A Hairy Situation: Did a Hair-Follicle Drug Test have a Disparate Impact?

Under Title VII of the Civil Rights Act, employers must use neutral employment practices that are “job-related and consistent with business necessity.” Even when an employer strives to comply with Title VII, a disparate impact—an unintentional negative impact on certain protected classes—may still exist. If so, employers should consider adopting alternative practices that accomplish the same goals without disparate impact.

A group of African American Boston Police Department officers tested positive for cocaine in an employer hair-follicle drug test. The officers sued, alleging the test discriminated against African Americans. The officers alleged the test was not 100-percent reliable, because it didn’t reliably distinguish between the presence of drugs from ingestion versus environmental exposure. The plaintiffs argued that African American hair could be more susceptible to environmental exposure due to chemical treatments. A reasonable course of action, they alleged, would be to subject African American officers who failed the drug test to random urinalysis testing for an additional 90 days. The court held that a jury could find this option to be reasonable. Jones v. City of Boston (1st Cir. 2016).

Jones illustrates that although hair-follicle drug testing can be a useful tool for employers, disparate-impact claims may still arise. As with any drug or alcohol testing, make sure testing is administered without regard to protected status, and, if the test screens out certain protected groups, determine whether an equally effective practice without adverse impact exists and can be used.