The New Jersey Superior Court – Appellate Division recently held that summary judgment was inappropriate on a former employee’s disability discrimination claim because there was direct evidence of discrimination and it was undisputed the employee was not terminated due to poor job performance.

ExxonMobil hired the employee, identified as ADP, in 1978. During the course of her employment, ADP performed well, received several promotions, and was never the subject of disciplinary action.

In 2007, ADP voluntarily disclosed that she was an alcoholic. She enrolled herself in an inpatient rehabilitation program and participated in an outpatient treatment program upon her release. When she returned to work, ADP was required to sign an after-care contract, which stated that she would totally abstain from the use of alcohol. She was required to “maintain acceptable work performance” and was subject to random alcohol testing.

ADP passed nine random breathalyzer tests between October 29, 2007 and August 20, 2008. On August 22, 2008, she was given two breathalyzer tests. Both tests showed that she had alcohol in her system. As a result, ExxonMobil discharged ADP. She sued ExxonMobil alleging disability discrimination and wrongful termination under the New Jersey Law Against Discrimination.

Although the lower court granted ExxonMobil’s summary judgment motion, the Appellate Division reversed. The Court held that subjecting ADP to random alcohol testing merely because she disclosed she was an alcoholic was direct evidence of disability discrimination. As such, the employer had to prove that it would have terminated ADP irrespective of the failed breathalyzer test. The Appellate Division found that ExxonMobil could not meet this burden because there was no evidence that ADP’s termination was the result of poor job performance.

Instead, ExxonMobil argued that its drug and alcohol policy was reasonable. The Appellate Division said that the reasonableness of the policy “must be measured within the context of the specific employee’s job performance.” Viewing the evidence in a light most favorable to ADP, the Court found that job performance played no role in ExxonMobil’s decision.

In pertinent part, the policy permitted termination of an employee if they were “unfit for work because of use of drugs or alcohol.” While the Court acknowledged that this policy was reasonable, it held that this was not the standard applied to ADP. As ExxonMobil admitted, ADP was never unfit for work because of her use of alcohol.

This case demonstrates the importance of drafting a non-discriminatory drug and alcohol policy and applying the policy in a non-discriminatory manner.