Ask the ExpertCategory: QuestionsSubstance testing in Violence and Harassment cases
hri_Admin Staff asked 3 years ago

Hello,
I have been asked if it is legal or appropriate to substance test both the accuser and accused in a harassment or violence-related case? If it is, is it legal or appropriate to use those results to determine the level of severity of the incident? I guess I’m being asked if there are examples of cases where it was determined that the accuser had ‘thin skin’ due to being hung over or otherwise under the influence and the case was not determined to be a valid claim.  

2 Answers
Glenn Demby Staff answered 3 years ago

With all due respect, I think this is a bad idea.
I don’t think I’ve ever seen a case where an employer attempted to require drug testing for violence or harassment. And I’d be surprised if such a case even exists. After all, the employer’s duty is to encourage employees to come forward and support them when they do. Making an employee submit to testing after making an accusation has precisely the opposite impact and may be seen as a form of reprisal or retaliation. And think of the optics. “Oh, you say you  were sexually harassed. Would you mind taking a substance abuse test.”
And even if testing were warranted, the test results would yield little to no relevant information. Being impaired neither proves nor excuses acts of violence or harassment. And I can’t see any possible value of testing the accuser–other than to possibly impugn his/her account of the incident. But that’s a remote connection and certainly not one that justifies the imposition of testing.
I don’t think I’ve ever seen a case where an employer attempted to require drug testing for violence or harassment, but I’ll keep my eyes open for one.
Hope that helps. Glenn

Dan Sinclaire replied 3 years ago

I agree. The ‘blame the victim’ tone is not conducive to reporting. I answered my employer in kind but was directed to do some research anyways. I appreciate your feedback.

Glenn Demby Staff answered 3 years ago

FWIW, I did some research myself and couldn’t find anything in the way of cases. If you do unearth something, can u let me know right away? You can also reach me directly at glennd@bongarde.com