A divided panel of judges at the Ninth Circuit held a plaintiff must demonstrate some statistically significant evidence in support of his or her disparate impact claim under the Americans with Disabilities Act and the California Fair Employment and Housing Act, even though such evidence may be very difficult to obtain. Lopez v. Pacific Maritime Assoc., No. 09-55698 (9th Cir. Mar. 2, 2011). 

A former addict alleged her potential employer’s “one-strike” rule discriminated against recovering addicts who seek employment after previously failing its pre-employment drug test.  The employer enforces a “one-strike” rule for all applicants seeking positions as longshore workers under a collective bargaining agreement.  The rule “eliminates from consideration any applicant who tests positive for drug or alcohol use during the pre-employment screening process.”  Applicants receive at least seven days’ advance notice of the tests.  Applicants who fail the screening are disqualified, automatically and permanently, from consideration for future employment with the association’s employers. The Court rejected the former addict’s argument with respect to disparate impact claims because the individual failed to support his contention with anything other than a “bald assertion” that the rule adversely impacted recovering drug addicts.

Since federal and California laws strictly regulate drug and alcohol testing policies, employers must consult with legal counsel  prior to promulgating a new policy. Moreover, the division in the panel of three judges who decided the case at the Ninth Circuit suggests this is an issue that could be subject to review by the full Ninth Circuit court, and may ultimately be headed for the U.S. Supreme Court.  For details about the case, please see Ninth Circuit Divided on Applicable Proof for Disparate Impact ADA Claim Brought by Former Addict