How to Prevent Employment Discrimination Against Cannabis Smokers

  • by Keith Stroup, NORML Legal Counsel July 21, 2014

    Now that America has some form of legalization in 23 states and the District of Columbia, activists must reevaluate those state’s laws to refine the details of their legalization systems. There are three distinct areas in which cannabis laws need clarification and evolution: employment issues, child custody issues, and DUID charges. This week, I will discuss the important area of employment discrimination.

    First, let’s be clear: no one should go to work in an impaired condition, regardless of what drug is involved. It’s not fair to the employer or to one’s fellow employees, and may well constitute a safety risk. Also, some jobs are so sensitive that it may well be good public policy to require a zero tolerance policy towards all drug use. Certain jobs in the nuclear energy field, for example, or jobs in which an employee is working around nuclear weapons or flammable material fall into this category. Some risks are simply too great to allow even occasional drug use of any kind, whether it’s cannabis or alcohol.

    But most jobs are not. They require a sober individual who can responsibly and safely perform their job. Whether they smoked a joint over the weekend, or even the night before, has no impact on the workers’ ability to perform their jobs in a safe and responsible manner.


    49 responses to “How to Prevent Employment Discrimination Against Cannabis Smokers”

    1. Patient says:

      I’m a disabled vet, a mmj patient and a business owner.

      Nonsense, employers have every right to require a drug/alcohol free workplace, if people don’t like it they can work some place else. Period.

      Additionally, until they come up with an accurate sobriety test, there’s no way to tell if they smoked last week or 30 minutes ago.

    2. fireweed says:

      yes to all of the above except the part where some jobs are so sensitive that zero tolerance makes sense. I understand that the military has a similar policy in disqualifying applicants that are taking prescription medications, the idea being that in combat you can’t have that, but short of that, your last sentence says it all that occasional use of marijuana has no impact on a worker’s performance. I would go one further and suggest that some people who smoke regularly might perform better than people that never do, as cannabis has anti-inflammatory properties which can help with alertness, ability to move physically and better resistance to illness, perhaps even enhanced problem solving abilities.

    3. mexweed says:

      1. “…move forward to legalize marijuana smoking in that state…” Here’s where more nuance might help. Why legalize “smoking” (H-ot B-urning O-verdose M-onoxide combustion papers etc.) when, as New York recently did, a provision can be added that VAPORIZATION is permitted? Eliminate the carbon monoxide, eliminate the impairment by and large!

      2. True, that sounds like someone is trying to sell $50 utensils; the public is not yet aware– or more than a few percent so– that you CAN vaporize 25-mg servings just fine with a flexible drawtube one-hitter, igniting a 500-mg “joint” is obsolete. Suggestions how to make a one-hitter from less than $1.29 worth of parts are free at wikiHow.com “12 Ways to Make Pipes from Everyday Objects”.

    4. Colin says:

      I disagree firmly with your belief that someone who has an interest in working with nuclear energy should be barred from all use of psychoactive substances. Whether or not someone can perform in ANY job or career should depend on their skills and personal conduct; not on their choice of activities during their free-time.

      Mr. Stroup, I’ve long been an admirer of yours, but to posit discrimination in any form is simply wrong. It’s very disappointing to hear this from you.

      [Editor’s note: As one of America’s first genuine PUBLIC interest lawyers, Mr. Stroup’s commonsense example of employment so important to public safety that it can warrant employees engaging in a social contract regarding not using psychotropic drugs (i.e., if you employ me I promise I will not use legal or illegal drugs in private, public or the workplace…).

      Cannabis law reform can’t be taken seriously if it is perceived by elected policy makers, media and the general public as serving libertine ends, not a greater public good. Mr. Stroup affirms in his essay that largely employee’s off-the-job behavior regarding cannabis use should be of no concern of the employer.

      But, to yield no public health and safety ground regarding employees where the question of public safety is acute (i.e., nuclear plant and weapon employees, airline pilots, mass transit drivers) will retard the pace of ending cannabis prohibition and cast advocates of zero drug testing in the workplace as too libertarian.]

    5. Druk says:

      This is why when I am an interview in one of the decriminalized states, I will ask frank questions about their drug testing policy. How often do they test? How much advance notice will I receive? Do they even attempt to differentiate between impairment and mere bloodstream presence? Which drugs do they test for?

