Recently an appeals court in Massachusetts ordered that six black police officers be reinstated to duty after having tested positive in a hair follicle drug test. In addition to finding reason to believe that the test itself was too prone to false positives, the court also noted that the test may be racially biased.

As we have noted on this website, there is ample evidence that the science behind hair follicle drug testing seems to indicate that certain hair types and colors would make positive test results more likely. And a coalition of 17 organizations, including the Transportation Trades Department, AFL-CIO (TTD), the American Civil Liberties Union (ACLU) and American Medical Review Officers has urged the removal of hair follicle drug testing for bus and truck driving job requirements for the very reason.

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Independant research has shown that darker and more porous hair retains drug particles more readily than lighter less porous hair. Considering that people of African race have some of the naturally darkest and most porous hair, this would seem to indicate that black people would be more prone to testing positive than any other race. And with levels of detection set so low for the hair follicle test, any variance between hair types could have a major impact in terms of the number of false positives produced.

Despite what the drug testing companies have been saying for many years, this is just common sense and it’s difficult to find a reputable scientist that does not have ties to the drug testing industry who will claim otherwise.

Even the scientific research from drug testing companies cites that drug metabolites bind to melanin, a protein that gives the hair its color. It just seems to follow that hair that contains greater amounts of this protein will absorb more drug metabolites than hair that has lesser amounts.

Likewise, another claim made by the drug testing industry is that the structure of hair itself prevents drugs and drug metabolites from entering the hair shaft yet they somehow also claim that hair that is provably more porous does not increase the chances of external contamination.

However as we often point out on this site, it is not in the best interests of drug testing companies to highlight the limits of their testing. They have spent several decades selling their tests as nearly infallible proof of drug use, building a mystique around it which makes many believe makes the test unbeatable. Admitting that they knew the limitations of their testing yet still selling it to employers and governments as highly accurate would expose them to massive financial consequences.

It’s similar to tobacco companies. They fought admitting that smoking was bad for people and produced so much bogus scientific research because doing otherwise would lead to absolute financial ruin.

However, if racial bias in the testing can be proven or at least heavily implied, it forces employers and governments into a different situation than if one were simply to claim the test was inaccurate.

If enough studies were to come out to show that hair follicle drug testing is not as accurate as it’s made out to be, most employers and governments might be willing to accept that some false positives are just inevitable. Nothing is perfect or 100%.

However, evidence of racial bias changes the situation entirely. A company that uses hair follicle drug tests to screen applicants might be fine with some evenly distributed false positives but if there’s a racial bias to the testing they could find themselves facing racial discrimination lawsuits which don’t play well for them in the media. They no longer have the cover of “at will” employment if it can be proven that they are discriminating against a protected class of people.

It will be interesting to see how the effects of this and other cases reverberate across the legal system.

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