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Whether Hair Follicle Testing Discriminates Against Blacks Is Question For Jury

The City of Boston required hair follicle testing on all of its police officers, cadets, and job applicants. The purpose of the test was to determine drug use by those individuals. If a test of the hair follicle came back positive, the individual was given the choice to a) confess, receive an unpaid suspension, undergo rehabilitation, and submit to random urine testing for three years or b) lose his or her job. Overall, the results were negative for 99% of white individuals and 98% of black individuals tested.

Some of the African-American police officers asserted that the hair follicle testing had a disparate impact on African-Americans. The testing was unable to discern whether the hair follicle was positive for drugs because the individual ingested drugs or due to contamination through environmental exposure to drugs. Experts testified at trial that black hair, particularly if treated with certain commonly used hair treatments, was more likely to absorb and retain environmental contaminants.

After a couple of trips to the federal district court and the First Circuit Court of Appeals, the First Circuit Court of Appeals has determined that the City of Boston did show that the hair follicle testing for drugs was job related and consistent with business necessity. Having police officers be clean of drugs was important. However, the circuit court believed that the police department could have adopted an alternative procedure that would have lessened the disparate impact on African-Americans. A reasonable jury could find that the black officers’ request for random urine testing after a positive hair follicle test would have minimized any disparate impact. The two-part test would ensure a true positive test result of drug use. A jury will now decide the question.