Federal Court Rules Hair Testing for Drugs Does Not Discriminate

(CN) – The Boston police department’s use of a hair test to detect officers’ drug use does not discriminate against black officers, a federal judge ruled.
Ten Boston police officers and the Massachusetts Association of Minority Law Enforcement Officers sued the Boston Police Department, arguing that using a hair drug test has a disparate impact on black officers and is, therefore, an unlawful employment practice.

All ten officers failed a hair test to detect possible drug use and “suffered adverse employment actions,” according to the judgment.

However, “over the range of eight years in which the hair test was required, it is not disputed that white officers passed the test at rates of 99 percent to 100 percent, and African Americans passed the test at rates between 97 percent and 99 percent. Thus, the passing rate for African Americans was at least 97 percent of the passing rate for whites,” U.S. District Judge George O’Toole Jr. said.

The Equal Employment Opportunity Commission suggests that an employment practice causes a disparate impact if the selection rate for any group is less than four-fifths, or eighty percent.

In this case, the officers’ argument relies “on evidence that differences in the rates at which African Americans failed, rather than passed the hair test, were statistically significant … To accept the plaintiffs’ argument based on statistical significance in failure rates alone, the Four-Fifths Rule must be wholly ignored, because if it is considered, a finding of actionable disparate impact is impossible,” O’Toole said.

Given the small number of black officers who actually failed the hair test, “no discriminatory intent is fairly inferable from these small variances. The plaintiffs have presented no additional evidence that would permit a reasonable jury to find an intent to discriminate in the present case. The question is not a close one,” the judge ruled.

In addition, the judge rejected the officers’ claim that the test discriminates against disabled people.

“The relevant statutes specifically exclude current drug use as a disability or handicap entitled to statutory protection. That is precisely what the hair test indicates: whether someone used drugs recently enough that it is still in that person’s hair. The plaintiffs were not targeted for testing on the basis of a perception of disability such as drug addiction. They not ‘targeted’ for testing any more than any other officer. Similarly, they were not targeted for discipline because of a perception that they were disabled by addiction, but because they had flunked the test,” the court held.