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In a time in which often times there is a fine line between what is and is not considered discrimination, many employers are adding drug testing to their list of “don’t” when considering employment screening for prospective employees.  The concern is that while employers will want to avoid hiring someone with a history of drug use, they may face accusations of discrimination if refusing employment, particularly if the person is a rehabilitated drug addict and is deemed disabled under the guidelines of the Americans with Disabilities Act (ADA).  The Ninth Circuit Court of Appeals, however, has ruled that strict drug use policies that bar former addicts from employment are not in violation of any laws.

Both the ADA and the California Fair Employment and Housing Act (FEHA) prohibit any sort of hiring discrimination against a person who has successfully been rehabilitated from a drug addiction.  There have been instances of people being refused employment due to failing a drug testing requirement.  After rehabilitation, they have been refused employment a second time by the same company.  These have been met with a lawsuit backed by the ADA and FEHA claiming discrimination against recovering addicts.

The Court of Appeals disagrees with the ADA and FEHA, and has stated that due to a prior failed drug test, whether a person suffers from addiction or is a recreational drug user, they can be refused employment.  The Court states that the failed drug test is the event that triggered the action of the company, not the applicant’s addiction.  Even if an applicant passes every aspect of the background check but fails a drug test and reapplies, he or she can be refused employment a second time without any recourse against the company doing the hiring.

(Lopez v. Pacific Maritime Association, 9th Cir. Court of Appeals No. 09-55698, 2011)

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