Ninth Circuit Re-Affirms March 2011 Decision Holding Employer’s Rule Against Hiring Job Applicants Who Have Previously Tested Positive for Drug or Alcohol Use Does Not Violate ADA or FEHA

In Lopez v. Pacific Maritime Association, __ F.3d __ (9th Cir. 2011), the Ninth Circuit U.S. Court of Appeals approved an employer’s rule against hiring job applicants who have previously tested positive for drug and alcohol use.  The court’s initial ruling was released in March 2011, but on September 21, 2011, the court denied the job applicant’s petitions for rehearing.

The employer has a policy whereby any applicant who tests positive for drug and alcohol use during the pre-employment screening process may not ever again apply for a position.  The applicant originally applied for a position with the employer in 1997 but was rejected after testing positive for marijuana despite having seven days notice of the pre-employment drug test.  Under the employer’s “one-strike rule,” the applicant was rejected again when he re-applied in 2004 after allegedly kicking his drug habit.

The applicant sued alleging violation of the Fair Employment and Housing Act (FEHA) and the Americans with Disabilities Act (ADA).  The District court granted summary judgment for the employer and the job applicant appealed.

The Ninth Circuit panel recognized that the employer’s “one-strike rule imposes a harsh penalty on applicants who test positive for drug use,” but found “unreasonable rules do not necessarily violate the ADA or the FEHA.”  The court found no facial discrimination because rehabilitated drug addicts could pass the pre-employment drug test just as non-addicts could, and noted the employer’s history of drug-and alcohol related accidents presented a non-discriminatory reason for establishing the one-strike rule.

The court affirmed summary judgment because the applicant could not establish that the employer “intentionally discriminated against him on the basis of his protected status or that the one-strike rule disparately affects drug addicts.”

Go here for a link to the court’s decision.

Labor & Employment Advisory: Based on this Ninth Circuit case, it appears that a "one-strike rule" for applicants who test positive on a pre-employment screening for drug or alcohol use is permissible, at a minimum, in work situations where an employer has had a history of drug or alcohol related accidents.