The Ninth Circuit Court of Appeals, in James v. City of Costa Mesa (9th Cir., May 21, 2012, No. 10-55769) __F.3d__, held that Title II of the Americans with Disabilities Act (“ADA”) does not protect an individual from discrimination based on medical marijuana use, even if such use is in accordance with California state law.
Several severely disabled plaintiffs (“Plaintiffs”) acquired recommendations from a medical doctor for medical marijuana use, consistent with California Health and Safety Code section 11362.5(d). The Plaintiffs obtained their marijuana at various medical marijuana dispensaries located in Costa Mesa and Lake Forest (collectively “Cities”), which the Cities attempted to shut down. The Plaintiffs filed a discrimination action against the Cities alleging that the attempts to shut down the dispensaries were discriminatory under Title II of the ADA, which prohibits disability discrimination in the provision of public services.
Specifically, Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” (42 U.S.C. § 12132.) To be entitled to the protection of the ADA, a person must qualify as an individual with a disability, which does not include “an individual who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.” (42 U.S.C. § 12210.) Although medical marijuana use is lawful under California law, marijuana remains an unlawful controlled substance that has “no currently accepted medical use in treatment in the United States” according to the federal Controlled Substances Act. (See 21 U.S.C. §§ 812(b)(1)(B), 812(c) sched. 1 (c)(10), 841(a), 844(a).)
The Plaintiffs alleged that by shutting down the medical marijuana dispensaries, the Cities were discriminating against them based on their status as individuals with disabilities under the ADA. The District Court denied the Plaintiffs’ request for an injunction to prevent the Cities from shutting down the dispensaries. The Ninth Circuit affirmed the decision, finding that the individuals were not protected under the ADA as “individuals with disabilities” because of their illegal drug use. Although the Plaintiffs argued that their use of medical marijuana did not meet the definition of “illegal drug use” under the ADA, the Ninth Circuit held that the ADA’s definition of illegal drug use references federal and not state law. Because federal law does not authorize the use of medical marijuana, the Court found that the Plaintiffs were not qualified individuals with disabilities under the ADA, because the Cities were acting on the basis of the plaintiffs’ illegal drug use.
In a footnote, the Court explained that it did not need to rule on an alternative argument put forth by the Cities that they had no duty to accommodate the plaintiffs’ “misconduct” (i.e., illegal drug use). We note, however, the California Supreme Court’s decision in Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920, in which it found that employers have no duty to accommodate medical marijuana use by employees. While employees have no right to accommodation of medical marijuana use, and may be subject to adverse employment action based on such use, if the employee is allowed to remain in employment, the employer may be required to accommodate other elements of the employee’s disability.
If you have any questions regarding medical marijuana and/or discrimination under the ADA, please call one of our six offices.
F3 NewsFlash prepared by Chris Keeler and Becky Feil.
Chris is a partner in the F3 San Marcos office.
Becky is an associate in the F3 Sacramento office.
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