In a unique case, the U.S. District Court for the Western District of Pennsylvania recently dismissed the EEOC’s allegations that the Defendant’s random drug and alcohol testing of probationary employees violated the ADA. The decision in EEOC v. United States Steel Corp., No. 10-CV-1283 (W.D. Pa. Feb. 20, 2013), is striking in its even-handedness while, at the same time, is a vital point of reference for employers accused of discriminating through the use of medical examinations.
In Seyfarth Shaw’s EEOC-Initiated Litigation book (discussed here), we noted that the proportion of ADA claims filed in 2012 more than doubled from claims filed in FY 2011. Considering the large number of ADA cases brought by the EEOC in 2012, we predicted that we will see a significant crop of federal court decisions addressing ADA issues in 2013. To that end, Judge Nora B. Fischer’s ruling in EEOC v. United States Steel Corporation kicks off 2013 and is a significant blow to the EEOC’s disability discrimination litigation agenda.
Facts Of The Case
The case began when the EEOC initiated an action on behalf of Abigail DeSimone against the Defendant under § 706 and § 707 of Title VII. The EEOC asserted that the Defendant required DeSimone to undergo random breath alcohol testing during her probationary period and allegedly fired her as a result of the test. Based on this fact, the EEOC claimed that the Defendant engaged in a pattern or practice of disability discrimination by maintaining a nationwide procedure of requiring probationary employees to undergo random alcohol tests. In support of its claim, the EEOC alleged that the Defendant did not have a reasonable basis for subjecting the employees to the random tests.
In July 2012, the Court granted the Defendant’s motion to dismiss claims of discrimination based on alcohol breath tests and or termination that occurred more than 300 days before the administrative charge was filed with the EEOC. We discussed that previous ruling here. The Court noted that “no clear trend has emerged in District Courts that have addressed the issue “of whether § 706’s 300-day limitations period is applicable to the EEOC’s pattern or practice allegations.” EEOC v. United States Steel Corp, et al., Case No. 10-CV-1284 (W.D. Pa. July 23, 2012). Citing to and siding with other federal courts that have recognized the 300-day procedural requirement, the Court applied the plain language of § 706 and reasoned that any claims of discrimination based on events that occurred 300 days before the charge that gave rise to the EEOC’s lawsuit are time-barred, and are therefore dismissed. The Court’s ruling on the 300-day limitation period was a significant win for all employers seeking to limit the number of claimants in EEOC litigation.
In the Defendant’s motion to dismiss, it also argued that the EEOC failed to “specifically plead that it . . . met its statutory pre-suit obligations to investigate, issue reasonable cause findings and conciliate its claims, or to name any of the presently unidentified aggrieved employees who make up the purported class.” Id. at 14-15. The Court determined that it was premature to determine whether the EEOC satisfied all of its statutory pre-suit obligations because it had not yet considered all of the evidence. Thus, the Court found that even though the EEOC’s claims were subjected to Title VII’s 300-day statute of limitations, the Commission could proceed with the remaining allegations.
We predicted in our blog posting that the Court’s July 2012 ruling left the door open for the Defendant to re-assert its arguments at the summary judgment stage. Sure enough, soon thereafter, the Defendant filed a motion for summary judgment and incorporated its past arguments by asserting, among other things, that: “(1) the EEOC failed to complete the multistep enforcement procedure prior to bringing the lawsuit; [and] (2) the practice of randomly testing probationary employees is job-related and consistent with business necessity.” EEOC v. United States Steel Corp., Case No 10-CV-01284, at 1 (W.D. Pa. Feb. 20, 2013).
The Court’s Ruling
I. Pre-Suit Investigation And Conciliation Efforts
The Court began its ruling by discussing the EEOC’s investigation and conciliation requirements under Title VII. Relying on EEOC v. CRST Van Expedited, Inc. (discussed here, here, here, and here), the Court noted that the EEOC’s failure to comply with pre-suit investigation and its good faith conciliation obligations warrants dismissal of charges. In a seemingly employer friendly pronouncement of the related law, the Court noted that “[t]he EEOC may not use discovery in the resulting lawsuit as a fishing expedition to uncover more violations.” Id. at 16. Applying the facts of this case, the Court explained that the record shows that the EEOC undertook minimal investigation before filing the lawsuit; the EEOC did little to investigate DeSimone’s charge; and the EEOC failed to obtain information as to whether employees at any of the Defendant’s other plants were subject to the alcohol testing policy. Id. at 18.
Despite the EEOC’s inadequate pre-suit investigation, the Defendant’s own tactics precluded the Court from disposing of the case on this basis. Evidently, the parties engaged in conciliation efforts and upon the Defendant’s request, the related discussions and motions were all deemed confidential. Thus, the only knowledge that the Court obtained regarding the conciliation attempts was that the parties made an unsuccessful effort to resolve the allegations prior to litigation. Aside from that, the “exact details of the conciliation attempt remain unknown to the Court.” Id. at 8. Thus, without any documentary evidence as to the substance of the conciliation process, the Court held that it could not dismiss the case for the EEOC’s failure to engage in good faith conciliation. Sending a message to the Defendant, the Court stated that the Defendant could not withhold crucial documents relating to the conciliation and then attempt to benefit from ensuing the evidentiary void. In other words, the Court ruled that the Defendant “cannot have its cake and eat it, too.” Id. at 20.
II. Random Breath Alcohol Testing Is A Business Necessity
Next, the Court considered whether the Defendant’s policy of randomly breath testing probationary employees was a job-related business necessity (an exception built into the ADA’s broad ban on medical testing). In a significant win for employers, the Court held that the Defendant’s policy was a business necessity and therefore the Defendant could lawfully administer alcohol breath tests to probationary employees. The Court reasoned that because the probationary employees perform dangerous and safety-sensitive duties, the employees must be alert at all times and therefore no level of intoxication is acceptable on the job. Additionally, the Court noted that the tests were practical and fair because protective gear worn at the plant makes it nearly impossible to otherwise determine if an employee is intoxicated while working. Finally, the Court reasoned that the Defendant’s policy of randomly testing its employees for drug and alcohol abuse functioned to deter employees in safety-sensitive positions from working under the influence. Thus, the Court held that the random alcohol tests are a reasonable safety precaution, and it therefore dismissed the EEOC’s remaining allegations.
Implications For Employers
The Court explained in no uncertain terms that the “EEOC’s vision of the ADA [in this case] would defy common sense by prohibiting random alcohol testing on new employees under the counterintuitive and unsupported premises that they are not more likely to engage in risky behavior like abusing alcohol at work.” Id. at 32-33. This decision should provide a measure of relief to employers engaging with the EEOC in allegations that alcohol and drug testing violates the ADA.
The Court’s discussion of the EEOC’s pre-suit investigation and conciliation tactics deserves just as much attention. In the last two years, a series of rulings across the nation have cut against the EEOC for its failure to investigate and engage in good faith conciliation efforts. However, the recent ruling in EEOC v. U.S. Steel Corp. provides the EEOC with ammunition that employers must be on the look-out for. Employers beware: you may hit a brick wall in attempting to dismiss the EEOC’s actions for failure to satisfy Title VII’s pre-investigation and conciliation requirements if you do not turn over related documents to the Court.
Readers can also find this post on our Workplace Class Action blog here.