Ross v. RagingWire Telecommunications, Inc.

Facts

Gary Ross suffered chronic back pain from an injury sustained while serving in the Air Force. (42 Cal.4th at pp. 924–925.) On his physician’s written recommendation, and pursuant to California’s voter-enacted Compassionate Use Act of 1996, Ross used marijuana to treat the condition. (Ibid.) RagingWire Telecommunications hired Ross as a lead systems administrator, conditioned on a pre-employment drug test. (Id. at p. 925.) Ross gave the clinic a copy of his physician’s recommendation, but the test came back positive for marijuana, and RagingWire terminated his employment. (Ibid.) Ross “expressly disclaim[ed] any intention to use or possess marijuana at work.” (Id. at p. 926 & fn. 1.) He sued for disability discrimination and failure to accommodate under the FEHA and for wrongful termination in violation of public policy. (Id. at p. 925.)

Procedural history

The trial court sustained RagingWire’s demurrer, and the Court of Appeal affirmed. (42 Cal.4th at p. 925.) The Supreme Court granted review and affirmed, holding the FEHA imposed no duty to accommodate medical marijuana use and that no public-policy wrongful-termination claim lay. (Id. at pp. 925–926, 933.)

Issue

Does the FEHA require an employer to accommodate an employee’s use of marijuana for medical purposes recommended by a physician under the Compassionate Use Act, such that the employer may not terminate the employee for a positive drug test — and does firing such an employee violate a fundamental public policy? (42 Cal.4th at pp. 923–926.)

Holding

Reasoning

1. The Compassionate Use Act is a criminal-law measure. The Court read Proposition 215 narrowly. By its terms it “exempted medical users . . . from criminal liability under two specifically designated state statutes” — the possession and cultivation offenses — and said nothing about employment. (42 Cal.4th at pp. 926–929.) The measure’s findings and purposes focused on ensuring seriously ill patients could obtain and use marijuana “for medical purposes” without criminal sanction, not on regulating the workplace. (Ibid.) The Court declined to read employment rights into a statute that did not mention them, noting that policy arguments for protecting medical users in the workplace were properly “address[ed] . . . to measures adopted by the Legislature,” not to judicial construction of a criminal-immunity initiative. (42 Cal.4th at pp. 928–930.) That observation proved prescient: the Legislature later did exactly that in AB 2188. (Ibid.)

2. Federal illegality. Central to the decision was that marijuana “remains illegal under federal law” under the Controlled Substances Act (21 U.S.C. §§ 812, 844). (42 Cal.4th at pp. 926, 929.) The Court reasoned that the FEHA’s accommodation duty does not extend to drug use that federal law makes criminal; requiring employers to accommodate such use would compel them to participate in conduct Congress has prohibited. (Ibid.) The Court underscored the contrast with the federal disability statute itself: the ADA expressly excludes from its protection an individual “currently engag[ed] in the illegal use of drugs, when the covered entity acts on the basis of such use.” (42 Cal.4th at p. 933, quoting 42 U.S.C. § 12114(a).) A state-law rule requiring accommodation of marijuana use, the Court observed, “rests on a proposition that Congress” has rejected, reinforcing that the FEHA should not be read to mandate what federal law forecloses. (Ibid.)

3. Loder and the employer’s legitimate interest. The Court grounded the result in Loder v. City of Glendale (1997) 14 Cal.4th 846, which upheld pre-employment drug testing. (42 Cal.4th at pp. 926–928.) Loder “necessarily . . . recognized that employers may deny employment to persons who test positive for illegal drugs,” given “the well-documented problems . . . associated with the abuse of drugs . . . by employees — increased absenteeism, diminished productivity, greater health costs, increased safety problems and potential liability to third parties.” (Id. at pp. 926–927, quoting Loder, 14 Cal.4th at pp. 882–883.) An employer testing applicants is “seeking information that [is] relevant to its hiring decision and that it legitimately may ascertain.” (Id. at p. 927.)

4. No public-policy tort. Because the Compassionate Use Act created no employment right and expressed no policy governing the employer-employee relationship, it could not supply the “fundamental public policy” a Tameny wrongful-termination claim requires. (42 Cal.4th at pp. 932–933.) Ross’s discharge therefore violated no public policy “tethered” to a constitutional or statutory provision in the sense required by Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083. (Ibid.)

5. The dissent. Justice Kennard, joined by Justice Moreno, concurred in part and dissented. In “a decision conspicuously lacking in compassion,” she wrote, the majority allowed “an employer [to] fire an employee for such marijuana use, even when it occurs during off-duty hours, does not affect the employee’s job performance, [and] does not impair the employer’s legitimate business” interests. (42 Cal.4th at pp. 933–934 (conc. & dis. opn. of Kennard, J.).) She would have construed the Compassionate Use Act and the FEHA to protect off-duty medical use that does not affect work — anticipating the policy the Legislature would later adopt in AB 2188. (Ibid.)

Significance

For fifteen years Ross was the controlling California authority holding that employers need not accommodate medical marijuana and may enforce drug-testing policies against medical users. Its rationale — that the Compassionate Use Act is a criminal-law exemption and that marijuana’s continued federal illegality defeats any FEHA accommodation duty — was widely followed. The Legislature ultimately reversed the practical result for off-duty conduct through Assembly Bill 2188 (Gov. Code, § 12954, eff. Jan. 1, 2024), which now bars discrimination based on off-the-job cannabis use and on tests detecting nonpsychoactive metabolites (subject to enumerated exceptions). Ross nonetheless remains relevant for its statutory-interpretation method, its federal-preemption-adjacent reasoning, and situations outside section 12954’s reach (e.g., on-the-job use or impairment, and excepted positions). It should always be read today alongside section 12954. See the Review’s coverage of the disability line.

Key quotes

“The FEHA does not require employers to accommodate the use of illegal drugs.” (Ross, supra, 42 Cal.4th at p. 926.)

“Nothing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and obligations of employers and employees.” (Ibid.)

“In a decision conspicuously lacking in compassion, . . . the majority holds that an employer may fire an employee for such marijuana use, even when it occurs during off-duty hours [and] does not affect the employee’s job performance.” (Id. at pp. 933–934 (conc. & dis. opn. of Kennard, J.).)

Read the full opinion (California Supreme Court — full text) →

Practice pointer

Open questions

The reach of section 12954’s exceptions, the evidentiary line between lawful off-duty use and prohibited on-the-job impairment, and the interaction of state cannabis-protection law with federal drug-free-workplace and safety requirements all remain unsettled and heavily litigated. Ross’s federal-illegality reasoning also continues to matter wherever federal law directly governs, even as state law diverges.