Black Cops May Have Case Against Drug Tests

(CN) - The Boston Police Department must face claims that its hair-follicle drug tests unfairly generate false-positives for black officers, the 1st Circuit ruled.

Of the 10 plaintiffs challenging the department's drug-testing programs, eight are former officers or cadets who were fired for testing positive for cocaine between 1999 and 2006. The ninth went to rehab and kept his job, while the 10th was an applicant who saw his job offer revoked because of the allegedly false-positive test result.

The plaintiffs claimed that the test, which used hair follicle samples, violates Title VII of the Civil Rights Act of 1964.

According to the eight years of data they presented, black employees tested positive for cocaine 1.3 percent of the time, while the rate for other employees is 0.3 percent. Two-thirds of the Boston police force is white, according the 1st Circuit's opinion.

"Perhaps trying to prove correct Mark Twain's quip about statistics, the parties wage battle in their briefs with these unhelpful types of competing characterizations of the numbers," Judge William Kayatta Jr. wrote for a three-judge panel of the federal appeals court.

Twain famously wrote in his autobiography: "There are three kinds of lies: lies, damned lies and statistics."

The plaintiffs claimed that they did not use cocaine, but that the test registered false-positive results for the type of hair common to black people.

A federal judge granted the department summary judgment, but the Boston-based 1st Circuit reversed on Wednesday.

Kayatta said the District Court's adoption of a "four-fifths rule" led to its conclusion that the difference between the two groups' results was not statistically significant.

This rule of thumb developed by the Equal Employment Opportunity Commission provides that, where an employment practice results in a "selection rate" for any racial group less than four-fifths of the "selection rate" for another group, these statistics "will generally be regarded by [f]ederal enforcement agencies as evidence of" disparate impact.

The appellate panel deemed this rule inappropriate, however, for the case at hand. It noted that, if Boston had 500 black officers and 1,200 white officers, it could terminate 90 black officers and no white officers without violating the four-fifths rule, as 82 percent of the original black officers would remain.

"Because we have rejected both the department's limited challenge to the plaintiffs' showing of statistical significance and the department's advocacy of a practical significance requirement, we see no remaining issue of fact that could permit a reasonable jury to reject the plaintiffs' prima facie proof of disparate impact," Kayatta wrote.

The plaintiffs also claimed that their firings violated the Americans With Disabilities Act, since they were fired when they appeared to be suffering from drug addiction. This argument failed, however, to sway the appellate judges.

"If the test results may have caused the department to form an erroneous view of any plaintiff, that view - to the extent that it motivated termination - was that the plaintiff was a drug user, not that the plaintiff was a drug addict," Kayatta wrote.

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