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Medical marijuana discrimination case can move forward, SJC rules

By Dalton Main

BERKELEY, CA - MARCH 25: One-ounce bags of medicinal marijuana are displayed at the Berkeley Patients Group March 25, 2010 in Berkeley, California. California Secretary of State Debra Bowen certified a ballot initiative late Wednesday to legalize the possession and sale of marijuana in the State of California after proponents of the measure submitted over 690,000 signatures. The measure will appear on the November 2 general election ballot. (Photo by Justin Sullivan/Getty Images)

By Dalton Main

BOSTON — A woman’s case against the company that fired her for using medical marijuana can move forward, the Massachusetts Supreme Judicial Court has ruled.

In an order handed down to the Superior Court Monday, July 17, the SJC has reversed the decision to throw out the dismissal of several legal claims made by Cristina Barbuto.

She was drug tested by Advantage Sales and Marketing in 2014 when she was hired. Barbuto said she had informed them she would test positive for marijuana as she used it to maintain a healthy weight because her debilitating Crohn’s Disease decreased her appetite.

The company had said they might be able to accommodate her use of cannabis, but terminated her employment when she tested positive for it.

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Barbuto filed a lawsuit against the company claiming several counts of discrimination against a person with a disability and one count of invasion of privacy.

A superior court judge accepted a petition to dismiss all claims except invasion of privacy.

In its review of the appeal, the SJC found Barbuto’s use of marijuana was not an unreasonable re quest and the company had not sufficiently proven its efforts to work with Barbuto to accommodate it.

“Our conclusion…means that the dismissal of the counts alleging handicap discrimination must be reversed,” the court wrote. “But it does not necessarily mean that the employee will prevail in proving handicap discrimination.”

The claims will return to superior court to be tried, which the SJC acknowledged may still be struck down.

“The defendants at summary judgment or trial may offer evidence to meet their burden to show that the plaintiff's use of medical marijuana is not a reasonable accommodation because it would impose an undue hardship on the defendants' business,” the court wrote.

The statue passed by voters in 2012 does stipulate an employer cannot discriminate against an employee for the medical use of prescribed marijuana.

Claims –

Barbuto v. Advantage Sales and Marketing
  1. Handicap discrimination, in violation of G. L. c. 151B, § 4 (16)
  2. Interference with her right to be protected from handicap discrimination, in violation of G. L. c. 151B, § 4 (4A)
  3. Aiding and abetting ASM in committing handicap discrimination, in violation of G. L. c. 151B, § 4 (5)
  4. Invasion of privacy, in violation of G. L. c. 214, § 1B
  5. Denial of the "right or privilege" to use marijuana lawfully as a registered patient to treat a debilitating medical condition, in violation of the medical marijuana act
  6. Violation of public policy by terminating the plaintiff for lawfully using marijuana for medicinal purposes

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