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Employment Discrimination Against Medical Marijuana Users is Legal in California

By James Peters

Well, the California Supreme Court finally released its opinion in Ross v. Ragingwire Telecommunications, Inc., S138130, today and I have to say I am disappointed with the opinion, although I think the dissenting opinion was completely on the mark.

The Decision

The Court decided that employers can terminate employees in California who use medical marijuana with a doctor’s prescription for a valid medical reason and not be held liable for doing so under state employment discrimination laws.

The majority spent almost all of their opinion talking about how the Compassionate Use Act of 1996 (the referendum that decriminalized medical marijuana under California law) does not explicitly say employers are prohibited from terminating an employee for using medical marijuana at home.

However, the majority seems to have forgotten that the case was brought under California’s Fair Employment and Housing Act (”FEHA”) and not the Compassionate Use Act (”CUA”), seemingly concluding that because the CUA was not violated, neither was the FEHA.

The only reason that the CUA has any application here at all is by virtue of the fact that it is the reason that the plaintiff can say he was not breaking state law. Arguably, if state law says something is illegal, then state anti-discrimination laws cannot be held to protect an employee who breaks it. However, the fact that the plaintiff broke no California law should mean that the legality or illegality of the conduct is a non-issue.

FEHA Disability Discrimination Analysis

In California, employers are required to “reasonably accommodate” individuals with disabilities, which basically means that they need to work with the employee and their doctor to determine what the employee needs to be able to do their job and treat their disability. In Ragingwire, the employee simply wanted his employer to allow him to use medical marijuana at home during non-work hours.

The employer generally must allow any accommodation that does not cause it to suffer an “undue hardship”. In order avoid liability for refusing a particular accommodation, the employer must demonstrate what sort of undue hardship it would suffer.

Here, the Defendant pointed to virtually no undue hardship it would suffer by letting Ross use his medical marijuana at home during non-work hours. Instead, it pointed to “red herrings” (which the majority readily adopted as some of its justifications) such as:

• We cannot be forced to allow him to use drugs at work–The Court admits that Ross explicitly stated he was not asking for the right to use medical marijuana at work.
• We cannot be held responsible for him coming to work under the influence–Again, Ross was not asking to be allowed to be under the influence at work. This is exactly the same as if an employee had an Oxycotin or Vicodin prescription and could potentially show up at work under the influence of their medication.
• We cannot condone our employees violating the law–If you let your employees bet on sports such as running football pools, this is essentially the same thing. Under federal law simple possession of a small quantity of marijuana is a misdemeanor punishable with a maximum $1,000 fine and/or a year in jail, whereas gambling in California is punishable by a $1,000 fine and/or six months in jail. However, this argument is irrelevant where an employee is only using medical marijuana at home during non-work hours because an employee breaking a law on their own time does not create an undue hardship.

None of these arguments proves that the employer would suffer an undue hardship under these circumstances. Under the FEHA, a claim of hardship generally must be based on either (1) the fact that the accommodation would cost the employer too much to implement, or (2) it would be too inconvenient to implement the accommodation. (See Cal. Gov. 12940(m).)

The majority in this case simply glosses over this whole analysis (which is really the only question they needed to answer here) by conclusively stating “The FEHA does not require employers to accommodate the use of illegal drugs” with virtually no support for that statement. (p. 5)

The majority tries to support this statement by going into a long analysis of cases where it has held that (1) employees can be drug tested under certain circumstances, and (2) employees can be terminated for “abusing” drugs that have no “legitimate medical explanation”. Of course, neither of these arguments really has any application to this case, but I guess it sounds good.

Me and the Dissenters Make 3

The dissenting opinion, written by Justice Kennard (who was joined by one other justice to make the decision 5-2) gets the analysis right and reaches the right conclusions, in my opinion. Of course, my earlier post about this case makes his same points, but because we both seem to be in the minority it will probably be quite some time before our opinions are adopted.

It will, however, be interesting to see what the rest of the blawgosphere things about this decision.

California Supreme Court | Cases | Disability | Discrimination | Drug Testing | FEHA | Privacy | Reasonable Accommodation

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Full post as published by California Employee Rights Blog on January 24, 2008 (boomark / email).