“Can I Be Fired for Using Medical Marijuana?”

By Bryan A. Chapman, Esquire

Medical marijuana use is legal in approximately 33 states and the District of Columbia. In the District of Columbia, a licensed physician can recommend medical marijuana for conditions, such as: HIV, AIDS, cancer, glaucoma, conditions characterized by severe and persistent muscle spasms, such as multiple sclerosis; patients undergoing chemotherapy or radiotherapy, using azidothymidine or protease inhibitors, decompensated cirrhosis, Lou Gehrig’s disease, Cachexia or wasting syndrome, Alzheimer’s Disease, and seizure disorders.

ISSUE:

In a state or locality where medical marijuana use is legal, can a registered medical marijuana user, with a recommendation from a licensed physician, be fired from their job for using medical marijuana during off hours to treat a debilitating medical condition? The answer is complicated.

 CURRENT STATUS:

State and local laws concerning the protection of registered medical marijuana users are quickly evolving across the country.  The trend is to give registered medical marijuana users greater protection against being terminated by their employers.  A registered medical marijuana user who is using medical marijuana to treat a debilitating medical condition may be entitled to a reasonable accommodation under some state and local laws.

 WHAT EMPLOYEES NEED TO KNOW ABOUT D.C.’S MEDICAL MARIJUANA LAWS.

As of September 2019, the District of Columbia has a new law that protects District of Columbia government employees who are medical marijuana users.  Act Number A23-0114 is called The Medical Marijuana Program Patient Employment Protection Temporary Amendment Act.

The Act states, “A public employer may not refuse to hire, terminate from employment, penalize, fail to promote, or otherwise take adverse employment action against an individual based upon the individual’s status as a qualifying [medical cannabis] patient unless the individual used, possessed, or was impaired by marijuana at the individual’s place of employment or during the hours of employment.”

The law does not apply to either employees in “safety sensitive positions” or to those who are required to undergo drug testing as a federal requirement.

Act Number A23-0114 specifically protects District of Columbia government employees but it does not protect District of Columbia private sector employees.  Nationally, state and local laws do not protect public or private sector employees who: 1) use or possess marijuana during hours of employment, and/or 2) are impaired by marijuana during hours of employment.

In the past, an employer could terminate an employee who tested positive for marijuana.  However, the current trend, in the law, is to protect employees who are registered users of medical marijuana due to a debilitating medical condition.  This is particularly the case in localities and states where medical marijuana is legal and reasonable accommodation laws exist that specifically protect employees who are medical marijuana users. 

Currently, the District of Columbia’s laws do not protect private sector employees who are medical marijuana users.  Whitmere v. Wal-Mart Stores, Inc., 359 F.Supp. 3d 761, 778 (Dist. Court, D. Arizona 2019); Coles v. Harris Teeter, LLC, 217 F. Supp. 3d 185, 188 (Dist. Court. District of Columbia 2016) (“As the courts in those cases concluded, the District here can at most be said to maintain a public policy that decriminalizes and allows the consumption of marijuana for private medical reasons. That is a far cry from prohibiting employers from terminating such users.”) Furthermore, the Americans with Disability Act (ADA) does not protect medical marijuana users from termination by their employers either.

However, in light of Act Number A23-0114, which protects District of Columbia government employees who are medical marijuana users, one has to wonder whether the District of Columbia court, D.C. Superior Court, would determine that private sector District of Columbia employees, who are medical marijuana users, have similar protection. Filing a disability claim under the D.C. Human Rights Act may be the test.

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I will fight for you.

By Bryan A. Chapman, Esquire

I am a civil rights lawyer whose focus is employment discrimination. I have been fighting for workers against powerful employers since 1993. I practice before the EEOC and in the federal courts. I am a graduate of Dartmouth College and the University of Wisconsin-Madison law school.

If you are experiencing workplace discrimination, fighting back generally begins with filing a discrimination complaint with the Equal Employment Opportunity Commission (EEOC). The EEOC complaint process does not require the presence of a lawyer. Today, much of the EEOC complaint process is conducted on-line or by telephone.

