LAWYERS' COMMITTEE FOR CIVIL RIGHTS
AND ECONOMIC JUSTICE
294 WASHINGTON STREET, SUITE 443
BOSTON, MASSACHUSETTS 02108
TEL (617) 482-1145
FAX (617) 482-4392
VIA EMAIL
November 20, 2015
Dear conferees,
As you work in conference on the surface transportation reauthorization bills, we at the
Lawyers’ Committee for Civil Rights and Economic Justice urge you not to legislate the
use of hair specimen drug testing for bus and truck drivers. The test is not reliable,
producing positive test results based on environmental exposure rather than actual
ingestion. Moreover, such false positives fall disproportionately on African Americans,
due to the nature and texture of their hair. Instead, we hope that you will allow the
scientists at the Department of Health and Human Services to engage in their regulatory
review of proposed testing procedures. That review should take place first in order to
avoid imposing unfair and discriminatory testing on any job applicant.
The Lawyers’ Committee for Civil Rights is a non-profit, non- partisan legal organization,
founded by President Kennedy in 1963 to enlist the private bar in the fight against race
discrimination and racial violence. The Boston branch, where I am a staff attorney, was
founded five years later. It played a significant role in desegregating public housing and
public schools in that city.
The Boston Lawyers’ Committee, the Jewish Alliance for Law and Social Action, the
Massachusetts Association of Minority Law Enforcement Officers, the Vulcans,
representing minority firefighters, join and endorse the November 12, 2015 letter sent to
you by the Leadership Conference on Civil and Human Rights, the National Workrights
Institute, and other organizations that protect our civil rights and civil liberties. We share
their concern that hair specimen drug testing has a clear discriminatory effect on African
Americans due to the nature and texture of their hair. Unlike other workplace challenges
confronted by African Americans, false positive hair test results cannot be avoided,
prevented, or remedied. Legislating the use of this test to screen bus and truck drivers
will surely result in unfairly disqualifying viable African American job applicants. For that
reason, the hair drug test must be ranked among the many barriers that prevent equal
employment opportunity in the workplace. The Federal government should be the last
employer in the United States to even contemplate adopting such a discriminatory
employment requirement.
Cocaine is present in small amounts in the air and on common objects like dollar bills. It
can easily find its way to the hair on anyone’s head. The hair specimen drug test is
generally unreliable because it cannot distinguish between cocaine in the hair due to drug
use and cocaine that is present from innocent contamination. African Americans are the
most likely victims of this unreliability. Because African American hair is drier, more brittle,
and contains more melanin than typical Caucasian hair, it both captures and retains more
cocaine from the external environment than does Caucasian hair. The cocaine chemically
binds to melanin in the hair shaft, making it impossible to obtain complete
decontamination unless the hair is vigorously washed within the first hour. Although the
vendors of this hair test claim to remove the melanin after liquefying the hair, experts have
shown that only ten percent of the contamination is routinely removed through that
process.1
As co-counsel in a federal employment discrimination case currently before the First
Circuit Court of Appeals, we at the Lawyers’ Committee are well aware of the devastating
consequences of using hair specimen testing to make critical employment decisions.2 We
have brought suit against the Boston Police Department, on behalf of ten African
American plaintiffs, for its continued use of a hair drug test that has cost the livelihood
and reputation of dozens of long-serving officers. Between 1999 and 2006, African
American police officers and applicants were five times as likely to test positive for cocaine
use as their white counterparts.3 The First Circuit determined that it was extremely unlikely
that this disparity was due to chance.4 In fact, Dr. David Kidwell, nationally recognized
research toxicologist at the United States Naval Laboratory, has reviewed the litigation
packets of four of the plaintiffs and concluded that the cocaine positive test results were
most likely from environmental contamination.5
Many of our clients in this and other lawsuits challenging the hair specimen drug test are
highly commended patrol officers with decades of valorous service to the Boston Police
Department. They adamantly deny the use of illicit drugs, and nothing apart from this
single uncorroborated test indicates that they are, in fact, substance abusers. The impact
on their community is momentous. Fewer African American police are hired and African
American veteran officers are terminated for no reason other than the results of this
flawed hair specimen drug test. When local, state and federal employers use this test, the
results efface the hard fought equal employment victories of the civil rights legislation.
National and international toxicologists have long considered the hair specimen drug test
to be too unreliable to be used as the basis for critical hiring and firing decisions without
further corroboration of drug use. We urge the conferees to heed their warning.
Yours truly,
Laura Maslow-Armand, Esq.
1
Robert E. Joseph, Jr., Tsung-Ping Sue & Edward J. Cone. In Vitro Binding Studies of Drugs to Hair:
Influence of Melanin and Lipids on Cocaine Binding to Caucasoid and Africoid Hair, 20 J. OF ANALYTICAL
TOXICOLOGY, Oct. 1996, at 338, 343.
2 Jones v. City of Boston, No. CV 05-11832-DPW, 2015 WL 4689428, at *1 (D. Mass. Aug. 6,
2015)(appeal filed).
3 Jones v. City of Boston, 752 F.3d 38, 44 (1st Cir. 2014)
4 Id. at 35.
5 Affidavits of Dr. David Kidwell for Ronnie Jones, Richard Beckers, Shawn Harris and Walter Washington
prepared for litigation at the Massachusetts Commission Against Discrimination in 2003 and 2004.