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Zero-tolerance drug policy? Make sure you uniformly apply it to all

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in Discrimination and Harassment,Human Resources

Do you have a zero-tolerance rule against employees who use or possess illegal drugs at work? If you don’t apply it to all employees who break the rule, you will be sued.

Remember, everyone belongs to some protected class, which means it’s easy to file and win a lawsuit alleging that others outside that protected class have received preferential treatment.

For example, let’s say you fire a white man for drug possession, but don’t fire a woman who committed the same offense. If you haven’t left yourself explicit discretion to consider extenuating circumstances, ex­pect litigation. The terminated employee’s attorney will subpoena your disciplinary records and go over them with a fine-tooth comb, looking for anyone outside the employee’s protected class who wasn’t fired. Based on discovering that the female employee wasn’t fired, you’ll be facing a sex-discrimination lawsuit.

Recent case: Michael Wayne was fired from his school district job because he was arrested for possession of marijuana. He sued, alleging that he had been singled out because he is not white.

But the school district was saved by the fact that it had fired every single employee who had engaged in illegal drug use or possession who worked for the same supervisor. The court tossed out Wayne’s case. (Wayne v. The Glenn Mills Schools, No. 10-2793, 3rd Cir., 2011)

Final note: You can’t avoid every lawsuit, but treating everyone equally means it’s more likely the court will toss it out fast.

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