However, if you do not have an experienced lawyer advising you, the EEOC complaint process can be brutal. You will be going up against your employer’s highly experienced lawyers. Workplace anti-discrimination laws give employers a huge advantage over workers. The outcome is predictable, employers win 98% of the time at the EEOC.

For Help Call (202) 508-1499

Filing a discrimination complaint with the EEOC is just one of several options. In fact, filing a discrimination complaint with the EEOC may not be your best option. There are federal laws, such as Title VI, Title IX, 1983, and 1981, that do not require that you file a complaint with EEOC and that allow unlimited damages. There are also state and local agencies that offer advantages. I can provide you with effective advice no matter where you live.

Ideally, you should consult with me prior to filing a complaint with EEOC or its partner agencies. I will help you settle your case for as much as possible, quickly and at minimum expense. For instance, EEOC has a mediation program that facilitates settlements.

I will do the following: 1) analyse the facts of your case, 2) apply the relevant laws, 3) discuss your options with you, and 4) guide you through the complaint process. Again, I can provide you with effective advice no matter where you live.

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This is not your father’s EEOC.

By Bryan A. Chapman, Esquire

The Equal Employment Opportunity Commission (EEOC) was created in 1965 as a result of the Civil Rights Act of 1964 becoming law.  The Civil Rights Act of 1964 marked the end of the 100 year old Jim Crow era in the United States.

Under Jim Crow, Southern states enacted laws that made segregation mandatory in the everyday lives of blacks and whites.  Jim Crow laws were designed to prevent blacks from advancing both socially and economically.  In the Northern states, blacks faced discrimination and segregation in hiring, housing, and education.

The EEOC’s purpose is to protect workers from workplace discrimination and its mandate is to investigate worker’s complaints.  In EEOC’s early years, discrimination and segregation in hiring were routine practices in both Southern and Northern states.  Workplace discrimination occurred in plain sight.  Workers could rely on EEOC to investigate their complaints.  And, these investigations could lead to out-of-court settlements.

Today, almost sixty years later, workers can no longer rely on EEOC to investigate their complaints.  For decades, EEOC has had a backlog of cases because Congress has not provided the funding it needs to investigate an ever increasing number of discrimination complaints.  In order to cope with its backlog, EEOC is prioritizing cases, which means an ever increasing number of cases are dismissed before they can be investigated.  This practice leaves many workers out in the cold.

Workplace discrimination is difficult to prove.  Workplace discrimination is no longer occurs in plain sight as it did in the 1960’s.  Employers take measures to avoid costly discrimination lawsuits.  Outside consultants and HR personnel train management on how to prevent workplace discrimination, as well as, how to cover up workplace discrimination when it occurs.

The employment laws strongly favors employers over workers.  For instance, the employment-at-will doctrine provides employers with a lot of protection against allegations of discrimination.  The doctrine says that an employer can termination (which includes denial of promotion, demotion, and undesirable reassignment) a worker at any time and for any reason, good or bad, provided it is not done for a discriminatory reason.  This means that a worker is burdened with proving that his termination was a direct result of discrimination.

When an employer decides to terminate a worker, it generally places the worker under heightened scrutiny for a period of time in order to generate a paper trail of deficient job performance.  The paper trail is a defense against allegations that the termination was discriminatory.  Furthermore, employers routinely deny all allegations of discrimination.  It means that in the absence of a “smoking gun” workplace discrimination is difficult to prove.

Most workers are aware that federal statutes prohibit workplace discrimination based on race, sex, national origin, religion, age, and disability.  Unfortunately, federal statutes give workers a false sense of security.  The outcome of an actual discrimination case depends on the applicable case law of a particular locality and relevant facts that may be in dispute.  Only, an experienced lawyer can gain access to and make effective use of this kind of information.  As a result, workers who files discrimination complaints with EEOC, without consulting an experienced lawyer, are generally out of their depth.

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Do I Have A Case?

