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Kmart Settles EEOC Discrimination Suit Over Urine Drug Test

By Mark Wilson, Esq. on February 02, 2015 | Last updated on March 21, 2019

We all know that federal law requires employers to provide accommodations when employees have a religious requirement or a disability. But what if the disability conflicts with an established hiring policy?

As a recent EEOC settlement involving Kmart demonstrates, even a seemingly non-discriminatory hiring practice can discriminate, given the right set of circumstances.

Inflexibility Will Cost You

Kmart requires all new employees to submit to a urine drug test as part of its pre-employment screening. Lorenzo Cook couldn't, and for a pretty good reason: his kidney disease and dialysis. Cook actually offered to undergo any other kind of drug test -- a blood test or a hair test, basically anything that wasn't a urine test. Kmart refused to let him take an alternative test and refused to hire him.

Cook got the EEOC involved, which last week announced a settlement with Kmart in which it agreed to pay Cook over $100,000 and revise its drug-testing policies.

Business' rigid adherence to pre-employment drug screening policies appears to be quite common. Last March, the EEOC sued Walmart for basically the same thing: A prospective employee with end-stage renal disease couldn't take a urine test because she couldn't produce urine anymore. Though the drug-testing company offered alternatives, Walmart's corporate headquarters apparently wouldn't accept anything but a urine test.

Reasonable Accommodations Required

The Americans With Disabilities Act prohibits employers from discriminating against a qualified employee due to the employee's disability. As with similar prohibitions in the Civil Rights Act, the ADA extends protections not only to currently employed people, but prospective employees as well.

The ADA requires employers to provide "reasonable accommodations" to allow disabled people to do their jobs. In this case, even though Cook wasn't able to submit to a urine test, he was able -- and willing -- to submit to any other kind of drug test, which would have found drugs just the same. As the EEOC's Philadelphia District Director said in a press release, "There was a readily available alternative to the urinalysis test in this situation."

They key to the ADA is that the accommodations have to be reasonable. As long as they don't greatly impact the employer, they have to be provided. The major lesson from the EEOC's settlement with Kmart is that employers need to have more flexible corporate policies, especially where laws like the ADA mandate a good deal of human judgment.

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