FACIALLY NEUTRAL NO-REHIRE RULES AND THE AMERICANS WITH DISABILITIES ACT

Imagine a man who works as a technician for a large federal defense contractor, arriving at work with alcohol on his breath. He consents to a drug test that reveals cocaine in his system, and then quits in the face of almost certain termination. Several years later, after getting his act together

through Alcoholics Anonymous, the former employee reapplies to the same employer. The employer refuses to rehire him because of its universal, albeit unwritten, company policy not to rehire employees who quit rather than be fired for violation of misconduct rules. The employee sues, maintaining that he is clean and sober and that the employer's refusal to reconsider him once he was qualified again is a violation of the Americans with Disabilities Act (ADA).1 Is the employee correct?

It is common for businesses to promulgate rules regarding discipline and discharge for alcohol and illegal drug use while on duty.2 It is also not uncommon for employers to test employees for alcohol or drugs where the employee appears to be impaired while at work.3 Employers often require applicants for employment to submit to such tests prior to finalizing offers of employment. Certainly employers have legitimate business concerns about safety and sobriety in the workplace. Intoxicated employees may harm themselves or others while under the influence of alcohol or drugs. Substance abuse of either drugs or alcohol may be categorized as "dangerous misconduct" that employers should be able to regulate with workplace rules. ' When substance abuse impairs an employee at work, it negatively impacts the quality of products produced and services performed and, consequently, detracts from the profitability of the business.