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The Proverbial “Get Out of Jail Free” Card – The Ninth Circuit’s Treatment of Addiction Under Hernandez v. Hughes Missile Systems Co.

Labor and Employment Law

An employer refuses to rehire a former employee who was given the opportunity and voluntarily chose to resign in lieu of being terminated for undisputedly testing positive for cocaine use while at work. The employer makes the decision not to rehire pursuant to a corporate policy that uniformly prohibits the rehiring of employees who have been terminated or who have resigned in lieu of termination because they violated a company rule or regulation. There is no factual dispute that the corporate reemployment policy has been uniformly applied to all former employees or that this particular former employee was correctly and legally required to resign in lieu of termination.

However, because this particular employee happens to have suffered from an addiction, the Ninth Circuit Court of Appeals has concluded that he has the right to sue his former employer for discrimination under the Americans with Disabilities Act arising from the decision not to rehire him. How the Ninth Circuit reached this somewhat remarkable conclusion in Hernandez v. Hughes Missile Systems Company, 2002 WL 1275603 (9th Cir. 2002), requires further explanation.

The Background Story

The employee, Joel Hernandez, worked as a calibration service technician for Hughes Missile Systems Company (“Hughes”). While at work, Hernandez was given a drug test that yielded positive results for cocaine use. He was given the option to resign in lieu of being terminated, which he chose to do.1 There was no evidence that Hernandez was coerced to resign or that his resignation in lieu of termination was in any way unlawful. In fact, Hernandez neither challenged the legality of his resignation nor questioned the finding that he was using illegal drugs.

More than two years later, Hernandez reapplied for a position with Hughes and indicated in the application that he had previously been employed by the company. When Hughes rejected the application, Hernandez filed a charge of discrimination with the Equal Employment Opportunity Commission alleging that he had been discriminated against on the basis of his disability, more specifically, his record of drug addiction.2 In response to the EEOC charge, Hughes argued that Hernandez’s application had been rejected because of “his demonstrated drug use while previously employed” and because the company enjoyed the “right to deny reemployment to employees terminated for violation of Company rules and regulations.”3

During the course of litigation, however, the Hughes representative who actually reviewed and rejected the employee’s application testified that she had not been aware of Hernandez’s drug history or his reasons for originally resigning from the company. She then stated that the reason she had rejected Hernandez’s application was because of Hughes’ unwritten policy of not rehiring former employees who either were terminated or who resigned in lieu of termination.4 At summary judgment, Hughes argued both that Hernandez had failed to establish a prima facie case of discrimination and that he had failed to rebut the company’s proffered nondiscriminatory reason for not rehiring him, namely, the company’s policy prohibiting the rehire of employees who were previously terminated for violation of company rules and regulations.5

The Ninth Circuit’s
Prima Facie Analysis

In addressing whether Hernandez had stated a prima facie case, the Ninth Circuit observed that he needed to show, among other elements, that he was not rehired because of his disability. Hernandez had admitted that he did not suffer from an actual disability at the time of his reapplication, but insisted that his application had been rejected because of his “record of disability.”6

The court concluded that a “question of fact” precluding summary judgment existed with respect to whether the decision not to rehire was based on Hernandez’s record of disability. As evidence of this factual dispute, the court cited “Hughes’s explicit statement to the EEOC that the application was rejected because of Hernandez’s prior drug addiction.” However, this surprising recharacterization of Hughes’ response to the EEOC is contradicted by the court’s own verbatim quotation of the response: “[Hernandez’s] application was rejected based on his demonstrated drug use while previously employed.”7

The Ninth Circuit’s conclusion that an issue of fact existed as to whether Hernandez’s application had been rejected because of his record of addiction could be justified only by transfiguring Hughes’ statement to the EEOC about violation of corporate rules through current drug use into one about drug addiction. Apparently, this linguistic alchemy was necessary since even the Ninth Circuit was required to acknowledge that the ADA “does not protect an employee or applicant who is currently engaging in illegal drug use.”8 The court’s acknowledgment, however, appreciably understates the disapproval of current drug use written into the ADA; the statute is replete with disapprobation. Section 12114 states, in pertinent part, as follows:

For purposes of this subchapter, the term “qualified individual with a disability” shall not include any employee or applicant who is currently engaging in the illegal use of drugs

* * *

A covered entity –

* * *

(4) may hold an employee who engages in the illegal use of drugs to the same qualification standards for employment or job performance and behavior that such entity holds other employees, even if any unsatisfactory performance or behavior is related to the drug use. . . of such employee. . . .

