FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SANTIAGO LOPEZ, No. 09-55698
Plaintiff-Appellant, D.C. No.
v. 2:06-cv-04154-GW-
PACIFIC MARITIME ASSOCIATION, JTL
Defendant-Appellee, ORDER
and AMENDING
INTERNATIONAL LONGSHORE AND OPINION AND
DENYING
WAREHOUSE UNION; and PETITION FOR
INTERNATIONAL LONGSHORE AND REHEARING AND
WAREHOUSE UNION LOCAL 13, PETITION FOR
Defendants. REHEARING EN
BANC AND
AMENDED
OPINION
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Argued and Submitted
November 1, 2010—Pasadena, California
Filed March 2, 2011
Amended September 21, 2011
Before: Harry Pregerson, Kenneth F. Ripple,* and
Susan P. Graber, Circuit Judges.
*The Honorable Kenneth F. Ripple, Senior United States Circuit Judge
for the Seventh Circuit, sitting by designation.
17883
17884 LOPEZ v. PACIFIC MARITIME ASSOCIATION
Opinion by Judge Graber;
Partial Concurrence and Partial Dissent by Judge Pregerson
17886 LOPEZ v. PACIFIC MARITIME ASSOCIATION
COUNSEL
Andrea L. Cook, Andrea Cook & Associates, Long Beach,
California, for the plaintiff-appellant.
Jason M. Steele, Morgan, Lewis & Bockius LLP, Los Ange-
les, California, for the defendant-appellee.
Daniel T. Vail, U.S. Equal Employment Opportunity Com-
mission, Washington, D.C.; Claudia Center, The Legal Aid
Society—Employment Law Center, San Francisco, Califor-
nia; and Peter Blanck, Burton Blatt Institute, Syracuse Uni-
versity, Syracuse, New York, for the amici curiae.
ORDER
The opinion filed March 2, 2011, is replaced by the
amended opinion filed concurrently with this order.
With these amendments, Judges Ripple and Graber have
voted to deny the petition for panel rehearing, and Judge Pre-
gerson has voted to grant it. Judge Graber has voted to deny
the petition for rehearing en banc, and Judge Ripple has so
recommended. Judge Pregerson has voted to grant it.
LOPEZ v. PACIFIC MARITIME ASSOCIATION 17887
The full court has been advised of the petition for rehearing
en banc, and no judge of the court has requested a vote on it.
The petition for panel rehearing and petition for rehearing
en banc are DENIED. No further petitions for rehearing will
be accepted.
OPINION
GRABER, Circuit Judge:
Plaintiff Santiago Lopez appeals from the entry of sum-
mary judgment in favor of Defendant Pacific Maritime Asso-
ciation on Plaintiff’s claims for disparate treatment and
disparate impact under the federal Americans with Disabili-
ties Act of 1990 (“ADA”) and the state Fair Employment and
Housing Act (“FEHA”). On de novo review, Doran v. 7-
Eleven, Inc., 524 F.3d 1034, 1047 (9th Cir. 2008), we affirm.
I. Background1
Defendant represents the shipping lines, stevedore compa-
nies, and terminal operators that run the ports along the west
coast of the United States. As the collective bargaining agent
and payroll administrator of those employers, Defendant
enforces the policies that govern the hiring of longshore
workers who work along the west coast. One of those policies
is a “one-strike rule,” which eliminates from consideration
any applicant who tests positive for drug or alcohol use during
the pre-employment screening process. Defendant notifies its
applicants at least seven days in advance of administering the
drug test. Failing the drug test, even once, disqualifies an
applicant permanently from future employment.
1
Because this case comes to us after the entry of summary judgment for
Defendant, we state the facts in the light most favorable to Plaintiff. Dark
v. Curry County, 451 F.3d 1078, 1082 n.2 (9th Cir. 2006).
