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Check out this month's issue for news and updates related to Marijuana in the Workplace, (Re)Defining Sex Discrimination and Upcoming Events.
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Not Just Blowin' Smoke:
Court Rules Marijuana Cardholder Wins!
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I am not sure the pun was intended but on May 23rd after first citing a line from the Beatles' song, "I get high with a little help from my friends," the Rhode Island Superior Court wrote, "To adequately perform its task, this Court must wade into the weeds of the law." It then found an employer violated Rhode Island's Civil Rights Act as well as the state's Hawkins-Slater Act (medical marijuana law) when it declined to hire an applicant who admitted she held a medical marijuana card and would not pass the pre-employment drug test.
I will not follow the court into the proverbial weeds and bore you with the details of the case but it may be instructive to note part of their rationale. The plaintiff contended she was not hired because she was a person with a disability. The employer contended they did not hire her because she was using a substance that was illegal under federal law. The court noted that the two are causally related. She could not have gotten the medical marijuana prescription without having a disability so the reason for not hiring her had to be, in part because of her disability. The employer posed an array of other arguments all of which were found invalid by the court.
Lessons Learned?
- 3 Trends: Employers need to consider the laws in their state(s) of operation that address: medical marijuana, decriminalized marijuana, and/or legalized, recreational use of marijuana. All have implications in the workplace including and not limited to: eligibility for workers' compensation or unemployment insurance; compliance with the Americans with Disabilities Act (ADA), OSHA's general duty clause, and the Drug-Free Workplace Act; plus tort claims such as negligent retention and/or hiring; and more. This maze of potential liability continues to weave its way through the courts.
- Policy Updates: Ensure your employment policies and practices (including recruitment and selection procedures!) are keeping pace with these changing interpretations.
- Join the June 28th Webcast, "Employee Handbooks: Read 'Em and Weep?!" as we review these and other proactive practices for policy updates.
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Upcoming Events, Seminars & Presentations
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Wednesday, June 7th, Employment Law, Legislative & Regulatory Update, presented for the members & guests of MAAAO, 9-11, Columbia, MD
Wednesday, June 14th, Employment Law Update presented for the members & guests of HRASM, 9-12, Solomons, MD
Sunday, June 18th LAUNCH! 2nd edition of Ms. Walters' book, "From Hello to Goodbye" Proactive TIps for Maintaining Positive Employee Relations" Book sale & Signing at SHRM's Annual Conference 1:10 - 1:30, New Orleans, LA.
Wednesday, June 28th Next Webcast, "Employee Handbooks: Read 'Em & Weep?!" Click here for more info or to register.
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Defining Unlawful Discrimination: The Evolution Continues
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Does Title VII of the Civil Rights Act of 1964 prohibit discrimination on the basis of sexual orientation? Hurry up and wait because the answer keeps changing and depends upon whom you ask.
The U.S. Equal Employment Opportunity Commission's position is a resounding, "Yes!" Its webpage on the matter reads, "EEOC interprets and enforces Title VII's prohibition of sex discrimination as forbidding any employment discrimination based on gender identity or sexual orientation. These protections apply regardless of any contrary state or local laws." But the US Circuit Courts of Appeal are slower to agree. As of this writing the 7th Circuit (covering IL, IN, WI) is the first to have ruled in April that sexual orientation is a legally protected status under Title VII. In the same month the 2nd Circuit (covering NY, VT, CT) ruled that sexual orientation was not covered under Title VII. But that court has now decided to reconsider its own decision and may join the 7th Circuit; the hearing is scheduled for September.
Then we have a web of state and local laws that protect one or more protected classes including and not limited to sexual orientation, gender identity, gender expression and transgender status. So what's an employer to do? First ensure you are complying with the laws of the local jurisdiction(s) and state(s) in which you do business.
Then, for equity and consistency you might consider applying the most generous provisions to all of your workplaces (in consultation with your company's employment counsel of course). Let's face it, what we want is a highly qualified workforce and the most qualified candidate for each job. That most likely comes without regard to these protected classes.
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This publication does not constitute the rendering of legal advice. You should consult your company's legal counsel for guidance on any particular matter.
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FiveL Company | info@FiveL.net | www.FiveL.net
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