Stanford Law School - Robert Crown Law Library

Filed 1/24/08

IN THE SUPREME COURT OF CALIFORNIA

GARY ROSS,
Plaintiff and Appellant,
S138130
v.
) Ct.App.
3
C043392
RAGINGWIRE
TELECOMMUNICATIONS, INC., )
Sacramento
County
Super. Ct. No. 02AS05476
Defendant and Respondent.

The Compassionate Use Act of 1996 (Health & Saf. Code, § 11362.5, added
by initiative, Prop. 215, as approved by voters, Gen. Elec. (Nov. 5, 1996)) gives a
person who uses marijuana for medical purposes on a physician’s recommendation
a defense to certain state criminal charges involving the drug, including possession
(Health & Saf. Code, § 11357; see id., § 11362.5, subd. (d)). Federal law,
however, continues to prohibit the drug’s possession, even by medical users. (21
U.S.C. §§ 812, 844(a)); see Gonzales v. Raich (2005) 545 U.S. 1, 26-29; United
States v. Oakland Cannabis Buyers’ Cooperative (2001) 532 U.S. 483, 491-495.)
Plaintiff, whose physician recommended he use marijuana to treat chronic
pain, was fired when a preemployment drug test required of new employees
revealed his marijuana use. The lower courts held plaintiff could not on that basis
state a cause of action against his employer for disability-based discrimination
under the California Fair Employment and Housing Act (Gov. Code, § 12900 et
seq.; see id., § 12940, subd. (a); hereafter the FEHA) or for wrongful termination
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in violation of public policy (see, e.g., Stevenson v. Superior Court (1997) 16
Cal.4th 880, 887; Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 170,
176-178). We conclude the lower courts were correct: Nothing in the text or
history of the Compassionate Use Act suggests the voters intended the measure to
address the respective rights and duties of employers and employees. Under
California law, an employer may require preemployment drug tests and take
illegal drug use into consideration in making employment decisions. (Loder v.
City of Glendale (1997) 14 Cal.4th 846, 882-883.) We thus affirm.
I. FACTS
This case comes to us on review of a judgment entered after the superior
court sustained a demurrer to plaintiff’s complaint without leave to amend. In this
procedural posture, the only question before us is whether plaintiff can state a
cause of action. In reviewing the complaint to answer that question, we treat the
demurrer as admitting the complaint’s well-pleaded allegations of material fact,
but not its contentions, deductions or conclusions of law. (Evans v. City of
Berkeley (2006) 38 Cal.4th 1, 6; Serrano v. Priest (1971) 5 Cal.3d 584, 591.) The
complaint’s allegations may be summarized for this purpose as follows:
Plaintiff Gary Ross suffers from strain and muscle spasms in his back as a
result of injuries he sustained while serving in the United States Air Force.
Because of his condition, plaintiff is a qualified individual with a disability under
the FEHA and receives governmental disability benefits. In September 1999, after
failing to obtain relief from pain through other medications, plaintiff began to use
marijuana on his physician’s recommendation pursuant to the Compassionate Use
Act.
On September 10, 2001, defendant RagingWire Telecommunications, Inc.,
offered plaintiff a job as lead systems administrator. Defendant required plaintiff
to take a drug test. Before taking the test, plaintiff gave the clinic that would
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administer the test a copy of his physician’s recommendation for marijuana.
Plaintiff took the test on September 14 and began work on September 17. Later
that week, the clinic informed plaintiff by telephone that he had tested positive for
tetrahydrocannabinol (THC), a chemical found in marijuana. On September 20,
defendant informed plaintiff he was being suspended as a result of the drug test.
Plaintiff gave defendant a copy of his physician’s recommendation for marijuana
and explained to defendant’s human resources director that he used marijuana for
medical purposes to relieve his chronic back pain. Defendant’s representative told
plaintiff that defendant would call his physician, verify the recommendation, and
advise him of defendant’s decision regarding his employment. On September 21,
defendant’s board of directors met to discuss the matter and, on September 25,
defendant’s chief executive officer informed plaintiff that he was being fired
because of his marijuana use.
Plaintiff’s disability and use of marijuana to treat pain, he alleges, do not
affect his ability to do the essential functions of the job for which defendant hired
him. Plaintiff has worked in the same field since he began to use marijuana and
has performed satisfactorily, without complaints about his job performance.
Based on these allegations, plaintiff alleges defendant violated the FEHA by
discharging him because of, and by failing to make reasonable accommodation
for, his disability. (Gov. Code, § 12940, subd. (a).) Plaintiff also alleges
defendant terminated his employment wrongfully, in violation of public policy.
(See Stevenson v. Superior Court, supra, 16 Cal.4th 880, 887; Tameny v. Atlantic
Richfield Co., supra, 27 Cal.3d 167, 170, 176-178.) The superior court sustained
defendant’s demurrer without leave to amend and entered judgment for defendant.
The Court of Appeal affirmed. We granted plaintiff’s petition for review.
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II. DISCUSSION
A. The FEHA
The FEHA declares and implements the state’s public policy against
discrimination in employment. (Gov. Code, §§ 12920-12921.) The particular
section of the FEHA under which plaintiff attempts to state a claim, Government
Code section 12940, provides that “[i]t shall be an unlawful employment practice
. . . [¶] (a) For an employer, because of the . . . physical disability [or] medical
condition . . . of any person, to refuse to hire or employ the person . . . or to bar or
to discharge the person from employment . . . .” An employer may discharge or
refuse to hire a person who, because of a disability or medical condition, “is
unable to perform his or her essential duties even with reasonable
accommodations.” (Id., § 12940, subd. (a)(1) & (2).) The FEHA thus
inferentially requires employers in their hiring decisions to take into account the
feasibility of making reasonable accommodations.
Plaintiff, seeking to bring himself within the FEHA, alleges he has a physical
disability in that he “suffers from a lower back strain and muscle spasms in his
back . . . .” He uses marijuana to treat the resulting pain. Marijuana use, however,
brings plaintiff into conflict with defendant’s employment policies, which
apparently deny employment to persons who test positive for illegal drugs. By
denying him employment and failing to make reasonable accommodation, plaintiff
alleges, defendant has violated the FEHA. Plaintiff does not in his complaint
identify the precise accommodation defendant would need to make in order to
enable him to perform the essential duties of his job. One may fairly infer from
plaintiff’s allegations, however, that he is asking defendant to accommodate his
use of marijuana at home by waiving its policy requiring a negative drug test of
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new employees.1 “Just as it would violate the FEHA to fire an employee who uses
insulin or Zoloft,” plaintiff argues, “it violates [the] statute to terminate an
employee who uses a medicine deemed legal by the California electorate upon the
recommendation of his physician.” In this way, plaintiff reasons, “the [FEHA]
works together with the Compassionate Use Act . . . to provide a remedy to
[him].”
Plaintiff’s position might have merit if the Compassionate Use Act gave
marijuana the same status as any legal prescription drug. But the act’s effect is not
so broad. No state law could completely legalize marijuana for medical purposes
because the drug remains illegal under federal law (21 U.S.C. §§ 812, 844(a)),
even for medical users (see Gonzales v. Raich, supra, 545 U.S. 1, 26-29; United
States v. Oakland Cannabis Buyers’ Cooperative, supra, 532 U.S. 483, 491-495).
Instead of attempting the impossible, as we shall explain, California’s voters
merely exempted medical users and their primary caregivers from criminal
liability under two specifically designated state statutes. Nothing in the text or
history of the Compassionate Use Act suggests the voters intended the measure to
address the respective rights and obligations of employers and employees.
The FEHA does not require employers to accommodate the use of illegal
drugs. The point is perhaps too obvious to have generated appellate litigation, but
we recognized it implicitly in Loder v. City of Glendale, supra, 14 Cal.4th 846
(Loder). Among the questions before us in Loder was whether an employer could
require prospective employees to undergo testing for illegal drugs and alcohol, and
whether the employer could have access to the test results, without violating
California’s Confidentiality of Medical Information Act (Civ. Code, § 56 et seq.).

