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August 31, 2005 - Wichita Eagle (KS)

Suit Spurs Debate On Hair Test For Drugs

By Denise Lavoie, AP

Return to Drug War News: Don't Miss Archive

BOSTON - The seven police officers swore they didn't use cocaine, yet their hair tested positive for the drug.

They are now suing the Boston police department, claiming the mandatory drug test that got them fired is unreliable and racially biased. Their civil rights lawsuit is one of many legal challenges to the use of hair to test for drug use by police officers and private sector workers.

Employers like the test because it can detect drugs up to three months after use; urine tests go back one to three days and can be altered by a range of products.

But critics say hair testing is unfair because drug compounds show up more readily in dark hair than light hair, and it may pick up exposure to drugs that doesn't involve the subject actually using them.

"No one disputes the need to have a zero-tolerance policy with respect to drug abuse by police officers. The question is, how are they being tested for drug abuse and how are their employers using the results of the tests in making employment decisions," said attorney Rheba Rutkowski, who represents the former officers.

The former officers' lawsuit challenges the tests' accuracy and fairness. Six of the seven - all African-Americans - had a second hair test conducted that came back negative within days of the positive result.

"I was in complete and utter shock," said Officer Shawn Noel Harris, who was fired. "I know that I never used drugs a day in my life."

Harris had another hair test, a urine test and a blood test. All were analyzed by a different laboratory and all came back negative.

"It was humiliating," he said. "People who I once considered friends or comrades in arms treated me differently. They looked at me differently."

Studies have found dark-haired people are more likely to test positive for drugs because they have higher levels of melanin, which allows drug compounds to bind more easily to their hair.

"It's a color bias. It's not a race bias," said Theodore Shults, a toxicologist who is chairman of the American Association of Medical Review Officers, a nonprofit organization dedicated to establishing national standards for drug and alcohol testing.

The Boston lawsuit says the officers may have had some kind of environmental exposure to cocaine, but that they didn't use the drug themselves. It alleges that because they are African-American and their hair is darker, they were more susceptible to testing positive after exposure to the drug.

Police Commissioner Kathleen O'Toole, who is named in the lawsuit, said the department believes the hair testing policy is sound.

"Our department's lawyers have certainly studied this and are prepared to go forward and defend the existing policy," O'Toole said. "To date, nobody has presented anything that's caused us to believe that we should abandon our current policy."

The annual drug test looks for marijuana, cocaine, opiates, PCP and amphetamines.

Boston police began testing hair in 1999, replacing urine tests. Their testing company, Psychemedics Corp., is the largest provider of hair testing for drug use, with clients including Fortune 500 companies and police departments in Chicago and Los Angeles.

William Thistle, Psychemedic's senior vice president and general counsel, said the company's tests are well-supported and approved by the U.S. Food and Drug Administration.

Each hair sample is thoroughly washed and soaked for an extensive period of time to remove any contaminants. If an initial test comes back positive, the sample is tested again, Thistle said.

"The fact is that the test is extremely reliable," he said.

But critics say it's far from perfect. Police are especially vulnerable because they can be exposed to drug residue on the job, they say.

Fort Wayne, Ind., narcotics detective Timothy Bobay tested positive for cocaine after a hair sample was taken from his forearm during a random screening last year.

The police chief moved to fire him, but Bobay vehemently denied using cocaine. He argued the positive test came from exposure to cocaine dust on the job three weeks earlier.

Bobay, who is white and has dark hair, had a hair sample taken from his head tested by a different laboratory and he also had a urine test. Both came back negative.

The petition to fire him was withdrawn after Psychemedics said it was unable to rule out environmental exposure to cocaine as the reason for his positive test, said Bobay's lawyer, Patrick Arata.

"I think it's flawed," Arata said. "You may have an exposure three months before that may pop up in your hair. If you are dark-haired, you are more subject to having it retained in your hair."

Dr. Bruce Goldberger, director of toxicology at the University of Florida College of Medicine, said he is more supportive of hair testing than he was five or 10 years ago because laboratory procedures have improved.

But the American Civil Liberties Union says the science is still questionable and discriminatory.

"Here you have police officers on the front line whose reputations have been horribly tarnished, if not destroyed, and who are out of a job because of a drug test that may have identified them for being guilty of nothing more than the color of their skin," said Allen Hopper, a senior attorney with the ACLU's drug law reform project.

The U.S. Department of Health and Human Services proposed guidelines for adding hair, sweat and saliva testing to its Federal Workplace Drug Testing Programs last year. The new regulations are expected to be issued late this year or early next year.

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