Suppose you are the hiring manager at Terrific Trucking Firm and you are hiring drivers. Aside from checking your applicants’ driving records, you interview them, run drug tests, background checks, and generally make sure you feel confident that they are a good fit for your company. In walks a candidate whose application you liked, and whose driving record and other qualifications seemed perfect for the job. Then you see him. He has a long beard and he wears a turban. You don’t want to pre-judge though. You speak with him, and all seems on the up-and-up. Then you tell him you are ready to offer him a job, on one condition. He, like all other candidates, must provide a hair sample for drug testing. He says no, because he is an observant Sikh, and therefore he cannot cut his hair or remove his turban in public. You apologize and tell him that safety concerns mandate that every applicant undergo a drug test and you therefore reject him for the job — and then he files and EEOC charge or a religious discrimination suit based on state laws. Are you liable for trying to keep the public safe? Quite possibly yes. Find out why, by joining The EmpLAWyerologist after the jump…
(image from sikhreligion.net)
So what’s going on? How could an employer be liable for insisting on drug testing for potential truck drivers? Can’t employers be liable if they don’t test and the driver later hurts someone on the road? Yes. Does this mean you can’t drug test now? No. So how can a trucking company be liable for drug testing an applicant for a driver position? Let’s look at the specific facts and how Title VII of the Civil Rights Act of 1964, the EEOC and the courts look at this issue.
The actual case involved J.B. Hunt Transport and four applicants. All four men were observant Sikhs, who wore turbans. This case is a bit different from the religious discrimination cases we have gotten used to, that involved appearance policies (click here to read about one of those). In this case, J.B. Hunt required that each applicant undergo drug testing. Now, J.B. Hunt did not do anything wrong in requiring drug testing. J.B. Hunt has a right and even a responsibility to require drug testing of its drivers or potential drivers. So what then, did J.B. Hunt do wrong?
J.B. Hunt’s drug testing required providing a hair sample. That was a problem for these drivers, because, one of the five tenets of the Sikh faith is not to cut one’s hair, not even to provide a clipping for a drug test. There is also a prohibition against taking the turban off in public. These drivers had adhered to their faith and had never cut their hair or removed their turbans in public, and refused to violate their faith by doing so for a drug test. So, what should J.B. Hunt have done then? J.B. Hunt should, at a minimum, have looked to provide a reasonable accommodation for religious practices based on a sincerely held religious belief. Under Title VII, it was obligated to do so. Allegedly, it did not.
Could J.B. Hunt have provided an alternative? Yes. Many companies require a urine sample. Some use the hair sample, because hair analysis can provide evidence of drug use for months after use, whereas urine samples generally only provide such evidence for a few days after use. One of the candidates even offered to provide a sample from his comb, but was told the hair had to be snipped. But urine samples are not the only alternative. Apparently finger nail clippings can also provide indications of drug use going further back in time than urine samples. Again, J.B. Hunt apparently refused to even discuss, let alone offer, an alternative.
J.B. Hunt is now paying for its mistake to the tune of a $260,000 settlement that the four rejected drivers will share. As part of the settlement, itt has also extended conditional job offers to all four men.
Now, you know if I am writing about the case, there are some takeaways. Here they are:
- Even safety considerations cannot be the basis for blanket policies that have a disparate impact on classes of people protected under federal anti-discrimination laws;
- If an employee refuses to submit to certain tests or requirements based on religious tenets, you must, at the least, engage in a dialogue with them and discuss possible alternatives;
- If there is a reasonable alternative, you must provide it to the employee seeking the religious accommodation.
Now, you may be asking, what if there was no alternative other to the hair sample? Then J.B. Hunt might have been able to escape liability. OK, let’s up the ante. Suppose the urine test, which can only indicate drug use in the last few days was the only alternative. That might have been a closer call, though I can see where a court might still feel that the urine test is a reasonable accommodation– especially if the applicant’s driving record, background check and references all came back “clean”. Yes, I know that even that is not always an accurate indicator of an absence of drug use. I am just saying that it’s still conceivable that a court might find that to be a reasonable accommodation. Remember though, whether an accommodation is reasonable depends on specific circumstances. The point is, you would need to engage in dialog with the applicant/employee, and then, if you’re still not sure– you guessed it—call your friendly employment counsel.
I think we’ve covered everything on this topic for now, but since something is always happening in employment law, we’ll have more new and exciting things to talk about next week, so join us then!
Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
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