On September 30, 2010, the Equal Employment Opportunity
Commission (EEOC) filed suit against the U.S. Steel Corporation and the United
Steelworkers of America, Local 1557, claiming that U.S. Steel's random alcohol
testing policy, authorized under its collective bargaining agreement with the
union, violates the Americans with Disabilities Act (ADA). The EEOC
subsequently amended the complaint by removing the Steelworkers and
substituting the United Steel, Paper & Forestry, Rubber, Manufacturing,
Energy, Allied Industrial and Service Workers International Union, AFL-CIO,
which had negotiated the provision at issue. The suit was filed in the U.S.
District Court for the Western District of Pennsylvania, Civil Action No.
2:10-cv-01284. U.S. Steel has not yet filed a response to EEOC's
complaint.
Facts of the Case
On January 29, 2008, a probationary employee, Abigail
DeSimone, was required to submit to a random breathalyzer tests administered by
a company nurse. The results of the two tests, administered fifteen minutes
apart, were positive for alcohol. DeSimone insisted she had not ingested any
alcohol in a month and advised the nurse that she was diabetic. DeSimone
requested a blood test to verify the results but the company nurse refused.
Later the same day, after being sent home from work, DeSimone's personal
physician performed a blood alcohol test and obtained a negative result.
DeSimone provided the blood alcohol results to U.S. Steel, but the company
refused to accept them. On February 7, 2008, DeSimone contacted the
Pennsylvania Governor's Office for information on filing a discrimination suit
and was informed that a representative of the Office contacted U.S. Steel
regarding the matter. That same day, DeSimone was terminated for violating U.S.
Steel's alcohol policy. DeSimone filed a charge of discrimination with the EEOC
in February 2008.
The EEOC's Contentions
The EEOC alleges that U.S. Steel violated DeSimone's
rights by requiring a "medical test" without a reasonable belief that
she had violated the drug and alcohol policy. The ADA prohibits discrimination
based on a disability and allows medical testing of employees solely if job
related and consistent with business necessity. Random alcohol testing, by
definition, fails to satisfy the business necessity standard, which requires
probable cause that the employee is inebriated and therefore incapable of
performing the essential functions of the job. By contrast, employers are free
to conduct random testing for illegal drugs under an exception provided by the
ADA.
The EEOC is asking the court enjoin the random alcohol
testing under the ADA, contending that the union, as agent for bargaining unit
employees, lacks authority to bargain away substantive rights secured by the
ADA. (In 2009, the Supreme Court upheld a union contract provision mandating
arbitration of Title VII disputes as consistent with federal policy.) The EEOC
and DeSimone are also asking for punitive damages, claiming U.S. Steel's
practice is "with malice and with reckless indifference" to DeSimone.
This is significant because the alleged "malicious and indifferent
policy" was agreed to by the union. Moreover, there is a question as to
whether non-invasive, random breathalyzer tests are a form of medical testing
prohibited under the ADA where probationary employees are not targeted based
upon discrete, individual medical or psychological conditions, but merely to
ensure compliance with the company's alcohol free work rules. To date, no court
has held that to be the case.
Intervener Claims
DeSimone filed suit as an intervener to assert her own
action against U.S. Steel. In addition to the ADA discrimination claim,
DeSimone alleges disability discrimination under the Pennsylvania Human
Relations Act, gender discrimination under Title VII of the Civil Rights Act of
1964 and retaliation for contacting the Governor's Office. She claims that as a
new hire in the probationary period, she was not protected by the union's
collective bargaining agreement. DeSimone is asking for compensatory and
punitive damages, an injunction from further discriminatory practices against
her by U.S. Steel, and reinstatement with full benefits and appropriate
seniority.
Our Take on the EEOC's Litigation
Position
Although early in the litigation, at first blush, it
appears that EEOC may be exceeding its statutory authority in pursuing
compensatory damages on behalf of the charging party and a class of U.S. Steel
employees allegedly injured under the random drug testing policy. Under Section
706 of the ADA, they are limited to representing persons allegedly injured
within 300 days prior to the filing of the underlying charge of discrimination;
however, the time parameters for the purported class substantially exceeds the
limitations period. EEOC alternatively claims jurisdictional authority under
Section 707 of the ADA, but that Section provides solely for injunctive relief
for pattern and practice violations - and does not authorize an award of
compensatory damages. The EEOC has been pushing the boundaries of its 707
jurisdiction in this and other cases and employers are finally beginning to
resist.
This case should be closely monitored by employers and
unions, as the outcome could have far-reaching consequences.
For additional questions regarding discrimination in the
workplace please contact Mary Pivec at 202-434-4212 or pivec@khlaw.com or Manesh Rath at
202-434-4182 or rath@khlaw.com.