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Weed out substance abuse with ‘one-strike’ rule

by on
in Hiring

For some employers, it’s absolutely critical to keep their workplaces drug- and alcohol-free. That’s why many have adopted strict drug and alcohol testing programs for all new hires—and strictly bar employment of anyone who tests positive.

Now the 9th Circuit Court of Appeals has ruled that applying the rule to a recovering addict is legal unless that addict can somehow prove that the rule discriminates against a class of disabled individuals—namely, recovering addicts.

Recent case: Back in 1997, Santiego Lopez applied to be a longshoreman. At the time, he was addicted to drugs and alcohol. All job applicants had to be tested and received notice before the test was administered. Lopez tested positive for marijuana and wasn’t hired.

Lopez realized he needed help, and in 2002, he became clean and sober. Two years later, he reapplied to be a longshoreman but was automatically rejected because of the past test results. He sued, alleging that the rule discriminated against the class of recovering drug addicts, a class that is protected from discrimination by the ADA.

The 9th Circuit Court of Ap­peals rejected his claim because the drug test rule didn’t single out addicts; it also prevented hiring casual drug or alcohol users. If Lopez was going to claim discrimination against former addicts, he would have to show that the rule disproportionately impacted former addicts. The court said he didn’t make that case. To do so, he would have had to collect information on the number of former addicts in the labor pool and show that the “one-strike” rule meant there were fewer re­covering addicts working as long­­­­­­­­­­­shore­men compared to their numbers in the labor pool. (Lopez v. Pacific Mari­time Association, No. 09-55698, 9th Cir., 2011)

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