Wis.LIRC ER Decision: Xiong - May 31, 2000 - Disability discrimination - discharge of employe for failing drug test does not show he was "regarded as" engaging in current drug use, where employer believed employe's denial of drug use, but acted "in blind adherence to its drug policy"

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

PA LUE XIONG, Complainant

HOFFERS INC, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199800929, EEOC Case No. 26G980931

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed May 31, 2000
xiongpa.rsd : 164 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In his petition for commission review the complainant argues that the administrative law judge erred in determining that he did not fall within the protections of the Wisconsin Fair Employment Act. The complainant contends that a person who is regarded as engaging in current drug use but who is not engaged in such use is disabled, within the meaning of the law. This argument lacks merit. Although the complainant was discharged for a positive drug test, the record did not establish that the respondent regarded the complainant as having a disabling substance abuse problem. To the contrary, the respondent's human resources manager testified that the complainant was a good and dependable employe and that there was no reason to believe he was under the influence of drugs or possessed drugs while on the job. In fact, the witness indicated that she believed the complainant when he denied engaging in illegal drug use, but felt compelled to discharge him nonetheless. While the commission agrees with the administrative law judge that the respondent's decision to discharge the complainant, in blind adherence to its drug policy, was both unreasonable and counterproductive, it did not amount to disability discrimination. Accordingly, the dismissal of the complaint is affirmed.

cc:
James B. Connell
Richard J. Weber

Appealed to Circuit Court. Affirmed December 1, 2000.

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