1
Plaintiff expressly disclaims any intention to use or possess marijuana at
work.
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We determined that an employer could lawfully do both.2 In reaching this
conclusion, we relied on a regulation adopted under the authority of the FEHA
(Cal. Code Regs., tit. 2, § 7294.0, subd. (d); see Gov. Code, § 12935, subd. (a))
that permits an employer to condition an offer of employment on the results of a
medical examination. (Loder, at p. 865; see also id. at pp. 861-862.) We held that
such an examination may include drug testing and, in so holding, necessarily
recognized that employers may deny employment to persons who test positive for
illegal drugs. The employer, we explained, was “seeking information that [was]
relevant to its hiring decision and that it legitimately may ascertain.” (Id. at
p. 883, fn. 15.) We determined the employer’s interest was legitimate “[i]n light
of the well-documented problems that are associated with the abuse of drugs and
alcohol by employees — increased absenteeism, diminished productivity, greater
health costs, increased safety problems and potential liability to third parties, and
more frequent turnover . . . .” (Id. at p. 882, fn. omitted.) We also noted that the
plaintiff in that case had “cite[d] no authority indicating that an employer may not
reject a job applicant if it lawfully discovers that the applicant currently is using
illegal drugs or engaging in excessive consumption of alcohol.” (Id. at p. 883,
fn. 15.) The employer’s legitimate concern about the use of illegal drugs also led
us in Loder to reject the claim that preemployment drug testing violated job
applicants’ state constitutional right to privacy. (Id. at pp. 887-898; see Cal.
Const., art. I, § 1.) In so holding we relied in part on Wilkinson v. Times Mirror
Corp. (1989) 215 Cal.App.3d 1034, 1046-1053, in which the Court of Appeal had
earlier reached the same conclusion. (Loder, supra, at pp. 888-889.)

2
While the decision in Loder, supra, 14 Cal.4th 846, took the form of a lead
opinion signed by two justices, five justices concurred in the lead opinion’s
conclusions concerning preemployment drug testing. (See id. at p. 853, fn. 1.)
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The Compassionate Use Act (Health & Saf. Code, § 11362.5) does not
eliminate marijuana’s potential for abuse or the employer’s legitimate interest in
whether an employee uses the drug. Marijuana, as noted, remains illegal under
federal law because of its “high potential for abuse,” its lack of any “currently
accepted medical use in treatment in the United States,” and its “lack of accepted
safety for use . . . under medical supervision.” (21 U.S.C. § 812(b)(1); see
Gonzales v. Raich, supra, 545 U.S. 1, 14.) Although California’s voters had no
power to change federal law, certainly they were free to disagree with Congress’s
assessment of marijuana, and they also were free to view the possibility of
beneficial medical use as a sufficient basis for exempting from criminal liability
under state law patients whose physicians recommend the drug. The logic of this
position, however, did not compel the voters to take the additional step of
requiring employers to accommodate marijuana use by their employees. The
voters were entitled to change the criminal law without also speaking to
employment law.
The operative provisions of the Compassionate Use Act (Health & Saf. Code,
§ 11362.5) do not speak to employment law. Except in their treatment of
physicians, who are protected not only from “punish[ment]” but also from being
“denied any right or privilege . . . for having recommended marijuana” (id., subd.
(c)), the act’s operative provisions speak exclusively to the criminal law.
Subdivision (d) of section 11362.5 provides that “[s]ection 11357, relating to the
possession of marijuana, and [s]ection 11358, relating to the cultivation of
marijuana, shall not apply to a patient, or to a patient’s primary caregiver, who
possesses or cultivates marijuana for the personal medical purposes of the patient
upon the written or oral recommendation or approval of a physician.” Subdivision
(e) of section 11362.5 simply defines “primary caregiver.” The operative
provisions do not mention employment law.
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Neither is employment law mentioned in the findings and declarations
(Health & Saf. Code, § 11362.5, subd. (b)(1)(A)-(C) & (2)) that precede the
Compassionate Use Act’s operative provisions. In those introductory provisions,
the voters declared their intent “[t]o ensure that seriously ill Californians have the
right to obtain and use marijuana for medical purposes” under the conditions
stated in the act (id., subd. (b)(1)(A)), to ensure that medical users of marijuana
and their primary caregivers “are not subject to criminal prosecution or sanction”
(id., subd. (b)(1)(B)), and “[t]o encourage the federal and state governments to
implement a plan to provide for the safe and affordable distribution of marijuana”
(id., subd. (b)(1)(C)). In a final introductory provision, the voters declared that
“[n]othing in this section [i.e., the Compassionate Use Act] shall be construed to
supersede legislation prohibiting persons from engaging in conduct that endangers
others, nor to condone the diversion of marijuana for nonmedical purposes.” (Id.,
subd. (b)(2).)
Plaintiff would read the first of these findings and declarations (Health & Saf.
Code, § 11362.5, subd. (b)(1)(A)) as if it created a broad right to use marijuana
without hindrance or inconvenience, enforceable against private parties such as
employers. The provision states in full: “The people of the State of California
hereby find and declare that the purposes of the Compassionate Use Act of 1996
are as follows: [¶] (A) To ensure that seriously ill Californians have the right to
obtain and use marijuana for medical purposes where that medical use is deemed
appropriate and has been recommended by a physician who has determined that
the person’s health would benefit from the use of marijuana in the treatment of
cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or
any other illness for which marijuana provides relief.” Not to require employers to
accommodate marijuana use, plaintiff contends, “would eviscerate the right
promised to the seriously ill by the California electorate.” To the contrary, the
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only “right” to obtain and use marijuana created by the Compassionate Use Act is
the right of “a patient, or . . . a patient’s primary caregiver, [to] possess[] or
cultivate[] marijuana for the personal medical purposes of the patient upon the
written or oral recommendation or approval of a physician” without thereby
becoming subject to punishment under sections 11357 and 11358 of the Health
and Safety Code. (Id., § 11362.5, subd. (d).) An employer’s refusal to
accommodate an employee’s use of marijuana does not affect, let alone eviscerate,
the immunity to criminal liability provided in the act. We thus give full effect to
the limited “right to obtain and use marijuana” (id., subd. (b)(1)(A)) granted in the
act (id., subd. (d)) by enforcing it according to its terms.
The proponents of the Compassionate Use Act (Health & Saf. Code,
§ 11362.5) consistently described the proposed measure to the voters as motivated
by the desire to create a narrow exception to the criminal law.3 The proponents
spoke, for example, of their desire to “protect patients from criminal penalties for
marijuana” (Ballot Pamp., Gen. Elec. (Nov. 5, 1996) argument in favor of Prop.
215, p. 60) and not to “send cancer patients to jail for using marijuana” (id.,
rebuttal to argument against Prop. 215, p. 61). Although the measure’s opponents
argued the act would “make it legal for people to smoke marijuana in the
workplace . . . or in public places . . . next to your children” (id., rebuttal to
argument in favor of Prop. 215, p. 60), the argument was obviously disingenuous

