- The Washington Times - Monday, October 13, 2003

One day 12 years ago, when Joel Hernandez came to work at Hughes Missiles Systems in Tucson, Ariz., his supervisors got a strong whiff of alcohol. There was a reason for this aroma: He had spent the previous evening drinking and snorting cocaine.

Mr. Hernandez, a missile technician, was given a drug test, which he failed. The company gave him the opportunity to resign rather than be fired. He agreed, and his 25-year association with Hughes was over.

Or so the company thought. In 1994, he showed up, applying to get his old job back. The company, preferring not to bring back employees who have been let go for misconduct, informed him his services would not be needed — not then, not ever.

But Mr. Hernandez, whatever his other failings, is not oblivious to the direction American law has taken in recent decades. He quickly grasped that he had suffered a grievous injustice. So he sued Hughes, claiming it had illegally discriminated against him under the Americans with Disabilities Act (ADA). As a rehabilitated alcoholic and drug addict, his lawyers claimed, he had every right to compete for a job without that minor lapse being held against him.

You may think it’s prudent to keep anyone prone to substance abuse away from large, shiny objects that go boom. You might laugh out loud out at someone who insists a firing offense may not be taken into account when he asks to be rehired.

But you are not a judge on the 9th U.S. Circuit Court of Appeals. It ruled last year that the company violated the ADA by maintaining a policy against rehiring “former drug addicts whose only work-related offense” — only — “was testing positive because of their addiction.” If Mr. Hernandez has been successfully rehabilitated, as he claims, the company can’t disqualify him merely because of one regrettable incident that happened so long ago.

The judges have not taken leave of their senses. The craziness lies in the ADA itself, which makes this claim entirely plausible.

The law doesn’t prevent employers from firing someone for using illegal drugs. But it specifically protects any employee or applicant who “has successfully completed a drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer engaging in such use.” From that provision, the court concluded that “a policy that serves to bar the re-employment of a drug addict despite his successful rehabilitation violates the ADA.”

The Supreme Court heard arguments in the case last week, and it may well disagree. But the fact that Mr. Hernandez’s claim could be upheld by a federal appeals court indicates just how far the ADA went in accommodating people who prefer not to take responsibility for their own actions.

It’s one thing to bar discrimination against people whose disabilities — blindness, deafness, paralysis and the like — result from the cruelty of fate. It’s another to grant protection to people whose problems are largely self-inflicted.

Nor is this a case of a callous employer being unreasonably punitive. Hughes, which is now owned by Raytheon Co., had been generous in dealing with Mr. Hernandez. In 1986, when his absenteeism got him in trouble, he blamed it on alcoholism, and the company agreed to keep him if he would get help.

After a 30-day stay in a treatment center, he went back to work. But when he showed up fragrant with evidence he had returned to his old ways, his superiors decided enough was enough.

As he demonstrated, people with a history of substance abuse are notoriously susceptible to relapses. Given the sort of work it does — making Tomahawk cruise missiles and other instruments of destruction — the company had special cause to worry. Raise your hand if you would feel safer knowing the American military’s weapons were made by people whose brains may be addled by their use of drugs.

If Mr. Hernandez has a right to be considered for his old job, who’s next? As Raytheon’s lawyers note, that reading of the ADA “would provide a dangerous safe harbor for conduct that threatens worker and public safety — e.g., drunk driving and public intoxication, drug use at work, the use of other intoxicants at work, possession or use of firearms at work, and other felonious activities.”

Every so often, airline pilots have shown up at the airport drunk. Do we want to give them a legal right to get back in the cockpit once they’ve had treatment?

Our national policy is to accommodate the employment needs of people with handicaps. But that shouldn’t mean disabling good sense.

Correction: Steve Chapman’s column that appeared in these pages Oct. 8 misstated the number of “partial-birth” abortions reportedly performed each year at a New Jersey facility. It is at least 1,500, not 3,000.

Steve Chapman is a nationally syndicated columnist.

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