Is your random drug testing policy really random?

Jimmy Perkins was an African American Operations Supervisor for Durham School Services, a school transportation service. Durham randomly tests its employees in safety sensitive positions for drugs and alcohol. This included employees with commercial driver’s licenses. A third-party vendor administered the tests and selected employees based on a computerized algorithm. If selected, employees had to report for testing within two hours or risk termination.

Perkins possessed a commercial driver’s license. The third-party vendor randomly selected Perkins to be tested three times in a nine-month period. Perkins, however, failed to appear for his third test because he was busy addressing a work-related crisis. He was then terminated for violating the company’s testing policy.

Perkins filed a lawsuit and, among other allegations, claimed that Durham racially discriminated against him by selecting him so frequently for a purportedly random test. He pointed to a similarly situated white, female manager with a commercial driver’s license who, despite meeting the requirements for being part of the testing pool, had never been tested and was not even on the list of employees eligible for the test. Perkins also claimed that his supervisor, Kirk Tostenrude, a white male, made racially offensive comments, such as referring to Perkins’ Mercedes-Benz as a “player’s” car or “pimpmobile.” Perkins felt that Tostenrude’s comments pejoratively referred to African Americans driving luxury cars.

Durham tried to get the case dismissed on summary judgment, claiming that Perkins could not prove it had a discriminatory motive. The company argued that Perkins’ repeated drug test selections were simply “bad luck,” and its failure to include the white, female manager in the testing pool was a “clerical error.” The court, however, found that a jury could potentially infer a racially discriminatory motive, especially when coupled with Perkins’ supervisor’s racially offensive remarks, and denied Durham’s motion.

This case is a good reminder for employers that even though policies may appear neutral on their face, they can have discriminatory implications if administered inconsistently.