42 U.S.C. §§12114(a) and (c) (emphasis supplied).9

Notwithstanding the clear statutory disapproval of current drug use and Hughes’ unequivocal and repeated insistence that its decision was based on past drug-related misconduct, not past drug addiction, the Ninth Circuit concluded that a factual dispute existed as to whether Hernandez’s rejection was motivated by his record of addiction and thus a prima facie case of discrimination could be stated.10

The court then went on to analyze Hughes’ argument that it had a legitimate, nondiscriminatory reason for refusing to rehire Hernandez, namely, that he had previously been forced to resign for misconduct involving drug use in violation of corporate policy and that the company simply did not rehire any such employee, regardless of the existence or nonexistence of a disability. It is here that the Ninth Circuit’s decision most strikingly flies in the face of clear statutory mandates.

Ninth Circuit Rejects the Proffered Reason Outright

Rather than engage in the full shifting burdens analysis mandated by Supreme Court precedent,11 the Ninth Circuit abridged the analysis by never reaching the question of whether Hernandez had come forward with evidence to establish that Hughes’ proffered explanation was pretextual.12 Instead, the court concluded, as a matter of law, that Hughes’ neutral policy prohibiting the rehire of any former employee who had resigned or been terminated because of violating company policy was not a legitimate, nondiscriminatory reason for the refusal to rehire.13 It reached this conclusion after noting that even though Hughes’ policy was not “unlawful on its face,” it “violate[d] the ADA as applied to former drug addicts whose only work-related offense was testing positive because of their addiction.”14 The court reached this remarkable conclusion even though it affirmed summary judgment on Hernandez’s disparate impact claim on the grounds that it was untimely filed.15 Since there was no evidence of disparate treatment in Hughes’ application of its rehiring policy, and the disparate impact claim was correctly dismissed, one must query how the court was able to sustain a claim of discrimination at all.

The Ninth Circuit’s conclusion regarding Hughes’ proffered reason for not rehiring Hernandez is directly contrary to the clear language of the ADA and produces the most absurd results in the workplace, not the least of which is that it immunizes individuals with purported addictions from the effects of their uncontroverted past misconduct.

Section 12114(c) specifically and unequivocally provides that an employer may hold an employee (or, by implication, former employee) who engages in the use of illegal drugs to the same “qualification standards for employment” that the employer holds others “even if any unsatisfactory performance or behavior is related to the drug use. . . of such employee.” Consequently, under this statutory provision, Hughes was entitled to hold Hernandez to the same qualification standard that it applied to all other former employees who might be seeking reemployment, even if Hernandez’s drug addiction was the cause of the earlier violation of Hughes’ regulations. The Ninth Circuit did not discuss this particular statutory provision as part of its analysis.

Instead, the court cited to a provision from the EEOC’s Technical Assistance Manual for the proposition that “[a]n employer may not discriminate against a drug addict, who is not currently using drugs and who has been rehabilitated, because of a history of drug addiction.”16 This technical guidance, the court reasoned, when read in conjunction with §12114(b), which recognizes the protected status of rehabilitated drug addicts, required the conclusion that Hughes’ unwritten rehiring policy violated the ADA.17 Unfortunately, the court’s reasoning requires the reader to accept the underlying flawed assumption that all drug addict employees must necessarily violate their employer’s corporate policies against drug use simply by virtue of their being addicts. In other words, the Ninth Circuit’s analysis does not contemplate the possibility of a drug addict who is able to stay drug free in the work environment.18

Many federal courts, including the Ninth Circuit, have been able to comfortably draw a distinction between adverse personnel actions taken because of misconduct and those taken because of the employee’s status as a drug addict. For example, in its 1995 decision in Collings, the Ninth Circuit concluded that the fact that an employee was “drug free” at the time of the employer’s adverse personnel decision was immaterial since the adverse personnel decision was based on earlier “drug-related misconduct, rather than any drug addiction disability.”19

