It’s fairly easy for an employee to prevail in a discrimination lawsuit if his employer doesn’t treat similarly situated employees equally. That’s certainly true of employees accused of substance-abuse violations.
Advice: When you offer employees a chance for drug or alcohol treatment and rehabilitation, make sure you treat them fairly. There’s nothing wrong with telling recovering employees they may be randomly tested for drugs or alcohol without notice.
You can even use a “lottery” system that results in some employees being tested more often than others. For example, you could put the names of all recovering employees in a hat and conduct a drawing for those employees who will be tested today. The result may be that a particular employee undergoes extra tests, but the reason won’t be discrimination, because the hat draw gave everyone an equal chance at being selected.
Recent case: Philadelphia schools employee Barry Young, who is black, worked under a union contract whose substance-abuse policy required random testing for some positions, including his own.
After just two weeks on the job, Young was accused of stealing supplies from a classroom. His supervisor recommended firing Young, but the school system kept him. According to Young, that made his supervisor so angry he started a harassment campaign.
Around the same time, Young sought help for a substance-abuse problem. His union representative arranged for an inpatient treatment program in Florida. Afterward, he underwent outpatient treatment locally. However, he relapsed and again sought help. After two tries, Young finally passed a return-to-work test.
But Young relapsed. The union rep arranged another stint in inpatient rehab, followed by more outpatient care. He then returned to work for a second time after being cleared by his psychiatrist.
Young didn’t last long. A random drug test came back positive for cocaine. Because he was on probation and because the drug policy called for firing anyone who tested positive, he was terminated.
Young sued, alleging that white employees who also failed drug tests had been treated more leniently.
But he couldn’t show that the test he failed was anything but random or that his race was in any way involved in the specific test. Instead, it was clear to the court that Young was terminated because he failed the drug test and therefore violated the terms of his probation.
Plus, the only white employee who didn’t lose his job had always tested negative after his treatment and return to work. (Young v. School District of Philadelphia, No. 10-3536, 3rd Cir., 2011)
Final note: One of the best ways to protect your organization from drug testing lawsuits is to outsource the process to a company that handles all the details. Because outsourcing removes any direct employer participation in the selection process, an employee can’t argue that his supervisor or someone in HR was out to get him or targeted him for random drug tests while letting others slide.
A testing company has experts available who can testify in any subsequent litigation about the testing process and how employees were selected.
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