3
The voters did not give medical users of marijuana complete immunity
from state criminal law. For example, the act left medical users subject to laws
prohibiting marijuana’s transportation (Health & Saf. Code, § 11360), sale (ibid.)
and possession for sale (id., § 11359). Legislation enacted after this case arose
created additional narrow medical exceptions to those statutes. (Id., § 11362.765,
added by Stats. 2003, ch. 875, § 2.) Even while broadening immunity in some
respects, however, the Legislature prohibited possession by medical users of large
quantities of marijuana. (Id., § 11362.77, subd. (a).)
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because the measure did not purport to change the laws affecting public
intoxication with controlled substances (Pen. Code, § 647, subd. (f)) or the laws
addressing controlled substances in such places as schools and parks (Health &
Saf. Code, §§ 11353.5, 11353.7), and the act expressly provided that it did “not
supersede legislation prohibiting persons from engaging in conduct that endangers
others” (id., § 11362.5, subd. (b)(2)). Proponents reasonably countered the
argument by observing that, under the measure, “[p]olice officers can still arrest
anyone for marijuana offenses. Proposition 215 simply gives those arrested a
defense in court, if they can prove they used marijuana with a doctor’s approval.”
(Ballot Pamp., supra, rebuttal to argument against Prop. 215, p. 61.)4
In conclusion, given the Compassionate Use Act’s modest objectives and the
manner in which it was presented to the voters for adoption, we have no reason to
conclude the voters intended to speak so broadly, and in a context so far removed
from the criminal law, as to require employers to accommodate marijuana use. As
another court has observed, “the proponents’ ballot arguments reveal a delicate
tightrope walk designed to induce voter approval, which we would upset were we
to stretch the proposition’s limited immunity to cover that which its language does
not.” (People v. Galambos (2002) 104 Cal.App.4th 1147, 1152.)
Arguing against this conclusion, plaintiff notes that “ ‘ “[the] power of the
initiative must be liberally construed . . . to promote the democratic process.” ’ ”
(Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22
Cal.3d 208, 219, quoting San Diego Bldg. Contractors Assn. v. City Council

4
The Legislature subsequently provided medical users of marijuana and their
primary caregivers limited immunity from arrest for possessing, transporting,
delivering and cultivating the drug. (Health & Saf. Code, § 11362.71, subd. (e),
added by Stats. 2003, ch. 875, § 2.)
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(1974) 13 Cal.3d 205, 210, fn. 3.) There is no question, however, that the voters
had the power to change state law concerning marijuana in any respect they
wished. Thus, the question before us is not whether the voters had the power to
change employment law, but whether they actually intended to do so. As we have
explained, there is no reason to believe they did. For a court to construe an
initiative statute to have substantial unintended consequences strengthens neither
the initiative power nor the democratic process; the initiative power is strongest
when courts give effect to the voters’ formally expressed intent, without
speculating about how they might have felt concerning subjects on which they
were not asked to vote. As plaintiff notes, “[t]he judiciary’s traditional role of
interpreting ambiguous statutory language or ‘filling in the gaps’ of statutory
schemes is, of course, as applicable to initiative measures as it is to measures
adopted by the Legislature.” (Evangelatos v. Superior Court (1988) 44 Cal.3d
1188, 1202.) We detect, however, no relevant ambiguity in the Compassionate
Use Act, which simply does not speak to employment law. In any event, our
power to resolve ambiguities in statutory language is only a tool for achieving the
ultimate goal of statutory interpretation, which is to effectuate the enactors’ intent.
Finally, plaintiff contends that legislation enacted after the Compassionate
Use Act (Health & Saf. Code, § 11362.5) requires employers to accommodate
employees’ use of medical marijuana at home. Plaintiff attempts to find such a
rule in Health and Safety Code section 11362.785, subdivision (a) (added by Stats.
2003, ch. 875, § 2), which took effect more than two years after defendant
terminated plaintiff’s employment. The statute provides as follows: “Nothing in
this article shall require any accommodation of any medical use of marijuana on
the property or premises of any place of employment or during the hours of
employment or on the property or premises of any jail, correctional facility, or
other type of penal institution in which prisoners reside or persons under arrest are
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detained.” (Health & Saf. Code, § 11362.785, subd. (a).) Plaintiff would read this
language as if it articulated express exceptions to a general requirement of
accommodation that appears only implicitly. Plaintiff’s interpretation might be
plausible if the failure to infer a requirement of accommodation would render the
statute meaningless, but such is not the case. Even without inferring a requirement
of accommodation, the statute can be given literal effect as negating any
expectation that the immunity to criminal liability for possessing marijuana
granted in the Compassionate Use Act gives medical users a civilly enforceable
right to possess the drug at work or in custody.
In any event, given the controversy that would inevitably have attended a
legislative proposal to require employers to accommodate marijuana use, we do
not believe that Health and Safety Code section 11362.785, subdivision (a), can
reasonably be understood as adopting such a requirement silently and without
debate.
Arguing to the contrary as amici curiae, five present and former state
legislators who authored the bill adding section 11362.785 to the Health and
Safety Code state they “believed that this statutory enactment clearly and
sufficiently expressed [their] belief that the FEHA does require employers
generally to accommodate off-duty, off-premises medical cannabis use by their
employees, absent an undue hardship.” Amici curiae do not assert, however, that
they shared their view of the proposed legislation with the Legislature as a whole.
We therefore have no basis for imputing the authors’ views to the whole
Legislature. “ ‘In construing a statute we do not consider the motives or
understandings of individual legislators who cast their votes in favor of it.
[Citations.] Nor do we carve an exception to this principle simply because the
legislator whose motives are proffered actually authored the bill in controversy
[citation]; no guarantee can issue that those who supported his proposal shared his
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view of its compass.’ ” (California Teachers Assn. v. San Diego Community
College Dist. (1981) 28 Cal.3d 692, 699-700, quoting In re Marriage of Bouquet
(1976) 16 Cal.3d 583, 589-590.)
We thus conclude that plaintiff cannot state a cause of action under the
FEHA based on defendant’s refusal to accommodate his use of marijuana.
B. Wrongful Termination in Violation of Public Policy
Plaintiff also attempts, based on defendant’s refusal to accommodate his use
of marijuana, to state a cause of action for wrongful termination in violation of
public policy. The legal principles that underlie such a claim are well established:
Either party to a contract of employment without a specified term may terminate
the contract at will (Lab. Code, § 2922), but this ordinary rule is subject to the
exception that an employer may not discharge an employee for a reason that
violates a fundamental public policy of the state. (Stevenson v. Superior Court,
supra, 16 Cal.4th 880, 887; Tameny v. Atlantic Richfield Co., supra, 27 Cal.3d
167, 170, 176-178.) To support such a cause of action, the policy in question must
satisfy four requirements: “First, the policy must be supported by either
constitutional or statutory provisions. Second, the policy must be ‘public’ in the
sense that it ‘inures to the benefit of the public’ rather than serving merely the
interests of the individual. Third, the policy must have been articulated at the time
of the discharge. Fourth, the policy must be ‘fundamental’ and ‘substantial.’ ”
(Stevenson v. Superior Court, supra, 16 Cal.4th 880, 889-890, fn. omitted.)
Defendant contends his discharge violated fundamental public policies
supported by the Compassionate Use Act (Health & Saf. Code, § 11362.5), the
FEHA (Gov. Code, § 12900 et seq.), and the privacy clause of the California
Constitution (Cal. Const., art. I, § 1). We disagree.
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The Compassionate Use Act (Health & Saf. Code, § 11362.5), as we have
explained, simply does not speak to employment law. Nothing in the act’s text or
history indicates the voters intended to articulate any policy concerning marijuana
in the employment context, let alone a fundamental public policy requiring
employers to accommodate marijuana use by employees. Because the act
articulates no such policy, to read the FEHA in light of the Compassionate Use
Act leads to no different result. Plaintiff argues that the statutory provision on
which a wrongful termination claim is based “does not have to . . . prohibit the
employer’s precise act . . . .” (Grinzi v. San Diego Hospice Corp. (2004) 120
Cal.App.4th 72, 80-81.) Even so, the provision in question still “ ‘must
sufficiently describe the type of prohibited conduct to enable an employer to know
the fundamental public policies that are expressed in that law’ ” (id. at p. 80,
quoting Sequoia Ins. Co. v. Superior Court (1993) 13 Cal.App.4th 1472, 1480; see
Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1256, fn. 9) and to “ ‘have
adequate notice of the conduct that will subject [the employer] to tort liability to
the employees [it] discharge[s]’ ” (Green v. Ralee Engineering Co. (1998) 19
Cal.4th 66, 79, quoting Stevenson v. Superior Court, supra, 16 Cal.4th 880, 889).
The Compassionate Use Act did not put defendant on notice that employers would
thereafter be required under the FEHA to accommodate the use of marijuana.
Plaintiff also argues that his discharge violated the public policy that
underlies an adult patient’s right “to determine whether or not to submit to lawful
medical treatment” (Cobbs v. Grant (1972) 8 Cal.3d 229, 242) — a right we have
located both in the privacy clause of the state Constitution (art. I, § 1) and in the
common law. (Conservatorship of Wendland (2001) 26 Cal.4th 519, 531-532.)
The body of law to which plaintiff refers protects the right of competent adult
patients to refuse medical treatment (id. at p. 531) and imposes, inferentially, an
obligation on health care providers to seek patients’ informed consent before
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undertaking medical procedures (ibid.). Defendant’s decision not to accommodate
plaintiff’s marijuana use does not implicate plaintiff’s right to refuse medical
treatment.
In the course of this argument, plaintiff attempts to describe a right of
medical self-determination broader than the right to refuse treatment we
recognized in Conservatorship of Wendland, supra, 26 Cal.4th 519, 531-532, and
in Cobbs v. Grant, supra, 8 Cal.3d 229, 242. Plaintiff relies on Abigail Alliance v.
Von Eschenbach (D.C. Cir. 2006) 445 F.3d 470, 486, in which a federal court held
that a terminally ill patient with no other government-approved treatment options
had a due process right under the United States Constitution to have access to an
investigational new drug that the Food and Drug Administration had not approved
for commercial sale but had determined to be sufficiently safe for testing on
human beings. Analogizing to Abigail Alliance, plaintiff argues that “[i]n
California, medical marijuana use is legal, so under the state [C]onstitution
RagingWire was not permitted to prohibit [plaintiff] from using it.” Assuming for
the sake of argument Abigail Alliance has any relevance to the case before us, the
decision does not compel a different result because defendant has not prevented
plaintiff from having access to marijuana. Defendant has only refused to employ
plaintiff. To assert that defendant’s refusal to employ plaintiff affects his access to
marijuana is merely to restate the argument that the Compassionate Use Act
(Health & Saf. Code, § 11362.5) gives plaintiff a right to use marijuana free of
hindrance or inconvenience, enforceable against third parties. That argument we
have already rejected. (See ante, at pp. 8-9.)
We thus conclude plaintiff cannot state a cause of action for wrongful
termination in violation of public policy.
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III. DISPOSITION
The judgment of the Court of Appeal is affirmed.
WERDEGAR, J.
WE CONCUR:
GEORGE, C.J.
BAXTER, J.
CHIN, J.
CORRIGAN, J.

