Court Cases Involving Hair Testing
Matter of Patrick Forte, New York Appeal Board No.477610 (4/7/00), the
Unemployment Insurance Appeal Board upheld the determination of the
Administrative Law Judge, (A.L.J. Case No.097-08521), in affirming the decision
of the Department of Labor to disqualify a probationary police officer,
("claimant"), from receiving benefits. The claimant was disqualified after his
termination due to willful misconduct. The claimant submitted to a hair test,
which results were positive for cocaine use. The claimant argued that either the
hair sample was contaminated due to his exposure to crack cocaine vapors, or
that he "passively ingested" small amounts of cocaine. The Appeal Board found
that due to the fact that the claimant's results showed a cocaine level 4-8
times the cutoff level and that benzoylecgonine, a cocaine metabolite, was also
detected, it was unlikely that the claimant "passively ingested" cocaine. The
Appeals Board recognized that it had previously been demonstrated to the Board
successfully that the laboratory's washing techniques eliminated the issue of
Hicks et al. v. City of New York et al., Index No.119154 (1999), the Supreme
Court of the State of New York upheld the termination of three officers through
the use of hair analysis drug testing.
Brown v. City of New York, 250 AD2d 546, 673 NYS2d 643, (1998), the New York
Supreme Court Appellate Division affirmed the New York Police Department's
discharge of a New York City police officer for failure to pass a hair analysis
drug test. Claims of contamination and inadequacies of testing were determined
to be devoid of merit.
Safir, et.al, 680 N. Y.S. 2d 500, 255 A.D. 2d 247, (N. Y.A.D. ,1 Dept. 1998),
the New York Supreme Court Appellate Division upheld the lower court's
determination of the accuracy of the laboratory hair testing performed on an
NYPD officer. Subsequent to this decision, the plaintiff filed suit in federal
court, (E.D.N.Y. Civil Action No. 98-CV-2784 (ERK)(JMA)), claiming, in part,
that he had not been afforded procedural due process before he was terminated
from his position. The court, in granting the defendants' motion for summary
judgment, found that the plaintiff was afforded, and took advantage of, every
opportunity to appeal his dismissal. The court also referenced the Appellate
Division's holding that "there was reasonable suspicion to order the testing …
and there was no reason to doubt the accuracy of the test results."
Nevada Employment Security
Department et. al. v. Cynthia Holmes, 914 P .2d 611
the Nevada Supreme Court held the following with regard to a hair test utilized
to deny unemployment benefits: We acknowledge that there are, arguably, no
certainties in science. See Daubert v. Merrell Dow Pharmaceuticals, Inc.,
___U.S.___, 113 S.Ct. 2786 279 (1993). Nonetheless, we conclude that [hair]
testing especially when coupled with a confirmatory GC/MS test is now an
accepted and reliable scientific methodology for detecting illicit drug
use....we conclude that Holmes' ingestion of cocaine, subsequently proven by the
RIA screening and confirmatory GC/MS test constitutes misconduct within the
definition of NRS. 612.385.
State Gaming Commission v.. Binion, 1996.
Background: Under its jurisdiction as licenser of all gaming establishments in
the State of Nevada, the Board suspended Mr. Binion's gaming license and ordered
him to undergo quarterly hair tests for drugs of abuse. Mr. Binion is part owner
of the Horseshoe Casino in Las Vegas. During the period of suspension, Mr.
