Both 1 and 2 might be violations of the
Title VII Civil Rights Act based upon discrimination of sex and age. In addition, scenario 1 might also be a violation of the FMLA, although I believe FMLA is only for employees already hired?? . Scenario 2 could violate the ADA given the candidate hearing loss ($100 for the phone devise seems to be a "reasonable accomodation") and the Age Descrimination in Employment Act (over 40 yrs of age, manager percieves retirement soon).
I don't think scenario #3 violates any specific laws. Drug screening is legal for new job applicants and a common practice.

Jeremy, I agree with you. And scenario 1 would not play into FMLA since she was not an employee. Also, note that FMLA does not come into play until an employee has worked a minimum number of hours. I have a policy that I would be willing to share if you are interested.

thanks.

Peggy Sease-Fain
VP Human Resources

Agree that the specific laws mentioned may be violated. What was the employer company size? Title VII Civil Rights Act, Age Discrimination in Employment Act and Americans with Disabilities Act covers employers with more than 15 employees.

1. Title VII Civil Rights Act
2. Title VII Civil Rights Act, ADA, and Age Discrimination Act.
3. Agree Jeremy under the terms that the associate would not pass the drug test (if they haven't kicked the habit). The only question though, is what if the associate does pass the drug test (i.e. the habit it completely kicked, but the applicant is sober). Either way, I don't see a law violated by not hiring.

On the other hand, if the associate was already an employee, would the organization have to offer EAP (employee assistance program) or can they legally terminate for a violation of the alocohol and drug abuse policy of the organization?

HI I agree with all of you.

To add my two cents, the 3rd candidate will be ruled under the Drug Free workplace Act of 1998 that allows drug testing prior and during eployment.

As Andrew, described it is tricky since many of this conditions are now on the DSM IV (the clasification of Metal ilness) and could pose a treat if is not properly documented that the candidate's recreational use of drugs is current and/or impairs their performace. Most tests will be able to give you enough lead time to catch people doing the most common drugs.

So to the follow up question I would vote for the EAP with paid leave of absense before termination.

The 3rd candidate will be evaluated under the provisions of the Drug free workplace act of 1998. As andrew mentions you need to be careful since may of these conditions are now in the DSM IV ( Clasification of mental health conditions) and could become a threat. I would lean towars EAP.

I agree with Andrew's summary; 1 and 2.

According to the Legal Environment chapter, the only reference was Americans with Disabilities Act (ADA) specifically excluding "current illegal use of drugs". It is not illegal to deny employment to an illegal drug user.

To Andrew's question: employers are not required to offer EAP. If employer already has an EAP program the employee could seek help from them. As for terminating the employee... it almost always depends. If the company tests for drugs and an individual is positive, yes, terminate. If they check themselves into rehab before the employer has taken action...it may not be in the employers interest to take any action. If Joe Worker shows up to work tanked... yes, terminate. But every case is different and must be looked at closely and considered before actions are taken; otherwise you worry about wrongful termination law suits.

A lot of great posts so far. The prospective employee that is currently using drugs seems to me be a very clear cut choice for the HR manager.I have not discovered any laws that were violated by the manager not hiring the individual. I do not believe there would be very many organizations out there that would openly hire an individual that admits to using drugs. Definately not in the healthcare setting. Drugs have the potential to significantly impact judgement and this could be extremely damaging.

Couldn't candidate #3 claim his "drug addiction" as a disability, in which he is seeking treatment, therefore violating the ADA? Just a far fetched thought.

To Boyede's question: I've seen stranger things happen, so I suppose anything is possible. I hope that is never my organization that has to deal with something like that though.

Legally speaking, what defines a disability...physical/mental impairment that is a result of what?

This discussion is most helpful for me as I do not face these issues in Saudi Arabia. Most of our staff are contracted from over 50 different countries and the laws are not the same.

From reading the posts, watching the powerpoints and reading out of the book. I agree with other posts, the HR manager would not be in good standing legally if the stated or implied reason for not hiring 1 and 2 was related to pregnancy, age, gender or disabillity unless some how one of these variables prevented them from doing the key job tasks.

Drug free workplace laws and company policies, probably make 3 acceptable, but depending the crcumstances related to disabillities and treatment is not always a slam dunk. It sounds like number three is still using and not in any program or rehab, so he probably is out of luck.

The question that I have for the message board. How often are people discriminated agianst do to age, sex, gender and disabillity, but given other more legitimate reasons why they are not selected?

I think alll the discussion was very interesting and informative. As stated, Candidates 1 & 2 Did clearly come into violation of the ADA act. And it seemed a given that more than likely the 3rd individual would not pass the necessary drug screen. Even still the good news is that It stated that several candidates were interviewed and more than likely perhaps there were some complete stand out candidates that far out shined and were more than qualified to take the position and also came back with excellent references. Perhaps the scoring guidelines on the interview really showed whom the shining stars were as opposed to these candidates listed. It does seem unfortunate though that $100 device was all the 2nd candidate needed in order to be succesful at this job. Very enlightening quetions and scenarios placed before us, thank goodness HR tools seem to be getting better and better at helping us pick great candidates. We have a new software program that tests each candidate before they come in for an possible interview and score their fit within the organization and the interview questions then stem from this test of the potential employees. I just recently utilized this system for the first time in order to hire a new Physical Therapist and I loved it, our huncehs were confirmed by the result of the test that this employee took. I can't wait to see how this new employee works out for us in our PT department.