I’m 63 years old as I write this, and my joints hurt (especially in the morning) because when I was younger, I thought that I could run through brick walls. I’ve tried many types of topical liniment, but the only ones that seem to provide decent relief contain CBD (cannabidiol) oil. So I empathize with Cherie Lehenky, who, as you’ll read below, had a similar problem and lost her job over it. (CBD is an active ingredient in cannabis that comes from the hemp plant. It does not cause a high and is not addictive.)
Cherie worked for Toshiba America Energy Systems Corporation for eighteen years, apparently with no issues. In 2018, however, she was diagnosed with an inflammatory autoimmune disease that made it difficult for her to manage her daily activities. Due to tissue damage and the accumulation of fluid in her legs, she needed a cane to walk, for example. She talked with a doctor about the possible benefits of CDB oil, which she began using with the doctor’s approval. It calmed her pain and allowed her to function.
Then Toshiba selected her for a random drug test. She told the human resources department that she was using a CBD product that could produce a positive result, and she asked what documentation she would need to provide to Toshiba if that happened. Apparently, she never got an answer. Toshiba had a zero-tolerance policy for “illegal drugs” and for “prescribed drugs and over-the-counter drugs that are improperly used or possessed by an employee.” When the test came back positive, Toshiba summarily fired her.
Cherie then filed suit under the Americans with Disabilities Act (42 U.S.C. § 12101) and the state equivalent (the Pennsylvania Human Rights Act), alleging that she had unlawfully received disparate treatment because of her disability. Unfortunately for her, the ADA claim landed her in federal court, which is often not the best place for plaintiffs to be. Perhaps equally unfortunately for her, of the three judges assigned to her case, one (Judge Ambro) had been a Delaware corporate lawyer before being appointed to the bench in 1999; and one (Judge Porter) was a conservative Trump appointee who, before becoming an appeals court judge, had been a corporate lawyer and the President of the Pittsburgh chapter of the Federalist Society. I say this not as a political comment or to suggest even remotely that either judge did anything improper. But judges are people too, and their worldview is colored by their background and experience.
In dismissing Cherie’s claims, Judge Porter wrote in part as follows:
"We cannot conclude that Toshiba terminated Lehenky's employment because of a disability of which it was unaware and did not consider when it terminated her employment. Instead, we credit the allegation in the complaint that Toshiba fired Lehenky because it thought she was using illegal drugs. The District Court correctly dismissed the disparate treatment claims."
This seems like judicial hair-splitting. People don’t use products like aspirin or CBD oil for fun. Cherie obviously had some sort of medical condition for which she was using the product, and there was no evidence that the product impaired her ability to do her job. In fact, the evidence led to the opposite conclusion.
But, in any event, Toshiba ultimately won. Or did they? They got themselves involved in litigation, which is never cheap. And they’re now known as a company that fired an African-American employee who had worked for them for 18 years because she used a legal, non-intoxicating substance to ease physical pain caused by a medical condition. I wonder whether such heavy-handedness might make qualified young people think twice about a job with Toshiba.
But I get it. The employer thinks it’s important to be tough on drugs. They clearly can’t have impaired people walking around their workplace. I am not suggesting otherwise. But, here, under these specific circumstances, it might’ve been better (and more humane) simply to talk with their long-time worker and ask why the test might have come back positive. Or, at least, to answer her question about what documentation she would need to provide if the test did come back positive. If she said she was using non-intoxicating CBD oil under a doctor’s supervision to help with an autoimmune disease, and she could back that up with a doctor’s note…well, maybe it would have been wise to cut her some slack. Just a thought.
Some management-side employment lawyers would say that such a question might open an unwanted new can of worms, because if the employee said she was using a product because of a medical condition, it would be harder to fire her.
But is that really how we should be looking at things? Should we really be trying to create an environment where we can “safely” fire longtime employees? Should we really be trying to act like Bill Murray’s character in Scrooged?
As for me, I’ll just quote the ancient Chinese sage Lao Tzu, who once wrote: “If you don’t trust the people, you make them untrustworthy.” I’m not sure that’s always true, but it may provide a reason to pause and think a little.
You can read the Third Circuit’s decision here.