Monthly Archives: July 2011

July 22, 2011

Supreme Court Rules That Co-Workers Can Now Bring Retaliation Claims Based on Discrimination to a Fellow Employee

by Pam S. Howland

In Thompson v. North American Stainless, the Supreme Court considered whether third parties can bring claims under Title VII.  In that case, the employer, North American Stainless ("NAS"), terminated an employee named Miriam Regalado.  Regalado subsequently filed a gender discrimination complaint with the EEOC alleging that she had been terminated on the basis of her gender in violation of Title VII.  Several weeks later, NAS terminated her fiance, Eric Thompson, as well.  Thompson filed a discrimination charge with the EEOC alleging that his termination was retaliatory.

The employer moved for summary judgment against Thompson, claiming that he had no standing to bring a claim under Title VII because his charge was premised solely upon the alleged discrimination suffered by someone else, his fiance.  Two lower courts agreed.  This Supreme Court decision followed.  On appeal, the Supreme Court framed the two issues before it as: 1) Did NAS's firing of Thompson constitute unlawful retaliation and 2) If so, does Title VII grant Thompson a cause of action?  It ultimately answered "yes" to both questions.


The Court rejected NAS's argument that a holding in favor of Thompson would "place the employer at risk any time it fires any employee who happens to have a connection to a different employee who filed a charge."  

Grappling with the question of whether Title VII grants a cause of action to third parties like Thompson, it determined that anyone who is "aggrieved" under Title VII can bring a cause of action.  The Court then adopted a "zone of interest" test to determine whether an individual is aggrieved.  Pursuant to this test, a person is aggrieved when they fall within the zone of interests sought to be protected by the statutory provision whose violation forms the basis of the complaint.  It then determined that Thompson fell within the zone of interests protected by Title VII. 

In the wake of this decision, employers are undoubtedly wondering, "How far does the zone of interest extend to my work force?"   Can a boyfriend or girlfriend, cousin, or even a trusted co-worker bring a retaliation claim if they suffer an adverse employment action in the wake of the termination of a co-worker alleging discrimination?  These questions will need to be resolved by the courts. 

In the meantime, employers cannot ignore the implications of this case.  Retaliation policies cannot be limited to employees who complain about harassment.  Instead, they must now include any person with an interest in being protected by Title VII. 

Additionally, this case further exemplifies the importance of following a careful protocol before terminating an employee – a protocol that includes thorough written documentation of the reasons leading up to the termination, as well as employee exit interviews.  In Thompson, the employee would have a difficult time establishing his claim before a jury if the employer had carefully documented his bad attitude, his non-productivity, and any other reasons that lead to his termination.  On the flip side, a human resource file lacking extensive documentation could easily be portrayed as a sure sign that the employer had no legitimate non-discriminatory reason for the termination.  Workplace investigations into complaints of discrimination and/or retaliation remain crucial.  Employee comments or complaints suggesting retaliation must be thoroughly investigated and documented – ignoring them (or even failing to document the investigation into them) has now become more dangerous than ever.      

July 21, 2011

Rehab and One Month of Sobriety Not Enough to be Considered Safe

By Jude Biggs

We all know all too well that illegal drug use and alcoholism cause terrific problems in the workplace, for the addict employee, co-employees and the business.  We know that addiction is a medical problem that can sometimes be treated with success.  Balancing the needs of the business and hope for the employee’s recovery can be tricky to say the least.

A recent case from the Tenth Circuit, which interprets the ADA for Colorado employers, illustrates the difficult balancing that occurs under the law.  The ADA does not protect current illegal drug users, but it provides a safe harbor for those who have successfully completed a drug rehabilitation program (or otherwise rehabilitated successfully) and are “currently” or no longer engaging in the use of illegal drugs.  But what does it mean to be “currently” free of illegal drugs?  Read on to understand how to deal with employees who have used illegal drugs in the recent past.


Peter Mauerhan worked as a sales representative for Wagner Corporation from 1994 until June 2005.  In 2004, Mr. Mauerhan voluntarily entered an outpatient drug rehabilitation program, which met evenings and did not affect his work schedule.  Wagner knew he was in the program.

On June 20, 2005, Wagner asked Mr. Mauerhan to take a drug test; he admitted he would test positive (for cocaine and THC/marijuana) but submitted to the test anyway.  After testing positive, he was fired for violating Wagner’s drug policy, but was told he could return to Wagner if he could get clean.  On July 6, 2005 he entered an inpatient program, which he completed on August 4, 2005.  His rehabilitation counselor reported his prognosis at discharge as “guarded.”

The day after being discharged, Mr. Mauerhan asked to return to work at Wagner.  He was told he could return, but not at the same level of compensation or with the same accounts he had served before.  Mr. Mauerhan refused the changed terms.  In later proceedings, Mr. Mauerhan asserted he remained drug free since completing the drug treatment program in July 2005. 

