CAN FIRMS ACT RIGHT AND STILL BE LEGAL

A U.S. Equal Employment Opportunity Commission (EEOC) lawsuit against Exxon Corp. raises troubling questions about law and management in the 1990s. It highlights a conflict between corporate legal interests and individual fair play.

EEOC's suit challenges Exxon's demotion of two workers last year under retroactive provisions of the company's policy on drug and alcohol abuse. The action emerges from the hazy margins of EEOC's jurisdiction and the Americans with Disabilities Act (ADA). It makes no allegation that Exxon discriminated on the basis of race, religion, or sex, the usual equal-opportunity flashpoints. And while chemical dependency is a disability under ADA and other laws, it is not of the same order as a crippling injury or birth defect.

EEOC thus can't escape suspicion that it's stretching to make a case. A larger question, however, is whether Exxon's action was technically legal but nonetheless wrong.

SUPREME IRONY

The company's sensitivity about substance abuse is understandable. Alcoholism and alleged drunkenness were central to legal battles over the 1989 Exxon Valdez oil spill off Alaska. It is supremely ironic that Exxon now faces complaints that its stance on substance abuse is too strict. Yet that position has punished individuals who, by all accounts so far, did not misbehave. Even if Exxon's policies are legal, they have hurt apparently innocent people.

According to EEOC's lawsuit, both workers demoted by Exxon had histories of substance abuse. Both had undergone treatment for their problems before they went to work for Exxon, and both had worked successfully for the company for a number of years. When Exxon adopted a tough substance-abuse policy that excluded anyone with a hi tory of alcohol or drug abuse from certain jobs, both men received exemptions. What triggered the demotions and EEOC action was a decision to apply the substance-abuse policy without exception.

At an institutional level, the no-exception decision makes sense. It applies a rigorous policy across the board: No one with any history of substance abuse will hold certain jobs. Period. The rigid stance looks evenhanded. It makes safety the priority. It exudes legal caution that comes naturally to a company held liable for $5 billion in punitive damages from an accident in which no one suffered physical injury.

It nevertheless stomps on at least two individuals. If Exxon has reasons for the demotions other than a toughening of official mind, it makes no mention of them in the prepared statement with which it responds to questions about the case. The company thus demoted the two workers not for something they did while in its employ but because of something it felt compelled to do, apparently for legal reasons. Can that be fair?

In the era of the layoff and pay cut, these things happen. But they shouldn't. Injustice is injustice, even when it's legal.

There must be a way to distinguish between people who have dealt with problems and moved on and those whose problems compromise current performance. If the modern legal environment doesn't mike room for distinctions like this, laws need to be changed.

MANAGERIAL PERSPECTIVES

But the problem isn't just the law. Exxon's heavy-handedness has a familiar ring. Modern managerial perspectives need work, too-and not just at Exxon. The first objective is maximum profit, not minimum legal exposure. Profitable operation still requires the efforts of skilled people performing at their best. People who feel they must increasingly yield personal interest to institutional legal precaution just don't work that Way.