In a surprising decision, the U.S. Ninth Circuit Court of Appeals approved an employer’s policy of permanently refusing employment to anyone who tested positive for drugs when applying for a job with that employer. An applicant for a longshore job was addicted to drugs and alcohol when he tested positive for marijuana in 1997. He later went through rehabilitation, got clean, and reapplied in 2004, but was rejected because of the employer’s “one-strike rule.”
He sued, saying the policy discriminated against him under the Americans with Disabilities Act (ADA) because of his past drug addiction, and that it had a disparate impact on all recovered drug addicts. The court disagreed, because the policy affected both casual users and addicts, and because the applicant didn’t produce statistical evidence showing that the policy resulted in a lower percentage of recovered drug addicts in the workforce compared to the relevant labor pool (Lopez v. Pacific Maritime Assoc., 9th Cir, Mar. 2011).
Tips: The Ninth Circuit previously ruled in favor of an employee who was terminated for a positive drug test, and was later refused employment when he reapplied and enclosed a letter from his pastor and his Alcoholics Anonymous sponsor confirming his sobriety. The company claimed it had an unwritten policy against rehiring terminated employees, but the court sent the case back down for a jury to decide whether the real reason was his record of a disability (Hernandez v. Hughes Missile Systems, 9th Cir, Mar. 2004). If you are considering establishing a lifetime ban for applicants or employees who test positive for drugs, make sure you do so for legitimate reasons (e.g., safety or efficiency), document and communicate the policy before testing, and enforce the policy consistently.