Felicia Ellsworth: Welcome to “In the Public Interest,” a podcast from WilmerHale. I’m your host, Felicia Ellsworth, and I am a partner at WilmerHale, an international law firm that works at the intersection of government, technology, and business.

Felicia: Before we begin, we have some exciting news—we have a new co-host of In the Public Interest! Today, I am delighted to introduce Michael Dawson as our new co-host for the podcast.  Michael is a partner in our Washington DC office who joined the firm in 2021.  He advises financial and technology clients of the firm on regulatory compliance. You’ll be hearing from Michael very soon—stay tuned!

Felicia: In November of last year, the City of Boston reached a settlement with plaintiffs in a longstanding federal antidiscrimination lawsuit, alleging that a “hair test” used by the City to identify drug use on its police force was discriminatory, unreliable and scientifically flawed.

Felicia: In 2005, lawyers for Civil Rights filed the lawsuit on behalf of several individual plaintiffs, and the Massachusetts Association of Minority Law Enforcement Officers. Some of the individual plaintiffs were police officers who were let go after decades on the force because of the hair test, and others were denied admission into the police Academy because of tests. In 2015, a team of Wilmer Hale lawyers took on the case and represented the plaintiffs through their second trip to the First Circuit Court of Appeals and in a six day trial between March and April of 2018, before the case settled last year in 2023 for $2.6 million. The Wilmer Hale team was led by Lisa Pirozzolo, a partner in WilmerHale Boston office in the litigation department. Lisa also serves on the board of directors for Lawyers for Civil Rights in Boston. Lisa joins me today to talk about this important case. Lisa, thank you so much for being here.

Lisa Pirozzolo: Thanks for having me.

Keri: Thanks for having us.

Bridgy: Thanks for having us.

Oren: Thank you for having us.

Felicia: All right, Bridgy, let's start with you. Could you please introduce yourself to the podcast listeners and tell us about your time at the Boston Police Department?

Bridgy: Yes, William E Bridgeforth junior, also known as Bridgy to everybody. I was on the Boston police approximately 14 years and before that I was an MBTA police officer for about 6 years.

Felicia: And Keri, turning to you, could you introduce yourself and also tell us both about your time at the department and maybe a little bit why you joined the Boston police Department?

Keri: Hello, everyone. My name is Keri Hogan, and I wanted to join the Boston Police Department because I wanted to work in some aspect of criminal justice. I grew up in the city of Boston all my life, so being in the inner city, I really wanted to help people and make a difference in my community.

Lisa: So Keri and Bridgy, we want to go back to 2000 when the hair test started being used by the Boston Police Department. Starting with Kerry, can you just tell our listeners a little bit about what happened with you and the hair test?

Keri: I was a Boston police cadet for about 4 1/2 years. I was in good standing and I was doing well within the department and I was an applicant for the next Boston Police Department Academy class. First step in that process was taking the hair test. I still remember that day pretty vividly. I was just getting off shift and I was on my way home when I received the call asking me questions regarding my hair test. Like, do you take any medications, questions like that, but by the line of the questioning, I knew something wasn't right and that is when I was told that my test came up positive for cocaine. I remember telling them this is wrong. I've never done cocaine in my life and that I needed to retake this test.

Lisa: And what happened after that?

Keri: They told me no and I just remember being super upset, crying, just trying to figure out what happened.

Lisa: Bridgy, let's go back with your experience with the hair test. What happened with you?

Bridgy: I took the test in 2000. No problem, 2001, no problem. And I've been a long time member of the Police Department, never had any issues with anything. And then one day in 2002 I get a call from the Medical Review Officer and he told me I had tested positive for cocaine. I thought it was one of my friends. You got to know my friends in the police department. They're jokesters. I'm thinking someone’s kidding with me. I hung up and he called me back and he gave me my social number and my heart just sank. I'm like oh my God, because I just had a newborn baby. He was two months old. He was born with sickle cell anemia. So I'm thinking, I can't lose my job. We all kind of knew if you tested positive you have two choices with department, you do a program or you lose your job. If it didn't work out and tested positive again and eventually terminated. So turned my world upside down.

