Case Report – Drug and alcohol testing condition does not give CHRT grounds to assess merits of discrimination complaint

This 2007 Canadian Human Rights Tribunal decision illustrates the limits to advancing drug testing claims under human rights legislation.

The Tribunal dismissed a discrimination and harassment complaint brought by an employee who was terminated and then reinstated on the condition he abstain from using drugs and alcohol and engage in unannounced testing. The employee did not claim he suffered from an addiction, but rather, claimed the reinstatement contract created the perception that he suffered from alcoholism and was disabled. The Tribunal disagreed, finding that the contract was imposed because of objective behavior and not perceived disability. It stated:

I do not believe that [Entrop and TD-Bank a.k.a. Canadian Civil Liberties Assn.] apply to this case. For example, in the Canadian Civil Liberties Assn case, the Court found that the drug testing policy raised the likelihood of drug-dependent employees losing their employment. Consequently, the discrimination was against those employees who were drug dependent. The complainant in this case is not alcohol or drug dependent. Therefore, the respondent’s policy does not impact on him in the same manner that the drug testing policy impacted on the employees tested in the Canadian Civil Liberties Assn. case.

See this post on the recent Kellogg Brown & Root case, also on the issue of perceived disability.

Witwicky v. Canadian National Railway, 2007 CHRT 25.

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