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First Circuit: Boston P.D.’s testing of hair for drugs might have unlawful disparate impact against black people

Yesterday, the U.S. First Circuit Court of Appeals, which covers Maine and other New England states, ruled against the Boston Police Department (BPD) in a race discrimination case. The plaintiffs in the case allege that BPD’s use of a hair test to detect drug use has an unlawful disparate impact against black people. The First Circuit held that that BPD may have refused to use a drug test that would have both met its need to detect drug use and not had an adverse impact against black people.

This was the second trip to the First Circuit for this case. As we previously reported, experts for the plaintiffs testified that black people tend to have higher levels of melanin in their hair which causes cocaine and associated chemicals to bind to their hair at a higher rate.  Cocaine and associated chemicals binds to hair when cocaine powder is in the air or when the person has undergone certain cosmetic hair treatments which are more common in the African American community.  These experts also testified that hair tests are relatively unreliable.  In fact, the federal government has refused to authorize hair tests in the screening of federal employees and employees of private industries for which the federal government regulates their drug testing.

The First Circuit determined that BPD’s use of the hair test was “job related” and “consistent with business necessity,” as required by the Civil Rights Act in cases where an employment practice has a disparate impact against racial groups, because the hair tests, while imperfect, were reliable enough. But the First Circuit also determined that BPD may have violated the Civil Rights Act because BPD knew of a less discriminatory alternative to the hair test and refused to use it. That alternative was called the “hair testing plus urinalysis test” and, as the name suggests, involves using a hair test and urinalysis test in tandem to detect drug use. The First Circuit found that there was evidence that this alternative test would have caused less adverse impact against black people while at the same time satisfying BPD’s need to detect drug use.

This case differs from typical discrimination cases because it is a “disparate impact” case. In disparate impact cases, a court does not need to determine whether the employer intended to take an adverse action against a person because of his race (or other protected trait). Instead, the court looks at whether statistical evidence shows that a particular employment practice had a disparate impact against a protected group and if it did, the employer must prove that the employment practice is “job related” and “consistent with business necessity.” If the employer meets its burden to prove that the employment practice was “job related” and “consistent with business necessity,” the plaintiff then must show that there was an alternative employment practice that would meet the employer’s legitimate needs and have less of an adverse impact on the protected group.