The New Jersey Appellate Division decided that a company’s mandatory program and policy implemented only against employees suffering from alcoholism is a violation of the New Jersey Law Against Discrimination. In A.D.P. v. ExxonMobil Research Company, ExxonMobil Research and Engineering Company (Exxon) forced employees identified as recovering alcoholics to sign a contract that required only those employees to submit to mandatory clinical drug testing for two (2) years and monitoring for an additional three years. Other employees were not subject to drug or alcohol testing except for cause. In reversing the lower court’s grant of summary judgment in favor of Exxon, the Appellate Division determined that the additional terms and conditions of employment imposed by Exxon based on Plaintiff’s disability of alcoholism constitutes a claim for disability discrimination.
Plaintiff began working for a predecessor company of Exxon in 1978 as a research technician. She continued with Exxon and worked for a total of twenty-nine years. Plaintiff was consistently ranked as a top performer and received eight promotions from 1983 through 2005 becoming a Senior Research Associate. After the death of Plaintiff’s husband in 2004, she suffered from depression and other medical conditions. In August of 2007, Plaintiff disclosed to a nurse at Exxon that she was an alcoholic and planned to check herself into an inpatient rehabilitation program in order to receive treatment for her alcohol dependency and depression. Plaintiff successfully completed inpatient rehabilitation at Carrier Clinic and outpatient treatment at Hunterdon Medical Center. Before Plaintiff was allowed to return to work at Exxon, she was required to sign an after-care contract pursuant to Exxon’s company-approved after-care program. The after-care contract identified Plaintiff as an employee recovering “from chemical dependency” and mandated she participate in the after care program, totally abstain from alcohol and drugs not prescribed by a physician, submit to clinical substance testing for a minimum of two years after completion of a Primary Treatment Program and be monitored for an additional three years. The mandatory testing was to be periodic and unannounced. The policy applied to Plaintiff also stated that an employee suffering from alcohol or drug dependency that refuses rehab, fails to respond to treatment, or fails to exhibit satisfactory work performance would be disciplined up to and including termination.
In fear of losing her job, Plaintiff signed the after-care contract and submitted to nine (9) random breathalyzer tests between October 29, 2007 and August 20, 2008. Exxon had no reasonable cause to believe Plaintiff had been drinking alcohol at work or was intoxicated when these breathalyzer tests were administered. The tests were administered solely because of the after-care contract Plaintiff was required to sign as a recovering alcoholic. On August 22, 2008, Plaintiff was forced to take yet another “random” breathalyzer test. This test produced blood alcohol concentration (BAC) readings of .047 and 0.43.3. These readings are well below the threshold BAC of 0.08 set by New Jersey law as driving under the influence. Plaintiff was terminated on August 26, 2008. Exxon articulated that the only reason Plaintiff was terminated was because she violated the after-care contract in having a positive test. Exxon confirmed that, “an employee’s status as an alcoholic is the lone trigger for requirements of total abstinence and random testing without cause.” The company also confirmed that Plaintiff performance had absolutely nothing to do with her termination and that even if she was in the top 1 percent of her group, she would still have been terminated for failing the test.
The court applied a Price Waterhouse analysis in light of the direct evidence that Exxon’s after-care contract was facially discriminatory and demonstrated hostility towards persons suffering from the recognized disability of alcoholism. Under a Price Waterhouse analysis, Exxon was required to prove that it would have still terminated Plaintiff even if the illegal bias had not played a role in the employment decision. The direct evidence Price Waterhouse analysis required Exxon to assert an affirmative defense that absent the discriminatory animus, Plaintiff would still have been terminated.
Exxon asserted that its legitimate non-discriminatory justification for the after-care contract and the resulting termination of Plaintiff’s employment was to protect the health, safety and effective functioning of its employees and to reasonably accommodate Plaintiff’s alcoholism. The Court rejected both assertions. As to the safety defense, the Court rejected such an affirmative defense because Exxon merely assumed that Plaintiff posed a safety risk in the work environment merely because of her disability of alcoholism. The policy in itself makes the assumption that Plaintiff posed an enhanced risk of substantial harm in the workplace based on the mere fact that she suffers from a particular disability. Citing to Barbera v. DiMartino, 305 N.J. Super. 617 (App. Div. 1997), the Court stated, “the employer may not assume that harm will result, nor may it act on the fear and prejudices of other employees.” Exxon’s policy includes the assumption the law prohibits. The policy states “that alcohol, drug or other substance abuse by employees will impair their ability to perform properly.” The policy goes on to state that such abuse “will have serious adverse effects on the safety, efficiency and productivity of other employees and the Corporation as a whole.”
Exxon failed to make an individualized assessment of Plaintiff’s safety risk, which is required under both the New Jersey Law Against Discrimination and the American with Disabilities Act to justify an employer’s random alcohol testing of an employee who has returned to work after a rehabilitation program. Additionally, within this individualized assessment, an employee who repeatedly tests negative for alcohol may not be subjected to continued testing because the employer may no longer have a reasonable belief that the employee will pose a safety threat. The Court found Exxon’s blanket requirements applied to any identified alcoholic to be a confirmation of the “facially discriminatory nature of the Policy rather than establishing any affirmative defense to the allegation of unlawful discrimination.”
The court rejected Exxon’s argument that the after-care contract was a reasonable accommodation. As articulated by the Supreme Court, the only two instances where reasonable accommodation is an issue are (1) when the Plaintiff pleads failure to reasonably accommodate as a separate cause of action and (2) when the employer asserts that the employee was terminated because of the employee’s inability to perform the job. Neither occurred here. The court further stated that the facts do not support a characterization of any of Exxon’s actions as a reasonable accommodation except granting Plaintiff’s request for leave to attend the in-patient rehabilitation program.
The Plaintiff’s Pierce claim was denied because the Court determined the claim did not “seek to vindicate interests independent of those protected by the LAD” and was therefore barred. Specifically, the court rejected Plaintiff’s argument that her termination for failing to comply with the after-care contract constituted a violation of the right to privacy guaranteed by the New Jersey Constitution.
The court’s analysis and decision in this case upheld the primary purpose of the New Jersey Law Against Discrimination; to prevent unlawful discrimination by an employer against an employee because of the employee’s membership in a protected class. Plaintiff was subjected to a specific standard of conduct based solely because she identified herself as recovering alcoholic. Plaintiff was terminated as a result of being singled out and forced to adhere to such standards because of her disability. Such direct discriminatory animus is exactly what the New Jersey Law Against Discrimination was designed to prevent.