FEHA Update: Ross v. RagingWire Telecommunications, Inc. 

By
Megan K. Rogers

Ross v. RagingWire Telecommunications, Inc., (2008) 42 Cal. 4th 920

The California Supreme Court determined that employee could not state a cause of action for wrongful termination in violation of public policy due to his termination for medical marijuana use. The Compassionate Use Act did not put the company on notice that employers would be required under the FEHA to accommodate the use of marijuana. An employer's refusal to accommodate an employee's use of marijuana does not affect or eviscerate the immunity to criminal liability provided in the Act.

The facts are as follows: The employee was directed by his physician to use marijuana to treat chronic pain. He was then fired when a preemployment drug test required of new employees revealed his marijuana use. The employee alleged that the company violated the FEHA by discharging him and failing to make reasonable accommodation for his disability. The court concluded that the employee could not state a cause of action under the FEHA based on the company's refusal to accommodate his use of medical marijuana. Nothing in the text or history of the Compassionate Use Act suggested the measure was intended to address the respective rights and duties of employers and employees. The company could take illegal drug use into consideration in making employment decisions. The only "right" to obtain and use marijuana created by the California Compassionate Use Act of 1996, is the right of a patient, or a patient's primary caregiver, to possess or cultivate marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician without thereby becoming subject to punishment.