17888 LOPEZ v. PACIFIC MARITIME ASSOCIATION
Plaintiff wants to be a longshoreman. He first applied in
1997 at the port in Long Beach, California. At that time, how-
ever, Plaintiff suffered from an addiction to drugs and alco-
hol. When Defendant administered its standard drug test,
Plaintiff tested positive for marijuana. Defendant therefore
disqualified Plaintiff from further consideration under the
one-strike rule.
In late 2002, Plaintiff recognized the deleterious effects on
his health that his addictions had caused. He became clean
and sober and, in 2004, reapplied to be a longshoreman.
Because of the one-strike rule, Defendant rejected Plaintiff’s
application. At that time, Defendant did not know of Plain-
tiff’s earlier addiction. Plaintiff attempted to appeal, but
Defendant never entertains appeals from disqualifications
arising from positive drug tests.
Plaintiff then filed this action, claiming that Defendant vio-
lated the ADA and the FEHA by discriminating against him
on the basis of his protected status as a rehabilitated drug
addict. See 42 U.S.C. §§ 12112(a), 12114(b)(1) (expressly
protecting from employment discrimination any person who
has “been rehabilitated successfully and is no longer engaging
in [illegal drug use]”); Cal. Gov’t Code § 12926(l) (incorpo-
rating by reference any protection in the ADA not expressly
incorporated into the FEHA). The district court granted sum-
mary judgment to Defendant. Plaintiff timely appeals.
II. Plaintiff’s Disparate Treatment Claim
[1] In support of his disparate treatment claim, Plaintiff
makes three arguments. He first argues that the one-strike rule
facially discriminates against recovering or recovered drug
addicts. We disagree. The rule eliminates all candidates who
test positive for drug use, whether they test positive because
of a disabling drug addiction or because of an untimely deci-
sion to try drugs for the first time, recreationally, on the day
before the drug test. Conversely, the rule allows a drug-
LOPEZ v. PACIFIC MARITIME ASSOCIATION 17889
addicted applicant who happens to be sober at the time of the
drug test to complete pre-employment processing success-
fully. Here, for example, had Plaintiff applied for the first
time in 2004, he would qualify for employment despite his
status as a recovering addict. The triggering event for pur-
poses of the one-strike rule is a failed drug test, not an appli-
cant’s drug addiction.
[2] The Supreme Court’s opinion in Raytheon Co. v. Her-
nandez, 540 U.S. 44 (2003), supports our view of the one-
strike rule. There, the Court held that an employer’s policy
not to rehire workers who lost their jobs due to drug-related
misconduct constituted a “neutral,” “legitimate, [and] nondis-
criminatory reason for refusing to rehire” the aggrieved
employee. Id. at 53. The Court disapproved of the argument
that, because the employee’s misconduct related to his drug
addiction, the employer’s refusal to rehire him on account of
that misconduct violated the ADA. Id. at 54 n.6. The ADA
prohibits employment decisions made because of a person’s
qualifying disability, not decisions made because of factors
merely related to a person’s disability. See Hazen Paper Co.
v. Biggins, 507 U.S. 604, 611 (1993) (holding that an employ-
er’s decision “wholly motivated by factors other than age”
does not constitute age discrimination, even if “the motivating
factor is correlated with age”).
Second, Plaintiff alleges that Defendant adopted the one-
strike rule intentionally to exclude recovering and recovered
drug addicts from its work force. The record belies that alle-
gation. Before the adoption of the one-strike rule, the long-
shore industry suffered numerous serious accidents and
injuries, including several fatalities. Defendant attributed
those accidents in part to a culture that accepted the use of
drugs and alcohol in the workplace. Defendant thought that it
could reduce such accidents by eliminating applicants who
might be more likely to use drugs or alcohol at work.
With the support of the union that represented the long-
shore workers, Defendant began administering drug tests to
17890 LOPEZ v. PACIFIC MARITIME ASSOCIATION
new applicants. Defendant decided to make the disqualifica-
tion of applicants who tested positive permanent because it
thought that applicants who could not abstain from using an
illegal drug, even after receiving advance notice of an upcom-
ing drug test, showed less responsibility and less interest in
the job than applicants who passed the drug test. Thus, Defen-
dant’s reasons for rejecting applicants who test positive did
not include a calculation that an applicant might test positive
because of a drug addiction, rather than because of recre-
ational use.
