False Positives Do Not Make Hair Tests Discriminatory

The challenges to the hair drug test used by the Boston Police Department took a curious turn with a decision from a federal court in Massachusetts. The case involved a racial discrimination claim brought by ten black officers against the Department challenging the constitutionality of the hair drug test administered by the Department to officers and cadets from 1999 through 2006.

Under the program, a small percentage of officers and cadets tested positive for cocaine. Even though approximately two-thirds of the officers and cadets were white, more black officers and cadets than white ones tested positive for cocaine. During the eight years at issue, black officers and cadets tested positive for cocaine approximately 1.3% of the time, while white officers and cadets tested positive just under 0.3% of the time.

The hair analysis is conducted by a private company, Psychemedics Corporation. When a hair sample test result is positive for cocaine, the Department consults a physician to see whether the officer had received medication that could result in a positive result. A person who tests positive can also request a “safety-net test” to confirm the positive result, but the levels for the safety-net test were not specified in bargaining with the rank-and-file police union. The safety-net test originally used a cutoff of 2 ng/10 mg, but that was reduced to 0.2 ng/10 mg in 2001. An employee who tested positive for the first time could agree to an unpaid suspension of 45 days and to drug rehabilitation treatment; otherwise the employee would be terminated.

Each of the ten officers bringing the lawsuit tested positive for cocaine using the hair test and suffered adverse job consequences. Each of the officers denied cocaine use, arguing instead that the hair test generated false positives indicating ingestion of cocaine, a circumstance that is particularly likely to arise with individuals having African-American hair.

Simultaneously, five of the ten officers were among a group of officers who appealed their terminations to the Massachusetts Civil Service Commission. After extensive hearings, the Commission concluded that the hair drug test could not be used on its own to discharge a tenured officer. The Commission ultimately held that some of the officers were properly discharged and that others must be reinstated. A court later upheld the Commission’s decision.

Because it was clear that the hair tests had a statistically significant adverse impact on black officers, the federal court litigation centered around whether there was a “business necessity” for the test. The officers argued that the presence of false positives, by definition, meant there could be no necessity for the hair tests.

The Court was unconvinced. The Court noted that the “Commission and Superior Court decisions make clear that the accuracy of the hair drug tests is less than 100%, but neither made a finding of how much less. While the Commission did not permit the Department to rely solely on the hair drug test, it noted that ‘for all of its flaws, the Department hair test has a legitimate place in narrowing down which of its few officers may reasonably be suspected of abusing illicit drugs.’ In fact, the Commission used the evidence from the hair drug tests as evidence of drug use in its own conclusions about which of the plaintiffs were properly terminated and which were improperly terminated.

“In broad terms, the parties disagree about the extent to which hair drug testing is widely accepted by the scientific community. The officers note that the federal government has chosen not to use hair drug testing in its workplace testing programs. They also present evidence that despite the federal government’s issuance of Proposed Revisions to Mandatory Guidelines for Federal Workplace Drug Testing Programs in 2004, the federal government chose in 2008, after four years of study, not to adopt standards for hair drug testing, noting that significant issues have been raised by Federal agencies during the review process which require further examination, and may require additional study and analysis. The officers note further that the Society of Forensic Toxicologists has not revised its 1992 consensus opinion that results of hair analysis alone do not constitute sufficient evidence of drug use for application in the workplace. There are no national standards or national certification programs for hair testing laboratories and no federally-certified laboratories for hair drug testing.

“In contrast, defendants point to the fact that Psychemedics has forensic drug testing accreditation for hair drug testing from the College of American Pathologists, and that Psychemedics is one of the few laboratories selected as a reference laboratory by the international professional scientific society dedicated to hair drug testing, the Society of Hair Testing. Defendants note that Psychemedics has received and maintained certification from the Clinical Laboratory Improvement Amendments, a federal government laboratory certification, as well as from numerous states including New York and Florida. There is no evidence in the record that Psychemedics has ever failed any certification or proficiency exam related to hair drug testing.

“The officers’ objections to the reliability of hair drug testing focus on the risk of external contamination, not the ability of the test properly to identify the presence of cocaine or cocaine metabolites. It is undisputed that the Psychemedics test is able reliably to detect the presence of cocaine and cocaine metabolites at the cut-off level used by the Psychemedics test.

“The officers argue that the hair drug test’s inability to identify all cases of external contamination make it unreliable and therefore it cannot be considered significantly correlated with drug use. That position relies on an all-or-nothing view of reliability. However, the job-relatedness inquiry permits a reasonable error rate so long as there is a significant correlation or predictive nexus between the test and the job requirements. A review of the summary judgment record before me confirms that the plaintiffs have failed to present evidence from which a reasonable jury could determine that the hair drug test is not predictive of or significantly correlated with drug use.”

Jones v. City of Boston, 2015 WL 4689428 (D. Mass. 2015).