JUSTICES TO TEST REFUSAL TO HIRE OVER DRUG USE

High Court Must Decide Whether Those Who Did Narcotics In The Past Are In
Category Of 'Disabled.'

WASHINGTON -- The Supreme Court agreed Monday to decide whether companies
can refuse to hire onetime drug users or alcoholics.

Last year, the federal appeals court in California ruled that recovered
drug users can be seen as having a disability and are thus protected from
discrimination under federal law.

The decision by the U.S. 9th Circuit Court of Appeals cleared the way for a
former technician for Hughes Missile Systems in Tucson to sue his
ex-employer for refusing to rehire him.

Joel Hernandez had worked at the plant for 25 years when he quit in 1991
because of cocaine use. After going through a recovery program, he
reapplied for his former job in 1994 but was rejected.

"He is a born-again Christian and hasn't had any involvement with drugs or
alcohol," said his lawyer, Stephen Montoya.

But lawyers for Hughes said the company had a policy of not rehiring
workers who left because of misconduct, including drug use. They urged the
high court to take up the issue and to rule that the law does not create a
right to a "second chance."

"The Americans With Disabilities Act promises nondiscrimination; it does
not promise to insulate drug users from the consequences of their
misconduct," said Los Angeles lawyer Paul Grossman, representing Hughes.

The company is now part of Raytheon. Unless reversed, the 9th Circuit's
decision would confer "preferential rights" on former drug users, Grossman
said.

The case of Raytheon Co. vs. Hernandez, 02-749, to be heard in the fall,
will mark the first ruling from the high court on the status of drug users
and alcoholics under the 1990 law.

If the court says they fall under the category of "disabled," the ruling
would give them a right to be hired or rehired without regard to past behavior.

However, if the court says that company work rules take precedence,
employers will be free to exclude applicants with a history of alcohol or
drug abuse.

The 1990 law itself reads as something of a compromise. In the section on
"Illegal use of drugs and alcohol," it says "any employee or applicant who
is currently engaging in the illegal use of drugs" cannot claim to be disabled.

However, it also says that "an individual who has successfully completed a
supervised drug rehabilitation program and is no longer engaging in the
illegal use of drugs" may be considered as having a disability.

Georgetown University law professor Chai Feldblum, who helped draft the
law, said it was intended to create a distinction between current and
former abusers.

"It says current users are excluded completely. But it also says you can't
discriminate against someone who had used drugs in the past," Feldblum
said. "That fact [past drug use] can't be used against him as the only
reason for not hiring him," she said of Hernandez's case.

The law treats alcoholics in the same manner as drug users.

The Raytheon case also replays the familiar liberal versus conservative
clash between the 9th Circuit and the Supreme Court.

Judge Stephen Reinhardt of Los Angeles, a liberal leader of the 9th
Circuit, wrote the opinion that revived Hernandez's suit.

Hernandez was qualified for his job, Reinhardt said. "We hold that a policy
that serves to bar the reemployment of a drug addict despite successful
rehabilitation violates the ADA," he wrote for a three-judge panel.

On Monday, the high court returned to work after a four-week recess and
turned away several hundred appeals. They voted to take up four cases -
three of them from the 9th Circuit.

In a key environmental dispute, the justices agreed to consider whether
states can relax clean-air standards.

During the Clinton administration, the Environmental Protection Agency
refused to permit a diesel-fired generator at a mine in northern Alaska.
State officials said they would have allowed the polluting generator,
hoping to create jobs in the area.

The 9th Circuit Court upheld the EPA. Federal authority is needed "to
protect states from industry pressure to issue ill-advised permits," said
Judge Kim Wardlow, a Clinton appointee.

Washington attorney John G. Roberts, a pending Bush nominee to the U.S.
Court of Appeals here, appealed on behalf of Alaska, arguing that EPA had
"usurped the authority" due the states.

The justices voted to hear the case, Alaska vs. EPA, 02-658.

The third case concerned a drug raid at a Las Vegas apartment. The law
usually requires officers to knock on the door and announce their presence
before breaking into a home.

In this case, officers used a battering ram to break down a door about 15
seconds after announcing who they were. They found the resident, Lashawn
Banks, in the shower.

The 9th Circuit said this was an unreasonable search. U.S. Solicitor
General Theodore B. Olson appealed, saying that officers should be given
more leeway to carry out such raids. The case of U.S. vs. Banks is also set
for the fall.

Indiana requires women seeking an abortion to have in-person counseling
within 18 hours of the procedure. Abortion-rights advocates said this
requirement was unnecessary and burdensome, but the court refused to hear
the appeal.