[3] In short, nothing about the history of the one-strike rule
leads us to conclude that Defendant adopted the rule with a
discriminatory purpose. The ADA and the FEHA protect peo-
ple who are recovering or who have recovered from a drug
addiction; they do not protect people who are using illegal
drugs when they apply for a job. It was lawful for Defendant
to eliminate applicants who were using drugs when they
applied to be longshore workers. It was likewise lawful for
Defendant to disqualify those applicants permanently. Noth-
ing in the record suggests that Defendant targeted or
attempted to target recovered drug addicts, as distinct from
recreational users.
[4] Finally, Plaintiff argues that the district court improp-
erly granted summary judgment because Defendant learned of
Plaintiff’s drug addiction shortly after disqualifying him. We
fail to see how Plaintiff’s attempt to inform Defendant of his
status after Defendant disqualified him has any bearing on
whether Defendant decided to disqualify Plaintiff because of
his protected status. See Raytheon, 540 U.S. at 54 n.7 (“If [the
employer] were truly unaware that . . . a disability existed, it
would be impossible for her hiring decision to have been
based, even in part, on [the employee’s] disability. And, if no
part of the hiring decision turned on [the employee’s] status
as disabled, he cannot, ipso facto, have been subject to dispa-
rate treatment.”); Brundage v. Hahn, 66 Cal. Rptr. 2d 830,
836 (Ct. App. 1997) (affirming summary judgment on an
LOPEZ v. PACIFIC MARITIME ASSOCIATION 17891
employee’s ADA and FEHA disparate treatment claims
because the employer could not have discriminated on the
basis of a disability of which it did not know).
Plaintiff attempts to rely on our opinion in Hernandez v.
Hughes Missile Systems Co., 362 F.3d 564 (9th Cir. 2004), to
show that he has raised a genuine issue of material fact with
respect to his disparate treatment claim. But the facts in Her-
nandez clearly distinguish it from the circumstances here. In
Hernandez, an employer fired an employee for failing to pass
his drug test. Id. at 566. The employee later became sober and
reapplied. Unlike in this case, the employee included with his
new application a letter from his Alcoholics Anonymous
sponsor that informed the employer of the employee’s “steady
and consistent progress in his recovery from [his] disease.” Id.
That piece of evidence was crucial because, even though the
employer claimed that it had not read the letter, a reasonable
juror could have found that it did. Id. at 566-67. Conse-
quently, we reversed summary judgment because “a reason-
able jury could determine that [the employer] refused to re-
hire [the employee] because of his past record of addiction
and not because of a company rule barring re-hire of previ-
ously terminated employees.” Id. at 570.
[5] Plaintiff has no such evidence. His letter informing
Defendant of his drug addiction came only after Defendant’s
decision to disqualify him from further processing. Accord-
ingly, Plaintiff’s disparate treatment claim fails because there
is no evidence in this record that Defendant disqualified him
because of his protected status.
III. Plaintiff’s Disparate Impact Claim
Plaintiff’s disparate impact claim also fails. He argues that
the one-strike rule disparately affects recovering drug addicts
by eliminating anyone who previously tested positive for drug
use. But he offers only the bald assertion that this result must
be so. We disagree because, as we have noted, the rule does
17892 LOPEZ v. PACIFIC MARITIME ASSOCIATION
not necessarily screen out recovering drug addicts dispropor-
tionately.
