Contributions

Are Drug-Free Workplace Policies Discriminatory?

by Tian Lei1

An increas­ing num­ber of states have begun to reg­u­late med­ical mar­i­jua­na use. One com­mon approach to reg­u­lat­ing med­ical mar­i­jua­na is to require patients to reg­is­ter for med­ical mar­i­jua­na cards. Med­ical mar­i­jua­na cards allow the card­hold­er to legal­ly use mar­i­jua­na, sub­ject to var­i­ous restric­tions, when a doc­tor rec­om­mends usage as treat­ment for a par­tic­u­lar health con­di­tion.2 Some states have gone fur­ther by pro­hibit­ing dis­crim­i­na­tion by employ­ers on the basis of med­ical mar­i­jua­na use or card­hold­er sta­tus.3 How­ev­er, only four states explic­it­ly require employ­ers to make rea­son­able work­place accom­mo­da­tions for med­ical mar­i­jua­na card­hold­ers.4

Changes in state laws across the Unit­ed States present new ques­tions to employ­ers who hire med­ical mar­i­jua­na users and card­hold­ers. New anti-dis­crim­i­na­tion laws pro­vide pro­tec­tions to med­ical mar­i­jua­na card­hold­ers, but they also cre­ate grow­ing con­cerns for employ­ers around com­pli­ance with fed­er­al law, com­pa­ny health care and employ­ment poli­cies, and ran­dom employ­ee drug test­ing.

Gen­er­al­ly, employ­ers have long main­tained anti-drug stances, and state courts fre­quent­ly rec­og­nize an employer’s legit­i­mate inter­est in main­tain­ing a drug-free work­place. How­ev­er, courts have dif­fered in how they adju­di­cate dis­crim­i­na­tion claims where employ­ers’ drug-free work­place poli­cies have made it dif­fi­cult or impos­si­ble for employ­ees to ful­fill their duties. Courts have not required employ­ers to make any accom­mo­da­tions for med­ical mar­i­jua­na users unless those accom­mo­da­tions are explic­it­ly required by statute. This Con­tri­bu­tion argues that state statutes that pro­hib­it dis­crim­i­na­tion against med­ical mar­i­jua­na card­hold­ers but do not require employ­ers to make rea­son­able accom­mo­da­tions will rarely sup­port a suc­cess­ful dis­crim­i­na­tion claim. Rather, such statutes leave space for employ­ers to main­tain drug-free work­place poli­cies and legit­imize dis­crim­i­na­to­ry employ­ment actions against med­ical mar­i­jua­na card­hold­ers.

A num­ber of states have statu­to­ry anti-dis­crim­i­na­tion pro­vi­sions that pro­tect med­ical mar­i­jua­na card­hold­ers by lim­it­ing an employer’s abil­i­ty to refuse to hire, dis­charge, penal­ize, or threat­en an employ­ee on the basis of their sta­tus as a med­ical mar­i­jua­na card­hold­er.5, 6 In Gross v. FBL Finan­cial Ser­vices, Inc., the Unit­ed States Supreme Court estab­lished that dis­crim­i­na­tion claims aris­ing under statutes with sim­i­lar anti-dis­crim­i­na­tion pro­vi­sions should be ana­lyzed under the McDon­nell Dou­glas bur­den-shift­ing frame­work.7 The plain­tiff has the bur­den of estab­lish­ing a pri­ma facie case of dis­crim­i­na­tion by show­ing that they: (1) are a mem­ber of a pro­tect­ed class; (2) per­formed the job sat­is­fac­to­ri­ly; (3) suf­fered an adverse employ­ment action that (4) occurred under cir­cum­stances giv­ing rise to an infer­ence of dis­crim­i­na­tion.8 If the plain­tiff is able to estab­lish a pri­ma facie case of dis­crim­i­na­tion, then the bur­den falls “to the employ­er to artic­u­late some legit­i­mate, nondis­crim­i­na­to­ry rea­son” for the plaintiff’s ter­mi­na­tion.9 If the employ­er is able to meet their bur­den, then the bur­den shifts back to the plain­tiff to “prove by a pre­pon­der­ance of the evi­dence” that their mem­ber­ship in a pro­tect­ed class “was the ‘but-for’ cause of the chal­lenged employ­er deci­sion.”10

