Imagine being denied work — not because of your qualifications or work history, but because a drug test required for employment comes back positive for a drug you never used. Now imagine learning that the test result could have been influenced by the color and texture of your hair.
Sadly, this isn’t a plot for a sci-fi movie. Over the past two decades, several Boston Police officers have been terminated or denied employment because of false positives on department-required hair drug tests.
In 2013, the Massachusetts Civil Service Commission reinstated six of those officers after determining that the hair testing method used was unreliable. In 2014 a panel of federal judges determined that this hair testing method had a discriminatory impact on African Americans.
Hair tests can lead to false positive results because certain drugs — like cocaine — which are found on common surfaces, including dollar bills, can be absorbed into hair. There is currently no way to fully cleanse hair of these drugs.Furthermore, cocaine binds to African-American hair at greater rates than it does to fine, light-colored hair. Damage to hair caused by treatments like straightening and perming, and certain cosmetic products can further facilitate drug absorption. Hair drug testing methods are currently incapable of distinguishing whether drugs found in the hair come from environmental contamination or from ingestion.
Despite these known flaws, some trucking companies have not been dissuaded from using hair samples to drug test employees. In order to cut drug-testing costs, large trucking companies are seeking permission from regulators at the Department of Transportation (DOT) to use hair samples in place of urine samples in federal drug tests.
Granting this request would not only expose tens of thousands of truck drivers to an unreliable and biased testing method, it would also set a threatening precedent for millions of other workers in the transportation industry and across the national economy.
There is no denying the need to keep our highways safe. That is why a host of federal regulations exist, including requirements that bus and truck drivers pass pre-employment and ongoing drug tests. For the past 25 years, urine drug testing has been the only method approved by the Department of Health and Human Services (DHHS).
Scientists — not employers — are responsible for determining the best methods for testing transportation workers for illegal drug use. That is why Congress mandated in 1991 that DOT create a testing process based on DHHS’ scientific procedures. DOT complied, creating the urine-based drug testing system that we have today — a system that is rooted in sound science and proven methodology.
Federal regulators have not approved hair testing as a viable drug testing method simply because it is not reliable. Allowing trucking companies to use a testing method that DHHS scientists have not approved turns this process on its head, and paves the way for unfair hiring and firing practices on a national scale.
Thankfully, many lawmakers recognize the injustice in subjecting workers to unreliable testing methods — as part of legislation enacted in 2015 to renew transportation programs, Congress rejected a nearly identical attempt by trucking companies to circumvent DHHS scientists and DOT regulators. Members of Congress are standing up again to defend the clear intent of the 2015 law and oppose the truck companies’ petition.
Regulators need to follow suit and reject the trucking industry’s heavy-handed campaign to impose a flawed testing procedure on unsuspecting workers. Brass knuckles politics should not replace soundscience.
Iván Espinoza-Madrigal Esq. is the executive director for Lawyers’ Committee for Civil Rights and Economic Justice. Larry Willis is the president of the Transportation Trades Department.