9th Circuit Court: Drug Tests Are Not Employment Discrimination - Employment Law - U.S. Ninth Circuit
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9th Circuit Court: Drug Tests Are Not Employment Discrimination

Is it considered employment discrimination, under California employment law, to require strict drug tests in the pre-employment phase?

The Ninth Circuit Court of Appeals says no, in Lopez v. Pacific Maritime Association. While strict drug screenings could possibly eliminate former drug addicts from potential employment, this doesn’t rise to the level of employment discrimination under the Americans with Disabilities Act or the California Fair Employment and Housing Act.

A noteworthy point for those who practice in areas other than California employment law (and as such, might not be wholly familiar with California employment discrimination law): under both the FEHA and the ADA, employers are prohibited from discriminating against recovering drug addicts, assuming that the recovering addicts have been successfully rehabilitated from their addiction.

But a routine drug test, the Court of Appeals said, does not automatically screen such candidates out. It doesn't have the effect of picking out only the recovering drug addicts; it essentially screens out anyone who had drugs in their system at the time of the drug test. And while these candidates may be a protected class under both of those laws, the "one-strike" rule applies to anyone who fails a drug test, whether they are addicted or merely a recreational user.

The case centered around the plaintiff, a recovering marijuana addict, who had once failed a drug test when applying for a position at the Pacific Maritime Association in Long Beach, California. The PMA had a "one-strike" test and several years later, when the plaintiff reapplied for a position, he was denied the position, despite the fact that he had recovered from his addiction.

The Ninth Circuit Court pointed to the fact that PMA adopted the "one-strike" rule for safety reasons as opposed to any discriminatory reasons. Furthermore, the court noted that the "one-strike" rule did not have a disparate impact on recovering and recovered drug addicts as the rule excluded such persons proportionately when compared to its exclusion of nonaddicts.

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