Reefer Access: Dispensaries as 'Places of Public Accommodation' Under Title III of the ADA
27 Pages Posted: 26 Sep 2019 Last revised: 24 Mar 2020
Date Written: May 1, 2019
This paper analyzes whether federal customer and employee discrimination claims in federal court against dispensaries and other marijuana businesses in legalizing states can be successfully brought. This inquiry strikes at the core of marijuana’s complicated legal status in our dual-federalism system, in which the drug remains outlawed under the federal Controlled Substances Act of 1970 (CSA), yet flourishes in thirty-three legalizing state markets with tacit approval from the Justice Department.
It begins by probing the issue through the lens of Title III of the Americans with Disabilities Act (ADA). A simple question is posited: can a disabled person sue a dispensary in federal court in a legalizing state for injunctive relief if the dispensary fails to “make reasonable accommodations” for access (e.g., building ramps, widening doorways, etc.). Under Title III, all businesses that operate as “places of public accommodation” must ordinarily “remove architectural barriers . . . in existing facilities . . . where such removal is readily achievable” to accommodate disabled patrons. But several common law and prudential legal doctrines present obstacles to a federal court’s ability to grant customer access to a marijuana storefront under Title III. These doctrines include the rule against illegal injunctions, in pari delicto, and the “unclean hands” doctrine. This paper analyzes these legal limits, as well as the history, text, and administration of Title III, to propose a legal framework that enables courts to issue relief.
Leveraging its Title III analysis, the paper then proceeds to analyze federal protections for employees. It reaches a troubling conclusion: more than 150,000 employees of marijuana businesses in the United States are very likely unprotected by federal civil rights laws, including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and Title I of the Americans with Disabilities Act. Because these employees are engaging in an ongoing federal criminal conspiracy, a federal court is unlikely to grant backpay, frontpay, or reinstatement if these employees suffer flagrant sexual harassment, racial discrimination, or any other violation of federal employee protections in the workplace. Generally, these employees can only obtain relief through a patchwork of state employment laws. This outcome is especially shocking given that members of identity-based groups protected by federal employment statutes are often disproportionately targeted by marijuana arrests and convictions—and given that 81% of cannabis business owners are white.
Keywords: federalism, civil rights, employment law, Americans with Disabilities Act, Title VII, Age Discrimination in Employment Act, marijuana, cannabis, preemption, non-pros, controlled substances act, unclean hands, in pari delicto, injunctions
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