Addict Denied Rehire After Treatment May Have ADA Claim

Wednesday, June 12, 2002

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Addict Denied Rehire After Treatment May Have ADA Claim—Court

By KENNETH OFGANG, Staff Writer/Appellate Courts

A substance abuser who loses a job, then successfully undergoes rehabilitation but is denied reemployment, may be entitled to damages under the Americans With Disabilities Act, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The court reinstated Joel Hernandez’s suit against Hughes Missile Systems Company, which has been acquired by Raytheon Corporation since Hernandez worked there. Hernandez was at Hughes for 25 years—first as a janitor, but later as a technician—before being forced to quit in 1991 after failing a drug test.

In 1994, he applied for rehiring as a technician but was turned down. He complained to the Equal Employment Opportunity Commission that he was being discriminated against on the basis of his record of drug addiction, contrary to the ADA.

He eventually received a right-to-sue letter and brought suit in the U.S. District Court for the District of Arizona. In 1999,. while the suit was pending, Hughes offered to rehire him if he could pass an exam, but he failed.

District Judge John Roll later granted the employer’s motion for summary judgment.

But the Ninth Circuit reversed in an opinion by Judge Stephen Reinhardt.

‘Major Life Activities’

The jurist explained that while drug use is not a disability under the ADA, drug addiction which rises to the level where it “substantially limits one or more of” a person’s “major life activities” is. Thus, under Ninth Circuit precedent and EEOC policy, a person with a history of drug addiction may be considered disabled, and if he or she has been successfully treated, may be qualified for hire or rehire, Reinhardt said.

Hughes claimed that Hernandez was not discriminated against, in that the basis for denying him rehire was not his history of addiction, but the fact that he had resigned in lieu of termination. The personnel manager who rejected his application explained that she was unaware of the reason Hernandez was forced to resign, but that it was company policy not to hire anyone whom Hughes had previously fired or who resigned in lieu of termination.

Reinhardt questioned the personnel manager’s claim, since there was evidence of Hernandez’s past problems in the same personnel file that showed his resignation. But even if the manager did not know, the judge said, that lack of knowledge was the product of the company’s policy, which Reinhardt concluded was unlawful because it enabled Hughes to deny rehire to the disabled.

‘Willfully Induced Ignorance’

“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,” the judge wrote.

Eighth Circuit Judge Frank Magill, sitting by designation, and Judge Raymond C. Fisher joined in the opinion.

In another ADA case yesterday, a different Ninth Circuit panel reiterated its earlier ruling that the owners of the Fresno Bee did not discriminate against a reporter who was terminated because a medical condition prevented her from operating a keyboard for several hours a day.

The panel held last year that Jacalyn Thornton had no case under the ADA because the inability to use a keyboard or write continuously is not a “substantial limitation” on a major life activity. The judges said Thornton could proceed, however, on her claim that an amendment to the California Fair Employment and Housing Act, establishing a more liberal definition of disability, could be applied retroactively to her case.

The appellate panel retained jurisdiction, however, pending resolution of a similar case in the U.S. Supreme Court. In January of this year, the court held in Toyota Motor Mfg., Ky., Inc. v. Williams, 122 S.Ct. 681, that a worker with carpal tunnel syndrome and related ailments, who lost her job on an assembly line, was not disabled within the meaning of the ADA.

Judge Michael Daly Hawkins, who wrote the original opinion in Thornton’s case, said that the prior decision was correct under Williams. Judge Alex Kozinski agreed, but Judge Marsha Berzon again dissented.

Unlike the plaintiff in Williams, whose condition prevented her from performing certain occupation-specific tasks, Thornton was unable to engage in activities that affect everyday life.

In “the modern world,” Berzon explained, a computer keyboard is used for many tasks, including sending e-mail, paying bills, filing tax returns, and shopping. The inference, the judge said, is that if Thornton’s claims are accurate, she will have a hard time remaining in the journalism profession without accommodation.

The cases are Hernandez v. Hughes Missile Systems, 01-15512, and Thornton v. McClatchy Newspapers, Inc., 99-15857.