A. Initially, we observe that Plaintiff has litigated his dis-
parate impact claim from start to finish on the familiar theory
taken from discrimination claims brought under Title VII, 42
U.S.C. §§ 2000e to 2000e-4. In Plaintiff’s opposition to
Defendant’s motion for summary judgment, for example, he
told the district court that, “[i]n order to state a prima facie
case of disparate impact discrimination, the Plaintiff must
show that employment practices that are facially neutral fall
more harshly on one group than another and cannot be justi-
fied by business necessity.” He cited two Title VII cases, Wat-
son v. Fort Worth Bank & Trust, 487 U.S. 977 (1988), and
Griggs v. Duke Power Co., 401 U.S. 424 (1971). His opening
brief to us restated the same principle, again citing Watson as
controlling precedent. The district court concluded from that
argument that Plaintiff intended to prove his disparate impact
claim through the usual method of proving “disparate impact”
as set out in Title VII cases. We did, too.
In a petition for rehearing filed after our original opinion
issued, however, Plaintiff changed his theory. With support
from several amici curiae,2 Plaintiff now argues that we erred
by using Title VII cases to guide our analysis, because dispa-
rate impact claims under the ADA require a different
2
Those amici are the U.S. Equal Employment Opportunity Commission,
the American Association of People with Disabilities, the American Dia-
betes Association, the Association on Higher Education and Disability, the
Disability Independence Group, the Disability Rights Advocates, the Dis-
ability Rights Education and Defense Fund, Inc., the Disability Rights
Legal Center, the Drug Policy Alliance, the Epilepsy Foundation of Amer-
ica, John A. Lancaster, Judge David L. Bazelon Center for Mental Health
Law, the Legal Aid Society—Employment Law Center, the National Dis-
ability Rights Network, the National Employment Lawyers Association,
the National Federation of the Blind, the National Health Law Program,
the New York Branch of the International Dyslexia Association, and the
Swords to Plowshares: Veterans Rights Organization.
LOPEZ v. PACIFIC MARITIME ASSOCIATION 17893
approach. Specifically, § 12112(b)(6) of the ADA makes
unlawful any “selection criteria that screen out or tend to
screen out an individual with a disability or a class of individ-
uals with disabilities unless . . . consistent with business
necessity.” Applying § 12112(b)(6) here, Plaintiff argues, he
need not make a “formal statistical showing” of a disparate
impact because the one-strike rule tends to screen out recov-
ered drug addicts, whether it does so in fact or not.
Plaintiff plainly waived his new theory, and we therefore
do not address it on the merits.3 To allow Plaintiff to make
this argument now, after the case has been litigated, appealed,
briefed, submitted, and decided, would deprive us of the assis-
tance of our colleague below and would deprive Defendant of
the opportunity to meet Plaintiff’s new argument in the proper
course. For those reasons, we adhere to the twin requirements
that a litigant must argue clearly all of his theories of relief,
both in the district court and in his opening brief, to preserve
those theories on appeal. Alameda Books, Inc. v. City of Los
Angeles, 631 F.3d 1031, 1044 (9th Cir. 2011); United States
v. City of Arcata, 629 F.3d 986, 992 (9th Cir. 2010). Because
Plaintiff failed to raise this new argument in either of those
places, he has waived it. We emphasize that we express no
view on what application, if any, § 12112(b)(6) would have
to the facts of this case. That question is not before us.
[6] B. To create a genuine issue of fact under the theory
that Plaintiff chose to pursue, Plaintiff must have produced
evidence from which a fact-finder reasonably could conclude
that the one-strike rule results in fewer recovered drug addicts
in Defendant’s employ, as compared to the number of quali-
fied recovered drug addicts in the relevant labor market. See
3
We respectfully disagree with our dissenting colleague’s assertion that
Plaintiff argued in his opening brief that § 12112(b)(6) applies. Plaintiff
cited the statute only once, as part of a generic overview of the statutory
framework; his actual argument neither cited § 12112(b)(6) nor encom-
passed, even without citation, the argument he now wishes he had made.
17894 LOPEZ v. PACIFIC MARITIME ASSOCIATION
Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 308
(1977) (comparing the racial composition of the employer’s
work force to the racial composition of the qualified work
force in the relevant labor market). The record contains nei-
ther statistical nor anecdotal evidence to that effect.
