Discrimination
DISCRIMINATION IN DRUG TESTING
Charges of management bias in drug testing can take many forms.
Some employees may claim that they are being singled out. Someone
who is singled out for random tests can claim that he is subject
to an unreasonable search. [1]
Title VII, the federal Civil Rights Act which prohibits
discrimination based on race and gender, has been raised in
attacking drug testing programs. [2] If drug testing can be shown
to have a discriminatory impact on minorities or women, then the
courts would appear to be willing to invalidate such programs. [3]
Another discrimination rule which can be raised in drug testing
applies to drug testing of employees involved in unions. Management
can be charged with conducting a drug test to stifle union
activity. [4]
If the random program is administered by an outside entity that
uses a truly random selection process, this will negate any claim
of unfairness or bias by management. In light of state and federal
discrimination laws, this is an important concern.
FEDERAL DISCRIMINATION LAW
The Americans with Disabilities Act (ADA) which protects disabled
persons in employment can affect drug testing programs. [5]
Employers can require tests for illegal drugs prior to employment
and may test after employment, however, the testing must be
properly conducted and employers must take strict precautions that
confidential medical information which may result from a drug test
is protected. If an employee or applicant tests positive for a drug
but there is a lawful reason why the drug is being taken, this
information is protected under the ADA. It is best that an
employer not know about it unless there is a business necessity
for knowing. If an employer obtains this information improperly,
even by mistake and makes a decision or is thought to make a
decision based on this protected information, it may result in
a discrimination charge against the employer. A TPA can
investigate the causeof a positive test and protect the
information from release unless it is allowed under the ADA.
In a recent ADA case, the employee was awarded a judgement of over
$500,000. [6]
DISCRIMINATION REFERENCES
1. Hensen v. U.S. Cl. Ct. Lexis 21 (US Ct. of
Fed. Claims 1993)
2. 42 U.S.C. 20000e-5, et seq; N.Y. City
Transit Authority v. Beazer, 440 U S 568; Shield Club v. City of
Cleveland, 647 F. Supp 274 (ND Ohio 1986); Chaney v. Southern R.R.,
846 F2d 718 (11th Cir 1988); Palmer v. Roadway Express Co., 664
F. Supp 458 (ND Ca. 1987); Bailey v. Beaver Precision Products, 678 F
Supp. 684 (ED Mich 1988); Palmer v. Roadway Exp. Co., 664 F
Supp. 684 (ND Cal. 1987). The two most common forms of
discrimination are disparate treatment, see, McDonnell Douglas
v. Green, 411 U S 792, 36 L Ed2d 668, 93 S Ct 1817 (1973) and
adverse impact, see, Griggs v. Duke Power C., 401 U S 424, 28 L Ed2d
158, 91 S Ct 849 (1971); In New York, repeated drug tests of a female
under certain circumstances can be sexual harrassment. Carillo
v. Ward, 1991 WL 230146 (SDNY 1991); New York City v. Beazer, 440 U
S 568, 593 (1979); Everett v. Napper, 632 F Supp 1481 (N E Ga 1986);
Shoemaker v. Handel, 795 F2d 11365 (3rd Cir 1986).
3. Chaney v. Southern Railway Co., 947 F2d 718, 725 (11 Cir 1988);
Shield Club v. City of Cleveland, 838 F2d 138, 140 (6th Cir 1987);
In New York, repeated drug tests of a female under certain
circumstances can be sexual harrassment. Carrillo v. Ward, 1991 WL
230146 (SDNY 1991).4. 29 USC 157,158; A.L.A. v. NLRB, 729 F2d
172 (CA 2 1984); Anderson v. U.S. Gypsum, 536 NE2d 1180 (Ohio
App. 1987).5. Rogers v. Federal Express, 1993 WL 220556 (CA 6
1993).
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