9th Circuit Upholds One-Strike Drug Test Hiring Policy: Top [2011-03-03]



By John P. Kamin, Legal Editor


The 9th Circuit Court of Appeals ruled Wednesday that a major longshore employer may ban job applicants who test positive for drugs or alcohol during a pre-employment screening, but a dissenting judge voiced concerns about the “broad and pervasive impact” of the policy on rehabilitated drug addicts.


The federal appellate court upheld Pacific Maritime Association’s use of the “one-strike rule,” which bars it from considering any job applicant who tests positive for drug or alcohol use during the preemployment screening process.


In the case of Lopez v. Pacific Maritime Association, a three-judge panel determined that the employer’s rule did not violate California’s Fair Employment and Housing Act (FEHA), or the federal Americans with Disabilities Act (ADA). The association is the primary collective bargaining agent and payroll administrator for shipping lines, stevedore companies, and terminal operators on the West Coast.


The plaintiff, Santiago Lopez, had tested positive during his job application in 1997, successfully completed rehabilitation, but was barred from employment as a longshoreman when he reapplied in 2004. He subsequently filed suit, arguing that the one-strike policy facially discriminates against all fully recovered drug and alcohol addicts.


The majority of the 9th Circuit’s three-judge panel rejected this argument (known as a “disparate treatment” argument), and affirmed the trial court’s decision to grant summary judgment against him.


“We disagree,” 9th Circuit Judge Susan Graber wrote. “The rule eliminates all candidates who test positive for drug use, whether they test positive because of a disabling drug addiction or because of an untimely decision to try drugs for the first time, recreationally, on the day before the drug test. Conversely, the rule allows a drug-addicted applicant who happens to be sober at the time of the drug test to complete pre-employment processing successfully . . . The triggering event for purposes of the one-strike rule is a failed drug test, not an applicant’s drug addiction.”


Lopez also argued that even if the policy does not intentionally and directly discriminate against fully rehabilitated addicts, it has a disparate impact against them. He had also presented some statistical evidence and a forensic economist’s analysis, which the majority deemed flawed because Lopez did not identify how many recovered drug addicts PMA hires, versus how many recovered drug addicts it turns away. The majority ultimately concluded that Lopez failed to provide sufficient statistical evidence that the policy has a disparate impact on former addicts.


“We recognize the challenge involved in bringing a disparate-impact claim of this kind, but both logic and precedent require him to produce some evidence that tends to show that the one-strike rule excludes recovering or recovered drug addicts disproportionately,” Graber wrote.


Judge Harry Pregerson dissented against the majority’s reasoning for several reasons. Firstly, he felt that Lopez had enough evidence to establish a prima facie case of adverse impact on former addicts. Secondly, he stated that Lopez did not need statistical evidence of disparate impact to prove his claim.


Lastly, Pregerson wrote that the court should have allowed Lopez’s case to survive summary judgment and go to trial because of the policy’s potential impact on the entire shipping industry.


“I do not suggest that we now determine whether lifetime employment bars resulting from a positive drug test necessarily violate the ADA,” he wrote. “It is clear, though, that where such a test is mandated by an employer who exercises singular control over an industry spanning the whole West Coast of the United States, the potential impact of the policy is broad and pervasive. I would allow Lopez’s case to proceed to determine whether PMA’s lifetime hiring ban in fact has an adverse impact on recovering addicts.”


Andrea Cook, Lopez’s attorney in the case, told WorkCompCentral that she will ask the 9th Circuit to reconsider.


“PMA is flying in the face of what we consider the statutory requirements of the ADA,” Cook said. “Mr. Lopez fell squarely within the construct of the ADA. He’s a rehabilitated drug addict, and when he initially tested positive, he did what you would want your son or loved one to do – he identified his problems, he rehabilitated, he went to college and waited for an opportunity to reapply for what is essentially a family tradition.”


Cook noted that most of the men in Lopez’s immediate family are longshoremen, and that under the one-strike rule, he is forever barred from reapplying.


“We found Judge Pregerson’s (dissenting) opinion to be consistent with our opinion of the case, and share his concern that this is such a large industry employing so many people along the entire West Coast, and that to employ such a rule is draconian,” she said. “It prevents people who are doing what they’re supposed to do – which is rehabilitate – from later getting a job.”


Clifford Sethness, PMA’s attorney on the case, declined to comment.


Marc Koonin, an employment defense attorney at the San Francisco office of Sedgwick, Detert, Moran and Arnold, told WorkCompCentral that while the issues presented in the case were not necessarily new, the decision was still significant because it was not necessarily an open-and-shut case. Although the 9th Circuit has a reputation for being more employee-friendly than other circuits, he felt that the driving force behind the majority’s opinion was a concern for workplace safety in an industry that tends to be more dangerous than others.


Koonin highlighted the majority’s emphasis upon the fact that Lopez needed some kind of statistical evidence to show that the one-strike policy has a disparate impact on rehabilitated drug and alcohol addicts.


“Because disability analysis tends to be unique, the courts are not always clear about whether the use of statistics is correct,” he said. “Moreover, it would be awfully difficult to put together those kinds of statistics, because an employer is not supposed to ask if you have a history of drug addiction.”


Koonin considers the majority’s requirement for statistics to be “a pretty high hurdle” for plaintiffs, but believes that the majority set the bar high with workplace safety in mind.


“I think that you see a concern for safety,” he said. “The reality is that a lot of the federal courts . . .they are really loathe to come down on employers who have drug testing policies in dangerous industries. They don’t want to discourage safety in the workplace.”


Although the court did not specifically mention the fact that the one-strike rule is part of a collective bargaining agreement, Koonin also believes that this played a role in the majority’s decision.


“They tend to show a little bit more sympathy on these kinds of issues, where it’s reflected in a collectively bargained agreement,” he said.


Koonin also noted that while the opinion interprets both state and federal law, the same case might reach a different result based on the laws of a local jurisdiction. As an example, he noted that the City of San Francisco has its own specific drug testing law.


“What would be lawful under federal and state law, might not be lawful in San Francisco,” he said, noting that attorneys should consider the impact of local drug testing laws.


To read the 9th Circuit’s decision, go here:


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