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CONCURRING AND DISSENTING OPINION BY KENNARD, J.

Under this state’s Compassionate Use Act of 1996 (Health & Saf. Code
§ 11362.5; hereafter the Compassionate Use Act), doctor-recommended marijuana
use as a medical treatment is “not subject to criminal prosecution or sanction.”
(Health & Saf. Code, § 11362.5, subd. (b)(1)(B).) In a decision conspicuously
lacking in compassion, however, the majority holds that an employer may fire an
employee for such marijuana use, even when it occurs during off-duty hours, does
not affect the employee’s job performance, does not impair the employer’s
legitimate business interests, and provides the only effective relief for the
employee’s chronic pain and muscle spasms. I disagree.
The majority’s holding disrespects the will of California’s voters who,
when they enacted the Compassionate Use Act, surely never intended that persons
who availed themselves of its provisions would thereby disqualify themselves
from employment. Moreover, as I will explain, unless an employer can
demonstrate that an employee’s doctor-approved use of marijuana under the
Compassionate Use Act while off duty and away from the jobsite is likely to
impair the employer’s business operations in some way, or that the employer has
offered another reasonable and effective form of accommodation, the employer’s
discharge of the employee is disability discrimination prohibited by the state Fair
Employment and Housing Act (Gov. Code, § 12900 et seq.; hereafter the FEHA).
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I agree with the majority, however, that because federal law prohibits
marijuana possession (21 U.S.C. §§ 812, 844(a)), discharging an employee for off-
duty, physician-recommended marijuana use will not support a claim of wrongful
discharge in violation of public policy (see Tameny v. Atlantic Richfield Co.
(1980) 27 Cal.3d 167).
I
As a result of injuries he sustained in January 1983 during his service with
the United States Air Force, plaintiff Gary Ross suffers from a lower back strain
and muscle spasms. In September 1999, after muscle relaxants and conventional
medications had failed to provide relief from the pain and muscle spasms, and on
his doctor’s recommendation, plaintiff began using marijuana as a medication for
his back problems.
In September 2001, plaintiff accepted a job with defendant RagingWire
Telecommunications, Inc. (RagingWire) as a lead systems analyst. Since
beginning treatment with marijuana, plaintiff had held similar employment, and
his disability and marijuana use had not impaired his job performance. After
hiring plaintiff, RagingWire required him to take a drug test. Plaintiff gave the
clinic administering the test a copy of his doctor’s written recommendation to use
marijuana in accordance with the state Compassionate Use Act.
Not surprisingly, plaintiff’s test results were positive for
tetrahydrocannabinol, the active chemical in marijuana. Plaintiff presented his
doctor’s marijuana recommendation to RagingWire’s human resources director,
explaining that he used marijuana to treat his chronic back pain in accordance with
the state Compassionate Use Act. Nevertheless, without offering any other form
of accommodation for his back condition, RagingWire discharged plaintiff
because of his at-home, doctor-recommended marijuana use.
2

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Plaintiff sued RagingWire for disability discrimination in violation of the
FEHA, breach of contract, and wrongful discharge in violation of public policy.
The trial court sustained RagingWire’s demurrer without leave to amend and
dismissed plaintiff’s complaint, and the Court of Appeal affirmed.
II
In November 1996, the California electorate enacted Proposition 215, an
initiative measure entitled “Medical Use of Marijuana.” Proposition 215 added
section 11362.5 to the Health and Safety Code. That section provides:
“(a) This section shall be known and may be cited as the Compassionate
Use Act of 1996.
“(b)(1) The people of the State of California hereby find and declare that
the purposes of the Compassionate Use Act of 1996 are as follows:
“(A) To ensure that seriously ill Californians have the right to obtain and
use marijuana for medical purposes where that medical use is deemed appropriate
and has been recommended by a physician who has determined that the person’s
health would benefit from the use of marijuana in the treatment of cancer,
anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any
other illness for which marijuana provides relief.
“(B) To ensure that patients and their primary caregivers who obtain and
use marijuana for medical purposes upon the recommendation of a physician are
not subject to criminal prosecution or sanction.
“(C) To encourage the federal and state governments to implement a plan to
provide for the safe and affordable distribution of marijuana to all patients in
medical need of marijuana.
“(2) Nothing in this section shall be construed to supersede legislation
prohibiting persons from engaging in conduct that endangers others, nor to
condone the diversion of marijuana for nonmedical purposes.
3

