Police hair-based drug test case advances on appeals court ruling

Plaintiffs alleging that the Boston Police Department’s hair-based drug test is racially discriminatory took a step forward last week, when a federal court of appeals ruled that the lower court should not have dismissed the case.

Former police officers of color have spent a dozen years locked in legal battles with the BPD over this drug test. Meanwhile, the city has spent nearly $1.6 million defending it, according Oren Sellstrom, litigation director for the Lawyers’ Committee for Civil Rights and Economic Justice. The Lawyers’ Committee is representing the plaintiffs, with pro bono counsel from WilmerHale.

Last year, plaintiffs won a separate, related lawsuit when the state Civil Service Commission ruled that hair tests are not sufficiently accurate to be used as the basis for termination and ordered officers reinstated with back pay. The Supreme Judicial Court upheld that ruling.

In an opinion paper published last week, thet U.S. Circuit Court of Appeals for the First Circuit disagreed with the lower court’s view that plaintiffs had presented insufficient evidence to make their case, ruling that the matter should return to trial. The appeals court asserted instead that a reasonable fact finder could use the available information to reach the plaintiffs’ conclusion: that BPD could have used and refused to use an alternative method to the hair test that would have produced less of a disparate impact.

“There is no reason why the city should continue to refuse to adopt what is clearly a less discriminatory alternative that furthers the underlying goals of the test. Particularly when continuing to fight for the current regime costs taxpayers millions of dollars and results in a less diverse police force,” Sellstrom told the Banner. Plaintiffs long have argued that a readily available alternative method is to combine hair tests with a follow-up urinalysis to confirm positive readings. The hair test defense, and litigation in other diversity-related cases, have cost the city about $2 million, Sellstrom said.

“The mayor pays lip service to wanting a diverse police service, but at the same time, he spends millions of dollars fighting diversity efforts,” Sellstrom said. “Despite state court findings of unreliability, despite federal court findings of disparate impact on officers of color, the city has consistently defended the test and refused to consider alternatives.”

Discrimination argument

The plaintiffs are ten officers who were dismissed or suffered employment-related consequences after the BPD’s hair test suggested they had used illicit substances. These were false positives, the officers say.

The crux of plaintiffs’ argument is that the texture of African American hair makes it more prone to trap cocaine particles present in the air — something to which those engaged in police work or present in city environments commonly are exposed. The test fails to account for this, and does not accurately distinguish between substances present due to voluntary ingestion and those present due to environmental contamination, they say.

In order to successfully prove their case that the test is racially biased, the plaintiffs must establish both that the test has a disparate impact and that there is a viable alternative that would meet business needs while producing less of a disparity in its impact

Plaintiffs succeeded on the first point in 2005, when the appeals court acknowledged a statistically significant difference in results across races.

Advancing the latter point, the First Circuit on Dec. 28, 2016 opined that there was enough information presented that jurors could reasonably come to the conclusion that using the proposed hair test plus urinalysis follow-up would be less disparate. By not taking up this method following plaintiffs’ suggestion in 2003, the BPD could be considered as having refused to adopt it, the court ruled.

“A reasonable fact finder could nevertheless conclude that the [Boston Police] Department refused to adopt an available alternative to the challenged hair testing program that would have met the Department’s legitimate needs while having less of a disparate impact,” the ruling states.

To support that logic, the federal judges noted that BPD currently trusts and implements urinalysis in some cases. For instance, an officer seeking reinstatement after suspension for a positive hair test result may choose among options that include submitting to three years of random, frequent urinalysis, and supervisors who suspect officers of substance use may order urinalysis screening. Likewise, neither party disputes that urinalysis is not more likely to produce a false positive for blacks than it is for whites, he said.

The appeals court stopped short, however, of saying that this was the only reasonable conclusion at which a fact finder may arrive.

A new trial has been ordered, with no date yet set.