By Bryan A. Chapman, Esquire

When a potential client contacts me, they usually want to know whether or not they have a case.  Unfortunately, there is no simple answer to this question because the laws governing job discrimination are complicated and the facts of any case are subject to interpretation and change.  Employers routinely deny allegations of job discrimination.

The typical employee works at the pleasure of their employer.  The doctrine is called “employment-at-will” and it means that an employer can terminate an employee at any time and for any reason, good or bad, provided it is not for a discriminatory purpose.

It means that being terminated, in and of itself, is not proof of discrimination, even if the employee has a good job performance record.  This doctrine also applies to promotions, demotions, and transfers.  Employment-at-will is too steep a hurdle for most discrimination claims.

If an employee claims that his or her termination was discriminatory, then evidence is needed that specifically establishes a discriminatory motive on the part of the employer.  Direct evidence of an employer’s discriminatory motive is rarely available.  Most employers are not going to: 1) admit that employees are being terminated for discriminatory reasons or 2) engage in blatantly discriminatory behavior.  However, from time to time, there are exceptions.

A discriminatory motive typically has to be proven by means of circumstantial evidence.  For instance, an employee and/or group of employees are treated more harshly than similarly situated employees of a different race, sex, national origin, etc.  These cases are strongest when a group of employees are alleging the same type of discrimination.

Furthermore, the employee must demonstrate that his or her job performance was not an issue.  Employers typically claim that an employee’s termination was due to a non-discriminatory reason, such as, deficient job performance.

A hostile work environment claim is different from the typical job discrimination claim.  These claims involve overt discriminatory behavior, such as, name-calling, slurs, jokes, innuendos, and inappropriate touching and advances that make the workplace abusive and intimidating.  If an employer has notice and fails to take prompt and effective corrective action, the employer can be held liable.  A hostile work environment claim can be based on race, sex, national origin, etc.  These cases are strongest when a group of employees are alleging the same hostile work environment.

If a female employee complaints that a male manager or co-worker is engaging in inappropriate sexual behavior, and the employer fails to take corrective action that stops the harassment, the employer could be found liable for compensatory damages, such as, emotional pain and suffering.  In their defense, employers will claim that: 1) they did not have notice of the sexual harassment; 2) the sexual behavior was not severe or was consensual; or, 3) corrective action was taken.

Retaliation involves employers who punish employees for complaining about discriminatory behavior.  To establish a claim of retaliation, the employee has to demonstrate that: 1) they engaged in protected activity, such as, complaining about discrimination; 2) the punishment was severe enough to deter a typical employee from continuing to complain about discrimination; and, 3) the punishment began shortly after the complaint.  Today, the most popular type of job discrimination claim is retaliation.

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Employees may prevail against employers who use false accusations to hide severe retaliatory behavior.

Victims of workplace discrimination and/or harassment are encouraged to file a complaint with their employer or a government entity, such as, the Equal Employment Opportunity Commission (EEOC).  Filing a complaint is generally a prerequisite to pursuing a claim in state or federal courts.

However, filing a discrimination complaint can trigger a retaliatory response from the employer.  In general, retaliation is an impulsive reaction by an employer to a discrimination/harassment complaint filed by an employee.  The employer’s reaction to the employee’s complaint results in harsher treatment, which can include termination.  Like discrimination, retaliation is illegal.  Kim v. Nash Finch Co., 123 F.3d 1046 (8th Cir. 1997) (“There was also evidence that Nash Finch had ‘papered’ his personnel file with negative reports…”); Gowski v. Peake, 682 F.3d 1299 (11th Cir. 2012) (The evidence here showed that the administration intended to retaliate against Gowski and Zachariah because of their EEO activity and then created a hostile environment by spreading rumors about the doctors, damaging their reputations, and disciplining them.)

While retaliation is generally impulsive, some employers are more calculating in the way they retaliation against employees. These employers use pretext (false justification) to hide their true retaliatory motive.