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“(c) Notwithstanding any other provision of law, no physician in this state
shall be punished, or denied any right or privilege, for having recommended
marijuana to a patient for medical purposes.
“(d) Section 11357, relating to the possession of marijuana, and Section
11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a
patient’s primary caregiver, who possesses or cultivates marijuana for the personal
medical purposes of the patient upon the written or oral recommendation or
approval of a physician.
“(e) For the purposes of this section, ‘primary caregiver’ means the
individual designated by the person exempted under this section who has
consistently assumed responsibility for the housing, health, or safety of that
person.” (Health & Saf. Code, § 11362.5.)
Although the Compassionate Use Act was the first law of its kind in the
nation, at least nine states now have similar laws.1 (See Gonzales v. Raich (2005)
545 U.S. 1, 5, fn. 1.) In two other states, Florida and Idaho, appellate court
decisions have recognized a medical necessity defense for persons charged with
illegal marijuana possession or cultivation. (Sowell v. State (Fla.Dist.Ct.App.
1998) 738 So.2d 333, 334; State v. Hastings (Idaho 1990) 801 P.2d 563, 565.)
Courts must construe statutes to effectuate the purpose of the law.
(Coachella Valley Mosquito & Vector Control Dist. v. California Public
Employment Relations Bd. (2005) 35 Cal.4th 1072, 1087.) As explained by the
statute’s words quoted above, the purpose of the Compassionate Use Act is to

1
State and federal laws permitting marijuana use for medical purposes have
existed at various times and in various forms, however, for many decades. (See
Leary v. United States (1969) 395 U.S. 6, 16-18 & fn. 19; Note, Last Resorts and
Fundamental Rights: The Substantive Due Process Implications of Prohibitions
on Medical Marijuana (2005) 118 Harv. L.Rev. 1985, 1997-1998.)
4

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allow California residents to use marijuana, when a doctor recommends it, to treat
medical conditions, including chronic pain, without being subject “to criminal
prosecution or sanction.” (Health & Saf. Code, § 11362.5, subd. (b)(1)(B), italics
added.) The majority’s construction defeats, rather than effectuates, that purpose.
The majority renders illusory the law’s promise that responsible use of marijuana
as a medical treatment will be free of sanction. The majority allows employers to
impose the sanction of job termination on those employees who use marijuana
under the statute’s provisions. The majority’s decision leaves many Californians
with serious illnesses just two options: continue receiving the benefits of
marijuana use “in the treatment of cancer, anorexia, AIDS, chronic pain,
spasticity, glaucoma, arthritis, migraine, or [] other illness” (Health & Saf. Code,
§ 11362.5, subd. (b)(1)(A)) and become unemployed, giving up what may be their
only source of income, or continue in their employment, discontinue marijuana
treatment, and try to endure their chronic pain or other condition for which
marijuana may provide the only relief. Surely this cruel choice is not what
California voters intended when they enacted the state Compassionate Use Act.
Nor is this cruel choice something that the FEHA permits. One of the
FEHA’s stated purposes is “to protect and safeguard the right and opportunity of
all persons to seek, obtain, and hold employment without discrimination or
abridgement on account of . . . physical disability . . . [or] medical condition . . . .”
(Gov. Code, § 12920.) The FEHA recognizes that “the practice of denying
employment opportunity . . . [on account of physical disability or medical
condition] deprives the state of the fullest utilization of its capacities for
development and advancement, and substantially and adversely affects the interest
of employees, employers, and the public in general.” (Ibid.) Under the FEHA, it
is an unlawful employment practice “[f]or an employer . . . to fail to make
reasonable accommodation for the known physical or mental disability of an
5

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applicant or employee” (id., § 12940, subd. (m)) or “to fail to engage in a timely,
good faith, interactive process with [an] employee or applicant to determine
effective reasonable accommodations” (id., § 12940, subd. (n)). The FEHA
directs that its provisions are to be construed liberally to accomplish each of its
purposes. (Id., § 12993, subd. (a).)
The majority says that the FEHA requires the employer to make only
“reasonable accommodation” for an employee’s disability (Gov. Code, § 12940,
subd. (m)), and that accepting an employee’s physician-approved, off-duty
marijuana use for medical treatment is not a “reasonable accommodation” because
federal law prohibits marijuana possession (21 U.S.C. §§ 812, 844(a)). I disagree.
The FEHA sets forth an illustrative list of measures that may constitute
reasonable accommodation, including (1) “[m]aking existing facilities used by
employees readily accessible to, and useable by, individuals with disabilities,” and
(2) “[j]ob restructuring, part-time or modified work schedules, reassignment to a
vacant position, acquisition or modification of equipment or devices, adjustment
or modification of examinations, training materials or policies, [and] the provision
of qualified readers or interpreters . . . .” (Gov. Code, § 12926, subd. (n)(1) & (2),
italics added.) Thus, the accommodations that the FEHA requires may include
adjustment or modification of an employer’s policy, such as a policy concerning
employee drug use.
Nothing in the text of the FEHA or in California decisional law supports
the proposition that a requested accommodation can never be deemed reasonable
if it involves off-duty conduct by the employee away from the jobsite that is
criminal under federal law, even though that same conduct is expressly protected
from criminal sanction under state law. Rather, under the FEHA, determining
whether an employee-proposed accommodation is reasonable requires
consideration of its benefits to the employee (including its effectiveness in
6

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meeting the employee’s disability-related needs and enabling the employee to
competently perform the essential job functions), the burdens it would impose on
the employer and other employees, and the availability of suitable and effective
alternative forms of accommodation. (See US Airways, Inc. v. Barnett (2002) 535
U.S. 391, 403-404 [proposed accommodation not reasonable because it would
conflict with seniority rights of other employees]; Oconomowoc Residential Prog.
v. City of Milwaukee (7th Cir. 2002) 300 F.3d 775, 784 [“Whether a requested
accommodation is reasonable or not is a highly fact-specific inquiry and requires
balancing the needs of the parties.”]; Alley v. Charleston Area Medical Center,
Inc. (W.Va. 2004) 602 S.E.2d 506, 516 [“ ‘reasonable accommodation means
reasonable modifications or adjustments to be determined on a case-by-case basis
which are designed as attempts to enable an individual with a disability to be hired
or to remain in the position for which he or she was hired’ ”].)
The FEHA does not require an employer to make any accommodation that
the employer can demonstrate would impose an “undue hardship” on the operation
of its business. (Gov. Code, § 12940, subd. (m).) The FEHA defines an “[u]ndue
hardship” as “an action requiring significant difficulty or expense, when
considered in light of the following factors: [¶] (1) The nature and cost of the
accommodation needed. [¶] (2) The overall financial resources of the facilities
involved in the provision of the reasonable accommodations, the number of
persons employed at the facility, and the effect on expenses and resources or the
impact otherwise of these accommodations upon the operation of the facility. [¶]
(3) The overall financial resources of the covered entity, the overall size of the
business of a covered entity with respect to the number of employees, and the
number, type, and location of its facilities. [¶] (4) The type of operations,
including the composition, structure, and functions of the workforce of the entity.
7

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[¶] (5) The geographic separateness, administrative, or fiscal relationship of the
facility or facilities.” (id., § 12926, subd. (s).)
Here, plaintiff’s complaint alleges in substance that marijuana use is
essential to provide him relief from the chronic pain and muscle spasms of his
disabling back condition, that more conventional medications have not provided
similar relief, and that effective treatment is necessary for him to work
productively. RagingWire has not argued that plaintiff’s requested
accommodation would interfere with the rights or interests of its other employees.
Accordingly, the reasonableness of the proposed accommodation of allowing
plaintiff to use marijuana at home, as an exception to RagingWire’s normal drug-
screening policies, turns on how it would affect RagingWire’s legitimate interests
as an employer and, more specifically, whether it would impose an “undue
hardship”—defined as “an action requiring significant difficulty or expense”—on
the operation of the RagingWire’s business. (Gov. Code, §§ 12940, subd. (m),
12926, subd. (s); see Bagatti v. Department of Rehabilitation (2002) 97
Cal.App.4th 344, 356.) To establish that plaintiff’s proposed accommodation was
unreasonable, therefore, RagingWire must show that, because marijuana
possession is illegal under federal law, an employee’s off-duty and offsite use of
marijuana would adversely affect its business operations.
RagingWire cites the state Drug-Free Workplace Act of 1990 (Gov. Code,
§ 8350 et seq.) as demonstrating that employers are not required to tolerate
marijuana use by their employees. Under that legislation, persons or organizations
that provide property or services to any state agency are required to certify that
they will “provide a drug-free workplace” (id., § 8355), which is defined as “a site
. . . at which employees of the entity are prohibited from engaging in the unlawful
manufacture, distribution, dispensation, possession, or use of a controlled
substance” (id., § 8351, subd. (a)). The term “controlled substance” is defined to
8

