Fighting that Well-Known Irrational Prejudice Against Drunkards

by Don Boudreaux on September 6, 2011

in Hubris and humility, Not from the Onion, Reality Is Not Optional, Regulation

From this August 16, 2011, press release by the Equal Employment Opportunity Commission (HT Reuvain Borchardt):

Old Dominion Freight Line, Inc., a  trucking company with a service center in Fort Smith, Ark., violated federal  law by discriminating against at least one truck driver because of  self-reported alcohol abuse, the U.S. Equal Employment Opportunity Commission  (EEOC) charged in a lawsuit filed today. The company should have met its legal  obligation to comply with the Americans with Disabilities Act while assuring  safety, rather than permanently sidelining self-reporting drivers, the EEOC  contended.

An argument can be made that if a private trucking firm (or taxi firm, or tugboat firm, or airline, or any private firm that hires people to drive or pilot vehicles) fires drivers or pilots who self-report their alcohol problems, alcoholic drivers and pilots will have less incentive to self-report.  One consequence, then, might be that the roads, air, and waterways will be filled with more drunken drivers and pilots.

On the other hand, having self-confessed alcoholics driving or piloting vehicles creates obvious problems.

Are these problems appropriately minimized by not firing self-reporting alcoholics and, instead, putting them on leave or giving them a desk job?  Perhaps.  But perhaps not.  Perhaps knowledge that firing isn’t in the cards – while making employees more likely than otherwise to report substance-abuse problems – makes employees less likely to avoid substance abuse in the first place.  The trade-offs here are numerous and nuanced.

Surely each firm has appropriate incentives to try to strike the right trade-offs.  If a private firm fires an alcoholic truck driver, and then government bureaucrats – some all aflame with self-appointed missions to inflict their own brand of “justice” on the world, and others tempted by the additional litigation experience that such actions add to their resumes – take legal action against the firm for doing so, the likely consequence is that more trucks, planes, and boats will, in the future, be driven and piloted by drunkards and other substance abusers.

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{ 32 comments }

mdb September 6, 2011 at 12:46 pm

What if the employee tested positive during a random drug screening? I fail to see a distinction between this and drug screening for employment or firing. I can see this decision leading to more drug testing of everyone.

Peter September 7, 2011 at 6:30 pm

At least in the military (or at least when I was a member of it) there was a huge a difference. Self-reporting couldn’t technically lead to disciplinary action (unofficial reality was different) whereas failing a random piss test could. Basically the joke was if you knew there was going to be a *random* piss test that afternoon go self-report to the clinic that morning.

Chucklehead September 6, 2011 at 1:02 pm

By qualifying substance abuse as a disease, the government is making companies responsible for employees actions, even when they are not working.
A possible course of action is for Old Dominion to install breathalyzers which must be blown into every hour to keep a engine running. Take daily hair and blood samples to check for other substances. This ongoing cost would be a drain on Old Dominion, be a barrier to entry for other smaller firms, but not effect independent owner operators. It would also benefit rail transport and other alternatives.
Krugman would say it is stimulative. As foolish as this EEOC policy is, imagine if the Government mandated a solution rather than allow companies to create their own method of complying with the mandate.
Whatever they do, you can bet they will be sued on infringing on a employees privacy, which will result in 50 different state standards.

Methinks1776 September 6, 2011 at 1:45 pm

Yes. No regime uncertainty at all.

So, if a cop arrests a drug addict buying dope, the government can throw that guy in jail. If a cop discovers the drunk barreling down the road while high, the government can throw him in jail. After all, the government insists these people are menace to society (and in the case of drunk driving, I agree).

If the company (which is liable for the actions of its employees and can be sued by the victims of its alcoholic work force) discovers the addict driving while soused, it must treat him like an invalid at its expense and continue to allow him to endanger the public and the company they work for.

Huh. That’s just the kind of cost imposition that’s a big job creator. I hope Il Duce gives plenty of air time to such government job creating initiatives when he speechifies the peasants this week.

Economiser September 6, 2011 at 2:17 pm

By even discussing “job creation,” you’re addressing the issue on their terms. Jobs are easy for the government to create. Any number of regulations can make work. Productive jobs are very difficult, if not impossible, for the government to create.

We should stop discussing job creation and start discussing better measurements, such as wealth creation.

Methinks1776 September 6, 2011 at 3:27 pm

Ah, yes. Note that I’m addressing the hair pulling over the lack of job creation in the private sector. The government can certainly limit the number of jobs the private sector would naturally create by frustrating every effort to create wealth. A task the government has executed with breathtaking efficiency.

Building things is difficult. Destruction is so simple, even a politician can do it.

