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Publication

March 15, 2011Client Alert

“One-Strike-And-You’re-Out” Drug Testing Rule Deemed Lawful by U.S. Court of Appeals

The Ninth Circuit Court of Appeals recently ruled that a “one-strike-and-you’re-out” rule imposing a lifetime hiring ban on individuals who test positive for drug use does not run afoul of the Americans with Disabilities Act (“ADA”).  Even if such a rule is unreasonable, the Court concluded, it does not violate the ADA.

 

The Pacific Maritime Association (the “Association”), whose members are west coast cargo carriers, terminal operators and stevedores in the longshore industry, had been sued by a job applicant who had alleged that the Association had intentionally discriminated against him based upon his status as a former drug addict, protected by the ADA and California’s Fair Employment and Housing Act.  He had tested positive for marijuana in 1997, completed rehabilitation from addiction to alcohol and other drugs in 2002 and reapplied for a longshoreman job with one of the Association’s members.

 

The Court found that the Association’s rule adversely affected individuals who at one time failed a drug test, not necessarily recovering or recovered addicts.  The Court then held that the ADA and the California statute “protect people who are recovering or who have recovered from a drug addiction; they do not protect people who are using illegal drugs when they apply for a job.” 

 

The Association and the Longshoremen’s Union had negotiated the rule after a series of serious accidents and fatalities in part attributed to a work culture that accepted the illegal use of drugs and the use of alcohol by workers on the job, according to the Court.  Nothing in the history of the rule led the Court to find that the Association had adopted the rule with a discriminatory purpose.

 

The Court also held the rule did not disparately impact recovering or recovered drug addicts, as compared with other individuals in the labor market without a history of addiction and rehabilitation or recovery.

 

The Ninth Circuit’s decision is significant in that, at least in a safety-sensitive industry like that of longshoring, the Court has recognized that an employer has the right not to assume the risk that someone who once tested positive for employment-related illegal drug use will use again on the job and pose a hazard to himself/herself, other employees or the public.  The decision, however, also recognizes a fine and fuzzy line between lawful rules that discriminate based upon positive drug test results and unlawful rules that discriminate based upon a history of drug addiction.  It is not clear that other courts will find that “one-strike-and-you’re-out” rules do not disparately impact the protected class of individuals who are recovered or recovering addicts.  Employers, therefore, should not jump quickly to adopting such rules without understanding the continuing risk of doing so under the ADA and state disability discrimination laws.

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