In a somewhat tortured opinion, the Ninth Circuit approved a one strike rule for drug testing of applicants to become longshore workers. In Lopez v. Pacific Maritime Association (9th Cir. Mar. 2, 2011) 636 F.3d 1197, Mr. Lopez applied to be a longshoreman in 1997, but was rejected because he failed the PMA’s mandatory drug test. By 2002, Mr. Lopez was clean and sober. In 2004 he again applied to be a longshoreman but was rejected due to the PMA’s one strike rule. Mr. Lopez sued under the California Fair Employment & Housing Act (FEHA) and the Americans with Disabilities Act (ADA), claiming he was a rehabilitated drug addict and that the one strike rule’s lifetime ban was a per se violation of these Acts. He asserted that the one strike rule invariably excluded protected individuals based on their past behavior and constituted disability discrimination.
Mr. Lopez was a protected individual – clean and sober – but with a history of drug addiction. Indeed, under the one strike rule, nothing he could do would ever make him eligible for the job he wanted to hold. Ergo, it seems like FEHA and the ADA should provide him with some protection. However, the Ninth Circuit reached and stretched to find otherwise, relying on the fact that the PMA’s rules and actions were not intended to exclude past drug addicts, but rather to ensure a safe workforce. The Court noted that PMA faces a “culture that accepted the use of drugs and alcohol in the workplace.” The Court further noted that there was no evidence “that defendant targeted or attempted to target recovered drug addicts, as distinct from recreational uses.”
The Court attempted to distinguish a 2004 Ninth Circuit case finding for the employee by noting that, in that case, perhaps the employer was motivated by discrimination against the employee, due to his past addiction, because the employee brought in a note from Alcoholics Anonymous. Hernandez v. Hughes Missile Systems Co. (9th Cir. 2004) 362 F.3d 564. The Court might have well just said it was changing its mind, and that, it was simply deciding that discriminating against someone with a history of drug abuse was acceptable.
In addition, the Ninth Circuit also rejected Mr. Lopez’s disparate impact claim in a completely disingenuous and nit-picky manner. It unfairly characterized Lopez’s expert evidence, statistical analysis and forensic affidavit as “bald assertions.” Again, let’s be real here. This particular Ninth Circuit panel simply decided that those with a history of drug abuse aren’t entitled to the protection of the anti-discrimination laws, so it came up with intellectually dishonest reasons to do so. What really occurred here is that the Court applied a dose of tough love to Mr. Lopez, demonstrating that an employee with a history of drug or alcohol abuse faces an uphill battle in the struggle for workplace inclusion.
Jody LeWitter
March 21, 2011