week 4

Individual Paper- Each student will choose three cases, each from a different chapter, from the readings in weeks 1 through 2 (Chapters 1, 2, 3, 4, 5 and 6). each students on a team will choose in consultation with other group members different cases to write up.  A  Reference page should be included. (100 points)

• Your responses should be well-rounded and analytical and should not just provide a conclusion or an opinion without explaining the reason for the choice. For full credit, you need to use the material from the week’s lectures, text and/or discussions when responding to the questions.
• Utilize the case format below:

PLACE YOUR ORDER NOW

1. Read and understand the case. Show your Analysis and Reasoning and make it clear you understand the material. Be sure to incorporate the concepts of the chapter we are studying to show your reasoning. Dedicate at least one sub-heading to each following outline topic:
   • Facts [Summarize only those facts critical to the outcome of the case]
   • Issue [Note the central question or questions on which the case turns]
   • Explain the applicable law(s). Use the textbook here. The law should come from the same chapter as the case. Be sure to use citations from the textbook including page numbers.
   • Holding  [How did the court resolve the issue(s)? Who won?]
   • Reasoning [Explain the logic that supported the court’s decision]
2. Dedicate 1 sub-heading to each of the case questions immediately following the case. First, restate the question and then fully answer.
3. Conclusion. This should summarize the key aspects of the decision and also your recommendations on the court’s ruling
4. Include citations and a reference page with your sources. Use APA style citations and references.

PLACE YOUR ORDER NOW

Read the following cases and follow the instructions provided in the assignment. A reference from the book and chapter to use in your answers is supplied after each case. Be sure to reference this in each case answer

Herawi v. State of Alabama, Department of Forensic Sciences 311 F. Supp. 2d 1335 (M.D. Ala. 2004)

Herawi is an Iranian doctor whose employment was terminated. She filed a complaint against the defendant, the state Department of Forensic Sciences, alleging national origin discrimination and retaliation. The state responded that it had legitimate non-discriminatory reasons for terminating her (insubordination and poor job performance). The district court found that Herawi’s national origin discrimination claim would not be dismissed on summary judgment because her supervisor’s threat that she would report the doctor’s national origin to law enforcement made clear that her supervisor was antagonistic towards her because of her Iranian heritage, and that the timing of the doctor’s termination (three weeks after complaining about the supervisor’s behavior) suggested that the supervisor’s apparent dislike for her national origin may have infected the process of evaluating the doctor. Herawi also prevailed against summary judgment on the retaliatory discharge claim. (Herawi also claimed hostile environment but did not succeed and the discussion of that claim is not included below.)

Notice that Dr. Herwari is a medical doctor. She also has a PhD and is a noted researcher. The actions toward her took place just after 9/11 when feelings were running high against Iranians. As you read the excerpt, see if you see any actions you think may have this as a motivation for how her conduct was viewed and how poorly she was treated. After the case, several of the parties who complained about Dr. Herawi were discredited. In this age of social media and the Internet, think about how having these things (later discredited) said about you might adversely impact your career long after the case is actually over.

OPINION BY: Myron H. Thompson, J.

***

1. Factual Background

During the relevant time period, Herawi’s supervisor in the Montgomery office [of the Alabama Department of Forensic Sciences] was Dr. Emily Ward. Herawi, like all state employees, was a probationary employee for her first six months on the job.

Ward was highly critical of Herawi almost immediately upon her arrival in the Montgomery office. On her first day at work, Ward accused Herawi of being inconsiderate for not offering to help her. Ward looked at Herawi with a “hatred filled stare” and mocked her by repeating her in a high-pitched voice. On or about October 22, 2001, Ward became enraged at Herawi, shouted at her, accused her of wrongdoing, and said she had had enough of Herawi and that Herawi was the rudest person she had ever met. When Herawi tried to explain her actions, Ward yelled louder and said that she did not like Herawi and that no one else liked her either.

