Thompson v. Borg-Warner Case Settled
Maureen P. Toner and David W. Arnold, Esq.
Reid Psychological Systems
Borg-Warner, the nation’s largest security firm, recently settled
a lawsuit regarding its use of a preemployment test for $2.1 million. In 1994, the
American Civil Liberties Union filed a class action suit against Borg-Warner Protection
Services, alleging that the defendant’s subsidiary, Burns International Security
Services, had violated the Americans with Disabilities Act (ADA) and the California Labor
Code (CLC), when it declined to hire plaintiffs such as Mel Craig Thompson as a result of
a preemployment test, the PASS-III D.A.T.A Survey (PASS-III).
The Court, when asked in a pretrial motion to grant summary judgment
for these claims, granted summary judgment to the defendant with regard to the ADA claims.
In the opinion of the Court, the test had not violated the ADA for two reasons. First, the
test was not considered a preemployment medical examination as defined by the Equal
Employment Opportunity Commission (EEOC). Further, the test had also not violated the ADA
because it had not inquired about past drug or alcohol addiction. The Court noted that
preoffer inquiries about current unlawful drug use, past casual use, and the use of
alcohol, short of alcoholism, are permitted under the ADA.
However, the Court denied summary judgment for the claim that the test
violated the CLC prohibiting discrimination on the basis of political views or
affiliations. In the Court’s opinion, the issue of whether questions designed to
reveal attitudes towards illegal drug use could be interpreted as political barometers
should be decided in court. Questions such as these:
- The government has no right to interfere with a person who chooses to use drugs if it
doesn’t hurt anyone.
- The police and courts are lenient on drug users.
- The drinking age should be lowered.
- Marijuana should be legalized.
The plaintiffs argued that applicants who tend to exhibit lenient
attitudes toward drug use (and other politically charged topics) also tend to hold more
liberal political beliefs, and that a question regarding the legalization of marijuana was
particularly politically charged in the state of California.
According to the lawyers for the plaintiffs, the settlement would cover
the approximately 8,000 applicants who were administered the PASS-III between 1991 and
1995, at which time Burns Security discontinued its use as a preemployment screening tool.
Those who were denied employment as a result of the test would receive $1,259.00, while
applicants who took the test and were hired would receive $500.00. According to the San
Francisco Chronicle, Borg-Warner issued a statement: "We denied all
liability...and our decision to settle was based on business and economic reasons."
The Court still must approve the settlement, which is expected later this summer.
TIP
Vol. 36/No. 2 October, 1998
Return to Table of Contents