Harmon & Davies, P.C.

In late October 2012, a New Jersey appeals court issued a ruling that gives employers reason to carefully check their drug and alcohol policies.  In A.D.P. v. ExxonMobil Research & Eng’g Co. an employee identified herself as an alcoholic seeking rehabilitation and pursuant to company policy, the company entered into an after-care contract with the employee that required her to submit to random drug testing for a two year period during which time she had to abstain from alcohol use or else she could be terminated.  After failing one of 10 random alcohol tests, ExxonMobil terminated the employee and she sued the company under the New Jersey Law Against Discrimination (“NJLAD”) alleging that the after-care contract and its terms, imposed upon her solely because she identified herself as an alcoholic, along with ExxonMobil’s termination of her for violating the after-care contract, constituted disparate treatment discrimination based on disability.

The trial court dismissed the employee’s claims before her case went to trial, but on appeal the appellate Court found the dismissal of the employee’s claims to be improper on the grounds that the after-care contract and the testing requirements contained therein constituted a policy that was imposed only against employees who were identified as alcoholics.  The court found that although the use of alcohol alone would not be grounds for terminating the employment of other employees, alcoholics like the employee could be fired for one “slip” even if their job performance was not affected.  Thus, the Court held that the policy was facially discriminatory and direct evidence of bias.

1. Where the Court Found Fault with ExxonMobil’s Drug and Alcohol Policy

In the ExxonMobil case, the company’s written drug and alcohol policy mandatorily and uniformly required that any employee identified as an alcoholic agree to submit to random alcohol testing for two years after being so identified.  The New Jersey appellate court found that ExxonMobil’s reliance upon such blanket requirements only confirmed the facially discriminatory nature of the Policy and undermined the defenses that the employer tried to present.  Indeed, the alcohol testing imposed on the at-issue employee was never initiated as a result of performance related issues.  Rather, the testing requirement was imposed only after the employee voluntarily disclosed to a company nurse that she was an alcoholic and was going to check herself into a rehabilitation program.  This disclosure resulted in the blanket imposition of ExxonMobil’s after-care contract upon the employee, the terms of which included submitting to random drug tests for a period of two years.

The purpose of ExxonMobil’s drug and alcohol policy was to promote the company’s commitment to a safe, healthy, and productive workplace.  Under the policy, being unfit for work because of drug or alcohol use was grounds for termination.  However, the policy also provided that employees with alcohol or drug dependency problems undergoing rehabilitation would not be fired, but would be required to sign an after-care contract as a condition of returning to work.  The after-care contract required a returning employee to maintain total abstinence from drugs or alcohol, submit to random drug testing for two years, and consent to monitoring for an additional three years.  According to the after-care contract, a positive test was grounds for discipline including termination.

In the ExxonMobil case, the employee was terminated after passing nine random breathalyzer tests when her tenth breathalyzer test showed a blood alcohol level of .047 and .043 (under the state legal limit of .08 for driving under the influence) even though there was no evidence that she consumed alcohol at work or that she violated a company policy by being unfit for work because of alcohol use.  There was also zero evidence that she had been told that her job performance had become unacceptable.

Rather, the evidence showed that the imposition of the after-care contract was unrelated to the employee’s job performance.  In fact, a representative of the company went so far as to say that the employee would have been terminated for failing the breathalizer even if she had been performing at the top one-percent of her group.

Under these circumstances, the New Jersey Court found that the employee’s claims should not have been dismissed before trial because the evidence (viewed in the light most favorable to the employee) showed that the basis for ExxonMobil’s testing requirement and its termination of the employee was her voluntary disclosure that she was an alcoholic, not her subpar work performance. Thus, the court found the imposition of the testing requirements and the decision to terminate the employee for failing a breathalyzer test amounted to direct proof of discrimination.

2. Why ExxonMobil’s Defenses Failed

Interestingly, ExxonMobil might have defeated the employee’s claims despite the direct proof of discrimination if ExxonMobil had been able to show that it would have terminated the employee even in the absence of her failed breathalyzer test.  Indeed, New Jersey law provides two statutory justifications for employers in such situations, but ExxonMobil did not attempt to avail itself of either justification, most likely because these statutory justifications are based upon performance issues, and there was absolutely no evidence that the employee had performance issues.

Instead, the company tried to justify its policy on the grounds of “reasonableness.”  However, the so-called reasonableness test, which the employer argued was based on business necessity and safety failed because: (1) the business necessity defense only applies in adverse impact discrimination cases and this case involved disparate treatment bias; and (2) although the safety defense applied, ExxonMobil could not establish the defense because the safety defense requires an employer to make an individualized assessment of the safety risk, and there was no evidence in the record that an individualized assessment of any kind was conducted in this case.

3. The Takeaway

If you are an employer and your drug and alcohol policy could result in an employee being fired based solely upon the employee being identified as an alcoholic or drug addict, and not as a result of performance issues or any individualized safety assessment, your policy might be found to be facially biased and direct proof of disability discrimination.  If this is the case, revisions to your policy are encouraged.

The attorneys at Harmon & Davies, P.C. are here to assist employers with all employment law related needs, including assisting employers with drafting and revising drug and alcohol policies.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

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