Though the evi­den­tiary bar for estab­lish­ing a pri­ma facie case is rel­a­tive­ly low,11 employ­ees who bring dis­crim­i­na­tion claims on the basis of med­ical mar­i­jua­na card­hold­er sta­tus may have dif­fi­cul­ty demon­strat­ing the fourth ele­ment of the McDon­nell Dou­glas bur­den-shift­ing frame­work, which requires a plain­tiff to estab­lish that the adverse employ­ment deci­sion occurred under cir­cum­stances giv­ing rise to an infer­ence of dis­crim­i­na­tion. An infer­ence of dis­crim­i­na­tion can gen­er­al­ly be shown in one of two ways: indi­rect­ly, by show­ing that sim­i­lar­ly sit­u­at­ed employ­ees out­side of the pro­tect­ed class were treat­ed more favor­ably, or direct­ly, by show­ing that there is evi­dence of a causal link between plaintiff’s pro­tect­ed sta­tus and the adverse employ­ment action.12

The indi­rect route may or may not be avail­able to an employ­ee depend­ing on the make­up of their work­place and whether an appro­pri­ate com­para­tor employ­ee group is avail­able. Many cir­cuits require the com­para­tor employ­ee to be sim­i­lar­ly sit­u­at­ed in all rel­e­vant respects to the plain­tiff in order to elim­i­nate oth­er explana­to­ry vari­ables for the adverse employ­ment action.13 Find­ing an appro­pri­ate com­para­tor employ­ee is often chal­leng­ing. The com­para­tor must have the same posi­tion, respon­si­bil­i­ties, and often senior­i­ty as the plain­tiff to sup­port the nec­es­sary com­par­a­tive analy­sis.14

The direct route also pos­es chal­lenges. To estab­lish an infer­ence of dis­crim­i­na­tion, the plain­tiff needs to point to evi­dence that sug­gests dis­crim­i­na­to­ry ani­mus on the part of the employ­er. In cas­es alleg­ing dis­crim­i­na­tion on the basis of med­ical mar­i­jua­na sta­tus, evi­dence of dis­crim­i­na­to­ry ani­mus might include neg­a­tive com­ments or stereo­types made mar­i­jua­na users.15 How­ev­er, such direct evi­dence is rarely avail­able in employ­ment dis­crim­i­na­tion cas­es since employ­ers will gen­er­al­ly con­ceal their true moti­va­tions for tak­ing adverse employ­ment actions.16

Direct evi­dence is even more dif­fi­cult to come by in cas­es of dis­crim­i­na­tion against med­ical mar­i­jua­na card­hold­ers because many employ­ers main­tain drug-free work­place poli­cies. Gen­er­al­ly, drug-free work­place poli­cies pro­hib­it employ­ees from being in the work­place or work­ing while under the influ­ence of ille­gal sub­stances. As a result, an employ­ee who relies on med­ical mar­i­jua­na treat­ment dur­ing work hours may be unable to go to their work­place or work with­out poten­tial­ly vio­lat­ing their employer’s work­place pol­i­cy. Such an employee’s per­for­mance will dimin­ish if the employ­er is unwill­ing to accom­mo­date their med­ical mar­i­jua­na use.

A plain­tiff may face sim­i­lar chal­lenges after the pri­ma facie stage of the McDon­nell Dou­glas analy­sis when they are required to show that their med­ical mar­i­jua­na sta­tus was the “but-for” cause of their ter­mi­na­tion.17 The plain­tiff must present evi­dence that the employer’s prof­fered rea­sons for the adverse employ­ment action were either false or not the decid­ing fac­tor for the action. How­ev­er, where an employer’s drug-free work­place pol­i­cy makes it impos­si­ble for employ­ees to go to work, com­plete their work oblig­a­tions, or per­form their job opti­mal­ly, an employ­er is con­ve­nient­ly left with a legit­i­mate and non-dis­crim­i­na­to­ry rea­son for ter­mi­na­tion. Courts have not yet addressed whether com­ments or remarks about an employee’s per­for­mance in rela­tion to their med­ical mar­i­jua­na use con­sti­tutes evi­dence of dis­crim­i­na­tion.

