COURT WEIGHS RIGHTS OF RECOVERED ADDICTS

WASHINGTON -- Taking up a key case under the Americans with
Disabilities Act, Supreme Court justices grappled Wednesday with
whether an employer can refuse to rehire a recovering alcoholic and
drug abuser who has beaten his addictions and wants his job back.

A lawyer for Joel Hernandez, a former employee of Hughes Missile
Systems Co., argued that the company's refusal to consider him for a
job after his rehabilitation violated the Americans with Disabilities
Act. He urged justices to affirm a decision by a California-based
federal appeals court that permitted Hernandez to pursue his lawsuit
against Hughes.

"The purpose of the ADA is not to segregate disabled individuals who
can work from the job market," said lawyer Stephen Montoya.

But a lawyer for the company, now part of Raytheon Co., argued that
Hernandez had no legitimate claim. The company had a neutral policy
against rehiring any worker terminated for misconduct, and Hernandez
was treated no differently than a worker fired for harassment or
theft, said attorney Carter Phillips.

Paul Clement, a lawyer for the Bush administration, said the policy
does not single out for unfair treatment people who are addicted, but
instead "treats all people the same."

Phillips and Clement argued that the appeals court decision would hurt
employers because it could jeopardize workplace rules for businesses
with similar policies.

"This is a decision that has extraordinary implications, because
thousands of employers have this rule," Phillips said.

The case came about in 1994, after Hernandez sought another job with
Hughes, where he had worked 25 years. He had agreed to quit in 1991,
instead of being fired, after he tested positive for cocaine. In
seeking to be rehired, he submitted reference letters from a preacher
about his "faithful" church attendance and from a counselor at
Alcoholics Anonymous who said he was sober.

After Hughes refused to rehire Hernandez, he complained to the Equal
Employment Opportunity Commission. Responding to that complaint, a
manager for the company said Hernandez was rejected because of his
previous drug use and because there was no evidence that he had been
successfully rehabilitated.

The EEOC gave Hernandez the go-ahead to file a lawsuit against Hughes,
finding "reasonable cause to believe" that Hernandez was refused a job
because of his disability.

The justices appeared divided on the case, although several expressed
concern that there were too many questions for them to resolve the
legal issues. Justice Ruth Bader Ginsburg said it was unclear whether
the company had a written policy.

During his argument, Montoya said even if such a policy existed, the
company's decision not to reconsider Hernandez still would violate the
disabilities law. He argued--and the appeals court agreed--that such a
policy would "screen out" from employment all recovering alcoholics
and drug abusers who had sought to be rehired. Since those workers are
protected by the ADA, he said, the policy is illegal as applied to
them.

But some of the justices questioned whether Hernandez was disabled,
under the definition of the ADA. Justice Sandra Day O'Connor said she
"doesn't see how" Hernandez can make a claim under the ADA because he
currently is not disabled.

The law does not prohibit employers from firing people who abuse
alcohol or drugs, but it does protect workers who beat their
addictions, Montoya said.

He pointed to the words of the statute, under which people with a
record of a physical or mental impairment or who are regarded as
having such an impairment are considered disabled. The ADA says
recovering addicts are to be considered disabled and protected by the
law.