A panel of judges has refused to reinstate a lawsuit by a man who sued the Pacific Maritime Association and International Longshore and Warehouse Union alleging that a so-called “one-strike” rule against hiring work applicants who test positive for drugs is discriminatory.
On a 2-1 vote, the 9th Circuit Court of Appeals in December refused to reinstate the lawsuit of Santiago Lopez. In the suit, Lopez, an admitted former substance abuser, said that the PMA’s policy of not hiring anyone who had tested positive during a past initial drug screening discriminated against ex-addicts.
Lopez originally applied for longshore work at the Port of Long Beach in 1997, but was not hired after testing positive for marijuana. In 2004, he applied again after having been off drugs and alcohol for two years, but had his application rejected due to the PMA’s “one-strike” rule.
He was also denied the opportunity to appeal the rejection, as were at least 27 other individuals who were barred from being hired during the same time period, according to the lawsuit, which was filed on Lopez’s behalf by Long Beach employment law attorney Andrea Cook.
Lopez and his attorney eventually sued the PMA and union in the US District Court for the Central District of California, alleging they were violating the Americans with Disabilities Act and California’s Fair Housing and Employment Act.
The case made its way to the 9th Circuit Court of Appeals in late 2010, but in a March 2, 2011 ruling, the panel affirmed the lower court’s decision.
Two of the three judges, Susan Graber and Kenneth Ripple, said in a written decision that it was lawful for the PMA to eliminate applicants who were using drugs when they applied to be longshore workers, and also lawful to disqualify those applicants permanently.
“Nothing about the history of the one-strike rule leads us to conclude that defendant adopted the rule with a discriminatory purpose,” the decision states in part. “The ADA and the FEHA protect people who are recovering or who have recovered from a drug addiction; they do not protect people who are using illegal drugs when they apply for a job.”
However, the third judge, Harry Pregerson, partially dissented from the opinion, stating in a separate written opinion that Lopez’s case should be allowed to move forward.
“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.”
However, since his was minority opinion on the panel, the lawsuit was ultimately disqualified. Lopez’s attorney could not be reached regarding whether the recent refusal to reinstate the case is the end of the matter, or if the case might be appealed to a higher court.
Tuesday, January 3, 2012
