36 -
and numerous other medical facilities throughout the
country. E.g., Pet. 25-26a; Tr. 1/7/75, pp. 16-19, CA 1496-
99a; Tr. 10/22/74, pp. 12-13, 56-57, 533-34a, 576-77a. For
many years now methadone maintenance has been the
predominant form of treatment for heroin addiction in
the United States. At the time of trial about 70,000
persons, roughly sixty percent of all former heroin
addicts in treatment, were enrolled in methadone main
tenance programs. About 40,000 of those resided in the
New York City area. E.g., Pet. 26a; Tr. 10/22/74, pp. 56-
57, CA 576-77a.
The rationale for methadone maintenance as a
treatment for heroin addiction is simple. Heroin is a
short-acting drug and must be taken several times a day
to prevent narcotic withdrawal symptoms. Heroin
addicts also tend to bounce every 3-4 hours from one
physical state to another, going from a "euphoria” or
"rush" immediately after a drug injection to lethargy and
the onset of eventual withdrawal. In contrast to heroin,
25 /an adequate oral dose of methadone— achieves a stable
— Methadone is dispensed in a non-injectable form
(Tr. 2/7/75, pp. 1148-49, 2264-65a) and the administration
of the drug is rigidly controlled by government regula
tion. See p. 50, infra.
- 37 -
concentration in the bloodstream and completely sup
presses withdrawal for a 24-36 hour period. Methadone
maintenance patients also experience a stable physical
state, feeling none of the ups and downs to which heroin
addicts are subject. E.g., Pet. 24a. Furthermore, through
their ingestion of methadone they develop a "cross
tolerance" or "blockade" to the effects of other narcot
ics, so that the injection of even a large dose of heroin
has no physical impact. E.g., Pet. 24a; Tr. 10/22/74, pp.
44, 51-53, CA 564a, 571-73a.
2. Physical abilities of methadone maintenance pa
tients
Although the Transit Authority will concede only
that maintenance on methadone can enable former
heroin addicts to lead "relatively" normal lives (Pet. Br.
9), the district court found that "[t] he overwhelming
weight of the evidence is to the effect that a methadone
maintenance patient can perform normally, and that
undesirable side effects are lacking." Pet. 33a. At trial,
all the negative assumptions which might be advanced
regarding methadone’s physical effects were shown to be
entirely without substance.
The directors of all the major methadone treat
ment programs in New York, together with Drs. DuPont
and Dole, were called by plaintiffs or the court to testify
regarding their direct clinical experiences with thousands
of methadone participants. They unanimously affirmed
that, after a short adjustment period, persons maintained
on methadone exhibit no side effects of consequence and
/are entirely capable of normal functioning.—
These clinicians' conclusions were confirmed by
evidence received about the extraordinarily systematic
studies done during the past decade and a half into every
27 /aspect of methadone treatment's physical impact.— As
the court noted, "there has been a remarkably intensive
effort to test and observe methadone maintenance
/— See, e.g., Testimony of Paul Cushman, M.D.,
(director of St. Luke's Hospital Methadone Maintenance
Treatment Program), Tr. 10/25/74, pp. 367-70, CA 770-
73a; Testimony of Joyce H. Lowinson, M.D. (director of
the Methadone Maintenance Treatment Program of the
Albert Einstein College of Medicine), Tr. 2/7/75, pp.
1127-29, CA 2243-45a; Testimony of Robert L. DuPont,
M.D., Tr. 10/22/74, pp. 24-33, CA 544-53a; Testimony of
Vincent P. Dole, M.D., Tr. 1/7/75, p. 33, CA 1513a;
Testimony of Bernard H. Bihari, M.D., (director of the
New York City Methadone Maintenance Treatment Pro
gram), Tr. 2/12/75, pp. 1385-88, CA 2340-43a.
— ' Tr. 10/22/74, pp. 25-33, CA 545-53a; Tr. 10/24/74,
pp. 305, 314-20, 326-27, CA 684-99a, 706a, 722-28a, 734-
35a, PI. Ex. 35; Tr. 10/25/74, pp. 369-73, CA 772-76a; Tr.
1/9/75, pp. 197-214, 224-30, 237-38, CA 1682-99a, 1709-
15a,1722-23a.
patients and to gather statistics about their perfor
mance." Pet. 33a.
Norman B. Gordon, Ph.D., the leading authority on
the impact of methadone maintenance on human perfor-
28/ c mance— described the decade of sensitive laboratory
studies through which he and various colleagues have
examined every conceivable measure of methadone
patients' physical and intellectual functioning. Tr.
10/24/74, pp. 305, CA 684-99a, 706a, PI. Ex. 35. One
series of tests, for example, compared patients who had
been maintained on high doses of methadone for a year
or longer with college students, professional staff mem
bers, and other non-addict groups.— ̂ Among the
28 /
— Dr. Gordon is an experimental psychologist. At the
time of his testimony he was chairman and professor of
psychology, Department of Psychology, Yeshiva Univer
sity and guest investigator, Rockefeller University. See
Gordon curriculum vitae, Tr. 10/24/74, p. 301, PI. Ex. 36,
CA 681-83a, 702a.
29 /
Gordon, Warner, and Henderson, "Psychomotor and
Intellectual Performance Under Methadone Mainten
ance," Report to the Committee on Drug Dependence,
National Academy of Sciences, National Research Coun
cil 5136 (1967); Gordon, "Reaction Times of Methadone-
Treated Ex-Addicts," 16 Psychopharmacologia 337-344
(1970); Gordon, and Appel, "Performance Effectiveness in
Relation to Methadone Maintenance," Proceedings,
Fourth National Conference on Methadone Treatment
(continued next page)
functions tested were intellectual performance, psycho
motor performance, learning a new skill, retention of a
learned skill, visual reaction time for simple tasks, visual
reaction time for complex tasks, and auditory reaction
time. In not a single test did the performance of the
methadone patients differ significantly from that of the
comparison group. On the basis of his studies Dr. Gordon
concluded that "maintenance on methadone results in no
physical side effects that present barriers to any
vocational activities." Tr. 10/24/74, p. 305, PI. Ex. 35,
CA 684a.
Dr. Gordon's findings were confirmed by Richard D.
Blomberg, an expert on human performance in safety-
related environments. On behalf of the National
Highway Traffic Safety Administration, Blomberg had
conducted a major scientifically controlled study of
methadone patients' ability to perform a complex task,
30/driving, in non-laboratory settings.— Tr. 10/24/74, p.
314, CA 722a. The study demonstrated that methadone
patients' driving records are identical to the general
425-27 (1972). For a listing of Dr. Gordon's other studies
see Tr. 10/24/75, pp. 301, 305, CA 683a, 684-85a, 702a,
706a.
— ̂ Blomberg is an industrial and management engi
neer. See Blomberg curriculum vitae, Tr. 10/24/74, p.
312, PI. Ex. 37, CA 712-18a, 720a.
41-
population's (Tr. 10/24/74, pp. 316-20, CA 724-28a), a
finding with wide-ranging positive implications:
Driving is one of the more complex psycho-motor
tasks that a normal human undertakes. It involves
many aspects of motor performance, controlling a
car . . . perceptual performance, decision-making,
risk-taking and so forth. It is my opinion that
anyone who can perform adequately in the driving
task could perform in virtually any other safety-
sensitive task such as operating machine tools,
driving trucks and so forth . . . .
Tr. 10/24/74, p. 326, CA 734a.
In addition to exploring research on the effect of
methadone maintenance on human functioning, the court
called Mary Jeanne Kreek, M.D., senior research associ
ate at Rockefeller University, to testify about the
medical safety of methadone maintenance and its long
term physiological consequences. Order filed 1/2/75, CA
317a. By virtue of her continuous medical research since
1964 into the side effects of methadone maintenance (Tr.
1/9/75, pp. 225-26, CA 1710—11a), Dr. Kreek is the most
31/knowledgeable physician in the country on the topic.—
Her scrutiny of thousands of methadone maintenance
patients, including some in treatment for as long as
eleven years, has revealed "no . . . unexpected adverse
— See Kreek curriculum vitae, Tr. 1/9/75, p. 197, CA
1676-80a. For a sampling of the reports of Dr. Kreek's
research see id at pp. 1678-80a.
effects, side effects or any alterations of bodily func
tion." Id., at p. 231, CA 1716a. The only persistent
medical complaints that she received from methadone
patients related to constipation, increased sweating and
decreased libido. She noted that all of these are common
complaints in the general population (CA 1687-93a, Id., at
p. 202-08, 224-25, 1709-10a), and that none constituted
problems affecting the complainants' capacity for "nor
mal functioning in whatever their daily activities would
be ."— 7 CA 1710a.
3. Success of methadone maintenance treatment
In defense of its refusal to employ any methadone
patient for any job, the Transit Authority claims that
methadone maintenance has "failed to achieve its goal
for the majority of patients". Pet. Br. 13. The Transit
Authority fails to specify exactly which patients and
what goal it is talking about. But what is relevant to this
case is that the vast majority of methadone maintenance
patients who remain in treatment after an initial
32/ In light of Dr. Kreek's testimony, and the over
whelming testimony of clinicians (see n. 26, supra), the
Transit Authority's suggestion that methadone programs
maintaining their patients on "low" doses do so out of
concern for the long term effects of the drug is
pointless.
adjustment period cease all substance abuse and obtain
and retain employment. It is this population-
methadone patients of more than a year—to whom the
district court has limited relief. Pet. 77a.
Elimination of Substance Abuse
As the district court found, the uniform experience
of methadone programs has been that " . . . the strong
majority of methadone maintained persons are success
ful, at least after the initial period of adjustment, in
keeping themselves free of the use of heroin, other illicit
drugs, and problem drinking." Pet. 42a.
Admittedly, in the early stages of methadone
maintenance many patients attempt to "challenge" their
methadone with heroin to see for themselves whether the
methadone blockade effect they have been told about
really works. Pet. 40a. Some methadone patients also
abuse other drugs or alcohol, the effect of which
methadone does not block. Within the first six months of
entering a methadone program, however, these problem
33/patients are readily identifiable.— Most patients who
— E ĝ., Tr. 10/25/74, p. 467, CA 847a ("there is . . . a
hard-core group who are very difficult for the programs
to work with, these represent a minority, and . . . pro
grams know who they are . . .); Tr. 2/7/75, p. 1089, CA
(continued next page)
continue treatment stop abusing drugs and alcohol. The
34/remainder either drop out or are expelled.—
2205a ("Those patients who are engaged in . . . [illicit]
activity stand out. The good patients kind of fade into
the background. . ."); Tr. 2/3/75, p. 1040-42, CA 2159-61a.
See also p. 50, infra regarding the extensive procedures
used by methadone maintenance programs to monitor
patients.
34/— Dr. Lukoff, a court's witness, explained the signifi
cance of the initial treatment process as follows:
There is always a self-cleansing in any rehabil
itation program where those [who] are more
interested in rehabilitation are the ones that stay
with your program. . . . These are the ones you're
referring to when you're talking about employ
ment.
Tr. 10/25/74, p. 468, 848a.
The evidence in the record substantiating the
district court's finding that most methadone patients who
remain in treatment cease all substance abuse was
exhaustive, and was recounted at length in the district
court's opinion. Pet. 40-42a; 44-45a. Except for
referring to a study by Chambers and Taylor and the
testimony of one witness, both of which were discredited
at trial (Pet. 39a), the Transit Authority generally
accepts the district court's finding. It argues primarily
only that the district court erred by not relying on the
characteristics of addicts who enter methadone treat
ment for a short period of time to discredit the majority
of patients who remain in treatment and succeed. (Pet.
Br. 16-18). The legal irrelevance of this argument is
explained at pp. 95-96, infra.
Employment Among Methadone Patients
Methadone patients who successfully adjust to
treatment are as employable as comparable persons
without addiction histories. And as the court found,
"there is impressive evidence about successful employ
ment among methadone patients." See, e.g., Pet. 42-44a.
Many methadone patients (thirty percent in some
methadone programs) are already employed at the time
they enter treatment. Others are employed in a matter
of weeks. The majority in many methadone programs are
employed within a year. Pet. 42-44a.
Most patients are not, as the Transit Authority
implies (Pet. Br. 22), working in small "pilot programs."
They are working throughout the economy, in ordinary
jobs, where their drug treatment histories are neither
known nor an issue. This was related to the district
court by Seymour Joseph, M.D., deputy commissioner of
the New York State Drug Abuse Control Commission and
a court's witness:
We have people in methadone treatment programs
who are performing any and every type of service
in this city and state, ranging from being out
standing members of the professions to laborers,
going through the gamut . . . you name it.
Most of the people with whom they work do
not know they are participating in methadone
46 -
treatment programs. They have no awareness of
it, just as I am sure . . . there are many people in
the agencies that are involved in this suit that too
have numerous participants in methadone treat
ment programs, but they are non-visible . . . .
Tr. 1/28/75, pp. 627-29, CA 1918-20a. Dr. Joseph's
testimony was confirmed by a number of other witnesses.
They and Dr. Joseph listed examples of ordinary employ
ment positions successfully held by methadone mainten
ance patients ranging from machine workers to truck
drivers to attorneys. E.g., Tr. 2/3/75,p. 1051, CA 2170a;
Tr. 2/7/75, pp. 1112-13, 1190-91, CA 2228-29a, 2306-07a.
Evidence was also received about methadone pa
tients' successful work experiences under referral rela
tionships that methadone programs have established with
many willing employers in the New York City area-
including, for example, Chemical Bank, New York Life
Insurance, Metropolitan Life Insurance, J. C. Penney,
McGraw-Hill, Seagram, Columbia Presbyterian Hospital,
Consolidated Edison, New York Telephone and the Off-
Track Betting Corporation. Pet. 44a; Tr. 10/25/74, pp.
