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Mary Clay Morgan is a member of the firm's Litigation Practice Group, Labor and Employment Practice Group, and Financial Services Litigation and Compliance Team. Her practice primarily involves the representation of defendants in both state and federal courts at the trial and appellate levels. View articles by Mary Clay

Weeding Out a Job Candidate, Literally: Connecticut Court Weighs in on Medical Marijuana Laws and Drug TestsWhat do you do with employees who use “legal” marijuana in violation of your Drug-Free Workplace Policy? So far, 30 states and the District of Columbia have enacted laws permitting use of marijuana for medical purposes, and eight states and the District of Columbia have legalized recreational use. Several other states are currently considering similar legislation. As marijuana use becomes increasingly permissible under state law, but remains illegal under federal law, many employers are left wondering how to enforce their existing drug-testing or drug-free workplace policies. Can you apply your no tolerance drug policy to a medical marijuana user? Not according to one federal court in Connecticut.

The Facts

Connecticut’s law prohibits employers from terminating or refusing to hire a person “solely on the basis” of that person’s “status as a qualifying patient” who uses medical marijuana. In Noffsinger v. SSC Niantic Operating Company, LLC, the court held that SSC violated the Connecticut law when it rescinded a job offer to Katelin Noffsinger after she failed a pre-employment drug test due to her use of medical marijuana.

Ms. Noffsinger accepted SSC’s job offer, but the offer was contingent on her passing a drug test. Before she took the drug test, Ms. Noffsinger disclosed that she suffered from PTSD, and that she was a registered participant in Connecticut’s medical marijuana program to treat it. She informed SSC that she used medical marijuana in the evenings, not during working hours. She even showed SSC a copy of her registration certificate required by the law and an empty pill container that showed the name and dosage information of her marijuana pills. Unsurprisingly, her drug screen was positive for marijuana, and SSC rescinded her job offer. Ms. Noffsinger sued for violation of the Connecticut law, and SSC removed the case to federal court.

SSC asserted that the positive drug test disqualified Ms. Noffsinger for the job because SSC, a federal contractor, adopted a drug testing policy that followed the federal law and “medical marijuana is not an approved prescription” under the drug-testing program. In its defense, SSC emphasized that, as a federal contractor, it was required to follow the federal Drug Free Workplace Act, and that the federal act preempted the Connecticut state law.

The court rejected this argument, noting that the federal law requires federal contractors to make a “good faith effort” to maintain a drug-free workplace, but does not require a zero-tolerance drug-testing policy such as SSC’s policy. Instead, the court held that the federal law is focused on preventing use of drugs in the workplace, not use of any drugs outside of the workplace, much less the use of medical marijuana.

SSC also argued that the Connecticut law only protects against discrimination based on a person’s “status” as a medical marijuana user, not their actual “use” of the drug. Given that SSC did not rescind Ms. Noffsinger’s job offer when she disclosed her “status” as a participant in the medical marijuana program (only after she failed their standard pre-employment drug test), SSC argued that it did not base the decision on her status. The court said this argument “made no sense,” and would frustrate the purpose of the state law’s anti-discrimination provision — to protect people who use medical marijuana from adverse action by their employers.

Takeaways

For employers, this case is a reminder to be aware of any local or state laws regarding medical or recreational marijuana use that may apply to your employees. If you aren’t sure whether your state has legalized marijuana in some form, do some research. Although not every court is going to agree with this Connecticut decision, don’t assume that relying on federal law, or continuing to enforce the drug-testing policy you’ve always used, will avoid liability.

 The Continuing “Trans-formation” of Title VII: Texas Federal Court Holds Transgender People Have Title VII ProtectionA Texas district court recently held, for the first time in the Fifth Circuit, that transgender people are a protected class under Title VII—but the plaintiff still lost her case. In Wittmer v. Phillips 66 Company, the Houston-based federal court relied on recent opinions from the Second and Sixth Circuits to hold that the plaintiff’s “status as a transgender woman places her under the protections of Title VII.” Despite that protection, the court ultimately concluded that Phillips did not treat her differently based on that protected status.