Lisa: Keri, did you challenge the hair test? Did you try to challenge the results?

Keri: Yes. I told them that they needed to give me another hair test, which they denied me. After that happened, I took the initiative to go get my own hair test and try to let them know, ok, I've taken my own test, but they just pretty much shut me down.

Lisa: And Bridgy, how about you? Did you try to challenge it?

Bridgy: I did. I went and got another test and that came back positive. So makes you start questioning, did I take something accidentally? Is something in my food? Something I use on my body?

Lisa: Did you guys hear about other police officers that were having this happen to them?

Bridgy: Yes, Richard Beckers was my classmate and then Ronnie Jones. I knew him. I just was shocked that I heard that. And that's when I reached out to Manlio. As soon as I told them what happened they said you're not by yourself and we kind of took it from there.

Keri: I had no idea about false positives. I kind of stumbled upon all of it just trying to do research. Just trying to educate myself and find out what was happening. I stumbled upon the Lawyers Committee and I was able to find out through them that there was several other people who were in the same position as me, and that's how I found out that this was something that was impacting more African Americans than anyone else in the department.

Felicia: So Oren, if I could ask you to give us a little bit of background on this test, how it works and why it's resulted in all of these false positives that Keri and Bridgy have been talking about.

Oren: Sure, the test purports to be able to tell whether someone is using drugs through analyzing strands of their hair, but the basic problem with the test is that it can find drug particles in the hair, but it can't reliably say how they got there. And it turns out that drug particles are prevalent in our everyday environment. Studies have shown something like 50% of all dollar bills in circulation have cocaine particles on them. So these particles are everywhere and they can very easily be absorbed into the hair if someone touches a dollar bill, for example, that has drug particles on it and then touches their own hair. And what experts have testified is that this external contamination issue particularly impacts African Americans because of the texture of black hair as well as hair products and treatments that are commonly used in the African American community. So it's an unreliable test.

Lisa: Yeah, that's the other thing that former police Commissioner Evans testified that he knew that the hair test was having an adverse impact on black police officers pretty early on in the adoption of the hair test. So Keri and Bridgy, I'm going to ask you how this impacted your life and why don't we start with Keri.

Keri: It was really detrimental on my life as I know it was with others. I was extremely depressed, embarrassed. I was angry that this was happening to me. I was stressed to the point where it affected my eating, my sleep. I had to eventually overcome these emotions. I had to pick myself back up. It led me to keep going forward into a different career path, which I found in corrections. With bills, credit cards, rent, car payments, it really affected me financially as well.

Lisa: And how about you, Bridgy? How did it impact your life?

Bridgy: Pretty bad. Like I said, I had a newborn baby, so I needed a job. But who wants to hire a fired Boston police officer. So if you put down, you were terminated from the police department, game’s over. So I wound up having to move back to my home state of Indiana, which I got a job immediately here and never had any issues with any drug test at all. And it's like I'm starting over from scratch.
Felicia: I can only imagine. I was going to ask, how did you all get involved with Lawyers for Civil Rights and Oren and his team and what made you decide to proceed forward with litigation to challenge this flawed test?

Bridgy: I reached out to Ronnie and Richard and they had told me that they had gotten in touch with the lawyers committee and kind of went from there and they asked me some questions and we did a lot of research, research, research, research. That's all I was doing. Going to library, getting on the computer, trying to find what could have caused this. It makes you question everything. You don't want to eat certain things. You don't want to touch certain things, you just don't know.

Keri: Yeah, same here. I remember doing a lot of research on it too, but what made me file the lawsuit and, you know, kind of get involved when I found out there was many people like me going through the same thing and I wanted Boston police to be held accountable for not taking action and exploring when they knew something could possibly be wrong with this hair test.

Felicia: And Oren, can you tell us from your perspective, how did Lawyers for Civil Rights get involved in the case and learn about this matter?

