A federal appeals court ruled yesterday that several black employees of the Boston Police Department who tested positive for cocaine use offered enough proof the tests might have been racially discriminatory to warrant a closer inspection by a judge or jury.
A lower court judge had basically tossed the entire case. The US Court of Appeals for the First Circuit in Boston said the numbers don't lie: Several years of statistics from drug tests used between 1999 and 2006 showed a significantly higher positive rate among blacks than among whites, and that fact alone warrants judicial consideration as to why there was such a "disparate impact," under Title VII of the federal Civil Rights Act.
At issue are drug screenings that involved testing hair samples. The plaintiffs argue the tests unfairly tagged the plaintiffs as drug users because higher levels of melanin in their hair was more likely to bind to cocaine basically floating in the air from actual drug users, for example, at barber shops or hair salons. The department countered that no members of the drug-control and evidence units, where officers could be expected to have a high rate of contact with "aerosolized" cocaine, ever tested positive on the tests.
The court did reject the employees' argument that their due-process rights were violated, saying they were given adequate chances to appeal the test results. The court said due process did not apply to one plaintiff who had a job offer rescinded because of a positive test because she was not yet a permanent employee.