Reminder to employers: Be consistent with similarly situated employees

A recent decision from the U.S. District Court for the Western District of Michigan illustrates how important it is to treat similarly situated employees similarly.

Facts

Burroughs Corp. terminated Robert Earle Bownes (an African-American employee) from its facility in Kalamazoo, Michigan, after he tested positive for marijuana. Under the applicable collective bargaining agreement (CBA), it could either terminate him or require him, as a condition of continued employment, to undergo treatment for substance abuse. If he refused to complete the program or had a second positive drug test, he would be discharged.

After Bownes’ positive drug test, Burroughs didn’t offer him the chance to participate in a treatment program and fired him. He filed a lawsuit in federal court blaming his termination on race discrimination.

Bownes’ claim

Where did Burroughs go wrong? Bownes was aware of the drug-free workplace rule and violated it by testing positive. Termination may have been the proportionate response because the employer claims it had a zero-tolerance policy.

Termination may not have been the fairest and most consistent outcome, however, if similarly situated employees were treated differently. Bownes claims Burroughs allowed similarly situated white employees who failed a drug test to go to treatment and continue working.