421-22, CA 795-96a. A number of these employers
testified at trial, and, contrary to the Transit Authority's
claims here, their testimony was persuasive that metha
done patients perform as well as the general population.
An official of the Sheet Metal Workers Union
testified that his organization had accepted methadone
maintenance patients into positions involving the use of
welding equipment and hazardous machinery, often at
great heights with little or no supervision. Their job
performance had been "uniformly excellent" and indistin
guishable from that of drug-free individuals. Tr.
10/24/74, p. 333, CA 736-40a, 743a, PI. Ex. 38.
A vice president of the New York City Off-Track
Betting Corporation (OTB), testified about the experi
ence that OTB had had with two of its offices staffed
entirely by former addicts, about half of whom were
maintained on methadone. Tr. 10/29/74, p. 637, CA 1207—
09a, 1212a, PI. Ex. 44. Even though they were specifi
cally selected from a former addict group considered as
"hard core unemployable," the performance of their
offices was "indistinguishable from other OTB branches."
CA 1207a, 1209a. On the basis of this experience, OTB
had concluded that "neither former drug history alone
. . . nor participation in . . . methadone maintenance
treatment was a reason to disqualify a person from work
with large amounts of cash in an essentially unsupervised
high stress situation." CA 1209a.
The assistant vice president and medical director
of the Consolidated Edison Company testified that Con
Ed had knowingly hired about 100 former addicts, many
of whom were methadone maintenance patients. These
employees worked in a wide variety of positions and were
eligible for advancement along normal promotional lines.
48 -
Con Ed believed its experience with former heroin
addicts had been successful, and a controlled study of the
work performance of methadone maintained employees
indicated that it was as good as or better than average.
Pet. 43a; Tr. 10/25/74, p. 568, CA 1145-48a, 1150a, PI. Ex.
39.
The favorable testimony of these and other em
ployer witnesses was uncontroverted. The Transit
Authority did not produce a single witness who had
reached negative conclusions about the work perfor
mance of methadone patients.
E. Ability of the Transit Authority to Select Parti
cular Methadone Maintenance Patients for Employ
ment
"Intensive inquiry" by the district court established
that the Transit Authority and its existing medical staff
is capable of selecting methadone maintenance patients
for jobs "in basically the same way as . . . other prospec
tive employees." Pet. 46a; Tr. 1/2/75, p. 520, CA 1798a;
Tr. 2/3/75, p. 1005, CA 1831a. Indeed, due to the
extensive screening information available from treat
ment programs the Transit Authority can be more
assured of the employability of particular methadone
maintenance patients than of other job candidates.
The Transit Authority's ordinary employee screen
ing procedures include written, physical, and medical
examinations, and probationary performance evalu
ations.— ̂ For positions involving skilled work or high
level responsibility the Transit Authority also demands
proof of recent, directly related prior work experience.
Tr. 2/12/75, p. 1467, PI. Ex. 60.
Under the district court's judgment, the Transit
Authority has wide discretion to incorporate in its
screening procedure any reasonable selection criteria
with respect to methadone maintenance patients that it
deems appropriate, specifically including a requirement
that applicants have had a successful treatment record in
a reliable methadone maintenance program for a year or
other time period. Pet. 76-77a. The Transit Authority
is also free to require the transmittal of detailed
information about the applicant from the particular
methadone program involved. The evidence is that such
information would enable the Transit Authority to know
far more about methadone job applicants' reliability and
freedom from substance abuse than it does for other
persons.
Tr. 2/12/75, pp. 1261, 1284-85, 1287-92, 1365, 1442-
43, 1454-55; Tr. 1/31/75, pp. 820-22, CA 2042-44a, 2063a.
Under federal and New York law, methadone
maintenance patients are required to visit their treat
ment programs at least six days each week for their first
three months in treatment. The frequency of these visits
may be reduced gradually over a period of two years but
at no time to less than twice per week. CA 3163a, 3146-
Of? /
47a.— At their program visits patients are closely
observed by professional personnel, randomly given urin
alyses to check for drug use (at least once weekly under
federal and New York law), and engaged in a program of
37 /vocational and personal counseling.— The result is that
methadone programs have a wealth of information about
their patients' dependability that is potentially available
to employers. As the court noted, methadone mainten
ance patients are "under scrutiny far greater than is
usually given almost any other human being in normal
walks of life." Tr. 1/13/77, p. 172, CA 503a.
O f ? /
— The federal regulations reproduced in the court of
appeals appendix have been republished at 42 Fed. Reg.
46698 et seq. (Sept. 16, 1977) for the purposes of future
recodification at 2. C.F.R. 291.505 et seq.
— ' Tr. 10/22/74, pp. 15-19, CA 535-39a; Tr. 2/7/75, pp.
1082-87, CA 2198—2203a; 2/12/75, pp. 1372-77, CA 2327-
32a; Tr. 2/3/75, pp. 927-30, 1016-17, 1047-48, CA 2107-10a,
2140-41a, 2166-67a.
51-
Even some of the most outspoken critics of
methadone maintenance treatment admit that the infor
mation methadone programs have about their patients
far exceeds that which is available when an employer
normally selects a job candidate. For example, Irving
Lukoff, a court's witness and the person largely respon
sible for an apparently critical article regarding metha
done that had earlier concerned the court, testified:
In every [methadone] program they have much
more information than most personnel people have
in the ordinary course of their selection of people.
They know whether they have been abusing the
drugs in the program. They know their criminal
histories. They have had contact with them on a
weekly, sometimes daily basis for many months,
and they have a great deal of information to
understand the individual.
Tr. 10/25/74, p. 456, CA 836a. Lukoff's testimony was
confirmed by Drs. DuPont— ̂ and Dole^-^ and by Dr.
Q. Can participants in methadone mainten
ance treatment programs be screened for job
reliability with the same degree of certainty
that . . . the non-drug user walking in off the
street can be screened for job reliability?
A. The answer is yes, and I think you actually
have more—the employer has more knowledge
about him as a potential [employee] because of
the potential involvement of the treatment
agency in making those judgments. So actually he
(continued next page)
- 5 2 -
Rosenthal, another court's witness and critic of metha
done maintenance. Tr. 1/10/75, pp. 420-21.
It is clear, as the district court noted, that those
employers who have assessed their experience with
methadone patients as employees have not found evalu
ation of their employability a problem. Pet. 50a.
Thomas Doyle, of Con Edison, and Eileen Wolkstein of
Beth Israel Methadone Maintenance Treatment Program,
described to the court the successful performance of
employees screened on the basis of criteria no more
complex than nine months' methadone treatment, a
recent significant work history, and no overt behavioral
or psychiatric problems. Tr. 10/25/74, p. 568, PI. Ex. 39,
CA 1145-48a, 1150a; Tr. 10/25/74, p. 426-33, CA 799-806a.
Robert Schluter of the Sheet Metal Workers Union
testified that he had selected "excellent" apprentices
using only a six month treatment standard and requiring
patients to divulge the identities of their drug treatment
has more information on which to base his
judgments than he would for somebody who is
coming off the street.
Tr. 10/22/74, p. 38, CA 558a.
"You know more about a man coming to a metha
done clinic than virtually any other human contact that
you will have with another human being." Tr. 1/7/75, p.
95, CA 1576a.
counselors and make available their drug detection
urinalysis records. Tr. 10/24/74, p. 333, PI. Ex. 38, CA
736-40a, 743a. Doyle's and Schluter's testimony was
reinforced by Beny Primm, M.D.—executive director of
the Addiction and Research Treatment Corporation,
which treats the "hardest core" addicts—who testified
that any physician would be able to evaluate an individ
ual's addiction and treatment history on the basis of
medical records supplied by his methadone program. Tr.
1/27/75, pp. 520-23, CA 1798-1801a.
As for any specific question that an employer such
as the Transit Authority might have regarding whether
information about patients had been supplied by reput
able clinics, Dr. Primm explained that the determination
was "not very difficult" and could be easily done by a
Transit Authority physician relying on an easily acces
sible medical grapevine and a list of programs inspected
for compliance with strict state and federal regulations.
Tr. 1/27/75, pp. 524-26, CA 1802-04a. Dr. Dole agreed
that the regulatory agencies could be relied on in this
regard. Tr. 1/7/75, pp. 22-24, CA 1502-04a.
In its brief the Transit Authority has ignored the
one-sided evidence regarding the ease of methadone
patient screening, and has instead proffered the testi
mony of Drs. Trigg, Dole and Gollance for the proposi
tion that "the expert witnesses agreed" that an employer
would need "an unusual amount of advice and help" to
54 -
hire a methadone patient. (Pet. Br. 23-24). The
testimony of these doctors is referred to totally out of
context. For example, Dr. Trigg, as the Transit
Authority claims (Pet. Br. 24), did testify regarding his
interest in a former addict certification board. But Dr.
Trigg also testified that it is easy for a methadone
program to identify problem patients, that programs
identify them within a year, and that as an employer he
would find the recommendations of all public methadone
programs reliable. Tr. 1/10/75, pp. 369-61, 402-04. He
further testified that screening could be done reliably by
a single physician in cooperation with the patient's
program (Tr. 2/3/75, p. 857-58), and he specifically
corroborated Dr. Primm's testimony that program relia
bility could be assessed through government information
and the medical grapevine. Tr. 2/3/75, p. 858-59. The
Transit Authority's citations to Dr. Dole and Dr.
40/Gollance fare no better.—
— '' Dr. Dole's and Dr. Gollance's testimony cited by
the Transit Authority about an employer's need for an
unusual amount of help from someone experienced in the
methadone field was in response to the court's questions
about how an employer could evaluate a methadone job
applicant who had a very short treatment record. Tr.
1/7/75, pp. 95-97, CA 1576-78a; Tr. 1/9/75, p. 155, CA
1634a. It is this type of applicant that the Transit
Authority under the court's judgment has discretion to
(continued next page)
The Transit Authority's claim that methadone
programs are prohibited from providing adequate infor
mation to employers (Pet. Br. 25-26) is similarly base
less. The governing federal regulations were specifically
designed to permit employers to obtain the information
needed for rational employment decisions. CA 362-64a;
41/3185a; Pet. 50-51a.— And when employers have sought
information it has been fully provided on both a pre
employment and follow-up basis. E.g., Pet. 50a.— ^
exclude completely. It should be noted that during his
testimony Dr. Dole observed that a methadone patient
who had received the benefit of treatment for only six
months was, nonetheless, more employable than a cul
turally disadvantaged minority individual from the same
neighborhood with no addiction history. Tr. 1/7/75, p.
103, CA 1584a.
41/— As the district court recognized, it is clear under
42 C.F.R. §2.38 that a patient may consent to the
release of information relevant to employment to an
employer or prospective employer. Pet. 50-51a. The
restriction that programs not turn over information to
employers who will use it to discriminate on the basis of
a drug abuse history in no way precludes a program from
reporting current abuse. Dr. DuPont's testimony cited by
the Transit Authority (Pet. Br. pp. 25-26) concerning
somewhat more restrictive confidentiality rules preceded
the current regulations.
42/— The Transit Authority's claim that "all of the
experts questioned at trial" testified that methadone
(continued next page)
Every leg of the district court's finding that the
Transit Authority can reliably identify employable
methadone patients through its regular screening proce
dures rests, as the court of appeals found, on overwhelm
ing evidence. Pet. 2a. Indeed, given a fact finding
clinics would give only very limited information to
employers (Pet. Br. 25-26) is simply incredible.
Eileen Wolkstein, director of vocational rehabili
tation for the Beth Israel Methadone Maintenance pro
gram (6,700 patients) explained that her clinics initially
inform employers of a patient's history and how long the
patient has been free from drug abuse, that they
periodically provide reports containing any evidence of
renewed drug abuse, and that they inform an employer
whenever a patient is terminated from treatment. Tr.
10/25/74, pp. 424-26, 441-42, CA 797-99a, 814-15a.
Thomas Doyle, on the receiving end of this information
at Con Edison, specifically corroborated that his com
pany had received reports from Beth Israel that con
tained drug detection urinalysis results and reports of
missed medication. Dr. Doyle further stated he had
never been denied any treatment information he had
requested. Tr. 10/25/74, p. 572-73, CA 1154-55a. Joyce
Lowinson, M.D., who runs the Bronx State methadone
program, testified that her program also provides em
ployers with a variety of information, specifically includ
ing reports of drug abuse. Tr. 2/7/75, p. 1102, CA 2218a.
The Transit Authority's citations to "experts"
regarding the limited release of information result from
misreadings or attempts at gross distortion.
The Transit Authority cites the testimony of
Marybelle Perlman. In fact Ms. Perlman, a former
(continued next page)
57 -
process as comprehensive as that undertaken by the
district court, this finding, like every other factual
determination discussed above, was the only reasonable
one that could have been made.
counselor at a methadone program, testified that her
program always brings problems such as drug abuse to an
employer's attention. Tr. 2/3/75, p. 1050; CA 2169a. On
cross-examination she stated that any release of infor
mation would be governed by regulations and that she
would have to consult a lawyer before testifying further.
Tr. 2/3/75, p. 1060-61, CA 2179-80a. This the Transit
Authority cites as expert testimony that programs
provide only attendance reports and progress evaluations.
The Transit Authority similarly miscites Dr.
Joseph. In fact, he stated that methadone maintenance
programs would cooperate with employers to the fullest
extent consistent with federal law, with which he was
not fully versed. Tr. 1/28/75, p. 670, CA 1961a.
The Transit Authority further miscites the testi
mony of Henry Biggart of the Off-Track Betting Cor
poration, which received referrals through an inter
mediary, the Vera Institute. Biggart testified that Vera
had supplied information on missed medication or drug
abuse. He did state that there had been confidential
information that Vera had been unable to obtain, but he
concluded that he had never been denied any information
he felt necessary to the safe, efficient operation of his
business. Tr. 10/29/74, p. 662-64; CA 1238-40a.