Like a spider and its web, these employers wait for the employee to make a minor mistake and then they use the employee’s minor mistake to falsely justify a severe retaliatory response, such as, a termination.  Hamilton v. General Electric Co., 556 F.3d 428, 435 (6th Cir. 2009) (“…Hamilton alleges that the bosses heightened their scrutiny of him after he filed his EEOC complaint. See Jones v. Potter, 488 F.3d 397, 408 (6th Cir. 2007) (noting that an employer cannot conceal an unlawful discharge by closely observing an employee and waiting for an ostensibly legal basis for discharge to emerge).”); EEOC v. Boeing Co., 577 F. 3d 1044, 1050-3 (9th Cir. 2009) (“…after Boeing substantiated a sexual harassment claim Wrede had filed, she received lower RIF scores than most engineers in her skill code and was subsequently terminated.[1] These scores were lower than the scores she had received in two previous RIF evaluations in April and July of 2002.”)

In court, most employers use pretext as a standard defense against an employee’s claim of retaliation.  An employee with a record of satisfactory job performance will suddenly be accused, by their employer, of poor job performance or serious misconduct.  Often, this defense ploy lacks credibility on its face.

Courts recognize that employers use pretext to hide their true retaliatory motive.  With this in mind, employees may prevail in court by proving that their employer’s justification is false and retaliatory.  An employee’s record of satisfactory job performance or good conduct often speaks for itself.  (“[A] plaintiff’s prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.”).  Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289, 295 (4th Cir. 2010); Mereish v. Walker, 359 F.3d 330, 336 (4th Cir. 2004)

 

 

Bryan A. Chapman, Esquire

www.baclaw.com

bchapman@baclaw.com

202 508-1499

 

Employers con sexual harassment victims by means of a “see no evil, hear no evil” policy.

Particularly, in the case of co-worker sexual harassment, an employer can only be found liable for sexual harassment if management is aware that sexual harassment is occurring in the workplace.  As a result, some employers have adopted a “see no evil, hear no evil” strategy.

Management may be fully aware that sexual harassment is occurring, but deliberately pretend that is is not occurring in order to avoid liability.  Management may even discourage victims of sexual harassment from complaining.  Spicer v. Com. of Va., Dept. of Corrections, 66 F. 3d 705, 710 (4th Cir. 1995) (We reiterated this requirement in Swentek, holding that an employer is liable only “where it had `actual or constructive knowledge of the existence of a sexually hostile work environment and took no prompt and adequate remedial action.'” 830 F.2d at 558 (quoting Katz) (emphasis added).  Knowledge of work place misconduct may be imputed to an employer by circumstantial evidence if the conduct is shown to be sufficiently pervasive or repetitive so that a reasonable employer, intent on complying with Title VII, would be aware of the conduct.); Jackson v. Quanex Corp., 191 F. 3d 647, 664 (6th Cir. 1999)

“An employer cannot avoid Title VII liability for coworker harassment by adopting a “see no evil, hear no evil” strategy.” Ocheltree v. Scollon Productions, Inc., 335 F. 3d 325, 334 (4th Cir. 2003)  “Once the employer has notice, then it must respond with remedial action reasonably calculated to end the harassment.” EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 319 (4th Cir. 2008)

Therefore, victims of workplace sexual harassment should document each incident of harassment in real time.  Documentation can be evidence of sexual harassment if a lawsuit is filed.  Victims of workplace sexual harassment should seek corroboration from other victims of sexual harassment; there is strength in numbers.  Finally, victims of workplace sexual harassment must complaint to management and/or government entities, such as, the Equal Employment Opportunity Commission (EEOC).