In Thomas v. Mississippi State Dept. of Health, 934 F. Supp. 768 (S.D. Miss. 1996), the district court was confronted with a scenario analogous to the one presented in Hernandez. A former employee sued for disability discrimination after his former employer refused to rehire him to his former position. The employer justified its decision citing to the former employee’s excessive absenteeism and negligence caused primarily by his drug addiction.20 The court rejected the former employee’s argument that consideration of past misconduct caused by his addiction was improper. On the contrary, the court observed that, in accordance with §12114(c)(4), an employer may hold its former employees with addictions to the same standards that it holds its nonaddicted employees, even if the misconduct was caused by the addiction. The court stated, “the ADA. . . does not require an employer to give any special concessions for the behavior of individuals who are substance abusers.”21

In Peyton v. Otis Elevator Company, 72 F. Supp. 2d 915 (N.D. Ill. 1999), an Illinois district court was presented with a former employee who argued that his employer’s refusal to rehire him constituted disability discrimination based on his addiction to alcohol. The former employee argued that once he had successfully completed rehabilitation, his prior alcohol abuse was irrelevant, and he was entitled to the protection afforded by the ADA to addicts under the safe harbor provision of §12114(b) and thus could not be refused his former position. The court rejected the argument, noting that §12114(c)(4) specifically precluded it by allowing employees to set uniform standards without special concessions to addicts.22

Practical Consequences
of Hernandez

The consequences of the Ninth Circuit’s analysis in Hernandez are draconian from an employer’s perspective since the court’s decision, as previously noted, effectively immunizes a rehabilitated drug addict or alcoholic from the consequences of his prior misconduct. There is little analytical difference between the situation presented in Hernandez and the hypothetical situation where Hernandez might have stolen money from Hughes primarily because of and to feed his drug addiction. While there is something of a substantive difference between these two violations of corporate policy, both would be acts of misconduct caused by the addiction. Would Hughes be precluded from enforcing its policy of refusing to rehire Hernandez for that particular past violation? If so, would the same result obtain if Hernandez had physically assaulted another employee while under the influence of drugs?

The Ninth Circuit’s reasoning elevates addicts to a preferred status over nondisabled employees and employees with other disabilities who engage in similar or even identical acts of misconduct. It seems fairly clear that if Hernandez had suffered from a mobility or hearing impairment that qualified as a disability, he would not have been excused from having engaged in illegal drug use and Hughes’ refusal to rehire him under its policy would not have raised a judicial eyebrow. Similarly, if Hernandez had been of a racial or ethnic minority asserting a claim of discrimination under Title VII of the Civil Rights Act of 1964, the Ninth Circuit would not have given the claim of discrimination more than passing consideration if the prior illegal use of drugs had been cited as the reason for not rehiring and was factually uncontested, as it was in the actual case.23

The Ninth Circuit appears to struggle with the “safe harbor” provision of §12114(b) and the protections it affords individuals with addictions. However, it is certainly the more reasonable reading of §12114(b) to suggest that it protects individuals from being discriminated against on the basis of their status or record of addiction, and not that it provides some form of special dispensation which absolves the individual of all past drug-related misconduct.

The plain language of §12114(b) reflects that the only protection afforded an individual with an addiction is that the individual may not be summarily excluded from being considered a “qualified individual with a disability.” However, establishing that one is a “qualified individual with a disability” is merely part of an ADA claimant’s prima facie case.24 Once a rehabilitated addict has established his prima facie case, he must still contend with his employer’s proffered nondiscriminatory reason for its personnel decision. If the rehabilitated addict is unable to come forward with evidence of pretext to call into question the ultimate justification proffered by his employer, summary judgment in favor of the employer is required.25 This analysis is supported by the limiting language found at the very beginning of the safe harbor provision: “Nothing in subsection (a) of this section shall be construed to exclude. . . . ”

The safe harbor provision makes no mention of and imposes no limitations with respect to subsection (c) of §12114, which is the section that allows an employer to enforce uniform qualification standards, even if the misconduct at issue is drug-related. If the employer has a neutral standard that precludes rehire and applies that policy in an evenhanded and nondiscriminatory manner, that should end the inquiry. Had Congress intended for the safe harbor provision to preclude an employer from considering an addict’s past misconduct, it could have easily written the safe harbor provision to read “Nothing in this section shall be construed to exclude. . . ”, thus incorporating subsections (a) and (c). It is not the role of the Ninth Circuit or any other appellate court to expand a remedy that Congress has specifically limited to certain circumstances.26

Eleventh Circuit Precedents

Remarkably, the Eleventh Circuit has not had occasion to interpret §12114 and how the protections afforded to addict and employer under subparagraphs (b) and (c) thereof interact with each other. However, the Eleventh Circuit has given some indication of how it might rule when presented with the issue.

