NEW YORK TRANSIT AUTHORITY v. BEAZER

Transcript: 

Argument of Joan Offner

Chief Justice Warren E. Burger: We will hear arguments next in New York City Transit against Beazer.

I think we will defer a moment until two of our colleagues get back Ms. Offner, three colleagues.

And I think we will proceed whenever you are ready Ms. Offner.

Mr. Offner: Thank you.

Mr. Chief Justice and may I please the Court.

This case involves a challenge to an employment policy of the New York City Transit Authority, which excludes from employment heroin addicts participating in methadone maintenance programs.

The District Court found this policy to be an unconstitutional denial of the equal protection of the laws to methadone patients and found further that the policy had a disparate impact on Blacks and Hispanics in violation of Title VII of the Civil Rights Act of 1964 as amended in 1972 to apply to government agencies.

The Second Circuit affirmed the finding of unconstitutionality and declined to rule on the Title VII question finding it unnecessary to do so.

Both the constitutional question and the Title VII question are before the Court today.

I propose to address myself first to the Equal Protection issue.

Justice William H. Rehnquist: Well, it is conceivable as it is not that if we were to decide that the Court of Appeals have been incorrect on the constitutional issue, we would not have decide the Title VII issue ourselves, but send that back?

Mr. Offner: Send the Title VII question back?

Justice William H. Rehnquist: Yeah, under the new statute.

Mr. Offner: To the Circuit Court?

Justice William H. Rehnquist: Yes.

Mr. Offner: That could be done, that could be done.

Justice Byron R. White: But didn't the Circuit Court say there was a violation of Title VII?

Mr. Offner: No, the Circuit Court did not.

What happened in this case, Mr. Justice White is that --

Justice Byron R. White: Well, it did for the purposes of attorney's fees, didn't it?

Mr. Offner: The District Court found that Title VII violation for the purpose of awarding attorney's fees.

At that time The Civil Rights Attorney's Fees Awards Act of 1976 had not yet been enacted.

During pendency of the appeal it was enacted and therefore the Circuit Court found it unnecessary to consider the Title VII question.

Justice Byron R. White: Well, did the – did either Court or anybody suggest why the constitutional issue was reached without deciding the statutory issue?

Mr. Offner: No, as a matter of fact I think it went just the other way in the District.

The District Court found the Equal Protection violation and said it was therefore unnecessary to deal with the Title VII.

Justice Byron R. White: Do you see anything odd about that?

Mr. Offner: Do I see anything odd of it, I certainly do, but that is the way the original District Court decision went.

Justice Byron R. White: And the Court of Appeals apparently didn't find anything wrong with that either?

Mr. Offner: Apparently they did not.

That is expressly stated in the District Court decision.

They said toward the end of their decision that having found an Equal Protection violation, there was no need to deal with the Title VII question.

The proof that we are dealing with in this case in terms of the Equal Protection issue, consists of heroin addicts, who are participating in methadone maintenance programs.

It is the contention of the respondents that this group is entitled to equal consideration for jobs to the same extent as the non-addict job applicant.

Chief Justice Warren E. Burger: For all jobs?

Mr. Offner: For all jobs.

Well, let me qualify that.

To the extent that the District Court established narrower boundaries for consideration of these people for jobs, there is not limitation.

The District Court said that in certain, what they regarded as safety sensitive positions, it would not be necessary.

Chief Justice Warren E. Burger: The District Court opinion would not let a drug addict run one of these --

Mr. Offner: Well, the District Court specified motorman, conductor, bus operator and positions dealing with power equipment.

I suggest however Mr. Chief Justice that the District Court exceeded its boundaries in reaching that decision.

In the first place the District Court had to make a finding of unconstitutionality in order to reach the point of addressing itself to what or to be a rational policy for the Transit Authority.

The Transit Authority's contention is that its policy has a rational relationship to a legitimate need and that the constitution does not impose on employers an obligation to participate in what amounts to a sociological experiment.

The Transit Authority's refusal to employ methadone patients is based on a variety of considerations, all of which are supported by the record in this case.

In the first place the Authority is involved in a very difficult and demanding job of providing subway and bus transportation to the people of the city of New York on a vast scale, transporting something like two billion passengers over the course of the year.

It is our considered view that the responsibilities involved in that operation require us to employ people in all job categories, who meet at least reasonable standards of reliability and stability.

And those considerations, taken together with the uncertainties and the failures of methadone treatment and the difficulties of determining the employability of methadone patients form the basis and the underpinning for the Authority's policy and I think its appropriate to note in this connection that this Court in Marshall against The United States expressed the very same concerns about the state of drug rehabilitation programs, the validity, the uncertainty and interestingly enough Marshall against the United States was decided in the very same year as the trial that was conducted in this case, 1974.