Facts

Nicole Wittmer had a successful interview for a position as an engineer at a Phillips refinery. During the interview, Wittmer explained that she was interested in a new position because of the travel requirements of her current job. Phillips offered Wittmer the position, conditioned on the satisfactory completion of a background check. The background check revealed that, contrary to Wittmer’s representations in the interview, she had already been terminated by her prior employer. When Phillips asked her to explain this discrepancy, Wittmer began an aggressive email campaign claiming Phillips had discovered after her interview that she was transgender, and was changing its hiring decision for that reason. Phillips ultimately rescinded its offer of employment, and Wittmer sued for transgender discrimination under Title VII. At the close of discovery, Phillips moved for summary judgment on the grounds that transgender status is not protected under Title VII but even if it was, Phillips had a legitimate, nondiscriminatory reason for the decision—Wittmer’s apparent lie during the interview.

The District Court’s Decision

The district court recognized that, while it has long been the law that Title VII protects against discrimination based on a person’s failure to conform to traditional gender stereotypes, the Fifth Circuit has not yet extended Title VII to protect transgender persons. But the court noted that, over the last years, several other courts have broadened Title VII’s protections to include discrimination based on both transgender status and sexual orientation. The Texas court stated that these opinions from other courts — “applying the long-recognized protections against gender- or sex-based stereotyping” to transgender and sexual orientation discrimination — were persuasive and chose to follow that lead.

Although Wittmer won that battle, she lost the war. While the court held that her transgender status entitled her to protection under Title VII, it found no evidence that Phillips actually discriminated against Wittmer based on it. Instead, the court held that there was no evidence Phillips even knew that Wittmer was a transgender woman until after it had come to the conclusion that she had lied about her employment status during the interview. On that basis, the court granted summary judgment to Phillips. Wittmer is now appealing this decision to the Fifth Circuit.

Takeaways

This latest opinion continues a steady trend in favor of expanding Title VII to protect against discrimination based on sexual orientation and transgender status. While it is not yet the law of the land everywhere, many courts, states, and localities are making it the law. Cautious employers would be wise to acknowledge this trend and ignore LGBTQ status when making employment decisions. It is much easier to defend a claim based on a legitimate, nondiscriminatory reason (such as Phillips did in this case) than making decisions based on LGBTQ status and risk becoming the next test case.

 

Businessman presenting work safety concept, hazards, protections, health and regulations

In a published opinion, the Fifth Circuit has held that an employee’s poor performance in a light-duty position can relieve the employer from any further obligation to find a reasonable accommodation under the Americans with Disabilities Act (ADA). This opinion highlights the importance of the interactive process, and emphasizes that both the employer and the employee must put forth a good faith effort to make an accommodation work.

In Dillard v. City of Austin, Texas, Dillard was injured on-the-job, and then took 12 weeks of Family and Medical Leave Act (FMLA) leave. After his FMLA leave expired, the City continued his leave through a 180-day “Return to Work” program. At the end of that program, Dillard was still unable to return to work, but the City again allowed him to remain on leave. Nearly a year after the accident, Dillard was medically cleared for “limited duty” or “administrative duty” work and sought to return to work.

The City offered Dillard a temporary position as an administrative assistant. Dillard, a manual laborer, expressed doubt about whether he would be able to do the job, but accepted the position. Because he had no secretarial experience, the City offered him several opportunities for typing classes and computer training, but Dillard failed to sign up. Instead, he admitted that he frequently came to work late and left early. When he was at work, he admitted that he made personal calls, played computer games and surfed the internet. He let his supervisors know that he was unhappy in the administrative position and asked to be moved to a different job more suited to his experience. Instead of moving Dillard to a different position, the City terminated him due to his poor performance.

Dillard sued the City under the ADA for discriminatory termination and failure to accommodate. He claimed that the City failed to act in good faith to find a more suitable position to accommodate his disability once it became obvious that the administrative position was a poor fit.

The Fifth Circuit disagreed and affirmed the lower court’s grant of summary judgment in the City’s favor. The Court found that Dillard’s admittedly poor job performance in the light-duty position was not just a legitimate non-discriminatory reason for his termination, but was also evidence that the plaintiff – not the City – caused a breakdown in the interactive process to accommodate his disability. The Court emphasized that

“the interactive process is a two-way street; it requires that employer and employee work together, in good faith, to ascertain a reasonable accommodation.”

The Court stated that once Dillard accepted the secretarial position, “the ball was in his court:  it was up to him to make an honest effort to learn and carry out the duties of his new job with the help of the training the City offered him.” Because Dillard failed to make an effort to succeed in the light-duty position, the Court found that the City was under no further obligation to try to accommodate his disability.

What Should Employers Do?

The Fifth Circuit’s decision should reassure employers that if they are acting in good faith, they are fulfilling their responsibility under the ADA. In providing reasonable accommodations, employers should do what they can to help the employee succeed but do not have to put up with poor performance.