Drug and Alcohol Addiction under the Americans with Disabilities Act: “Yes, Virginia, There is a Santa Claus”
Drug and Alcohol Addiction under the Americans with Disabilities Act:
"Yes, Virginia, There is a Santa Claus"
Oregon Lodging Association’s "Lodging News"
December 2003
Employers are often disturbed to learn that drug and alcohol addiction is considered to be a "disability" under the Americans with Disabilities Act ("ADA"). Of course, an employer need not hire or continue to employ a person who is currently addicted to drugs or alcohol. However, once that individual tackles his or her problem and successfully completes a drug or alcohol rehabilitation program, a prospective employer will be in violation of the ADA if its refusal to hire that person is motivated, even in part, by that person’s prior record of addiction. The practical result is that employers face significant risks that a prospective employee who is a recovering drug or alcohol addict, whether or not he or she was previously employed with the company, will allege to have been discriminated against by an employer who refuses to hire that person if the employer knew or had reason to know of the person’s prior addiction. So if you decide not to rehire a former employee who had been previously fired for showing up to work in a drug-induced stupor and jeopardizing guest safety, you may ultimately find the gift of a summons and discrimination complaint under the Christmas tree.
On December 2, 2003, the United States Supreme Court issued a ruling on this issue. While not particularly helpful to either employers or employees from a legal perspective for reasons that need not be explored in this article, the opinion illustrates the difficulty facing employers in this context. In that case, an employee, who had been forced to resign from his job two years earlier for violating company rules regarding drug use, sought to be rehired by the company. The former employee provided letters from his church pastor and Alcoholics Anonymous counselor attesting to his recovery from addiction to support his application for re-employment. However, the company, giant defense contractor Raytheon Corporation, refused to hire the former employee on the basis of a company-wide policy barring re-employment of former employees who had been discharged for violating company misconduct rules. Although Raytheon ultimately received a somewhat favorable ruling by the Supreme Court, which held that the company policy barring re-employment was a "legitimate non-discriminatory reason" for not rehiring the former employee, this ruling merely allowed Raytheon the opportunity to defend the claim of discrimination at trial instead of losing the case on a motion for summary judgment before trial. The point here is that Raytheon will likely have to spend fair in excess of $100,000 in defending this case — all because it applied a neutral company-wide policy to a former employee who was terminated for showing up at work high on cocaine and alcohol.
To better understand this issue, it is important to outline the basic framework in which most discrimination cases are analyzed by the courts. First, the employee/plaintiff must allege a prima facie case of discrimination by the employer, e.g., "the company did not hire me because of my prior drug addiction from which I have successfully completed a recovery program." Next, the employer/defendant has the burden of alleging a legitimate nondiscriminatory reason for choosing not to hire the former addict, e.g., "the company elected not to re-hire the former employee because his prior work history shows a pattern of being late and low-performance." Finally, the employee/plaintiff can overcome the employer’s reasons by alleging evidence showing that the reason offered is merely a "pretext," e.g. "my personnel file does not contain anything regarding my alleged tardiness and performance issues and the company never raised these issues while I was employed with the company." Each of the steps, which apply to a claim of "disparate treatment" by the company, presents issues of fact to be decided during a trial by a jury or a judge.
These were the steps being considered by the Supreme Court in the Raytheon case. The plaintiff in the Raytheon case also tried to make a claim that Raytheon’s policy not to rehire employees who had been discharged for violating company misconduct rules had a "disparate impact" upon the plaintiff resulting in discrimination against the plaintiff on the basis of his disability. However, the Court refused to consider that question because the Plaintiff did not raise the issue at the appropriate time. This is why the Raytheon case is of little practical guidance. Presumably, under established court precedent, the Plaintiff would have won on this issue if he had simply amended his complaint to include this claim early in the litigation. Of course, Raytheon still would have been forced to expend substantial sums of money regardless of its ability to ultimately win or lose the case.
Unfortunately, given the nature of employment discrimination claims, whether arising under the ADA, the Civil Rights Act, the Age Discrimination in Employment Act, or some other state or federal law, employers cannot fully insulate themselves from the risk of allegations of discrimination. The harsh reality is that such laws are construed by the state and federal government enforcement agencies, as well as the courts, heavily in favor of employees. However, employers, large and small, can greatly minimize such risks by establishing sound employment practices and adhering to those practices. In the context of whether to hire a recovering drug or alcohol addict, it is critical that the addiction not be a motivating factor in the decision not to hire and, particularly if the employer is aware of the addiction, that the reasons for not hiring the employee be written out, attached to the employment application, and be kept for at least 3 years before being discarded. In the event such a recovering addict is hired, the addiction should not be considered in making employment-related decisions unless, of course, the employee suffers a relapse and violates company policy by showing up to work under the influence of drugs or alcohol.
The enormous costs associated with defending a claim of discrimination in any context merit a thorough consideration of these issues and the development of appropriate employment policies and practices. In the end, a discrimination lawsuit is one gift that is best left in Santa’s bag.