The record in this case contains the testimony of a number of medical experts, most of whom were proponents of methadone maintenance.

At the same time that they were extolling the virtues of methadone maintenance as the treatment for heroin addiction, they nevertheless were constrained to admit that there was and is substantial drug and alcohol abuse among methadone patients.

They testified to the disruptive behavior of many patients at the clinics to the black market that exists in methadone with patients selling their take-home doses on the street, and most importantly to the issue in this case, they testified to the fact that methadone as a treatment for heroin addiction works sometimes.

Indeed one of the respondents --

Chief Justice Warren E. Burger: Sometimes what?

Mr. Offner: Sometimes for some, for some heroin addicts.

It works for some heroin addicts.

It stabilizes some of them.

Justice John Paul Stevens: Ms. Offner, before you get too deep into your argument, I would like to ask you a question about the precise class we are talking about.

As I understand the Transit Authority's Rule, it's Rule 11 (b) that is challenged as being an improper classification and that talks about people, who are using drugs in one form or another and the challenge is that your treat methadone as a drug?

Mr. Offner: Correct.

Justice John Paul Stevens: You say that's but -- now what is the state of the record with respect to persons who formerly used methadone but do not now taking any drugs at all, say someone who had gone on rehabilitation program and claimed he was cured.

Is the record clear on what the Transit Authority's policy is there?

Mr. Offner: There was very little attention paid during the course of the trail to people who detoxified from methadone, in another words people who were totally drug free.

The Transit Authority's Executive Office for Labor Relations testified that the Transit Authority indeed will categorically exclude from employment current methadone users and people who are relatively recent methadone users, but that the Authority would give individual consideration to people, who have been totally drug-free for a period of at least five years and can demonstrate that they are maintaining a stable existence in terms of jobs, in terms of family life, in terms of their social obligations.

The District Court's opinion in two places that I can recall indicated that they were sure that the Transit Authority's policy extends as far back as relatively recent methadone users, but that it was not clear as to what the policy was with regard to people who are totally drug-free for a substantial period of time.

Now it is our contention that the record is clear because we have the testimony, un-controverted testimony of our Executive Officer with regard to that policy.

Justice John Paul Stevens: So your view would be that the there is no absolute exclusion of those persons who have been free for four, five years?

Mr. Offner: Correct.

Justice John Paul Stevens: And certainly the language of 11(b) itself would be consistent with your explanation --

Mr. Offner: That is correct Mr. Justice Stevens.

Justice William H. Rehnquist: Three of the four members of the class were presently participating in methadone, were they not?

Mr. Offner: Yes, that is right.

In terms of the usefulness of methadone as a treatment for heroin addiction for the class as a whole I think its very interesting to note the testimony of one of respondent's own medical experts, who testified that out of the 600 patients in his clinic, only 10 had achieved a sufficient level of stability at the end of two yeas in treatment to qualify for reduction of their mandatory clinic visits down to twice a week.

Chief Justice Warren E. Burger: In how many years?

Mr. Offner: Two years in treatment.

There was also conflicting testimony from the various experts as to the relative merits of high dose methadone programs as opposed to low-dose methadone program and with regard to methadone programs as such compared with detoxification programs.

There has obviously not been any unanimity among the medical experts as to what constitutes an effective tool for dealing with heroin addiction.

Justice William H. Rehnquist: Ms. Offner, if this were a diversity case or the issue had been whether or not methadone participants can be satisfactory employees and the District Court had heard the evidence it did and made the findings it did, would you say that successful argument because it made to a Court of Appeals that its findings were clearly erroneous?

Mr. Offner: That is not my contention --

Justice William H. Rehnquist: You don't have to --

Mr. Offner: -- Mr. Rehnquist.

Excuse me?

Justice William H. Rehnquist: You do not have to go that far here.

Mr. Offner: No I don't go that far.

The essence of my argument with regard to what the District Court did here is that the District Court misunderstood the rational basis test.

For the most part, I'm not challenging what the District Court found.

They found no more than that called substantial numbers of heroin addicts are helped to a stable condition by methadone.

The essence of my argument is that that is not enough to establish a finding of unconstitutionality under a proper application of the rational basis test.

The uncertainties of methadone treatment are compounded by the difficulty of ascertaining the employability of individual methadone patients.

The experts were generally in agreement that when a methadone patient applies for job, he presents a special problem to the employer and that the employer needs some assistance in evaluating this individual.

The question is where that assistance is to come from.

A number of the experts were frankly skeptical about the validity and usefulness of information that the employer might obtain from the personnel at the methadone clinic.

On the average there is one doctor for every 200 methadone patients at a public methadone clinic, so that by in large evaluations of the patient's progress in treatment is coming from non-professional counselor personnel of the methadone clinics, who as the experts indicated very considerably in their competence and in their reliability.