Oren: Lawyers for Civil Rights has for a long time fought for diversity and public safety agencies, both police and fire throughout Massachusetts, and we've developed very deep ties with community organizations. Like the organizational plaintiff in this case, Manlio, so was really within days of when this flawed hair test began rolling out that we started receiving calls from Manlio, from individual officers who knew that something was wrong. You have to remember that the cadets who were receiving these results were among the shining stars on the police force who had exemplary records of service. We started pursuing the matter at that point through individual actions and eventually ended up filing the lawsuit that we're talking about today.

Lisa: Oren, can you walk us through what the argument was in the case that the hair test was discriminatory?

Oren: The basic claim in our case is that the Boston Police Department's use of this flawed test violates title seven of the Civil Rights Act of 1964. Title VII is one of the country’s primary civil rights laws that prohibits discrimination in employment, including on the basis of race. Under Title 7, there are two ways to prove a violation of the law. You can prove intentional discrimination that's disparate treatment, but what the law also allows is for a plaintiff to show what's called disparate impact. If there's an employment policy or practice that falls more heavily on employees of color, for example, and can't be justified, then that violates Title 7 as well, even if that was not an intentional result. That's really important in civil rights laws, that disparate impact theory because it can be so hard to prove intentional discrimination to get into a decision makers mind and figure out what their intent was. So disparate impact, which is what we relied on in this case, is a very powerful tool for rooting out discriminatory practices.

Lisa: So this case was filed in 2005 and the settlement was 2023. So that's a long time. Keri and Bridgy, how did you stick with this case for so long?

Keri: I stuck with the case because I knew I didn't do anything wrong. I knew that this test was wrong. I knew that I've never taken cocaine in my life, so I didn't want to give up. I just wanted to prove my innocence. I wanted to make sure that this didn't ever happen to anyone else. For them to go through the turmoil that I went through, and also just wanting some type of effective change to come out of this test, especially for African Americans.

Lisa: How about you, Bridgy? How did you hang in?

Bridgy: By faith. There’s a couple of times I got frustrated. I knew I was never going to walk away. Every year that goes past, they see your kids going to one grade to the next grade and they're in high school and you still looking back like, man, when is this case ever going to come to light? I would call Ronnie, and Ronnie would call me and just give me some words of encouragement and you know, just kind of pulled it together and said, OK, let's stick in there. Best I could. It's been some times, I gotta admit, I cried in my pillow. Like, why is this happening to me? What did I do to deserve this? You just kind of suck it up and go, ok, tomorrow's another day and just keep it moving.

Felicia: Shifting gears, Keri, I know that you had the opportunity to testify at the trial in this case and would love to hear a little bit about why you decided to testify and how it felt to be able to have that opportunity, finally, to tell your story in court.

Keri: I was super nervous. It's intimidating to get up on the stand and be vulnerable and be able to tell your story to the world without feeling people are judging you. Honestly once I got on the stand and I was being asked questions and I was able to answer them. I just felt this buildup of empowerment. It was a relief to get it out, to be able to tell people what was happening to me. That was a good feeling when I got off the stand, I just could get off with my head held high. I was able to release that.

Lisa: Oren, can you talk a little bit about what the main issue at the trial was and also a little bit about what was the testimony on damages in the case?

Oren: The basic framework for proving a disparate impact claim is that a plaintiff first has to show that there's a disparate impact statistically. That the challenge practice falls more heavily on people of color. So that's the first prong. If the plaintiff is able to show that, then the burden shifts to the employer to come forward and show what's called a business necessity, basically that even if there's a disparate impact that there's a good reason for the employer to have that practice. Finally, the third prong of the test is that the plaintiff can still win even if the employer shows a business necessity if the plaintiff is able to show that there's a less discriminatory alternative that would meet the employers needs. So that's the basic framework of the case. The First Circuit ruled that the city had a business necessity in having a drug free workforce, which was, by the way not anything that we ever disputed. But the first Circuit then sent the case back to the trial court for a trial on that third and final prong, the less discriminatory alternative. And so that's what the trial was about that was held in 2018 and that Keri testified at was whether or not that less discriminatory alternative to the hair test existed.

