We all have our days when we show up to work with a little red eye, in a bad mood and maybe even a bit “word challenged.” But when do those signs signal that an employee should be sent for a drug test? And how do you prevent claims of discrimination for singling that employee out? A court ruling last week gave great insights into making sure your drug testing policy and practices are properly aligned with the law …
Case in Point: Marcus Berry, who is black, worked as a bricklayer for an Indiana company. One day he bumped into a table in the lunchroom, causing coffee to spill onto the lap of one of his white co-workers. The two men argued loudly and then threw cups of coffee at each other.
Berry’s supervisor soon got involved and heard Berry exhibiting, “abnormal speech, screaming, yelling, facial expressions” and “spitting, slurping” speech. The supervisor ordered him to take a drug test.
Berry argued that he didn’t need a drug test and he was merely being “boisterous” because he was partially deaf in one ear. He took the test anyway. It came back positive for cocaine. Berry was fired for violating the company’s drug policy.
Berry filed a discrimination claim against his employer, alleging he was singled out for a drug test because of his race. He argued that the other employee involved should also have been tested because of his own loudness.
The supervisor testified he was just following procedures because, as he stated in his deposition, Berry’s behavior was abnormal, not just loud. “Definitely, something was wrong with Berry,” said the supervisor.
Verdict: The court found that Berry's supervisor acted in line with company policy by ordering the test based on his perception of Berry's erratic behavior. Company policy stated, “Any employee suspected of being impaired by drugs may be required to submit to a drug screening test to determine their fitness to work.”
The court said that, under the company’s policy, “It is (the supervisor’s) perception that matters … and he testified that he perceived (Berry) to be loud and out of control,” not the white co-worker. (Berry v. ArcelorMittal USA LLC, N.D. Ind., 4/10/13)
3 Lessons Learned … Without Having To Go To Court
1. Have a drug testing policy. The court recognized that even a short written policy will go a long way to shield your company from discrimination lawsuits. Don’t forget to have one on alcohol, too. It can even be in the same policy.
2. Have a separate drug checklist. Managers need a tool to use as a guideline to help them document the situation. The court observed the manager checked the box next to “conflict with employee(s)” as the reason for ordering the drug test and the boxes next to “speech rambling or tangential,” “speech fast or pressured,” and “yelling” as behaviors, he witnessed.
3. Pick and tell. There are many types of substance testing your company can utilize. Be specific about all that apply: pre-employment, random, reasonable suspicion and post-accident.