concurring in part and dissenting 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 following reasons:
Lopez contends that lifetime 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.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 this is exactly what the Pacific Maritime Association’s (“PMA”) lifetime hiring ban does. To support his contention, Lopez offered expert testimony that drug addicts are disproportionately affected by the lifetime ban. In addition, he showed that at least 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 ban. It is also reasonable to infer that at least some of those individuals, like Lopez, were at one time addicted to drugs, but after participating in a drug rehabilitation program, were able to overcome their addiction. Viewing the evidence in the light most favorable 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. While statistical evidence is generally required to show disparate impact under, for example, the Age Discrimination in Employment Act,2 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 people who are not *1203disabled 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 procedures 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 particular disability compared to people without disabilities.
Barbara T. Lindemann & Paul Grossman, Employment Discrimination Law 953 (C. Geoffrey Weirich ed., 4th ed.2007) (quoting EEOC, Technical Assistance Manual § 4.3 (1992)).
Furthermore, it is manifestly unreasonable to require statistical data regarding the number of recovering addicts either hired by an employer or screened out by the test. These figures are not kept by employers, and indeed such data likely could not be lawfully acquired. Moreover, recovering addicts are unlikely to identify themselves to employers, or to a plaintiffs investigator in a lawsuit such as this, even if asked. One of the primary limitations suffered by individuals recovering from addiction is the continuing stigma associated 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 not practically available. It follows that if we are to give effect to the statute’s express protection of individuals recovering from drug and alcohol addictions, 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 bars resulting from a positive drug test necessarily 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 pervasive. I would allow Lopez’s case to proceed to determine whether PMA’s lifetime hiring ban in fact has an adverse impact on recovering addicts. Accordingly, I dissent from the majority’s agreement with the district court on the disparate impact claim.
. This is distinct from either current drug use or workplace misconduct, both of which employers may lawfully penalize. See, e.g., Amy L. Hennen, Protecting Addicts in the Employment Arena: Charting a Course Toward Tolerance, 15 Law & Ineq. 157, 172-74 (1997).
. See Pottenger v. Potlatch Corp., 329 F.3d 740, 749 (9th Cir.2003).
. See Brief of the Betty Ford Center, et al. as Amici Curiae Supporting Respondent, Raytheon v. Hernandez, 540 U.S. 44, 124 S.Ct. 513, 157 L.Ed.2d 357 (2003) (No. 02-749), 2003 WL 21649671 at *21-22.