This problem is further compounded by Federal confidentiality regulations, which provide that even if there is consent by the patient, the methadone clinic cannot disclose information -- specific information about the patient's condition to an employer unless the employer makes a commitment that he will not or that it will not use the information adversely to the patient's interest.

It is almost a catch-22 situation where the employer will not be given specific information about the patient unless the employer makes the commitment not to use the information.

The idea is that the employer is supposed to use the information to make an effort to rehabilitate the patient, which is all well and good but the employer as we see it has other obligations and that is to keep the subway system running.

The classification in this case does not involve any fundamental interest as that term has been defined by this Court nor does it involve any suspect category as enumerated by the Court; race, national origin, alienage, in some instance is wealth, not does it involve immutable characteristics of birth such as those inherent in sex classifications and classifications of illegitimacy.

The group characteristic in this case consists of a self-inflicted heroin addiction and methadone maintenance and that being so there is no dispute among the parties that the proper test to be applied in the Equal Protection analysis is the rational basis standard.

That standard as clarified by this Court in recent years gives to the Transit Authority policy a presumption of validity, doesn't require individualized consideration, approves the use of broad classifications as long as those classifications are rationally related to legitimate objectives.

Contrasted with that standard, of course is the strict scrutiny standard in which there is not a presumption of legitimacy in which broad classifications are not acceptable and in which the government classification must be shown to be based on a compelling need.

What happened in this case was that both the District Court and the Circuit Court, thought they were replying or intended to apply rational basis standards, but took their instruction from cases that dealt with the strict scrutiny standard, specifically Sugarman against Dougall and LaFleur against Clevenland School Board.

As a result they misunderstood the rational basis standard and in effect viewed the evidence in this case through the wrong end of the telescope.

They focused their attention on the minority of methadone patients who become stabilized and did not deal with the fact that the majority of methadone patients do not become stabilized.

Influenced by the strict scrutiny standard, both of the lower courts decided that the Transit Authority policy was overly broad and that the Equal Protection Clause required a more individualized approach.

We submit that under a proper rational basis analysis, the operative fact in this case is not that some methadone patients may become employable, but that most of them do not; and added to that of course is the difficulty of determining employability in individual situations.

We submit therefore that there is ample evidence to support the policy of the Transit Authority and the absence of the invidious discrimination necessary for finding of unconstitutionality under the Equal Protection Clause.

I would like to turn now to the Title VII question.

Several months after finding an equal protection violation, the district court rendered a supplemental decision in which it found that the policy of the authority had a disparate impact on Blacks and Hispanics, and therefore violated Title VII of the Civil Rights Act.

I submit to this Court that the district court decision totally distorts the concept of disparate impact as established in Griggs against Duke Power and as carried forward in Albemarle against Moody and most recently I think in Dothard against Rawlinson.

Justice Potter Stewart: May I ask Ms. Offner, I am correct am I not in my understanding that the Court of Appeals didn't reach the Title VII issue?

Mr. Offner: It did not reach the Title VII issue, yes.

Justice Potter Stewart: And since it didn't do so, how or why is that issue now before us?

Mr. Offner: It was one of the questions that are posed in the petition for Cert Mr. Justice Stewart and Cert was granted on that issue.

Justice Potter Stewart: That was a question wholly undecided by the Court of Appeals, whose judgment we are now reviewing, isn't that?

Mr. Offner: That is quite true.

Nevertheless as I say, it was one of the two questions on which this Court granted certiorari.

Justice Potter Stewart: Alright.

Chief Justice Warren E. Burger: That could not be uncommon perhaps with a view to keeping the matter before the Court for possible remand for consideration by it if there were no other basis of disposition?

Mr. Offner: I do not disagree with the Chief Justice.

Justice William J. Brennan: Ms. Offner, are you going to address the argument of the effect of the Rehabilitation Act?

Mr. Offner: Yes, I do intend to do that.

I would just like to say very briefly on the Title VII question that as I understand the disparate impact cases which this Court has decided, each of those cases involved an actual absence, significant absence of minorities from the particular employer's workforce.

And that absence existing, the court then looked to the particular challenged employment policy to determine whether that policy was where the fault lay.

In our case, no such absence exists.

In fact, the Transit Authority's employment pattern includes 46% Blacks and Hispanics against a profile in the relevant labor pool of 20% Blacks and Hispanics.

So we have more than double the percentage of minorities in the Authority's workforce, then are represented in the Metropolitan area workforce.

And the respondents have suggested that this Court should dismiss this case on the basis of a newly enacted amendment to the Rehabilitation Act.

This new amendment provides in general terms for inclusion of rehabilitated drug addicts and alcoholics as handicap persons under the Rehabilitation Act.

The amendment does not expressly apply to methadone patients.

It is our contention that any attempts to include methadone patients within the category of protected persons would be certain to result in litigation.

As a practical matter what the respondents are asking this Court to do is to interpret the scope of this new statute which has not yet began to be implemented and applied retroactively to the Transit Authority.

They are asking the Court to sanction the enormous equitable and monetary liability imposed on the Transit Authority in this case on the basis of the statute which was not enacted until four years after the trial of this action and as I say which has not yet even began to the be implemented.

Finally and perhaps most important, they are asking this Court to interpret the scope of this new statute and to establish a precedent in this case which will undoubtedly have a compelling influence on the shape of any future litigation under the Rehabilitation Act.

Justice William H. Rehnquist: There were judgments for back pay here?

Mr. Offner: There were judgments for back pay for the members of the class.

There is a very substantial Attorney's Fee Award and there is very extensive equitable relief demanded in terms of evaluating and hiring anybody who was turned down in the past by reason of being a methadone patient.

Justice Potter Stewart: Ms. Offner, I gather that you do not concede far from it that the statute, even as amended this past October, requires you to hire these people?

Mr. Offner: That is exactly right Mr. Justice Stewart and that is our position, yes.

And we do believe that this is not a proper case for interpretation of that provision and that the Court should decline to interpret it, until a proper case is presented on a full record.

I would like to reserve the balance of my time for rebuttal.

Argument of Deborah M. Greenberg

Chief Justice Warren E. Burger: We'll resume at this point at 1'o clock.

Mrs. Greenberg, I think you may proceed.

Mr. Greenberg: Mr. Chief Justice and may it please the Court.

I would first like to respond to a question asked of counsel for petitioners about the proprietary of the lower court having addressed the constitutional issue before Title VII issue.

It may be that the Title VII issue, that Title VII would not provide full relief to all members of the class, some of whom are white.

However if this Court should hold that the Transit Authority's policy does violate Title VII, there is no decision of this Court which forecloses its ordering equitable relief, including back pay and seniority credit.

Justice Byron R. White: But isn't it possible that the district court thought that it might as well reach it, titles of the equal protection issue first because the Title VII issue also had a constitutional issue in it?

Mr. Greenberg: I do not know why the district court decided this.

Justice Byron R. White: But there was, wasn't there?

Mr. Greenberg: Yes.

Justice Byron R. White: And furthermore, the constitutional issue in the Title VII question involved the constitutionality as an act of Congress?

Mr. Greenberg: Yes, Your Honor.

Justice Byron R. White: But in any of that, that is possible?

Mr. Greenberg: I was just trying to recall whether the Transit Authority raised the constitutional issue relating to Title VII at the time that --

Justice Byron R. White: Well, it certainly had it at the time of the district court ruled?

Mr. Greenberg: Yes it had at that time.

Justice Byron R. White: Yes.

Mr. Greenberg: Counsel for petitioners has overdrawn the scope of respondent's argument and of the decisions of the courts below.

We are not concerned with some abstract question of whether there would ever be a rational basis for discriminating against methadone patients.

The narrow constitutional issue before the Court is whether the Transit Authority's unwritten rule of flatly excluding successful methadone patients, the overwhelming majority of whom are fully employable, from even consideration for any of its 47,000 jobs, while giving individualized consideration to every other applicant whether this constitutes a denial of equal protection?

Justice William H. Rehnquist: Mrs. Greenberg, you lay some stress on the fact that the rule is unwritten, do you feel that helps you or hinders you or is it a neutral fact?

Mr. Greenberg: I think that it helps us in the sense that it goes to the degree of deference which this Court should afford to the Transit Authority's rule.

Justice William H. Rehnquist: Haven't we said that a Municipal Corporation's rule is -- when it is challenged constitutionally just as if the New York Legislature enacted a statute to that effect?

Mr. Greenberg: That may be so, but even when this Court is evaluating a legislative rule as it did in Murgia, it paid a great deal of attention to the legislative -- the basis for the legislature's action.

Justice William H. Rehnquist: And that would [Inaudible] whether it is written or unwritten?

Mr. Greenberg: Yes Your Honor.

Justice John Paul Stevens: Mrs. Greenberg, isn't it correct that the issue isn't a classification of methadone users, but rather the question is whether Rule 11 (b) as interpreted to include methadone users is too broad, that is irrational because it is too broad?

Mr. Greenberg: Rule 11 (b) is directed only to practices by incumbents, that is persons already employed by the Transit Authority.

It is not directed to applicants for Transit Authority employment.

So it is not merely Rule 11 (b) that we are concerned with.

It is that Transit Authority's overall rule of not considering for employment anyone -- and of as well as of terminating from employment anyone who it discovers to be in methadone treatment, to ever have been in methadone treatment --

Justice John Paul Stevens: It begins -- more precise to say anyone who falls within the terms -- who would fall within the terms of 11 (b) if an employee and then they construe 11 (b) to include methadone users?

