When we talk about disability there is little debate about the application of the term to the blind or crippled, but what about drug addicts? It is tempting to distinguish between drug addiction and other forms of disability because the affirmative choices of the drug addict cause their disability. However, this logic is less compelling than it might appear on the surface. Someone crippled in a car accident where they were drunk, or a person blinded setting off fireworks is not treated differently by the law than someone who was born with a disability.
A recent case has examined discrimination against those with drug-related disability in an employment context. On December 2, 2003, the Supreme Court of the United States issued an opinion in Raytheon Company v. Hernandez. The case arose under the Americans With Disabilities Act of 1990 ("ADA") and centered around an employer's unwritten policy of refusing to rehire former employees whose employment had been terminated for misconduct or who had resigned in lieu of termination.
Joel Hernandez had worked for the company for 25 years. His employment was terminated and he was forced to resign after he tested positive for cocaine use. Two years later, after he claims he was rehabilitated, he sought re-employment with the company. The company refused to rehire him, claiming that it had a policy against rehiring employees who had been terminated for workplace misconduct.
Hernandez filed a charge of discrimination with the Equal Employment Opportunity Commission, and ultimately a lawsuit claiming disability discrimination and alleging that he was a disabled individual because the company regarded him as being a disabled drug addict and/or because he had a record of a drug addiction disability. The trial judge dismissed the suit, but the employee appealed to the Ninth Circuit Court of Appeals, who reinstated his case. The employer then appealed to the United States Supreme Court, who agreed to hear the case.
The Supreme Court concluded that the Ninth Circuit Court of Appeals had applied an improper analysis to the case and sent the case back down to that Court, unfortunately without reaching the ultimate issue of whether or not an employer can properly maintain such a policy without violating the ADA. On a positive note, the Supreme Court did indicate that the company's no rehire policy was "a quintessential legitimate, non-discriminatory reason for refusing to rehire an employee who was fired for violating workplace conduct rules." The Court also said, however, that the courts below should have focused on whether or not this no rehire policy was merely a "pretext" for illegal discrimination.
The Supreme Court also did not address whether a refusal to rehire policy may be challenged under a "disparate impact" theory where a showing is made by the employee that the policy, although lawful on its face, unfairly screens out former drug addicts. As a result, the ultimate question of whether or not an employer can properly adopt and enforce such a policy technically remains unanswered, at least at this time. Stay tuned for further updates.