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Drug-Testing Discrimination Case Revived by First Circuit

By William Vogeler, Esq. on January 04, 2017 | Last updated on March 21, 2019

Reviving a lawsuit by black police officers who claimed hair testing for drugs discriminated against them, a federal appeals court has ruled that hair testing "plus urinalysis" could be a reliable alternative to hair testing alone.

The First Circuit Court of Appeals reversed and remanded a trial court decision against ten Boston Police Department employees who claimed that the hair test alone was discriminatory. According to the court, hair tests showed that 99 percent of white workers did not use illegal drugs and 98 percent of black employees did not use them.

The court said that amounted to a disparate impact on the black officers, and that a hair test plus urinalysis could have been offered to them instead. The trial court must reconvene for a jury to decide whether "hair testing plus urinalysis" would be more fair to the officers.

"The record contains sufficient evidence from which a reasonable factfinder could conclude that hair testing plus a follow-up series of random urinalysis tests for those few officers who tested positive on the hair test would have been as accurate as the hair test alone at detecting the nonpresence of cocaine metabolites while simultaneously yielding a smaller share of false positives in a manner that would have reduced the disparate impact of the hair test," the court said.

Second Time Around

The court had ruled on the case first in 2014, when it decided the hair test alone produced a disparate impact on black employees. From a sampling of thousands of employees who had submitted to the hair tests, the plaintiffs were among two percent of black workers who tested positive for cocaine while only one percent of white employees tested positive.

Nine black workers lost a job or job offer, and one employee received an unpaid suspension with drug rehabilitation and regular testing. They sued, claiming they should have been given a chance to have an alternate drug test that could have been just as accurate without the disparate results.

Upon remand, the trial court ruled that the plaintiffs provided no "compelling evidence" that the police department had refused to provide an alternative test that would be equally reliable. The appeals court disagreed.

Less Disparate Impact

The First Circuit sent the case back to the trial court again because its "hair testing plus urinalysis" could produce a less disparate impact on the officers. On the other hand, the court said, a jury might find otherwise.

"The jury could conclude, for example, that the hair test as administered by the Department did not generate false positives based on race, and hence, that the alternative would not have had a lesser disparate impact," the judges said. "The point is that, though the evidence is conflicting, the mathematical import of either conflicting view is self-evident."

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