Mr. Greenberg: Yes, that is certainly part of our argument that is irrational to do so, particularly in view of the consideration that is given to all other employees and applicants, some of whom may violate rules.

For example, the --

Justice John Paul Stevens: But you would not consider 11 (b) irrational if they did not define methadone users as persons who use drugs within the meaning of the rule or would you?

Mr. Greenberg: Well we are of course representing methadone users.

If you are asking whether it would be -- we would consider it irrational for the Transit Authority to have a rule against the present use of narcotics by its employees, our answer would be that it certainly would be irrational rule for the Transit Authority, but I might point out that --

Justice John Paul Stevens: Well, they do have such a rule?

Mr. Greenberg: Pardon?

Justice John Paul Stevens: They do have such a rule, which is quoted on page 5 of petitioners' brief, yeah that's what we are talking about and you don't contend that, that rule would be irrational if the definition did not encompass methadone users as I understand?

Mr. Greenberg: If it did not encompass present methadone users and only encompassed present narcotics users who did not have the permission of the medical director, we would not consider it irrational.

The rule is not an absolute -- as written, it is not an absolute rule.

It is a rule that no one may use certain kinds of drugs without permission, written permission of the Medical Director.

The Transit Authority does not exclude from employment or terminate from employment persons who use other drugs that are encompassed within that rule, for example amphetamines or tranquilizers.

In that case, it makes an investigation to see whether there is some reason why the person should be using those drugs.

Justice John Paul Stevens: Just like Mr. Justice Rehnquist asked about the statute, cannot we look at the rule as thought it were somewhat like a statute and we have to determine its meaning by the way it has been construed and it has been construed in some of these fringe areas to require individualized treatment, and in other areas, it includes methadone users.

It seems to me the basic classification you are challenging, is this classification made by the rule as interpreted by the Transit Authority.

You are saying it is too broad a rule?

Mr. Greenberg: Yes, it is too broad a rule.

We are challenging it because the Transit Authority -- it is only in the case of person who use narcotics that the Transit Authority does not give individualizes consideration.

Not at issue here is the Transit Authority's right to exclude methadone patients from any position, which impinges on the safe operation of the Transit Authority.

The district court did not designate which jobs the Transit Authority could consider safety-sensitive.

It gave some examples of jobs such as motormen, conductor.

Chief Justice Warren E. Burger: Does that become a business of the court?

Mr. Greenberg: No, it does not become the business of the court.

The court left it to the discretion of the Transit Authority to determine which of its jobs were safety-sensitive.

Justice William H. Rehnquist: But then it went on -- it is going to review that determination, is it not?

Mr. Greenberg: I should think that if the Transit Authority abused its discretion in and designated a job that was obviously not safety-sensitive such as file clerk job --

Chief Justice Warren E. Burger: But the accountants would handle a lot of money. Revenue people -- their money comes in an small bits and pieces.

It is not an unknown that heavy embezzlements in the aggregate have been arranged by people at that level.

Would you say that a sensitive position or is it rational to say that there is a risk that the methadone user either getting on with methadone or trying to get more of black market methadone is going to embezzle money to support $100 a day habit?

Mr. Greenberg: There is nothing in the record to support the proposition that a successful methadone patient who has been rehabilitated, who has been identified as employable --

Chief Justice Warren E. Burger: So who has been, if you --

Mr. Greenberg: Pardon --

Chief Justice Warren E. Burger: If we accept the idea who has been rehabilitated, that's one thing, but how do you identify a rehabilitated one and what does the record show about the success of rehabilitation?

Mr. Greenberg: The record shows that after an initial period of adjustment which can last from a few weeks up to at most a year, that after that period has passed, the vast majority of methadone patients are employable and at that group, the group that has been in treatment for a year or more, is directly comparable to any group of applicants for positions in the Transit Authority.

Justice Byron R. White: If that is so, why did the district court put aside the sensitive positions?

Mr. Greenberg: The district court acting out of an abundance of caution, wanting to adopt the least intrusive of rule that it could, allowed the Transit Authority to set aside certain jobs to fit within the --

Justice Byron R. White: I know what it did, but I wonder why?

Mr. Greenberg: Well, I think again it is difficult to know why the district court did what it did.

There is no basis in the record for its distinguishing between a sensitive statement --

Justice Byron R. White: I would suppose based on what you just said a moment ago that you would think that, that reservation of those positions would also violate the Equal Protection Clause?

Mr. Greenberg: I think it is a more difficult case because the Transit Authority already has a structure for -- it in fact already does designate certain jobs as sensitive or non-sensitive.