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include any substance, like marijuana, listed in schedule I of the federal Controlled
Substances Act (21 U.S.C. § 812). (Gov. Code, § 8351, subd. (c).) Under federal
law, federal grant recipients are subject to a similar drug-free workplace
requirement. (41 U.S.C. § 702.)
RagingWire argues that, under these state and federal laws, tolerating
plaintiff’s doctor-approved marijuana use would jeopardize its ability to contract
with state agencies or to obtain federal grants. Both the state and federal drug-free
workplace laws are concerned only with conduct at the jobsite, however.
RagingWire argues that an employee who ingested marijuana at home but
remained under its influence at work might be viewed as “using” marijuana at
work. But plaintiff has not sought an accommodation that would allow him to
possess or be under the influence of marijuana at work. The drug-free workplace
laws are not concerned with employees’ possession or use of drugs like marijuana
away from the jobsite, and nothing in those laws would prevent an employer that
knowingly accepted an employee’s use of marijuana as a medical treatment at the
employee’s home from obtaining drug-free workplace certification.
Because this case arises on demurrer, RagingWire has presented no
evidence to substantiate its claim that accommodating plaintiff’s doctor-
recommended use of marijuana would necessarily or likely have substantial
adverse effects on its business operations. In the absence of such evidence, there
is no basis for the majority to conclude that accommodating plaintiff’s doctor-
approved marijuana use would be unreasonable within the meaning of the FEHA.
Therefore, plaintiff’s complaint states a cause of action under California’s FEHA.
The majority appears to rely in part on Loder v. City of Glendale (1997) 14
Cal.4th 846 (Loder). There, the City of Glendale had adopted a drugtesting
program under which all job applicants who had conditionally been offered
employment and all existing employees who had been approved for promotion to
9

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new positions were required to undergo urinalysis testing for a variety of illegal
drugs. (Id. at pp. 852-853 (lead opn. of George, C.J.).) If the test revealed “the
presence of drugs for which the applicant [had] no legitimate medical explanation,
the applicant [was] disqualified for hiring or promotion . . . .” (Id. at p. 856, italics
added.) A taxpayer sued to enjoin further expenditure of public funds for the drug
testing program, arguing that the program violated, among other things, the state
Constitution’s guarantee of the right of privacy. (Ibid.) The trial court concluded
that, as to both job applicants and current employees seeking promotion, the
program was valid for some job classifications but not others, and it issued an
injunction prohibiting use of the drug testing program for the job categories as to
which it had found the program impermissible. (Id. at pp. 857-858.)
In Loder, a majority of this court acknowledged that an employer has a
legitimate interest in determining whether job applicants and employees are
abusing drugs, because drug abuse is commonly associated with increased
absenteeism, diminished productivity, greater health costs, increased safety
problems, potential liability to third parties, and more frequent turnover. (Loder,
supra, 14 Cal.4th at pp. 882-883, 897 (lead opn. of George, C.J.); id. at pp. 927-
928 (conc. & dis. opn. of Chin, J.).) “[A]n employer generally need not resort to
suspicionless drug testing to determine whether a current employee is likely to be
absent from work or less productive or effective as a result of current drug or
alcohol abuse: an employer can observe the employee at work, evaluate his or her
work product and safety record, and check employment records to determine
whether the employee has been excessively absent or late.” (Id. at p. 883 (lead
opn. of George, C.J.), italics added; see id. at p. 919 (conc. & dis. opn. of Kennard,
J.).) For a job applicant, however, “an employer has not had a similar opportunity
to observe the applicant over a period of time” and “reasonably may lack total
confidence in the reliability of information supplied by a former employer or other
10

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references.” (Id. at p. 883 (lead opn. of George, C.J.).) Although the employer
could observe the employee after hiring, “the hiring of a new employee frequently
represents a considerable investment on the part of an employer” and “once an
applicant is hired, any attempt by the employer to dismiss the employee generally
will entail additional expenses . . . .” (Ibid. (lead opn. of George, C.J.); see id. at
pp. 927-928 (conc. & dis. opn. of Chin, J.).) Thus, “[t]he employer’s interest is a
significant one, not only because the mistaken hiring of an individual who is
abusing drugs or alcohol can impose significant financial burdens on an employer,
but also because such an employee’s absences or diminished production frequently
will create morale problems within the workplace.” (Id. at pp. 897-898 (lead opn.
of George, C.J.).)
A necessary implication of this reasoning is that in the absence of a
legitimate medical explanation, test results showing a job applicant’s drug use are
generally a sufficient basis to deny employment. (See Loder, supra, 14 Cal.4th at
p. 883, fn. 15 (lead opn. of George, C.J.); Pilkington Barnes Hind v. Superior
Court (1998) 66 Cal.App.4th 28, 34.) Another necessary implication of Loder’s
reasoning is that the likely impacts on the employer’s business operations—in the
form of increased absenteeism, diminished productivity, greater health costs,
increased safety problems, potential liability to third parties, and more frequent
turnover—provide the appropriate yardstick for measuring the employer’s
legitimate interests in this context.
Loder is not directly relevant here because plaintiff is not challenging
RagingWire’s right to conduct preemployment drug testing, and because the
program at issue in Loder sought to detect the presence of drugs “for which the
applicant [had] no legitimate medical explanation” (Loder, supra, 14 Cal.4th at
p. 856 (lead opn. of George, C.J.)). By contrast, plaintiff uses marijuana as a
doctor-recommended treatment under the state Compassionate Use Act for a
11

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disabling physical condition. No evidence before this court establishes that use of
a controlled substance under a doctor’s recommendation poses the same risks of
excessive absences and diminished productivity that a majority of this court relied
on in Loder to uphold a drug testing program.
Considered strictly in terms of its physical effects relevant to employee
productivity and safety, and not its legal status, marijuana does not differ
significantly from many prescription drugs—for example, hydrocodone (Vicodin),
hydromorphone (Dilaudid), oxycodone (OxyContin), methylphenidate (Ritalin),
methadone (Dolophine), and diazepam (Valium)—that may affect cognitive
functioning and have a potential for abuse. The medical use of any such drug
poses some risks of absenteeism and impaired productivity. Indeed, many
nonprescription medications taken for the common cold, seasonal allergies, and
similar minor afflictions frequently have side effects, such as drowsiness or
dizziness, that may impair productivity. The majority does not deny that the
FEHA may require an employer to accommodate a disabled employee’s doctor-
approved medical use of other substances that potentially could impair job
performance.
I conclude, for these reasons, that plaintiff’s complaint states a cause of
action for disability discrimination under California’s FEHA.
III
In Tameny v. Atlantic Richfield Co., supra, 27 Cal.3d 167, this court held
that “when an employer’s discharge of an employee violates fundamental
principles of public policy, the discharged employee may maintain a tort action
and recover damages traditionally available in such actions.” (Id. at p. 170.) That
holding was based on the propositions that “an employer does not enjoy an
absolute or totally unfettered right to discharge even an at-will employee,” and
that “an employer’s traditional broad authority to discharge an at-will employee
12

