A federal judge made it really dang hard to prove medical marijuana discrimination

Greetings from Seattle.

Before I begin my day of **checks notes** culture and refinement, I figured I’d blog first about this recent opinion from a federal court in Pennsylvania. It involves an individual — let’s just call him “Plaintiff” — who claimed that his former employer (a/k/a Defendant) violated the employment-related provisions of the Commonwealth’s medical marijuana laws by ending his employment following a positive drug test.

Specifically, the Pennsylvania Medical Marijuana Act (PMMA) makes it unlawful for any employer to “discharge, threaten, refuse to hire or otherwise discriminate or retaliate against an employee regarding an employee’s compensation, terms, conditions, location or privileges solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.” (my emphasis)

As out turns out, this “solely on the basis of” language is important. Many other anti-discrimination laws, whether state or federal, generally require that discriminatory animus be one of the motivating factors in an employer’s decision. So, if an employer has four reasons for firing an employee, and one of them is based on [insert employee’s protected class], then the company has violated the law.

Not so much under the PMMA. Cue Judge Leeson of the United States District Court for the Eastern District of Pennsylvania:

Beginning with the language of the statute, the PMMA indicates that it prohibits discrimination “solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.” See 35 P.S. § 10231.2103(b)(1). Accordingly, based on the plain language, the statute prohibits discrimination based on the employee’s status as a certified medical marijuana patient….[T]his Court predicts that the Pennsylvania Supreme Court would interpret the PMMA to protect only one’s status as a medical marijuana cardholder….[and] require a plaintiff to show that but for his status as a cardholder, he would not have suffered an adverse employment action.

In the case before Judge Leeson, Plaintiff claimed that Defendant informed him that it was firing him for a positive drug test, and then Plaintiff informed Defendant that he was a medical marijuana user. Therefore, since Defendant did not know about Plaintiff’s medical marijuana status when it terminated his employment, it could not have terminated him solely on that basis.

Defendant wins.

While this is a good decision for local employers, your mileage may vary, given the facts and circumstances surrounding individual termination decisions. For example, had Plaintiff informed Defendant about his medical marijuana use before the termination decision, a jury may have to determine why Defendant terminated his employment.

Another option for many employers is to drop drug testing as a condition of employment altogether. You can avoid this potential problem completely.