My employer requires its employees to be subject to random drug testing. I have been supposedly chosen by random three times already this year. Not only are we told we have to go to the clinic after work on our own time but when I asked the human resource manager to show me some type of documentation with my name being the one chosen, he paused for a minute and said he'd show me tommorrow. I feel as if im being discriminated against and harrassed for that matter. What can I do?
State/Country relating to question: Illinois
It is quite possible that your selection is not all that "random." The problem is that there's no law that requires your employer to do random drug testing. Moreover, even if your employer is singling you out for some reason, it is not illegal unless the reason for the treatment is some illegal reason, such as age, race, sex, disability, protected activity, worker's comp claim etc. For instance, if you are African American and all the other employees are white, then the unequal treatment may be a violation of the Civil Rights Act. If you are over 40 and are being tested more than younger employees, it may be a violation of the Age Discrimination in Employment Act.
In order to prove discrimination there are two ways to proceed. The first is what is called the "direct" method. That's a very difficult way to go, because it requires that you have what amounts to a "smoking gun" - a statement by your employer that pretty much says, "We're doing this because of someone's [race, age, sex, disability, etc.]."
The second way to prove discrimination - and the most common - is the "indirect" method. Using this method, there is a three part process. First, you have to establish what is called a "prima facie case." That requires that you show four things: (1) you are a member of a protected group, (2) you suffered an adverse employment action (fired, demoted, denied Promotion, etc.), (3) you were meeting your employer's legitimate expectations, and (4) similarly situated employees who are not in your protected group received more favorable treatment.
At this point, you haven't suffered an adverse employment action at this point. However, if you have previously complained about some kind of discrimination, the simple fact of testing more frequently could be enough to show Retaliation.
Please keep in mind that I am not an attorney licensed to practice law in your state. This is not legal advice, and this answer does not create an attorney-client relationship. For that reason, and because cases like this are very fact specific, I would recommend that you contact the local bar association’s lawyer referral service (they all have them) to locate a lawyer who practices IL Employment Law. Moreover, there may be nuances in state or local laws or customs and practices that affect your situation and that only an attorney in your state would be aware of.If you want to follow up, please identify your questions in the subject line as being for “Counselor.” Although it’s not required by any means, a bonus (tip) is always appreciated if you find the answer helpful. I would also appreciate any feedback you can give me to improve the quality of my answers.Counselor
Practicing Employment & Labor Law Attorney
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