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March 07, 2011

Employer’s “one-strike rule” denying employment to applicants who test positive for drug or alcohol use did not have an unlawful disparate impact on rehabilitated drug addicts
Source: Posted on the Internet in CCH Workday at http://cch-workday.blogspot.com/ . Reproduced with permission. Copyright© CCH 2011, All rights reserved.

Rejecting disparate treatment and disparate impact claims brought under the ADA and California Fair Employment and Housing Act (FEHA) by a former drug addict who was denied a longshoreman’s job, a divided Ninth Circuit panel upheld the Pacific Maritime Association’s “one-strike rule,” which automatically eliminates from consideration job applicants who test positive for drug or alcohol use (Lopez v Pacific Maritime Assoc, 09-55698 March 2, 2011). Not only was it lawful for the employer association to eliminate applicants who were using drugs when they applied to be longshore workers, it was also permissible to disqualify those applicants permanently, the appeals court [Judge Pregerson dissented in part] held, affirming summary judgment to the employer association.

While the one-strike rule imposes a harsh penalty, and many people question the rule’s reasonableness in light of the fact that many drug users later rehabilitate themselves, “unreasonable rules do not necessarily violate the ADA or the FEHA,” the majority wrote.

The employer association represents shipping lines, stevedore companies, and terminal operators that run the ports along the west coast, negotiating bargaining agent and administering payroll and hiring policies. One of those policies is the one-strike rule, under which the association rejects outright any job applicant who tests positive for drug or alcohol use during the pre-employment screening process. Applicants are notified at least seven days in advance of administering the drug test. Failing the drug test, even once, disqualifies an applicant permanently from future employment.

The plaintiff first applied for a longshoreman position in 1997 at a Long Beach, California port. At that time, however, he suffered from an addiction to drugs and alcohol, and tested positive for marijuana at the time of his drug test; he was therefore disqualified from further consideration under the one-strike rule. He became clean and sober in 2002 and, in 2004, reapplied to be a longshoreman. However, because of the one-strike rule, his application was rejected. He attempted to appeal, but the employer does not entertain appeals from disqualifications arising from positive drug tests. This action followed, alleging the employer violated the ADA and the FEHA by discriminating against him on the basis of his protected status as a rehabilitated drug addict. The Ninth Circuit affirmed the district court’s grant of summary judgment to the employer.

Disparate treatment. The plaintiff asserted three arguments in support of his disparate treatment claim, none of which prevailed. First, he claimed the one-strike rule facially discriminates against recovering or recovered drug addicts. The appeals court disagreed. “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,” the appeals court reasoned. “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.” The majority cited the Supreme Court’s 2003 opinion in Raytheon Co v Hernandez in support. There, the Court held that an employer’s policy not to rehire workers who lost their jobs due to drug-related misconduct constituted a neutral, nondiscriminatory reason for refusing to rehire an aggrieved employee.

Next, the plaintiff argued that the employer adopted the one-strike rule intentionally to exclude recovering and recovered drug addicts from its workforce. However, the record belies that allegation, the appeals court found. Before adopting the measure, the longshore industry suffered numerous serious accidents and injuries, including several fatalities. These incidents were attributed in part to a workplace culture that permitted drug and alcohol use. Conducting pre-employment drug screening in order to eliminate job applicants who would be more likely to use drugs or alcohol at work was a union-approved approach to these safety concerns. The employer decided to make permanent the disqualification of applicants who tested positive because it thought that applicants 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. As such, there was no evidence that the employer rejected applicants who tested positive based on a calculation that an applicant might test positive because of a drug addiction, rather than because of recreational use.

Finally, the plaintiff contended, summary judgment was in error because the employer only learned of the plaintiff’s drug addiction shortly after disqualifying him. This assertion only served to undermine his claim, however, that he was disqualified from employment due to his protected status as a recovering addict. If it were truly unaware that a disability existed, it would be impossible for the employer’s hiring decision to have been based, even in part, on the applicant’s stated disability, and he could not, ipso facto, have been subject to disparate treatment, the court wrote.

Disparate impact. The plaintiff’s disparate impact claim also failed. While he argued that the one-strike rule disparately affected recovering drug addicts by eliminating anyone who previously tested positive for drug use, the plaintiff offered “only the bald assertion that this result must be so.” However, “as we have noted, the rule does not necessarily screen out recovering drug addicts disproportionately.” The plaintiff must have produced evidence from which a factfinder could reasonably conclude that the one-strike rule results in the employer hiring fewer recovering drug addicts, as compared to the number of qualified recovered drug addicts in the relevant labor market. The record contains neither statistical nor anecdotal evidence to that effect, notwithstanding an affidavit from a forensic economist introduced by the plaintiff in support of this assertion.

Dissent.

Judge Pregerson dissented in part; he would have allowed the plaintiff to advance his disparate impact claim based on the forensic expert testimony that drug addicts are disproportionately affected by the lifetime ban, as well as evidence that at least 27 individuals were subjected to the ban during roughly the same period. “Because the identities of those individuals are protected, the court does not know which, if any, of them were drug addicts rather than casual users, or which of the addicts, if any, were later rehabilitated. It is clear, however, that a significant number of individuals were impacted by the ban. It is also reasonable to infer that at least some of those individuals, like Lopez, were at one time addicted to drugs, but after participating in a drug rehabilitation program, were able to overcome their addiction,” Pregerson argued. He also asserted the district court erred in requiring statistical evidence to support the disparate impact claim. While statistical evidence is generally required to show disparate impact under, for example, the ADEA, such evidence is not required for similar claims under the ADA. Furthermore, the dissent noted, “it is manifestly unreasonable to require statistical data regarding the number of recovering addicts either hired by an employer or screened out by the test. These figures are not kept by employers, and indeed such data likely could not be lawfully acquired.”

“I do not suggest that we now determine whether lifetime employment bars resulting from a positive drug test necessarily violate the ADA,” the dissent noted. Here, however, Pregerson was swayed by the unique nature and scope of the employer association in this case. “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.”

The decision is posted on the Internet at:
http://www.ca9.uscourts.gov/datastore/opinions/2011/03/02/09-55698.pdf

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