Failed Drug Test Can Haunt Applicants Later

March 4, 2011 ( – A federal appellate court has ruled in favor of an employer who used a failed drug test from several years prior to deny employment to a recovered drug user.

In Lopez v. Pacific Maritime Association, the 9th U.S. Circuit Court of Appeals affirmed a lower court’s dismissal of the case because Santiago Lopez failed to establish that Pacific Maritime Association intentionally discriminated against him on the basis of his protected status or that the one-strike rule disparately affects recovered drug addicts.  

The court found that nothing about the history of the one-strike rule leads to a conclusion that Pacific Maritime Association adopted the rule with a discriminatory purpose. According to the opinion, the rule was adopted after the longshore industry suffered numerous serious accidents and injuries, including several fatalities that the association attributed in part to a culture that accepted the use of drugs and alcohol in the workplace. The court noted that nothing in the record suggests the association targeted or attempted to target recovered drug addicts, as distinct from recreational users.  

The 9th Circuit also rejected Lopez’ argument that the one-strike rule disparately affects recovering drug addicts because he did not present any statistical or anecdotal evidence to support the disparate impact claim.  

“We recognize that the one-strike rule imposes a harsh penalty on applicants who test positive for drug use,” the court said, conceding that the rule’s reasonableness in light of the fact that many people who use drugs later rehabilitate themselves. “But unreasonable rules do not necessarily violate the ADA [Americans with Disabilities Act] or the FEHA [state of California’s Fair Employment and Housing Act].”  

According to the opinion, Lopez first applied to be a longshoreman in 1997 at the port in Long Beach, California. At that time, he suffered from an addiction to drugs and alcohol and tested positive for marijuana. Pacific Maritime Association therefore disqualified Lopez from further consideration under the one-strike rule.  

In late 2002, Lopez became clean and sober and, in 2004, reapplied to be a longshoreman and was again rejected because of the earlier drug test. Lopez attempted to appeal, but the association never entertains appeals from disqualifications arising from positive drug tests.  

Lopez sued, claiming the association violated the ADA and the FEHA by discriminating against him on the basis of his protected status as a rehabilitated drug addict. 

The court’s opinion can be seen here.