SweetLiberty September 6, 2011 at 3:41 pm

How about sustainable prosperity as a term?.

PrometheeFeu September 6, 2011 at 2:08 pm

@Don:
It appears that the complaint specifies that the driver was told he would not be allowed his driving job back even if he completed a treatment program successfully. So unless relapse rates are particularly high, it does not seem particularly beneficial to keep that man away from a truck after being successfully treated. I would recommend the company re-evaluate their policy. Confessing to your employer such a thing as alcoholism takes guts and honesty. That’s the sort of person I would want working for me. Also, I would recommend establishing a strict monitoring/testing program and immediately firing anyone who is discovered to drink and drive in order to push people to self-report.

Either way, the EEOC action is completely inappropriate. While I would consider the policy of that company sub-optimal, using force to coerce them is unacceptable.

Economiser September 6, 2011 at 2:20 pm

Such problems are best solved by competing truck companies. If you’re right, Old Dominion will gradually lose market share to its forward-thinking competitors. The EEOC should have nothing to do with it.

PrometheeFeu September 6, 2011 at 2:31 pm

I agree that the EEOC should have nothing to do with it. However, if the difference in productivity is small enough, it could be overshadowed by other differences in firms leading to a sub-optimal situation.

kurlos September 6, 2011 at 2:33 pm

Isn’t blindness also a disability?

PrometheeFeu September 6, 2011 at 2:40 pm

There are provisions that if your disability in and of itself prevents you from accomplishing the job, you can be discriminated against for that job. So yes you can discriminate against blind people when it comes to driving jobs.

kebko September 6, 2011 at 2:54 pm

…..but not alcoholics driving semi-trucks.

Methinks1776 September 6, 2011 at 3:04 pm

Of course not. When I get drunk I don’t go blind! I see double. So, see, my vision is TWICE as good. Obviously firing me from navigating a multi-ton missile down the motorway your kids use to come home from school would be pure discrimination.

Economic Freedom September 6, 2011 at 8:05 pm

Of course not. When I get drunk I don’t go blind! I see double. So, see, my vision is TWICE as good.

I defer to you, O Lord High Executioner!

Awesome reply!

PrometheeFeu September 6, 2011 at 3:04 pm

Read the press-release. The complaint is specifically that even if the (now-ex-)driver successfully completes a treatment program, that company will still not let him drive again. So you can ban drunks from driving trucks. What the EEOC is saying is that you cannot ban ex-drunks from driving trucks.

Methinks1776 September 6, 2011 at 3:18 pm

Because, as we all know, once people complete rehab, they are permanently cured! Nothing to worry about because relapses are not only not common but they are unheard of.

Come on. It’s not up to the EEOC to decide whether the owner of the truck and the one who is liable for the the employee’s behaviour should continue to employ the drunk. Imposing its will on owners of private property is a pretty big erosion of private property rights.

Economiser September 6, 2011 at 3:23 pm

I had no idea that Old Dominion Freight Line, Inc. had the ability to ban entire classes of people from driving trucks. What a powerful organization!

PrometheeFeu September 6, 2011 at 3:32 pm

@Methinks1776:

As I pointed out above, I do not agree with the EEOC getting involved and I also specified that while I thought that policy was a bad idea on the part of Old Dominion, that belief was conditioned on the relapse rate of people who successfully complete such treatment programs.

@Economiser:

My apologies, I used imprecise language. I was of course referring to Old Dominion’s policy to not use drivers who were once alcoholics while they were Old Dominion’s employees.

kurlos September 6, 2011 at 3:37 pm

The American Psychiatric Association defines alcohol dependence as a “chronic, relapsing disease”.

Richard Stands September 7, 2011 at 12:21 am

There probably would have been less controversy if the driver had confessed to drinking wood alcohol.

anomdebus September 6, 2011 at 3:25 pm

NB: I am not trying to characterize the whole issue.

Should the driver be involved in an accident and it is found that alcohol played a part, the company would be more exposed to liability if they knew of the alcohol problem beforehand.

Chris O'Leary September 6, 2011 at 3:29 pm

Hasn’t Europe taught us that the harder you make it to fire people, the more reluctant companies are to hire people?

polypolitical September 6, 2011 at 4:17 pm

@PromeTheeFeu It appears that the relapse rate for alcoholics after treatment is between 19% and 48% in the FIRST YEAR after treatment (this is, I will admit, based on a very quick search online. source: http://alcalc.oxfordjournals.org/content/42/2/108.full) to me, as an employer of someone entrusted with a vehicle operating at 80,000 lbs on a highway, would make me very concerned about allowing an alcoholic to ever operate a vehicle again for me. The liability that an employer would face would appear to be huge. I don’t think this company policy is terrible. Notice that they apparently didn’t fire him? Just reassigned him to a non-driving job?

