Pubdate: Thu, 03 Mar 2011
Source: San Francisco Chronicle (CA)
Copyright: 2011 Hearst Communications Inc.
Contact: http://www.sfgate.com/chronicle/submissions/#1
Website: http://www.sfgate.com/chronicle/
Details: http://www.mapinc.org/media/388
Author: Bob Egelko
Page: C - 2

'1-STRIKE' POT-TEST RULE FOR JOB HOPEFULS OKD

SAN FRANCISCO -- An employer can refuse to hire someone who has ever 
tested positive for marijuana or other drugs, even if the applicant 
is now clean and sober, a federal appeals court ruled Wednesday.

In a 2-1 decision, the Ninth U.S. Circuit Court of Appeals in San 
Francisco said the "one-strike" rule of the Pacific Maritime 
Association, which controls hiring in the West Coast longshore 
industry, doesn't discriminate against rehabilitated addicts in 
violation of disability laws.

The rule "imposes a harsh penalty on applicants who test positive," 
and may seem unreasonable because many drug and alcohol users 
recover, the court said. But it said the maritime association had 
adopted the rule for safety purposes and did not single out former addicts.

A lawyer for a man who lost a chance for a longshore job because he 
had tested positive for marijuana seven years earlier said she knows 
of no other employer, including law enforcement and the armed 
services, that permanently bars applicants because of a single 
positive drug test.

"This is a very draconian view that impacts potentially thousands of 
people," said the attorney, Andrea Cook. She said it also contradicts 
"public policy that says we want to encourage people to get better."

The maritime association's lawyer was unavailable for comment.

Cook's client, Santiago Lopez, was turned down for a longshore job at 
the Long Beach port in 1997 after he failed a drug test. He underwent 
treatment and applied again in 2004, but the association refused to 
consider him because of the earlier test.

His lawsuit relied on federal and state laws that protect 
rehabilitated addicts from discrimination. But the appeals court, 
upholding a federal judge's dismissal of the suit, said the 
association doesn't bar all recovered addicts, only those who were 
still using drugs when they first applied for a job.

The association adopted the one-strike rule, without objection from 
the longshore workers' union, because of accidents and injuries that 
employers partly blamed on "a culture that accepted the use of drugs 
and alcohol in the workplace," Judge Susan Graber wrote in the 
appeals court's majority opinion.

Lopez could not show that the rule had a disproportionate effect on 
recovered addicts, Graber said, because he had no evidence of anyone 
else in that category who had been turned down. Dissenting Judge 
Harry Pregerson said the court was imposing an unfair burden because 
employers and recovery organizations keep that information private.

Cook said Lopez, now 36, has graduated from college, is raising a 
family and is employed, though for less pay than the coveted 
longshore jobs. She said he may appeal the ruling.

The ruling can be viewed at links.sfgate.com/ZKWX.
- ---
MAP posted-by: Keith Brilhart