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Facially Neutral Employment Policy May Violate ADA When Applied to Rehabilitated Drug Abusers

By Kathryn J. Russo and Paul J. Siegel
  • June 19, 2002

A federal appeals court in California has held that an employee who was terminated after he tested positive on a drug test may proceed to trial on his claim that he was denied rehire in violation of the Americans With Disabilities Act. Hernandez v. Hughes Missile Systems Co., No, 01-15512 (9th Cir. June 11, 2002).

The individual tested positive for cocaine in the workplace in 1991, after which he was permitted to resign in lieu of termination. A note in his personnel file stated that he was "discharge[d] for personal conduct." The employer was aware at the time of the resignation that the individual had struggled with an alcohol problem.

More than two years later, the individual re-applied for a job at Hughes. Along with the application, he submitted a letter from his substance abuse counselor stating that the individual attends Alcoholics Anonymous meetings regularly, maintains his sobriety and has a strong commitment to his recovery. The application was rejected after the employer concluded that, as a result of his resignation in lieu of discharge, the individual was ineligible for rehire. The employer had an unwritten policy that individuals who had previously resigned in lieu of discharge or were terminated were not eligible for rehire at any time.

The individual filed a charge of discrimination with the EEOC, alleging that he had been denied employment in violation of the ADA due to his record of a disability, and/or because he was regarded as being disabled. In its response to the EEOC, the employer stated, among other things, that Hernandez's application had been rejected "based on demonstrated drug use while previously employed and the complete lack of evidence indicating successful drug rehabilitation." In addition, the employer's response said "[t]he Company maintains its right to deny re-employment to employees terminated for violation of Company rules and regulations," a position somewhat inconsistent with a statement about the termination in the individual's personnel file.

The lower court granted summary judgment to the employer; however, on appeal, the Ninth Circuit Court of Appeals reversed. The appellate court held that the individual had presented sufficient evidence to raise issues of fact requiring a trial. Specifically, the court held that he had raised a genuine issue of fact as to whether he was denied employment based on his record of past drug addiction, because there was evidence that the employer's decisionmaker may have reviewed:

  1. the letter from the counselor, which was attached to his application, stating that he was a recovering alcoholic; and 
  2. the 1991 positive drug test result, which was contained in his personnel file.

The court noted that the ADA protects qualified individuals with a drug addiction who have been successfully rehabilitated, although it does not protect employees currently engaging in illegal drug use. In this case, the individual's prior employment record indicated he had been a satisfactory employee.

The employer argued that it had a legitimate, nondiscriminatory reason for denying the individual's application, i.e., that the company had an unwritten policy not to rehire employees who were terminated or resigned in lieu of discharge due to their violation of the company's code of conduct. The court rejected this argument, stating that:

Hughes' unwritten policy against rehiring former employees who were terminated for any violation of its misconduct rules, although not unlawful on its face, violates the ADA as applied to former drug addicts whose only work-related offense was testing positive because of their addiction. If Hernandez is in fact no longer using drugs and has been successfully rehabilitated, he may not be denied re-employment simply because of his past record of drug addiction.

The court also dismissed the employer's claim that the person who made the decision not to rehire him was unaware of his prior drug test result. The court stated that even if she lacked such knowledge,

her lack of knowledge would have been due solely to Hughes' unlawful policy which shields its employees from the knowledge that an employment decision may be illegal. Maintaining a blanket policy against rehire of all former employees who violated company policy not only discriminates on account of past disability against persons with a record of addiction who have been successfully rehabilitated, but may well result, as Hughes contends it did here, in the staff member who makes the employment decision remaining unaware of the "disability" and thus of the fact that she is committing an unlawful act. Having willfully induced the ignorance on the part of its employees who make hiring decisions, an employer may not avoid responsibility for its violation of the ADA by seeking to rely on that lack of knowledge.

In sum, the court held that "a policy that serves to bar the re-employment of a drug addict despite his successful rehabilitation violates the ADA."

Employers within the jurisdiction of the Ninth Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington) should take note of this case to ensure that enforcement of facially-neutral employment policies do not serve to discriminate against successfully rehabilitated drug abusers or alcoholics. In particular, employers who terminate employees for positive drug and/or alcohol tests may not permanently bar those individuals from re-applying for employment. If such individuals have successfully completed rehabilitation programs, and are not currently using illegal drugs or alcohol in the workplace, they are protected under the ADA. The employer may not take into consideration the individual's past record of drug addiction or alcohol abuse when deciding whether to rehire a former employee.

Employers also should be cautious when responding to EEOC charges filed by former drug abusers. In this case, the statements made by the employer in the position statement it submitted to the EEOC helped the court to conclude that there were issues of fact warranting a trial. In some cases, depending on the factual circumstances, an employer may be able to argue that a one-time positive drug test result does show an employee is an "addict," but merely shows that the individual was a one-time "current user" who is not protected under the ADA.

©2002 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

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