 

Bryan A. Chapman, Esquire

www.baclaw.com

bchapman@baclaw.com

202 508-1499

Major Areas of Protection Under Federal Anti-discrimination Laws

LAW OFFICE OF BRYAN A. CHAPMAN

Employment Discrimination Attorney

202 508-1499

bchapman@baclaw.com

www.baclaw.com

sexual harassment    sex discrimination

race discrimination    national origin discrimination

religious discrimination    age discrimination

disability discrimination    retaliation

  • Sex Discrimination
    Federal laws prohibit discrimination based on sex with respect to all terms and conditions of their employment, including but not limited to: hiring, compensation, promotion, treatment on the job, termination.
  • Race Discrimination
    Federal laws protect employees from being treated less favorably, receiving fewer job or promotional opportunities, termination and more—including allowing an employee to be subjected to severe or pervasive harassment—based on race.
  • National Origin Discrimination
    Federal laws protect employees from being treated less favorably, receiving fewer job or promotional opportunities, termination and more—including allowing an employee to be subjected to severe or pervasive harassment—based on national origin.
  • Disability Discrimination
    Federal laws prohibit discrimination on the basis of disability in all employment practices. An employer may not discriminate against a qualified individual with a disability because of that employee’s disability, nor may the employer deny the employee a reasonable workplace accommodation that would allow the employee to perform his or her job.
  • Religious Discrimination
    Federal laws prohibit employers from discriminating against employees on the basis of their religion. This discrimination may come in the form of adverse employment actions, but may also include harassment based on an employee’s religion. Employers are also required to provide reasonable accommodations for their employees’ religious practices and beliefs unless the employer can demonstrate that such an accommodation would cause them an “undue hardship.”
  • Age Discrimination
    Federal laws prohibit the mistreatment of workers age 40 and over because of their age. This includes all aspects of employment including hiring, promotions, training, salary, job assignments and termination. Workplace age discrimination also includes harassment based on age that creates a hostile or offensive work environment.
  • Retaliation
    Federal laws protect employees who oppose discriminatory conditions at work and face retaliation for their actions.  Unlawful retaliation can include refusal to hire, demotion, tranfer to undesirable job duties, or termination of the employee who has filed a charge of discrimination with the employer or with the Equal Employment Opportunity Commission (EEOC), or has participated in the investigation of discrimination.

Federal Laws

  • Title VII of the Civil Rights Act of 1964 – prohibits workplace discrimination based on an employee’s race, sex, national origin, or religion.

 

  • The Americans with Disabilities Act (ADA) – prohibits workplace discrimination based on an employee’s disability.

 

  • The Age Discrimination is Employment Act (ADEA) – prohibits workplace discrimination based on an employee’s age.

 

Legal Remedies

  • Back pay for lost wages
  • Front pay for future lost wages
  • Compensatory damages
  • Punitive damages
  • Litigation costs and attorney fees

 

 

Bryan A. Chapman, Esquire

www.baclaw.com

bchapman@baclaw.com

202 508-1499

 

Fourth Circuit Court of Appeals Affirms Judgment Against Prince George’s County School Board

LAW OFFICE OF BRYAN A. CHAPMAN

Employment Discrimination Attorney

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On September 16, 2016, the Fourth Circuit Court of Appeals, located in Richmond, Virginia, affirmed the district court’s final order of judgment in Jon Everhart v. Board of Education of Prince George’s County, 11-cv-01196-PJM.

The Court stated:

“Based on the foregoing, we affirm the district court’s final order of judgment.  We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process ”

On March 15, 2016, U.S. District Court Judge Peter J. Messitte entered judgment in favor of Jon Everhart, a former English teacher, and against the Board of Education of Prince George’s County.

In July 2014, a federal jury decided that the Board retaliated against Mr. Everhart after he complained about race discrimination.  Mr. Everhart, who is white, claimed that Principal Angelique Simpson-Marcus, who is African American, harassed him because he is white. Mr. Everhart was terminated after he complained to Board officials about Principal Simpson-Marcus.

Mr. Everhart will receive a jury award of $350,000.00 in compensatory damages.  Mr. Everhart will also receive $198,170.00 in back pay.  Mr. Everhart’s total cash award is $548,170.00.

In addition to the cash award, Judge Messitte ordered the following:

  1. The Board of Education of Prince George’s County will provide Mr. Everhart with retiree health benefits;
  2. The Board of Education of Prince George’s County will increase the amount of Mr. Everhart’s pension by including the years 2010-2016;
  3. The Board of Education of Prince George’s County will expunge certain negative employment records from Mr. Everhart’s personnel file and related files; and,
  4. The Board of Education of Prince George’s County will pay Mr. Everhart’s attorney’s fees separately.

