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