Binion was required to adhere to a number of the Board's demands including
random hair tests. Mr. Binion had negative results from the hair testing until
the end of the year when several tests produced positive results. A public
license suspension hearing was conducted with the laboratory defending its
methods and technology and Mr. Binion's two expert witnesses questioning the
validity of hair testing. During the hearing Mr. Binion's experts agreed that
they could not find flaws in the testing methods or forensic procedures used by
Nevada Gaming Commission continued Mr. Binion's license suspension for an
additional year. As a result of the positive hair tests, Mr. Binion was ordered
to continue testing. Since Mr. Binion had cut his hair extremely short and had
been providing duplicate samples to his own laboratory, the Board decided it
wanted the same testing coverage that hair would provide, but they would use
urine since so little hair was available. In order to equal the time coverage of
hair testing, Mr. Binion was ordered to provide a urine sample three days per
week (Monday, Wednesday and Friday) with an additional two random urine samples
Claim of Delbert Otto (Consolidated Biscuit Co.), Case No. B 95-02542-000
(1996), the State of Ohio Unemployment Compensation Board of Review, ("Board
of Review"), overturned the Hearing Officer's ruling that the claimant was
discharged without just cause and was entitled to benefits. The Board of Review
found that expert testimony demonstrated the reliability of the hair test which
detected quantities of marijuana in the claimant's hair.
Florida Department of Law Enforcement, (Fla. Dist. Ct. of Appeals 1993), 627
So.2d 1321.The plaintiff, a corrections officer, appealed from the decision
of a hearing officer that her criminal justice certification should be revoked
based on a positive urinalysis. The court held that evidence of a negative hair
analysis was erroneously excluded and that " analysis of human hair to determine
cocaine use is generally accepted in the scientific community." On remand, the
hearing officer disregarded the hair analysis results as well as a subsequent
negative urinalysis result and again recommended the revocation of the
plaintiff's certification. The plaintiff appealed a second time in Bass v. Fla.
Department of Law Enforcement, 712 So. 2d 1171 (Ct. App. Fla 1998), in which
case the Court affirmed the ruling of the lower court holding that hair analysis
should be admitted as it is "precisely the tool which is used when there is a
claim of error in a urinalysis for cocaine."
Hotel San Remo, Nevada Employment Security Department Office of Appeals,
Decision No. V3-1403 (June 10, 1993), affirmed on appeal In the Matter of
Cynthia Holmes, (Hotel San Remo), Nevada Employment Security Department of
Review, Decision No. BV3-0625 (V3-1403) August 20, 1993
Background: Cynthia Holmes was fired in February, 1993, after a test of her hair
showed she had used cocaine. The San Remo Hotel and Casino had advised its
employees that they would be subject to random drug tests. Holmes was entrusted
with San Remo's computer system and handled large amounts of cash. When the
results of her random hair test came back positive for cocaine, Ms. Holmes was
terminated according to company policy and immediately filed for unemployment
benefits. Denial of unemployment benefits continued through the process until it
reached the District Court where hair analysis reliability was questioned. The
San Remo appealed to the Nevada Supreme Court.
The Nevada Supreme Court reversed the trial court's holding that hair tests are
scientifically unreliable and should not be used to deny unemployment benefits.
decision the Court said employers "have compelling reasons, both economic and
social, to test their employees for drugs. We conclude that San Remo's drug free
policy had a reasonable relation to the work performed by Holmes". Ms. Holmes
was denied unemployment benefits.
al. v. City of Chicago, Civil Action No.99 C 8201, (N.D. IL, November 28, 2000),
a case involving claims of race bias in hair testing, the United States District
Court granted summary judgment in favor of the City of Chicago and dismissed the
case. The Court found that not only was some of the evidence Inadmissible, but
also that "the remaining admissible evidence would be insufficient for a trier
of fact to find that the hair test is more likely to result in false positive
results for African-American applicants that for white applicants…"
Whirlpool Corp., Civil Action No.99-2129, (U.S.D.C., Dist. AR, June 23, 2000),
the United States District Court found no merit to plaintiffs allegations that
the [….] hair test, was racially biased against African Americans and, as such,
granted the defendant's motion for summary judgment. "Summary judgment is not
appropriate unless all the evidence points toward one conclusion. ..."(citing
Hardin v. Hussman Corp., 45 F. 3d 262 (8th Cir. 1995)). The defendant's expert
offered through written testimony that "there is absolutely no scientific
support for the notion that plaintiffs test result could be positive because of
her race." The court considered the plaintiff's failure to offer any statistical
evidence in support of her claim of racial bias in granting the defendant's
II. Probation/ Parole
States v. Medina. 749 F. Supp. 59 (E.D.N.Y. 1990). The court ordered a hair
test to determine if a probationer had violated his parole by utilizing drugs in
the preceding months. In revoking parole, after a positive hair test, the court
scientific writings on hair analysis establishes both its reliability and its
acceptance in the field of forensic toxicology when used to determine cocaine
decision, Judge Weinstein, the author of a treatise on evidence, analyzed the
admissibility of hair analysis under the Federal Rules of Evidence and under
Frye. He concluded that hair analysis was admissible under both.
