The U.S. Court of Appeals for the First Circuit has remanded a case to a trial court jury for a determination of whether the Boston Police Department failed to adopt an alternative drug test in lieu of hair testing that would have met the department’s legitimate needs while causing less of an adverse impact against a class of African-Americans.

Although the appeals court ruled in Jones v. City of Boston, No. 15-2015 (1st Cir. Dec. 28, 2016), that the hair test was “indisputably” job-related, and its use was consistent with business necessity, the court concluded that a jury should decide whether the department should have adopted the plaintiffs’ proposed alternative of using follow-up random urinalysis to detect false positives.

For employers using, or considering using, hair testing, the case serves as a warning that such a test, like any other selection procedure, can be challenged on grounds that it has an adverse impact on a protected class.  And in order to defend a practice that has adverse impact, an employer will be called upon to show that it is job-related and consistent with business necessity, and may need to consider any equally valid, less discriminatory alternative.

The First Circuit’s decision in Jones v. City of Boston is available here.

Members of the Equal Employment Advisory Council (EEAC) can read more here.