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US Court of Appeals allows case over hair-follicle drug testing to proceed

A group of African-American police officers contend that the hair-follicle drug testing used by the City of Boston on its officers, cadets and job applicants had a disparate impact and was racially biased.

Officers claimed that positive hair-follicle test results could not always distinguish the difference between the ingestion of drugs and the contamination of hair follicles by environmental exposure to drugs.

Furthermore, according to the National Law Review, experts testified that African American hair was more likely to absorb and retain contaminants found in drugs – and thus subsequently trigger positive test results – due to cosmetic treatments regularly used by African Americans. As such, the officers argued that method of testing utilized by the City of Boston had a disparate impact and was racially biased.

The United States Court of Appeals for the First circuit ultimately found that the hair-follicle testing utilized by the City of Boston was indisputably job related and consistent with business necessity. However, they further determined that a reasonable factfinder could conclude that the implementation of an alternative method with less of a disparate impact was feasible.

Officers argued the City could substitute the hair-follicle test with a random urinalysis testing for a period of 90 days for officers who fail the initial hair-follicle test. The 90-day urinalysis would cover the same detection period as the hair-follicle testing.

The Court ruled that a jury could find this alternative reasonable since the City uses urinalysis testing in other situations.

In its decision, the Court vacated a lower court’s previous ruling that held there was no compelling evidence for the City’s refusal to adopt an alternative yet equally valid procedure with a less disparate impact.

Source: National Law Review, 1/5/2017

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