March 20, 2011
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 upheld an employer’s right to refuse employment to applicants who test positive for marijuana, even where 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 who failed a drug test, even where the applicant claimed protection under the Americans with Disabilities 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 failed the 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 longshoreman in 2004. The employer rejected Plaintiff’s application because it had a one-strike rule, whereby applicants who fail a drug 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 ADA violation. 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 rehabilitation 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 the Plaintiff on this basis.
The bottom line for employers is that drug testing policies barring employment based on test 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.
March 6, 2011
In a unanimous ruling, the United States Supreme Court held that a plaintiff can prove discrimination even though there is no evidence the ultimate decision maker harbored any discriminatory ill will toward the former employee. The evidence determined that a different employee (not the ultimate decision maker) harbored discriminatory feelings and influenced the “innocent” decision maker thereby causing the adverse employment action to occur.
In Staub v. Proctor, the plaintiff was a medical technician for Proctor. He was also a member of the Army Reserves, which required him to attend drill sessions one weekend per month as well as trainings for two to three weeks per year. Plaintiff’s employment with Proctor was ultimately terminated based on a decision by Human Resources. Plaintiff sued for discrimination under the USERRA, which prohibits employment discrimination based on military service. Plaintiff did not have any evidence that Human Resources was motivated by a desire to discriminate. The evidence demonstrated that the termination decision itself was not made for discriminatory reasons. However, Plaintiff argued that his immediate supervisor harbored a discriminatory attitude and that he ultimately triggered the termination because he had issued him a bogus written warning that played a role in the decision to fire him. The lower courts disagreed on whether the evidence was sufficient to entitle the Plaintiff to a trial on his discrimination claim. The appeals court held that Proctor was entitled to summary judgment because the evidence showed that the ultimate termination decision was made by someone with no discriminatory ill will who independently reviewed the facts and that the decision wasn’t wholly dependent on the written warning that had been issued by Plaintiff’s supervisor.
The United States Supreme Court reversed, holding that the evidence was sufficient to support a finding that the termination decision was proximately caused by the written warning, and that there was some evidence that the written warning was discriminatorily motivated. As a result, the Court held that an employer cannot shield itself from liability simply by demonstrating that the ultimate decision maker did not discriminate. If there is evidence that the ultimate decision maker was influenced by other supervisors who had such a motive, a plaintiff can prove discrimination based on such a theory.
It is clear that human resources needs to double check each termination request to ensure that the supervisor making the recommendation does not have an ulterior motive.