One New York Employer Has to Face an Employee’s Discrimination Claim After It Fired Her for Using Marijuana to Treat Her Bowel Disease

A few years ago, many news sources covered an array of stories where “zero-tolerance” rules — either in schools or workplaces — yielded unjust, and sometimes absurd, results. What these stories taught was the peril that comes with applying any set of rules too rigorously without discretion, common sense, and sometimes a dose of compassion. When that takes place in an employment setting and the employee harmed is a person with disabilities, that employer’s intractable action may give that worker, with the assistance of an experienced New York City disability discrimination lawyer, a winning discrimination lawsuit under federal, state, or city law.

Consider the disability discrimination case of K.G., a Con Ed employee in Manhattan. At that time, Con Ed required employees to submit to random drug tests. On Dec. 21, 2016, K.G. tested positive for marijuana. Three weeks later, Con Ed fired her, allegedly because its workplace policies called for zero tolerance for the use of illegal drugs among workers who had been with the company for less than six months.

Seems pretty straightforward on those facts, doesn’t it? Con Ed prohibited marijuana use among employees, K.G. used, so the employer was entitled to make the termination, right?

Actually, no. While all of those alleged facts were true, they do not tell the whole story. Before K.G.’s Dec. 21 drug test, the woman’s doctor had suggested to her that she might be a good candidate for using medical marijuana as a treatment for her inflammatory bowel disease (IBD).

In fact, she became a certified marijuana patient and obtained her marijuana card in the short three-week window between the positive drug test and the termination. This, according to the trial court, was key evidence in support of the viability of K.G.’s discrimination claim.

The employer tried to escape liability by arguing that K.G. was not a member of a protected class. This failed because, by the time the employer fired her, K.G. was a certified medical marijuana user and the employer knew she was a certified user. K.G.’s marijuana use status, according to the court, was the result of her physical impairment (IBD), which made her condition a legitimate disability under the New York City Human Rights Law.

Once the employer became aware that K.G. was an employee with a disability — which it allegedly did before it took any adverse action against the woman — it had a legal duty to engage in an interactive process (a/k/a a good-faith back-and-forth dialogue with the employee) to seek out a reasonable accommodation. Perhaps that accommodation could have taken the form of excusing the one positive drug test, possibly it could have involved allowing K.G. to go to rehab, or perhaps it could have gone in a different direction but, under the law, Con Ed arguably committed a violation when it failed to have any dialogue with the employee prior to firing her.

When Your Employer’s Alleged Policies Don’t Match What’s in Black and White

Another highlight from K.G’s case points to the importance of having good legal representation on your side. Con Ed argued that it had a legitimate reason for firing the woman because she used an illegal substance and, while the employer’s drug policy did afford employees an option for seeking treatment through drug rehab, it did not extend that option to new employees on the job for less than six months. In essence, the employer’s argument was that it had a facially neutral policy and that it had no choice but to fire K.G.

There was, however, one major flaw in that argument that the plaintiff’s counsel noticed and exploited. Within the company’s drug policy, there was no language anywhere that said that the option of rehab was unavailable to new workers on the job less than six months. Moreover, there was no language in the drug policy excluding anyone from the rehab option based upon the duration of their employment.

Those facts and the presentation of them to the court proved integral in demonstrating that K.G. had a viable argument that the legitimate reasons the employer offered really were pretextual.

Certainly, the law in New York regarding marijuana use is different now, but K.G.’s case is still a useful lesson about how employers may, through the overzealous or overly rigid use of their workplace policies, run afoul of laws like those barring discrimination. If that’s happened to you, get in contact with the skillful New York disability discrimination attorneys at Phillips & Associates. To find out more about how you can put the power of our experience and knowledge to work for you, contact us online or at (212) 248-7431 to set up a free and confidential consultation today.

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