Plaintiff did present to the district court an affidavit from
a forensic economist. The economist concluded that Plaintiff
had a viable disparate impact claim4 because, after
“[c]omparing the selection rate of the whole population [of
longshore worker applicants] (48%) versus the population of
the ‘protected group’ (0%),” she found it “evident that [the
one-strike rule] is in violation of the 80% Rule.” See 29
C.F.R. § 1607.4(D) (“A selection rate for any race, sex, or
ethnic group which is less than [80%] of the rate for the group
with the highest rate will generally be regarded by the Federal
enforcement agencies as evidence of adverse impact, while a
greater than [80%] rate will generally not be regarded by Fed-
eral enforcement agencies as evidence of adverse impact.”).
[7] Although the economist did not define the “protected
group,” she appears to have made the same mistake as Plain-
tiff. The correctly defined “protected group” for purposes of
the ADA and the FEHA is recovered drug addicts. It does not
matter whether such individuals applied to Defendant previ-
ously. If the number of recovered addicts in Defendant’s
workforce roughly reflects the number of recovered addicts in
the relevant labor market, then Defendant has not broken the
law under Plaintiff’s theory. By defining the “protected
group” as the number of recovered drug addicts who previ-
ously applied to Defendant and were rejected because they
failed a drug test, Plaintiff and his expert assume their own
conclusion. Although Defendant will never hire those people
4
We assume, without deciding, that the economist’s affidavit includes
some admissible evidence, while noting that it contains a legal conclusion.
See Sullivan v. Dollar Tree Stores, Inc., 623 F.3d 770, 777 (9th Cir. 2010)
(“Pure legal conclusions are not admissible as factual findings.”).
LOPEZ v. PACIFIC MARITIME ASSOCIATION 17895
and thus their selection rate always will be zero, we still do
not know how many recovered drug addicts Defendant hires
versus how many recovered drug addicts it turns away, nor do
we know how many of those turned away are not drug
addicts, recovering or otherwise.
[8] Plaintiff complains that our standard places an unfair
burden on him because he has no way to know how many
recovering or recovered drug addicts Defendant has disquali-
fied. Neither can he determine the proportion of recovering or
recovered drug addicts in the relevant labor market because,
he argues, state law prevents him from inquiring into a per-
son’s history of drug abuse. We recognize the challenge
involved in bringing a disparate impact claim of this kind, but
both logic and precedent require him to produce some evi-
dence that tends to show that the one-strike rule excludes
recovering or recovered drug addicts disproportionately.
Plaintiff introduced no such evidence. At the summary judg-
ment stage, a party no longer can rely on allegations alone,
however plausible they may be. Berger v. City of Seattle, 569
F.3d 1029, 1077-78 (9th Cir. 2009) (en banc). Because the
record contains no evidence supporting an essential element
of Plaintiff’s disparate impact claim, we must affirm the sum-
mary judgment on that claim.
IV. Conclusion
We recognize that the one-strike rule imposes a harsh pen-
alty on applicants who test positive for drug use. As Defen-
dant candidly concedes, many people question the rule’s
reasonableness in light of the fact that many people who use
drugs later rehabilitate themselves, as Plaintiff exemplifies.
But unreasonable rules do not necessarily violate the ADA or
the FEHA. Because Plaintiff failed to establish that Defendant
intentionally discriminated against him on the basis of his
protected status or that the one-strike rule disparately affects
recovered drug addicts, we affirm the summary judgment in
favor of Defendant.
17896 LOPEZ v. PACIFIC MARITIME ASSOCIATION
AFFIRMED.
PREGERSON, Circuit Judge, concurring in part and dissent-
ing in part:
I agree with the majority’s conclusion that the district court
did not err in granting summary judgment to Defendant on
Lopez’s disparate treatment claim. But, I disagree with the
majority’s decision to foreclose Lopez’s disparate impact
claim, and I would allow that claim to proceed for the follow-
ing reasons.
