Lawsuit Against Washington, D.C. Alleges Discrimination Against Cannabis Users

In September, Washington D.C. mayor Murial Bowser brought an end to months of anxious waiting on the part of city workers who lawfully consume cannabis. The new mayoral order clarified that the use of cannabis for any reason cannot prevent a person from getting or maintaining a government job. The order also blocked any city agencies from setting their own workplace marijuana policies. But even though most city employees were okayed to consume medical or recreational cannabis off the clock, Mayor Bowser’s order carved out a key exception: workers in “safety-sensitive” positions. Now, some city workers are fighting to overturn the ban. And one worker, Doretha Barber, is suing the city, alleging its workplace drug policies discriminate against medical cannabis patients.

Lawsuit Targets D.C. Ban on Cannabis Use by City Workers

Doretha Barber is a sanitation worker for Washington, D.C.’s Department of Public Works (DPW). For ten years, Barber has helped keep D.C. streets clean, mostly by raking and collecting trash and leaves. It’s a tough gig for Barber, who was born with scoliosis and diagnosed with a serious disease in her spine in 2014. Bending and raking, Barber believes, makes her back condition worse. And recently, the pain, spasms and migraines she gets are causing her to miss work.

To treat her back pain, Barber came to medical cannabis like many other patients. The prescription and over-the-counter medications she was taking weren’t cutting it. Plus, the side effects were sometimes as debilitating as the pain itself. So it was with her doctor’s recommendation that she became a registered patient with D.C.’s medical cannabis program in 2018.

Barber says cannabis was “life changing.” Her migraines were less intense, her spasms were less frequent and she was able to go to work more. Barber says she only took medical cannabis off the clock and never clocked in under the influence of THC.

But in May, Barber was among a number of DPW employees who received a memo ordering them to seek alternatives to medical cannabis treatments. The department, the memo explained, would begin testing workers in “safety-sensitive” positions. And anyone who failed the urine drug test would be at risk of losing their job or facing disciplinary measures.

Workplace Marijuana Policy Impacts Blue-Collar and Black Workers Most

All of a sudden, a mid-2018 reclassification of all DPW jobs as “safety sensitive” regardless of whether they involved operating heavy machinery or other dangerous tasks meant that workers like Barber could no longer use medical cannabis. When DPW started testing workers, Barber was up front about her enrollment in the District’s medical cannabis program. She was told to find a different medicine. Her lawsuit, filed with the help of the American Civil Liberties Union, says DPW told Barber that she could not return to work unless she both passed a urine drug test and completed a substance abuse counseling program.

But Barber has run out of paid leave to use to complete the substance abuse counseling. And in a desperate effort to hang onto the manual labor job she’s had for a decade, she has stopped using medical cannabis to treat her migraines and back spasms. She’s even asked for a transfer to a desk job or other less physical role with DPW. But the agency has denied her requests, even though policies under the city’s official human resources manual obliges the agency to make reasonable accommodations for employees’ medical needs.

Barber’s ACLU lawyer, Michael Perloff, argues that DPW’s refusal to grant Barber an accommodation “constitutes a violation of the District’s anti-discrimination law, the D.C. Human Rights Act.”

Some D.C. city council members have also spoken out about the “safety-sensitive” exception. At-large Councilmember David Grosso, who introduced a bill in May to bar any city agency from discriminating against cannabis consumers, said the ban is effectively biased against blue collar and Black workers. “It’s interesting to me that they’ve put the effort into classifying positions and enforcing that mostly affect blue collar and African American workers in D.C.,” said Grosso.