Employment: Lifetime ban on employing a former drug addict after he fails a drug test does not violate any disability discrimination laws

A divided 9th U.S. Circuit Court of Appeals has ruled that a company can impose a lifetime ban on employing a former drug addict after he fails a drug test and such actions do not violate any disability discrimination laws.  

The Defendant, a collective bargaining agent and payroll administrator of certain employers, had the responsibility of enforcing the policies that govern the hiring of longshore workers who work along the west coast. One of those policies is a “one-strike rule,” which eliminates from consideration any applicant who tests positive for drug or alcohol use during the pre-employment screening process. As part of the Defendant’s protocols it provides prospective applicants with at least seven days advance notice that it will be administering a drug test. Failing the drug test, even once, disqualifies an applicant permanently from any future employment for any employer the Defendant represents.

The Plaintiff first applied to work as a longshoreman in 1997, a time when the Plaintiff suffered from an addiction to drugs and alcohol, and as a result Plaintiff tested positive for marijuana. Defendant therefore disqualified Plaintiff from further consideration under the one-strike rule.

In 2004, after Plaintiff became clean and sober, he reapplied to be a longshoreman, but because of the one-strike rule, Defendant rejected Plaintiff’s application.

 The Plaintiff then filed a lawsuit against the Defendant, claiming that Defendant violated the ADA and the FEHA by discriminating against him on the basis of his protected status as a rehabilitated drug addict (42 U.S.C. §§ 12112(a), 12114(b)(1), expressly protects from employment discrimination any person who has been rehabilitated successfully and is no longer engaging in illegal drug use.

The Court rejected Plaintiff’s challenge to the Defendant’s “one strike” rule, stating that although they recognize that the one-strike rule may impose a harsh penalty on applicants who test positive for drug use, there was nothing about the rule’s history that would suggest Defendant adopted it for a discriminatory purpose.  In short, the Court concluded that because the Plaintiff was not barred from employment because of the fact that he was a recovering addict but because he had previously failed a drug test, the “one-strike” rule did not vioate the applicable discrimination laws, and that while Defendant’s “one strike “ rule may be somewhat unreasonable, unreasonable rules do not necessarily violate the ADA or the FEHA.  Read the Court’s Opinion

Contact the long island employment attorneys at Bashian & Papantoniou for labor disputes and other employment disputes.

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