Fired for Taking His Medicine

Jacob Sullum | November 6, 2007

Today the California Supreme Court heard arguments in a case brought by a computer programmer who was fired after testing positive for marijuana even though his use of the drug, which he takes to relieve chronic back pain, is authorized by state law. Gary Ross, who has a doctor's recommendation to use marijuana, argues that his employer, Ragingwire, violated the state's fair employment law by firing him for taking his medicine. He says medical marijuana users should get the same exemption from drug-free workplace policies that is required for employees with prescriptions for narcotic painkillers. Ragingwire says marijuana is different, since it remains illegal for all uses under the federal Controlled Substances Act.

I have the same mixed feelings about this case that I do about employer drug testing generally. On the one hand, freedom of contract means companies should be allowed to hire and fire based on criteria that make sense to them, even if they seem unfair and unreasonable to me. On the other hand, it is quite clear that employers would not worry about marijuana use that does not impair job performance (or actually improves it, as is likely the case for Ross) the way they do now were it not for the irrational pharmacological distinctions drawn by the government. Since drug tests detect marijuana use within the last few days (or weeks in the case of frequent smokers), they do not indicate impairment, so in terms of safety firing someone who tests positive for pot is like firing someone because he drank a few beers over the weekend. Insisting that a computer programmer (as opposed to, say, an airline pilot or truck driver) never smoke pot, even on his own time, seems especially inane. And in this case, the role of the war on drugs is obvious, since Ragingwire's rationale for firing Ross is based on the federal government's refusal to recognize marijuana's medical utility.

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|11.6.07 @ 7:18PM|#

I have the same feelings about dumping on this piece of extremist illogic at Reason as I usually do. A sense of pile on and kick the retard.

Violation of privacy is okay, because after all, it is a c-ntr-ct (the hyphens are present because we all know that otherwise it would be a holy word.) Termination of employment for any grounds whatsoever is the nature of man and servant. Marijuana, check. Use cigarettes, check. Eat too much junk food, check. Gay, Black, Jewish, check.

What a dumbass is Reason.

|11.6.07 @ 7:29PM|#

Well, if you enter into a contract you should abide by the terms offered. Otherwise, you broke the contract, so you're fired.

Also, this guy could have been like Matthew Broderick in War Games, so maybe being blazed on the job just isn't an option for Ragingwire employees.

|11.6.07 @ 7:31PM|#

I think he's got a good case. It IS California. I also know, not think, KNOW, that Ragingwire is a complete asswipe, retarded, mean spirited, callous company. I hope, (insert Standard Libertarin Disclaimer #9 [labor contracts, freedom of assn.] here), that they get hammered financially.

|11.6.07 @ 7:34PM|#

Weird. I thought they made programmers smoke, even if they didn't want to:
'But I don't want to do drugs!'
'Sorry kid, this is how we make software.'

SIV|11.6.07 @ 7:35PM|#

Employers should be able to hire (willing to work under said terms) and fire whoever they want to, at any time, for any reason or no reason at all.

Jacob,

It is printed on the shrinkwrap packaging your decoder ring came in.

|11.6.07 @ 7:41PM|#

He could have avoided the problem by looking at the fine print of his contract, then asking for an exception at the time of his being hired. Or, if it came up after his hire, he could have discussed beforehand with Ragingwire's employee services.

The way the Fed drug crusaders behave, one cannot blame Ragingwire for firing him out of fear for what the Fed's might do to their operation. It is a bad position to be in, trying to comply with both State and Federal law, when they are in conflict. It is a no-win situation for the company. I sympathize with the guy, but what can Ragingwire do?

|11.6.07 @ 7:48PM|#

The way the Fed drug crusaders behave, one cannot blame Ragingwire for firing him out of fear for what the Fed's might do to their operation.

IIRC If they have fed contracts this kind of soviet style drug testing shit is required. Am I wrong? If that's the case, I'll blame GWB and HRC, drug warrior leaders.

|11.6.07 @ 7:49PM|#

Supply and Demand: if talent is in demand, then talent will be retained despite socially unacceptable behavior (like every good programmer I've ever met).

