Can I sue my boss for preferential treatment?

My boss fired me because I had a dirty urine (positive for marijuana ) but 3 other workers had a positive test a few months ago (one of them for cocaine) and their punishment was a week of suspension, a rehab program and a random drug test for 18 months. The company’s excuse is that a few months ago the in-house manager would handle those issues privately among the guilty parties but that now, corporate handles those type of things. My issue is according to my job’s company policy anyone who is tested positive for an illegal substance is to be immediately terminated.

Asked on November 2, 2011 under Employment Labor Law, New Jersey


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

As a general matter, the law allows employers to show employees preferential treatment--to treat some better than others; to enforce the rules against some but not others--so long as that preferential treatment is not due to discrimination based on race, sex, religion, age over 40, or disability. (Under federal law; check your state's laws for additional categories that a few states choose to protect.)

Therefore, unless there is a contract to the contrary, the employer may terminate you for this infraction but not others. You say that the company's policy is to terminate anyone--it is possible that policy could constitute a contract (it depends on how and where it is stated, and what, if any limitations are placed  on it), but it's difficult to see how that would help you even if it were true: if, for example, it were  found to consitute a contract, then all enforcing it vis-a-vis you would due is mandate or require your termination--which is what happened anyway. It would not help you to enforce a mandatory termination policy.

From what you write, it would seem you would not have a cause of action, though you may wish to consult in person with an employment attorney (bring a copy of the policy) for a more definitive answer.

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