Pubdate: Wed, 31 Aug 2005
Source: Wichita Eagle (KS)
Copyright: 2005 The Wichita Eagle
Author: Denise Lavoie, AP
Bookmark: (Drug Test)


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 

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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