August 29, 2011 6:30 AM, EDT

EEOC Sues Fleet Over Alcohol Policy; Says Company Violated Disabilities Act

By Frederick Kiel, Staff Reporter

This story appears in the Aug. 29 print edition of Transport Topics.

The U.S. Equal Employment Opportunity Commission filed a lawsuit recently against Old Dominion Freight Line Inc., saying that the carrier’s policy of not permitting drivers with a history of alcohol problems to return to driving, even after treatment, violated the Americans With Disabilities Act.

“The EEOC said that the company violated both the ADA and the Americans With Disabilities Act Amendment of 2008 by conditioning reassignment to nondriving positions on the enrollment in an alcohol treatment program,” EEOC said in an statement.

EEOC filed the lawsuit Aug. 16 in federal court in Little Rock, Ark.

“In addition, the EEOC argued that Old Dominion’s policy that bans any driver who self-reports alcohol abuse from ever driving again also violates the ADA,” the agency said.

“The company declines comment because the matter is in litigation,” a spokesman for Old Dominion, Thomasville, N.C., told Transport Topics.

“When you ask a trucking company to put someone on the road who could be a threat to public safety, you have to give that company the greatest possible latitude to decide if that person presents an unacceptable risk, given their particular circumstances.” Robert Digges, chief counsel of American Trucking Associations, told TT.

“Companies have to make that decision based on their own experiences and their own safety policies,” Digges added.

“Trucking supports giving individuals equal employment opportunities, but those goals must be tempered by the realities of our industry,” he said.

Digges pointed out that “an alcoholic may pose a risk that is acceptable if they are working as a lawyer, accountant, salesman or in hundreds of other occupations. But putting them behind the wheel of an 80,000-pound truck is a very different thing.”

Pamela Dixon, EEOC lead counsel in the lawsuit, said Old Dominion explicitly described its position on drivers with alcohol problems.

“It is the practice and policy of Old Dominion to not let drivers who are identified with alcohol abuse issues to return to drive again, even after treatment,” Dixon told TT. “Old Dominion did not deny that this is their policy.”

The lawsuit said that the em­ployee, Charles Grams, worked as a driver for “almost $22 hourly, worked full time and received health and retirement benefits” for Old Dominion, starting in November 2004 out of its Fort Smith, Ark., terminal.

EEOC’s lawsuit said that Grams told his Old Dominion supervisor in June 2009 that he had an “alcohol abuse problem.” Old Dominion “immediately suspended” Grams, the lawsuit said.

Transport Topics could not reach Grams for comment.

Grams followed Department of Transportation regulations by meeting with a “DOT-certified substance abuse professional,” EEOC said.

The specialist recommended Grams for outpatient treatment, but for economic reasons, Grams joined Alcoholics Anonymous and reported this decision to his Old Dominion supervisor, the lawsuit said.

A supervisor told Grams he would never drive again for Old Dominion, and another said he “would probably never return to driver status,” the lawsuit said.

ODFL offered Grams employment in the warehouse that would average $12 hour for about 25 hours a week, without any benefits, EEOC said. It later fired him for “job abandonment,” the lawsuit said.

“Grams is a qualified individual with a disability under ADA . . . who can perform the essential functions of a driving position,” the EEOC lawsuit contended.

“The current regulatory requirements are somewhat contradictory in that they prohibit a driver from operating if he/she has a ‘current clinical diagnosis of alcoholism,’ ” Rob Abbott, ATA’s vice president for safety policy, told TT. “However, it is widely held that alcoholism is a condition you have for life.”

Abbott added that “in contrast, DOT’s guidance says that drivers may be medically qualified if their condition has ‘stabilized.’ This places  motor carriers in a very difficult position, because the motor carrier — not the physician — is ultimately responsible for ensuring that only medically qualified drivers operate.”

“First, I do not practice personal injury law, so that I don’t know if there would be a basis to sue Old Dominion if it allowed the driver to drive again and he had an alcohol-related accident” after treatment, EEOC’s Dixon said.

“But the Department of Transportation, which regulates the trucking industry, doesn’t have a rule that prohibits a driver who has been treated for alcohol problems from ever driving again,” she said.

“You would think they would have a rule if they believed these drivers should never be returned to driving,” Dixon added.

DOT did not return telephone calls requesting comment.

“An employer has to look at any situation on a case-by-case basis,” Dixon said. “In this case, he never reported to work intoxicated, and he never had an alcohol-related accident. If the Department of Transportation said a driver with an alcohol problem could never come back, that would be different.”

Dixon said that EEOC filed the lawsuit because “Old Dominion is a large company, and its policy has the potential to affect a very large number of truck drivers, and since it’s the job of the EEOC to see that employers don’t discriminate based on disabilities, we believe they need to change their practices and look at situations on a case-by-case basis.”

Old Dominion ranks No. 18 on the Transport Topics Top 100 list of the largest U.S. and Canadian for-hire carriers. It has more than 5,700 trucks and 12,400 employees.

The EEOC said it filed the lawsuit only “after first attempting to reach a voluntary settlement.”

It said the lawsuit sought “monetary relief in the form of reinstatement to a driving position, back pay and compensatory and punitive damages, compensation for lost benefits for two drivers and an injunction against future discrimination.”