Ninth Circuit Issues Published Pro-Employer Ruling in Recovered Addict Disability Discrimination Case

By: Jason C. Ross, HFM Labor & Employment Associate

California and Federal anti-discrimination laws generally preclude qualified employers from discriminating against employees “because of” protected attributes and classes, including certain disabilities. One protected disability under both California and Federal employment law is rehabilitated drug addicts.

In a recent California case, the federal Ninth Circuit Court of Appeals considered the legality of an employer policy forever disqualifying job applicants from employment if they ever failed the employer’s pre-employment drug screen. (Lopez v. Pacific Maritime Assoc. (9th Cir. 2011) 636 F.3d 1197.) In that case, the employer had a uniform “one-strike” policy forever eliminating from consideration any job applicant failing the pre-employment drug test (administered with seven (7) days advance notice). The plaintiff applied to employer in 1997 at a time he suffered from drug and alcohol addiction, but failed the drug screen. Employer disqualified plaintiff under their one-strike policy. Later, in 2004, after getting clean, the plaintiff again applied for a job with employer. However, employer rejected his 2004 candidacy under its one-strike rule because of his failed 1997 drug test. At the time employer rejected plaintiff, employer was not aware of his prior addiction. Plaintiff then sued under Federal and California law alleging the one-strike policy discriminated against him as a rehabilitated drug addict, claiming the policy disproportionately impacted former addicts even when neutrally applied (disparate impact) and also purposefully discriminated against former drug addicts (disparate treatment).

The Ninth Circuit rejected plaintiff’s positions and upheld the employer’s policy. The Lopez court first held the one-strike rule did not intentionally discriminate against former drug addicts by specifically targeting that protected class for exclusion. Instead, the policy neutrally eliminated all job applicants failing the drug screen regardless of the reason for that failure (i.e., whether failure was due to recreational drug use close-in-time to the test or an actual addiction). Moreover, the policy was adopted to enhance worker safety by eliminating drugs from the workplace, which the court recognized was a legitimate, non-discriminatory justification for the rule, thereby defeating plaintiff’s claims to illegality. The policy was also held not to have a disparate impact on recovered addicts as a group because the plaintiff failed to show that the policy actually resulted in the employer turning away more qualified recovered addicts than it hired.

For employers, the case is a strong vindication of employer policies keeping drugs out of the workplace. It furthers an employer’s ability to defend discrimination claims by pointing to a drug-free workplace as a legitimate, non-discriminatory business justification for a facially neutral policy. However, a word of caution for employers, as the case may not stretch as far as thought at first blush. Although state and federal law have been steadfast in upholding employer drug policies, that sentiment is not applied even handedly across all industries and occupations. Instead, the courts afford more leniency to employer policies restricting drug use for safety sensitive positions. In the Lopez case, the relevant position was a longshoreman, and the court noted the significant safety issues implicated in that industry/job and the history of serious accidents and injuries (sometimes attributed to substance abuse in the workplace). These safety concerns were a significant factor in the court recognizing the employer’s legitimate business justification for the one-strike rule. In cases where occupational safety is not really an issue, an employer may have more difficulty justifying its policy.

Nonetheless, the ruling is also strongly pro-employer in disability discrimination cases specifically involving the “recovered addict” protection. The court’s ruling makes it very difficult for an employee to prove disparate impact when the recovered addict class is involved, because it requires the plaintiff to show the number of recovered addicts both in the employer’s workforce and out there in the overall labor market. However, California privacy laws forbid a party from inquiring into a person’s prior drug use/abuse. Given that serious impediment, a plaintiff will have great difficulty proving his case, as even the Lopez court recognized (even as it simultaneously rejected plaintiff’s case). Thus, a plaintiff faces a very steep uphill battle in these types of cases, and the ruling is very pro-employer in that regard.

The case also demonstrates the importance of accurately identifying the proper scope of the “protected group” in defending a disparate impact case. A disparate impact case requires a plaintiff to show the challenged policy in question disproportionately affects the protected group (whatever the disability). In this instance, this would be done by comparing the number of qualified recovered addicts hired by the employer with the number of qualified recovered addicts in the longshoreman labor market. In Lopez however, the plaintiff and its expert failed to meet that showing because it tried to narrowly (and mistakenly) define one side of the comparative equation as recovered addict applicants rejected by employer for failing their drug screen instead of recovered addicts actually hired by employer. Thus, plaintiff’s disparate impact theory failed to show, as required, that more recovered addicts were turned away than hired. It left the court with no ability to assess the main question: whether the one-strike policy meant the percentage of recovered addicts actually existing in employer’s workforce did not roughly match the percentage of recovered addicts in the overall longshoreman labor market.

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