State courts have tak­en vary­ing approach­es to employ­ment dis­crim­i­na­tion claims aris­ing from statutes which pro­vide med­ical mar­i­jua­na card­hold­er sta­tus. Some state courts have found that med­ical mar­i­jua­na leg­is­la­tion has not dimin­ished an employer’s abil­i­ty and inter­est in main­tain­ing a drug-free work­place pol­i­cy and have allowed employ­ers to enforce such poli­cies. For exam­ple, in Ross v. Rag­ing Wire Telecom­mu­ni­ca­tions, Inc., the Cal­i­for­nia Supreme Court held that the state’s med­ical mar­i­jua­na law did not allow an employ­ee who was fired for vio­lat­ing an employer’s drug-free work­place pol­i­cy to bring a suit for wrong­ful ter­mi­na­tion.18  The use of med­ical mar­i­jua­na is per­mit­ted under the Cal­i­for­nia Com­pas­sion­ate Use Act of 1996, which pro­vides that “seri­ous­ly ill Cal­i­for­ni­ans have the right to obtain and use mar­i­jua­na for med­ical pur­pos­es where that med­ical use is deemed appro­pri­ate and has been rec­om­mend­ed by a physi­cian.…”19 The court in Ross also found that the Cal­i­for­nia Fair Employ­ment and Hous­ing Act (“FEHA”) and the Com­pas­sion­ate Use Act (“CUA”)—which togeth­er decrim­i­nal­ize mar­i­jua­na and pro­tect med­ical mar­i­jua­na users from crim­i­nal pros­e­cu­tion—d[o] not elim­i­nate mar­i­jua­na’s poten­tial for abuse or the employ­er’s legit­i­mate inter­est in whether an employ­ee uses the drug.”20 Col­orado, Wash­ing­ton, Ore­gon, and Mon­tana have com­pa­ra­ble statutes and their respec­tive state courts have all reached hold­ings sim­i­lar to that of the Cal­i­for­nia Supreme Court in Ross.21 Notably, the rel­e­vant Cal­i­for­nia statutes in Ross do not con­tain an anti-dis­crim­i­na­tion pro­vi­sion. As such, the hold­ing in Ross implies that state med­ical mar­i­jua­na laws do not speak to or expand employ­ment law.22

The court in Ross refused to make an infer­ence of dis­crim­i­na­tion from the employer’s main­te­nance and enforce­ment of a drug-free work­place pol­i­cy alone.23 Instead, the court found that the employee’s inabil­i­ty to com­ply with drug-free work­place poli­cies with­out accom­mo­da­tions was a legit­i­mate rea­son for adverse employ­ment action.24 Fur­ther, the court not­ed that refusal to accom­mo­date the plain­tiff was not indica­tive of dis­crim­i­na­to­ry intent, nor did it ren­der the drug-free work­place pol­i­cy ille­git­i­mate.25

A recent deci­sion by the Rhode Island Supe­ri­or Court depart­ed from the approach tak­en in Ross. In Callaghan v. Dar­ling­ton Fab­rics Corp., the plain­tiff, Callaghan, brought a dis­crim­i­na­tion claim alleg­ing that an employ­er had failed to hire her for an intern­ship because of her med­ical mar­i­jua­na card­hold­er sta­tus.26 Dur­ing a pre-employ­ment meet­ing with the employ­er, Callaghan signed the employer’s Fit­ness for Duty State­ment acknowl­edg­ing that she would have to take a drug test pri­or to being hired.27 Callaghan also dis­closed that she was a reg­is­tered med­ical mar­i­jua­na card­hold­er under Rhode Island’s Hawkins-Slater Act, con­firmed that she was cur­rent­ly using med­ical mar­i­jua­na, and indi­cat­ed that, as a result, she would not pass the required pre-employ­ment screen­ing.28 The employ­er informed her that they would be unable to hire her because she “could not com­ply with the Corporation’s drug-free work­place pol­i­cy. . . .”29

The Hawkins-Slater Act pro­vides that “[n]o employ­er may refuse to employ, or oth­er­wise penal­ize, a per­son sole­ly for his or her sta­tus as a card­hold­er.”30 How­ev­er, the Act does not require an employ­er to accom­mo­date the use of med­ical mar­i­jua­na in the work­place.31 The employ­er argued that they did not refuse to hire Callaghan sole­ly because of her card­hold­er sta­tus but also because she was unable “to pass a manda­to­ry pre-employ­ment screen.”32

