On July 26, 2005, a group of current and former Boston Police Department (BPD) officers, an applicant to the BPD, and the Massachusetts Association of Minority Law Enforcement Officers filed this lawsuit in the Suffolk County Massachusetts Superior Court. The plaintiffs sued the City of Boston and the Boston Police Department under 42 U.S.C. § 1983 and 1981, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and state law. The plaintiffs claimed that the defendants engaged in discriminatory drug testing practices. Specifically, the plaintiffs alleged that the hair test used to screen police officers and applicants for drug use disproportionately affected people of color, and that they were wrongly terminated, denied employment, or required to enter drug treatment programs as a result of errors in the test.

The plaintiffs argued that hair tests were notorious for yielding false positives on hair samples from people of color specifically and were acknowledged by the Society of Forensic Toxicologists as being unreliable. In fact, the complaint stated, many of the candidates who were let go from BPD had alternative hair tests come up as “negative”. These flawed exams, the plaintiffs argued, were thus too imprecise, arbitrary and biased to be the basis for hiring and firing decisions. The plaintiffs requested a permanent injunction against the use of the hair test, to be reinstated with proper seniority, full back pay for the fired officers including sick leave and interest, attorneys’ fees, punitive and compensatory damages.

On September 9, 2005, the case was removed to the U.S. District Court for the District of Massachusetts at the request of the defendants who stated the majority of the plaintiffs' claims rested in federal law.

Subsequently, the defendants moved for summary judgment. On September 28, 2012, U.S. District Judge George A. O'Toole, Jr. granted summary judgment to the defendants on all counts. Judge O’Toole ruled that the plaintiffs did not meet their burden of proof to show the hair test policy causes a disparate impact on the basis of race. The District Court focused on the fact that 97-99% of African Americans passed the test, while 99-100% of White officers passed. The plaintiffs appealed to the U.S. Court of Appeals for the First Circuit. 2012 WL 4530594.

On May 7, 2014, the First Circuit ruled that there was enough evidence to show disparate impact on the basis of race under Title VII. The statistics from the use of the hair tests from 1999-2006 were analyzed by both courts. In response to the district court's conclusion that the hair test resulted in no disparate impact, the First Circuit highlighted the disparity in those who tested positive. Over the eight years evaluated in this case, 1.3% of black officers tested positive and .28% of white officers tested positive, so for this period a black officer was five times more likely to test positive than a white officer. The Circuit Court held that the statistics presented did constitute a disparate impact on the basis of race and remanded the case back to the District of Massachusetts. 752 F.3d 38 (2014).

On December 10, 2014, the defendants requested summary judgment in the second case before the District of Massachusetts. On August 6, 2015, U.S. District Judge Douglas P. Woodlock again granted summary judgment for the defendants. He found that where a policy created a disparate impact under Title VII, the burden shifted to the employer to prove there is “Job Relatedness and Business Necessity” for the policy. Judge Woodlock found that the BPD met this burden. 118 F.Supp.3d 425 (D.Mass. 2015).

On September 1, 2015, the plaintiffs again appealed to the U.S. Court of Appeals for the First Circuit. The First Circuit affirmed the district court's ruling that drug testing was necessary and related to the BPD. However, for the third prong of the test, the First Circuit remanded to the district court on the grounds that a reasonable fact finder could determine that an alternative drug testing method existed, that the alternative method would have a less disparate impact, and that the BPD refused to implement this policy.

On remand, the parties reopened discovery and began mediation. A non-jury trial began under judge Woodlock on March 5, 2018 and is ongoing as of March 22, 2018.

Kelly Ehrenreich - 10/02/2016


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