Lisa: What was the argument that there was a less discriminatory alternative to the hair test?

Oren: So the primary alternative that we held up was to say if you're going to use the hair test as some kind of screening device it at least needs to be confirmed by urine analysis. Everyone agrees that urine has no disparate impact on African American individuals, and again is what is used by the federal government by leading employers for this kind of drug test.

Felicia: We'll talk a minute about how this all resolved, but first question on my mind and I'm sure on the listeners mind is, is this hair test still something that Boston uses today?

Lisa: The city does not use the hair test. After our trial in the summer of 2020, the city abandoned the hair test as part of its movement to end racism. So the city is no longer using the hair test. Thankfully.

Felicia: So after all that litigation and the many years and the trips to the appeals court that Oren talked about and Keri your testimony at trial in November 2023, a settlement was reached. So maybe I'll turn first to you, Bridgy, what has the settlement meant to you?

Bridgy: Peace of mind. I work here as a furniture sales. It's a commission job, so there's been a couple of months there where, like, oh, my God, I thought I was going to lose my house because it wasn't a good month. I don't have to worry about that anymore.

Felicia: And Keri, what about you? What has the settlement meant to you?

Keri: I'm glad we finally came to a resolution after so long, but it didn't make me whole. It didn't make me whole. I want to say that it did change my life. I'm stronger because of this. I'm more resilient to show my family, my children especially and anyone who has been in a situation like this, just know to persevere and you'll get through it. I’d like to call our team the Trail Blazers because we got the test changed to urine analysis and even though I feel like it kind of shattered my dream of becoming a Boston police officer one day, I feel good about stepping up and speaking out and just everyone who's been through this. It's kind of made our group a little close knit. We all have something in common here. We just didn't let it defeat us. Just speaking to everyone now we're all doing very well. I came through on the other end and that's something that I want to make sure that I instill in my children.

Lisa: Oren, can you talk about what the case means legally? Are there implications for civil rights law going forward arising out of this case?

Oren: Absolutely. This is a very meaningful case in a number of different respects. The history of civil rights struggle is it often takes many years, but there is that light at the end of the tunnel and I think this case really exemplifies what can happen when you're holding government actors accountable for discriminatory practices. I think it also shows the power of pro bono. Right before WilmerHale came in, the case had been lost on summary judgment. The plaintiffs were going to get nothing and the hair test was still being used by the Boston Police Department. Wilmer Hale came into the case and took the case up again to the First Circuit, secured the reversal and got incredibly meaningful settlement for these plaintiffs and also in the process ended up exposing flaws in the test that made the city abandon the test altogether and that is a very powerful signal to the community at large about what the power of pro bono is. And along the way there are some very meaningful precedents that were set from a legal standpoint. How the plaintiff is able to prove disparate impact and what proving less discriminatory alternatives entail. So it's going to have an impact not only in Boston but throughout the country.

Felicia: Speaking about the world beyond Boston, are hair tests like this still in place elsewhere?

Oren: I know they are because Lawyers for Civil Rights continues to get calls from people who have been caught up in false positives. So, I think the technology has changed somewhat since the version that the Boston Police Department used. But those same problems of external contamination remain.

Felicia: Well, more work to be done for sure, but I'm so glad that you all took a little time to share with us the long history of this case. And Oren and Lisa, thank you for your work and your advocacy, and Keri and Bridgy, thank you for your bravery for coming forward and sticking with this for so long to get this result that, as Oren just described, was really quite important.

Keri: Thank you so much.

Bridgy: Thank you.

Speaker: Thank you.

Keri: Thank the lawyers for all the work that they've done.

Bridgy: Absolutely.

Keri: We couldn't have did it without you.

Bridgy: Not at all.

Felicia: And thank you everyone listening for tuning in to this episode of In the Public Interest. We hope you'll join us for our next episode. If you enjoyed this podcast, please take a minute to share with a friend and subscribe, rate and review us wherever you listen to your podcasts. See you next time on In the Public Interest.