In October 2005, he filed a charge of discrimination, asserting that he had been discriminated against on the basis of his status as a drug addict, and later filed a lawsuit asserting the same thing.  Wagner asked the court to dismiss the case, arguing that Mr. Mauerhan was a current drug user within the meaning of the ADA at the time he had asked to be rehired.  The Company also argued that even if Mr. Mauerhan had a protected disability at that time, the Company’s offer to reinstate him proved it had not discriminated against him.   The district court dismissed the case, concluding that Mr. Mauerhan was not protected by the ADA as he was a “current” drug user at the time he reapplied for work. 

How Long Must Someone Be Clean to be Considered a Former Drug User?

The Mauerhan case is an important one, as it is the first time the Tenth Circuit has provided guidance on how to determine the difference between a current or former drug user.  Although the status of being an alcoholic or illegal drug user may merit ADA protection, the ADA and its implementing rules say that an employee or job applicant is not a “qualified individual with a disability” if he or she “is currently engaging in the illegal use of drugs” when the employer acts on the basis of such use.  But the ADA also creates a safe harbor for those who are not currently engaging in the illegal use of drugs, by protecting employees who (1) have successfully completed a supervised drug rehabilitation program and are no longer engaging in the illegal use of drugs, or have otherwise been rehabilitated successfully and are no longer engaging in such use; (2) are participating in a supervised rehabilitation program and are no longer engaging in such use; or (3) are erroneously regarded as engaging in such use, but are not engaging in such use. 

The Tenth Circuit admitted it was defining for the first time the scope of what “currently engaging” means.  The district court had concluded Mr. Mauerhan failed to qualify for ADA protection when he reapplied for work, as he had abstained from illegal drugs for only one month; one month was, in the district court’s view, too short to be considered “not engaging in illegal drug use.”

The Tenth Circuit agreed with Mr. Mauerhan that one month of sobriety was not insufficient per se under the ADA, but agreed with Wagner that Mr. Mauerhan did not qualify for the safe harbor protections of the ADA.  In so ruling, the Tenth Circuit acknowledged that no sister circuit courts used a bright-line rule for when an individual is no longer “currently” using drugs.   Some courts require an employee to have refrained from drug use for a “significant” period of time.  Others say the drug use must be sufficiently recent to justify the employer’s recent belief that the drug abuse remains an ongoing problem.  Another circuit defines “currently” to mean a periodic or ongoing activity that has not permanently ended.  The legislative history of the ADA also indicates a rule establishing a firm cutoff for protection is not appropriate.

As a result, the Tenth Circuit concluded that an employee is not protected under the ADA solely based on the number of days or weeks that have passed since the employee last illegally used drugs.  Instead, it adopted the Fifth Circuit’s test that an individual is currently engaging in the illegal use of drugs if “the drug use was sufficiently recent to justify the employer’s reasonable belief that the drug abuse remained an ongoing problem.”  Mere participation in a rehab program is not enough, although it helps bring the drug user closer to being protected.  Rather, the individual must also be no longer engaging in drug use for a sufficient period of time that the drug use is no longer an ongoing problem.  The court explained that, when an individual has not permanently ended his or her use of drugs, the drug use invariably is an ongoing problem.  Certainly the longer employees refrain from drug use, the more likely they are to be protected under the ADA.  Nonetheless, each case must be decided on its own basis, based on a variety of factors, such as the severity of the employee’s addiction, relapse rates for whatever drugs were used, the level of responsibility entrusted to the employee, the employer’s applicable job and performance requirements, the level of competence ordinarily required to adequately perform the job, and the employee’s past performance record.  All of these factors assist the employer (and a court if a lawsuit develops) in determining whether it can reasonably conclude the employee’s substance abuse prohibits the employee from performing the essential job duties.   As a result, the Tenth Circuit affirmed the district court’s dismissal of Mr. Maueghan’s claims.  Mauerhan v. Wagner Corp., Nos. 09-4179 & 4185 (10th Cir. April 19, 2011).

Applying the Lessons of Maughan to Your Workplace

The Maueghan case gives employers some confidence that employees who have been recently released from a rehab program probably will not be considered former drug users entitled to the protections of the ADA.  The more time that goes by, the more likely the employee will be thought of as a “former” user.  However, don’t forget that other laws or approaches can come into play.  For instance, although the Maueghan case did not involve a claim under the FMLA, remember the FMLA regards drug addiction as a serious medical condition for which an employer should allow medical leave and a right to return to work (under certain circumstances).  In addition, remember that nothing in the ADA prevents an employer from disciplining or terminating an employee for drug-related misconduct.  Given how complicated these situations can be, reach out to your attorney if in doubt, before making a move.  It may save you a lot of headaches – and perhaps a hangover –  in the long run. 

For more information on this case or arbitration law in general, please contact Jude Biggs at

This article is posted with permission from Colorado Employment Law Letter, which is published by M. Lee Smith Publishers LLC. For more information, go to