Limits of disability act tested

It would be wrong not to hire a man for an accounting job simply because he has a prosthetic leg. Or to reject the employment application of a telephone receptionist who uses a wheelchair.

But what about an employee of a defense contractor who loses his job after testing positive for cocaine and then wants his job back?

Would a company that refuses to rehire somebody who says he's overcome his drug and alcohol addiction be guilty of violating the Americans With Disabilities Act (ADA)?

That is the question the US Supreme Court takes up Wednesday in an Arizona case with major implications for companies with zero-tolerance hiring and firing policies.

The case stems from a lawsuit filed by Joel Hernandez, a 25-year employee of the Hughes Missile Systems Company in Tucson. Mr. Hernandez tested positive for cocaine in 1991 and resigned in lieu of being fired. Two and a half years later, Hernandez applied for another job at Hughes after completing an alcohol-addiction rehabilitation program and becoming active in a local church.

The company refused to consider his application. In court papers, company lawyers say the firm maintains an unwritten blanket policy of refusing to rehire anyone fired for misconduct. Hernandez was treated the same as any other employee who had used drugs, and that the abuse was in the past is irrelevant, company lawyers say.

Hernandez's suit says the company's refusal to hire him is discrimination based on his past addiction in violation of the ADA. The company's zero-tolerance policy amounts to an exclusionary qualification standard that acts to prevent recovered drug addicts and other disabled individuals from fully participating in the workforce, Hernandez's lawyer says.

A federal court judge agreed with the company, and dismissed the case. A federal appeals-court panel agreed with Hernandez and reinstated it. Now it's up to the Supreme Court to settle the issue.

"The ADA ... does not give drug addicts or drug users (or former drug users) a free pass; it simply expects employers to consider them without discrimination. That is exactly what Hughes did here," writes Paul Grossman in a brief to the court on behalf of the Raytheon Company, which now owns Hughes.

"The company treats identically all employees terminated for violating its personal conduct rules: they all lose their jobs, and they all permanently lose the right to be considered for future employment," the brief says.

"Hughes imposes the same consequences on all employees who arrive at work with cocaine in their systems, whether the use of drugs is 'recreational' or habitual," Mr. Grossman writes. "Hughes has a zero-tolerance drug policy and thus does not 'discriminate' in any ordinarily understood sense of that word."

Hernandez's lawyer, Stephen Montoya of Phoenix, views the case differently. While the ADA offers no protection to those currently abusing drugs or alcohol, the act provides protection to anyone receiving treatment for an addiction or anyone who has been rehabilitated, including his client, he says in his brief to the court.

"Mr. Hernandez did not ask Hughes to confer any preferential hiring rights upon him. Instead, he merely asked for the simple (but fundamentally American) right to compete for a job," writes Mr. Montoya. "Instead of allowing Mr. Hernandez the simple dignity of competing against other applicants for one of the open positions, Hughes excluded him from the applicant pool at the very threshold of the hiring process."

The case, Raytheon v. Hernandez, is being closely watched by employment lawyers with an eye toward the legality of zero-tolerance policies. It is also being monitored by the disability-rights community, watching to see if the high court expands or contracts the protections of the ADA.

Stephen Bokat of the National Chamber Litigation Center says that blanket no- rehire policies are common among US firms and serve an important purpose. "It is a deterrent to employees violating these kinds of company rules," he says.

Claudia Center of the Legal Aid Society - Employment Law Center in San Francisco says in a friend-of-the-court brief that the ADA is written broadly to prohibit even neutral policies such as Hughes's. "As persons who by definition have a history of using unlawful drugs, rehabilitated illegal drug addicts are especially vulnerable to being screened out and adversely affected by facially neutral policies that render them ineligible for employment based on prior violations of company rules or criminal laws," Ms. Center says.

To overcome the requirements of the ADA, she says, a company must demonstrate that its blanket policy is job-related and consistent with business necessity.

US Solicitor General Theodore Olson is siding with the company. He says if the appeals-court decision is allowed to stand, it would undercut the effectiveness of workplace conduct rules, "which represent a legitimate effort by employers to promote workplace safety and productivity."

He adds, "By preventing firms from adopting blanket rules imposing permanent consequences for serious misconduct, including drug-related misconduct, the court of appeals' decision indirectly but unmistakably undermines the rules that regulate dangerous behavior."

Disability-rights advocates disagree. Says Johnny Allem, president of the Johnson Institute: "We should celebrate recovery, not punish it."