The Rhode Island Supe­ri­or Court reject­ed this argu­ment and found that there was no real dif­fer­ence between the two rea­sons artic­u­lat­ed by the employ­er. The court held that the rel­e­vant sec­tion of the Act barred employ­ers from refus­ing to employ a per­son because of their card­hold­er sta­tus “and that that right may not be denied for med­ical use of mar­i­jua­na.”33 The court thus grant­ed the plaintiff’s motion for sum­ma­ry judg­ment and con­clud­ed that the employer’s adverse employ­ment action was dis­crim­i­na­to­ry.34

Notably, the Callaghan court found that the employer’s pol­i­cy did not state that a pos­i­tive drug test result would “be cause for with­draw­al of the job offer.”35 As such, it is still pos­si­ble to read Callaghan as being in line with Ross and argue that the Callaghan court reached their hold­ing by rely­ing on the employer’s pre­ma­ture assump­tion that fail­ure to pass a drug-test would mean that Callaghan would be unfit for work. Fur­ther­more, as not­ed by the court in Ross, the rel­e­vant Cal­i­for­nia statutes do not have a com­pa­ra­ble anti-dis­crim­i­na­tion pro­vi­sion.36 This might also explain the dif­fer­ence in out­come. Only four oth­er states (Maine, Okla­homa, Penn­syl­va­nia, and West Vir­ginia) have an anti-dis­crim­i­na­tion pro­vi­sion explic­it­ly stat­ing that employ­ers are not required to make rea­son­able accom­mo­da­tions for med­ical mar­i­jua­na card­hold­ers like Rhode Island’s Hawkins-Slater Act. How­ev­er, none of the courts in these states have addressed the ques­tion pre­sent­ed here under their respec­tive statutes.

While the Rhode Island Supe­ri­or Court acknowl­edged that the Hawkins-Slater Act con­tem­plates the risk of work­ing under the influ­ence, it did not ulti­mate­ly clar­i­fy whether employ­ers are able to main­tain drug-free work­place poli­cies, to the exclu­sion of med­ical mar­i­jua­na users. It is unclear whether an employ­er would be able to jus­ti­fy the ter­mi­na­tion of an employ­ee who was unable to meet work oblig­a­tions due to their med­ical mar­i­jua­na use and lack of accom­mo­da­tions in the work­place. In oth­er words, it is unclear whether the plain­tiff would have a valid claim if her employ­er did hire her in the first instance and then ter­mi­nat­ed her at a lat­er date for her med­ical mar­i­jua­na use.

But Callaghan, unlike Ross, acknowl­edges that an employer’s drug-free work­place poli­cies in com­bi­na­tion with refusal to accom­mo­date med­ical mar­i­jua­na users often leaves card­hold­ers and patients with one non­sen­si­cal option: they may remain a pro­tect­ed card­hold­er but must refrain from actu­al­ly using med­ical mar­i­jua­na. The Callaghan court could have very well reached its hold­ing by dif­fer­en­ti­at­ing itself on the facts from Ross and oth­er states. It instead chose to explic­it­ly reject the employer’s attempt to dif­fer­en­ti­ate between med­ical mar­i­jua­na use and card­hold­er sta­tus. The court found that draw­ing such a dis­tinc­tion would defeat the leg­isla­tive pur­pose of pro­tect­ing med­ical mar­i­jua­na card­hold­ers from employ­ment dis­crim­i­na­tion.

If we accept that there is not real dis­tinc­tion between med­ical mar­i­jua­na use and med­ical mar­i­jua­na card­hold­er sta­tus, then courts would have to do one of two things in a future case if a plain­tiff like Callaghan lat­er chose to sue for wrong­ful ter­mi­na­tion: (1) require that the employ­er adjust their drug-free work­place pol­i­cy (to pro­vide Callaghan with what might approx­i­mate a rea­son­able accom­mo­da­tion); or (2) find that main­tain­ing and enforc­ing a drug-free work­place pol­i­cy is not a legit­i­mate non-dis­crim­i­na­to­ry rea­son for ter­mi­nat­ing a med­ical mar­i­jua­na cardholder/user. Under either of these cir­cum­stances, the vio­la­tion of a drug-free work­place pol­i­cy or the refusal to accom­mo­date med­ical mar­i­jua­na use would not be a valid jus­ti­fi­ca­tion for the ter­mi­na­tion of a med­ical mar­i­jua­na card­hold­er.

