Boston Police ‘Hair Test’ Back For Another Round

The continuing litigation saga involving eight Boston police officers terminated for failing the Police Department’s “hair test” for drugs appears to have yet more life left in it. When their hair tested positive for controlled substances, the officers sued, claiming that the hair drug test was racially discriminatory. After the officers lost an initial round in a federal trial court, the claim was heard by the First Circuit Court of Appeals.

In 2014, the First Circuit remanded the case to the trial court with instructions to consider two things: (1) whether the Department’s drug testing program was job related and consistent with business necessity; and, if so, (2) whether the Department refused to adopt an available alternative that would have met the Department’s legitimate needs while having less of a disparate impact.

The dispute centered on a period from 1999 to 2006, when the Department administered a hair drug test to thousands of officers, cadets, and job applicants. The testing procedure called for the gathering of a hair sample, which was then “washed” and analyzed for the presence of cocaine, marijuana, opiates, PCP, and amphetamines. Upon detecting cocaine in a hair sample, a licensed physician would determine whether legally administered medication could have caused the positive result. The individual who tested positive was also permitted to submit a second sample for a so-called “safety-net” test.

The results were negative for over 99% of the white individuals tested and over 98% of the black individuals tested. The officers who were terminated were among the fewer than two percent of black individuals who tested positive for cocaine.

The First Circuit had no difficulty finding that the hair test was motivated by business necessity. The Court acknowledged that the evidence could show that the test could not always distinguish between ingestion of drugs and contamination of the hair by environmental exposure to drugs. The problem for the officers, the Court found, was that “a finding that all of the test’s few positive results might not have accurately distinguished between ingestion and exposure logically falls short of establishing that using the test to move towards a drug-abstaining police force did not further the Department’s important needs. To evaluate the reliability of the hair drug test in this context, one must consider the test as a whole and the relative numbers of errors among both the positive and negative results. There is no reason why a test need be anything near 100% reliable (few tests are) to be consistent with business necessity (keeping in mind that the presence of an alternative method that would have had less of a disparate impact will still be relevant under the third prong of the inquiry).”

The case turned in the officers’ favor when the Court considered whether the evidence could support a jury finding that there was an available alternative employment practice that has less disparate impact and served the employer’s legitimate needs. As the Court saw it, “application of this prong in this case turns on the answers to three questions: First, does the record contain evidence that would allow a jury to find that there was an ‘alternative’ method of meeting the Department’s legitimate needs? Second, does the record also allow a jury to find that adopting that alternative method would have had less of a disparate impact? And finally, could a jury find that the Department ‘refuses to adopt’ that alternative method?”

The Court held that a hair test followed by urinalysis was a reasonable alternative to a hair test alone. The Court observed that “this approach would have fully replicated the results of the hair test alone except, a jury might find, it would have cleared those who received a positive hair test yet were likely not using cocaine. And if the urinalysis tests continued randomly over the course of more than ninety days, they would have confirmed a period of drug abstention equal to that confirmed by a negative hair test.

“Keep in mind that the Department already used a series of negative urinalysis tests as a basis to reinstate suspended officers who tested positive on the hair test: officers who tested positive on the hair test under the challenged practice could choose to admit to drug use; receive a forty-five day unpaid suspension; undergo drug rehabilitation; and submit to frequent, random urinalysis for three years. The only difference between the challenged practice and the proposed ‘hair testing plus urinalysis’ alternative is that firing (or suspension and drug rehabilitation) preceded the urinalysis testing in the actual regime, whereas no change in employment status would have occurred until after urinalysis confirmation in the alternative scheme.

“Additionally, Department policy has long permitted supervisors with a reasonable suspicion that an officer is using drugs to order urinalysis screening of that officer. That the Department used urinalysis in these scenarios – where officers had already tested positive for drugs or were reasonably suspected of using drugs – naturally suggests that the Department viewed random urinalysis as an acceptably reliable method for detecting drug use on a targeted (rather than mass) basis. To the extent that a concern with urinalysis is its manipulability, a jury could find that the more frequent and randomized nature of the Officers’ proposed urinalysis program would have sufficiently minimized such a concern.”

Because the Court found that “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.” For that reason, the Court remanded the case to the lower court for a trial.

Jones v. City of Boston, 2016 WL 7451307 (1st Cir. 2016).