Drug testing and sexual harassment have found their way into the election for the highest office in the land. Donald Trump has proposed that Hillary Clinton and he each subject themselves to drug testing before Wednesday night’s debate to underscore Hillary’s being physically unfit for President. Hillary challenges Donald’s fitness with a bevy of accusers of Donald Trump’s propensity to demean women and allegations he suffers from narcissistic personality disorder. Politics aside, what if these were candidates for private employment, and you were the decision-maker?
To Test or Not to Test.
In Minnesota, drug testing is governed by the Drug and Alcohol Testing in the Workplace Act, or DATWA. As long as the person is not applying for a position in which federal law would preempt the issue, such as an over-the-road truck driver, any attempt at drug testing would need to comply with DATWA’s requirements. If your drug testing policy isn’t DATWA compliant, FORGET IT!!!
Minnesota’s DATWA statute, Minn. Stat. §§ 181.950-957, is one of the toughest in the nation on employers. DATWA both limits the ability of employers to subject applicants to drug tests and restricts how employers may use the results of such tests. When an employer fails to comply with DATWA’s requirements, it faces strict liability. Also, DATWA seeks evidence of improper controlled substance and alcohol use. See Minn. Stat. § 181.950, Subds. 1, 10; Minn. Stat. § 181.953, Subd. 1. Donald is looking for prescription medications for Hillary’s unknown medical conditions, not illegal drugs.
An employer may require a job applicant to undergo drug and alcohol testing only when a job offer has been made to the applicant. Minn. Stat. § 181.95, Subd. 2. Right now, Hillary and Donald haven’t been offered the job…yet. Donald is correct that if Hillary gets a test, he (as one of the other “applicants” for the open position) has to get one too; as drug tests must be required of ALL applicants under DATWA. Id. Applicants have certain rights as to notice, the test mechanism, and have a confirmatory retest. Minn. Stat. § 181.953, Subd. 6. Only when all of these rights are met can a job offer be withdrawn. Minn. Stat. § 181.953, Subd. 11.
Along the same lines, inquiries into medical issues of applicants may present disability discrimination issues for employers, whether for an actual disability or a perceived one resulting from the review of medical information. An employer should avoid making improper medical inquiries for hiring decisions. Moreover, Employers must avoid medical tests improper under state and federal law. See e.g., 29 CFR § 1630.13(a); EEOC Enforcement Guidance: Pre-employment Disability-Related Questions and Medical Examinations, p. 14, 8 FEP Manual 405:7197 (1995); EEOC Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act; EEOC Technical Assistance Manual §§ 5.5, 6.1, 6.2, 6.3; Minn. Stat. § 363A.20, Subd. 8; Huisenga v. Opus Corporation, 494 N.W.2d 469, 474 (Minn. 1992). Once a medical test occurs, the employer must demonstrate that disqualifying an applicant for a position was job-related and consistent with business necessity, that the applicant was being excluded to avoid a “direct threat” to health and safety, and, no reasonable accommodation was available that would enable the applicant to perform the essential job functions without a significant risk to health or safety, or that such an accommodation would cause undue hardship for the employer. EEOC Technical Assistance Manual § 6.4; 29 CFR § 1630.14(b); Minn. Stat. § 363A.25. Right now our candidates, Hillary and Donald, have presented no requests for reasonable accommodation to be President yet both candidates accuse the other of mental and physical disabilities which make each of them unqualified. Outside the reasonable accommodation paradigm, employers should tread carefully with medically-related inquiry and testing to avoid liability.
By the way, the State of Georgia once tried to ensure that all candidates for office undergo a drug test. The United States Supreme Court found it unconstitutional! Chandler v. Miller, 520 U.S. 305 (1997).
Everything I learned about harassment I learned in Kindergarten
The presidential campaign has brought sexual harassment to the forefront too. Hillary accuses Donald of misogynistic conduct towards several women. Donald accuses Hillary of threatening her husband’s past victims to keep quiet. Recently, Donald Trump, Jr., faced accusations of belittling harassment in a three year old Opie and Anthony Show radio broadcast. This broadcast is interesting as it brings up the line of harassment and when it is crossed. Donald Jr.’s comments criticized political correctness and lamented that the victim appears to set the bar for harassment.
In Minnesota, hostile work environment sexual harassment is specifically defined. See Minn. Stat. § 363A.03, Subd. 43. For harassment by employees, the plaintiff must show: (1) the employee belongs to a protected group; (2) the employee was subjected to unwelcome sexual harassment; (3) the harassment was based on sex; (4) the harassment affected a term, condition, or privilege of employment; and (5) the employer knew or should have known of the harassment and failed to take timely and appropriate remedial action. See e.g., Costilla v. State, 571 N.W.2d 587, 595 (Minn. Ct. App. 1997), review denied (Minn. Jan. 28, 1998). If a supervisor is involved, the complaining employee “is not required to prove that his or her employer knew or should have known about the sexual harassment and failed to take timely and appropriate action.” Frieler v. Carlson Marking Group, Inc., 751 N.W.2d 558, 567 (Minn. 2008). If Donald did the things Hillary accuses him of, it smells like harassment. See //Articles/March-2011-Update-on-Two-Aspects-of-the-Law-on.pdf for a good description of behaviors that may or may not be considered harassment; see also //Articles/Discrimination_and_Harassment_Training.pdf.
In Minnesota, both employers and individuals are prohibited from “intentionally engaging in any reprisal against any person because that person . . . opposed a practice forbidden” by the Minnesota Human Rights Act. Minn. Stat. § 363A.15. An employee making a claim of retaliation must show “(1) statutorily protected conduct by the employee; (2) adverse employment action by the employer or a person; and (3) a causal connection between the two.” Hoover v. Norwest Private Mortgage Banking, 632 N.W.2d 534, 548 (Minn. 2001). Retaliation includes, but is not limited to, “any form of intimidation, retaliation, or harassment.” Minn. Stat. § 363A.15. If Hillary did the things Donald accuses her of, it smells like retaliation. See the EEOC’s recent enforcement guidance on retaliation and //Articles/managingmisbehaviorinexecutiveskeyemployeesandboardmembers.pdf.
Fortunately, applicants in the private workplace don’t campaign for their positions like our presidential candidates. However, this election presents good timing to highlight the issues of disability-related inquiries, drug testing, harassment and retaliation and their impact on the workplace.
Tom Marshall is an attorney with Engelmeier & Umanah, P.A. Tom primarily practices in workplace law, including discrimination matters, disability management issues, employer drug testing and other business matters, as well as training and counseling on policies, handbooks and other day-to-day employment issues. He has helped employers and employees obtain appropriate and effective resolution of disputes including a $2.6 Million federal verdict in favor of an employee who suffered disability discrimination. Tom has represented employer and employee litigants in Minnesota and other parts of the country. He has tried over 30 jury cases to verdict in state and federal courts. Tom can be reached at 612-455-7720 or [email protected]