Disparate Impact Claim
Under § 12112(b)(6) of the Americans with Disabilities Act
(“ADA”), it is unlawful for employers to institute any “selec-
tion criteria that screen out or tend to screen out an individual
with a disability or a class of individuals with disabilities
unless . . . consistent with business necessity.” 42 U.S.C.
§ 12112(b)(6). Lopez contends that lifetime employment bans
for drug test failures are per se violations of the ADA because
they invariably exclude certain protected individuals from
employment based on past behavior related to their disability.1
Employers may not reject an applicant because the applicant
was previously addicted to drugs. See Hernandez v. Hughes
Missile Sys. Co., 362 F.3d 564, 568 (9th Cir. 2004). Yet
Lopez contends that this is exactly what the Pacific Maritime
Association’s lifetime hiring ban does. In support of his dispa-
rate impact claim, Lopez offered expert testimony that drug
addicts are disproportionately affected by the lifetime
employment ban. In addition, Lopez showed that at least
1
This is distinct from either current drug use or workplace misconduct,
both of which employers may lawfully penalize. See, e.g., Amy L. Hen-
nen, Protecting Addicts in the Employment Arena: Charting a Course
Toward Tolerance, 15 Law & Ineq. 157, 172-74 (1997).
LOPEZ v. PACIFIC MARITIME ASSOCIATION 17897
twenty-seven individuals were subjected to the ban during
roughly the same period he was. Because the identities of
those individuals are protected, the court does not know
which, if any, of them were drug addicts rather than casual
users, or which of the addicts, if any, were later rehabilitated.
It is clear, however, that a significant number of individuals
were impacted by the lifetime employment ban. It is also rea-
sonable to infer that at least some of those individuals, like
Lopez, were at one time addicted to drugs, but after participat-
ing in a drug rehabilitation program, were able to overcome
their addiction. Viewing the evidence in the light most favor-
able to the Plaintiff, and making all reasonable inferences in
his favor, Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d
1080, 1087 (9th Cir. 2001), Lopez has put forward sufficient
evidence to establish a prima facie case of adverse impact on
the protected class.
Moreover, the district court erred in requiring statistical
evidence to support Lopez’s disparate impact claim under the
ADA. While statistical evidence is generally required to show
disparate impact in, for example, age discrimination cases2
and discrimination cases under Title VII of the Civil Rights
Act, 42 U.S.C. § 2000e et seq., such evidence is not required
for similar claims under the ADA:
It is not necessary to make statistical comparisons
between a group of people with disabilities and peo-
ple who are not disabled to show that a person with
a disability is screened out by a selection standard.
Disabilities vary so much that it is difficult, if not
impossible, to make general determinations about
the effect of various standards, criteria and proce-
dures on “people with disabilities.” Often, there may
be little or no statistical data to measure the impact
of a procedure on any “class” of people with a par-
2
See Pottenger v. Potlatch Corp., 329 F.3d 740, 749 (9th Cir. 2003).
17898 LOPEZ v. PACIFIC MARITIME ASSOCIATION
ticular disability compared to people without disabil-
ities.
Barbara T. Lindemann & Paul Grossman, Employment Dis-
crimination Law 953 (C. Geoffrey Weirich ed., 4th ed. 2007)
(quoting EEOC, Technical Assistance Manual § 4.3 (1992)).
Furthermore, it is manifestly unreasonable to require statis-
tical data regarding the number of recovering addicts either
hired by an employer or screened out by a drug test. Recover-
ing addicts are unlikely to identify themselves to employers,
or to a plaintiff’s investigator in a lawsuit such as this, even
if asked. One of the primary limitations suffered by individu-
als recovering from addiction is the continuing stigma associ-
ated with their prior drug and alcohol use.3 It is not an
accident that nearly every 12-step support group includes the
word “anonymous” in its name. Thus, statistical evidence on
recovering addicts is, as a practical matter, rarely available. It
follows that if we are to give effect to the ADA’s express pro-
tection of individuals recovering from drug and alcohol addic-
tion, we must, at the summary judgment stage, liberally
construe any evidence suggesting an adverse impact on those
individuals.
