A federal appeals court panel sided with Walmart this week, ruling that although New Jersey explicitly forbids employment discrimination against marijuana users, private individuals are unable to sue employers under that law because it failed to create any specific remedies.
“The lack of an express remedy is better understood as a deliberate choice not to provide a remedy rather than an oversight of an intended remedy,” Judge Peter Phipps, a Trump appointee, wrote in the new opinion for the U.S. Court of Appeals for the Third Circuit.
That interpretation, Phipps continued, “is reinforced by the New Jersey Legislature’s comparative responsiveness in enacting safeguards against other forms of employment discrimination.”
The case stems from a 2022 lawsuit filed by Erick Zanetich, whom Walmart denied a job as a security guard after he tested positive for marijuana. Zanetich asserted that the drug screening policy was unlawful under New Jersey’s anti-discrimination law, which is included in the Cannabis Regulatory Enforcement Assistance and Marketplace Modernization Act (CREAMMA).
CREAMMA was passed by New Jersey lawmakers after citizens voted in 2020 to amend the state constitution to legalize marijuana.
At the district court level, Judge Christine O’Hearn, a Biden appointee, had dismissed Zanetich’s case, ruling that only a state cannabis board can enforce the law and that private individuals don’t have a right of action to sue. Zanetich appealed.
The appeals panel’s 2–1 ruling, handed down on Monday, also denied Zanetich’s request to ask the New Jersey Supreme Court to decide the issue.
Phipps wrote that sending the matter to the state’s high court “is an act of judicial discretion…and here none of the common considerations associated with the exercise of that discretion counsels strongly in favor of the certification.”
As for the importance of the case, he said the issues neither “involve questions of state constitutional law, nor are they particularly transcendental.”
Hellbound and Down 