Hair analysis has been
upheld in arbitrations between Anheuser-Busch, Inc. and its
In an October
1999 decision, the collection of body hair for analysis was upheld. In a July
1999 decision, union claims of improper specimen collection, and age, race and
gender bias related to slow hair growth were found to have no merit and the
issues were resolved in favor of the Company. In an August 2000 decision, it was
determined that random hair testing of employees in safety sensitive positions
did not violate their state constitutional rights to privacy. The […] hair test
was deemed "a reliable method for detecting employee drug use, [which] therefore
served to further the Employer's legitimate safety interest."
in United States Steel, A Division of USX Corp. and United Steelworkers of
America, Local 1557 (1999), the Arbitrator ruled:
We find that
hair testing for drugs is legitimate under the LCA and scientifically valid.
[HAIR] wash procedures are effective in removing environmental contamination.
The 5.0ng/10mg cutoff level for cocaine is appropriate in light of field
studies. There was no bias here on the basis of race or hair color. The chain of
custody was unbroken. The Company has satisfied us that Grievant ingested
cocaine during the period covered by the Last Chance Agreement. That material
violation of the LCA was proper cause for discharge.
analysis was also upheld in US Steelworkers Local 4134 & Lone Star Steel Co.,
Case No. 022-96 (1997) and Battle Mountain Gold Co. & Operating Engineers Local
3 (1998). Rodney Pinkerton v. Chemical Lime Co., April 4, 1997. Labor
Arbitration. Claimant had been terminated after his hair test was found to be
positive for an abused substance. The Arbitrator upheld the termination and the
Claimant's request for reinstatement was denied.
IV. Child Custody
The Marriage of Ibrahim A.
Moussa and Nastassja Kinski, Superior Court, State of
California, City of Los
Angeles, Case No. BD077286, July 16, 1999.
Background: During the custody hearings, the husband submitted to a number of
urine tests that resulted in no detection of drug use. The wife insisted drugs
were being used and asked the court to order a hair analysis. Two hair samples
were taken one year apart. Both indicated drug use. A Kelly-Frye hearing was
ordered to challenge the scientific validity of hair testing.
court reviewed the information on the scientific efficacy of hair testing with
both sides submitting declarations from experts. The declaration in support of
hair testing was authored by Dr. Kelly and the opposing declaration by Dr. Vina
R. Spiehler, a Southern California toxicology consultant. The judge also heard
oral arguments from legal counsel for both sides. The court held that hair
testing met the legal standards established for the admissibility of scientific
evidence and admitted the results of the hair tests.
Hearing; Pending, Livonia, Michigan, 1998.
Background: Concerned by his ex-wife's behavior while with his child, the
husband retained the services of an investigator. The investigator suspected
that the mother was smoking marijuana in a closed car with the 5 year old girl.
Frustrated with the inability to obtain video evidence, the father collected a
sample of the child's hair when the mother delivered her to him for scheduled
sample presented an unusual problem. The question being asked was not whether
the 5 year old child had ingested marijuana, but rather was the child exposed to
the drug in a confined space in a car. The normal procedure in handling hair
samples is to chemically wash the hair of external contaminants. In this
situation, the sample was prepared without the chemical washes. The sample was
positive for THC, the active metabolite of marijuana.