I do not suggest that we now determine whether lifetime
employment bans resulting from a positive drug test necessar-
ily violate the ADA. It is clear, though, that where such a test
is mandated by an employer who exercises singular control
over an industry spanning the whole west coast of the United
States, the potential impact of the policy is broad and perva-
sive. I would allow Lopez’s case to proceed to determine
whether Pacific Maritime Association’s lifetime employment
ban in fact has an adverse impact on recovering addicts.
Accordingly, I dissent from the majority’s affirmance of the
3
See Brief of the Betty Ford Center et al., as Amici Curiae Supporting
Respondent, Raytheon v. Hernandez, 540 U.S. 44 (2003) (No. 02-749),
2003 WL 21649671 at *21-22.
LOPEZ v. PACIFIC MARITIME ASSOCIATION 17899
district court’s grant of summary judgment in favor of Pacific
Maritime Association on the disparate impact claim.
Waiver of Lopez’s § 12112(b)(6) Claim
The majority concludes that Lopez has waived his disparate
impact claim under § 12112(b)(6) of the ADA, which, again,
makes unlawful any employment “selection criteria that
screen out or tend to screen out an individual with a disability
or a class of individuals with disabilities unless . . . consistent
with business necessity.” According to the majority, Lopez
failed to raise this argument prior to filing his petition for
rehearing, after the original opinion in this case issued. In the
majority’s view, Lopez intended to prove his disparate impact
claim through the more common method of proving disparate
impact set out in Title VII discrimination cases. I disagree
with the majority that Lopez has waived his disparate impact
claim under § 12112(b)(6) of the ADA for failure to raise it
until his petition for rehearing.
First, Lopez expressly cited to and quoted § 12112(b)(6) in
multiple portions of his appellate and district court briefs. For
example, in Lopez’s opening appellate brief, he argued that
“Title I of the ADA . . . is broad in scope . . . and expressly
prohibits employers from ‘using qualification standards,
employment tests or other selection criteria that screen out or
tend to screen out an individual with a disability . . . .’ ”
Lopez further argued that the “one-strike/automatic lifetime
ban rule is a per se violation of the ADA” and that “[u]nder
the ADA, an employer ‘discriminates’ against an otherwise
qualified individual with a disability ‘if the employer uses . . .
employment tests or other selection criteria that screen out or
tend to screen out an individual with a disability.’ ”
Lopez made similar arguments to the district court, belying
the majority’s contention that Lopez has “deprive[d] us of the
assistance of our colleague below and [has] deprived Defen-
dant of the opportunity to meet [Lopez’s] new argument in the
17900 LOPEZ v. PACIFIC MARITIME ASSOCIATION
proper course.” For example, Lopez argued that the ADA pro-
hibits “[p]ractices which tend to ‘screen out’ applicants with
disabilities.” Plaintiff’s Supplemental Memorandum of Points
and Authorities re: Motions for Summary Judgment at 6,
Lopez v. Pac. Mar. Ass’n et al., No. 2:06-cv-04154-GW-JTL
(C.D. Cal. Jan. 18, 2008), ECF No. 82 (citing § 12112(b)(6)).
Lopez further argued that Congress was “express in [its] pro-
hibition that employers may not deny work opportunities to
individuals no longer engaged in drug use.” Id. (citing
§ 12114(b)(1)). Pacific Maritime Association filed responses
to Lopez’s briefs, and the district court had an opportunity to
consider both parties’ arguments. See, e.g., Defendants’ Sup-
plemental Brief in Support of Motion For Summary Judg-
ment, Lopez v. Pac. Mar. Ass’n et al., No. 2:06-cv-04154-
GW-JTL (C.D. Cal. Feb. 7, 2008), ECF No. 90. Although the
district court ultimately ruled in favor of Pacific Maritime
Association, the district court expressly recognized in its deci-
sion that § 12112(b)[(6)] of the ADA prohibits employers
from using employment criteria that “screen out or tend to
screen out an individual with a disability.” Lopez v. Pac. Mar.
