Work Rights of Former Addicts at Issue

A Bush administration lawyer urged the Supreme Court Wednesday to give employers the right to reject former workers who had used drugs or alcohol on the job, even if they had been rehabilitated.

Companies are entitled to follow a “neutral policy of refusing to rehire” workers who abused drugs on the job, said Paul Clement, deputy U.S. solicitor general, in a closely watched employment case.

At issue is whether recovered addicts and alcoholics are protected from job discrimination by the Americans With Disabilities Act.

The case before the high court “has extraordinary implications” because thousands of employers have the same rule banning the rehiring of workers dismissed for misconduct, said Washington attorney Carter G. Phillips, who is representing Raytheon Co., a defense contractor. “It would make no difference whether he was a thief or whether he was somebody who used drugs,” he said. Most of the justices sounded as though they agreed.

Justices Sandra Day O’Connor and Antonin Scalia questioned whether a former drug addict was a disabled person.

“What is the disability?” asked Scalia, since the rejected worker said he no longer had a drug problem.

Joel Hernandez, a veteran missile technician in Tucson, turned around his life and wanted to get his old job back, said his lawyer, Stephen Montoya of Phoenix. In his recovery, Hernandez “adopted Jesus Christ as his Lord and Savior,” the lawyer said.

“All that adds up to is that he is not disabled,” O’Connor said.

Other justices said they agreed that a company would be entitled to refuse to rehire any person who had broken its work rules in the past.

The case before the court arose when Hernandez reapplied for his past job at a Hughes Missiles Systems Co. facility in Tucson, which is now owned by Raytheon. Hernandez had quit after testing positive for cocaine. He then completed a recovery program and, after three years, sought to return to work.

Hernandez was turned away. In depositions, company officials gave different explanations. One questioned whether Hernandez was truly rehabilitated. Another cited the company’s “unwritten policy” of refusing to rehire employees who left because of misconduct on the job.

A federal judge in Phoenix, siding with the company, dismissed Hernandez’s lawsuit.

Last year, however, the San Francisco-based U.S. 9th Circuit Court of Appeals revived his case and ruled that a firm could not refuse to rehire an employee simply because of past drug abuse.

In his opinion for the 9th Circuit, Judge Stephen Reinhardt of Los Angeles said the 1990 law made it clear that former addicts and alcoholics could be considered to have a disability.

On the one hand, the law says those who are currently drinking or using drugs may be punished for their behavior and are not protected by the disabilities law. On the other hand, the law also says an employee who “has been successfully rehabilitated” cannot be discriminated against solely for his past addiction.

“If Hernandez is no longer using drugs and has been successfully rehabilitated, he may not be denied reemployment simply because of his past record of drug addiction,” Reinhardt wrote. This ruling, if allowed to stand, would send the case to a trial.

There, the company could try to convince a jury that Hernandez was not rehabilitated.

But during Wednesday’s argument, the company’s lawyers urged the high court to throw out the lawsuit entirely.

In past rulings, the high court has narrowed the scope of the disability bias law. The court has ruled that workers who have difficulty lifting objects because of repetitive stress injuries are not disabled if they are capable of doing everyday tasks at home. The justices also have said that employees with common disabilities, such as very poor eyesight, may not claim the protections of the anti-discrimination law.