On October 24, Herawi expressed to Craig Bailey, the office director, her concerns about the way Ward was treating her. Bailey later told Herawi that, after his conversation with her, he spoke to Ward to find out if she had a problem with people of Middle Eastern descent. Bailey told Herawi that people from the Middle East were perceived as rude and aggressive.

On November 7, Ward “implied” to Herawi that she was getting calls from people asking about Herawi’s background and her accent, and she threatened to expose Herawi’s nationality to law enforcement agencies. Ward also said that she was getting calls from people asking who Herawi was, asking why she was there, and stating that she did not belong there.

Herawi had two more run-ins with Ward in December 2001, after Herawi had taken time off in November to visit her mother in California after the death of her father. On December 6, Ward called Herawi into her office, where Bailey yelled at Herawi, accusing her of neglecting the office after her father died and not performing enough autopsies. Bailey also questioned Herawi about whether she was looking for a job in California. On or about December 25, Herawi confronted Ward about page 96whether Ward had spread a rumor that Herawi was looking for a job in California. [The court outlines additional, subsequent circumstances, which it discusses later in this opinion.]

On January 2, 2002, Herawi received an “employee probationary performance appraisal” and an attached narrative performance appraisal, dated November 15, 2001. The narrative performance appraisal states that Herawi “appears to be a very intelligent and dedicated Forensic Pathologist” and that she “seems to have been well trained.” The narrative appraisal, however, goes on to state that “her performance has been problematic in four inter-related areas: expectations of co-workers, recognition of and subordination to authority, incessant inquisitiveness, and lack of organization.” It also states that Herawi “comes across as very self-centered and projects an ‘entitlement complex’”; that she “has also refused to comply with departmental regulations and/or rules if she doesn’t agree with them”; and that her “work habits leave room for improvement.” The narrative was signed by Ward and Downs, [J.C. Upshaw Downs, the Director of the Alabama Department of Forensic Sciences and the Chief Medical Examiner for Alabama, and others.]

Herawi brought her concerns about Ward to Downs on January 4, 2002. Herawi told Downs that Ward had threatened to expose her nationality; Herawi also told Downs that she felt confused and intimidated. Downs told Herawi that Middle Eastern people were generally facing troubles in the wake of the terrorist attacks on September 11, 2001, and that Herawi should turn the other cheek. However, Downs said he would speak to Ward.

On January 9, 2002, Downs wrote a letter to Thomas Flowers, the state personnel director, requesting that Herawi’s probationary period be extended by three months. Downs wrote that Herawi “requires additional training in autopsy procedures to take a more organized approach to the process” and that she “must also learn to use the chain of command.”

***

Ward alluded to Herawi’s nationality again on March 7, 2002. Ward told Herawi that nobody liked her, that everybody complained about her, that she did not belong there, that should leave, and that her English was bad. After this incident, Herawi complained to Downs again on March 21, about Ward’s hostility. At this meeting, Downs told Herawi that he would start an investigation, and Herawi told Downs that she had contacted a lawyer. Herawi also complained to Samuel Mitchell, the department chief of staff, on March 25.

Events came to a head on March 28, at a meeting attended by Herawi, Ward, Bailey and Steve Christian, the department’s personnel manager. Herawi claims that she was terminated during the meeting and that when she met with Christian shortly after the meeting, he told her it was unofficial policy that terminated employees could submit a letter of resignation. Memoranda written by Ward, Bailey and Christian present slightly different accounts. According to Ward, she informed Herawi that the situation was not working out and that the department had not seen any improvement in the areas identified in Herawi’s performance appraisal. According to Ward, before she could finish, Herawi interrupted her to say she would quit. According to Bailey, Ward requested Herawi’s resignation, and Herawi agreed. According to Christian, Ward told Herawi that an offer of permanent employment would not be forthcoming and then told Herawi to speak with him later that day. When they met, according to Christian, he told her it was the department’s unofficial policy to allow employees to resign to make it easier to look for work in the future.

