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Strike One, You're Out! Score One For Employers in the Ninth Circuit

Volume 10, Issue 3
March 14, 2011

On March 2, 2011, the Ninth Circuit Court of Appeals held that a rule permanently barring employment to applicants who once fail a pre-employment drug test did not violate the Americans With Disabilities Act's prohibition on discrimination against recovering and recovered drug addicts.

The Pacific Maritime Association (PMA), which represents shipping lines, terminal operators and other companies that run ports, also enforces hiring policies for longshoremen. PMA has a "one-strike rule," pursuant to which an applicant who tests positive on its pre-employment drug test is permanently barred from employment. One applicant, while addicted to drugs and alcohol, tested positive for marijuana in 1997 and was denied employment. After cleaning up and becoming sober, he reapplied again in 2004, but was barred from employment due to the one-strike rule. He sued PMA, alleging the one-strike rule violated the ADA because it discriminated against recovering and recovered drug addicts, protected classes under the ADA. The Ninth Circuit Court, which governs federal courts in Nevada, rejected his lawsuit, finding:

  • The one-strike rule did not facially discriminate against recovering and recovered drug addicts. The rule barred all job applicants who tested positive, whether they were current users or recovered. The court noted that recovered addicts who are able to pass that first test are not precluded from employment.
  • The rule did not intentionally exclude recovering and recovered drug addicts from the work force. Reviewing carefully the employer's reason for adopting the rule, the court found the plaintiff had provided no evidence to show that PMA had any reason other than safety for the adoption of the rule. The court readily accepted PMA's articulated concern to prevent injuries occurring in a workforce "soft" on drug use. The PMA made the ban permanent because it believed that those "who could not abstain from using an illegal drug, even after receiving advance notice of an upcoming drug test, showed less responsibility and less interest in the job than applicants who passed the drug test."
  • The plaintiff had not presented evidence to show that the one-strike rule, although seemingly neutral, had a disproportionate impact upon recovered drug addicts. The court also held the rule did not "necessarily" screen out recovered drug addicts and thus was not discriminatory.

The employer here was successful in large part because it was able to justify its policy, against a seemingly compelling plaintiff's argument, by having a clearly non-discriminatory, business-related and well-articulated justification for this rule.

See Lopez v. Pacific Maritime Association, No. 09-55698 (9th Cir. 2011).

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