Man Fired for Using Medical Pot Can’t Sue, Rules Top Court

By Anastacia Mott Austin

Gary Ross, a 45-year-old computer technician, was hired by the company RagingWire Communications in 2001. Ross was fired just 11 days after his hire for failing a mandatory employee drug test by testing positive for marijuana.

Ross and the company are located in California, where state laws declare that marijuana can be legal if prescribed by a doctor. Ross had such a prescription for back spasms caused by an old injury.

Ross decided to sue the company for his dismissal, citing both disability discrimination and the violation of California’s Proposition 215, which allows for the legal use of the drug.

The case went all the way to the California State Supreme Court, who this week decided in a 5-2 majority that Ross had no case, stating that the law was intended only to protect legal users from federal prosecution, not allow them protection from employer rules.

Even the proposition’s proposed protections have fallen short. In 2005 the United States Supreme Court ruled that Prop 215 doesn’t exempt users from federal prosecution, and has been closing down medical pot dispenaries ever since.

Wrote State Supreme Court Justice Kathryn Mickle Werdegar in the majority decision, "We have no reason to conclude the voters intended to speak so broadly, and in a context so far removed from the criminal law, as to require employers to accommodate marijuana use."

But Ross claims he never used marijuana at work, nor was he ever impaired by it or prevented from performing his regular duties. It doesn’t matter, say attorneys for RagingWire. By keeping Ross on as an employee after he failed a drug test, says attorney Robert Pattision to reporters, RagingWire would be "arguably being complicit in an activity that's illegal under federal law," adding that the company was at risk of losing federal contracts if they continued to employ Ross.

Added Werdegar in her written statement, "Under California law, an employer may require pre-employment drug tests and take illegal drug use into consideration in making employment decisions."

After the decision, Ross told reporters he had not expected a better result, but was nonetheless disappointed. "This shows the heavy handedness of the federal government. Where is the sovereignty in California? What did the state get in passing Proposition 215? A bunch of unemployable people?"

Werdeger’s comments seemed to support this accusation. "[RagingWire] has not prevented him from having access to marijuana," but the company just refused to keep him as an employee.

So Ross could have his job, or his pot, but not both.