Herawi submitted a letter of resignation on April 1, 2002. A letter from Downs, dated April 18, confirmed Herawi’s “separation from employment” at the department effective April 19. Downs’s letter states that the reason for Herawi’s separation is that she continued “to require additional training in autopsy procedures and failure to properly use the chain of command.”

III. Analysis

Herawi claims that (1) she was terminated because of her Iranian origin; (2) she was fired in retaliation for her complaints about Ward; and (3) she was harassed because of her national origin [not addressed in this excerpt]. The Forensic Department has moved for summary judgment on the ground that its decision not to offer her a permanent position was based on legitimate, non-discriminatory reasons. The court will consider Herawi’s claims in order.

1. Termination

***

iv.

Applying McDonnell Douglas, this court concludes that Herawi has met her prima-facie burden of producing “evidence adequate to create an inference that [the Forensic Department’s] employment decision was based on an [illegal] discriminatory criterion.” To establish a page 97prima-facie case of discriminatory discharge, she must show the following: (1) she is a member of a protected class; (2) she was qualified for the position at issue; (3) she was discharged despite her qualification; and (4) some additional evidence that would allow an inference of discrimination. [The court evaluates Herawi’s evidence of these elements and finds that Herawi satisfies the first three elements; it then continues in its analysis of the fourth requirement, below.]

In this case, Ward made remarks related to Herawi’s national origin on three occasions. On November 7, 2001, Ward threatened to report Herawi’s national origin to law enforcement agencies. On January 2, 2002, Ward told Herawi that she was getting calls asking who Herawi was and why she was working there; Ward suggested that she was getting these calls because of Herawi’s accent. Finally, on March 7, 2002, Ward told Herawi that no one liked her, that she did not belong at the department, that she should leave, and that her English was bad. It is undisputed that Ward was Herawi’s direct supervisor when she made these remarks and that Ward had substantial input into the ultimate decision to terminate Herawi. In fact, Ward conducted Herawi’s January 2002 performance appraisal, and she wrote the four memoranda in February and March of 2002 documenting incidents involving Herawi. Given this evidence, the court is satisfied that Herawi has raised the inference that her national origin was a motivating factor in the department’s decision to terminate her.

The burden thus shifts to the Forensic Department to articulate a legitimate non-discriminatory reason for its decision to fire Herawi. The department has met this “exceedingly light” burden. It asserts that Herawi was not retained because she “had problems with autopsy procedures and with the chain of command.” Plainly, job performance, failure to follow instructions, and insubordination are all legitimate, non-discriminatory considerations.

Because the department has met its burden, Herawi must show that its asserted reasons are pretextual. The court finds, again, that the evidence of Ward’s comments about Herawi’s national origin is sufficient for Herawi to meet her burden. Comments or remarks that suggest discriminatory animus can be sufficient circumstantial evidence to establish pretext. “Whether comments standing alone show pretext depends on whether their substance, context, and timing could permit a finding that the comments are causally related to the adverse employment action at issue.”

In this case, Ward’s comments “might lead a reasonable jury to disbelieve [the department’s] proffered reason for firing” Herawi. Ward’s threat that she would report Herawi’s nationality to law enforcement makes it clear that she was antagonistic towards Herawi because of Herawi’s Iranian origin. Ward’s later comment that Herawi did not belong in the department, made at the same time she commented on Herawi’s accent, further evinced discriminatory animus. Standing alone, this might not be enough evidence to establish a genuine question of pretext, but Ward was Herawi’s supervisor, conducted her performance appraisal, and wrote four memoranda containing negative evaluations of her. In this context, the evidence suggests that Ward’s evident dislike for Herawi’s national origin may have infected the process of evaluating Herawi. The timing of Ward’s remarks reinforces this conclusion. The first incident in which Ward referred to Herawi’s nationality occurred one week before the narrative performance appraisal of Herawi was written, the second incident occurred on the same day—January 2, 2002—that Ward completed the performance appraisal form, and her final remarks were made three weeks before Herawi was fired. Because of this close temporal proximity, a jury could reasonably conclude that discriminatory attitude evidence in Ward’s remarks motivated the decision to fire Herawi. Accordingly, the court finds that Herawi has met her burden and that summary judgment on her termination claim is not appropriate.