In Terrell v. USAir, 132 F.3d 621 (11th Cir. 1998), the Eleventh Circuit rejected a plaintiff’s claim that it was the employer’s obligation to create a part-time position as a form of reasonable accommodation unless doing so created an undue hardship. In doing so, the Eleventh Circuit concluded that an employer was not under an obligation to create a part-time position when part-time positions had been eliminated by the employer as part of its policy. The court noted that the decision to use part-time employees was a “core management policy with which the ADA was not intended to interfere.”27 In affirming summary judgment for the employer, the Eleventh Circuit unequivocally expressed its opinion regarding the preferential treatment of workers: “We cannot accept that Congress, in enacting the ADA, intended to grant preferential treatment for disabled workers.”28

The Ninth Circuit has unnecessarily chosen to interpret the safe harbor provision in §12114(b) in a manner that creates a proverbial “get out of jail free card” for individuals with addictions and injects an element of preferential treatment into an employer’s consideration of individuals with addictions. Such an interpretation impermissibly rewrites the safe harbor provision to provide far greater protection for individuals with addictions than Congress originally intended. As a result, it would not be surprising if the Eleventh Circuit declined to follow the reasoning in Hernandez.


The Ninth Circuit’s decision in Hernandez unnecessarily creates a dilemma for employers. While employers struggle, for various legitimate reasons, to create workplace environments that are drug-free and to uniformly apply neutral policies regarding appropriate workplace behavior, they are being forced to ignore undisputed misconduct simply by virtue of the fact that an employee happens to have classified himself or herself as an addict. If the ADA was intended to protect individuals suffering from kleptomania when they steal corporate supplies or those with gambling addictions when they wager away corporate pension funds under their control, then no one should find cause for concern with the Ninth Circuit’s decision. On the other hand, if the more reasoned understanding of the ADA is that it is intended—at its most fundamental level—to treat individuals who have disabilities comparably to those who do not, then an alarm should sound whenever the appellate courts of this country enlarge the protections Congress deemed appropriate to afford individuals with disabilities on the misguided and paternalistic notions that such individuals are incapable of adhering to established norms of workplace behavior. q