Justice Byron R. White: I know but whatever the job is, you just said that these people who have been running the program successfully for a year are just like the general population, and yet the district court did not think so obviously?

Mr. Greenberg: They are just like the general population, some of whom may -- the Transit Authority will employ and some of whom it won't.

The Transit Authority --

Justice Byron R. White: Yes but the district court let the Transit Authority as a -- just on a per se basis exclude any methadone -- the district court let the Transit Authority apply its rule to any sensitive position?

Mr. Greenberg: Yes it did and we --

Justice Byron R. White: Without individualizing anything?

Mr. Greenberg: Yes and it is our position that there was no basis in the record for doing so.

Chief Justice Warren E. Burger: Which you have not challenge that here?

Mr. Greenberg: We did not challenge that.

Chief Justice Warren E. Burger: What about the figures that --

Justice Byron R. White: But it is some indication that the district court thought there was a difference?

Mr. Greenberg: It is only an indication I think Your Honor that the district court was proceeding very cautiously.

Justice John Paul Stevens: Was the proceeding irrational?

Mr. Greenberg: Was the district court proceeding irrational?

Justice John Paul Stevens: Yes, in drawing that distinction?

Mr. Greenberg: Perhaps.

Justice Thurgood Marshall: Now there is a difference between motormen driving the train at 80 miles an hour and a porter pushing the broom at one mile a year, isn't it?

Mr. Greenberg: Yes, there is. [Attempt to Laughter]

Chief Justice Warren E. Burger: What about the figure that your friend gave us that out of 600 patients, only 10 are found free of the addiction after two years of therapy, was that figure wrong or is it supported by the record?

Mr. Greenberg: That figure is I would say an aberration; the context from which that was drawn is the following.

One of the class members was trying to getting a job with the Transit Authority.

His Treatment Director wrote an affidavit -- signed an affidavit in which trying to show what an exceptional and eminently employable person this Mr. Wright was, said, he is so good, he has been allowed to take home his dosage, so he only has to come in two or three times a week and I run a very tight ship.

Most of the patients in my program have to report every day.

The great weight of the expert opinion was that after one year, at least two-thirds in the testimony -- it was roughly from two-thirds to 80 or 85% of patients in treatment are fully employable.

Justice William H. Rehnquist: When you say the great weight of expert opinion, you do admit, I take it, that there was conflict in the district court that different views were presented and he chose to believe the one that he thought was more persuasive?

Mr. Greenberg: Not really.

There was difference in the numbers that we are talked about

One person said, two-thirds are employable and other person said, 80% are employable.

One difference is that there are different kinds of programs.

For example, Irving Lukoff testified about employability at one program called Addiction Research Treatment Corporation and which by his testimony, employees, pardon me, has its patients the hardest core addicts, people who have been incarcerated for an average of seven years with long criminal records, very long addiction histories.

In that program, after one year two-thirds are employable.

In some of the other programs which have a different population, 80 or 85% are employable.

That is the only difference.

Justice William H. Rehnquist: What if instead of all this testimony being presented to the district court first, it had been have presented to the New York Transit Authority and after giving exactly the same testimony, the Transit Authority had adopted the rule, it did.

Do you think you could then have gone into the district court on that record and said, this is an irrational conclusion?

Mr. Greenberg: I think we could have gone in on that record.

Indeed a lot of this -- the few persons the Transit Authority ever had contact with, who were methadone treatment experts, all told the Transit Authority that methadone patients were employable.

I think we could have gone, that given the fact that through these normal, ordinary personal screening procedures of the Transit Authority, it could readily identify those methadone patients who were employable.

And that conclusion is based on solid, unchallenged, uncontroverted findings of fact by the district court.

We could have gone in and challenged the Transit Authority's policy as irrational.

Chief Justice Warren E. Burger: [Inaudible] determined employable, did anyone define or did they agree on a definition of employability?

Mr. Greenberg: Everyone was talking about people who were free of drug use, of illicit drug use, free of alcohol abuse, people who had in fact employment records.

One-third of the persons going into methadone treatment are already employed at the time they enter treatment and people who are generally evaluated by the treatment personal as being people who would make reliable employees.

Chief Justice Warren E. Burger: Would it be extraordinary to at least have a rebuttable presumption that the people then employed who in some capacity, who went into a methadone program had not yet shown such objective symptoms as to alert their employers, in other words that they were performing?

Mr. Greenberg: Exactly.

Chief Justice Warren E. Burger: There are degrees, there are degrees of addiction and they will certainly know that, don't they?

Mr. Greenberg: Two of our named plaintiffs were employed by the Transit Authority were fired solely because they were in methadone treatment.

And as in the case of Carl Beazer, who had worked for the Transit Authority for eleven-and-half-years and worked his way up from a job as a car cleaner to a conductor to a towerman, the Transit Authority's own Impartial Disciplinary Review Board found that his performance was satisfactory throughout the term of his employment.