58 -
SUMMARY OF ARGUMENT
I
Congress has just expressly declared the blanket
exclusion, by recipients of federal financial assistance,
of former drug abusers from employment to be unlawful.
Rehabilitation, Comprehensive Services, and Develop-
43/mental Disabilities Amendments of 1978 §122(a)(6)(C),—
(amending the Rehabilitation Act of 1973 §7(6), 29 U.S.C.
§706(6)). The legislative history of the 1978 Amendments
makes explicit Congressional intent to protect former
heroin addicts in methadone maintenance treatment
from the discrimination prohibited by section 504 of the
Rehabilitation Act of 1973, 29 U.S.C. §794. 124 Cong.
Rec. S 19002 (Daily Ed. Oct. 14, 1978) (Remarks of
Senator Williams). This legislation applies to and clearly
prohibits the Transit Authority's exclusionary methadone
policy. Inasmuch as review of the policy's constitutional
ity, or legality under Title VII, would have no bearing on
whether the Transit Authority or other employers may
continue such practices, it is submitted that the adjudi
cation of this case would not be "a provident expenditure
See note 45, infra, and accompanying text.43/
of the energies of the Court" and thus the writ should be
dismissed. Triangle Improvement Council v. Ritchie, 402
U.S. 497, 502 (1971) (Harlan, J., concurring in dismissal of
writ).
II
The Transit Authority's blanket denial of employ
ment to fully rehabilitated heroin addicts who are being
or ever have been treated in methadone maintenance
programs violates the Equal Protection and Due Process
Clauses of the Fourteenth Amendment. Applying the
well-established, minimum standard of judicial review
under those clauses to an extensive record, the courts
below correctly concluded that barring such individuals
from ordinary, non-safety-sensitive jobs bears no rational
relationship to any legitimate need of the Authority.
That conclusion more than adequately supports the
limited relief ordered below, which leaves the Transit
Authority discretion to exclude methadone patients
entirely from all sensitive jobs, to require a year of
demonstrated successful treatment prior to consideration
for other positions, and to require methadone patients to
meet all other ordinary employment criteria.
Both the constitutional ruling and its factual under
pinnings rest on an overwhelming record compiled in a
thoroughgoing manner by a district court with the utmost
solicitude for the interests of the Transit Authority.
The court acted only after satisfying itself that the
Transit Authority's absolute methadone policy was not
the result of any deliberate decisionmaking process. On
the contrary, the Transit Authority - - whose policy stood
in sharp contrast to the employment policies of the New
York State Civil Service Commission, the New York City
Civil Service Commission, and the federal government,
all of which provide for individualized job consideration
of former drug abusers, including methadone patients —
had persistently refused to give any objective considera
tion to whether excluding methadone maintenance pa
tients from its employ served its needs in any way.
Faced with this abdication, the district judge
conducted a thorough search for a rational justification
for the Transit Authority's policy, a search he carried
well beyond the initial presentations of the adversaries
to ensure that no basis for the policy went undiscerned.
The district court's inquiry resulted in a record that
conclusively establishes that methadone maintenance has
no adverse effect whatsoever on an individual's behavior
or job performance ability, that after a brief initial
adjustment period the majority of methadone patients
are fully employable, and that the Transit Authority can
readily identify the employable methadone patients
6 1 -
through the very procedures it follows in evaluating
other prospective employees.
In light of those findings it is clear that methadone
maintenance itself implies no risk of poor performance
or misconduct. There is simply no connection between
the methadone policy and safety, efficiency, or any other
conceivably relevant interest of the Transit Authority.
The limited relief ordered, which affects only jobs the
Transit Authority already deems suitable for alcoholics
in treatment, diabetics, epileptics, and cardiac patients,
confirms the absence of any impact on the safe operation
of the transit system.
The Transit Authority's complete failure to con
sider whether any justification existed for its policy, and
the total absence, as found by both courts below on
detailed findings of fact and an extensive record, of any
connection between the Transit Authority's policy and its
needs distinguishes the instant case from those in which
this Court has upheld a legislative classification as
rationally related to a legitimate governmental objec
tive. See, e.g., Massachusetts Board of Retirement v.
Murgia, 427 U.S. 307 (1976); San Antonio Independent
School District of Rodriguez, 411 U.S. 1 (1973). The
constitutional judgment below reflects an extremely
modest example of judicial review warranting this
Court's affirmance.
-62 -
III
The district court held, in the context of a motion
for an award of attorney's fees, that the Transit
Authority's methadone policy violates Title VII of the
Civil Rights Act of 1964 in that it has a disparate adverse
impact upon blacks and Hispanics and cannot be justified
by business necessity. The substantial overrepresenta
tion of blacks and Hispanics among that part of the
population that is addicted to hard drugs or in treatment
to overcome that addiction is not a statistical fluke: the
high incidence of drug addiction, like the high rates of
unemployment and infant mortality, has its origins in
centuries of purposeful, debilitating racial discrimina
tion.
The district court based its holding on statistical
data that shows a gross disparity between minority
representation in methadone maintenance programs (62-
65%) and among Transit Authority employees and appli
cants suspected of violating its drug policy (81%) and
minority representation in the population from which the
Authority draws its employees (20%). The record amply
supports the trial court's finding of disparate impact and
the Transit Authority, which offered no countervailing
evidence, cannot for the first time in this Court
challenge the completeness, accuracy, statistical signifi
cance or relevance of these data. Dothard v. Rawlinson,
433 U.S. 321, 331 (1977).
Moreover, the possibility that the Transit Authority
may have achieved racial balance in its work force
cannot justify the use of a selection criterion that
screens out minorities at a far higher rate than whites.
The only justification for such a criterion is business
necessity. Griggs v. Duke Power Co., 401 U.S. 424 (1971).
The Transit Authority has never even attempted to
determine whether methadone maintenance patients can
perform the kinds of non-safety-sensitive jobs at issue in
this case, and the trial court's holding that the Transit
Authority's methadone policy bears no rational relation
ship to its business or safety needs is clearly supported
by the record.
The extension by Congress of Title VII to public
employers is supported by both the Commerce Clause
and the Enforcement Clause of the Fourteenth Amend
ment. Unlike the minimum wage law at issue in National
League of Cities v. Usery, 426 U.S. 833 (1976), Title VII's
prohibition of racial discrimination in employment re
presents a paramount national interest, in no way
interferes with the "integral governmental functions" of
states or cities, id. at 851, imposes no costs on complying
6 4 -
jurisdictions, and therefore does not exceed Congress's
power under the Commerce Clause.
The application of Title VII's discriminatory effect
test to state and local governmental employers was also
a proper exercise of Congress' power under section 5 of
the Fourteenth Amendment. It has long been recognized
that Congress has the power to make findings and to
prescribe remedial measures for past discrimination
which go beyond the dictates of the Constitution. E.g.,
South Carolina v. Katzenbach, 383 U.S. 301 (1966);
Oregon v. Mitchell, 400 U.S. 112 (1970).
65 -
ARGUMENT
I
CONGRESS HAS JUST EXPLICITLY DECLARED
THAT PRACTICES LIKE THAT OF THE TRANSIT
AUTHORITY ARE UNLAWFUL UNDER THE
REHABILITATION ACT OF 1973. THE QUESTION
OF THE CONSTITUTIONALITY OF THE POLICY
IS OF NO FUTURE PRACTICAL SIGNIFICANCE
AND THE WRIT SHOULD BE DISMISSED.
Petitioners and amicus American Public Transit
Association attempt to create the impression that this
Court's decision will decide whether the New York City
Transit Authority, and similar systems across the coun
try, will have to give individualized consideration to the
employment of methadone maintenance patients and
other former heroin addicts. This Court may decide
whether the Constitution or Title VII invalidates the
Transit Authority's methadone policy. The Congress of
the United States, however, has removed from the
judiciary the question of whether that policy violates
federal law and answered, quite simply, yes.
Enacted subsequent to the acts of discrimination
suffered by the named plaintiffs, section 504 of the
Rehabilitation Act of 1973, 29 U.S.C. §794, provides that
"[n] o otherwise qualified handicapped individual . . .
shall, solely by reason of his handicap . . . be subjected
- 66 -
to discrimination under any program or activity receiving
44/Federal financial assistance."— On April 12, 1977, the
Attorney General of the United States issued an opinion,
based on extensive analysis of the legislative history,
that drug addicts are "handicapped individuals" protected
by the antidiscrimination provision of section 504. Br.
Opp. Cert. A5.
On October 14, 1978, both houses of Congress
confirmed that otherwise qualified persons with histories
of drug abuse are protected by section 504, by voting to
amend section 7(6) of the Rehabilitation Act, 29 U.S.C.
§706(b), to provide:
. . . Subject to the second sentence of this sub-
paragraph, the term 'handicapped individual'
means, for purposes of titles IV and V of this Act,
any person who (i) has a physical or mental
impairment which substantially limits one or more
of such person's major life activities, (ii) has a
record of such impairment, or (iii) is regarded as
having such an impairment. For purposes of
sections 503 and 504 as such sections relate to
employment, such term does not include any
individual who is an alcoholic or drug abuser
44/— According to the most recently published report of
the Metropolitan Transportation Authority, for the fiscal
year ended June 30, 1976 the New York City Transit
Authority received more than $135 million in federal
funds for operating assistance from the Urban Mass
Transit Administration. Metropolitan Transportation
Authority Annual Report-1976, pp. 51, 53.
- 67 -
whose current use of alcohol or drugs prevents
such individual from performing the duties of the
job in question or whose employment, by reason of
such current alcohol or drug abuse, would consti
tute a direct threat to property or the safety of
others.
Conference Report on H.R. 12467, the Rehabilitation,
Comprehensive Services, and Developmental Disabilities
Amendments of 1978, Sec. 122(a)(6)(C), 124 Cong. Rec. H
12675 (Daily Ed. Oct. 12, 1978), adopted by House of
Representatives, 124 Cong. Rec. H 13476 (Daily Ed. Oct.
14, 1978), and by Senate, 124 Cong. Rec. S 19002 (Daily
Ed. Oct. 14, 19 78 )^
45 /— This bill, which contains extensive amendments to
the Rehabilitation Act of 1973, has not, as of this
writing, been signed by the President. Whether the
package is enacted into law or not, this particular
provision remains an expression of Congressional ap
proval of the Attorney General's opinion (Br. Opp. Cert.
A 5) that qualified persons with histories of drug
addiction are to be considered handicapped persons
protected by section 504 of the Rehabilitation Act.
[Wjhile the legislative history of the 1973 act, as
authoritatively interpreted by the Attorney
General, made clear that qualified individuals
with conditions or histories of alcoholism or drug
addiction were protected from discrimination by
covered employers, this amendment codifies that
intent.
124 Cong. Rec. S19001 (Daily Ed. October 14, 1978)
(Remarks of Senator Williams).
- 68 -
The purpose of the amendment was stated by
Senator Williams:
This amendment is designed to make abso
lutely clear that employers covered by the act
must not discriminate against those persons hav
ing a history or condition of alcoholism or drug
abuse who are qualified for the particular employ
ment they seek.
124 Cong. Rec. S 19001 (Daily Ed. Oct. 14, 1978.)
The fact findings of Congress closely parallel those
of the trial court in the instant case:
The experience of treatment professional and
major employers alike has demonstrated that
many recovered alcoholics and drug abusers per
form competently and reliably in the full range of
tasks, skilled or unskilled, hazardous or not, that
make up the job market.
. . . From the Federal experience with drug
abuse treatment, it is abundantly clear that
substantial numbers of former heroin addicts are
fully capable of safe, efficient job performance
and are readily identifiable. A blanket refusal to
hire these individuals cannot be justified.
Id. at S 19001-02. Moreover, Congress addressed itself
specifically to the question of discrimination against
methadone maintenance patients:
. . . [A]n employer cannot assume that a history
of alcoholism or drug addiction, including a past
addiction currently treated by methadone main
tenance, poses sufficient danger in and of itself to
justify exclusion. Such an assumption would have
no basis in fact and the act does not permit it.
Id. at S 19002.
- 69 -
These statutory requirements go far beyond the
individualized consideration of certain methadone pa
tients for non-sensitive jobs ordered by the district
court. In the light of these developments, review of the
Transit Authority's absolute exclusionary policy can have
no impact on its present or future legality.
This Court has not hesitated to dismiss the writ
where supervening events have deprived the case of the
"special and important reasons" for review required by
Rule 19. Rice v. Sioux City Memorial Park Cemetery,
349 U.S. 70, 73 (1955). Although the Rehabilitation Act
was discussed in Respondents' Brief in Opposition to
Certiorari (pp. 26-28), only the subsequent passage of the
clarifying amendment made it absolutely clear that the
Act applies to practices like those of the Transit
Authority. Thus, this is a case where "further study of
the law [previously before the Court] discloses that
there is no need for an opinion of this Court on the
questions presented by the petition." Burrell v. McCray,
426 U.S. 471, 472 (1976) (Stevens, J., concurring in
dismissal of the writ).— ^
46/— See also Cook v. Hudson, 429 U.S. 165, (1976) (writ
dismissed where previously raised statute deemed signifi
cant when reviewed in light of a subsequent decision of
(continued next page)
- 70 -
In view of the diminished significance of the legal
issues before the Court, this becomes a particularly
appropriate case for dismissal of the writ given the
factual nature of the Transit Authority's argument.
In Newell v. Norton, 3 Wall. 257, 18 L.Ed. 271, Mr.
Justice Grier stated the considerations weighing
against Supreme Court review of factual determi
nations: 'It would be very tedious as well as a
very unprofitable task to again examine and
compare the conflicting statements of the wit
nesses in this volume of depositions. And, even if
we could make our opinion intelligible, the case
could never be a precedent for any other case, or
worth the trouble of understanding.' 3 Wall, at
page 267.
