Medical Marijuana Cards: A New Scarlet Letter? First-of-its-Kind Lawsuit in Rhode Island Claims that Employer Discriminated on Basis of Medical Marijuana Cardholder Status

A Rhode Island graduate student has filed a lawsuit against a textile company, alleging that it discriminated against her because she used medical marijuana.  The complaint, filed by the local ACLU chapter on behalf of University of Rhode Island student Christine Callaghan, alleges that Darlington Fabrics Corporation rescinded a paid internship offer because Callaghan was a registered medical marijuana cardholder.  According to the complaint, it appeared that Callaghan was going to be given the internship until, during a meeting with a Darlington HR representative, Callaghan disclosed that she suffered from migraines and used medical marijuana to treat her condition—but that she would not bring marijuana with her onto the premises or show up for work after having taken marijuana.  A few days after the meeting, the representative contacted Callaghan and told her that Darlington would not be offering her the internship because of her status as a medical marijuana patient.  The suit is believed to be the first to invoke the anti-discrimination provisions of Rhode Island’s medical marijuana law.  Under the law, schools, employers, and landlords may not “refuse to enroll, employ, or lease to, or otherwise penalize, a person solely for his or her status as a cardholder.” G.L. § 21-28.6-4(c).

In recent years, medical marijuana patients have filed employment discrimination lawsuits in other states, including New Mexico, Maine, and Colorado.  Because only a handful of the 23 states that have legalized medical marijuana have anti-discrimination provisions in their state statutes, plaintiffs fighting adverse employment actions have attempted to raise a number of theories.  Some plaintiffs have argued that employers are engaged in disability discrimination, although the Ninth Circuit rejected this argument in a 2012 decision (noting that medical marijuana use is not protected under the ADA).  Others, including the plaintiff in a case that was recently argued before the Colorado Supreme Court (and is awaiting a decision), have argued that the employer’s actions violate state “off-duty conduct” laws.

The Callaghan case is unique in that it presents the court with an opportunity to address head-on the anti-discrimination provisions in Rhode Island’s medical marijuana statute.  For example, does the statute’s language “solely for his or her status as a cardholder” mean that an employer could lawfully make a decision because of cardholder status so long as there was at least one other reason for the decision?

Other states that have anti-discrimination provisions in their medical marijuana statutes include Arizona, Delaware, Connecticut, Illinois, Maine, and Minnesota.  In addition to Rhode Island employers who will be watching this case closely, employers with operations in these states will want to pay attention to this case as well.

This case comes at a time of drastic shifts in attitudes toward recreational and medical marijuana use.  For instance, this past election, voters in Oregon, Alaska, and Washington, D.C. approved laws legalizing recreational marijuana.  (Notably, Alaska and Washington, D.C.’s laws explicitly provide that nothing in them is intended to require an employer to permit or accommodate the use of marijuana in the workplace or to limit employer policies restricting the use of marijuana by employees.)  And, buried in the 1,603 pages of the recently-passed $1.1 trillion federal spending bill, is a measure that prohibits the Department of Justice from using federal funds to prevent certain states from implementing medical marijuana laws.

As laws with respect to medical and recreational marijuana continue to change, companies will be faced with a number of legitimate concerns related to marijuana use, including workplace safety and compliance with federal law.  This will remain an area for employers to watch closely in 2015.