152,000 reasons for employers to consider discrimination with drug testing and haircuts

After the jump, what employers can learn from a possibly botched drug test and the failure to hire a Rastafarian

(Or an excuse for me to make gratuitous True Romance references).

Many employers drug test job applicants. Floyd (played by a young Brad Pitt), once motivated to update his resumé, should seek other employment. That’s my non-legal opinion.

[Editor’s Note: For you lawyers out there, I commend showing this clip to deponents as part of your prep. Floyd answers each question succinctly and without anticipating the next one. Indeed, the only time Floyd improvises, by inquiring if the mobsters want to “smoke a bowl,” the mobster cocks the gun, and Floyd doesn’t mess up again].

Of those employers that do drug test, many request a urine sample. But what happens when an applicant discloses that he has kidney disease and requests an alternative drug test? If your answer is no, you’re asking for trouble.

Indeed, Kurt Orzeck at Law360 reports here about a $102,000 settlement involving a company sued by the EEOC because it allegedly refused to provide a pre-employment drug testing accommodation to an employee with kidney disease. Additionally, under a Consent Order, the company must revise its alcohol and drug-free workplace policy and pre-employment drug testing policy to specifically address reasonable accommodations.

Lesson Learned: Make sure that your have similar policies and training your hiring managers accordingly.

 

Long hair, sincerely-held beliefs, and Title VII

Unfortunately, there’s not a single clean Drexl Spivey (played by none other than Gary Oldman) scene from True Romance. So, you get a .gif. (and the club soundtrack below). And, I’ll get right into a recent EEOC settlement involving a beer distributor forking over $50K to settle a religious discrimination claim arising from a failure to hire a Rastafarian.

According to this EEOC press release, the company refused to hire the Rastafarian because he refused to cut his hair, which was because of his religious beliefs. Now, it’s unclear from the press release whether the company questioned the sincerely-held nature of the individual’s beliefs, or if it simply refused to accommodate his request to keep his hair long. Either way, as the EEOC points out, “employers are required by federal law to make exceptions to their dress and grooming policies in order to accommodate a job applicant’s sincerely held religious beliefs – unless doing so would pose an undue hardship.”

Lesson Learned: Focus less on whether an employee’s beliefs are sincerely held, and more on whether an accommodate would create and undue burden (something more than a small cost) to your company.