I'm sure there are plenty of software companies in California that do not have random pee tests. With a name like "Ragingwire", I'm surprised they impose such a test.

I had to pee in a cup for IBM, and that place was squaresville...

jpok|11.6.07 @ 7:53PM|#

douglas Gray,
It's not federal law to invade your employees' privacy. There's no reason for Ragingwire to conduct tests except for their zeal for the WOsD bullshit. If that's in the contract, then Ross is out of luck, but Ragingwire still comes across as a nasty company.

|11.6.07 @ 7:57PM|#

If they don't have a federal contract connection, IMHO California law says "fuck you Ragingwire". The 10th amendment indicates the states can do some things prohibited to the federal government. I know, that's a constitutionalist argument, not a libertarian one.

If they do have a federal contract, I dunno what the CA courts will decide. Or on what grounds. I missed that decade of law school.

ed|11.6.07 @ 8:10PM|#

One can rarely make sense of such a case in this topsy-turvy world of ours. We all know incognito, functional druggies who perform just fine at their appointed tasks; who never tip the cart, upset the boat, place a turd in the punch bowl, violate the boss's daughter...and yet, all of them are just a drug test away from ruin...yeah, it's unfair and unjust and a travesty, and The Government is to blame. We live our lives and we take our chances and some of us stick our necks out and hope an axe doesn't reply.

|11.6.07 @ 8:20PM|#

it's unfair and unjust and a travesty, and The Government is to blame.

100% agreement. What's even worse, this guy was taking doctor prescribed medication. I don't know how drug warriors shave, 'cause I couldn't look ay myself in the mirror.

I really appreciate Balko's reporting on the war against pain medication, (and I realize that this is not his posting)

That said, he had no other options than MJ for back pain. He couldn't use Advil, Tylenol, Oxycotin, Lortab, etc.

(insert standard libertarian disclaimer #whatever here, which states that he should be able to use what he wants, but the employer should be able to fire him unilaterally if they have informed him that he can't)

|11.6.07 @ 8:22PM|#

ugh. let me repost with punctuation so my point gets across

I really appreciate Balko's reporting on the war against pain medication, (and I realize that this is not his posting)

That said, he had no other options than MJ for back pain?? He couldn't use Advil, Tylenol, Oxycotin, Lortab, etc???

(insert standard libertarian disclaimer #whatever here, which states that he should be able to use what he wants, but the employer should be able to fire him unilaterally if they have informed him that he can't)

ed|11.6.07 @ 8:29PM|#

this guy was taking doctor prescribed medication

The problem, of course, is that "doctor" and "prescribed" and "medication" are governmentally controlled definitions. The key to unlocking this travesty is in returning these words to the public (i.e. private citizens) where they belong in a free society.

|11.6.07 @ 8:43PM|#

"On the other hand, it is quite clear that employers would not worry about marijuana use that does not impair job performance (or actually improves it, as is likely the case for Ross) the way they do now were it not for the irrational pharmacological distinctions drawn by the government."
Bullsh*t. Employers draw all kinds of irrational distinctions about any number of anything. In fact, under Reason's Libertopia since they are free to give or take the job they can make the distinctions on whatever crazy idea walks into their head at the time. Libertopians will say "but, but, the Magical Mystical Market will punish them and harmony will be restored." Of course until they were proscribed by law many employers engaged in all kinds of irrational employment decisions (this is of course why the voters decided the law needed to step in). This is because the market may punish someone for some of his irrational acts, while rewarding him or his rational ones. As long as the former do not outweigh the latter enough to wipe out financial sustainability the person may keep it up with little impunity. Of course if the employer eliminated all irrational aspects they would maximize their profits, but most people are a-ok with satisficing and maximization exists only in the fevered dreams of a hung over economist...(and not even most of them thesedays)...

|11.6.07 @ 8:46PM|#

The first poster points out something I have been advocating for a long time: that "libertarianism" is often more aptly named "contractarianism" since it is contract rather than liberty per se which is held sacrosanct by libertopians. In any manner of situations the libertopian can be counted on to approve of situations in which the overall freedom of folks is limited, as long as the folks contracted to give away their freedoms. Of course, those in a better economic position are more likely to be able to resist contracting on bad terms, so this libertopianism leads to the kind of thinking behind Anatole France's "the law condemns equally the beggar and the prince from sleeping under bridges"...

ed|11.6.07 @ 8:50PM|#

My eyes always glaze over whenever somebody drunkenly cites "libertopia" in his rants (or "Randroid" or "Reasonoid" or any other philosophical shortcut). I retire to bedlam.