Dick v. New York Life Insurance Co., 359 U.S. 437, 454
(1959) (Frankfurter, J., dissenting on ground that the writ
should have been dismissed as improvidently granted).
Although the particular legal issues raised by this
case are not affected by the Rehabilitation Act as
recently clarified, the determination of those issues will
this Court); Triangle Improvement Council v. Ritchie,
402 U.S. 497, 499-500 (1971) (Harlan, J., concurring in
dismissal of the writ) (new statute, modeled after the
one before the Court when it granted the writ, altered
potential impact of a decision); Rice v. Sioux City
Memorial Park Cemetery, 349 U.S. 70, 75 (1955) (writ
dismissed'once significant legislation, cited to the Court
before the grant of the writ, was placed in proper
"perspective").
- 7 1 -
have no bearing on whether the Transit Authority or
other employers may continue the practices involved
here; therefore, the dispute between the individual
litigants is better left to the disposition of the courts
below. "This Court does not sit to satisfy a scholarly
interest in such issues. Nor does it sit for the benefit of
the particular litigants." Rice, 349 U.S. at 74; see also,
Triangle Improvement Council, 402 U.S. at 499 (Harlan,
J., concurring in the dismissal of the writ).
Accordingly, inasmuch as "the exercise of [the
Court's] power of review would be of no significant
continuing national import," respondents respectfully
submit that this Court should dismiss the writ of
certiorari. Triangle Improvement Council, 402 U.S. at
499 (Harlan, J., concurring).
- 72 -
II
THE DECISIONS BELOW THAT THE TRANSIT
AUTHORITY'S METHADONE POLICY IS UNCON
STITUTIONAL REST SOUNDLY ON APPLICA
TION OF THE TRADITIONAL "RATIONAL BASIS"
STANDARD TO OVERWHELMING EVIDENCE
AND MUST BE AFFIRMED.
The district court stated its conclusion, which the
court of appeals affirmed, quite simply:
[T] he blanket exclusionary policy against persons
on methadone maintenance is not rationally
related to the safety needs, or any other needs, of
the TA.
Pet. 19a. Both well established law and thoroughly
demonstrated fact required that conclusion.
In the first place, the courts below tested the
Transit Authority's policy by the traditional "rational
basis" standard of review under the Equal Protection and
Due Process clauses of the Fourteenth Amendment, not
47/by any heightened or "strict" scrutiny.— Moreover, the
47/ Because any substantive due process limit on public
employment criteria created by the Fourteenth Amend
ment liberty interest in employment, see note 53, infra,
would appear to be no more strict than the limits
imposed by the Equal Protection clause, plaintiffs cast
the remainder of their argument in equal protection
terms for convenience.
(continued next page)
- 73 -
district judge scrupulously avoided substituting his
empirical powers and policy judgment for those of the
Transit Authority. Rather, prompted only by the past
and continued refusal of the Transit Authority to
consider whether any justification existed for its policy,
the district court conducted the most thorough possible
canvassing of evidence regarding methadone mainten
ance, pro and con, expressly to ensure that no basis for
the Transit Authority's policy went undiscovered. That
exhaustive search brought forth overwhelming evidence
negating any relationship between the methadone policy
and each of the full range of justifications that could be
conceived in its support. Only then did the court grant
plaintiffs limited relief, leaving the Transit Authority
. J
While it is true that no procedural due process
claim is before this Court, Pet. Br. 35, plaintiffs note
that the administrative hearings provided Beazer and
Reyes were confined solely to determining whether they
had violated the Transit Authority's rule against narcotic
usage. Their participation in methadone maintenance
treatment, in the Transit Authority's interpretation,
made the conclusion obvious. The hearings were but
mechanical applications of the methadone policy and in
no way constituted individualized determinations of
qualification for employment. Indeed, as the district
court pointed out, the hearing board specifically found
that Beazer was performing competently while partici
pating in methadone maintenance, but had no choice
under the methadone policy other than to approve his
termination. Pet. 13a-14a.
- 74 -
broad discretion to set employment standards that will
rationally serve its needs.
Clearly, the judgment below constitutes judicial
review of a very modest sort and warrants this Court s
affirmance.
A. The Courts Below Applied the Rational Basis
Standard of Constitutional Review.
The Transit Authority has suggested to this Court,
48/
for the first time in the long history of this litigation,—
that the courts below erroneously subjected its metha
done policy to the "strict scrutiny" standard of review.
Pet. Br. 39-41; Pet. 13. The suggestion requires but brief
rebuttal.
Under the Equal Protection Clause of the Four
teenth Amendment, all governmental classifications
must meet the "rational basis" standard of judicial
review. See Maher v. Roe, 432 U.S. 464, 470 (1977);
Massachusetts Board of Retirement v. Murgia, 427 U.S.
307, 312-14 (1976); San Antonio Independent School Dis
trict v. Rodriguez, 411 U.S. 1, 17 (1973). The "rationality"
— See Adi ekes v. S. H. Kress & Co., 398 U.S. 144, 147
n.2 (1970) (the Supreme Court will not ordinarily consider
issues neither raised before nor considered by the court
of appeals).
- 75 -
test requires the revewing court to determine whether
the classification in issue
rationally furthers some legitimate, articulated
state purpose and therefore does not constitute an
invidious discrimination.
Rodriguez, 411 U.S. at 17; quoted with approval in Maher
v. Roe, 432 U.S. at 470.— /
The plain language of the opinions below makes
obvious that the district court and the court of appeals
applied this standard and no other. The district court
stated the standard of review as follows:
A public entity such as the TA cannot bar persons
from employment on the basis of criteria which
49/— In light of the clear application of the rational
basis standard —not strict scrutiny—by both courts below
and the equally clear invalidity of the Transit Authority's
policy under that standard, plaintiffs need not enter the
debate whether some third, intermediate level of review
is also implicit in the Equal Protection clause. See, e.g.,
Craig v. Boren, 429 U.S. 190, 210-11 (1976) (Powell, J.,
concurring); id. at 211-12 (Stevens, J., concurring); id. at
220-21 (Rehnquist, J., dissenting); Massachusetts Board of
Retirement v. Murgia, 427 U.S. 307, 318 (1976) (Marshall,
J., dissenting). Plaintiffs would only note that commen
tators have discerned in this Court's most recent
applications of the rational basis standard itself a
recognition that that test requires meaningful, albeit
limited, judicial review. See e.g., G. Gunther Constitu
tional Law — 1978 Supplement 216-17. The precise
content of the rational basis standard is discussed more
fully in part I.B., infra.
- 7 6 -
have no rational relation to the demands of the
jobs to be performed.
Pet. 64a (emphasis added). The court of appeals
affirmed the "district court's conclusion of law . . . that
the TA's methadone rule has 'no rational relation to the
50 /demands of the jobs to be performed.' " Pet. 2a-3a.
Nothing in the opinions below suggests that their
authors meant anything other than what they said. The
contention that the district court's careful review of the
evidence somehow equates with heightened scrutiny is
plainly wrong. Had the district court determined that
—/ The district court's conclusion that the methadone
policy was not "rationally related to the safety needs, or
any other needs, of the TA", Pet. 19a, also reflects
recognition of the appropriate standard. Indeed the
district judge's statements during the trial proceedings
demonstrate his awareness of the appropriate level of
review. See, e ^ , Tr. 11/27/74, p. 22 ("...there were lots
of jobs that really weren't covered by anything that has
been told to me so far as to any rational reason why
methadone people can't be employed.")
—/ The citations in the opinions below to Cleveland
Board of Education v. LaFleur, 414 U.S. 632 (1974); Sugar1
man v. Dougall, 413 U.S. 634 (1973); and Crawford v.
Cushman, 531 F.2d 1114 (2d Cir. 1976), do not reflect strict
scrutiny. In the first place, the opinions below must be
judged on the basis of the standard they articulate and
apply, not by assuming the authors adopted whatever
references to heightened scrutiny the cited decisions
contain. Second, the district court's discussion of
(continued next page)
- 77 -
striet scrutiny was appropriate, concluding that the
methadone policy was invalid would have required no
extended analysis. That conclusion would have followed
almost reflexively, given the policy's overinclusiveness.
The court's exhaustive canvassing and careful review of
evidence concerning both methadone maintenance and
Transit Authority employment proceeded, not from a
determination to apply strict judicial scrutiny, but from
the view that it could properly invalidate the Transit
Authority's policy only if thoroughly convinced that no
rational basis could be found to support it.
The Transit Authority's eleventh hour attempt to
rewrite the decisions below is an unpersuasive effort to
interject controversy where there was none. All parties
urged the courts below to test the Transit Authority's
52/policy by the limited "rational relationship" standard.—
The district court noted that "[t] here is no basic dispute
LaFleur and Dougall focused specifically on references in
those decisions to "rationality" review. Pet. 64a-65a.
See LaFleur, 414 U.S. at 651-53 and n.2 (Powell, J.,
concurring); Dougall, 413 U.S. at 647. Similarly,
Crawford, relied on by the court of appeals, expressly
followed Justice Powell's "rationality" concurrence in
LaFleur. 531 F.2d at 1122-23.
— ̂ See Brief of Plaintiffs-Appellees to the Second
Circuit at 36-37; Brief of Defendants-Appellees to the
Second Circuit at 19.
- 78 -
among the parties as to the constitutional doctrines
which apply to the present case." Pet. 64a. The court of
appeals recognized the same: "There was no dispute over
the governing constitutional doctrines. . . ." Pet. 5a.
In short, there was no controversy over the
governing constitutional standard below, and there is in
fact none here. The real constitutional question before
this Court is whether the district court correctly
concluded that the methadone policy bore no rational
relationship to any legitimate governmental interest.
The painstakingly unintrusive posture assumed by the
district judge and the record he compiled, not simply the
naked declaration of a standard of review, require that
that question be answered in the affirmative.
B. The Courts Below Correctly Concluded That the
Transit Authority's Methadone Policy Bore No
Rational Relationship to Any Legitimate Govern-
mental Interest.
In Massachusetts Board of Retirement v. Murgia,
427 U.S. 307, 312 (1976), this Court made clear that
classifications on which a public body conditions employ
ment must meet the test of rationality or else fall before
the Equal Protection Clause of the Fourteenth Amend
ment. See also McCarthy v. Philadelphia Civil Service
Comm'n, 424 U.S. 645 (1976); Schware v. Board of Bar
Examiners, 353 U.S. 232 (1957). The classification in
-79 -
Murgia withstood that test because it "rationally fur
thered] the purpose identified by the State. . . Id. at
314.
In the case at bar, on the contrary, the district
court assembled a comprehensive record on every con
ceivably relevant interest of the Transit Authority and
correctly decided that its methadone policy was rational
ly related to none. That record compelled the findings of
fact on which the court predicated its decision. The
constitutional ruling, in turn, followed ineluctably from
53/those findings.—
In urging this Court to affirm the determinations
made below under the rational basis standard, plaintiffs
by no means intend to denigrate the interests here at
stake or to gloss rover the unfairness with which the
Transit Authority and others have long stigmatized them.
This Court has recognized that an individual's
interest in employment falls within the concept of
liberty guaranteed by the Fourteenth Amendment. See
Murgia, 427 U.S. at 323 (Marshall, J., dissenting); Board
of Regents v. Roth, 408 U.S. 564, 572 (1972). Employ
ment is of peculiar importance to the plaintiff class.
Plaintiffs have never contended, and the courts below in
no way ordered, that the Transit Authority must be party
to drug abuse rehabilitation or that it must hire anyone
other than a fully qualified, reliable individual. Never
theless, employment is obviously the critical final step in
the reintegration of rehabilitated addicts into legitimate
society, which the Transit Authority's policy denies even
(continued next page)
- 80 -
1. The district court findings of fact rest on over
whelming evidence compiled through thorough
investigation and warrant this Court's acceptance.
The court of appeals concluded that the record
assembled during this trial
overwhelmingly supports the trial court's findings
that, after a brief initial period of adjustment,
many former heroin addicts on methadone main
tenance are employable and that identification of
those who are employable is readily accomplished
through regular personnel procedures.
Pet. 2a. Upon these and subsidiary fact findings, the
district court predicated its conclusion that the Transit
Authority's methadone policy is not rationally related to
any of its legitimate needs.
to those who are demonstrably ready. Because metha
done maintenance is a form of medical treatment that
may last years or indefinitely, the consequences of the
Transit Authority's policy are severe indeed.
Such policies do not arise out of mere happen
stance. Society unquestionably casts a stigma on former
addicts, and individuals with a history of drug abuse
continue to face the widespread discrimination that has
long confronted them in the employment sector and
elsewhere. As Dr. DuPont testified, pursuading em
ployers to judge rehabilitated addicts on the basis of
individual merit "is very difficult because of the general
prejudice about somebody who has a history of drug use."
Tr. 10/22/74, p. 99. See also Temporary State Commis
sion to Evaluate the Drug Laws, supra note 13, at 27
("widespread irrational discrimination on an unyielding
and categorical basis.")
(continued next page)
- 81 -
The brief of the Transit Authority consists largely
of attempts to impugn these findings by culling shards of
purportedly contrary evidence from the substantial
record assembled below. This tactical departure need
not long detain the Court. As the court of appeals noted,
"[o]n appeal the TA [did] not challenge any of Judge
Griesa's findings as factually erroneous, nor could it in
view of the one-sided record before us." Pet. 2a. This
Court should not set aside facts conclusively found by
the district court, affirmed by the court of appeals, and
unchallenged by the Transit Authority until the present.
See e.g., Blau v. Lehman, 368 U.S. 403, 408-09 (1962);
United States v. Commercial Credit Co., Inc., 286 U.S.