In total, the judgment against the Board of Education of Prince George’s County exceeds $1,148,170.00.

 

Bryan A. Chapman, Esquire

www.baclaw.com

bchapman@baclaw.com

202 508-1499

 

 

 

Cat’s Paw Theory: “Boss set me up!”

The Cat’s Paw theory that applies to some discrimination and retaliation cases.  If an employee’s supervisor, who is both biased and untruthful, convinces the employer to take an adverse action (i.e. termination, demotion, denial of promotion, suspension, etc.) against the employee, the employer could be found liable for discrimination or retaliation under the Cat’s Paw theory.  Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011)

In March 2011, the U.S. Supreme Court, in Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011), defined an employer’s liability under the Cat’s Paw theory:

  1. a non-decision maker, who is the employee’s supervisor, is motivated by discriminatory (or retaliatory) intent;
  2. the biased non-decision maker performs an act intended to cause the employee to suffer an adverse employment action; and,
  3. the biased non-decision maker’s act is a proximate cause of the adverse action.

The term Cat’s Paw comes from a French fable.  A monkey and a cat are sitting in front of a fire.  Chestnuts are roasting in the fire and the monkey wants a chestnut.  So, the monkey convinces the cat to fetch a chestnut out of the fire.  The cat fetches a chestnut but burns his paw in the process.  Meanwhile, the monkey eats the chestnut.

An employer can be found liable for discrimination or retaliation, even if the decision maker is not biased.  Liability can be established if the decision maker relies on a non-decision maker who is biased and untruthful.

Bryan A. Chapman, Esquire

www.baclaw.com

“See no evil, hear no evil” anti-harassment policies can be challenged in court.

“See no evil, hear no evil” anti-harassment policies can be successfully challenged.

In order to escape liability, federal law strongly recommends that employers adopt an anti-harassment policy.  For instance, an anti-sexual harassment policy prohibits sexual harassment in the workplace.

Having an anti-harassment policy suggests that the employer is taking affirmative measures to prevent harassment in its workplace.  However, there are workplaces where a routine anti-harassment policy is simply ineffective.

Many organizations, such as school districts, have a central administrative office and many separate facilities spread over a wide area. The anti-harassment policy instructs employees to submit their complaints to the central administrative office.

However, employees, who are not located at the central administrative office but at a distant separate facility, are unable to visit the central administrative office during business hours.  Furthermore, the central administrative office is usually closed in the evening and over the weekend.

As a practical matter, the central administrative office is not accessible to all employees who wish to file harassment complaints in person.  This fact can discourage employees who wish to file harassment complaints, which makes the anti-harassment policy ineffective.

In addition, anti-harassment policies generally do not require managers, who are located at the separate facilities, to report incidents of harassment to the central administrative office.  These managers are generally not trained to report incidents of harassment, that they learn about through informal channels, to the central administrative offices.  As a result, anti-harassment policies and procedures are dysfunctional, which allows incidents of harassment to go unreported.

An employers should not be able to shield themselves from liability and damages in court by means of ineffective and dysfunctional anti-harassment policy.  Courts have found some anti-harassment policies defective:

1) when management level employees who have knowledge of an incident of sexual harassment are not required to report that information to those who are in a position to take appropriate action. Varner v. Nat’l Super Markets, Inc., 94 F.3d 1209, 1214 (8th Cir. 1996) (“a procedure that does not require a supervisor who has knowledge of an incident of sexual harassment to report that information to those who are in a position to take appropriate action falls short of that which might absolve an employer of liability”); and,

2) when the facility where the harassment occurs is in a different location from the facility where the employee is expected to submit his or her harassment complaint.  Wilson v. Tulsa Junior College, 164 F. 3d 534, 541 (10th 1998) (finding a policy deficient in part because employees were directed to make complaints to an official who was “located in a separate facility” and inaccessible during some work hours).

Bryan A. Chapman, Esquire

www.baclaw.com