We sometimes hear of the savings that could be realized by eliminating “waste, fraud, and abuse” at federal government agencies. But substantial savings might also be achieved if only we could eliminate absurdity.
Consider a lawsuit brought by the United States Equal Employment Opportunity Commission (EEOC) against United States Steel and the United Steelworkers Union under the Americans With Disabilities Act (ADA). The suit challenges a practice, approved by the Union, of alcohol testing of probationary employees. EEOC alleged that the practice violated a provision of the ADA that prohibits medical testing that is not “job related and consistent with business necessity.”
The steelworkers work in close proximity to “molten coke” that can reach a temperature of more than 2,000 degrees. Their work environment also includes dangerous heights, massive moving machinery, and superheated gases that are both toxic and combustible. Because of the hazardous conditions, the workers don layers of protective clothing, masks, and other equipment that cover their entire body.
The need for testing to guard against on-the-job intoxication by these steelworkers could hardly be more evident. In legalistic terms, the policy is “job related and justified by business necessity” because it enables the company to detect alcohol impairment on the job, thus promoting safety. Accordingly, U.S. Steel moved for summary judgment against the EEOC.
The EEOC countered, absurdly, that the practice of conducting random breath analysis tests on probationary employees doesn’t sufficiently serve its safety-related purpose. The essence of its argument was that the employer must first have an individualized basis for suspicion of a safety concern before it may test.
EEOC advanced this position even though, as noted above, the employees in question don masks and other equipment that obscure their face and muffle their speech. This, of course, makes it quite difficult for the employer to detect drunks on an individualized basis in a bustling plant setting. Unfortunately, the EEOC filed suit without first visiting the steel plant, so it may not have known this important fact, as well as others relating to the work environment.
A United States District Court judge (Nora Barry Fischer of the Western District of Pennsylvania) rejected the EEOC’s position. The Court noted first that nothing in the language of the ADA specifically requires that the employer have an individualized suspicion before conducting a random breath alcohol test. The Court also stressed that the practice in question was agreed to by the Union representing the employees, which supports the claim that the practice furthers workplace safety.
The Court also took notice of the fact that employers frequently use random drug and alcohol testing for employees in safety-sensitive positions. This includes certain federal employers. Thus, one arm of the federal government was in the absurd position of arguing that a practice used by other governmental arms is unlawful. Is it too much to ask that the government get its own act together before imposing its will on the rest of the country?
The Court also emphasized the deterrent effect of random testing. This argument was butressed by the U.S. Department of Labor’s website, which speaks of the usefulness of such testing as a deterrent.
The EEOC questioned the necessity of U.S. Steel’s random testing policy in light of the fact that it applies only to proobationary employees. But, of course, brand new employees have no track record and thus pose a heightened safety risk. The Court, therefore, had no difficulty dismissing this silly argument by the EEOC.
Finally, the Court pointed to the practical difficulties (noted above) of detecting individualized signs of impairment in the setting of a steel plant in which employees wear masks and other heavy equipment. In this context, it’s worth pointing out again that the EEOC’s pre-suit investigation was so poor that, as the Court found, the EEOC didn’t bother to visit the plant in question before it filed suit. Your tax dollars at work — or in this instance, not.
In essence, then, the Court applied common sense to reject a ridiculous lawsuit that never should have been brought. To use the anti-discrimination laws to prevent an employer from protecting the safety of workers, the plant, and (in this case) the surrounding community through random alcohol testing of novice employees constitutes a perversion of the law.
If this suit is typical of the kinds of lawsuit the government brings — and in my 35 years of practicing law, it is not a complete outlier — then the sequester can’t come soon enough. Sadly, though, just as with “fraud, waste, and abuse,” governmental absurdity seems immune from cuts.