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Employer Uses Bogus Drug Test Results to Retaliate


While it is true that positive drug tests may be legitimate reasons to discipline or terminate an employee, the employment action must be reasonable based on the circumstances. In a recent case against St. Petersburg General Hospital in Florida, an employee claimed that her employer retaliated against her for making a complaint of race discrimination.

The Facts Alleged in Ross v. St. Petersburg General Hospital

A nurse, Wendi Ross, was one of only four African-American nurses employed at St. Petersburg General. After filing a charge of race discrimination with the Equal Employment Opportunity Commission, she alleges she was terminated in retaliation for filing that complaint. Specifically, Ross alleges that she slipped on a wet floor at the hospital and was required to submit to a urine drug screen.

Although the drug test came back positive, Ross provided evidence from her pharmacy that she had a prescription for the medication for which she tested positive. Nevertheless, she was terminated based solely on the positive drug screen results. More importantly, terminating her in this particular case was a violation of policy as well as industry standards because she was “not taking illegal drugs, or prescription medication without a prescription.”

Federal Protections Against Discrimination and Retaliation

Title VII of the Civil Rights Act of 1964, makes it unlawful to terminate any employee because of that person’s race, color, religion, sex, or national origin. The federal Age Discrimination in Employment Act further protects employees over the age of 40 from termination based on their age. The Fair Labor Standards Act makes it unlawful to terminate employees for asserting their rights to legal compensation.

Elements of a Wrongful Termination Claim

Generally speaking, employees are required to establish certain elements in order to prove a wrongful termination. Those elements include proving

  • They are members of a protected class (or engaged in statutorily protected activity)
  • They are doing satisfactory work
  • They were discharged
  • Similarly situated individuals outside the plaintiffs’ protected class were treated more favorably, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination

Elements of a Retaliation Claim

Unfortunately, retaliation is the form of discrimination most frequently alleged in federal court cases. Employees who participate in a complaint process are protected from retaliation under all circumstances. There are also other actions that may be taken

in opposition to discrimination and those actions are also protected as long as the employee was acting on a reasonable belief that there was some violation of anti-discrimination laws. This may also be true even if the employee did not use legal terminology to describe the discrimination.

Engaging in Protected Activity Does Not Always Provide A Shield

A common misconception that many employees have is that by simply participating in protected activity, such as making complaints about discrimination, they are effectively shielded from any disciplinary action, including termination. The reality is that employers are free to discipline or terminate employees, as long as they are only motivated by non-retaliatory and non-discriminatory reasons. Those legitimate reasons must have otherwise resulted in the same consequences, despite the protected activity. Ultimately, an employer is not allowed to take actions in response to protected activity that would discourage other employees from opposing or complaining about future discrimination.

If you feel you have been the victim of discrimination or retaliation, or if you have any questions regarding your employment rights, please contact Michel | King , either online or by calling us at (205) 265-1880.

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