Should Employers Be Forced to Hire Cannabis Consumers?


Colorado Supreme Court

Under Colorado law, employers are forbidden to fire people for "any lawful activity" in which they engage on their own time outside the workplace. Yesterday the Colorado Supreme Court considered the novel question of whether "any lawful activity" includes cannabis consumption that is permitted by state law but still a crime under federal law. Although the case involves medical use, it has broader implications now that Colorado has legalized recreational use as well.

The plaintiff is Brandon Coats, a 34-year-old quadriplegic who was fired from his job with Dish Network in 2010 after he tested positive for nonpsychoactive traces of marijuana. Coats uses cannabis to relieve the seizures and muscle spasms he has suffered since he was injured in a car crash as a teenager. Such cannabis consumption was allowed by state law when he was fired but prohibited by federal law, which is still the case. Dish Network has a "zero tolerance" policy regarding illegal drug use, regardless of whether it affects job performance. Coats argues that state legality is all that's required to make an activity "lawful." His former employer disagrees, and so did the courts that have heard his case so far.

Th Denver Post reports that the justices were "mostly scratching their heads" at yesterday's hearing, and I certainly am no better situated to decide whether a law driven by a desire to protect tobacco smokers should be interpreted to protect pot smokers as well. But I will say this much: The law should never have been passed to begin with. Although I believe that drug policies such as Dish Network's are stupid, I also believe that employers have a right to adopt stupid drug policies (along with any other conditions of employment that people voluntarily accept when they take a job). Such arbitrary rules surely would be much less common in the absence of prohibition—a drug policy that, unlike Dish Network's, is imposed at the point of a gun. But forcing people to hire cannabis consumers is wrong for the same reason that cannabis prohibition is wrong: It posits threats of violence as an appropriate response to choices that violate no one's rights.  

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  1. Dish Network has a “zero tolerance” policy regarding illegal drug use, regardless of whether it affects job performance.

    You can get away with this when there are fifty qualified applicants waiting for a shot at that job. I wonder what the guy does; phone center?

  2. To what extent do you have a right to privacy when you walk out the door to go home?

    Can you be fired for, say, donating to a political campaign?
    Marching in a parade?
    Reading a poem at open mic night?

    I’m a big fan of at-will, but I am also a big fan of one’s employer caring about, say, how one does one’s job rather than whether one drank a glass of wine over the weekend.

    1. The libertarian dogma is that the market will punish employers who sack employees for non-work-related reasons, because they’ll have to replace that person with workers who aren’t as good at the job.

      In the real world, especially for low-skill jobs, it usually doesn’t make a difference in the quality of employees, and the zero-tolerance crap is good for PR purposes. Libertarian dogma fails (again).

      1. I think that’s a profound oversimplification of the libertarian position.

        Generally, yes, the market will punish employers who sack good employees for non-work related reasons and replace them with worse employees.

        In your own example, “it usually doesn’t make a difference in the quality of employees.” Therefore, you are not replacing a better employee with a worse one, and therefore there is no market-based punishment. You have already escaped the confines of the initial premise in order to arrive at a conclusion that contradicts it. How is this a repudiation of libertarian thinking?

        “Libertarians believe that 2 + 2 = 4. But in the real world, 2 is rarely added to 2, and so you often get other sums, like 5. Libertarian dogma fails again.”

        1. I’ve seen that same basic argument made whenever libertarians are challenged over what libertarianism’s answer to racial and other discrimination is. If it’s invalid (and I think in many cases it is) then dogmatic libertarianism gets a big black eye in the modern, anti-discrimination world.

          1. I think you’re misstating the argument, then.

            In regard to racial discrimination, the argument says that there are economic incentives to hire either 1) more qualified unemployed workers, who have been discriminated against for invidious reasons, for the same wage as those currently working; or 2) similarly qualified workers who are willing to work for more cheaply than the similarly qualified workers who have not been the subjects of discrimination.

            Moreover, in the real world, there are transaction costs, and one must keep in mind that there are all sorts of nonmarket forces in play that may distort market incentives, such as regulation and tort law. None of these invalidate the underlying economic assumptions nor the libertarian answer to discrimination, but it would be dishonest to claim they don’t complicate the issue considerably.

            1. “for more cheaply.” Ugh. It’s late.

      2. But if the benefit of the PR outweighs the cost of the discrimination, that means the discrimination is socially acceptable, in which case where’s the problem?

  3. law or no law, it’s sorry behavior by Dish Network

    1. I know. After whe undermine this lets get working on uniforms. How am I supposed to look rebellious like my heroes at reason if I can’t wear my leather duster when I’m working the fryer.

  4. Then work for an employer that only cares about your work.

    Those that are worth a damn know it.

    1. My understanding is that if you work for a company that does business with the federal government (depending on what you do that can be difficult to avoid), then they are required by law to test you.

      1. Not just that, but certain professions fall under the regulatory requirements of the DoT for example, who attach all sorts of strings to your ability to earn a livelihood. I have to think that must be Tony’s idea of paradise, where the government holds every aspect of your material existence hostage to their arbitrary commandments. (I mean the real Tony, not whichever person you disagree with)

        1. They don’t look at it as putting strings on your livelihood.

          They look at it as making sure predatory businesses in search of immoral profits have someone from the government looking over their shoulder at all times. Those evil capitalists are always looking for a way to make an immoral profit that they then selfishly hoard away as they invest in their business, growing it into an evil empire. Government is also there to prevent upstarts from competing with established businesses who have shown their trustworthiness by asking permission and obeying orders at every turn.