63, 67 (1932).
In the ordinary case the Transit Authority's
attempt to retry factual issues in the Supreme Court
Such long-standing stigmatization bears on the
Equal Protection Clause and the underlying "basic con
cept of our system that legal burdens should bear some
relationship to individual responsibility . . ." Weber v.
Aetna Casualty & Surety Co., 406 U.S. 164, 175 (1972),
quoted in Craig v. Boren, 429 U.S. 190, 212 n. 2 (1976)
(Stevens, J., concurring). In applying this principle to the
case at bar, plaintiffs urge that this Court consider that,
whatever the genesis of addiction, the judgment below
protects only those individuals who have shouldered
responsibility and distinguished themselves from any
group that might reasonably be thought to share a char
acteristic that would justify the denial of employment.
- 82 -
would require no extended comment. For, in light of the
extensive record as described supra, there can be no
serious contention that any of the district court findings
of fact are "clearly erroneous." Fed. R. Civ. P. 52(a).
54/
Nevertheless, plaintiffs stress that they do not
invoke Rule 52(a) as a cloak for concealing a district
court's substitution of its assessment of complicated
empirical data or its evaluation of policy priorities for
those of the Transit Authority. No such substitution took
place. On the contrary, the district judge stepped in only
when convinced that the Transit Authority would persist
54/— Indeed, in language befitting the case at bar, this
Court has followed the "clearly erroneous" rule with
respect to facts of such constitutional consequence as
the sectarian or nonsectarian nature of a school:
We cannot say that the foregoing findings as to
the role of religion in particular aspects of the
colleges are clearly erroneous. Appellants ask us
to set those findings aside in certain respects.
Not surprisingly, they have gleaned from this
record of thousands of pages, compiled during
several weeks of trial, occasional evidence of a
more sectarian character than the District Court
ascribes to the colleges. It is not our place,
however, to reappraise the evidence, unless it
plainly fails to support the findings of the trier of
facts.
Roemer v. Board of Public Works, 426 U.S. 736, 758
(1976) (plurality opinion of Blackmun, J.) (emphasis
added).
- 83 -
in its total refusal to consider whether its policy could be
justified. Even then he insisted on proceeding beyond the
presentation offered by the adversaries, in order to
ensure that no rational basis for the methadone policy
went undiscovered. When this process is examined, it
becomes clear that the findings of fact satisfy a much
more demanding standard than the "clearly erroneous"
test. As the court of appeals found, they are "over
whelmingly supported]" by the evidence. Pet. 2a.
Indeed, no reasonable fact finder — judicial, legislative,
or administrative --could have concluded otherwise.
The fact finding process here began with the
Transit Authority's refusal to evaluate its methadone
policy from the time the policy was adopted through the
55/close of the trial. As previously explained in detail,—
the methadone policy began as a mechanical extension of
the Transit Authority's rule against narcotics use.
Thereafter the Authority gave thought only to enforce
ment of the policy, never whether the policy itself was in
any way warranted.
The Transit Authority's abdication places this case
in wholly different circumstances from those in which
this Court has given substance to the presumption that
55/ See pages 16-24 , supra.
- 8 4 -
C.O /
governmental acts are constitutional.— 7 The Transit
Authority made no rough accommodation of competing
interests, acted upon no responsible study. In fact, the
policy stands on no accommodation or study at all. The
c o I
—7 In upholding Texas' property tax system of school
financing in San Antonio Independent School District v.
Rodriguez, 411 U.S. 1, 55 (1973), the Court elaborated on
the presumption of constitutionality:
The Texas plan is not the result of hurried, ill-
conceived legislation. It certainly is not the
product of purposeful discrimination against any
group or class. On the contrary, it is rooted in
decades of experience in Texas and elsewhere, and
in major part is the product of responsible studies
by qualified poeple. In giving substance to the
presumption of validity to which the Texas system
is entitled, . . . it is important to remember that
at every stage of development it has constituted a
"rough accommodation" of interests in an effort
to arrive at practical and workable solutions. . . .
(citations omitted). The circumstances surrounding the
Transit Authority's methadone policy were quite the
contrary, as the text above makes clear.
Not only are the factors noted in Rodriguez missing
in the specific circumstances of the case at bar, but a
more general basis for the presumption is also absent.
The presumption of constitutionality may be difficult to
overcome with regard to acts of a legislature in part
because the formal requirements and political con
straints inherent in the legislative process provide some
assurance that relevant points of view are aired and
considered. That assurance is lacking in the case of
administrative bodies or public agencies such as the
Transit Authority.
- 8 5 -
district court had no choice but to step into this vacuum
and to determine himself if a rational basis existed for
57/the methadone policy.—
57/— In light of the long-standing discrimination against
persons with a history of drug abuse, see note 53, supra,
and the unthinking equation of methadone maintenance
with heroin addiction, it is not surprising that the Transit
Authority has never seriously considered whether that
policy is justified:
[A] traditional classification is more likely to be
used without pausing to consider its justification
than is a newly created classification. . . . But
that sort of stereotyped reaction may have no
rational relationship — other than purely prejudi
cial discrimination — to the stated purpose for
which the classification is being made.
Matthews v. Lucas, 427 U.S. 495, 520-21 (1976) (Stevens,
J., dissenting).
Indeed, the Transit Authority's policy stands in
sharp contrast to those area agencies most directly
concerned with establishing criteria for public employ
ment. The policy of both the New York City Civil
Service Commission and the New York State Civil
Service Department is to consider applications for
employment from persons with an addiction history,
including current methadone patients, on their individual
merits. A history of drug abuse is not itself a bar to
employment, outside of a few safety-sensitive positions.
Pet. 51a-52a. See also N.Y. Civ. Serv. Law §50.4(c)
(McKinney) (only persons addicted to the unlawful use of
narcotics may be excluded from state and local civil
service positions). The lack of effect of the City's policy
on the Transit Authority is described at note 19, supra.
Similarly, federal employment may not be denied on the
sole ground of prior drug abuse. 21 U.S.C. §1180. In fact,
(continued next page)
- 86 -
However, the district judge continued to impose a
heavy burden of persuasion on plaintiffs on each factual
issue. Indeed, he refused to allow the constraints of the
adversary structure of civil litigation to mislead him into
overlooking a basis for the Transit Authority's policy. As
the parties drew their presentations to a close, the judge
commented:
What I am really saying is that if this were a case
about who owned a diamond ring, then let the
litigant — the adversary process would take over,
and if the plaintiffs put on the best proof — the
Court doesn't have to worry about whether enough
evidence is brought in. Let the parties put on
what they want and leave it at that. But this isn't
a ease about who owns a diamond ring; this is a
case that I fell [sic] - - and I don't want to
exaggerate its importance, but I think this is a
case of, really, extreme public interest, . . . .
• • • •
Both sides raise questions which are really very
important to the public interest.
I want to get my questions answered and I fell
[sic] that if the parties themselves do not put on
adequate proof, I am going to take steps to get it,
and I don't think I have gotten the whole story on
recent federal legislation clearly prohibits recipients of
federal financial assistance, which includes the Transit
Authority, from maintaining exclusionary policies like
the one invalidated below. An argument that this
legislation not only confirms the irrationality of the
Transit Authority's policy but warrants dismissal of the
writ of certiroari is made at part I. supra.
- 87 -
methadone, I don't think I have gotten the whole
story on methadone clinics. . . .
58 /Tr. 11/27/74, p. 28-29. As described above,— nine trial
days followed, during which all relevant issues were
thoroughly aired through witnesses of varying points of
view called by the court as well as the parties.
In sum, the district judge did not substitute his
personal judgment for that of the Transit Authority.
Acting only when satisfied that no independent judgment
had been made by the employer, he laboriously searched
the field lest he miss a justification for the methadone
policy. This deferential posture is not without relevance
to the appropriate measure of review to be given his
conclusions of fact. Cf. Hutto v. Finney, 98 S.Ct. 2565,
2572-73 (1978) (district court's exercise of discretion "is
entitled to special deference because of the trial
judges' . . . recognition of the limits on a federal court's
authority"). In these circumstances, the district court
must have some latitude to resolve the factual issues
that bear on a determination whether any rational
connection exists between the wholesale exclusion of
methadone patients from the Transit Authority's employ
and any of the Transit Authority's legitimate interests.
58/ See note 5, supra and accompanying text.
- 88 -
As the court of appeals found, the record "over
whelmingly supports" the district court's crucial factual
conclusions - - that substantial numbers of methadone
patients are employable and are readily identifiable as
such through the Transit Authority's ordinary screening
procedure. Pet. 2a. The statement of the "Fact Findings
and Record Below", pp. 12-57, supra, exposes in detail the
irrelevance and inaccuracy of the Transit Authority's
claims regarding the record and fully rehearses the
wealth of evidence those claims overlook. That discus
sion speaks for itself. It suffices here to say that where
a federal district judge has shown such conscientious
solicitude for the interests of a public employer yet finds
after thorough search that the evidence not only permits,
but compels certain findings of fact, there can be no
basis — in considerations of comity, separation of
powers, or democratic theory - - for rejecting those
findings. A contrary rule would serve only as an
incentive to policymaking bodies to proceed without
thought, confident that isolated remarks or a favorable
witness could always be found to vouchsafe whatever
decisions the institution had blundered into.
- 8 9 -
2. The legal conclusions below that the methadone
policy violates the Equal Protection test of ration
ality are correct.
While the rational basis standard is a relatively
lenient measure of review, this Court's recent applica
tions of the test, even in upholding legislative classifica
tions, have carefully examined purported connections to
government interests to ensure that a rational nexus
existed in fact. See, e.g., Ohio Bureau of Unemployment
Services v. Hodory, 431 U.S. 471, 489-93 (1977) Massachu
setts Board of Retirement v. Murgia, 427 U.S. 307 (1976).
Such review is imperative if the standard is to retain any
meaning:
Requiring the State to establish only that unequal
treatment is in furtherance of a permissible goal,
without also requiring the State to show that the
means chosen to effectuate that goal are rational
ly related to its achievement, [would make] equal
protection analysis no more than an empty
gesture.
San Antonio Independent School District v. Rodriguez, 411
U.S. 1, 68 (1973) (White, J., dissenting).
The district court, as affirmed by the court of
appeals, correctly concluded that the Transit Authority's
methadone policy could not meet this limited standard.
In the first place, the methadone policy reflects anything
but "the product of a deliberate and rational choice
which [the Transit Authority] had the constitutional
power to make." Alexander v. Fioto, 430 U.S. 634, 640
- 9 0 -
(1977).— Moreover, the district court eschewed any
reassessment of the legitimacy or importance of the
interests of the Transit Authority. The court accepted
the legitimacy of every proffered interest and tested
only for the existence of any connection between each
interest and the methadone policy. In every case the
court found the connection woefully lacking.
The court began from the two factual premises, see
part II.B.l., supra, that after an initial adjustment period
a substantial number of persons in methadone mainten
ance treatment are fully employable and present no
greater risk of misconduct or substance abuse than the
population at large and that these employable methadone
5 9 /
59 /— It bears repeating that the Transit Authority's
methadone policy stands in strong contrast to the
policies of the New York City Civil Service Commission
and the New York State Civil Service Department, which
provide that neither history of drug abuse nor current
methadone maintenance disqualify an individual for
employment in all but a few safety sensitive positions.
Pet. 51a-52a; see note 57, supra. The aberrational nature
of the Transit Authority policy is also revealed by com
parison to its own policy of individualized consideration
of persons with more familiar medical conditions, such as
diabetes, epilepsy, heart disease, or alcoholism. Indeed,
the Transit Authority not only retains rehabilitated
alcoholics in its employ, it does not automatically
discharge persons with current alcoholism conditions.
See Pet. 47a, 63a-64a; notes 20-22, supra and accom
panying text.
- 9 1 -
patients are readily identifiable through the Transit
Authority's ordinary personnel screening procedures.
Four reasons require affirming its conclusion that
excluding all those individuals from ordinary jobs bears
no rational relationship to any legitimate governmental
interest: (1) the mere fact of past or present methadone
maintenance has no behavioral or performance con
sequences of concern to an employer; (2) recognizing
employable methadone patients involves negligible
administrative costs; (3) the employability of methadone
patients rests on long-tested, proven propositions, not on
shifting scientific opinion; and (4) employing methadone
patients under the decisions below will in no way impinge
upon the safety of the transportation systems operated
by the Transit Authority.
a. An individual's past or present methadone mainten
ance, standing alone, implies no risk of poor perform
ance or misconduct.
As the district court found, individuals in metha
done maintenance treatment perform normally in terms
of both mental and physical functions and suffer no
undesirable side effects. Pet. 33a, 38a. After an initial
adjustment period, the strong majority are free from
illicit drug abuse and problem drinking. Pet. 42a.
Indeed, the findings suggest that the incidence of sub
stance abuse or antisocial behavior among stabilized
- 9 2 -
methadone patients is no greater than among any com-
60 /parable segment of the population. Pet. 21a.—
Given these premises, an employer has absolutely
no basis for assuming that the likelihood of reliable, safe
performance diminishes due to an individual's present or
past participation in methadone maintenance treatment.
The case at bar thus distinguishes itself from Massachu
setts Board of Retirement v. Murgia, 427 U.S. 307 (1976).
The underlying and indisputable presumption validating
the mandatory retirement policy in Murgia was that the
risk of physical failure increases with age and that the
number of people in a given group incapable of perform
ing under stress increases with age. 427 U.S. at 311.
