Tucked into the thousands of pages of the Senate version of the Highway and Transportation Funding bill was a provision mandating the use of a flawed and racially discriminatory hair drug test to screen applicants for Department of Transportation employment. Together with many allies, the Lawyers’ Committee helped stop this provision from being enacted, a victory in our ongoing fight to prevent this discriminatory test from wrongfully blocking employment opportunities for African-Americans.
The test’s many flaws and discriminatory impact have been repeatedly recognized. The basic problem is that the test cannot reliably measure whether cocaine found in the hair comes from ingestion or from passive environmental contamination. Hair can be easily contaminated by the cocaine particles prevalent on currency and other everyday objects and then, in a short window of time, cannot be completely decontaminated. This type of external contamination, which leads to false positive results, is particularly likely for African-Americans because of the dry, brittle nature and texture of their hair.
For this and other reasons, in 2008, the federal government, after four years of evaluation, explicitly rejected hair testing as a means to determine illicit drug use. A similar conclusion was reached in 2013 by a unanimous Massachusetts Civil Service Commission, finding that the hair test was unreliable and could not be used as the sole basis for terminating a tenured civil servant. And in 2014, in our Jones v. City of Boston case, the United States Court of Appeals for the First Circuit found that this hair test had an adverse and disparate impact on African-Americans.
Despite all of this evidence of the test’s unreliability and discriminatory impact, it re-surfaced in the Highway and Transportation Funding bill. Alerted to the imminent passage of a law that would require bus and truck companies to impose this test on thousands of employees each year, a coalition of civil rights and civil liberties organizations, under the leadership of the AFL-CIO Transportation Trades Department, sprang into action. That coalition included the American Civil Liberties Union, the Leadership Conference of Civil and Human Rights and the National Workrights Institute. Writing separately , the Boston Lawyers’ Committee for Civil Rights and Economic Justice warned the members of Congress against adopting this discriminatory employment screen. When the $305 billion Highway and Transportation Funding Act was finally passed by Congress and signed by the President, the mandate had been removed and the scientists at the Department of Health and Human Services were given additional time to develop uniform standards and oversight regulations before any generalized use of hair testing would be allowed.