COURT RULES DRUG ADDICTION IS A DISABILITY

The Federal Court has found for the first time that addiction or drug
dependency is a legally recognised disability in a ruling that will have
major implications for employers and service providers.

The court ruling means companies that refuse to hire potential employees or
sack people because they are drug-dependent could breach the federal
Disability Discrimination Act and be liable for damages.

Denying a person membership of a club or sporting organisation or refusing
to rent him or her a property because the person is drug-dependent could
also be unlawful.

Lawyers say the judgement, handed down last week, is the first authoritative
finding that people with addictions are protected by laws prohibiting
discrimination on the grounds of disability.

They say it has profound implications for employment law and the provision
of goods and services.

"What this means is that if you want to discriminate against someone who is
addicted, you can't do so simply on the basis that they are an addict," said
Mr Dan Williams, a partner in Minter Ellison's Brisbane employment and
dIscrimination law practice.

"If at the recruitment stage, if all you know is that the person is an
addict and don't have evidence that they stagger around or abuse people, you
cannot deny them a job."

It also throws into question the legality of screening practices used by
employers.

These include drug and alcohol policies that test for the presence of a
substance, rather than impairment, and pre-employment questionnaires or
psychological tests that ask people if they have ever been addicted to drugs
or belonged to "recovery" fellowships such as Alcoholics Anonymous or
Narcotics Anonymous.

The decision by Justice Catherine Brauson overturned a finding by a Human
Rights and Equal Opportunity Commissioner that an ex-services club had not
breached the Disability Discrimination Act when it expelled a member who was
a former heroin addict on a methadone treatment program.

Justice Branson rejected the commissioner's "tentative" view that the man's
drug dependency could not constitute a disability under the Act.

She said it was wrong for the commissioner to find it was "reasonable" for
the club to expel the man on the basis of his behaviour, in the best
interests of all members of the club.

Instead, the commissioner should have compared the man's treatment with that
of other club members in similar circumstances not suffering from an
addiction to see whether he had been treated less favourably.

"It was sufficient, for the purposes of the applicant's complaint, that the
club had discriminated against him on the grounds that he had previously
been addicted to heroin, might in the future be addicted to heroin or
another opiate, or because it imputed a disability to him," Justice Branson
said.