U.S. Steel's random drug and alcohol testing on probationary employees complies with the Americans with Disabilities Act.

The EEOC initiated a class action lawsuit, arguing that U.S. Steel's policy of conducting random drug and alcohol tests on its probationary employees violated the ADA when the employer did not have "[a]n individualized, reasonable suspicion of a safety concern." There, a probationary employee filed a Charge of Discrimination with the EEOC after she was terminated for failing a random alcohol screening examination. After the receipt of the charge, the EEOC determined that the employer had a policy of randomly conducting drug and alcohol tests on its probationary employees. In rejecting the EEOC's claims, the court first noted that "[t]he EEOC did little actual investigation as to [the employee's] charge and whether U.S. Steel's policy could be justified by the business necessity exception." In particular, the court noted that the "EEOC… omitted to ask about the reasons for U.S. Steel's alcohol testing policy and never visited any U.S. Steel facility during the investigation." Rather, the "EEOC opted to rest on the assumption that random alcohol tests constituted a per se violation of the ADA."

Although the court determined that the EEOC complied with Title VII's multi-step enforcement procedures prior to filing the lawsuit, it nonetheless determined that the EEOC's claims of discrimination failed as a matter of law. Specifically, the court held that "U.S. Steel's policy of randomly testing probationary employees… is job-related and consistent with business necessity" and that the "[t]esting policy genuinely services [the] safety rationale and is no broader or more intrusive than necessary." In so holding, the court expressly noted that the "[u]ncontested facts in the record reveal than probationary employees are charged with performing dangerous and safety-sensitive duties alongside regular employees" and that in order to "[s]urvive a hazardous work environment that includes molten hot coke, toxic waste products, and massive moving machinery… employees must be alert at all times [and] [n]o level of intoxication is acceptable on the job in these circumstances." Indeed, the court noted that "[t]he possibility that employees would arrive at work intoxicated is not mere conjecture—its because it's a real problem at U.S. Steel's Gary Works plant in Indiana," which prompted the policy.

Moreover, the court noted that both U.S. Steel and the labor union representing the employees agreed to the policy, which further "[h]ighlights the consensus by all parties involved that such testing was consistent with maintaining workplace safety." In addition, in confirming that the policy's limitation to probationary employees was justified, the court found that "[c]ommon sense dictates that new hires would be comparatively less skilled at performing their jobs, are relatively unfamiliar with company rules, and would not have fully internalized the importance of workplace safety." As a result, the "[u]ntrained factory workers are inherently more dangerous to themselves as well as others because of their lack of training and familiarity with their job" and because "[t]here is no room for error when the dangers are as numerous and serious as in a coke plant," "[p]robationary employees are not 'similarly situated' with regular employees."

Case Law Alert - 2nd Quarter 2013