1. Retaliation

Herawi contends that the Forensic Department retaliated against her for complaining to Downs and to Mitchell about Ward’s conduct. The department has moved for summary judgment, again, on the basis that its employment decision was motivated by legitimate, non-discriminatory reasons.

Under Title VII, it is an unlawful employment practice for an employer to discriminate against an employee “because [s]he has opposed any practice made an unlawful employment practice by this subchapter, or because [s]he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” The same McDonnell Douglas burden-shifting framework that applies to claims of discriminatory discharge applies to claims for retaliation.

The Eleventh Circuit has established broad standards for a prima-facie case of retaliation. An individual alleging retaliation under Title VII must establish her page 98prima-facie case by demonstrating “(1) that she engaged in statutorily protected activity, (2) that an adverse employment action occurred, and (3) that the adverse action was causally related to [her] protected activities.” “The causal link element is construed broadly so that a plaintiff merely has to prove that the protected activity and the negative employment action are not completely unrelated.”

Herawi has established the elements of a prima-facie case of retaliation. First, she was engaged in protected activity on the two occasions that she spoke with Downs and on the one occasion she spoke to Mitchell. Second, Herawi was terminated. Third, Herawi satisfies the causality requirement because she was terminated only a week after her meeting with Downs and three days after her meeting with Mitchell.

Because Herawi has produced evidence sufficient to meet her prima-facie burden, the burden of production shifts to the Forensic Department to produce a legitimate, non-retaliatory reason for its decision. As discussed above, the department has offered legitimate reasons for its decision. The department contends that it fired Herawi because of her problems with autopsy procedure and her problems following the chain of command. The burden thus shifts to Herawi to come forward with evidence sufficient for a reasonable fact finder to conclude that the department’s asserted reasons were pretext for retaliation.

Herawi has met this burden. As discussed above, Herawi has presented substantial evidence of Ward’s animus towards her and thus raised a very real question about the extent to which the department’s assessment of her might have been influenced by Ward’s attitude. There is also evidence from which a reasonable fact finder could conclude that Ward’s assessment of Herawi was infected by a retaliatory motive. In October 2001, Bailey reported to Ward that Herawi had complained to him about her, and, in January 2002, Downs spoke to Ward about Herawi’s complaints. Thus, at the same time that Ward was evaluating and assessing Herawi’s job performance in the fall of 2001, and the winter of 2002, she was aware that Herawi had gone to various supervisors to complain about her. The court also considers it relevant to determining pretext that Herawi was dismissed so soon after she complained to Downs and Mitchell. While temporal proximity, standing alone, may not be enough to create a genuine issue of pretext, it is a relevant factor. Thus, taking into consideration the evidence of Ward’s discriminatory animus, her possible retaliatory motive, and the extreme closeness in time between Herawi’s complaints and her dismissal, the court concludes that Herawi has evidence sufficient for a reasonable fact finder to conclude that the department’s asserted reasons for her dismissal were pretextual.

***

1. Conclusion

For the reasons given above, it is ORDERED as follows:

(1) The motion for summary judgment, filed by defendant Alabama Department of Forensic Sciences on November 12, 2003 (doc. no. 20), is granted with respect to plaintiff Mehsati Herawi’s hostile-environment claim.

