33239943_sA judge in California has ruled that a fired black supervisor can proceed with claims of racial discrimination based solely on a comment that he was driving a “pimpmobile” and the fact that he was randomly selected for drug testing three times in a nine-month period while a white supervisor was never selected for drug testing during that same time period.  The court in Perkins v. National Express Corporation, et als. found that a jury could conclude that there was a racial motivation behind Perkins’ selection for drug testing and that, as a result, the stated reason for firing Perkins — that he failed to show up for the drug test — was pretext for discrimination.

Random drug testing can be fraught with difficulties.  There is no federal law that prohibits random drug testing.  In fact, some laws, such as the Federal Motor Carrier Act, may require random drug testing for drivers of commercial vehicles.  There are, however, many states where random drug testing may be an invasion of privacy under tort principles.  In some states, case law provides that random drug testing may only be conducted where required by statute or where a person works in a “safety-sensitive” position.  Some municipalities, such as San Francisco, have local laws that restrict random testing.

Assuming an employer can conduct random drug tests, employers need to be careful about how employees are selected for “random” testing.  Courts have generally held that even if drug testing is disproportionate to a plaintiff claiming discrimination, being selected for testing is not an adverse employment action absent some evidence of manipulation of the testing process.

Many employers use a computer program to randomize the selection of employees who will be tested.  Others use less technologically sophisticated methods of selecting test subjects.  Employers need to be careful with whatever method they utilize anytime they are setting up the pool to be tested or are setting up the selection process that they cannot be accused of manipulating the process to target certain individuals.

In addition to discrimination claims, some states have very specific laws as to what substances can be tested and what notice or appeal process must be provided to an employee of a positive test.  In short, employers should consult with legal counsel before implementing a drug testing policy.