    6. Julian says:

      Excellent article. I went to marijuana.com and read the whole thing.
      It apears The Trojan Hemp Horse will be proceeded by 50 Cheech and Chong vans made out of marijuana. I didnt see it going down like this, but we’ll get through prohibition any way we can. At least we know our donations to NORML arent just going “up in smoke.”

    7. Ray says:

      “Reefer makes darkies think they’re as good as white men.”-Harry Anslinger

      What if this statement is true and we created marijuana prohibition to keep “darkies” dumber than non-darkies?

      Could it be that marijuana can make people of color more intellectual and that’s why Harry’s DEA created marihuana prohibition? That would be a crime against humanity. It’s like making a law to keep a specific group of people stupid. Now that’s stupid!

      Anslinger is not a hero, he is a racist dirtbag. He ruined our race relations, and farming industry, and the safety of our nation with his stupid prohibition.

    8. Anonymous says:

      Why does what a persons job type matter. Just because an individual works with nuclear devises should they be held to a different standard. That would be the same as allowing only those who are unemployed to partake in marihuana or alcohol. The effects of marijuana from responsible use would not interfere with work. Most people that would hold a critical position have already proven themselves responsible by acquiring that position to begin with and also proven themselves responsible enough to make the job requirements. It is sad that meth or cocaine can be undetected within 3 days while marijuana is detectable for much longer. It is sad that this country is still trying to enforce morals rather then wrongdoing. It is not the police forces job to protect people from themselves but rather to protect people from other people. One more question does the constitution only pertain to groups of individuals or all people.

      [Editor’s note: To yield no public health and safety ground regarding employees where the question of public safety is acute (i.e., nuclear plant and weapon employees, airline pilots, mass transit drivers) will retard the pace of ending cannabis prohibition and cast advocates of zero drug testing in the workplace as too libertarian.

      The US Constitution protects all citizens, but courts and Congress have carved out ‘protected classes’ regarding: gender, age, disability, religion.]

    9. Miles says:

      This is a very well thought out article that shows great inteligence and common sense! It was written by someone that has been using marijuana regularly for many years. Mr. Stroup is absolute living proof that marijuana is not the devil’s weed that the prohibitionists would have us believe.

      Indeed, Carl Sagan was a regular user and is widely considered to be a genius by many. I’m quite certain that Mr. Sagan’s intelligence far surpassed the collective intelligence of the current GOP.

      Finally, I have been using marijuana regularly for more than 40 years. In that time I served in the USMC, worked in the field of electronics and computer programming, and have since retired to care for my mother-in-law full time since she has a serious case of Alzheimer’s disease. I have never spent even a single day in jail and don’t deserve to do so. However, like Carl Sagan, I keep my use very private because I too fear the unjust laws that have been put in place (of course my real name isn’t Miles any more than Mr. Sagan’s isn’t Mr. X; the moniker he used to write about his advocacy regarding marijuana).

      Because I’ve been careful not to get caught with marijuana, I’ve been able to live a good productive life instead of rotting in a prison cell. I sometimes fear that law enforcement or The DEA might come after me by tracing my internet comments. I know this is possible and it is disturbing. However, I believe in freedom and in doing the right thing and believe it is worth the risk to try to stop, what I consider to be very Nazi-like, laws that we have been forced to abide by for almost a century. It needs to change!

      As I approach age 60 I have great hope that before I die, I will be able to feel proud to be an American. This will not happen until our leaders finally show common sense and compassion regarding cannabis users and admit that they have been wrong. It would be tremendous if those that have forced their anti-freedom agenda on us for so many years formally apologize to all the people that have suffered so much under their leadership!

      Thank you Mr. Stroup! You Sir are a true American hero!!!

    10. Galileo Galilei says:

      I think much of the prejudice toward marijuana stems from ignorance and conflation with behavior associated with nicotine and alcohol.

      When it became know I partake, I found two common attitudes:

      1) Some people assume that you have to waste time hitting up throughout the day due to a physical addiction like someone on nicotine.

      2) Others assume the high must be similar to alcohol’s effects. You know, the rude, obnoxious behavior of drunks so graphically on display in episodes of “Cops”. Talk about impairment!

      These assumptions seem risibility naive to most of us NORML fans. I would think this attitude would fade with experience over time. Unless, of course, the government starts spending another $100 million a year demonizing the weed.

      Incidently, kudos to NORML for having the insight to address these issues as momentum for reform builds.