Methadone maintenance presents a different
picture. For the individual officers in Murgia who passed
the annual physical, one could still assume that perfor
mance would eventually decline with age and that even
the physical examination would at some point lose
— ̂ The record substantiates the conclusion that the
pool of persons who have concluded six months or a year
in methadone treatment are as or more employable by
any measure than a comparable segment of the popu
lation. See, e.g., Tr. 1/7/75, p. 103 (methadone patients
after six months treatment more employable than com
parison group of disadvantaged minority individuals from
same cultural group and neighborhood who had no
addiction history) (testimony of Dr. Vincent Dole).
- 93 -
predictive validity. Thus both the annual physicals and
the mandatory retirement age were reasonable prophy
lactic devices, in the context of stress-filled law
enforcement duties, to accommodate the undeniable
correlation between age and diminished physical
capacity.
The successful methadone patient, however, pre
sents no greater risk of poor performance or misconduct
than the population at large. A policy excluding him
cannot rest on any assumption associating his past addic
tion or treatment status with a risk relevant to employ
ment: any such assumption, the record here unequivocal-
fil /ly demonstrates, would be pure fancy.— As applied to
—/ Congress too .has explicitly recognized the base
lessness of excluding methadone patients and other
former heroin addicts from ordinary employment:
From the Federal experience with drug abuse
treatment, it is abundantly clear that substantial
numbers of former heroin addicts are fully
capable of safe, efficient job performance and are
readily identifiable. A blanket refusal to hire
these individuals cannot be justified.
124 Cong. Rec. S19002 (Daily Ed. Oct. 14, 1978) (remarks
of Sen. Williams). This recognition resulted in legislation
that
makes clear that an employer cannot assume that
a history of alcoholism or drug addiciton, includ
ing a past addiction currently treated by metha-
done maintenance, poses sufficient danger in and
(continued next page)
- 9 4 -
individuals who have completed a year or more of
methadone treatment — and the judgments below protect
only them — the Transit Authority's policy clearly does
have
the effect of excluding from service so few
[individuals] who are in fact unqualified as to
render [the fact of methadone maintenance treat
ment] a criterion wholly unrelated to the ob
jective of the [policy].
Murgia, 427 U.S. at 316.—''
b. Identifying employable methadone patients is of
negligible administrative cost to the Transit Authority.
It is conceded that a majority of methadone
patients must go through an initial adjustment period
of itself to justify exclusion. Such an assumption
would have no basis in fact. . . .
Id. (emphasis added.) See also part I., supra, where this
legislation is described in detail to explain that it
warrants dismissal of the writ of certiorari.
o n I
— In upholding Massachusetts' mandatory retirement
policy, this Court expressly noted that the legislature
had operated on the principle that retirement should be
required at an age at which the efficiency of the "large
majority" of employees called for retirement in the
public interest. Murgia, 427 U.S. at 316, n. 9.
As the text above makes clear, no comparable
principle could possibly be invoked in support of the
Transit Authority's methadone policy.
(continued next page)
- 9 5 -
before they are employable and that a minority may
continue to evidence disqualifying behavior after as
much as a year in treatment. The district court's
findings and substantiating evidence suggest that the size
of that minority is not significantly different from the
percentage of the general population that might be
63/disqualified for poor performance or misconduct.—
Regardless, the courts below found that the Transit
Authority can identify the employable majority through
its ordinary selection procedures, or, in other words, with
negligible administrative expense. Pet. 21a, 45a; see
"Ability of the Transit Authority to Select Particular
Methadone Maintenance Patients for Employment,"
supra, at pp. 48-57.
Given the identifiability of employable methadone
patients,, the Transit Authority's only conceivable inter
est in excluding them is saving the administrative costs
of identification. Whatever the constitutional relevance
of such costs when they do exist, a public employment
criterion is surely irrational if a less exclusionary policy
would serve the employer's needs equally well with no
significant additional cost. See P. Brest, Processes of
Constitutional Decisionmaking 1004 n. 9 (1975).
6 3 / See Part II.B.2.a. supra.
- 9 6 -
This proposition demonstrates the irrelevance of
the Transit Authority's complaint that the trial judge
focused on evidence of performance, freedom from drug
abuse, etc., among methadone patients in treatment six
months or more (Pet. Br. 17, 20, 40). Verification of the
length of treatment is the most trivial of processes. The
district judge, again sensitive to the needs of the Transit
Authority, accorded it the discretion to set medical
standards requiring a year of treatment as a condition of
eligibility for employment. The discretion to set that
practically self-executing standard renders any Transit
Authority interest in excluding methadone patients in the
first months of treatment irrelevant to exclusion of
patients who remain beyond that period.
As for the minority of patients who remain in
methadone treatment yet continue to present a problem
of possible concern to an employer, the findings are
again clear that the Transit Authority's ordinary screen
ing procedures suffice to select out these individuals. As
explained in detail supra at pp. 49-53, the court
recognized that "there are large numbers of methadone
maintenance patients who are able to provide to a pro
spective employer satisfactory objective evidence of
employability." Pet. 47a-48a. At most, a reference
check with the methadone program is indicated, but as
the district court explained, "this is essentially no
different from obtaining relevant references for other
- 9 7 -
types of applicants." Pet. 50a, n. 3.— Again, excluding
employable methadone patients cannot be justified in
terms of the costs of identifying them, for those costs
are negligible.—
c. The constitutional rulings below do not rest on
unsettled scientific questions.
All the conclusions below regarding the employ-
ability of methadone patients rest on unusually settled
data. The district judge was adamant that his constitu
tional ruling not rest in any way on medical opinion that
might shift with time:
6 4 /
64/— Congress itself has joined in the recognition that
substantial numbers of former heroin addicts are "readily
identifiable" as fully capable of safe, efficient job per
formance. 124 Cong. Rec. S19002 (Daily Ed. Oct. 14,
1978) (remarks of Sen. Williams). See also note 61, supra.
— ̂ In this regard the Court should distinguish Murgia.
Plaintiffs there attempted to rely on the existence of
individual physical examinations which the state per
formed only as a prophylactic measure to detect deterio
rating performance prior to the retirement age. The
personnel screening undertaken by the Transit Authority
is employed to assess the risks of poor performance or
misconduct of all sorts in all applicants and employees; it
is not a special measure undertaken for early detection
of some risk of addiction by which respondents are
attempting to bootstrap an argument that an otherwise
justified exclusionary policy is unnecessary.
- 9 8 -
I don't want to write a Constitutional decision
about methadone and have it end up as a thing
that is a kind of variable, that someone has a
Constitutional right today and five years from
now the medical opinion is all different and they
don't have the Constitutional right. That is not
dealing in a sensible realm of Constitutionality. I
want very much to have the whole story on the
good and bad points of methadone. . . .
Tr. 11/27/74, p. 30. The judge was able to satifsy this
concern. The court's conclusions that methadone main
tenance is an efficacious form of treatment that permits
normal mental and physical functioning and that many
methadone patients are fully and identifiably employable
are based on evidence of over a decade of scientific
study and practical observation.
Tomorrow may find the discovery of a drug or
therapy that cures all addiction and leads to the dis
mantling of the methadone treatment effort. Such an
occurrence would have no effect on the functional,
behavioral characteristics of stabilized methadone
66 /patients on which the decisions below rest.—
— The text above makes clear that the case at bar,
unlike Marshall v. United States, 414 U.S. 417, 427 (1974),
involves no "medical and scientific uncertainties". In
addition, it should be noted that Congress has expressly
considered the federal drug abuse treatment experience
and concluded that large numbers of methadone patients
and other former addicts are fully, identifiably employ
able and that there is no factual basis for assuming that
(continued next page)
- 99 -
d. The decisions below in no way affect the safety of
the Transit Authority's operations.
Plaintiffs wish to stress that the judgment on
review in no way impinges on the safety of the trans
portation system operated by the petitioners. In this
regard the case at bar is again distinct from Massachu
setts Board of Retirement v. Murgia, 427 U.S. 307, 309-
10 (1976), which involved solely the stress-filled position
of state police officer, a position that this Court has
recognized is especially sensitive. See Foley v. Connelie,
methadone maintenance poses any danger that would
warrant a blanket employment ban like that of the
Transit Authority. See 124 Cong. Rec. S19002 (Daily Ed.
Oct. 14, 1978) (remarks of Sen. Williams); see also note 61,
supra. The legislative history alluded to by the Court in
Marshall, see 414 U.S. at 426, which pre-dated the
widespread implementation and evaluation of methadone
maintenance treatment, has simply not stood the tests of
time and proven experience.
Moreover, the decision in Marshall turned on an
explicit congressional determination, based on significant
evidence, that a three-time felon was a less likely candi
date for narcotics rehabilitation than an addict without
such a record. See 414 U.S. at 428. Respondents have no
quarrel with such a premise and note that the decisions
below expressly permit the Transit Authority to consider
an applicant's criminal record in determining employ-
ability. As Congress itself has now recognized, however,
there is simply no analogous premise to impugn the
employability of the identifiable majority of methadone
patients who are successful in treatment.
- 100 -
98 S.Ct. 1067, 1071-73 (1978).— ^ e re , by contrast, the
Transit Authority has made no challenge to the fact that
many of its job titles, including a host of clerical and
maintenance positions, are perfectly ordinary positions
that do not affect the safety of its system. See pp. 25-
28, supra. The Transit Authority's policy, which applies
to all but certain "safety-sensitive" titles, of retaining
employees with current alcohol problems, who present a
far greater risk than the methadone patient demon
strably free of substance abuse, confirms that fact.
Moreover, the district court left the Transit
Authority discretion to define safety-sensitive positions
from which methadone patients could be excluded. Pet.
67a. In light of the limited dimensions of the judgment,
the many Transit Authority jobs unrelated to the
system's safety, and the compelling findings that many
— ̂ The Transit Authority's implication (Pet. Br. 4) that
this case involves employee selection standards for the
Transit Authority police is false. Although the opinions
and judgments below do not speak directly to the issue
the plaintiffs have never challenged those standards.
Additionally, plaintiffs wish to note that the issue
before the Court in Bradley v. Vance, 436 F.Supp. 134
(D.D.C. 1974) (3 judge court), prob. juris, noted, 98 S.Ct.
2230 (1978), has no bearing on the case at bar. The
Foreign Service mandatory retirement provision chal
lenged in Bradley, like the police officer measure in
(continued next page)
- 1 0 1 -
stabilized individuals in methadone maintenance treat
ment present no greater risk of poor judgment, slow
reactions, or misconduct than the population at large,
there can be no argument that the decisions on review
affect the safe or efficient operation of the transit
. 68/ system.—
Murgia, applies only to sensitive jobs involving unusual
physical and psychological demands. As in Murgia, the
retirement rule rests on the inevitable consequences of
aging which affect physical ability and performance
under stress. Again, no such adverse assumption can be
made regarding the effects of methadone maintenance.
See part II.B.2.a. supra. Finally, the special demands
of Foreign Service careers have been the subject of
repeated congressional examination resulting in consis
tent legislative determinations that earlier mandatory
retirement for Foreign Service officers than other
federal civil servants is justified. See, e.g., 65 Cong.
Rec. 7564-65 (1924); S. Rep. No. 168, 77th Cong., 1st
Sess. 2 (1941); S. Doc. No. 14, 90th Cong., 1st Sess. 112
(1967) (Cabinet Committee study of federal staff retire
ment systems submitted to Congress as appendix to
annual Bureau of the Budget and Civil Service Commis
sion report on federal salaries).
— ̂ It bears repeating that Congress has confirmed that
there is no basis in fact for assuming that methadone
maintenance or a history of drug addiction poses any
danger to the safety of persons or property that would
warrant exclusionary employment policies such as that of
the Transit Authority. See 124 Cong. Rec. S19001-02
(Daily Ed. Oct. 14, 1978) (remarks of Sen. Williams); see
also note 61, supra.
- 102 -
C. Conclusion
The case at bar presents a striking picture of a
federal district judge, sensitive to the appropriate limits
of his office, who, when confronted with a governmental
body's abdication of its responsibility for rational policy
making, engaged in an exhaustive search for a rational
connection between policy and legitimate governmental
end, and found on compelling evidence that there was
none. Plaintiffs urge that if the invalidating of the
Transit Authority's methadone policy cannot be sus
tained, the Equal Protection Clause is indeed an empty
guarantee outside of those classes denominated suspect
or "quasi-suspect" and those interests deemed funda
mental. Neither modern case law nor sound notions of
judicial restraint warrants such an emasculation of that
clause. The constitutional ruling below should be
affirmed.
- 1 0 3 -
III
THE DISTRICT COURT WAS CORRECT IN
HOLDING THAT THE TRANSIT AUTHORITY'S
POLICY VIOLATED TITLE VII IN THAT IT HAD A
RACIALLY DISCRIMINATORY IMPACT AND
WAS UNRELATED TO BUSINESS NECESSITY.
It is respectfully submitted that no question relat
ing to the legality of the Transit Authority's policy under
Title VII of the Civil Rights Act of 1964 (42 U.S.C.
§2000e et seq.) (hereinafter, "Title VII") is properly
before this Court.
The only relief which depended upon the district
court's holding that the Transit Authority's methadone
policy violated Title VII, in that it had a disparate
adverse impact upon blacks and Hispanics and was not
job-related, was an award of attorney's fees. Pet. 71a.
The need for this jurisdictional base was obviated by the
subsequent enactment of the Civil Rights Attorney's
Fees Award Act of 1976 (42 U.S.C. §1988), which
provided an independent ground for the award of fees.
Tr. 1/13/77, p. 177, CA 508a; Pet. 75a-80a. The court of
appeals, affirming the award of fees under the 1976 act,
saw no need to reach the Title VII issues in the case.
-104 -
Pet. 3a-4a.— However, the district court's holding that
the Transit Authority's policy violated Title VII was
clearly correct.
There can be no doubt that the Transit Authority's
drug policy constitutes a form of racial discrimination
that goes beyond a mere technical showing of racial
impact. The Transit Authority's methadone policy is in
fact part of a broader policy banning the employment of
all persons with any history of drug abuse. And the
unfortunate fact is that drugs have long been in
trinsically linked to minority ghetto life. Eighty percent
of all active heroin addicts are black or Hispanic. Tr.
