Appeal from the United States District Court for the Central District of California George H. Wu, District Judge, Presiding D.C. No. 2:06-cv-04154-GW
The opinion of the court was delivered by: Opinion Graber, Circuit Judge:
Argued and Submitted November 1, 2010-Pasadena, California
Before: Harry Pregerson, Kenneth F. Ripple,* and Susan P. Graber, Circuit Judges.
Partial Concurrence and Partial Dissent by Judge Pregerson
*The Honorable Kenneth F. Ripple, Senior United States Circuit Judge for the Seventh Circuit, sitting by designation.
Plaintiff Santiago Lopez appeals from the entry of summary judgment in favor of Defendant Pacific Maritime Association on Plaintiff's claims for disparate treatment and disparate impact under the federal Americans with Disabilities Act of 1990 ("ADA") and the state Fair Employment and Housing Act ("FEHA"). On de novo review, Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1047 (9th Cir. 2008), we affirm.
Defendant represents the shipping lines, stevedore companies, and terminal operators that run the ports along the west coast of the United States. As the collective bargaining agent and payroll administrator of those employers, Defendant enforces the policies that govern the hiring of longshore workers who work along the west coast. One of those policies is a "one-strike rule," which eliminates from consideration any applicant who tests positive for drug or alcohol use during the pre-employment screening process. Defendant notifies its applicants at least seven days in advance of administering the drug test. Failing the drug test, even once, disqualifies an applicant permanently from future employment.
Plaintiff wants to be a longshoreman. He first applied in 1997 at the port in Long Beach, California. At that time, however, Plaintiff suffered from an addiction to drugs and alcohol. When Defendant administered its standard drug test, Plaintiff tested positive for marijuana. Defendant therefore disqualified Plaintiff from further consideration under the one-strike rule.
In late 2002, Plaintiff recognized the deleterious effects on his health that his addictions had caused. He became clean and sober and, in 2004, reapplied to be a longshoreman. Because of the one-strike rule, Defendant rejected Plaintiff's application. At that time, Defendant did not know of Plain-tiff's earlier addiction. Plaintiff attempted to appeal, but ...