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One Strike You’re Out, Says The Ninth Circuit

By on June 28, 2011 in ADA with 0 Comments

The Pacific Maritime Association had a “one-strike” rule which screened out any applicant who tested positive for drug or alcohol use during the preemployment process.  Santiago Lopez, who was addicted to drugs and alcohol, tested positive for marijuana during his preemployment process in 1997 and was therefore disqualified from further consideration.

In 2002 Lopez began to address his addictions.  By 2004 he was clean and sober and he reapplied to be a longshoreman with Pacific Maritime Association.  His application for employment  was rejected because of the one-strike rule.  Plaintiff Lopez sued under the ADA and argued that he was discriminated against based on his disability status as a rehabilitated drug addict.

The Ninth Circuit Court of Appeals held that a company one-strike rule is valid.  “The ADA prohibits employment decisions made because of a person’s qualifying disability, not decisions made because of factors merely related to a person’s disability.”  The Court agreed with prior case law that held that an employer’s policy not to rehire someone who lost his or her job due to drug-related misconduct is a neutral and nondiscriminatory reason for not rehiring.  In addition, the Court observed that the Longshore industry has suffered numerous serious accidents including fatalities that were related to use of drugs and alcohol in the workplace, underscoring the need for a one-strike policy.

Plaintiff also argued that this policy impacted more heavily people with drug and alcohol addiction.  The Court said that this was purely speculative.  “We disagree because, as we have noted, the rule does not necessarily screen out recovering drug addicts disproportionately.”   The Court added, “. . . [W]e still do not know how many recovered drug addicts Defendant hires versus how many recovered drug addicts it turns away,  nor do we know how many of those turned away are not drug addicts, recovering or otherwise.”

This case can be found at Lopez v. Pacific Maritime Association, 2011 U.S. App. LEXIS 3923 (9th Cir. 2011).

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About the Author

About the Author:

John H. Geaney, a shareholder and co-chair of Capehart Scatchard's Workers' Compensation department, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.

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