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‘may be limited by statute . . . or by considerations of public policy.’ ” (Id. at
p. 172.)
To support a claim for wrongful termination in violation of public policy, a
policy must be “delineated in either constitutional or statutory provisions”; it must
be “ ‘public’ in the sense that it ‘inures to the benefit of the public’ rather than
serving merely the interests of the individual”; it must have been well-established
“at the time of the discharge”; and it must be “fundamental” and “substantial.”
(Stevenson v. Superior Court (1997) 16 Cal.4th 880, 894.) Here, to support his
wrongful discharge claim, plaintiff relies on the public policies delineated in
California’s FEHA and Compassionate Use Act.
The policies delineated in the Compassionate Use Act will not support
plaintiff’s common law wrongful discharge claim. Although the aim of that
initiative measure was to give qualified patients a right to use marijuana as
treatment for illness without being subject to criminal prosecution or sanction
(Health & Saf. Code, § 11362.5, subd. (b)(1)(A)-(B)), the measure implicitly
recognized that achieving that goal fully would require the cooperation of the
federal government; to this end, the measure included as another of its purposes
“[t]o encourage the federal and state governments to implement a plan to provide
for the safe and affordable distribution of marijuana to all patients in medical need
of marijuana” (id., § 11362.5, subd. (b)(1)(C)). To date, however, that goal has
not been achieved, and simple possession of marijuana remains a crime under
federal law, with no medical necessity exception or defense. (United States v.
Oakland Cannabis Buyers’ Cooperative (2001) 532 U.S. 483, 486, 494.) That
being so, qualified patients cannot be said to fully enjoy a right under state law to
use marijuana as a medical treatment, nor can the state’s policy be deemed
sufficiently fundamental and substantial to support a common law wrongful
discharge claim.
13

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Nor can plaintiff support his claim by the policies delineated in the FEHA
or other laws prohibiting discrimination against the disabled. As a general rule,
the public policy against disability discrimination, articulated in the FEHA and
other statutes, inures to the public’s benefit and is sufficiently substantial and
fundamental to support a cause of action for wrongful discharge in violation of
public policy. (City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1159-
1161.) In the particular context of accommodating an employee’s physician-
approved use of marijuana to treat a disabling medical condition, however, that
policy must be viewed against the backdrop of both federal criminal laws, which
prohibit marijuana possession without a medical use exception, and the federal
Americans with Disabilities Act, which excludes from its protection “any
employee or applicant who is currently engag[ed] in the illegal use of drugs, when
the covered entity acts on the basis of such use” (42 U.S.C. § 12114(a)). A state
law policy that rests on a proposition that Congress and federal law have
rejected—here the proposition that marijuana has acceptable uses for medical
treatment—cannot be considered sufficiently substantial and fundamental to
support a common law tort claim for wrongful discharge.
Because plaintiff has not identified a policy that is sufficiently fundamental
and substantial to support his wrongful discharge claim, I agree that the trial court
did not err in sustaining RagingWire’s demurrer to that claim.
IV
California voters enacted the Compassionate Use Act to allow marijuana to
be used for medical treatment on a doctor’s recommendation. Although there
have been well-publicized abuses of the law for financial gain or personal
gratification, the Legislature has acted to curb those abuses while still allowing
marijuana to be available for those with genuine medical need. (See, e.g., Health
& Saf. Code, §§ 11362.7-11362.9, added by Stats. 2003, ch. 875.) By its decision
14

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today, however, the majority has seriously compromised the Compassionate Use
Act, denying to those who must work for a living its promised benefits “in the
treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis,
migraine, or . . . other illness” (Health & Saf. Code, § 11362.5, subd. (b)(1)(A)).
The majority gives employers permission to fire any employee who uses
marijuana on a doctor’s recommendation, without requiring the employer to show
that this medical use will in any way impair the employer’s business interests.
Absent such a showing of business impairment, I would hold that neither the
Compassionate Use Act nor the FEHA allows an employer to fire an employee for
offsite and off-duty, doctor-recommended marijuana use as a medical treatment.
I would reverse the Court of Appeal’s judgment.
KENNARD,
J.
I CONCUR:
MORENO, J.
15

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Ross v. Ragingwire Telecommunications, Inc.
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 132 Cal.App.4th 590
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S138130
Date Filed: January 24, 2008
__________________________________________________________________________________

Court:

Superior
County: Sacramento
Judge: Joe S. Gray

__________________________________________________________________________________

Attorneys for Appellant:

Joseph D. Elford; Law Office of Stewart Katz, Stewart Katz and Costa Kerestenzis for Plaintiff and
Appellant.

Robert A. Raich for California legislators as Amicus Curiae on behalf of Plaintiff and Appellant.

Daniel Abrahamson, Tamar Todd and Theshia Naidoo for American Pain Foundation, American Medical
Women’s Association, Lymphoma Foundation of America, American Nurses Association, California
Nurses’ Association, AIDS Action Council, National Women’s Health Network, Doctors of the World-
USA and Gay Men’s Health Crisis as Amici Curiae on behalf of Plaintiff and Appellant.

Theodore Cody and David Goldberg for Protection and Advocacy, Inc., and Equal Rights Advocates as
Amici Curiae on behalf of Plaintiff and Appellant.


__________________________________________________________________________________

Attorneys for Respondent:

Jackson Lewis, D. Gregory Valenza, Marlena G. Gibbons, Patrick C. Mullin, Timothy C. Travelstead and
Robert M. Pattison for Defendant and Respondent.

Deborah J. La Fetra for Pacific Legal Foundation as Amicus Curiae on behalf of Defendant and
Respondent.

Suzanne B. Gifford and Richard A. Katzman for Santa Clara Valley Transportation Authority as Amicus
Curiae on behalf of Defendant and Respondent.

Cook Brown, Dennis B. Cook and Ronald E. Hofsdal for Western Electrical Contractors Association as
Amicus Curiae on behalf of Defendant and Respondent.

1

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Joseph D. Elford
Americans for Safe Access
1322 Webster Street, Suite 208
Oakland, CA 94612
(415) 573-7842

Stewart Katz
Law Office of Stewart Katz
555 University Avenue, #270
Sacramento, CA 95825
(916) 444-5678

Robert M. Pattison
Jackson Lewis
199 Fremont Street, 10th Floor
San Francisco, CA 94105
(415) 394-9400

2

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Petition for review after the Court of Appeal affirmed the judgment in a civil action. When a person who is authorized to use marijuana for medical purposes under the California Compassionate Use Act (Health & Saf. Code, section 11362.5) is discharged from employment on the basis of his or her off-duty use of marijuana, does the employee have either a claim under the Fair Employment and Housing Act (Gov. Code, section 12900 et seq.) for unlawful discrimination in employment on the basis of disability or a common law tort claim for wrongful termination in violation of public policy?

