This Note analyzes whether federal customer and employee discrimination claims brought in federal court against dispensaries and other marijuana businesses in legalizing states can prevail. 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 many legalizing state markets with tacit approval from the Justice Department.

The Note 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. 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 marijuana storefronts under Title III. This Note analyzes these legal limitations, as well as the history, text, and administration of Title III, to propose a legal framework that empowers courts to issue relief.

Leveraging its Title III analysis, the Note then analyzes federal protections for employees. It reaches a troubling conclusion: hundreds of thousands of 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, Title I of the Americans with Disabilities Act, and the Fair Labor Standards 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 disconcerting because members of identity-based groups protected by federal employment statutes are often disproportionately targeted by marijuana arrests and convictions—and because roughly 80% of cannabis business owners are white.

Continue reading Reefer Access: Dispensaries as “Places of Public Accommodation” Under Title III of the ADA.