Saturday, September 10, 2011

EEOC Catch-22

The Equal Employment Opportunity Commission's on the case:
Old Dominion Freight Line, Inc., a trucking company with a service center in Fort Smith, Ark., violated federal law by discriminating against at least one truck driver because of self-reported alcohol abuse, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed today. The company should have met its legal obligation to comply with the Americans with Disabilities Act while assuring safety, rather than permanently sidelining self-reporting drivers, the EEOC contended.

According to the EEOC’s suit (Civil Action No. 2:11-CV-02153-PKH in U.S. District Court for the Western District of Arkansas), the driver at the Fort Smith location had worked for the company for five years without incident. In late June 2009, the employee reported to the company that he believed he had an alcohol problem. Under U.S. Department of Transportation regulations, the employer suspended the employee from his driving position and referred him for substance abuse counseling. However, the employer also informed the driver that the employer would never return him to a driving position, even upon the successful completion of a counseling program. During the investigation, the EEOC discovered drivers at other service centers whom the employer had allegedly subjected to similar treatment.

Alcoholism is a recognized disability under the Americans With Disabilities Act (ADA), and disability discrimination violates this federal law. The EEOC said that the company violated both the ADA and the Americans With Disabilities Act Amendment Act of 2008 (ADAAA) by conditioning reassignment to non-driving positions on the enrollment in an alcohol treatment program. In addition, the EEOC argued that Old Dominion’s policy that bans any driver who self-reports alcohol abuse from ever driving again also violates the ADA.
A perfect example where government's reach exceeds its responsibility. Question: If the company allows the alcoholic driver to take the wheel, and there's a booze-related accident, will the EEOC accept liability? Answer: Not a chance--can you say "sovereign immunity"? (See Spalding v. Vilas, 161 U.S. 483, 498 (1896).) Which is why the ADA does not mandate acceptance of disabilities carrying "a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation." 42 U.S.C. § 12111(3). Shouldn't that principle apply here?

Justice should be blind--but not necessarily blind drunk.


Warren said...

Would this regulation apply to Old Dominion Airfreight?

How about a passenger airline?

Carl said...

I don't think so Warren, but I haven't done exhaustive research. See Albertsons, Inc. v. Kirkingurg, 527 U.S. 555 (1999); but see the ADA Amendments Act of 2008, which makes clear that if vision can be corrected by "ordinary eyeglasses or contact lenses," an applicant should be considered to meet vision requirements of jobs.