Fur­ther­more, if courts allow employ­ers to main­tain drug poli­cies that effec­tive­ly bar employ­ees from com­ing to their place of work or com­plet­ing their duties and legit­imize an employer’s inter­est in doing so, then a med­ical mar­i­jua­na card­hold­er will rarely be able to bring a dis­crim­i­na­tion claim. It is like­ly that the card­hold­er will be unable to make out a pri­ma facie case of dis­crim­i­na­tion because there is no evi­dence giv­ing rise to an infer­ence of dis­crim­i­na­tion. Even where they can meet their pri­ma facie bur­den, the card­hold­er will be unable to show but-for cau­sa­tion because the employ­er will always be able to cite the employee’s absence from the work­place or inabil­i­ty to con­form with work­place pol­i­cy as a legit­i­mate rea­son for the adverse employ­ment action.

Drug-free work­place poli­cies often leave card­hold­er employ­ees with an impos­si­ble choice between their health and their liveli­hood. Many state statutes lack any require­ment of rea­son­able accom­mo­da­tions for med­ical mar­i­jua­na card­hold­ers and courts fre­quent­ly avoid the ques­tion by dif­fer­en­ti­at­ing between card­hold­er sta­tus and med­ical mar­i­jua­na use. There­fore, employ­ees who rely on med­ical mar­i­jua­na for treat­ment are unable to bring dis­crim­i­na­tion claims when they face adverse employ­ment action for their nec­es­sary and pro­fes­sion­al­ly pro­scribed med­ical mar­i­jua­na use. In order for states to actu­al­ly pro­tect med­ical mar­i­jua­na card­hold­ers from dis­crim­i­na­tion, there must be some inter­ro­ga­tion of the scope and legit­i­ma­cy of drug-free work­place poli­cies.

Notes:

1. Tian Lei is a J.D. Can­di­date (2021) at New York Uni­ver­si­ty School of Law. This piece is a com­men­tary on the prob­lem pre­sent­ed at the 2020 Robert F. Wag­n­er Nation­al Labor and Employ­ment Law Moot Court Com­pe­ti­tion at New York Law School. The prob­lem addressed whether an employ­er could prop­er­ly ter­mi­nate a med­ical mar­i­jua­na card­hold­ing employ­ee who was unable to ful­fill their work oblig­a­tions because the company’s drug-free work­place pol­i­cy barred them from com­ing to work, and where the employ­er was not required to make rea­son­able accom­mo­da­tions but is pro­hib­it­ed from dis­crim­i­nat­ing on the basis of card­hold­er sta­tus under state law. The views expressed in this arti­cle do not nec­es­sar­i­ly rep­re­sent the views of the author on this point of law. Rather, the arti­cle is a dis­til­la­tion of one side of an argu­ment assigned to the author’s team at the Wag­n­er Labor Law Moot Court Com­pe­ti­tion.

2. See, e.g., Dob­son v. McClen­nen, 361 P.3d 374, 375 (Ariz. 2015) (“The Ari­zona Med­ical Mar­i­jua­na Act (“AMMA”) . . . allows a per­son who has been diag­nosed by a physi­cian as hav­ing a debil­i­tat­ing med­ical con­di­tion to apply for a card iden­ti­fy­ing the hold­er as a reg­is­tered qual­i­fy­ing patient. Such patients may pos­sess and use lim­it­ed amounts of mar­i­jua­na for med­ical rea­sons. The AMMA broad­ly immu­nizes them from pros­e­cu­tion for using med­ical mar­i­jua­na con­sis­tent with the Act.”).

3. Laws in nine­teen states (Ari­zona, Arkansas, Con­necti­cut, Delaware, Illi­nois, Maine, Mary­land, Mass­a­chu­setts, Min­neso­ta, Mon­tana, Neva­da, New Jer­sey, New Mex­i­co, New York, Okla­homa, Penn­syl­va­nia, Rhode Island, Ver­mont and West Vir­ginia) pro­hib­it employ­ers from dis­crim­i­nat­ing against work­ers on the basis of med­ical mar­i­jua­na use. See gen­er­al­ly Therese A. Clarke Ara­do & Annie Men­tkows­ki, Med­ical Mar­i­jua­na: An Overview of Select Resources, 35 N. Ill. U. L. Rev. 461 (2015).