Use Disparate Treatment in answer reference page 70 of book Bennett-Alexander, D. Employment Law for Business. [VitalSource Bookshelf]. Retrieved from https://online.vitalsource.com/#/books/9781260031805/

Disparate treatment is the theory of discrimination used in cases of individual and overt discrimination and is the one you probably think of when you think of discrimination. The plaintiff employee (or applicant) bringing suit alleges that the employer treated the employee differently from other similarly situated employees based on a prohibited category or categories. Disparate treatment is considered intentional discrimination. However, the employee need not prove that the employer actually said that race, gender, and so on was the reason for the decision. In disparate treatment cases, the employer’s policy is discriminatory on its face, such as a policy of only hiring men to work in a warehouse facility as happened in a Cleveland warehouse in 2016.22 Keep in mind that it is not the employer’s subjective intent that is important. There need not be evil intent to discriminate. Claimant must simply be able to be show that the difference in treatment occurred and had no sustainable justification, leaving a prohibited category as the only remaining conclusion.

Patterson v. McLean Credit Union 491 U.S. 164 (1989)

A black female alleged racial discrimination in violation of section 1981 in that she was treated differently from white employees and not promoted, on the basis of race. The Court held that section 1981 was not available to address this problem since the case did not involve the making of a contract, but rather its performance. Kennedy, J. *** Patterson, a black female, worked for the McLean Credit Union (MCU) as a teller and file coordinator for 10 years. She alleges that when she first interviewed for her job, the supervisor, who later became the president of MCU, told her that she would be working with all white women and that they probably would not like working with her because she was black. According to Patterson, in the subsequent years, it was her supervisor who proved to have the problem with her working at the credit union. Patterson alleges that she was subjected to a pattern of discrimination at MCU which included her supervisor repeatedly staring at her for minutes at a time while she performed her work and not doing so to white employees; not promoting her or giving her the usually perfunctory raises which other employees routinely received; not arranging to have her work reassigned to others when she went on vacation, as was routinely done with other employees, but rather, allowing Patterson’s work to accumulate during her absence; assigning her menial, non-clerical tasks such as sweeping and dusting, while such tasks were not assigned to other similarly situated employees; being openly critical of Patterson’s work in staff meetings, and that of one other black employee, while white employees were told of their shortcomings privately; telling Patterson that it was known that “blacks are known to work slower than whites, by nature” or, saying in one instance, “some animals [are] faster than other animals”; repeatedly suggesting that a white would be able to perform Patterson’s job better than she could; unequal work assignments between Patterson and other similarly situated white employees, with Patterson receiving more work than others; having her work scrutinized more closely and criticized more severely than white employees; despite her desire to “move up and advance,” being offered no training for higher jobs during her 10 years at the credit union, while white employees were offered training, including those at the same level, but with less seniority (such employees were later promoted); not being informed of job openings, nor interviewed for them, while less senior whites were informed of the positions and hired; and when another manager recommended to Patterson’s supervisor a different black to fill a position as a data processor, the supervisor said that he did not “need any more problems around here,” and would “search for additional people who are not black.” When Patterson complained about her workload, she was given no help, and in fact was given more work and told she always had the option of quitting. Patterson was page 143laid off after 10 years with MCU. She brought suit under 42 U.S.C. section 1981, alleging harassment, failure to promote and discharge because of her race. None of the racially harassing conduct which McLean engaged in involved the section 1981 prohibition against refusing to make a contract with Patterson or impairing Patterson’s ability to enforce her existing contract rights with McLean. It is clear that Patterson is attacking conditions of employment which came into existence after she formed the contract to work for McLean. Since section 1981 only prohibits the interference with the making or enforcement of contracts because of race, performance of the contract is not actionable under section 1981. Section 1981’s language is specifically limited to making and enforcing contracts. To permit race discrimination cases involving post-formation actions would also undermine the detailed and well-crafted procedures for conciliation and resolution of Title VII claims. While section 1981 has no administrative procedure for review or conciliation of claims, Title VII has an elaborate system which is designed to investigate claims and work toward resolution of them by conciliation rather than litigation. This includes Title VII’s limiting recovery to back pay, while section 1981 permits plenary compensatory and punitive damages in appropriate cases. Neither party would be likely to conciliate if there is the possibility of the employee recovering the greater damages permitted by section 1981. There is some overlap between Title VII and section 1981, and when conduct is covered by both, the detailed procedures of Title VII are rendered a dead letter, as the plaintiff is free to pursue a claim by bringing suit under section 1981 without resort to those statutory prerequisites. Regarding Patterson’s failure to promote claim, this is somewhat different. Whether a racially discriminatory failure to promote claim is cognizable under section 1981 depends upon whether the nature of the change in positions is such that it involved the opportunity to enter into a new contract with the employer. If so, then the employer’s refusal to enter the new contract is actionable under section 1981. AFFIRMED in part, VACATED in part, and REMANDED. Case Questions

