Boston PD may have unlawfully refused to adopt alternative to hair drug test

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By Joy Waltemath

By Dave Strausfeld, J.D.

The Boston Police Department may have unlawfully refused to adopt an alternative drug testing scheme that would have had less disproportionate impact on black officers, held the First Circuit, reversing a summary judgment decision in favor of the department. Although drug testing using a sample of hair was indisputably job related and its use was consistent with business necessity, a reasonable jury could nevertheless conclude that the department refused to adopt an available alternative that would have met the department’s legitimate needs while having less of a disproportionate impact on black individuals, who some experts believe receive more false positives than white individuals from hair drug testing. The proposed alternative was “hair testing plus urinalysis,” meaning hair testing followed by random, frequent urinalysis for those who flunk the hair test before imposing any discipline (Jones v. City of Boston, December 28, 2016, Kayatta, W.).

Disparate impact case. From 1999 to 2006, the Boston Police Department administered a hair drug test to thousands of officers, cadets, and job applicants. Upon detecting cocaine in a hair sample, the individual who tested positive was permitted to submit a second sample. The results were negative for over 99 percent of the white individuals tested and over 98 percent of the black individuals tested. The ten plaintiffs in this suit were among the fewer than two percent of black individuals who tested positive for cocaine. All of them swore they did not use illegal drugs, and they brought this suit claiming that the hair drug test had an unlawful disparate impact based on race because black individuals were more likely than white individuals to have false positives.

Previously in the case. In a 2014 decision, the First Circuit held that the officers proved the existence of a disproportionate impact on black officers because the difference in hair drug test results by race was “indisputably statistically significant.” But that was not the end of the matter because a disparate impact claim under Title VII requires analysis of additional issues—and these were the focus of the present appeal.

Sufficiently job related. The first issue was whether the hair drug test was job related and consistent with business necessity. The appeals court had little trouble concluding that the hair drug test met this standard.

True, there was expert-witness evidence in this case that hair drug tests do not always distinguish between ingestion of drugs and contamination of the hair by environmental exposure to drugs. Furthermore, black hair, especially if damaged by some cosmetic treatments more commonly used by black individuals, is more likely to absorb and retain contaminants to which the hair might be exposed, according to these experts.

But even accepting the truth of these assertions, “there is no reason why a test need be anything near 100% reliable (few tests are) to be consistent with business necessity.” Hair drug testing is accurate “in the overwhelming majority” of cases, and the police department’s use of it was supported by legitimate business reasons.

What about hair testing plus urinalysis? So far, so good for the police department. But the department ran into trouble on the next portion of the analysis. This prong focused on whether the police department had refused to adopt an available alternative employment practice that served the employer’s legitimate needs and had less disproportionate impact.

The alternative was “hair testing plus urinalysis.” This would mean first administering the hair test to all officers (which would clear over 98 percent of the individuals tested) and then following up with a series of random urinalysis tests for those officers who received positive results on the hair test. Only those individuals who flunked one of the follow-up random urinalysis tests would be subject to firing or other forms of discipline. They would not be disciplined for failing the hair test alone.

Just as good? Would this alternative have equally met the department’s needs? A reasonable jury might so find, the First Circuit reasoned. “Crucially,” the alternative retained the main benefits of hair testing: its relative unintrusiveness and ease of supervising—it is difficult to cheat on a hair drug test. While the police department might put forward some cost arguments or other arguments against this alternative, a jury could agree with the officers that the alternative equally would have met the police department’s needs.

“Refused” to adopt? There also was evidence that the police department “refuses to adopt” the alternative, in the words of Title VII’s disparate impact provision. The statute’s language regarding refusal to adopt is “susceptible to a number of different readings”—for instance, does “refusal” mean the alternative must be explicitly proposed? The appeals court discussed this issue, ultimately leaving its final resolution to another day. On the evidence here, the officers had shown enough to survive summary judgment. A reasonable factfinder could conclude that the police department “refused” to adopt the hair testing plus urinalysis alternative when one of the officers’ expert witnesses discussed this method in a 2003 affidavit, describing it as a “more enlightened approach” to drug testing.

In sum, a jury could find that the police department refused to adopt an available drug testing method that would have served its legitimate needs while having less disproportionate impact. Because of this, the appeals court revived the officers’ disparate impact lawsuit, reversing the summary judgment ruling in relevant part and remanding for further proceedings.

Source:: Employment Law Daily Newsfeed


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