Ass’n et al., No. 2:06-cv-04154-GW-JTL, Statement of Deci-
sion on Motions for Summary Judgment at 8 (C.D. Cal. Apr.
3, 2009), ECF No. 134 (quoting Raytheon, 540 U.S. at 54).
The district court was clearly aware of Lopez’s § 12112(b)(6)
argument.
Second, although Lopez cited to Watson v. Forth Worth
Bank & Trust, 487 U.S. 977, 994-95 (1988)—a Title VII race
discrimination case—in his opening appellate brief, Lopez did
so merely to outline the basic steps required to establish a
prima facie case of disparate impact. Lopez did not argue that
Title VII discrimination cases (and their attendant statistical
proof requirement) govern the disposition of his case. Rather,
Lopez expressly argued that, in contrast to Title VII discrimi-
nation cases, there is no requirement that plaintiffs offer sta-
tistical evidence of discrimination in disparate impact cases
brought under the ADA. In Lopez’s view, “[t]he District
Court erroneously concluded that statistical evidence was
LOPEZ v. PACIFIC MARITIME ASSOCIATION 17901
‘required’ to state a prima facie case of ‘disparate impact’
. . . . [Pacific Maritime Association’s] lifetime ban on hiring
as applied to rehabilitated drug/alcohol addicts is a per se vio-
lation of the ADA and does not require any statistical evi-
dence to reach that conclusion.”
Lopez continued to press his position in his reply brief,
arguing that, “[t]here is no legal authority . . . supporting the
District Court’s decision that the ‘statistical requirements’ for
[race, age, and gender discrimination] causes of action are
applicable to a case brought by a rehabilitated addict.”4
Moreover, despite the majority’s contention to the contrary,
Lopez expressly argued in district court that statistical evi-
dence was not required in ADA disparate impact cases. See,
e.g., Plaintiff’s Opposition to Defendants’ Motion for Sum-
mary Judgment, or in the Alternative, Summary Adjudication
at 19, Lopez v. Pac. Mar. Ass’n et al., No. 2:06-cv-04154-
GW-JTL (C.D. Cal. Sept. 5, 2007), ECF No. 54; Plaintiff’s
Reply to Defendants’ Opposition to Plaintiff’s Motion for
Summary Judgment, or in the Alternative, Summary Adjudi-
cation at 6, No. 2:06-cv-04154-GW-JTL (C.D. Cal. Sept. 10,
2007), ECF No. 62. The district court disagreed, holding that
“Plaintiff’s argument that he can establish a claim of disparate
impact . . . without proffering relevant statistical evidence
must be rejected.” Lopez, No. 2:06-cv-04154-GW-JTL at 20.
Although I disagree with the district court’s conclusion, it is
clear from the previous statement that the district court had an
opportunity to consider Lopez’s arguments.
4
Lopez’s citation to the statistical evidence discussion in Griggs v. Duke
Power Co., 401 U.S. 424 (1971), is not a concession that a statistical
showing is required to prove his disparate impact claim. Instead, Lopez
emphasized that, although statistical proof is not required in ADA cases
(unlike Title VII discrimination cases), a plaintiff may use statistics to bol-
ster his case. Lopez merely argues that if a plaintiff chooses to proffer sta-
tistical evidence, cases such as Griggs are relevant to the court’s analysis.
17902 LOPEZ v. PACIFIC MARITIME ASSOCIATION
In light of the foregoing, I believe Lopez has sufficiently
argued that he has a disparate impact claim under
§ 12112(b)(6) of the ADA, that Title VII race discrimination
cases do not entirely govern the disposition of his case, and
that statistical evidence is not required in ADA cases such as
this. Moreover, Pacific Maritime Association had an opportu-
nity to respond to Lopez’s arguments in the district court and
on appeal, and the district court reached a reasoned decision
below. I thus cannot agree with the majority’s conclusion that
Lopez has waived his disparate impact claim under
§ 12112(b)(6) of the ADA.