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Drug Testing Rule Upheld by 9th Circuit in Hiring Discrimination Case

The United States Court of Appeals for the Ninth Circuit has upheld the so-called "one-strike rule," which eliminates job applicants from consideration for a single positive test for drug or alcohol use during pre-employment screening. In Lopez v. Pacific Maritime Association, the court upheld a district court summary judgment in favor of the defendant.

The plaintiff, an aspiring longshoreman, first applied for a position at the port of Long Beach, California, in 1997. He failed the standard drug test after his sample came back positive for marijuana, and his application was disqualified from further consideration. The defendant, the collective bargaining agent for west coast stevedore companies, shipping lines and shipping terminal operators, implements a drug and alcohol testing policy that permanently disqualifies an applicant who fails drug screening from future employment with those employers. Applicants are notified at least seven days in advance that they must submit to drug and alcohol screening.

The plaintiff later sought treatment for drug and alcohol addiction, and in 2004 he reapplied for a longshoreman position with the defendant. Under the company's one-strike policy, he was automatically disqualified from consideration for a position. Feeling that this action was a discriminatory refusal to hire, the plaintiff filed suit under the federal Americans with Disabilities Act (ADA) and California's Fair Employment and Housing Act (FEHA). The plaintiff claimed that the defendant's one-strike drug testing policy led to a disparate impact and disparate treatment for rehabilitated drug addicts, who are expressly protected from employment discrimination under the ADA.

The court disagreed, pointing out that the rule eliminates any and all candidates who test positive, whether they did so because of a chronic addiction or because of a casual one-time use of a forbidden substance. The court implied that plaintiff's protected status as a recovering addict under the ADA and FEHA would have only been triggered if he applied for the first time in 2004, passed the drug and alcohol screening, and yet was denied employment due to the defendant's knowledge of his prior addiction.

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