We often look to the federal judiciary as the gold standard of American jurisprudence. State courts frequently find federal opinions persuasive. Confirmation hearings for federal judges are televised. Indeed, the federal judiciary is even enshrined in Article III of the U.S. Constitution. And while we can expect that opinions issued by federal judges interpreting statutes and laws may differ somewhat across the nation’s districts and circuits, lawyers, businesses, and the public at large have come to expect—and rely upon—a degree of consistency in the federal judiciary’s decisions. However, when it comes to the rapidly evolving cannabis industry, the federal judiciary has been anything but consistent.
For example, federal courts have ruled that Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits cannabis employers from discriminating against employees.[1] Additionally, federal agencies will hold cannabis employers accountable for discrimination in the workplace.[2] Instead of addressing the legality of the workplace in the first place, or the legality of plaintiffs’ own conduct by working in the state-legal-but-federally-prohibited marijuana industry, the federal courts squarely focus on the factors that a plaintiff must necessarily allege in order to set forth a case for retaliation under Title VII and wholly ignore the fact that cannabis is and continues to be classified as an illegal substance under the Controlled Substances Act (“CSA”).
Likewise, federal courts have ruled that the Fair Labor Standards Act (“FLSA”), which regulates minimum wage, overtime pay, record keeping, and youth employment standards, also applies to the cannabis industry. For example, in Kenney v. Helix TCS, Inc., the U.S. Court of Appeals for the Tenth Circuit ruled that the context of the FLSA is clear that employers are not excused from complying with federal wage and hour laws just because their business practices may violate federal law, and therefore the FLSA applies to a marijuana worker even though marijuana is deemed illegal by the CSA.[3]
Between Title VII and the FLSA, the federal courts’ analysis ignores the illegality of the cannabis industry and instead focuses on whether the actual law itself is being violated. However, this approach directly contradicts the position the federal courts have adopted under Titles I and II of the Americans with Disabilities Act (“ADA”), which prohibit the discrimination of employees in the workplace (both for private entities (Title I) and public entities (Title II)) based on their disabilities. Contrasting with the federal courts’ approach to Title VII and FLSA, which ignores marijuana’s status as illegal under federal law, the illegal status of marijuana is a central basis for the federal judiciary to simultaneously conclude that Titles I and II of the ADA provide no protection against discrimination on the basis of medical marijuana use, even where that use is state-authorized and physician-supervised.[4] Federal courts have likewise consistently rejected the argument that discrimination on the basis of medical marijuana use reflects discrimination on the basis of the disability that the medical...
