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).