First Circuit Revives Boston Drug-Testing Case

BOSTON (CN) – The First Circuit ruled the Boston Police Department did not implement urinalysis as an alternative to hair-follicle drug testing to reduce the disparately higher likelihood for false positives among black employees.

Eight police officers, a police cadet and a provisionally hired 911 operator sued the city of Boston over its use hair follicle drug tests, which are unable to differentiate between positive results from ingesting drugs and positive results from environmental exposure, such as when officers handle drug evidence.

Psychmedics, the company that performed the hair test, said its test can detect the use of cocaine, marijuana, opiates, methamphetamines and some hallucinogens over a span of several months if the hair sample is long enough.

But a 2001 study from Forensic Science international found it is difficult to distinguish the difference in test results between a hair sample of an active cocaine user and one that has been contaminated by the drug without ingestion. The analysts suggested that this creates a higher likelihood of false positives that what had been thought.

In a 2014 decision, the First Circuit found that the drug tests were more likely to generate a false positive with black test takers compared to non-black police officers. With the disparate results established, the appeals court remanded the case back to the district court to weigh in on two remaining prongs to determine whether discrimination occurred under the Civil Rights Act of 1964.

The remaining prongs included proving that drug tests were job-related and consistent with business necessity and proving whether or not there was an attempt to find or administer an alternative drug test.

The district court affirmed the need for drug testing, but improperly ruled in favor of the police department on the issue of an alternative test, the First Circuit found Wednesday.

“Although the drug test was indisputably job related and its use was consistent with business necessity, a reasonable fact finder could nevertheless conclude that the 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,” U.S. Circuit Judge William Kayatta Jr. wrote for a three-judge panel.

The Boston-based appeals court partially vacated the district’s ruling on the alternative-testing prong, and once again remanded the case back to the Massachusetts federal court.

“The record contains sufficient evidence from which a reasonable factfinder could conclude that hair testing plus a follow-up series of random urinalysis tests for those few officers who tested positive on the hair test would have been as accurate as the hair test alone at detecting the nonpresence of cocaine metabolites while simultaneously yielding a smaller share of false positives in a manner that would have reduced the disparate impact of the hair test,” Kayatta wrote. “We also think that, on the present record, a reasonable factfinder could conclude that the department in 2003 refused to adopt this alternative.”

A spokesperson from the Boston Police Department did not immediately respond Friday to an emailed request for comment.

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