In Lopez v. Pacific Maritime Association, 2011 U.S. App. LEXIS 19620 (9th Cir. 2011) (unpublished), the Ninth Circuit Court of Appeals held that the employer could enforce its “one-strike" rule to permanently disqualify all applicants who failed the employer’s pre-employment drug screening. The Lopez court rejected the plaintiff’s argument that the “one-strike" rule discriminated against recovered drug addicts in violation of the federal Americans with Disabilities Act (ADA) and corresponding provisions of the California Fair Employment and Housing Act (FEHA).
Lopez is a pro-employer decision, and should be welcome news for California employers who have adopted similar one-strike rules. Although both the ADA and the FEHA protect recovered drug addicts from employment discrimination, Lopez makes it clear that permanent disqualification of an applicant who fails a drug test does not unfairly single out former addicts. As explained by the court, a uniformly applied one-strike rule eliminates all applicants 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, as the court noted, a one-strike rule “allows a drug addicted applicant who happens to be sober at the time of the drug test to complete pre-employment processing successfully."