Chief Justice Warren E. Burger: You mean in the tower?

Mr. Greenberg: Yes.

Chief Justice Warren E. Burger: In his control?

Mr. Greenberg: Yes.

Chief Justice Warren E. Burger: But suppose they had a tragic accident and it could be traced to some aberration of this man, naturally exposing, that would expose some rather difficult liability questions, wouldn't it, perhaps they knowingly retained a person who is an addict?

Mr. Greenberg: I think it -- perhaps it could expose them to some.

If indeed the -- I don't know we are talking about if he was on methadone; there is nothing in the record to indicate that his performance would be in anyway affected.

In fact, there is much in the record to show that methadone does not affect people's ability to perform any jobs involving quick reactions, alertness, but the fact was the Transit Authority fired this person solely because he was in a methadone program.

One other thing that is not an issue here is the Transit Authority's right -- first of all, its right to refuse to hire any methadone patient who has not completed a year of successful treatment.

It can also refuse to hire anyone who does not meet its normal objective employment standards.

If the transitive authority required so many years of relevant employment experience, it can require that of the class.

The persons whom the Transit Authority refuses to consider for even the most ordinary menial jobs, are socially responsible citizens who have valiantly struggled and have succeeded in their efforts to overcome their drug habits.

They are free from drug and alcohol abuse and they are employable by any relevant selection criteria.

Justice Byron R. White: Did you agree with the one year test?

Mr. Greenberg: Yes, we did agree with the one year test.

Justice Byron R. White: But that wasn't your proposal or was it?

Mr. Greenberg: I think, by the time we put in a proposal, we did agree that --

Justice Byron R. White: How did you arrive at that, just based on the --

Mr. Greenberg: Based on the evidence, which was that it takes a little time for -- first of all, it takes a little time for a methadone patient to become stabilized on his dosage, go in there and build up to a certain dosage.

Secondly, it is conceded that a number of persons who enter into methadone treatment are not appropriate patients, those are the people who are going there just to get a, I guess it might be called a free fix, those are the people who cause disruption outside of the methadone clinics, those are the people who either drop out of the program or are terminated by treatment personal.

The longest period that was mentioned as in the adjustment period by anyone was one year.

Justice Thurgood Marshall: You mean after the one year, he is off of drug forever?

Mr. Greenberg: After one year --

Justice Byron R. White: If he is on methadone drug?

Mr. Greenberg: In a methadone treatment program, the patient is still taking methadone --

Justice Potter Stewart: But he is stabilized --

Mr. Greenberg: -- but he is stabilized and he is as employable as anyone else.

Justice Thurgood Marshall: As long as he takes methadone?

Mr. Greenberg: He is employable as long as he --

Justice Byron R. White: Except where it might make a difference in the safety position, isn't it?

Mr. Greenberg: We would certainly not concede that exception.

Justice John Paul Stevens: No, but the judge conceded that that there is exception?

Mr. Greenberg: Yes.

I would --

Chief Justice Warren E. Burger: You are not really suggesting that a person who has been one year -- that this generalization that doesn't probe into what the degree of the habit was before the methadone treatment, how much methadone they took, but then when they are stabilized on whatever the dosage is which might be very high, medium or low, is that person is employable as an airline pilot, for example?

Mr. Greenberg: I don't know what the standards or performance required of Airline Pilots are.

All of the tests that were testified to in this case about performance showed that the reaction time, the alertness of methadone patients was well within the normal range of reaction time, alertness, intellectual functioning.

There may be different -- it is clearly within the range required for people who are going to be porters or clerks.

There may be very different standards for airline clerks and I just don't know the -- but I mean pardon me for airline pilots, and I just don't know the answer.

I would like to address myself to what the judge found about the ability of the employer of the Transit Authority to screen out or screen in employable methadone patients.

First of all, it is undisputed that there is no class of persons other than methadone patients and others with the history of narcotic addiction to whom the Transit Authority denies individualized consideration for employment.

The Transit Authority has no blanket prohibition against the hiring of persons with potentially disabling physical conditions, such as diabetics or epilepsy or cardiac disease.

It has no blanket prohibition against the hiring of persons with histories of alcoholism.

It has no blanket prohibition against the hiring of persons with criminal records, or person taking tranquilizers or amphetamines or persons who have been confined to mental hospitals.

Justice John Paul Stevens: How does this advance your argument?

I mean, the question is whether the one blanket exclusion they have is rational or not.

Maybe they could have had a whole bunch of other irrational exclusions, but how does that affect the argument?

Mr. Greenberg: The argument is that there is no --

Justice John Paul Stevens: This is an irrational classification?

