Article by Arielle Pardes, Vice
Let’s say you’re a person who smokes weed. Maybe you live in California, Massachusetts, Nevada, or Maine—one of the four states that legalized recreational marijuana this month, or the four others where it was already legal. Or maybe you have a prescription to use weed for insomnia, or back pain, or chronic illness, in one of the 28 states with medical marijuana policy on the books. Maybe you roll your own joints; maybe you use a bong. It doesn’t really matter.
Now let’s say you, a person who smokes weed, are applying for a new job. There’s the usual rigmarole—the sending of your résumé, the interview, the formal offer letter. And then the drug test. It seems old-fashioned, but more than half of all employers still ask new hires to pee in a cup to test for narcotics, amphetamines, and yes, marijuana.
You might think this is unfair. You might even think it’s illegal, since you and the other people in your state exercised your democratic rights to legalize marijuana where you live. That’s what Brandon Coats thought when he was fired from his customer service representative job at Dish Networks for failing a random drug test. Coats had a license and a prescription to use medicinal marijuana. So when he got fired, he was confused: Medical marijuana had been legal in Colorado since 2000. How could his company fire him for doing something totally legal?
Coats could be the poster child for medical weed. He’s a quadriplegic, wheelchair bound since age 16, and was prescribed marijuana to treat the persistent leg spasms that come with his paralysis. So when his case went all the way up to the Colorado Supreme Court in 2015, it seemed like few pot smokers could be more sympathetic than him. But the court ruled against him, deciding it’s not illegal to discriminate against employees who use weed, medically or recreationally. Dish Networks was perfectly within their rights to fire Coats, and your company can probably fire you, too.
“It’s perfectly legal for an employer to fire you for legal off-duty behavior, so making marijuana legal doesn’t mean anything,” said Lew Maltby, the president and founder of the National Workrights Institute, a nonprofit group that advocates for employees’ rights.
There are two main issues here: First, while individual states have legalized marijuana, it’s still illegal—and a Schedule I drug—on the federal level. Federal laws supersede state laws, which basically invalidates any claim that marijuana is legal at all. Or, as Maltby put it, “Legal means legal, not half-legal.”
Second, in most states, your employer can actually discriminate against you for the things you do outside of work. (Certain things like race, religion, or sexual orientation are protected.) In 2000, a man in Louisiana—who, by all accounts, was a model employee—was fired from his job for cross-dressing in his free time. A federal judge ruled that his employer could legally do so, because there’s no law saying your boss has to be a decent person.