    2. “Then work for an employer that only cares about your work.”

      Good luck with that, these days.

  5. No, next question.

  6. I worked in a place where potentially lethal stuff took place all the time. The employer told us that we would be tested once before hiring and would never be tested again unless there was an incident. Now I get randomed and the Feds require it.

  7. A dumb law. However as a matter of federalism…

    Under Colorado law, employers are forbidden to fire people for “any lawful activity” in which they engage on their own time outside the workplace. Yesterday the Colorado Supreme Court considered the novel question of whether “any lawful activity” includes cannabis consumption that is permitted by state law but still a crime under federal law.

    Pretty simple. Case closed.

    1. But, but what about Freedom of Association?

      1. Does not apply to Reason pet issues.

      2. Freedom of Association although morally superior, isn’t ‘the law’. Personally, I disagree with any prohibition of the freedom of association. I said it was a dumb law. But as to whether this dumb law applies to Coloradans “legally” as a matter of federalism than yes it does apply.

    2. Without judging whether it should be, something that is a crime under federal law is, by definition not “lawful” even if state law does not consider that a crime.

      1. “Under Colorado law…”

        That obviously means the law effects employers in Colorado, not that the definition of “lawful activity” excludes federal law.

  8. “forced” is such an ugly word. How about strongly persuaded to with large fines.

  9. Should Employers Be Forced to Hire Cannabis Consumers Anyone?


    And “no”.

  10. It has as much to do with insurance coverage as to do with preferences.

  11. First I have to say that employers should be able employ or not employ whomever they choose. That being said, there is so much we take for granted these days that would have been unthinkable way back when, when I started working. The idea that and employer has any right at all to know what you do or don’t do outside of work (aside from being an actual criminal as in committing actual wrongs against others) seemed utterly absurd to me when the notion first started being introduced. It was the start of making all of society part of law enforcement and now it has been extended right down into the rest of us – “if you see something…etc. – and even into families with kids ratting out their pot smoking parents. It is all so far beyond fucked up and I think you have to thank the hippie generation for it.

    1. Yes, I’ve brought this up a few times in past comments, but it’s very disturbing.

      I realize it’s a private, contractual matter between an employer and an employee, and that in a perfectly libertarian society all employment should be such an agreement. However, a society where you are, by the necessity of earning a living, forced to agree to all sorts of off-job rules and regulations having no bearing on your actual job performance can still be a sucky society. A culture accepting this sort of intrusion into one’s personal life is very suffocating, even if it isn’t the state locking away the evildoers.

      Actually, in a lot of cases, it’s probably less threatening, practically, if the state makes it illegal to, say, smoke weed in my house, than it is for no employer to hire me if I do the same. Because the likelihood of the cops actually catching and punishing me for doing it isn’t great, but if I’m randomly tested at work, or need to find a job, I’m screwed for at least a month.

      1. Maybe you should have thought of that before all you libertarians suddenly decided freedom of association didn’t apply to christian bakeries. I know I will definitely be pushing for stringent anti-weed policies at shareholder meetings for the companies I have equity in.

        1. I know the case, but have no idea what [we] “libertarians suddenly decided that freedom of association didn’t apply to Christian bakeries” is supposed to mean.

          Which libertarians decided this? Where and when?

        2. Do you see anyone saying Dish shouldn’t be able to fire him? And no libertarian was against the bakery not serving the gay couple. We are pretty consistent with the whole freedom of association thing. You can push for whatever policies you want.

          1. No, FUQ! He’s going to push all of us libertine, gay-hating, anti-associatin’, weed smoking liberals out of the job market by threatening to take his fistfull of dollas someplace else if they don’t forbid teh p0t. Convince him to stop!

          2. He IS confusing us with liberals, right? His posts are so incoherent, at this point I’m not sure who he’s railing against.

  12. If “lawful” includes activities that are not prohibited by state law but prohibited by federal law, then wouldn’t counterfeiting, funding terrorism, treason, espionage, etc, be impossible to fire someone for?

  13. What if you want to hire people because you approve of the unlawful activities they pursue in their personal lives. Should that be lawful or unlawful?

  14. Should be the same policy as for people who take any other kind of drug. Nobody is actually serious about marijuana being medicine. Who is saying cvs should stock it? It’s exactly the same as any other drug, except less lethal

  15. Employers should not be compelled to hire anyone, to claim that someone who smokes dope is a greater risk than someone who drinks is garbage. The war on marijuana started as the failed war on alcohol came to a close. It was suspended during WWII then the government needed farmers to grow hemp for rope. After the war, the battle that still rages today was restarted. Most rational people agree marijuana is no more dangerous than alcohol. So if an employer seeks to reject a person for smoking marijuana, then they have to also reject applicants who drink alcohol since both are legal activities in Colorado. Like same sex marriage, it is about equal protection under the law, not the morality of smoking weed vs drinking booze.

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