The 9th Circuit Court of Appeals has refused to reinstate a lawsuit based on a “one strike, you’re out” drug testing policy.
Recent case: Santiago Lopez wanted to work as a longshoreman in Long Beach. All applicants are required to submit to a post-offer drug test and are told that failing the test means they can never get a job as a longshoreman. In other words, one strike in the form of a positive drug test means a lifetime ban from being hired as a longshoreman.
Like all applicants undergoing testing, Lopez was given seven days’ advance notice before having to report for testing. At the time, Lopez was addicted to drugs and alcohol and tested positive for marijuana. He didn’t get the job.
Several years later, he realized the toll his addictions were taking and got treatment. Then, after he had been clean and sober for two years, he applied again. But his previous positive drug test disqualified him.
Lopez sued, alleging he was being discriminated against because of his status as a recovering drug addict, which is illegal under the ADA. He claimed that by excluding anyone who had ever tested positive in the past, the rule effectively discriminated against former addicts.
The 9th Circuit Court of Appeals disagreed. It reasoned that anyone who tested positive, including a first-time recreational user, suffered the same consequence.
In addition, the court said that Lopez hadn’t shown that the rule had a disparate impact on former addicts because he could not show whether the drug-test rule disproportionately affected former drug addicts. That’s because he couldn’t get figures for former drug addicts in the labor force and who were longshoremen. (Lopez v. Pacific Maritime Association, et al., No. 09-55698, 9th Cir., 2011)