Bill O\'Reilly|11.6.07 @ 9:56PM|#

Sullum's a PINHEAD!

|11.6.07 @ 10:34PM|#

Too bad Ross doesn't belong to a union. It sure is nice to have your brothers and sisters backing you when you're in the right.

SIV|11.6.07 @ 10:37PM|#

Too lazy/worn out to RTFA .
Is the employer conducting Govt mandated drug testing like USDOT or are they testing solely by choice?

If the testing/policy is their own thing I see no reason to blame the State for his firing.

|11.6.07 @ 11:02PM|#

There are other reasons besides drug policy to fire him. The most obvious one is civil liability. The company is on the hook for anything he does as an employee, and the fact that they knew he had detectable levels of an illegal substance is a Bad Fact in any civil action against the company.

GILMORE|11.7.07 @ 1:00AM|#

I have to yet again note that maybe 10 pot stories a week arent the best idea for the editorial board here. it gets silly at times. Im as 'legalize it!' as the next person, but think that maybe the weed fetish undermines the overall libertarian message by hyperfocus on this one, albeit pretty common, issue. I think Radley's focus on the real bloodshed of the war on drugs is overall more effective in spelling out how drug policy is so out of wack that we actually kill innocent people in its prosecution. Broadly defending potsmokers in general, (sorta)legal or otherwise, is less of an issue i'd think. It also i think alienates some people who otherwise are hunky dory with the broader libertarian issues.

|11.7.07 @ 2:36AM|#

Some issues are easy. They are easy distractors from the bigger picture. Pot is one of these; while we're all worried about smoking a joint, something practically anyone, anywhere, any time in America can do, the less-glamorous but far more damaging changes to our freedom are happening right under our noses.

|11.7.07 @ 3:43AM|#

MrNiceGuy is correct. I have talked to guys who worked for EDS, Perot's company. Perot was/is a complete dictator with all sorts of seemingly irrational rules: he would not hire you if you drank more than one cup of coffee per day, etc.

I know, I know, his company, his rules, etc.

"as bad as things were under Perot, things became much worse after he was ousted..."

|11.7.07 @ 7:04AM|#

|11.7.07 @ 7:41AM|#

I'm plenty sober ed, in fact the sobriety of "libertopians" is what I question. If one wants to prefer liberty as a general rule, or even right to contract as a general rule, and argue it meets human needs and moral rules generally, then fine. But we get people all the time arguing that the market is the answer to EVERY problem, and that it will actually "solve" these problems in very satisfying ways, something that I don't think Mises or Friedman argued. Systems of voluntary exchange are the morally correct way to go in nearly all situations, and they produce interestingly good outcomes more times than one may expect. But they are not magic and do not always automatically maximize freedom or the general welfare. Such libertopians sound like Marxists with their "dialectical forces of history" replacing the Magical Market in solving everything from poverty to worker freedom to runny noses...

Guy Montag|11.7.07 @ 8:49AM|#

On the one hand, freedom of contract means companies should be allowed to hire and fire based on criteria that make sense to them, even if they seem unfair and unreasonable to me. On the other hand, it is quite clear that employers would not worry about marijuana use that does not impair job performance (or actually improves it, as is likely the case for Ross) the way they do now were it not for the irrational pharmacological distinctions drawn by the government.

I agree with your first hand, but your Left hand is not making much sense. Are you saying that the only reason the employer had an objection was due to government propoganda against some plants? Granted, I think this is a silly thing to hold against a programmer and when I own the business I will not decide that way, but I am sticking with shaking your Right hand on this one.