4. Only four states (Mass­a­chu­setts, Neva­da, New York, and Ver­mont) have pro­vi­sions requir­ing employ­ers to make rea­son­able accom­mo­da­tions for employ­ees who are med­ical mar­i­jua­na users or card­hold­ers. See Mass. Gen. Laws Ann. ch. 151B, § 4.1(A) (West 2018); Nev. Rev. Stat. Ann. § 453A.800(3) (West 2014); N.Y. Pub. Health Law § 3363.10(d) (McK­in­ney 2014); Vt. Stat. Ann. Tit. 21, § 495(a) (West 2018).

5. Here­in after referred to as an “anti-dis­crim­i­na­tion pro­vi­sion.”

6. It is worth not­ing that some states pro­tect card­hold­ers under exist­ing leg­is­la­tion that pro­hibits dis­crim­i­na­tion on the basis of “dis­abil­i­ty” by cat­e­go­riz­ing med­ical mar­i­jua­na card­hold­er sta­tus as a dis­abil­i­ty. Such statutes could arguably be ana­lyzed under a dif­fer­ent line of prece­dent relat­ed to the Amer­i­cans with Dis­abil­i­ties Act (“ADA”). Such argu­ments are beyond the scope of this arti­cle and are not cov­ered. See, e.g., N.Y. Pub. Health Law § 3369 (McK­in­ney).

7. See Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 175–77 (2009) (hold­ing that the Age Dis­crim­i­na­tion in Employ­ment Act of 1967, which pro­hib­it­ed dis­crim­i­na­tion “because of” age, did not allow employ­ees to bring mixed-motive claims against the employ­er and that the McDon­nell Dou­glas bur­den-shift­ing evi­den­tiary frame­work should be applied when ana­lyz­ing such claims).

8. See McDon­nell Dou­glas Corp. v. Green, 411 U.S. 792, 802 (1973) (estab­lish­ing the evi­den­tiary frame­work for ana­lyz­ing dis­crim­i­na­tion claims on the basis of some pro­tect­ed char­ac­ter­is­tic).

9. Id.

10. Gross, 557 U.S. at 177–78.

11. See St. Mary’s Hon­or Ctr. v. Hicks, 509 U.S. 502, 506 (1993) (hold­ing that the plain­tiff sat­is­fied the bur­den of a pri­ma facie case by a pre­pon­der­ance of the evi­dence).

12. See gen­er­al­ly Young v. Unit­ed Par­cel Serv., Inc., 575 U.S. 206, 228 (2015) (dis­cussing how an employer’s work­place poli­cies that explic­it­ly ref­er­enced pregnancy—a pro­tect­ed characteristic—and the employer’s will­ing­ness to accom­mo­date oth­er non-preg­nant employ­ees, “give rise to an infer­ence of inten­tion­al dis­crim­i­na­tion”).

13. See also Perez v. Thorn­tons, Inc., 731 F.3d 699, 704 (7th Cir. 2013) (find­ing that the com­para­tor employ­ee must be “direct­ly com­pa­ra­ble . . . in all mate­r­i­al respects”); Ris­er v. Tar­get Corp., 458 F.3d 817, 822 (8th Cir. 2006) (hold­ing that co-work­ers were not sim­i­lar­ly sit­u­at­ed because they had dif­fer­ent job posi­tions with dif­fer­ent duties). Cf. Reed v. Free­dom Mortg. Corp., 869 F.3d 543, 549 (7th Cir. 2017) (find­ing that “the objec­tive is to elim­i­nate oth­er pos­si­ble explana­to­ry vari­ables such as dif­fer­ing roles, per­for­mance his­to­ries, or deci­sion-mak­ing per­son­nel. . . .”).

14. See gen­er­al­ly Diaz v. Kraft Foods Glob­al, Inc., 653 F.3d 582, 590 (7th Cir. 2011) (find­ing that even employ­ees who held the same posi­tion as peti­tion­er but earned high­er salaries because of their senior­i­ty were not sim­i­lar­ly sit­u­at­ed to peti­tion­er); Hill v. City of Pine Bluff, Ark., 696 F.3d 709, 712 (8th Cir. 2012) (same); Hol­brook v. Reno, 196 F.3d 255, 262 (D.C. Cir. 1999) (same).

