Employees' Rights: Protections Against Harassment & Discrimination - Essay Sample

Introduction

Employees have rights under the law, which protects them against harassment and discrimination in the workplace by their employers. When they are being employed there are rulesand regulations they have to adhere to and it becomes a binding contract between the employer and employee. In this regard, employers are only supposed to reprimand or punish the employee if they go contrary to the terms and conditions for no reason. The employers also have policed that they set up not as punishment but to help promote safety and quality of work in organizations. One of the policies that some employers have and make it mandatory is the employer drug testing of applicants or employees. It is stipulated under the law drug-free workplace act of 1998 (41 U.S.C. 81). The statue explains that all workplaces should provide a free drug zone before receiving any grants from the federal authorities. To help in fulfilling this law, the employers ensure that the applicant or employees are tested. The paper will, therefore, explore the concept of employer testing of applicants and explain the reasons for and against such procedure following the law.

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Firstly, it is essential to note that employer testing of applicants is legal as a fulfillment of the drug-free workplace act as stated by the federal law (41 U.S.C. 81), and in this regard, it is legitimate. The rationale behind the implementation of the law in organizations is to ensure the health, and safety of employees and also the organization's equipment and facilities. It is therefore, for, this reason that a company has o ensure that all applicants and employees do not use drugs or alcohol at the workplace or that they are not addicts in any way. The human resource department is therefore, responsible, for the procedure.

Employer drug testing of applicants is also legal if only it is not meant for discrimination or harassment of the applicants or employees. The employers should be doing it in good faith to safeguard productivity and prevent losses that would otherwise occur if the employees were using drugs or selling or distributing them within the workplace. In the case of Barbuto v. Advantage Sales & Mktg., LLC, 148 F. Supp. 3d 145, 2015 U.S. Dist. LEXIS 162922 (D. Mass., Dec. 4, 2015), Barbuto tested positive during a drug testing for marijuana. In this case, the drug testing was legal due to it being the standard for the hiring process, but because it was for medical use, Barbuto brought a disability claim and also claiming discrimination. In Massachusetts where the case took place, the court stated that although an employee's possession of medical marijuana may violate federal law, that fact does not make it a per se unreasonable accommodation. While the court allowed Barbuto's disability claim to stand, it did state that employers do not have to tolerate the use of medical marijuana during work time, nor allow medical marijuana for individuals in safety-sensitive jobs or those covered by the federal drug-free workplace laws. The tests conducted on employees can be during the application process, a regular screening at the workplace, or when suspicious activity is suspected by the employer. The employer safeguards the interest of their business and therefore, is allowed under such circumstances to subject the applicants to drug testing before or even after being offered a job vacancy.

Employee drug testing is also legitimate because it ensures that there is greater responsibility among the employees as they perform their duties. It is especially the case when organizations are heavy machine industries, hospitals, construction driving, among others.It also helps the employers to handle and help those employees who need assistance regarding drug use addiction. It is, however, vital to note that before the employer subjects the applicants to drug testing, certain conditions should be fulfilled. In the case of Turner v. Phillips 66 Co., Case No. 19-5030 (10th Cir. Oct. 16, 2019). Richard Turner an employee in Phillips 66 Company was terminated because after conducting a random drug test which was done following his accident at the work place that tested positive. Although it is legal for the employer to conduct random drug test in case of a suspicious drug activity the company was required to seek consent from the employee before carrying out the test. The employee also claimed that he was on an over the counter drug known as Sudafed which was treating and a physician confirmed the issue in regard to the treating drug. Turner appealed on the basis that he was being discriminated because of his disability and allergy treatment. The court therefore reinstated his termination stating that he was being harassed and discriminated by the employer.

Employer testing of applicants is legal; however, the employer first needs to ensure that; there is informed consent where the applicant is made aware that the procedure must be conducted before being offered the said job. Similarly, the employee's privacy must be respected, and the test carried out confidentially, and also the results be made private. As part of the procedure, the employee's ability to cope with stress should be considered and tested as this will fall under reasonable expectations. The law explains that repeat tests can only be conducted if the results are found out to be positive. Also, appropriate counseling should be done in case of positive drug test results. In case such rules are not followed, the employee can sue the organization and win against them in the case. For instance, in the case of Hibernia Platform Employers' Organization v. Communications, Energy and Paperworkers Union (Unifor, Local 2121), 2018 NLCA 45. The appellatecourt decides on the reinstating of the fired employee because the drug testing procedure was done without proper consideration of explanations forms employees concerning the errors that were present. The employer did not seek out an explanation from the terminated employee. Also, the employer did not have significant evidence regarding employees' conduct. The reinstating of the employee was also done on the basis that the employer did not have enough evidence regarding substance abuse by the employee.

On the other hand, it is not legal for employers to conduct a drug test on employees because it some instances it leads to harassment and discrimination during the employment process. It is a time done without following the right procedures subjecting the employee to improper handling and embarrassment. It is an invasion of the applicant's privacy because they have to be subjected to the test that will lead to their private life being exposed to a third party, a thing that might not be comfortable to most people, especially if the results turn out to be positive. A case of Andrew HARRISON, v. EMPLOYMENT APPEAL BOARD and Victor Plastics, Inc., (02-0184.) No. Decided: April 02, 2003. The court ruled in favor of Harrison because the drug testing procedure should only be applied during the application, random tests and not when issuing benefits to employees.

Testing of employees can also be used as a means to reject possibly qualified candidates based on various forms of discrimination against applicants which, would others have not been possible to exercise if the procedure was not done. In this regard, it is important to note that despite testing being legal, all the requirements stipulated by the federal and state laws are fulfilled before the applicants are tested. Employer drug testing is vital because it ensures that workplace safety is heightened for the sake of productivity and safeguarding of the organization's equipment. The employers, however, should not use the situation as an avenue to discriminate against some applicants on any basis of conducting a drug test. The employers should also protect the privacy of the employee because it is their right to have confidentiality regarding their private life.

Cases:

Hibernia Platform Employers' Organization v. Communications, Energy and Paperworkers Union (Unifor, Local 2121), 2018 NLCA 45

Barbuto v. Advantage Sales & Mktg., LLC, 148 F. Supp. 3d 145, 2015 U.S. Dist. LEXIS 162922 (D. Mass., Dec. 4, 2015)

Turner v. Phillips 66 Co., Case No. 19-5030 (10th Cir. Oct. 16, 2019)Andrew HARRISON, v. EMPLOYMENT APPEAL BOARD and Victor Plastics, Inc., (02-0184.) No. Decided: April 02, 2003

References

Findlaw. (n.d)Drug Testing During Hiring retrieved from https://smallbusiness.findlaw.com/employment-law-and-human-resources/drug-testing-during-hiring.html

Maclellan .M (2018) Court of Appeal reinstates an employee after improper employer drug-testing retrieved from https://www.hcamag.com/ca/news/general/court-of-appeal-reinstates-employee-after-improper-employer-drug-testing/120279

Dicicco. K.M (2019) Federal Appeals Court Holds Test For Illegal Drugs Is Not An Impermissible Medical Examination, Even If Test May Reveal Lawful Drug Use retrieved from https://www.natlawreview.com/article/federal-appeals-court-holds-test-illegal-drugs-not-impermissible-medical-examination

Harrison V. Employment Appeal Board https://caselaw.findlaw.com/ia-supreme-court/1275442.html