Reference page 132 Bennett-Alexander, D. Employment Law for Business. [VitalSource Bookshelf]. Retrieved from https://online.vitalsource.com/#/books/9781260031805/

The three post–Civil War statutes are now codified as 42 U.S.C. sections 1981, 1983, and 1985. They prohibit discrimination on the basis of race in making and enforcing contracts; prohibit the denial of civil rights on the basis of race by someone behaving as if they are acting on behalf of the government (called under color of state law); and prohibit concerted activity to deny someone their rights based on race.

Coats v. Dish Network, LLC 2015 CO 44, 350 P.3d 849 (2015)   Brandon Coats, a quadriplegic, has been in a wheelchair since he was a teenager. He has a Colorado state-issued license to use medical marijuana to treat painful muscle spasms caused by his quadriplegia. He consumes the medical marijuana at home, after work, and in accordance with his license and Colorado state law. Coats worked for Dish Network for three years as a telephone customer service representative. After testing positive for THC, as a result of his marijuana use, in a random drug test, he was terminated for violating the company’s drug policy. Coats brought an employment discrimination action against his employer, claiming that his termination was based on his state-licensed use of medical marijuana, in violation of the lawful activities statute, which made it an unfair and discriminatory labor practice to discharge an employee based on the employee’s lawful outside-of-work activities. The Colorado Supreme Court held that an activity (such as medical marijuana use) that is unlawful under federal law is not a “lawful” activity under the lawful activities statute, and the employee could be terminated for his use of medical marijuana in accordance with the Medical Marijuana Amendment of the Colorado state constitution. Eid, J. *** II. We review de novo the question of whether medical marijuana use prohibited by federal law is a “lawful activity” protected under [Colorado’s “lawful activities statute”]. The “lawful activities statute” provides that “[i]t shall be a discriminatory or unfair employment practice for an employer to terminate the employment of any employee due to that employee’s engaging in any lawful activity off the premises of the employer during nonworking hours” unless certain exceptions apply. An employee discharged in violation of this provision may bring a civil action for damages, including lost wages or benefits. By its terms the statute protects only “lawful” activities. However, the statute does not define the term “lawful.” Coats contends that the term should be read as limited to activities lawful under state law. We disagree. In construing undefined statutory terms, we look to the language of the statute itself “with a view toward giving the statutory language its commonly accepted and understood meaning” People v. Schuett. We have construed the term “lawful” once before and found that its “generally understood meaning” is “in accordance with the law or legitimate.” See id. (citing Webster’s Third New International Dictionary (1986)). Similarly, courts in other states have construed “lawful” to mean “authorized by law and not contrary to, nor forbidden by law.” Hougum v. Valley Memorial Homes (defining “lawful” as used in similar lawful activities provisions); In re Adoption of B.C.H. (“Upon our review of the plain and ordinary meaning page 214of ‘lawful custody,’ . . . ‘lawful’ means ‘not contrary to law.’”). We therefore agree with the court of appeals that the commonly accepted meaning of the term “lawful” is “that which is ‘permitted by law’ or, conversely, that which is ‘not contrary to, or forbidden by law.’” We still must determine, however, whether medical marijuana use that is licensed by the State of Colorado but prohibited under federal law is “lawful” for purposes of [Colorado’s “lawful activities statute”]. Coats contends that the General Assembly intended the term “lawful” here to mean “lawful under Colorado state law,” which, he asserts, recognizes medical marijuana use as “lawful.”  We do not read the term “lawful” to be so restrictive. Nothing in the language of the statute limits the term “lawful” to state law. Instead, the term is used in its general, unrestricted sense, indicating that a “lawful” activity is that which complies with applicable “law,” including state and federal law. We therefore decline Coats’s invitation to engraft a state law limitation onto the statutory language. See State Dep’t of Revenue v. Adolph Coors (declining to read a restriction into unrestricted statutory language); Turbyne v. People (stating that “[w]e do not add words to the statute”). Coats does not dispute that the federal Controlled Substances Act prohibits medical marijuana use. The CSA lists marijuana as a Schedule I substance, meaning federal law designates it as having no medical accepted use, a high risk of abuse, and a lack of accepted safety for use under medical supervision. This makes the use, possession, or manufacture of marijuana a federal criminal offense, except where used for federally approved research projects. There is no exception for marijuana use for medicinal purposes, or for marijuana use conducted in accordance with state law. Gonzales (finding that “[t]he Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail,” including in the area of marijuana regulation). Echoing Judge Webb’s dissent, Coats argues that because the General Assembly intended [Colorado’s “lawful activities statute”] to broadly protect employees from discharge for outside-of-work activities, we must construe the term “lawful” to mean “lawful under Colorado law.” In this case, however, we find nothing to indicate that the General Assembly intended to extend [Colorado’s “lawful activities statute”]’s protection for “lawful” activities to activities that are unlawful under federal law. In sum, because Coats’s marijuana use was unlawful under federal law, it does not fall within [Colorado’s “lawful activities statute”]’s protection for “lawful” activities. Having decided this case on the basis of the prohibition under federal law, we decline to address the issue of whether Colorado’s Medical Marijuana Amendment deems medical marijuana use “lawful” by conferring a right to such use. III. For the reasons stated above, we affirm the decision of the court of appeals.

