Written by attorney Elizabeth Raye Ison

Lopez v. Pacific Maritime Association

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 LEXIS 19620 (9th Cir. 2011) (unpublished), the Ninth Circuit Court of Appeals held that the employer could enforce its “one-strike" rule to permanently disqualify all applicants who failed the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."

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