DRUG TESTING RULED UNLAWFUL

TD Bank policy discriminatory, top court says in 2-1 vote

OTTAWA (CP) - A drug-testing policy implemented by the Toronto Dominion
Bank to screen new hires is discriminatory, the Federal Court of Appeal has
ruled.

In the 2-1 decision, the court ruled the policy violates the Canadian Human
Rights Act because it could discriminate against certain employees and
because it isn't sufficiently related to job performance.

The act prohibits discrimination on the basis of disability and defines
disability to include those with a previous or existing dependence on a
drug.

``A finding of a trace amount of drugs in one's system does not mean that
the employee is unproductive or about to engage in a work-related crime,''
Justice J. A. McDonald wrote for the majority.

He ruled that the test had the potential to discriminate against employees
and was not sufficiently related to performance on the job.

TD Bank received a copy of the 95-page judgment late Thursday, said
spokesperson Kym Robertson.

``We're reviewing the decision and considering what our next step will
be,'' she said, adding that, in light of the decision, the bank has
suspended its drug-testing policy indef-initely.

In 1990, the bank mandated that new or returning hires would have to
undergo one-time testing for illegal drugs.

``It was always based on the principle that we're a bank and we handle
people's money,'' Robertson said. ``We feel there is a trust implicit in
that.''

Job offers were not rescinded for those who tested positive, she said. But
the individuals would be required to take part in counselling.

The bank does not keep statistics on how many drug tests have come back
positive because the tests are confidential. ``We've had no negative
reaction from employees on this policy,'' Robertson said.

TD Bank has 60 days to decide whether to appeal the decision to the Supreme
Court of Canada, she said.

John Hucker, secretary-general of the Canadian Human Rights Commission,
which had pressed the case through the courts, welcomed the decision.
``There is little evidence that drugs are a problem in the banking
sector.''

A commission statement quoted Hucker as adding that``drug testing will not
necessarily tell an employer very much about actual job performance.''

The Canadian Civil Liberties Association launched a complaint against the
policy with the human rights commission.

With files from Reuters and The Star's Madhavi Acharya

Checked-by: (Joel W. Johnson)