Snow Job

Anti-cokehead discrimination

Joel Hernandez wants his old job back, and employers and addicts across the country may have a stake in whether he gets it.

Fired from Hughes Missile Systems (now Raytheon) in 1991 when he tested positive for cocaine, Hernandez, who also had a drinking problem, reapplied in 1994 after joining Alcoholics Anonymous and giving up drugs. Hughes rejected his application, citing a company policy against rehiring former employees discharged for misconduct. But Hernandez contends he is protected as a recovered drug addict under the Americans with Disabilities Act. The U.S. Court of Appeals for the 9th Circuit agreed, and the Supreme Court is expected to rule on Raytheon's appeal of that decision soon.

"The 9th Circuit court's decision needs to be reversed," says Ann Reesman, general counsel of the Equal Employment Advisory Council. "The decision is very problematic for the employer's need to regulate the workplace. Any situation can be viewed as, 'My disability made me do it.'"

Hernandez's attorneys claim the case is "fact specific" and would not set a broader precedent. But Walter Olson, author of The Excuse Factory: How Employment Law Is Paralyzing the American Workplace (1997), believes the Supreme Court's track record of supporting neutral policies concerning employee conduct makes it likely that the 9th Circuit's decision will be overturned.

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