Ninth Circuit Holds Medical Marijuana Use Not Protected Under the ADA

On May 21, 2012, the Ninth Circuit Court of Appeals held that because the use of medical marijuana remains illegal under federal law, the Americans with Disabilities Act (ADA) does not protect against discrimination on the basis of medical marijuana use, even if that use is in accordance with state law explicitly authorizing such use. James v. City of Costa Mesa, No. 10-55769, Ninth Circuit Court of Appeals (May 21, 2012).

This case arose under California’s medical marijuana law, but wholly outside of the employment context. Four California residents with severe disabilities obtained medical marijuana as permitted under California law through medical marijuana dispensaries in various cities, until the those cities took affirmative steps to shut down the dispensaries. The four California residents brought suit against the cities under Title II of the ADA, asserting that they had been discriminated against in the provision of public services due to the cities’attempts to shutter the dispensaries. The trial judge denied the plaintiffs’request for preliminary injunctive relief on the grounds that the ADA does not protect against discrimination on the basis of marijuana use deemed illegal by federal law.

The sole question considered by the courts in this case is a narrow one: whether the plaintiffs’medical marijuana use constituted “illegal use of drugs”under the ADA, 42 U.S.C. § 12210(d)(1). The Ninth Circuit held that because Congress made it clear that the ADA defines “illegal drug use”based strictly upon federal law, not state law, the ADA’s exclusion of illegal drug users from its protections also excludes users of medical marijuana, even where the marijuana usage is permitted by state law. Both courts outright rejected the plaintiffs’argument that their state-permitted medical marijuana use fell within an exception to the ADA’s definition of illegal drug use because it was supervised by a licensed health care professional and/or authorized by the Controlled Substances Act or other federal law.

Although this decision may restrict the ability of medical marijuana users to bring claims against their employers under the ADA, discrimination in employment remains specifically prohibited under the Arizona Medical Marijuana Act (AMMA). Nonnie Shivers, an attorney in the Phoenix office with experience in all three titles of the ADA, remarked that “even though this case did not involve the AMMA or involve employment issues, employers can take the court’s clear message to heart that the use of illegal drugs is defined by federal law, not state law.”Shivers cautioned employers, however, to heed the Ninth Circuit’s warning that “even though the ADA does not protect medical marijuana users who claim to face discrimination on the basis of their marijuana use, an individual may have another condition that rises to the level of a disability and may therefore be entitled to protections under the ADA.”Equally important to remember is the Arizona Civil Rights Act (ACRA), which also protects disabled workers from discrimination. Presumably, Arizona courts will not define medical marijuana as an “illegal drug”under the ACRA for purposes of enforcing that statute. See A.R.S. §41-1461.4.