Employment Alert: EEOC Claims U.S. Steel's Alcohol Testing Policy Violates ADA

Employment Alert: EEOC Claims U.S. Steel's Alcohol Testing Policy Violates ADA

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.