DRUG USER MAKES A MOCKERY OF LAW

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.

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 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. 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 at someone
who insists that a firing offense may not be taken into account when he
asks to be rehired.

But you are not a judge on the 9th 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 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 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. If Hernandez has a right to be considered for
his old job, who's next? * Not in DMN-

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 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 that 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
that the American military's weapons were made by people whose brains may
be addled by their use of drugs.

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.