2012

May 2012

EEOC Issues Guidance Regarding The Consideration Of Criminal Records In Employment Decisions

May 11, 2012, by Michael C. Hughes,

On April 25, 2012, the U.S. Equal Employment Opportunity Commission (EEOC) issued an Enforcement Guidance on employer use of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964 (Title VII).  The Enforcement Guidance clarifies and updates the EEOC's longstanding policy that a categorical exclusion from employment of individuals with a criminal record raises disparate impact concerns. 

The Supreme Court Grants Review of the Controversial CEQA Decision Berkeley Hillside Preservation v. City of Berkeley

May 23, 2012, by Meyers Nave

The Supreme Court has voted unanimously to grant review of the First District Court of Appeal's controversial decision in Berkeley Hillside Preservation v. City of Berkeley (2012) 203 Cal.App.4th 656. The case involved the application of an exception to the use of categorical exemptions under CEQA for projects that could result in significant environmental impacts due to "unusual circumstances."  The First District held that because a "fair argument" could be made that a residential project in the Berkeley hills could create significant environmental impacts based on evidence submitted by the project's opponents, the City of Berkeley could not rely upon a categorical exemption under CEQA regardless of whether those impacts were in fact due to "unusual circumstances."  This holding cast substantial doubt on the ability of agencies to continue to rely upon categorical exemptions any time a project opponent submits evidence of potentially significant impacts.  The First District also ignored well-settled precedent which requires both a finding that there is a reasonable possibility of significant environmental impacts and that the impacts would be due to unusual circumstances associated with the project. Now that the Supreme Court has granted review, the decision has been superseded which should come as welcome news for both public agencies and private developers alike.

Amrit Kulkarni and Julia Bond of Meyers Nave represent the Real Party in Interest in this case and were responsible for drafting the successful petition for review.

Cities' Closure of Medical Marijuana Dispensaries Is Not Discrimination Under Americans with Disabilities Act

May 29, 2012, by Krysten Hicks, Ruthann G. Ziegler

The Ninth Circuit Court of Appeals recently issued an opinion declaring that the federal Americans with Disabilities Act ("ADA") does not protect medical marijuana users claiming discrimination based on their use of marijuana. In James v. City of Costa Mesa, the Court held that doctor-recommended marijuana use, authorized by state law, but prohibited by federal law, is an illegal use of drugs for purposes of the ADA.  (No. 10-55769, May 21, 2012.)  This ruling highlights the continued conflict between state and federal law over the use of marijuana for medical purposes, and recognizes that marijuana has no legitimate use under federal law.

Plaintiffs sought to prevent the efforts by the cities of Costa Mesa and Lake Forest ("Cities") to close medical marijuana collectives; plaintiffs' theory was that the Cities’ actions of closing the collectives interfered with plaintiffs’ access to medical marijuana. Plaintiffs further alleged that the closure of the collectives amounted to discrimination in the provision of public services, thus violating the ADA. 

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