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Transportation Brief: First Circuit Deals Blow to Hair-Testing

by Prasad Sharma, Timothy W. Wiseman

Mar 21, 2017

On December 28, 2016, the United States Court of Appeals for the First Circuit dealt a setback to the Boston Police Department’s hair-testing program used to assess an individual’s prior use of banned drugs. Jones v. City of Boston, No. 15-2015 (1st Cir. 2016). The decision may impact the potential use of hair testing programs in the trucking industry in lieu of currently prescribed pre-employment urine-testing.

This is the second time the case has been before the First Circuit. In its earlier opinion, the court held that hair testing had a statistically significant disparate impact on African-American police officers and remanded to the district court to determine whether 1) hair testing was job-related and consistent with business necessity and 2) whether the employer refused to adopt reasonable alternative means that had less of a disparate impact. In this decision, the court held that a jury could reasonably find that hair testing was job-related and consistent with business necessity (thus affirming the district court on that point), but the court also concluded that a jury could find the police department refused to extend an alternative with less disparate impact as required to avoid liability for discrimination. The opinion focused on the alternative approach of administering a urinalysis for officers that tested positive with the hair test.

Some carriers are utilizing hair testing in addition to DOT-mandated urine testing because hair testing has a longer detection window and screens out more users. However, carriers taking employment actions based on hair testing results alone should reconsider in light of the First Circuit decision.

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