After more than ten years of litigation, a Boston jury will now have to decide if African American police officers were treated unfairly based on the results of hair follicle drug test results. The case has been bouncing around the court system since 2005 when a group of African American officers filed a lawsuit alleging that the hair testing used by the department was more likely to turn up positives from their hair than that from their Caucasian peers.
The testing procedure involved taking a hair sample from each officer and analyzing it for the presence of cocaine, marijuana, opiates, PCP, and amphetamines, and then putting the hair through a washing process at the lab. The lab then seeks to determine if drugs were ingested by the donor and then entrapped in the cortex of the hair. If drugs were detected in a sample, a Medical Review Officer (MRO) would conduct an investigation to determine if a legal medication could have caused the positive result. Those who tested positive were also permitted to submit a second sample for a so-called “safety-net” test. When all was said and done, 99-percent of tests on white officers came back negative while 98-percent of the black officers were negative.
That 1-percent difference might not seem like a lot, but several black officers were disciplined. Nine lost a job or job offer, and one was suspended without pay until he completed a rehab program. The officers filed suit under Title VII of the Civil Rights Act of 1964 claiming that the hair testing had an illegal disparate impact on black officers. They claimed that African American hair – especially that which had been chemically treated - retains drugs at a higher rate than Caucasian hair. They also claimed that the hair testing could not always distinguish between drugs that had been ingested versus cocaine that were absorbed through the hair from the environment.
Separate U.S. District Court Judges, on two occasions, ruled in favor of the Boston police department and dismissed the case on Summary Judgment. The case then went to the 1st Circuit Court of Appeals on the 3rd prong of the disparate impact inquiry; “whether the City refused to adopt an alternative that would have met the City’s legitimate needs while having less of a disparate impact?”
One suggestion had been to conduct a follow-up series of random urinalysis tests over 90 days on officers who received positive results on the hair test, and only discipline those who flunk one of the follow-up random urinalysis tests. The case bounced back and forth until the First Circuit decided there was no compelling evidence that showed the Boston police department made any effort to consider the officers’ proposed alternative testing process, which was claimed to have less of a disparate impact on African American police officers.
Now the case will go to a jury.
Tommy Eden, a partner with the firm of Constangy, Brooks, Smith & Prophete, LLP offers this bit of advice in light of the recent developments: Public Law Enforcement employers need to take heed of this ruling. This case has been in the news for well over 13 years and this is a highly significant groundbreaking ruling. While the Title VII disparate impact three prong law is rather technical, for public employers having an outside drug testing expert help you evaluate vulnerabilities in your drug testing policies, processes and procedures is just smart risk reduction.
To learn how to avoid public employee drug testing landmines like this, download this free informational webinar recording: