Attorney Report: Now trending

Attorney Report: Now trending

SCOTUS in October: Walmart and a wrongful firing

October 12th ended the month’s session for oral arguments heard by the High Court. While much has been made over the affirmative action case heard in Fisher v. University of Texas, it seems once again that the legal media have over-hyped the case’s potential for any significant or far-reaching outcomes.

Abigail Fisher was denied admission to the University of Texas when she applied in 2008, and did not take the rejection lightly. Rather, the young white Texan obtained legal counsel through the law office of Wiley Rein, LLP and attorney Bert Rein in order to sue the University for race discrimination.

Ms. Fisher believes she was denied entrance because of the University’s diversity policy, a policy that she and her attorney contend is solely based on race, unwarranted and by extension, unfair.

The overriding question of the interests served and need for Affirmative Action in higher education may not be answered by the Court because Justice Kagan rescued herself, cutting The Nine down to eight. In this setting, the strong likelihood of a split 4 – 4 vote means no opinion will be rendered, and the matter will stand as the lower courts decided.

Walmart Wrongful Firing and a Wrong Decision

James Casias worked for Walmart in a Michigan store from 2004 until he was fired in 2009 for violating Walmart’s drug use policy after he tested positive for marijuana during a mandatory post-accident drug test.

Casias has sinus cancer and an inoperable brain tumor for which his doctor prescribed medical marijuana for pain management. When he filed suit against Walmart for wrongful firing and violation of the Michigan Medical Marijuana Act (MMMA,) he claimed he never used the drug at work, or before arriving to work.

The district court dismissed the case, and the Sixth Circuit Court of Appeals upheld the dismissal because the panel agreed with the lower court’s conclusion that the MMMA does not apply to private employers.

It is quite disappointing that the courts took the back doorway out of this one. As Americans become increasingly in favor of medical marijuana use and more states legalize it, public policies on medical marijuana will continue to overlap into the workplace, and conflicts will arise more often.

It’s hard to believe that the private sector will work out feasible solutions for these conflicts on its own. It also seems unlikely that government agencies will be of much help.

While the EEOC is preoccupied with helping convicts by limiting pre-employment screening by employers, it has little to no concern for protecting workers like James Casias whose last hopes for a quality life lie with medical marijuana use.

Perhaps the courts should take on this issue through more meaningful analysis now, rather than waiting until governments and employers have made a real mess of things.