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Reasonable Suspicion Drug Test Based on Mere “Perception” Is Not Discriminatory
May 2, 2013

In Berry v. Arcelormittal USA, LLC, the District Court for the Northern District of Indiana recently determined that an employer did not discriminate on the basis of race when it only required one of two employees engaged in a workplace conflict to undergo a drug test. The court found the opinion of one single supervisor to be an acceptable basis for a drug test because the written policy stated that “reasonable suspicion” could be based solely on the perception of one supervisor.

Agitated Behavior Leads to a Drug Test

Marcus Berry, an African-American employee, had worked periodically for Arcelormittal USA, LLC (“Arcelormittal”) since 1972. In September 2008, Berry was involved in a confrontation with Steve Rarick, a white co-worker, in which Berry and Rarick threw coffee on each other. Rarick and Berry considered the matter concluded and went about their work. However, the incident later escalated after it was reported to the supervisor, James Norris, and Berry’s union representative.

Norris received a voicemail from the lunchroom area describing the renewed altercation between Berry and Rarick. Because Norris could hear the plaintiff screaming in the background on the voicemail, he proceeded to the job site immediately and contacted plant security. When Norris arrived, he found that plaintiff exhibited “abnormal speech, screaming, yelling, facial expressions . . . spitting, slurping speech.” Norris also stated that Berry was “cussing and swearing at me.”

Based on his observations of Berry’s behavior, Norris required that Berry submit to a “reasonable suspicion” drug test. After Berry tested positive for cocaine, Berry’s employment was terminated for violation of company rules of conduct, including being on company property while impaired by drugs and use of “profane, abusive, or threatening language/behavior towards supervisors or other employees or officials.” Berry later was permitted to enter into a last chance agreement, in which he agreed to forego the use of drugs and submit to random drug testing. Ultimately, Berry failed another drug test. Although Berry was subject to immediate termination, Arcelormittal permitted Berry to retire with full benefits.

Supervisor’s Subjective Perception Supported a “Reasonable Suspicion” Drug Test

After retirement, Berry brought a lawsuit against Arcelormittal claiming, among other things, that he was discriminated against on the basis of race because only Berry—not Rarick, a white employee—was required to undergo a reasonable suspicion drug test. The Northern District of Indiana held that Arcelormittal did not discriminate against Berry when Norris only required Berry to submit to a drug test because Norris’ perception of Berry’s behavior was sufficient to satisfy “reasonable suspicion.”

In order to support a discrimination claim, Berry had to prove that he was subject to an “adverse employment action.” However, drug tests are considered adverse employment actions only if the test “is not performed in a routine fashion following the regular and legitimate practices of the employer but [rather] is conducted in a manner that harasses or humiliates.”

The court reviewed Arcelormittal’s drug policy and found that it did not lead to an adverse employment action. The drug policy was fairly simple and required little other than suspicion of impairment to require a drug test, stating that “[a]ny employee suspected of being impaired by drugs may be required to submit to a drug screening test to determine their fitness to work.” A supervisor was not required to be a first-hand witness before ordering the drug test. Despite the simplicity of the policy, the court found that it was sufficient. The court also noted that there was a legitimate purpose for the drug policy: to assure safety of the employees.

The court also found that the “one-time event” of a reasonable suspicion drug test cannot be characterized as harassing. Berry was not physically threatened, and the drug test requirement did not unreasonably interfere with Berry’s ability to do his job (aside from the fact that it ultimately led to his termination). Additionally, there was no indication that the test itself was performed in a harassing or humiliating manner. Furthermore, Berry’s drug test was not disclosed to the workplace at large and the event was not publicized in order to embarrass Berry.

Perception Is Reality

Berry also argued that Rarick should have been sent for a drug test because he was involved in the confrontation and also spoke in a raised voice. However, the court noted that Norris’ decision was not required to be based on either what Berry claimed had happened, or even what actually happened. Norris’ decision only needed to be based on his own perception—Norris’ perception was that Berry was loud and disruptive but Rarick was not.

The court further explained that Norris could have been completely wrong in his assessment, meaning that Rarick could have been just as disruptive, or even more disruptive. However, the reasonable suspicion determination was based on Norris’ perception that Berry was the only party behaving erratically. Therefore, the drug test was not administered in a discriminatory manner, and the court dismissed Berry’s lawsuit.

The Takeaway

The Berry court has provided valuable guidance as to how employers should measure “reasonable suspicion” drug testing policies. At minimum, a drug testing policy should meet the following requirements:

  • Communicate your policy in writing.
  • Clearly define what constitutes “reasonable suspicion,” especially if the employer wishes to keep a “low bar” for reasonable suspicion.
  • Designate on whose perception the determination will be based.
  • State whether multiple witnesses are required.
  • State whether the behavior in question must be witnessed by a supervisor or manager.
  • State whether a manager or supervisor can make a decision without any other witnesses.
  • Distribute your policy to all employees and require a signature.

Any employer that incorporates drug testing into their pre-hire or safety protocols should have a written policy establishing the standards that must be satisfied in order to justify a suspicion-based test. Employers should review their drug testing policies in light of the analysis provided by the Berry court.

If you have any questions regarding this information, please contact your Davis & Kuelthau attorney.

 

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