Use of Drug Tests Found to Have “Disparate Impact”

In certain circumstances a company or business may have a policy that seems to be neutral, but upon closer look may in fact be discriminatory. This may be because the policy or practice has a “disparate impact” that negatively affects a particular race. In a recent case, Jones v. City of Boston, the U.S. Court of Appeals for the First Circuit evaluated the Boston Police Department’s utilization of hair tests to detect illegal drug use and determined that such tests unlawfully discriminated against black officers.

If you have questions about a policy that you think may be discriminatory, or if you believe you have been subject to any work place discrimination, it’s a good idea to consult with an experienced Atlanta race discrimination attorney right away.

In this instance, the Boston Police Department subjected cadets and officers to annual drug tests using samples of their hair. The tests were used to determine the presence of chemicals, which indicated exposure to cocaine, marijuana, opiates, PCP and amphetamines. Employees who tested positive were fired unless they agreed to go through drug rehabilitation and accept an unpaid suspension while in treatment. The lawsuit was brought by 9 former officers and cadets who tested positive for cocaine.

The officers and cadets presented evidence that between 1999 and 2006 black officers and cadets tested positive for cocaine approximately 1.3% of the time while whites tested positive under 0.3%. Even though the number of people affected was low, the difference was statistically significant. Further, the officers and cadets provided evidence that hair tests are “relatively unreliable” and that black individuals tend to have higher levels of melanin in their hair, causing cocaine and other chemicals to bind to their hair at a higher rate.

The appeals court found that such difference could be enough to show a discriminatory disparate impact. In making its determination, the appeals court rejected arguments that the statistical differences were too small to show such disparate impact, because the racial differential wasn’t “practically significant.” The court explained instead that it’s up to the employer to justify the challenged practice by business necessity, explaining, “If a practice fails to serve a sufficient business need, why retain it merely because the number of people harmed is small?”

Further, the appeals court noted that the statistically significant disparity is significant, stating “it can’t be disregarded as having no practical impact …it’s of great practical impact to the people who got fired.”

For more information, or if you believe that you have suffered any form of employment discrimination, please contact the experienced and dedicated Atlanta employee’s rights attorneys at Buckley Bala Wilson Mew LLP for an immediate case evaluation.