Worker Who Refused Blood Alcohol Test Advances Discrimination Claim

By Roger S. Achille January 31, 2018
Worker Who Refused Blood Alcohol Test Advances Discrimination Claim

​An employee who refused to take a blood test but agreed to a breathalyzer to see whether he was drinking on the job could go to a jury with his claim of a racially discriminatory discharge, the 7th U.S. Circuit Court of Appeals ruled. But his harassment claim was deemed untimely.

The plaintiff, a black firefighter formerly with the Village of Dolton Fire Department, claimed that he was subjected to racially offensive language between 2009 and 2013. Two lieutenants allegedly used racial epithets; made derogatory comments to him about his race; and disparaged the plaintiff's wife, who is white.

In addition, the plaintiff alleged that on separate occasions the two lieutenants and fire chief said that black firefighters "don't belong" in the fire station. The last racially offensive comment occurred in early 2012, but the plaintiff did not file an Equal Employment Opportunity Commission (EEOC) charge until February 2013.

During his employment with the fire department, the plaintiff was accused of smelling of alcohol while on duty, though no one saw him drinking on the job. He denied drinking and suggested that the accusations were made because of racial motive.

When the fire chief investigated the drinking allegations, he learned that co-workers previously had reported that the plaintiff smelled of alcohol. A similar drinking accusation was later made by another lieutenant. The plaintiff responded to this latest allegation by asking the fire chief to order an alcohol test. The fire chief did so, preparing a written order directing the plaintiff to take a test for alcohol, without specifying the type of test.

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The Village of Dolton insisted that a blood test was required under the union agreement, which instructs that alcohol tests be conducted in a manner that preserves samples for confirmatory testing. The plaintiff refused the blood test but agreed to take a breathalyzer test, which showed no trace of alcohol in his system. The fire chief regarded the plaintiff's refusal to take the blood test as insubordinate, and he was subsequently fired for "insubordinate and threatening behavior."

The plaintiff charged that he was subjected to a racially hostile work environment and discriminatorily fired because of his race. The district judge entered summary judgment for the Village of Dolton. Regarding the discriminatory discharge claim, the judge concluded that the racist comments were too remote in time from the termination decision to suggest discrimination. The judge held that the hostile‐work‐environment claim was untimely because the alleged racial harassment occurred more than 300 days before the plaintiff filed his EEOC charge.

On appeal, the plaintiff maintained that the district court's compartmentalized review of the evidence obscured the link between racism at the fire department and his discharge. The Village of Dolton maintained that the plaintiff was fired because he disobeyed an order to submit to a blood test and, although the type of test was not specified, the plaintiff knew that a blood test was required under the collective bargaining agreement.

The plaintiff challenged the insubordination reason as pretextual, pointing out that the written order required only a test for alcohol, which he completed, and that the collective bargaining agreement did not specify any particular method for a substance‐abuse test. These disputes if resolved in the plaintiff's favor, the 7th Circuit remarked, could convince a jury that the insubordination rationale was a pretext for discrimination, especially if the jury believed earlier negative comments were made about black employees in the fire department. As such, the court vacated the order dismissing the plaintiff's discriminatory discharge claim.

However, the 7th Circuit affirmed the order dismissing the plaintiff's hostile environment claim as untimely. While acknowledging that the last racial comments occurred more than 300 days before he filed his EEOC charge, the plaintiff argued that he suffered from a "covert campaign" of race‐based hostility—composed of false accusations that he was insubordinate and drank on the job—that continued into the 300‐day period. But the court disagreed, stating that the plaintiff did not present evidence that he suffered any overt or covert racial harassment within the 300‐day period preceding his EEOC charge.

Taylor v. Village of Dolton, 7th Cir., No. 17‐1097 (Dec. 11, 2017).

Professional Pointer: Distribution of, and training on, anti-discrimination and anti-harassment policies is essential and, under some state laws, required. Discriminatory and harassing behavior may taint even legitimate corrective action or discipline.

Roger S. Achille is an attorney and professor at Johnson & Wales University in Providence, R.I.

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