Recognizing that "unreasonable rules do not necessarily violate the ADA or the FEHA," the Ninth Circuit Court of Appeals held in Lopez v. Pacific Maritime Ass'n that a "one strike rule" – which permanently eliminated from employment any applicant who tested positive for drug or alcohol use during the pre-employment screening process – did not violate disability discrimination laws.
While past drug addiction constitutes a protected disability under federal and state law, the court held that the plaintiff – who tested positive for marijuana in a pre-employment drug test seven years prior his most recent application for employment – could not assert either a claim of intentional or "disparate impact" discrimination under the circumstances presented. The court determined that there was no evidence of intentional discrimination because the rule was implemented for legitimate reasons – i.e., to reduce the use of drugs and alcohol in the workplace and related accidents – and did not unlawfully target recovering or recovered drug addicts. The court also determined that there was no evidence that the policy had a disproportionate impact on recovered drug addicts, because the plaintiff could not produce data which compared the defendant's workforce against the relevant labor pool (i.e., the plaintiff had no evidence which showed the defendant disproportionately excluded recovered drug addicts).
Even though the employer prevailed in Lopez under the specific facts of that case, it is important to note that had the plaintiff been able to produce evidence of how the policy disproportionately affected recovered drug addicts, the result may have been different. Any policy that has the effect of negatively impacting a protected classification – even if facially neutral – is subject to heavy scrutiny and possible challenges.