Lopez

Opinion by Judge GRABER; Partial Concurrence and Partial Dissent by Judge PREGERSON.

OPINION

Plaintiff Santiago Lopez appeals from the entry of summary judgment in favor of Defendant Pacific Maritime Association on Plaintiffs 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.

I. Background,

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…

concurring in part and dissenting in part:

I agree with the majority’s conclusion that the district court did not err in granting summary judgment to Defendant on Lopez’s disparate treatment claim. But, I disagree with the majority’s decision to foreclose Lopez’s disparate impact claim, and I would allow that claim to proceed for the following reasons:

Lopez contends that lifetime bans for drug test failures are per se violations of the ADA because they invariably exclude certain protected individuals from employment based on past behavior. 1 Employers may not reject an applicant because the applicant was previously addicted to drugs. See Hernandez v. Hughes Missile Sys. Co., 362 F.3d 564 , 568 (9th Cir.2004). Yet Lopez contends this is exactly what the Pacific Maritime Association’s (“PMA”) lifetime hiring ban does. To support his contention, Lopez offered expert testimony that drug addicts are disproportionately affected by the lifetime ban. In addition, he showed that at least twenty-seven individuals were subjected to the ban during roughly the same period he was. Because the identities of those individuals are protected, the court does not know which, if any, of them were…