1 Hernandez, 2002 WL 1275603 at *1.
2 Nowhere in the court’s opinion is there any indication that Hernandez premised his ADA claim on the basis of an actual addiction either to drugs or alcohol. In fact, the court observed that “Hernandez does not claim that he was actually disabled at the time he applied to be rehired.” Id. at *2.
3 Id. at *1.
4 Id.
5 Id. at *2. It was undisputed that Hughes had a corporate policy prohibiting drug use and mandating termination for any employee who tested positive for drugs. Id.
6 Id. Under the ADA, a “disability” may include, in addition to an existing physical or mental impairment, the record of such an impairment. 42 U.S.C. §12102(2).
7 Hernandez, 2002 WL 1275603 at *1, *2 (emphasis supplied). It requires little jurisprudential support to recognize that not every drug user is an addict and that not every addict uses drugs in violation of his employer’s policies. In fact, the court acknowledged that not all drug users are entitled to protection under the ADA, since their drug use may not rise to the level of addiction. Id. at *2 n.9.
8 Id. at *3, citing to 42 U.S.C. §12114(a) (2002).
9 The cases are legion that uphold the right of an employer to treat a current drug user the same as any other employee caught in wrongdoing regardless of the employee’s addiction. See, e.g., Nielsen v. Moroni Feed Co., 162 F.3d 604 (10th Cir. 1998); Salley v. Circuit City Stores, Inc., 160 F.3d 977 (3d Cir. 1998); Burch v. Coca-Cola Co., 119 F.3d 305 (5th Cir. 1997), cert. den., 522 U.S. 1084 (1998); Shafer v. Preston Memorial Hosp. Corp., 107 F.3d 274 (4th Cir. 1997); Maddox v. University of Tennessee, 62 F.3d 843 (6th Cir. 1995). Even the Ninth Circuit has reached a similar conclusion. See Collings v. Longview Fibre Co., 63 F.3d 828 (9th Cir. 1995), cert. den., 516 U.S. 1048 (1999) (distinguishing between termination based on drug-related misconduct and one based on drug addiction disability).
10 Hernandez, 2002 WL 1275603 at *2. The court also concluded that a factual dispute existed as to whether Hernandez was a “qualified individual who could perform the essential functions of the job.” Id. at *2, 3. Hughes apparently never proffered the argument (or if it did, the court ignored it) that a legitimate qualification for rehire of former employees included not having previously violated a corporate rule or regulation.
11 Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000), citing to McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
12 This is perhaps not surprising since the opinion does not reflect that there was any evidence 1) that Hughes had ever deviated from its corporate policy of not rehiring former employees who violated company rules or regulations, 2) that the policy had been applied to Hernandez in a discriminatory manner, or 3) that Hughes was not, in fact, motivated by the policy in making its decision.
13 Hughes Missile Systems, 2002 WL 1275603 at *4.
14 Id. at *3.
15 Id. at *4 n.19.
16 Id. at *3, quoting from EEOC, A Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with Disabilities Act §§8.2, 8.5 (1992)
17 Hernandez, 2002 WL 1275603 at *3. Section 12114 (b) states, in pertinent part, that “[n]othing in subsection (a) of this section shall be construed to exclude as a qualified individual with a disability an individual who (1) has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs. . . . ”
18 In fact, it is a generally recognized principle of recovery from addiction that the individual in recovery must acknowledge that he remains an addict and will likely always be an addict, i.e., he will always have the propensity to develop a dependency on drugs. See, e.g., Stanton Peele, The Results for Drug Reform Goals of Shifting from Interdiction/Punishment to Treatment, 9 Int’l J. of Drug Policy 43, 49 (1998) (observing that the “disease” model of addiction requires the addict to always think of himself as an addict). As a result, a rehabilitated addict entitled to the protections afforded by §12114(b) would still suffer from drug “addiction” even though he may not currently use drugs. Such an individual would be able to work for Hughes without violating its corporate regulations against drug use.
19 Collings, 63 F.3d at 832-33.
20 Thomas, 934 F. Supp. at 773-74.
21 Id.
22 Peyton.72 F. Supp. at 920-21.
23 Under the McDonnell Douglas shifting burdens analysis, once Hughes had come forward with a legitimate nondiscriminatory reason for not rehiring Hernandez (the corporate rehiring policy), it would have been incumbent upon Hernandez to present evidence of pretext to call Hughes’ explanation into question. Reeves, 530 U.S. at 143. Of course, because there would have been no dispute about the illegality of Hernandez’s conduct during his prior employment, there would have been no evidence of pretext and summary judgment would have been correctly granted in favor of Hughes.
24 See, e.g., Reid v. Heil Co., 206 F.3d 1055, 1061 (11th Cir. 2000).
25 Isenbergh v. Knight-Ridder Newspaper Sales, Inc., 97 F.3d 436, 444 (11th Cir. 1996), citing to Brown v. American Honda Motor Co., 939 F.2d 946, 952-54 (11th Cir. 1991) (plaintiff presented no jury question because defendant’s ultimate justification went essentially unchallenged).
26 Badaracco v. Commissioner of Internal Revenue, 464 U.S. 386, 398 (1984) (“Courts are not authorized to rewrite a statute because they might deems its effects susceptible of improvement.”)
27 Terrell, 132 F.3d at 627.
28 Id. The 11th Circuit is not alone in its adherence to this principle. See Wernick v. Federal Reserve Bank of New York, 91 F.3d 379, 384 (2d Cir. 1996) (“Congress intended simply that disabled persons have the same opportunities available to them as are available to nondisabled persons.”); Daugherty v. City of El Paso, 56 F.3d 695, 700 (5th Cir. 1995) (“We do not read the ADA as requiring affirmative action in favor of individuals with disabilities, in the sense of requiring that disabled persons be given priority in hiring or reassignment over those who are not disabled. It prohibits employment discrimination against qualified individuals with disabilities, no more and no less.”)

Edward Guedes is a shareholder with the firm of Weiss Serota Helfman Pastoriza & Guedes, P.A., and heads its appellate practice group. In that context and previously as a trial lawyer, Mr. Guedes has also developed extensive expertise in employment matters. He received his juris doctor from Harvard Law School.
This column is submitted on behalf of the Labor and Employment Law Section, Courtney B. Wilson, chair, and Stuart A. Rosenfeldt, editor.
© 2002 Edward G. Guedes

Labor and Employment Law