Mr. Greenberg: It is an irrational classification --

Justice John Paul Stevens: It would be equally irrational I suppose if they excluded alcoholics on a blanket basis, wouldn't it?

Mr. Greenberg: Not necessarily, because under the Transit Authority's procedures, screening procedures, they can tell who would make a good employee, whether he is a methadone patient or whether he is a former alcoholic, there is no -- the classification here is between persons whom the Transit Authority will not even give individualized consideration to.

Justice John Paul Stevens: That is the people to find in Rule 11 (b) as construed onto methadone users, so it is rational or it is irrational?

Mr. Greenberg: So the methadone patients and people with histories of drug abuse, 11 (b) does not talk about histories of drug abuse but there is no question that the Transit Authority does --

Justice John Paul Stevens: It is so construed to cover them.

Can I ask you because your time is going -- is expiring, with your Title VII case, does the record tell us the relative number of Black and Hispanic employee persons actually employed by the Transit Authority?

Mr. Greenberg: Yes, the record tells us that 46% of the employees of Transit Authority are Black or Hispanic.

However the record does not tell us what proportion of applicants for Transit Authority positions are Black or Hispanic, so that the 46% figure is irrelevant.

It may be that 60% or 70% of the applicants in the New York City to these jobs are Black or Hispanic.

Chief Justice Warren E. Burger: Do you really mean it is irrelevant?

Mr. Greenberg: Yes.

Justice John Paul Stevens: Then how do we know that the exclusion of the methadone users has a disparate impact on Blacks and Hispanics?

Perhaps they are all been replaced by the people who are Black or Hispanic, non-methadone users?

Mr. Greenberg: We would not contend that it has a discouraging effect on all Blacks or Hispanics.

Justice John Paul Stevens: Then how does it violate Title VII?

Mr. Greenberg: Because it -- the individuals who are affected by it, a Black --

Justice John Paul Stevens: Would you say it was unlawful, even if every person rejected for this reason, was replaced by a person of the same race?

Mr. Greenberg: Yes Your Honor, because the individuals who are rejected are entitled to be considered on their merits and not on the basis of a criterion which has the effect of excluding disproportionately large numbers of Blacks and Hispanics and does not the meet the business necessity test.

Justice William H. Rehnquist: Where do you get your disproportionate?

What is your numerator and what is your denominator?

Mr. Greenberg: I am not sure, I'll enter into that proposal definitely.

The disproportion is that, while 20% of the labor force in which the Transit Authority draws its employees is Black or Hispanic, 60-65% of methadone patients are Black or Hispanic, it may be higher than that.

Justice William H. Rehnquist: So percent of Black or Hispanic methadone users is higher than the percentage of Black or Hispanic members of the population as a whole?

Mr. Greenberg: Yes and the fact that the Transit Authority has even arguably reached some kind of racial balance in its workforce does not immunize otherwise discriminatory non-job related practices from scrutiny under Title VII.

Chief Justice Warren E. Burger: I still don't understand why then you say 46% is irrelevant to this whole picture Mrs. Greenberg.

Mr. Greenberg: I am saying it is irrelevant for two reasons.

First --

Chief Justice Warren E. Burger: What if it was 86%, will it make any difference?

Mr. Greenberg: First of all, we would have to know it would not make a difference if --

Chief Justice Warren E. Burger: One of the claims here is that this – the impact is discriminatory on Negroes and Hispanics?

Mr. Greenberg: Yes.

What I am saying is that the Transit Authority has claimed that they are immunized, that their methadone policy cannot be a violation of Title VII, because 46% of their employees are Black or Hispanic.

That claim does not make sense because first of all, we do not know what percentage of all applicants to the Transit Authority are Black or Hispanic, it may be there is as many as 60-70%.

Chief Justice Warren E. Burger: My question is just about irrelevancy, you cannot really say that it is irrelevant in making these evaluations?

Mr. Greenberg: I am saying that is irrelevant in the absence of any data about what -- even if all of their policies did not result in a -- it's irrelevant because we don't know what the racial composition of their applicants were.

If 80% of their applicants were Black or Hispanic, the fact that 46% of their employees were Black or Hispanic would just mean that their selection policy as a whole was discriminating against Blacks and Hispanics.

Justice William H. Rehnquist: But would not you say that if 100% of the applicants were Black or Hispanic, and 100% of their employees were Black or Hispanic, it still violate Title VII, because the ratio of methadone users to the population in general?

Mr. Greenberg: I would say that it would still violate the Title VII, yes Your Honor, because the individuals who would be affected and those individuals are -- it is to individuals that the act is directed, would still being unlawfully discriminated against.

Chief Justice Warren E. Burger: Do you have anything further counsel?

Mr. Greenberg: I have no further comments, Mr. Chief Justice.

Chief Justice Warren E. Burger: Thank you ladies, the case is submitted.