PrometheeFeu September 6, 2011 at 5:08 pm

That’s pretty convincing evidence. One could take an alternative route though. You could offer the driver the option to submit for a certain period of time to frequent alcohol tests at his own expense. I believe a company sells a small breathalyzer which contains a camera and a timer. When you take the test, it takes a picture of your face and time-stamps it. You could tell the driver that for a period of a year (or however long is necessary to make the relapse rate drop to some acceptable level) he must while on the job every X hours use such a device to test himself. Failing the test or failure to use the device would result in immediate termination.

TeeJaw September 6, 2011 at 4:47 pm

I have a simple solution. Universal employment at will. Absent an express and voluntary contract, no one has a right to a job, and no employer has a duty to employ anyone past that point in time when he [or she], for whatever reason, decides it is no longer in his [her] interest.

I would also repeal all anti-discrimination laws because no employer who discriminates on the basis of race will remain in business for long. That’s a better control on behavior than any law.

I think my solution would lead to a happier and more productive workplace, and free up a lot of lawyers, judges and juries for more productive work as well. It would also nearly eliminate drunk driving in commercial vehicles, which is already rare. At any rate, an employer needs to be able to get rid of an alcoholic or dope addict as soon as possible. Sorry, if they can’t help it. The rest of us can’t help wanting to be safe.

PrometheeFeu September 6, 2011 at 5:14 pm

You forgot the part where the employee can also terminate at will or the part where the employer and employee could contract termination conditions.

“I would also repeal all anti-discrimination laws because no employer who discriminates on the basis of race will remain in business for long. That’s a better control on behavior than any law.”

Have you perhaps considered that while there are market pressures that fight against discrimination, the fact that a firm’s success is dependent upon hundreds of factors it is definitely possible to discriminate and stay in business? Or let’s just make it simpler: Some successful firms are been successfully sued for racial discrimination. So while I agree that racial discrimination should not be illegal, you got your facts wrong. You can discriminate and be successful.

Jon Biggar September 6, 2011 at 7:42 pm

These are the same type of folk who will rush to sue the company into oblivion once one of those “self-reported” alcoholic drivers has a subsequent accident while under the influence, regardless of their insistance that the driver had a right not to be preemptively fired.

jorod September 6, 2011 at 7:43 pm

Give all the drug abusers heavy machinery to operate. That makes a lot of sense.

Jim September 7, 2011 at 8:14 am

Here is a very simple rule for all folks who are not self-employed.

NEVER self-confess alcohol or drug dependency or any personal weakness. Never use a company provided psychological or psychiatric service; they MAY not know the details of your interaction, but they could track your attendance. Don’t even get drunk at the company Christmas party.

Use this thinking as your guide: Whatever personal action that will not get you promoted, may get you fired.

The rule becomes even more strict as bureaucracy grows larger. Committees think of all kinds of reasons to imperil your career. And large HR departments should be viewed as schzophrenic gatekeepers, not enablers. There are no exceptions; like politics, regimes change but records are permanent. Guard your personnel file in a large institution with the zealousness of your personal diary. Consider that you are flirting with a department with the comportment of the secret police.

It is undoubtedly the number one reason there are so many anonymous contributors on the Internet, even when they are considerate.

Pierre Honeyman September 7, 2011 at 12:59 pm

Old Dominion had a huge incentive to not allow the driver to return to driving even upon successful completion of a rehab program: liability. *IF* the driver had relapsed and driven drunk, and then had an accident, Old Dominion would be in a spot. Old Dominion knew the driver had a drinking problem, because he told them he did. It’s a trivial argument, what with all the AA propaganda around, to argue, perhaps convincingly, that Old Dominion should have known that there is no such thing as an ex-alcoholic. If you’re Old Dominion thinking about the possibility of not only a multi-million dollar lawsuit, but also about the possibility of huge losses to reputation, do you take that risk? In their case they decided not to, and the EEOC is deciding they must. If this driver drinks and causes an accident is the EEOC liable for damages? No, they are not. Pretty easy decision for them.

Pierre

airbusplt September 7, 2011 at 10:03 pm

For what its worth…at the airline where I work, we have a program where pilots can self report a drinking problem. They go through extensive treatment, and submit to intense monitoring. For most pilots, the program works real well. They keep their job, and the company keeps a valuable human resourse. Without the program, the folks who have drinking problems would work harder to hide their addiction, and drive the problem under ground.

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