Damned if You Do, Damned if You Don't

July 12, 2013

A lawsuit brought against Old Dominion Freight Line, Inc. by the U.S. Equal Employment Opportunity Commission (EEOC) could cause problems for many motor carriers regarding their treatment of commercial truck drivers suffering from substance abuse problems.

The EEOC charged that the carrier — a general commodity freight hauler based in Thomasville, NC, with a network of 211 service centers — violated federal law by discriminating against at least one truck driver because of self-reported alcohol abuse.

The driver told fleet management that he might have an alcohol abuse problem.

Under U.S. Department of Transportation regulations, Old Dominion suspended the driver from his driving position and referred him for substance abuse counseling. However, the fleet also informed the driver that it would never return him to a driving position, even upon the successful completion of a counseling program. The driver was offered reassignment to a non-driving position.

There's the rub, according to EEOC. The EEOC says the fleet was in violation of its legal obligation to comply with the Americans with Disabilities Act when it permanently banned the driver based in Fort Smith, AR, from a driving position.

Alcoholism is a recognized disability under the Americans With Disabilities Act (ADA), and disability discrimination violates this federal law. The EEOC said that the company violated both the ADA and the Americans With Disabilities Act Amendment Act of 2008 (ADAAA) by conditioning reassignment to non-driving positions on the enrollment in an alcohol treatment program. In addition, the EEOC argued that Old Dominion's policy that bans any driver who self-reports alcohol abuse from ever driving again also violates the ADA.

According to the EEOC's suit the driver had worked for the company for five years without incident prior to reporting his substance abuse issue in 2009.

During the investigation into the case, the EEOC says it discovered drivers at other service centers whom Old Dominion had allegedly subjected to similar treatment.

The EEOC claims it filed the lawsuit after first attempting to reach a voluntary settlement with the carrier. The suit seeks monetary relief in the form of reinstatement to a driving position, back pay and compensatory and punitive damages, compensation for lost benefits for two drivers, and an injunction against future discrimination.

"The ADA mandates that persons with disabilities have an equal opportunity to achieve in the workplace. Old Dominion's policy and practice of never returning an employee who self-reports an alcohol problem to a driving position violates that law," said Katharine Kores, director of the EEOC's Memphis District Office, whose jurisdiction includes Arkansas. "While the EEOC agrees that an employer's concern regarding safety on our highways is a legitimate issue, an employer can both ensure safety and comply with the ADA."

It's understandable, however, that the trucking company policy permanently bans a driver with an alcohol issue from driving a commercial vehicle even if the driver participates in a treatment program. Many fleets follow the same policy… and for good reason.

Treatment for alcoholism is often times not successful and many alcoholics relapse and drink again, sometimes even after several stints in rehab. While it's impossible to get accurate statistics on the recovery rate of alcoholics, it's well-known that many of those with substance abuse issues don't ever recover.

According an article in the Washington Post, finding out the success rate of a given alcohol treatment program is extremely difficult. "Controlled studies of specific treatment centers are rare; compounding the problem, many programs simply don't follow up with former patients. And when they do report a success rate, be it 30 percent or 100, a closer look almost always reveals problems. That 100 percent rate turns out to apply only to those who "successfully completed" the program. Well, no kidding. The 30 percent rate applies to patients' sobriety immediately after treatment, not months or years later," Bankole A. Johnson, chairman of the department of psychiatry and neurobehavioral sciences at the University of Virginia said in the Post article.

In a 1990 summary of five membership surveys from 1977 through 1989, Alcoholics Anonymous reported that 81 percent of alcoholics who began attending meetings stopped within one month. At any one time, only 5 percent of those still attending had been doing so for a year.

One slip for a commercial truck driver could spell disaster for other motorists on the road. Due to the dangerous nature of the job, it would be foolhardy to allow someone with substance abuse issues to drive, even if they do successfully complete a treatment program.

And the Department of Transportation does ban people with other medical issues from driving if their disability could prove to be a safety issue. Consider that insulin-dependent diabetics are banned from driving commercial vehicles.

Carriers should watch closely to see how this lawsuit develops.

http://www.washingtonpost.com/wp-dyn/content/article/2010/08/06/AR2010080602660.html

http://www.eeoc.gov/eeoc/newsroom/release/8-16-11d.cfm

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