SD82|11.7.07 @ 10:15AM|#

I wish we could get beyond the shallow thinking that government=bad and everything else is private, therefore good. You know what, the government is accountable to the people, at least in theory, so it has incentives to do good. Corporations have only profit in mind.

I thought the first principle for libertarians was freedom. Who cares if the suppression of that freedom comes from the government or from another source? If leaving businesses alone leads to fascist corporate control, who actually wins?

Economic Libertarianism has devolved into a shallow semi-plausible philosophical argument in favor of higher corporate profits.

|11.7.07 @ 11:10AM|#

Systems of voluntary exchange are the morally correct way to go in nearly all situations, and they produce interestingly good outcomes more times than one may expect. But they are not magic and do not always automatically maximize freedom or the general welfare.

So tell me, how does a system of coerced exchanged (the only alternative) maximize freedom? I guess it could briefly promote the "general welfare" in the same way that armed robbery does.

The Democratic Republican|11.7.07 @ 11:40AM|#

I think Mr. Nice Guy is on the right track -- there is usually a tension between liberty and a contract. I happen to believe that they are OFTEN in tension.

I would also agree with SD82 that sometimes the private sector -- and often the states -- are greater threats to individual liberty than the federalis. His summation is correct: the goal is a maximization of individual liberty.

However, as regards the contract issue, there is a simple solution stemming from the thought of Lysander Spooner -- namely, that a person cannot be thought to have consented to EVERYTHING a corporation does or doesn't do simply because s/he continues to work there. In other words, the contract signed between employer and employee is more limited than most "libertopians" would prefer to believe. A person who wants to work shouldn't have to sign on for exploitation, abuse, discrimination, and privacy violations just to make an honest living.

|11.7.07 @ 11:49AM|#

I wish I had known about this lawsuit when I ran into RagingWire's CEO a couple of weeks ago. I believe, based on my personal experience as an employee, that companies with federal contracts have to have a drug abuse policy, but they don't always have to drug test.

R C Dean|11.7.07 @ 12:15PM|#

Too bad Ross doesn't belong to a union.

Do unions have a track record of going to bat for employees who fail drug tests? (Other than the player's unions, of course).

I'm honestly curious about this.

R C Dean|11.7.07 @ 12:16PM|#

I think Mr. Nice Guy is on the right track -- there is usually a tension between liberty and a contract.

Not when you understand that legitimate contracts are voluntarily entered into, and are therefore an expression of, not a limitation on, liberty.

Your contractual obligations are merely the responsibilities you undertake for exercising your liberty.

Being free means being free to make choices, not being free from the consequences of those choices.

Ryan|11.7.07 @ 3:38PM|#

Would we be better off if legitimate reasons for termination of the contract must be enumerated in the employment agreement? Basically, this would be done by removing the implied ability to withdraw a contract at any time, as long as such a contract is part of a work for hire relationship.

The prospective employee can then himself, or with the help of a lawyer, modify any terms in the agreement that he finds objectionable before accepting it.

This would protect the employee from arbitrary termination as long as the employee is careful to ensure that his off-the-job antics are not somehow enumerated as reason for termination in the agreement.

And it preserves the freedom of the employer far more than in the case where the employer must demonstrate "just cause" for termination. The employer may terminate for any reason written into the agreement without having to fight an expensive and arduous court battle.

Many contracts have a clause stating "This contract may not be withdrawn for any reason EXCEPT at least one of the following: ...".

So I'm simply wondering if work for hire agreements should carry such a clause by force of law.

|11.7.07 @ 4:51PM|#

The problem, of course, is that "doctor" and "prescribed" and "medication" are governmentally controlled definitions. The key to unlocking this travesty is in returning these words to the public (i.e. private citizens) where they belong in a free society.

I recommend that you start taking large doses of scopolomine, atropine, and hyoscyamine for back pain. Tropane alkaloids are proven pain fighters and have a refreshing mint flavor.

You can trust me. I'm a private citizen.

|11.7.07 @ 4:53PM|#

RC-yep, unions have been at the forefront on this
http://en.wikipedia.org/wiki/National_Treasury_Employees_Union_v._Von_Raab

|11.19.07 @ 9:55AM|#

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