10/24/74, p. 460, CA 840a. Two of the named plaintiffs
are black and two are Hispanic. Beazer, who grew up in
Harlem, started using heroin at age 13:
Drugs was all around me, and in the neighbor
hood I live at that time was the constant
thing. . . . [T] he landlord was using drugs and
selling it. The super was using drugs and selling
69 /
69 /— Having upheld the district court's holding of a
constitutional violation, the court of appeals quite appro
priately pretermitted decision on whether the Transit
Authority's policy violated Title VII, since Title VII could
have afforded relief only to those members of the
certified class who were black or Hispanic.
- 105 -
it. My next door neighbor was using drugs.
Everyone was using drugs.
Tr. 10/24/74, p. 205, CA 591a. Reyes grew up in a public
housing project in Queens, and also started using heroin,
almost as a matter of course, when he was 13 years old:
I grew up—when I grew up it was something
that you grow up into . . . [Y] our friends are using
drugs, their brothers are using drugs. Your
mothers and fathers are. You don't really believe
it is that bad, not at that age.
Tr. 10/24/74, pp. 269-70, CA 668-669a. Dr. Dole
testified that the prototypical addict is someone who is
black or Puerto Rican, who is brought up in a
disadvantaged neighborhood, say East Harlem or
the Bronx or Brooklyn or some neighborhood
where an enormous exposure to narcotic drugs
occurred when he was in adolescence. They were
all over the streets and the action was to fool
around with drugs. . . . The big man in the neigh
borhood was the fellow with alligator shoes selling >
the stuff . . . In some ways, if you are a kid in that
cultural group in that neighborhood and you
haven't ever tried narcotics, you are out of it.
You are a deviant.
Tr. 1/7/75, p. 82, CA 1563a.
The contrast between the Transit Authority's
enlightened policy towards alcoholism—a problem with
which middle class whites are more familiar and less
uncomfortable—and its attitude toward drug addiction—a
problem primarily associated with minority ghetto dwel
lers—demonstrates the inherently racial nature of its
- 1 0 6 -
drug policy.— Indeed, the trial court might well have
found that the Transit Authority's knowledge that blacks
and Hispanics were in fact bearing the brunt of its drug
policy (Lanzetta Dep. p. 80, CA 2445a), was sufficient to
71/
support an inference of intentional discrimination.—
These are among the considerations that have led
7 0 /
70/— Of those admitted in 1977 to federally funded drug
treatment programs in New York State for heroin abuse,
85.5% were black or Hispanic, and 14.3% were white.
National Institute on Drug Abuse, Alcohol, Drug Abuse,
and Mental Health Administration, Public Health Ser
vice, Department of Health, Education and Welfare,
State Statistics. 1977, Statistical Series E, Number 8,
Table 3, p. 203 (1978). By contrast, of those admitted to
state or federally assisted alcoholism treatment pro
grams in New York State in the year ending March 31,
1977, 24% were black or Hispanic and 57% were white.
National Institute on Alcohol Abuse and Alcoholism,
Alcohol, Drug Abuse and Mental Health Administration,
Public Health Service, Department of Health, Education
and Welfare, State Alcoholism Profile Information Sys
tem, National Status Report Update, Vol. II, Table 26,
pp. 86-88 (May 1978).
71/— See Washington v. Davis, 426 U.S. 229, 253 (1976)
(Stevens, J., concurring); United States v. Texas Educa
tion Agency, 579 F.2d 910, 913 (5th Cir. 1978); United
States v. School District of Omaha, 565 F.2d 127 (8th Cir.
1977) (en banc) cert, denied, 434 U.S. 1065 (1978); NAACP
v. Lansing Board of Education, 559 F.2d 1042, 1047-48
(6th Cir. 1977), cert, denied, 434 U.S. 997 (1977).
- 10 7 -
commentators to conclude that Title VII prohibits dis
crimination against methadone participants:
[D] iscrimination against ex-addicts is more than
merely statistically related to racial discrim
ination. While courts tend to deal purely in terms
of numerical percentages, there is a link between
addiction and other problems more readily associ
ated with past racial discrimination. The concen
tration of heroin users in the poverty-stricken
slum areas of major cities provides one indication
of this connection. A high rate of addiction may
thus be seen as a product of past racial discrimi
nation. . . .
Note, Employment Discrimination Against Rehabilitated
Addicts, 49 N.Y.U.L.Rev. 67, 72 (1974).
A. The Facts as Found by the District Court, Unchal
lenged Below, Are Sufficient to Support a Finding
of Disparate Impact of the Transit Authority's
Policies on Minorities. 72/
The district court based its conclusion that the
Transit Authority's methadone policy has a racially
discriminatory effect on blacks and Hispanics on two
facts: 1) of the Transit Authority employees referred to
the Transit Authority's medical consultant for violations
72/— In responding to section II of petitioner's argument
respondents are reversing the sequence of issues briefed
in order to present the statutory question before the
constitutional one.
-108 -
of its drug policy, 80% were black or Hispanic and 19%
were white (Pet. 72a); and 2) between 62% and 65% of
methadone maintained persons in New York City are
black or Hispanic (Pet. 73a). By comparison, the
population from which the Transit Authority draws its
employees is only 20.1% black and Hispanic. A. 1041A.
The Transit Authority's challenge to the district
court's finding that its methadone policy had a disparate
adverse impact upon blacks and Hispanics consists
primarily of an attack, articulated for the first time in
this Court, upon the completeness, accuracy, statistical
significance and relevance of the data upon which the
district court relied. Pet. Br. 33-34, 49-52. Nowhere in
either the district court or the court of appeals did
petitioners raise any of the objections to the trial court s
findings that they raise here. This Court's remarks in
Dothard v. Rawlinson, 433 U.S. 321, 331 (1977) apply with
equal force to this case:
The plaintiffs in a case such as this are not
required to exhaust every possible source of
evidence, if the evidence actually presented on its
face conspicuously demonstrates a job require
ment's grossly discriminatory impact. If the
employer discerns fallacies or deficiencies in the
data offered by plaintiff, he is free to adduce
countervailing evidence of his own.
Petitioners offered no evidence at trial even suggesting
that minority representation among methadone main-
tainees was not substantially greater than minority
- 1 0 9 -
representation in the general population, in the Transit
Authority's work force, or in the Transit Authority's
73/applicant pool.—
The record contains ample evidence, in addition to
that cited by the district court, to support its finding of
disparate impact.
73/ The reason that there are no data in the record
regarding the precise racial breakdown of persons
actually dismissed from or rejected for Transit Authority
employment due to the methadone policy is that the
Transit Authority refused to make discovery on this issue
and the court denied plaintiffs' motion to compel such
discovery. See Plaintiffs' Interrogatories and Request
for Production addressed to Transit Authority defendants
(June 22, 1973) Nos. 52-53; Transit Authority Defendants'
Answers (October 23, 1973) Nos. 52-53; Plaintiffs' Affi
davit in Support of Motion for Sanctions for Failure to
Make Discovery, 06t. 18, 1973.
It is clear, however, that the overall population
statistics cited above amply support the court's findings
of adverse racial impact under Title VII. As demon
strated infra, it is precisely such statistics that have
been relied upon to establish unlawful racial discrimina
tion in cases directly comparable to the instant action.
Moreover, where, as here, a publicly admitted and
announced blanket policy is at issue, statistics relating to
the general workforce population and to the population
subject to the policy are clearly more relevant than any
other statistics, since most methadone patients would
simply not have applied for a job from which they knew
they would be excluded, no matter how eligible and how
anxious for such employment. See Dothard v. Rawlinson,
433 U.S. 321, 330 (1977).
- no -
There was expert testimony that blacks and His-
panics constitute 80% of all heroin addicts (Tr. 10/24/74,
p. 460, CA 840a), and that participants in New York's
methadone programs are predominantly black or Hispanic
(Tr. 1/7/75, p. 82, CA 1563a; Tr. 1/27/75, p. 489, CA
74/1767a).— Dr. Louis Lanzetta, the Transit Authority's
medical director, testified that he interviews all appli
cants and employees suspected of drug use (Lanzetta
Dep., pp. 24, 29, 79, CA 2402a, 2407a, 2444a) and that
between seventy-five and eighty percent are black or
Hispanic (Lanzetta Dep., p. 80, CA 2445a).
Petitioners complain that the district court did not
dispose of the Title VII question in their favor on the
basis of the Transit Authority's work force statistics.
Pet. Br. 33, 53. The implication that an employment
criterion which operates to exclude minorities at a
substantially higher rate than whites can be immunized
from scrutiny under Title VII by the presence in the work
force of a large number of minorities flies in the face of
Griggs v. Duke Power Co., 401 U.S. 424 (1971). Griggs
74/— In New York State, blacks and Hispanics comprised
85.5% of those admitted to treatment for heroin abuse in
federally funded drug treatment programs in 1977. See
note 70, supra.
- Ill -
teaches that to escape liability under Title VII an
employer must establish the job relatedness of "any given
requirement" that has a discriminatory effect. 401 U.S.
at 432. This Court recently reaffirmed the holding of
Griggs in Furnco Construction Corp. v. Waters, _____
U.S._____ , 98 Sup. Ct. 2943, 2951 (1978):
It is clear beyond cavil that the obligation
imposed by Title VII is to provide an equal
opportunity for each applicant regardless of race,
without regard to whether members of the appli
cant's race are already proportionately represent
ed in the work force. (Emphasis in original).
In Albemarle Paper Co. v. Moody, 422 U.S. 405, 425
(1975), this Court spoke to establishing a "prima facie
case of discrimination" on the basis of a test's impact on
"applicants for hire or promotion." Accord, Dothard v.
Rawlinson, 433 U.S. at 329. See also McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 n. 14 (1973). Several
lower courts have found adverse effect on the basis of a
selection criterion's racial impact, even though the
employer's work force or new hires included a higher
proportion of minority group members than did the local
75/population.— To hold otherwise would be to permit
— ̂ Green v. Missouri Pacific Railroad Co., 523 F.2d
1290, 1300 (8th Cir. 1975); Davis v. Washington, 512 F.2d
(continued next page)
- 112 -
employers to use a wide range of discriminatory non-job-
related selection devices, as long as minority representa
tion in their work force equaled minority representation
in the labor market. This in effect would create an
upper limit quota for minority employment, excluding
many from entry level jobs of the type involved in this
case, where, because of societal discrimination and
disadvantage, one would expect minorities to be over
represented. ;
In a number of cases courts have relied on a statis
tical showing of racial impact directly comparable to
that made out here to hold that employment policies
excluding persons on the basis of criteria such as arrests,
convictions, and garnishment were violative of Title VII.
See e.g., Green v. Missouri Pacific Railroad Co., 523
F.2d 1290, 1294-95 (8th Cir. 1975)(since blacks were 2 to 6
times more likely than whites to have conviction records,
employer's policy of refusing to hire any person with a
criminal conviction violative of Title VII); Gregory v.
Litton Systems, Inc., 316 F.Supp. 401, 403 (C.D. Cal.
956, 960-61 (D.C. Cir. 1975), reversed on other grounds,
426 U.S. 229 (1976); Johnson v. Goodyear Tire and Rubber
Co., 491 F.2d 1364, 1372-73 (5th Cir. 1974); Jones v. New
York City Human Resources Administration, 391 F.Supp.
1064, 1068-69 (S.D.N.Y. 1975), aff'd, 528 F.2d 696 (2d Cir.
1976).
- 113 -
1970), aff'd 472 F.2d 631 (9th Cir. 1972)(employer's use of
arrest records violative of Title VII since blacks national
ly comprise 11% of the population, and account for 27%
of reported arrests);— 7 Wallace v. Debron Corp., 404
F.2d 674 (8th Cir. 1974) and Johnson v. Pike Corp., 332
F.Supp. 490, 494 (C.D. Cal. 1971)(discharge of employees
whose wages have been frequently garnisheed violative
of Title VII since proportion of racial minorities among
the group of people who have had their wages garnished
is significantly higher than the proportion of minorities
in the general population).
— 7 See also Carter v. Gallagher, 3 Empl. Prac. Dec.
(CCH) 118205 (D. Minn. 197l), a ffd in relevant part, 452
F.2d 315 (8th Cir. 1971), a ffd in relevant part, 452 F.2d
315, 327 (8th Cir. 1972) (en banc), cert, denied, 406 U.S.
950 (1972) ("Comparison of the census data with the
arrest data reveals that there is and has been a
substantial and significant disparity between the per
centage of non-white persons in the city and the
percentage of non-white persons arrested . . . Since the
percentage of arrests was substantially higher for non
white persons in Minneapolis, the purported arrest record
qualification would have had a decided discriminatory
effect in discouraging non-white persons from applying
for the fire fighter position . . . " 3 Empl. Prac. Dec.
(CCH) at 6670).
- 114 -
B. The Transit Authority Made No Showing That Its
Methadone Policy was Job-related.
Once it was established that the Transit Authority's
methadone policy operates in a disparately adverse
manner upon blacks and Hispanics, the burden shifted to
the Authority to demonstrate that its policy bears "a
manifest relationship to the employment in question."
Griggs v. Duke Power Co., 401 U.S. at 432. "Congress
has commanded" that any selection criteria used "must
measure the person for the job and not the person in the
abstract." Id. at 436. Accord, Albemarle Paper Co. v.
Moody, 422 U.S. at 425.
The Transit Authority never even attempted to
meet this burden. It stipulated that it never studied the
requirements of any of its jobs to determine the present
ability of methadone maintained persons to perform
them. A.79A. Nor did it make any attempt to evaluate
the job performance of employees participating in
methadone maintenance programs, which employees
were later terminated when such participation was
discovered. A.80A.
