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."

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