Opinion Information

Date:	Citation:	Docket Number:	Category:	Status:
Thu, 01/24/2008	42 Cal.4th 920 original opinion	S138130	Review - Civil Appeal	closed; remittitur issued

Disposition
Jan 24 2008	Opinion: Affirmed

Dockets
Oct 17 2005	Petition for review filed   by plaintiff/appellant (Gary Ross) (Filed in Sacramento)
Oct 19 2005	Received Court of Appeal record   case number C043392 -- one doghouse
Nov 3 2005	Answer to petition for review filed   by counsel for (Raging Wire Telecommunications, Inc.)
Nov 10 2005	Reply to answer to petition filed   by counsel for (Gary Ross)
Nov 30 2005	Petition for review granted (civil case)   Votes: George, C.J., Kennard, Werdegar, and Moreno, JJ.
Dec 20 2005	Request for extension of time filed   Counsel for respondent requests extension of time to January 27, 2006, to file the opening brief on the merits.
Dec 22 2005	Extension of time granted   Appellant's time to serve and file the opening brief is extended to and including January 27, 2006.
Dec 30 2005	Certification of interested entities or persons filed   by counsel for resp. (RagingWire Telecommunications)
Jan 25 2006	Request for extension of time filed   counsel for aplt. requests extension of time to February 7, 2006, to file the opening brief on the merits.
Jan 27 2006	Extension of time granted   Appellant's time to serve and file the opening brief on the merits is extended to and including February 7, 2006.
Feb 7 2006	Opening brief on the merits filed   by counsel for aplt. (Gary Ross)
Mar 2 2006	Request for extension of time filed   counsel for Ragingwire Telecomm. requests extension of time to 4-7-2006 to file the answer brief on the merits.
Mar 6 2006	Extension of time granted   Respondent's time to serve and file the answer brief on the merits is extended to and including April 7, 2006,
Apr 4 2006	Request for extension of time filed   counsel for respondent requests extension of time to 4-21-06, to file the answer brief on the mertis.
Apr 7 2006	Extension of time granted   Respondent's time to serve and file the answer brief on the merits is extended to and including April 21, 2006
Apr 21 2006	Answer brief on the merits filed   counsel for RagingWire TeleComm., Inc.
May 5 2006	Request for extension of time filed   for appellant Ross to file the reply brief on the merits, to 6/9/06.
May 8 2006	Extension of time granted   to 6-9-06 for appellant to file the reply brief on the merits.
Jun 6 2006	Request for extension of time filed   counsel for appellant requests an extension of time to June 23, 2006, to file the reply brief on the merits.
Jun 13 2006	Extension of time granted   Appellant's time to serve and file the reply brief on the merits is extended to and including June 23,2006.
Jun 23 2006	Reply brief filed (case fully briefed)   counsel for petnr.
Jul 20 2006	Received application to file Amicus Curiae Brief   Pacific Legal Foundation Deborah LaFetra, counsel with brief, submitted in support of respondent
Jul 24 2006	Received application to file Amicus Curiae Brief   The American Pain Foundation, et al., in support of Appellant, Gary Ross. by consel, Daniel Abrahamson.
Jul 24 2006	Received application to file Amicus Curiae Brief   Santa Clara Valley Transportation Authority Richard Katzman, Assistant Gen. Counsel application and brief in support of respondent
Jul 24 2006	Received application to file Amicus Curiae Brief   "Current and Former Calif. Legislators" Robert Raich, Counsel application and brief in support of appellant
Jul 24 2006	Received application to file Amicus Curiae Brief   Protection and Advocacy Inc.; Equal Rights Advocates Theodore Cody, David Goldberg, counsel application and brief in support of appellant
Jul 25 2006	Received application to file Amicus Curiae Brief   Western Electrical Contractors Association in support of respondent. / CRC 40.(b) by Dennis Cook, counsel
Jul 28 2006	Permission to file amicus curiae brief granted   Western Electrical Contractors Association in support of respondent.
Jul 28 2006	Amicus curiae brief filed   Western Electrical Contractors Association in support of respondent. Answer is due within twenty days.
Aug 7 2006	Permission to file amicus curiae brief granted   American Pain Foundation, et al., is support of appellant
Aug 7 2006	Amicus curiae brief filed   American Pain Foundation, et al., in support of appellant. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Aug 7 2006	Permission to file amicus curiae brief granted   Santa Clara Valley Transportation Authority in support of respondent.
Aug 7 2006	Amicus curiae brief filed   Santa Clara Valley Transportation in support of respondent. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Aug 7 2006	Permission to file amicus curiae brief granted   Pacific Legal Foundation in support of respondent.
Aug 7 2006	Amicus curiae brief filed   Pacific Legal Foundation in support of respondent. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Aug 7 2006	Permission to file amicus curiae brief granted   Protection and Advocacy, Inc., et al., in support of appellant
Aug 7 2006	Amicus curiae brief filed   Protection and Advocacy, Inc., et al., in support of appellant. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Aug 7 2006	Permission to file amicus curiae brief granted   Current or Former Calif. Legislators in support of appellant.
Aug 7 2006	Amicus curiae brief filed   Current or Former California Legislators in support of appellant. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Aug 16 2006	Request for extension of time filed   counsel for appellant requests extension of time to August 27, 2006, to file the response to amicus curiae brief of Western Electrical Contractors Assoc.
Aug 21 2006	Extension of time granted   Appellant's time to serve and file the response to amicus curiae brief of Western Electrical Contractors Assoc. is extended to and including August 27, 2006.
Aug 23 2006	Request for extension of time filed   Counsel for respondent requests extension of time to 9-18-2006, for all parties to file the response to amicus curiae briefs.
Aug 28 2006	Extension of time granted   Respondent's time to serve and file the response to amicus curiae briefs is extended to and including September 18, 2006, for all parties.
Sep 18 2006	Response to amicus curiae brief filed   counsel for resp. (consolidated)
Sep 19 2006	Response to amicus curiae brief filed   counsel for petitioner (Gary Ross) (40.1(b)) (consolidated response)
Oct 2 2007	Case ordered on calendar   to be argued on Tuesday, November 6, 2007, at 9:00 a.m., in Sacramento.
Oct 9 2007	Received:   from counsel for respondent Ragingwire Comm., Inc. letter re: change in counsel as of June 2006. Jackson Lewis, LLP, has assigned Robert M. Pattison, Patrick C. Mullin, and Timothy Travelstead.
Oct 12 2007	Application filed to:   Application by co-counsel for appellant Ross to divide oral argument between themselves, asking 20 minutes for Joseph D. Elford and 10 minutes for Stewart Katz.
Oct 18 2007	Order filed   The request of counsel for appellant in the above-referenced cause to allow two counsel to argue on behalf of appellant at oral argument is hereby granted. The request of appellant to allocate to co-counsel Joseph D. Elford 20 minutes and Stewart Katz 10 minutes of appellant's 30-minute allotted time for oral argument is granted.
Oct 22 2007	Request for Extended Media coverage Filed   The California Channel
Oct 24 2007	Request for Extended Media coverage Granted   The request for extended media coverage, filed by The California Channel on October 22, 2007, is granted, subject to the conditions set forth in rule 1.150, California Rules of Court.
Nov 6 2007	Stipulation filed   Counsel for the parties in the above-entitled action, having been informed by the Clerk of the Court that Justice Corrigan will not be present at oral argument because of illness, but will review the tape recording of the oral argument, hereby stipulate that they have no objection to Justice Corrigan's participation in the deliberations and decision in this matter notwithstanding her absence from oral argument.
Nov 6 2007	Cause argued and submitted
Jan 22 2008	Filed:   The order filed on July 28, 2006, is amended to read, in its entirety; "The application of Western Electrical Contractors Association for permisison to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may may be served and filed by any party within twenty days of the filing of the brief."
Jan 23 2008	Notice of forthcoming opinion posted
Jan 24 2008	Opinion filed: Judgment affirmed in full   OPINION BY: Werdegar, J. --- joined by : George, C.J., Baxter, Chin, Corrigan, JJ. CONCURRING AND DISSENTING OPINION BY: Kennard, J. --- joined by: Moreno, J.
Feb 26 2008	Remittitur issued (civil case)
Feb 29 2008	Received:   receipt for remittitur from CA 3.

Briefs
Feb 7 2006	Opening brief on the merits filed
Apr 21 2006	Answer brief on the merits filed
Jun 23 2006	Reply brief filed (case fully briefed)
Jul 28 2006	Amicus curiae brief filed
Aug 7 2006	Amicus curiae brief filed
Aug 7 2006	Amicus curiae brief filed
Aug 7 2006	Amicus curiae brief filed
Aug 7 2006	Amicus curiae brief filed
Aug 7 2006	Amicus curiae brief filed
Sep 18 2006	Response to amicus curiae brief filed
Sep 19 2006	Response to amicus curiae brief filed

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