Refence page 185 Bennett-Alexander, D. Employment Law for Business. [VitalSource Bookshelf]. Retrieved from https://online.vitalsource.com/#/books/9781260031805/

Drug Testing and “Legal” Marijuana Use

Attitudes toward marijuana use have become more lenient over the past couple of decades. As of 2016, 25 states, the District of Columbia, Guam, and Puerto Rico have legalized the use of marijuana for medical purposes.⁶² Additionally, as of 2016, Alaska, Colorado, Oregon, Washington, and Washington, D.C., also have legalized marijuana for recreational use. Other states are expected to pass similar laws in the near future. A few cities also permit the use of marijuana.⁶³ Despite the recent legalization, using marijuana is still a criminal act under federal law, listed in the same category as cocaine, heroin, LSD, and ecstasy.

Notwithstanding the above, employers in all 50 states and Washington, D.C., are permitted to regulate the use of marijuana by employees while they are at work.⁶⁴ Courts have upheld employers’ right to discharge employees who have positive drug tests. For example, in 2015 the Colorado Supreme Court held that an “employee could be terminated for his use of medical marijuana.”⁶⁵ In addition, the Americans with Disability Act does not require employers to accommodate the use of marijuana, even for medical purposes.

As laws on marijuana use continue to change, employers should review their substance abuse policies to ensure that their restrictions concerning marijuana use are consistent with the restrictions permitted in their respective jurisdictions. Employers should also review their job descriptions in order to ensure appropriate categorization of safety-sensitive positions or otherwise to ensure that they justify a policy against marijuana use for testing purposes. As with all types of preemployment testing, employers should be sure to treat all similarly situated employees and applicants in the same manner.⁶⁶