Ninth Circuit Upholds Protection for Rehabilitated Drug Addicts Under the Americans with Disabilities Act
 
October 7, 2002
 

The Americans with Disabilities Act does not protect current users of illegal drugs. However, recovered or former drug abusers are protected from discrimination based upon their status. In a recent decision, the United States Court of Appeals for the Ninth Circuit examined the interaction between these two principles. The Court ruled that a seemingly neutral policy of refusing to rehire an employee who was terminated or resigned under threat of termination could potentially violate the ADA’s prohibition on discrimination against former drug users when applied to deny re-employment to a former employee who resigned for drug use but subsequently had stopped using illegal drugs. Hernandez v. Hughes Missile Systems, No. 01-15512 (9th Cir. 2002).
 

Legal Background
In order to establish a case of discrimination under the ADA, the plaintiff must demonstrate that (1) he is disabled within the meaning of the ADA; (2) he is a qualified individual able to perform the essential functions of the job; and (3) his employer terminated him or refused to rehire him because of his disability. The ADA defines “disability” as a physical or mental impairment that substantially limits one or more major life activities of an individual; a record of such an impairment; or being regarded as having such an impairment. Drug addiction (as opposed to current use of illegal drugs) and alcoholism are protected disabilities under the ADA. In fact, the EEOC Manual states that “[a]n employer may not discriminate against a drug addict, who is not currently using drugs and who has been rehabilitated, because of a history of drug addiction.”
 

Once a plaintiff establishes a prima facie case of discrimination under the ADA, the burden shifts to the employer to provide a legitimate, nondiscriminatory reason for its actions.
 

Hernandez’s Claims
Hughes Missile Systems Company (Hughes) employed Joel Hernandez for approximately 25 years. In a workplace drug test given in 1991, Hernandez tested positive for cocaine. Hughes gave Hernandez the option to resign in lieu of termination, which he elected to do. In 1994, Hernandez — no longer a drug user — reapplied for a similar position at Hughes. On his application, Hernandez indicated that he had previously worked for Hughes. Along with his application, Hernandez submitted a letter from a counselor who stated that he works with recovering alcoholics and that Hernandez attends Alcoholics Anonymous regularly, maintains his sobriety, and has a strong commitment to his recovery.
 

The Hughes employee who reviewed Hernandez’s application stated that because Hernandez indicated that he had previously worked for Hughes, she pulled his personnel file and reviewed his employee separation sheet. She stated that once she saw that he “quit-in-lieu of discharge,” she concluded that he was ineligible for rehire based on the company’s unwritten policy of not rehiring former employees whose employment ended due to termination or resignation in lieu of termination. The employee also stated that at the time she made the decision not to rehire Hernandez, she did not know the grounds for, or the conduct underlying, his resignation.
 

Hernandez filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). In response, Hughes stated that “[Hernandez’s] application was rejected based on his demonstrated drug use while previously employed and complete lack of evidence indicating successful drug rehabilitation.” This statement was used as evidence in the subsequent litigation to prove the third element of Hernandez’s prima facie case, namely that he was terminated based on a disability or perceived disability. Additionally, Hernandez was able to demonstrate that he was qualified for the positions sought because he had worked for Hughes for many years and received favorable evaluations.
 

Hughes claimed that its decision was based upon a legitimate nondiscriminatory reason having nothing to do with Hernandez’s status as a former drug user: its blanket (albeit unwritten) policy of never rehiring employees who had been terminated or who had resigned in lieu of termination, regardless of the reason for the termination. The company claimed that this did not violate the ADA, because it did not single out employees with former drug problems, nor did it treat them differently from other terminated employees.
 

Failure to Make Exception for Former Drug User Violates ADA
The Ninth Circuit disagreed, and held that the blanket policy of not rehiring terminated employees “violates the ADA as applied to former addicts whose only work-related offense was testing positive because of their addiction.” Even assuming the truth of the company’s contention that at the time it made the decision not to rehire Hernandez it was unaware of his record of drug addiction, the Court found its lack of knowledge was a direct result of a blanket policy that shields its employees from the information necessary to make a determination whether a former drug user had recovered. “Having willfully induced 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.”
 

Implications for Employers
The Hernandez decision appears to turn anti-discrimination principles on their head. Normally, we assume that a decision based upon a neutral policy applicable to all employees, made without knowledge of an employee’s protected status, cannot constitute discrimination. Here, however, the Ninth Circuit ruled that the employer’s failure to consider the employee’s protected status as a former drug user and failure to create an exception to its neutral policy based on that status violated the ADA.
 

The decision also demonstrates how statements made to the EEOC during the charge-investigation stage can come back to haunt the employer. Statements Hughes made in its EEOC position statement (that Hernandez was terminated because of past drug use) proved Hernandez’s case of discrimination. It cannot be over emphasized that employers must take great care in responding to the EEOC or state fair employment agencies during the charge investigation-process, especially if an employer routinely responds to charges without the input of legal counsel. Anything said or provided to the investigative agency may be used as evidence in a subsequent civil lawsuit against the employer.
 

Thankfully the Hernandez decision is not as broad as it may seem. It does not make illegal all company policies prohibiting the rehire of employees who were terminated or asked to resign in lieu of termination; indeed, such policies are generally acceptable. Rather, it applies only to reapplications from employees who were terminated solely because of illegal drug use resulting from drug addiction. In such situations, it appears that employers in the Ninth Circuit will be required to investigate whether the employee has gone through rehabilitation and is currently using illegal drugs. If the employee is not currently using illegal drugs, the employer apparently will not be allowed to rely on the prior termination for illegal drug use to prohibit reemployment.
 

Outside of this limited situation, however, employers should not attempt to determine whether an employee has a past history of drug use. Concerns about current drug use may be addressed by pre-employment (but post-conditional offer) drug testing that complies with the laws of your state.
 

For more information, contact Denise Rios, toll free at 888-688-8500, or via e-mail at fdrios@hklaw.com.