Cocaine snorting ... a new way to make your fortune
by Peter S. Saucier

Among the windows of reason that Congress placed in the Americans With Disabilities Act is a provision that does not require employers to tolerate drug abuse. The common sense notion that employees who are currently using illegal drugs are not protected by the ADA seems relatively straightforward. Hughes Aircraft Systems Company interpreted that provision to mean that it could safely be rid of Joel Hernandez when he tested positive for cocaine in 1991.

Recently, however, the United States Court of Appeals for the Ninth Circuit used another provision of the ADA to put Hernandez in position to recover money from Hughes. Although drug abuse is not protected under the ADA, an individual with an addiction who does not use drugs is protected as a person with a disability. After being allowed to resign in lieu of discharge for a cause that was undisputed – cocaine abuse – Hernandez became rehabilitated and applied to be rehired. Hughes applied its regular policy of not rehiring former employees whose employment ended because of a violation of company rules.

Hughes presented evidence that the decision makers did not know that Hernandez's violation of a company rule was abuse of an illegal drug, only that he violated a rule. That would be consistent with the ADA provision that requires medical information to be kept confidential and revealed only on a need-to-know basis. Therefore, Hughes asserted, even if Hernandez moved from cocaine snorter to model citizen, he was not discriminated against when the company applied its no rehire policy.

The Ninth Circuit did not see it that way, however. Instead, the court turned the confidentiality provision upside down, and faulted the company's actions in not freely disseminating Hernandez's cocaine history to any and all possible decision makers so that they could determine whether application of the no rehire policy violated the law. Indeed, the Court chided Hughes for "induc[ing] ignorance on the part of its employees who make hiring decisions . . . ." As a result, Hernandez may be looking at eight years of back pay for not working – almost like winning the lottery.

The lessons from this case are difficult to catalog. Apparently, there is a benefit to being terminated for breaking the law. If Hernandez had been discharged for failing to punch a time clock, the no hire policy would have been fine. In addition, employers in the Ninth Circuit now may have the contradictory obligation to keep medical information private, but make sure that anybody who affects hiring decisions knows why employees are terminated.

June 2002

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