California Labor &
Employment Law Blog
Mar 8, 2011

Refusing to Hire Applicant Who Fails Drug Test Not an ADA Violation

Topics: Court Decisions, Discrimination, Harassment & Retaliation, Employee Hiring, Discipline & Termination

Many employers require new hire candidates to undergo, and (believe it or not) pass, a drug test prior to commencing employment. There has been a fair amount of litigation over employers' decisions not to hire candidates who fail drug tests. These candidates most commonly sue, claiming their drug use is tied to some sort of disability and, therefore, is "protected" under the law. Fortunately, this is one of the few areas of law where courts have generally decided the cases favorably to employers.The California Supreme Court has upheldan employer's right to refuse employment to applicants who test positive for marijuana, evenwhere the employee subsequently claims"medical" marijuana use.Last week, the famously liberal Ninth Circuit also upheld an employer's right to deny employment to an applicant whofailed a drug test, even where the applicant claimed protectionunder the Americans WithDisabilities Act (ADA).

In Lopez v. Pacific Maritime Association,the Ninth Circuit held that an employer's "one-strike" rule permanently barring employment for any applicant who fails a drug test, did not violate the ADA. The plaintiff applied to be a longshoreman in 1997. At that time, he was apparently addicted to drugs and alcohol and unsurprisingly failedthe employer's drug test, disqualifying him from employment. A few years later,Plaintiff allegedly decided to become clean and sober and re-applied for employment as a longshoremanin 2004. The employer rejected Plaintiff's application because it had a one-strike rule, wherebyapplicants who fail adrug test, even once,are permanently disqualified from employment. Plaintiff sued, claiming the employer violated the ADA by discriminating against him based on his protected status as a rehabilitated drug addict. The Court threw out the claim, holding that there was no ADAviolation. The employer's policy treated all test failures the same--whether the failure was due to a disability or mere recreational drug use. The employer did not even know of any disability or rehabiliated status at the time of the drug test or subsequent rejection of his employment application. As a result, the employer could not have discriminated against Plaintiff on this basis. The Lopez v. Pacific Maritime decision is here.

The bottom line for employers is that drug testing policiesbarring employment based ontest failures should be bright-line policies and administered as such. In the absence of such a policy, employers remain exposed to claims based on alleged disability discrimination.

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For over 25 years, CDF has distinguished itself as one of the top employment, labor and immigration firms in California, representing employers in single-plaintiff and class action lawsuits and advising employers on related legal compliance and risk avoidance. We cover the state, with five locations from Sacramento to San Diego.

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About the Editor

Robin Largent has a regular presence in California state and federal courts and has been lead defense counsel and appellate counsel for large and small California employers in litigation (and arbitration) ranging from individual discrimination and harassment claims to complex wage and hour representative and class actions. She also leads the firm’s appellate practice, having substantial experience and success handling appeals, writ petitions, and amicus briefs in both state and federal court on issues such as class certification (particularly in the wage and hour arena), manageability and due process concerns associated with class action trials, exempt/non-exempt misclassification issues, meal and rest break compliance, trade secret/unfair competition matters, and the scope of federal court jurisdiction under the Class Action Fairness Act.
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