By Gerald L. Maatman, Jr., Jennifer A. Riley, and Emilee N. Crowther
Duane Morris Takeaways: In Wilson v. Timec, No. 2:23-CV-00172, 2023 WL 5753617 (E.D. Cal. Sept. 6, 2023), Judge William B. Shubb of the U.S. District Court for the Eastern District of California granted Defendants’ Motion for Partial Judgment on the Pleadings in a race discrimination class action. The Court held that Plaintiffs Marvonte Wilson and Domonique Daniels (“Plaintiffs”) failed plausibly to allege in their complaint that Defendants’ hair drug testing employment practice had a disparate impact or disparate treatment on individuals with melanin-rich hair under Title VII of the Civil Rights Act of 1964 (“Title VII”) or under the California Fair Employment and Housing Act (“FEHA”). This case serves as an important reminder to companies that utilize employment-related drug testing to stay vigilant as to the potential impact of their chosen drug testing protocols on certain populations and communities.
Plaintiffs, who both have melanin-rich hair, filed a complaint alleging that Defendants failed to provide them work assignments or opportunities on the basis of allegedly false positive hair drug tests. Id. at 1. Plaintiffs asserted that hair drug testing is less effective on melanin-rich hair, and persons of color who have melanin-rich hair are consequently at a higher risk of false positive test results than individuals with lighter-colored hair. Id. at 2. Plaintiffs filed a class action and sued on behalf of themselves and other similarly-situated workers alleging that the drug testing had a disparate impact on individuals with melanin-rich hair under Title VII and under the FEHA and that Defendants subjected them to disparate treatment. Id. at 1. In response, Defendant DISA (later joined by all other Defendants) filed a Motion for Judgment on the Pleadings (“Defendants’ Motion”). Id.
The Court’s Decision
The Court initially noted that Title VII prohibits employers from “discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race . . . or national origin.” Id. at 2 (quoting 42 U.S.C. § 2000e-2(a)(1)). Similarly, the FEHA prohibits employers from discriminating against an individual “‘in compensation or in terms, conditions, or privileges of employment’ on, inter alia, race, color, or national origin.” Id. (quoting Cal. Gov’t Code § 12940(a)). Due to the similar language between Title VII and FEHA, the Court opined that that “Title VII framework is applied to claims brought under the FEHA.” Id. (quoting Pinder v. Emp. Dev. Dep’t., 227 F. Supp. 3d 1123, 1136 (E.D. Cal. 2017)).
The Court reasoned that a disparate impact claim is proper when plaintiffs “plausibly allege that an employment disparity exists with respect to the protected group.” Id. (citing Liu v. Uber Techs. Inc., 551 F. Supp. 3d 988, 990 (N.D. Cal. 2021)). The Court dismissed Plaintiffs’ Title VII and FEHA disparate impact claims because it found that their complaint lacked substantive allegations sufficient to “establish a connection between race and the challenged” hair drug testing. Id. at 3. Namely, the Court held that, even though Plaintiffs raised allegations in their response to Defendants’ Motion “concerning the difference in the melanin content of dark hair in people of different races, the disparity in drug test outcomes between black and white employees, the difference in how drugs interact with the hair of black and white individuals, and the increased risk of false positive test results due to hair products used by black individuals,” “[n]one of th[o]se allegations appear[ed] in the [Plaintiffs’] complaint.” Id. at 2.
The Court also opined that a claim of disparate treatment is proper “where an employer has treated a particular person less favorably than others because of a protected trait.” Id. at 3. That said, the Court dismissed Plaintiffs’ Title VII and FEHA disparate treatment claims because Plaintiffs failed plausibly to allege that, in adopting their facially neutral drug-testing policies, Defendants “had discriminatory intent.” Id.
For these reasons, the Court concluded that Defendants’ Motion should be granted. Id. at 3. It provided Plaintiffs 20 days, or until September 26, 2023, to file an amended complaint. Id.
Implications for Employers
The Court’s ruling is an important win for companies facing disparate impact class actions in that it illustrates the high bar plaintiffs must meet to clear the pleading phase. In particular, the Court’s decision shows that plaintiffs must allege facts showing an actual connection between the challenged practice and the protected category at issue. That said, companies that utilize employment-related drug testing should be proactive and stay apprised of research surrounding their chosen drug tests and their potentially disparate impact on various communities. Additionally, companies should evaluate their drug testing policies and practices to ensure they remain free of discriminatory intent and potential bias as to any particular community.