Drug Testing of Black Police Officers May Be Unlawful

The Boston Police Department subjects its police officers and cadets to annual drug tests using their hair to detect cocaine, marijuana and other controlled substances. Any employee who tests positive and is not exonerated by medical review or a second hair sample is fired unless he or she seeks rehabilitation and accepts a 45-day suspension.   

Ten police officers, all black, were fired by the department for testing positive for cocaine. They filed a lawsuit against the department alleging that the use of hair tests to detect illegal drug use had a disparate impact against blacks in violation of Title VII of the Civil Rights Act.

Although the plaintiffs demonstrated a statistically significant difference to “the extent which we can be confident that the differences in outcomes … were not random,” the U.S. District Court for the District of Massachusetts held that they failed to prove a prima facie case of disparate impact discrimination because they could not show that the difference was “practically significant.”

The 1st Circuit Court of Appeals reversed and remanded the case for trial, holding that there was a statistically significant correlation between outcomes of the department’s drug testing program and race. Even if the department can show that business necessity justifies the testing program, “if a practice fails to serve a sufficient business need, why retain it merely because the number of people harmed is small?” Jones v. City of Boston, No. 12-2280, (1st Cir., 2014).

IMPACT: When a practice creates a statistically significant difference, the employer will need to justify the practice by business necessity.

James E. Hall, Mark T. Kobata and Marty Denis are partners in the law firm Barlow, Kobata and Denis, which has offices in Los Angeles and Chicago. To comment, email editor@diversity-executive.com.