Matter of the Adoption of Baby Boy L., 157 Misc. 2d 353, 596 N.Y.S. 2d 997
Background: The adoptive parents of Baby Boy L. sought to introduce the results
of a hair test of the biological parents' hair to demonstrate cocaine use. The
parties had previously stipulated to the production of hair samples for the
purpose of testing for the presence of illicit drugs. Although the parties
stipulated to the production of hair samples, the biological parents objected to
the introduction of the testing results into evidence on the grounds that hair
analysis (for purposes of detecting the extent of drug use) had not been shown
to be endorsed by the general scientific community as reliable and
scientifically acceptable. A hearing was held on the acceptance of hair testing
in the scientific community, which included the testimony of the adoptive
parents' expert, Dr. Bidanset, as well as the biological parents' expert, Dr.
Manning. Dr. Bidanset testified that the hair analysis process was generally
accepted by the scientific community, and was not only accurate, but becomes
even more probative and reliable when used in conjunction with other related
testing procedures, such as gas chromatography mass-spectrometry (GCMS). Dr.
Manning testified that the hair analysis test was not entirely accepted by the
Society of Forensic Toxicologists, but acknowledged that he personally and
professionally regarded the test as accurate and reliable.
court concluded that the hair analysis was generally accepted in the scientific
community, and was, therefore, admissible. Finally, the court observed that the
criticism of the hair test centered on the need for individual testing controls,
not the scientific validity of the process itself.
Burgel, 141 A.2d 215, 533 N.Y.S. 2d 735 (1988) or No. 1651E, 1651 AE, New York
Superior Court Appellate Division, 1988.
Background: During a child custody suit, the husband sought to have his wife
submit to a hair test to determine if she had recently used cocaine.
Court of Westchester County, New York, ordered the wife to submit to the test.
On appeal, the Supreme Court, Appellate Division affirmed.
Court initially stated that the broad scope of discovery takes on particular
significance in child custody disputes, and in this case, the wife had placed
her physical and mental condition in issue. Principally, the information sought
concerned her continuing use of cocaine and thus, was relevant to her fitness to
be granted custody of the children. The Court pointed out that the matter under
review was a civil matter, in which the wife not only admitted to cocaine use,
but had put her mental and physical health in issue. Particularly under these
circumstances, argued the Court, neither the alleged novelty of the procedure
nor the potential for its abuse provides a tenable analogy to the Fourth
Amendment concerns articulated by the courts in the criminal cases cited by the
dissent. The Court observed that even if the evidence was not admissible, the
material may be discovered if it could lead to the discovery of admissible
evidence. Finally, the court characterized the testing as "minimally intrusive",
and held that the trial court did not improvidently exercise its discretion in
ordering the test.
Marriage of Turner, King County Superior Court, Case No.97-3-00075-4 KNT,
Background: During a custody hearing, the mother was accused of using
methamphetamine. The attorney for the father obtained a hair sample and
submitted it for testing. The sample was positive for methamphetamine.
father was awarded custody. The mother was retested several months later and was
negative. The mother was awarded visitation as long as there is no further
suspicion of drug use.
Parentage of B.L.W., Tacoma, Washington.
Background: In this case the father sought a major modification of residential
schedule. Based on his allegation of mother's use of methamphetamines.
hair test corroborated her use of methamphetamines. Custody was awarded to the
The Marriage of Hicks,
Pierce County Superior Court, case No. 97-3-01970-1, Tacoma,
Background: The mother was accused of drug use. A hair test was submitted and
was reported negative for all drugs.
mother was awarded custody and the father was awarded liberal visitation.
Dion Idaho Contact: Kimberly Blas, 208-344-8535.
each party accused the other of illicit drug use. Urine testing had not produced
satisfactory results and a hair sample was submitted. What makes this case
unusual is that hair had not been previously employed in this court system.
testimony, the hair analysis was accepted as evidence of drug use. The court
system in this area now routinely uses hair testing to detect drug abuse.