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The short answer is that while an employer cannot use its drug-free policy as a cover up to fire you for a discriminatory reason, an employer does have a right to enforce its drug-free policy to either fire an employee or revoke a conditional job offer if the employee fails a pre-employment drug screen or normally given drug test at work – like after an accident.

This blog tackles the issue of whether an employer can use its drug-free policy as a reason to legally fire a disabled employee under the Americans with Disabilities Act (“ADA”) by looking at the recent case of Charlton-Perkins v. University of Cincinnati, 35 F.4th 1053 (6th Cir. June 3, 2022).  Although we are focusing on disability discrimination today, the same analysis will apply under Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (“ADA”) for claims for race/color, religion, gender/sex (including pregnancy and LGBTQ+ status), and national origin discrimination.

But before even getting to any question about a drug test, the employee must establish a prima facie case of discrimination under the ADA. (Best Law Read: What does prima facie mean?)

How do you prove discrimination at work?

Best Discrimination Employment Lawyer Answer: The first step of any discrimination claim is for the employee to show a prima facie case of discrimination. The prima facie case in discrimination cases was initially established by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 805, 93 S. Ct. 1817, 1826, 36 L. Ed. 2d 668 (1973). For current employees, that means that the employee must show that he or she: (1) is a member of a protected class, (2) qualified for the position, (3) suffered adverse employment action, and (4) was either replaced by someone outside the protected class or suffered the adverse employment action under conditions giving rise to an inference of discrimination. (Best Law Read: Do I Have A Disability Discrimination Case?; How Do You Win A Discrimination At Work Lawsuit?).

How do you prove I was rejected for a job because of discrimination?

Best Employment Lawyer Answer: The ADA, Title VII and ADEA also protect job applicants from discrimination. In those circumstances, the prima facie case requires the employee to initially show that he or she (1) is a member of a protected class, (2) is qualified for and applied for the job, (3) was denied the job, and (4) an individual of similar qualifications not in the employee’s protected class got the job. (Best Law Read: How Do I Prove A Failure Hire Case?; How Do You Prove An Unlawful Failure To Hire Claim?; Can A Job Reject Me Because I’m Pregnant?). In fact, we addressed this requirement in the same case more in depth here: Failure To Hire Case When The Position Isn’t Filled.

What happens after the employee states an initial case for discrimination?

Best Employment Lawyer Answer: After an employee has shown all four of the above elements, the burden shifts to the employer to articulate some legitimate, nondiscriminatory reason for the employer’s decision. See Stookey v. S. Shore Transp. Co., 2012-Ohio-3184, ¶ 15. Following the employer presenting its stated reason for its decision, it is then upon the employee to persuade the court that the employer’s proffered explanation is merely pretext. Pretext is a bogus, phony excuse used to cover up the real illegal reason. (Best Employment Lawyer Read: Employment Discrimination Question: What Is Pretext?).

What is an example of using an alleged failed drug test as an excuse to wrongfully fire or refuse to hire based on race or disability?

Best Wrongful Termination Law Firm Answer: In Sonya Norwood’s case against Aurora Healthcare, Sonya alleged she was discriminated by Aurora based on her disability and race when Aurora revoked its conditional offer of employment. Aurora revoked Sonya’s conditional offer of employment after Sonya passed her physical exam but tested positive for marijuana and hydrocodone. Sonya explained that she had a prescription for hydrocodone. As for the marijuana, Sonya insisted she did not consume marijuana ever, and that the test must be faulty.

The drug testing lab contracted with an independent physician whose office contacted Sonya. The physician’s secretary asked Sonya what Sonya considered to be racially motivated questions. The assistant asked Sonya, “Did you smoke marijuana during the holidays?” and “Maybe you forgot that you smoked marijuana.” Sonya was offended by the way the assistant’s questions insinuated that there is a group of people who do that (smoke marijuana) and that Sonya, an African American woman, fit in that group of people due to her race.

As a matter of bad timing or, as Sonya alleges, convenient timing, the employer faxed a form to Sonya’s physical exam doctor asking if Sonya had any permanent conditions that required accommodations. The physical exam doctor completed the form indicating that Sonya had such a condition and needed accommodation. (Best Law Read: What Does My Employer Have To Do To Accommodate My Disability? I Need A Lawyer!; What Should Employees Know About Reasonable Accommodations?). A day later, the employer received Sonya’s official drug test result.

After receiving Sonya’s purported failed drug test and her physical exam doctor’s confirmation of disability and a need for an accommodation, the employer revoked Sonya’s conditional offer of employment. The employer had a drug-free policy and Sonya’s marijuana-positive drug test violated that policy. Sonya again insisted she had never smoked marijuana, and after this conversation she set out to prove the drug test was flawed. Sonya paid for a second drug test at a lab and passed it; there was no marijuana in her system. In fact, someone at the new lab told Sonya that her employer’s drug test must have been tampered with. Still, the employer would not hire Sonya.

Sonya filed a lawsuit in which she alleged that the employer violated the law by failing to hire her because it learned she had a permanent disability that severely limited her mobility and required an accommodation. She also claimed that the employer violated Title VII of the Civil Rights Act of 1964 when it assumed she smoked marijuana because she was African American.

After Aurora presented the court with its strict drug-free policy and Sonya’s failed pre-employment drug test, and Sonya presented the court with her circumstantial evidence, a federal judge granted summary judgement against Sonya. The judge decided that Aurora presented a non-discriminatory reason to revoke Sonya’s conditional job offer and Sonya failed to move the court to distrust Aurora’s explanation. This decision ended Sonya’s case against Aurora.

There are a few important parts to consider here. The plaintiff in this case failed to show that the drug test was tainted by influence from the employer. Since the test was done by a private lab, the employer was able to successfully argue that it had nothing to do with the results. Moreover, the court focused on the fact that this was a strictly enforced drug policy that was applied equally to all candidates and employees regardless of race/color, religion, gender, sexual orientation or identity, national origin, age, and disability. (Best Law Read: Can Unequal Progressive Discipline Prove Discrimination?). Lastly, the employee was unable to show any direct evidence that the refusal to hire her was based on disability or race by pointing to direct comments made by the boss or manager making the hiring decisions. Maybe those facts were not available to present, but maybe her attorneys could have done a better job presenting those facts.

What should I do if I was fired because I failed a drug test?

Best Employment Lawyer Answer: Because every case is different, you need to consult an employment law firm regarding the facts of your specific case and your specific rights. Although an employer has the right to enforce its drug-free policy, what should you do if you think your employer used its drug-free policy, or any of its policies, as pretext to discriminate against you? Do you want to know if you have enough circumstantial evidence of discrimination after you were fired? Best Anti-Discrimination Attorney Answer: After you have been wrongfully fired don’t hesitate, call the right attorney to schedule a free confidential consultation. (Read: What is the Spitz No Fee Guarantee?) Call our lawyers in Ohio, Michigan and North Carolina to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.


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