Disability and Addiction

Rehabilitation Act of 1973, Title V, Section 504

Historically, the legal protections for people with disabilities that are now in place began in 1973 in Title V of the Rehabilitation Act of 1973, Section 504. Section 504 titled “Nondiscrimination Under Federal Grants and Programs,” protected both persons who were currently addicted and those in recovery under federal law. Specifically, the act stipulated that any organization receiving federal funds could not discriminate against people who were currently addicted to drugs or alcohol or in recovery from either condition.

Americans With Disabilities Act

The Rehabilitation Act of 1973 was a significant milestone that recognized the need to protect the rights of those with disabilities. It was, however, not comprehensive, so lobbying continued on the part of people with disabilities and their advocates. Their efforts bore fruit, and the Americans with Disabilities Act was enacted on July 26, 1990. The primary objective of the Americans with Disabilities Act is to extend maximum opportunity for full community participation to persons with disabilities in both public and private sectors of the United States. The Americans with Disabilities Act prohibits employment discrimination on the basis of disability in both private and public sectors, extending the protections of the Rehabilitation Act of 1973 beyond federally funded and conducted activities. In particular, the Americans with Disabilities Act applies to private employment, all publicly funded services, and public accommodations and services managed by private organizations.

When the Americans with Disabilities Act was passed, protections for people who use illicit drugs that were present in Section 504 of the Rehabilitation Act of 1973 were dropped. Anyone who is currently engaged in the illegal use of drugs is not considered a qualified person with a disability under the Americans with Disabilities Act. However, persons who have completed or are participating in a supervised rehabilitation program and are no longer using illegal drugs are protected. The implication is that an individual who is addicted to heroin, for example, must be abstinent from the use of heroin to qualify for the protections afforded by the Americans with Disabilities Act.

Many individuals who are impaired because of their addiction are unable to perform one or more major life activities. Therefore, at least one of the three criteria for disability as defined by the Americans with Disabilities Act has been met. The statute is particularly important for many people with substance use disorders who also have co-occurring mental health disorders. This population often faces difficulties in finding and holding jobs, in part because of the stigma attached to both addiction and mental health disorders. However, disabling psychiatric illnesses that meet any of the three criteria for disabilities are considered qualified disabilities under the Americans with Disabilities Act, whereas addiction is not.

In addition to the Americans with Disabilities Act’s exclusion of those currently using illegal drugs, the act has several barriers that are of concern to the substance use disorders services and treatment community and to individuals with these disorders who wish to claim protection under the Act. As noted earlier, people with substance use disorders who are not currently using illicit drugs can claim protection from employment discrimination under the Americans with Disabilities Act. However, the meaning of “current use” is vague. Some court decisions have been equivocal about when recovery begins, requiring a period of active stability of, for example, 6 months, to be considered in recovery, and therefore eligible for the Americans with Disabilities Act protections. Employees who have alcoholism or who use illegal drugs must meet the same standards other employees are held to, even if their unsatisfactory behavior is attributable to their use of substances. Finally, employees must not pose a “direct threat” to others because of their substance use—a term that, like “current” use, has been debated frequently in litigation.

Protections against discrimination for people who actively use drugs and alcohol are influenced by current law and can change depending on case law rulings. Several key decisions narrowed the focus of the Americans with Disabilities Act’s protections and increased the barriers that individuals who are disabled or impaired must overcome to obtain equal opportunities in the United States. Restrictive case law necessitated passage of the Americans with Disabilities Act Amendments Act of 2008 to reaffirm Congress’s original intent.

Raytheon v. Hernandez

Raytheon v. Hernandez was a case that explored the extent to which employers can classify substance use disorders–related behaviors as workplace misconduct rather than behaviors related to the substance use disorder. This case eventually appeared before the Supreme Court, and the decisions from Raytheon v. Hernandez may have an impact on how the Americans with Disabilities Act protections are applied to people in recovery from substance use disorders. Joel Hernandez applied for a position at Raytheon in 1994. He had previously worked for Raytheon (at that time Hughes Missile Systems) from 1966 to 1991. During his employment, he had experienced on-the-job challenges related to substance use disorders, but treatment efforts supported by his company were unsuccessful. One day Mr. Hernandez came to work with alcohol and cocaine in his system, which his employers confirmed through a drug test. Mr. Hernandez was offered the option to resign or face termination. He resigned.

After 2 years in recovery from his substance use disorder, Mr. Hernandez applied for a position doing the same work he had been doing before his resignation, submitting letters from his church and his Alcoholics Anonymous sponsor with his application. The company had a no-rehire policy for ex-employees who had been terminated because of workplace misconduct, and Mr. Hernandez did not get the job. Mr. Hernandez surmised that he was being discriminated against because of his substance use disorder history. The Equal Employment Opportunity Commission supported his claim of discrimination and granted him permission to sue Raytheon for violating his rights under the Americans with Disabilities Act.

The case was heard by the US District Court in Arizona, which ruled in favor of Raytheon. Mr. Hernandez then appealed to the Ninth District Court of Appeals, which reversed the lower court’s ruling. Raytheon appealed the Ninth Circuit Court’s decision, and the case was eventually argued before the Supreme Court of the United States on October 8, 2003, and decided on December 2, 2003. The Supreme Court upheld the ruling of the Arizona District Court in favor of Raytheon, stating that Mr. Hernandez was not passed over because of his substance use disorder history and, therefore, was not the object of disparate treatment because of his disability, as he claimed in his arguments.

The opinion of the Supreme Court, as delivered by Justice Thomas, was that “Petitioner’s [Raytheon’s] proffer of its neutral no-rehire policy plainly satisfied its obligation under McDonnell Douglas [a previous decision] to provide a legitimate, nondiscriminatory reason for refusing to rehire respondent.” The opinion of the Court found that there was insufficient evidence to prove that Raytheon did not rehire Mr. Hernandez because of his substance use disorder history. In effect, the ruling allowed Raytheon to characterize Mr. Hernandez’s behavior on the day he came to work under the influence of alcohol and cocaine as workplace misconduct rather than as behavior consistent with a treatable substance use disorder.

The Sutton Trilogy

The “Sutton Trilogy” refers to three rulings issued by the US Supreme Court in Spring 1999. These cases addressed how the possibility of devices, medication, or even unconscious neuropsychological phenomena that mitigate a disabling condition can affect a person’s disability status. The first case, Sutton v. United Air Lines, Inc. , found that twin sisters with severe myopia that could be corrected to 20/20 vision with glasses were not protected under the Americans with Disabilities Act because the glasses mitigated the disability by improving their vision. The second case, Albertson’s Inc. v. Kirkingburg , found that Mr. Kirkingburg, a truck driver who was blind in one eye, was not protected under the Americans with Disabilities Act because he had developed the ability to compensate automatically for his lack of depth perception. His compensation mitigated his disability. The third case, Murphy v. the United States Postal Service, Inc. , found that Mr. Murphy, a mechanic also required to drive a truck who was dismissed because his blood pressure did not meet Department of Transportation’s health guidelines, was not protected by the Americans with Disabilities Act because, when medicated, his high blood pressure was near normal; in addition, he could still work as a mechanic, so he was not considered disabled.

In these three examples, mitigating factors included such things as medications, corrective lenses, and even neuropsychological phenomenon, all of which reduced the severity of the impairment. Recovery may be viewed as mitigation for people with substance use disorders, but a history of drug addiction still carries a significant burden of social stigma. People with substance use disorder histories may still require the Americans with Disabilities Act’s protections, even though their technical impairment has been mitigated.