'1-strike' pot-test rule for job hopefuls OKd COURTS

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.