As demonstrated, the Transit Authority's metha
done policy fails to satisfy the most lenient equal
protection standard—the rational relationship test.
Obviously the policy dramatically fails the far stricter
business necessity test. The Authority not only failed to
- 115 -
validate its policy—it failed even to think about it.
The district court was clearly correct in finding
that the policy has "no rational relation to the demands
of the jobs to be performed," that it "goes beyond any
rational or legitimate needs of the Transit Authority, and
excludes persons just as qualified for employment as
many who are hired by the Transit Authority." Pet. 64a,
67a.
C. Extension of Title VII Coverage to Public Employ
ers is a Valid Exercise of Congressional Power
Under Both the Commerce Clause and Section 5 of
the Fourteenth Amendment.
In the Equal Employment Opportunity Act of 1972,
86 Stat. 103, Congress extended Title VII to agencies of
state government, relying upon the authority granted to
it by the Commerce Clause, Article I, §8, cl. 3, and
Section 5 of the Fourteenth Amendment. See H.R. Rep.
No. 92-238, 92d Cong., 1st Sess. 19 (1971); S.Rep. No. 92-
415, 92d Cong., 1st Sess. 11 (1971); 118 Cong. Rec. 1816,
1839-40 (1972) (Remarks of Senators Williams and Javits).
Petitioners contend that in the light of this Court's
decisions in National League of Cities v. Usery, 426 U.S.
833 (1976) and Washington v. Davis, 426 U.S. 229 (1976),
neither source of legislative authority can sustain Title
VII of the Civil Rights Act of 1964 insofar as that law
bars state and local public employers from engaging in
- 116 -
practices which, while adversely affecting minority
groups, are not shown to be purposefully discriminatory.
Petitioners have overdrawn the scope of National League
of Cities and the impact of Washington v. Davis. Both
the Commerce Clause and the Fourteenth Amendment
support Title VII as amended in 1972.
1. The Commerce Clause authorizes application of
Title VII to agencies of state government.
National League of Cities established that Con
gress does not have the same unfettered control over
state and local government activities affecting inter
state commerce that it has over private businesses, and
that a statute proper as to private industry may be
invalidated if it interferes excessively with the "integral
governmental functions" of states or cities. 426 U.S. at
851. The constitutionality of such legislation depends
upon "the degree of intrusion upon the protected area of
state sovereignty" and the extent to which its object is,
as a legal or practical matter, an area of substantial
federal interest. 426 U.S. at 852-853.— / The federal
77/— National League of Cities does not indiscriminately
bar all federal legislation enacted pursuant to the
(continued next page)
— 117 —
interest in protecting racial minorities is well established
in our constitutional system, and transcends the type of
concern at issue in National League of Cities. Confor
mity with Title VII's effect rule, unlike the minimum
wage in National League of Cities, will not increase the
payroll costs of complying jurisdictions. Since Title VII
prohibits only selection practices which are non-job-
related, compliance will not interfere with any legiti
mate state or local policies.—^
Commerce Clause that would regulate state agencies in
their role as employers. The Court specifically declined
to overrule Fry v. United States, 421 U.S. 542 (1975)
(sustaining Congressional power to apply a wage freeze
to employees of state government); Parden v. Terminal
Railway Co., 377 U.S. 184 (1964) (sustaining Congressional
power to apply the Federal Employers Liability Act to
state-owned railroads); California v. Taylor, 353 U.S. 553
(1957) (sustaining Congressional power to apply the
Railway Labor Act to state-owned railroads); or United
States v. California, 297 U.S. 175 (1936) (sustaining
Congressional power to apply the Safety Appliance Act
to state-owned railroads).
78 /— The selection practice held violative of Title VII in
this case is also contrary to the law and policies of New
York State and New York City. See note 57, supra.
- 118 -
2. The extension to state and local governments of
Title VII's prohibition of practices which have a
disproportionately adverse impact but which are
not the result of a discriminatory purpose is a valid
exercise of congressional power under the enforce
ment clause of the Fourteenth Amendment.
The scope of the powers granted by the Enforce
ment Clauses of the Civil War Amendments is well
illustrated by reference to the cases involving literacy
tests for voter registration. In Lassiter v. Northampton
County Board of Elections, 360 U.S. 545 (1959), this
Court held unanimously that, absent proof of discrimina
tory purpose or discriminatory administration, North
Carolina's literacy test did not violate the Fourteenth or
Fifteenth Amendments.
Then the Voting Rights Act of 1965 was passed and
Congress suspended all literacy tests in the areas
covered by the Act, based upon evidence of discrimina
tory purpose or discriminatory administration in some
areas. Section 4(a) of the Act, 79 Stat. 438. When this
provision was challenged, this Court held that an across-
the-board suspension, even without prior adjudication of
a particular test's invalidity because of discriminatory
purpose or discriminatory administration, was appro
priate legislation to "enforce" the Fifteenth Amendment.
South Carolina v. Katzenbach, 383 U.S. 301, 333-34, 337
(1966).
- 1 1 9 -
The ban on literacy tests was extended nationwide
by section 201 of the Voting Rights Act Amendments of
1970, 84 Stat. 315, 42 U.S.C. §1973aa. Under this
amendment, no state or political subdivision of a state
could escape the ban by showing that it had never
discriminated in voting, and that it had never used any
"test or device" in a discriminatory manner or with a
discriminatory purpose. Despite the legality of such
literacy tests under the Fourteenth and Fifteenth
Amendments in areas, such as Arizona, which had never
discriminated or tried to discriminate, this Court unani
mously upheld the new right declared by Congress under
the Enforcement Clause of these Amendments. Oregon
v. Mitchell, 400 U.S. 112, 118 (1970).
The impact of the Enforcement Clause power upon
the scope of the Fourteenth and Fifteenth Amendments
rights is clear. In an area which the Court had refused to
enter because of the limitations on its power to define
violations of the Civil War Amendments, the Enforce
ment Clause gave Congress the power both to define new
rights and to provide new means of effectuating old
rights, in order to protect the underlying constitutionally
declared right to freedom from discriminatory obstacles
to voting. Similarly, it is clear that not every new voting
procedure in a state which had formerly discriminated in
voting would contravene the Fourteenth and Fifteenth
- 120 -
Amendments, but this Court has held that Congress had
the power under the Enforcement Clauses to suspend
such new procedures and to make them unlawful unless
the State carries the burden of showing that the changes
will have neither the purpose nor the effect of discrimi
nation in voting. South Carolina v. Katzenbach, 383 U.S.
at 334-35.
From the beginning, the Enforcement Clauses of
the Civil War Amendments have been held to invest
Congress, the branch of government expressly entrusted
with their enforcement, with the authority both to
create new rights serving the general purposes of the
Amendments, and to create new remedies to effectuate
those rights. To enforce the prohibition of "involuntary
servitude" in the Thirteenth Amendment, Congress had
the power to enact the anti-peonage statute, 14 Stat.
546, 18 U.S.C. §1581, which extended the definition of
Thirteenth Amendment rights to include compulsory
service to secure the payment of a debt, and extended
the remedy for their violation by providing criminal
sanctions. Clyatt v. United States, 197 U.S. 207, 218
(1905). To enforce the prohibitions of the Fourteenth
Amendment, Congress had the power to enact section 4
of the Civil Rights Act of 1875, 18 Stat. 336, 18 U.S.C.
§243, which extended the definition of Fourteenth
Amendment rights to include the right to freedom from
-121-
racial discrimination in service on grand juries and trial
juries, and provided the remedy of criminal sanctions,
and the remedy of removal, for such violations. Ex parte
Virginia, 100 U.S. 339 (1880); Strauder v. West Virginia,
100 U.S. 303 (1880). This Court had not itself defined the
scope of Thirteenth and Fourteenth Amendment rights to
include such matters at the time Congress enacted these
provisions, and it could certainly never have provided the
remedies discussed above.
Congress, therefore, clearly has the power under
the Enforcement Clause to define rights under the
Fourteenth Amendment which go beyond those indepen
dently guaranteed by the Amendment; it clearly has the
power to alter and shift the burden of proof required to
establish a violation of the rights secured by the
Amendment; and, it has the power t o . create new
remedies, of a kind different from that which the courts
themselves could create for their violation.
The only remaining question is whether the particu
lar Congressional action in question is appropriate under
the Fourteenth Amendment. In essence, does the
legislation conflict with an express prohibition in the
Constitution, is the legislation "adapted to carry out the
objects the amendments have in view", and does it tend
"to enforce submission to the prohibitions they contain"?
Ex parte Virginia, 100 U.S. at 345-46. Accord, McCulloch
- 122 -
v. Maryland, 17 U.S. (4 Wheat.) 315, 421 (1819); South
Carolina v. Katzenbach, 383 U.S. at 326; Katzenbach v.
Morgan, 384 U.S. 641, 650 (1977); Jones v. Alfred H.
Mayer Co., 392 U.S. 409, 443 (1968). Cf. James Everard's
Breweries v. Day, 265 U.S. 545, 559 (1924).
The holding of Washington v. Davis that purposeful
discrimination is a required element of a Fourteenth
Amendment violation did not purport to create a
constitutional right in a state to freedom from all
judicial inquiry as to its employment practices in the
absence of such a showing. It merely stated a limit to
judicial enforcement of the Amendment in the absence
of action by the branch of government the Amendment
had designated as primarily responsible for its enforce
ment. Compare Lassiter with South Carolina v. Katzen
bach.
On its face, the extension of Title VII to state and
local governments is adapted to carry out the objects of
the Fourteenth Amendment and to enforce submission to
its prohibition against discrimination. In evaluating the
propriety of the "inventive manner" in which Congress
exercised its authority to end purposeful discrimination
in voting by broadly prohibiting practices shown to have
had a disparate racial impact in some particular situa
tions, this Court held that such legislative action was
permissible where Congress had a sufficient factual basis
- 123 -
for deciding that there was a problem of sufficient scope
to warrant its intervention. South Carolina v. Katzen-
bach, 383 U.S. at 327, 329-31. Accord, Katzenbach v.
Morgan, 384 U.S. at 654-56; Oregon v. Mitchell, 400 U.S.
at 132-33 (Black, J.). Cf. Regents of the University of
California v. Bakke, ____ U.S. _____ , 98 Sup. Ct. 2733,
2755 n. 41 (1978) (Opinion of Powell, J.); Id. at 2812-13
(Opinion of Stevens, Stewart and Rehnquist, JJ. and
Burger, C.J.). In South Carolina v. Katzenbach, this
Court held that "Congress . . . may avail itself of infor
mation from any probative source", and held that studies
of the U.S. Commission on Civil Rights were such a
probative source. 383 U.S. at 330.
The legislative history of the Equal Employment
Opportunity Act of 1972 clearly shows a sufficient
factual basis for the extension of Title VII to local and
State governments. The U.S. Commission on Civil Rights
had issued a report in 1969, For All the People...By All
the People; A Report on Equal Opportunity in State and
Local Government Employment, which found extensive
employment discrimination by state and local govern
ments, both of the purposeful type and of the type
involving objective, facially neutral requirements adopt
ed in good faith but having a disproportionately adverse
- 1 2 4 -
effect on blacks,— and concluded by recommending the
elimination of the exemption of state and local govern-
7 9 /
79 /— The Commission's findings stated in part:
BARRIERS TO EQUAL OPPORTUNITY
4. State and local government employment
opportunities for minorities are restricted by
overt discrimination in personnel actions and
hiring decisions, a lack of positive action by
governments to redress the consequences of past
discrimination, and discriminatory and biased
treatment on the job.
(a) A merit system of public personnel admini
stration does not eliminate discrimination against
members of minorities. It proclaims objectivity,
but does not assure it. Discrimination occurs both
in recruiting and in selection among final appli
cants.
(b) Governments have undertaken few efforts
to eliminate recruitment and selection devices
which are arbitrary, unrelated to job performance,
and result in unequal treatment of minorities.
Further, governments have failed to undertake
programs of positive action to recruit minority
applicants and to help them overcome barriers
created by current selection procedures.
(c) Promotional opportunities are not made
available to minorities on an equal basis by
governments that rely on criteria unrelated to job
performance and on discriminatory supervisory
ratings.
For All the People at 119. Its Conclusion made the same
point at 131-32.
- 125 -
merits from the coverage of Title VII. Id. at 128. The
Senate Committee Report expressly relied on this report,
and cited its references to forms of discrimination not
involving discriminatory purpose:
The report's findings indicate that the existence
of discrimination is perpetuated by both institu
tional and overt discriminatory practices, and that
past discriminatory practices are maintained
through de facto segregated job ladders, invalid
selection techniques, and stereotypical miscon
ceptions by supervisors regarding minority group
capabilities. The study also indicates that em
ployment discrimination in State and local govern
ments is more pervasive than in the private
sector.
S.Rep.No. 92-415, supra, at 10. The House Committee
Report was substantially similar. H.Rep.No. 92-238,
supra, at 17.
Under the standards established by this Court since
■>
the passage of the Civil War Amendments, the extension
of Title VII to state and local governments was appro
priate legislation under the Enforcement Clause of the
Fourteenth Amendment.
- 126 -
CONCLUSION
WHEREFORE, plaintiffs respectfully pray that this
Court affirm the judgment of the court of appeals or
dismiss the writ of certiorari.
Respectfully submitted,
DEBORAH M. GREENBERG
ERIC D. BALBER
PATRICK R. COWLISHAW
Legal Action Center
19 West 44th Street
New York, New York 10036
ELIZABETH BARTHOLET
MICHAEL MELTSNER
MARK C. MORRIL
Attorneys for Respondents
RECORD PRESS, INC., 157 CHAMBERS ST., N. Y. 10007, (212) 243 5775