15. See Kat­seanes v. Time Warn­er Cable, Inc., 511 F. App’x 340, 344–45 (5th Cir. 2013) (find­ing that com­ments that are relat­ed to the pro­tect­ed class of per­sons, prox­i­mate in time to the adverse employ­ment action, made by an indi­vid­ual with author­i­ty over the employ­ment deci­sion, and suf­fi­cient­ly relat­ed to the employ­ment deci­sion at issue, are suf­fi­cient evi­dence of dis­crim­i­na­tion).

16. See, e.g., Kol­stad v. Am. Den­tal Assoc., 527 U.S. 526, 551 (1999) (Stevens, J., con­cur­ring in part and dis­sent­ing in part) (observ­ing that “[a]n employ­er, may, for exam­ple, . . . con­ceal evi­dence regard­ing its ‘true’ selec­tion pro­ce­dures because it knows they vio­late fed­er­al law”); Price Water­house v. Hop­kins, 490 U.S. 228, 271 (1989) (O’Connor, J., con­cur­ring) (“[T]he entire pur­pose of the McDon­nell Dou­glas pri­ma facie case is to com­pen­sate for the fact that direct evi­dence of inten­tion­al dis­crim­i­na­tion is hard to come by.”); Unit­ed States Postal Serv. Bd. of Gov­er­nors v. Aikens, 460 U.S. 711, 716 (1983) (not­ing that “[t]here will sel­dom be ‘eye­wit­ness’ tes­ti­mo­ny as to the employer’s men­tal process­es”).

17. State statutes that pro­tect med­ical mar­i­jua­na users or card­hold­ers from employ­ment dis­crim­i­na­tion all pro­tect employ­ees “on the basis” of med­ical mar­i­jua­na sta­tus rather than allow­ing the pro­tect­ed sta­tus to be “a moti­vat­ing fac­tor” in the deci­sion. This means that a dis­crim­i­na­tion claim based on a mixed motive analy­sis is not avail­able to them. See Gross v. FBL Finan­cial Ser­vices, Inc., 557 U.S. 167, 174 (2009) (hold­ing that the Age Dis­crim­i­na­tion in Employ­ment Act of 1967 does not allow for mixed motive actions because it does not explic­it­ly per­mit dis­crim­i­na­tion claims where age is just “a moti­vat­ing fac­tor”).

18. Ross v. Rag­ing Wire Telecomms., Inc., 174 P.3d 200, 203 (Cal. 2008).

19. Cal. Health & Safe­ty Code § 11362.5(b)(1)(A) (West 2020).

20. Ross, 174 P.3d at 205.

21. Cf. Coats v. Dish Net­work, LLC, 350 P.3d 849 (Colo. 2015); Roe v. TeleTech Cus­tomer Care Mgmt. LLC, 257 P.3d 586 (Wash. 2011); Emer­ald Steel Fab­ri­ca­tors, Inc. v. Bureau of Labor & Indus., 230 P.3d 518 (Or. 2010); John­son v. Colum­bia Falls Alu­minum Co., LLC, 2009 MT 108N.

22. See Ross, 174 P.3d at 204 (find­ing that the FEHA and CUA do not require employ­ers to accom­mo­date the use of ille­gal drugs like med­ical mar­i­jua­na).

23. Id. at 207 (find­ing that the employ­er was not required to make accom­mo­da­tions under the FEHA and CUA and there­fore did not dis­crim­i­nate against med­ical mar­i­jua­na card­hold­ers who were unable to work while com­ply­ing with drug-free work­place poli­cies).

24. Id.

25. Id.

26. Callaghan v. Dar­ling­ton Fab­rics Corp., No. PC-2014–5680, 2017 WL2321181 at *1 (R.I. Super. Ct. May 23, 2017).

27. Id.

28. Id.

29. Id.

30. R.I. Gen. Laws Ann. § 21–28.6–4(e) (West 2020).

31. The Hawkins-Slater Act § 21–28.6–7(b)(2) pro­vides that “[n]othing in this chap­ter shall be con­strued to require . . . [a]n employ­er to accom­mo­date the med­ical use of mar­i­jua­na in any work­place.” 21 R.I. Gen. Laws Ann. § 21–28.6–4 (West 2020).

32. Callaghan, 2017 WL2321181, at *8 (inter­nal quo­ta­tion marks omit­ted).

33. Id. at *9.

34. Id. at *15.

35. Id. at *10.

36. See Ross v. Rag­ing Wire Telecomms., Inc., 174 P.3d 200, 204 (Cal. 2008).