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Ninth Circuit Finds that Failure to Hire Recovered Drug Addict Could Violate the ADA

Volume 1, Issue 8
August 22, 2002

Court Finds that Facially Non-Discriminatory Employment Policy Could Nonetheless Violate the Americans With Disabilities Act

Joel Hernandez was a 25-year employee of Hughes Aircraft, and also had an admitted problem with drug and alcohol addiction. Hernandez failed a drug test when he tested positive for cocaine, and was allowed to resign in lieu of discharge. Two years later, after being rehabilitated, Hernandez again applied for employment with Hughes, only to be rejected under a company policy stating that any employee who quit in lieu of discharge was automatically ineligible for rehire.

Though the Americans With Disabilities Act (ADA) does not protect current drug and alcohol users, it does protect those who have gone through rehabilitation and who are no longer using such substances. Hernandez brought suit under the ADA, claiming that Hughes discriminated against him because of his record of disability by not rehiring him. Hughes argued that Hernandez was not rehired because of its general corporate policy against the rehire of employees who previously quit in lieu of termination, not because of his previous drug use. As such, Hughes argued it could not be held liable for discrimination as the policy applied to all employees, not only those with a record of substance abuse.

Upon review, the Ninth Circuit determined that Hughes' reliance upon a facially-neutral employment policy could not protect it from liability. In so finding, the court held that the policy "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". In other words, the policy was invalid because it precluded Hernandez's rehire because of the circumstances which forced him to resign in lieu of termination in the first place.

This decision should give pause to employers when either developing or revising their employment policies. Though a given policy may appear to be non-discriminatory, employers should likewise consider the possible effects a policy may have on those protected under federal civil rights statutes.

Hernandez v. Hughes Missile Systems Company, Case No. 01-15512 (9th Cir. June 11, 2002).

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