Junkie justice.

Junkie justice.

Junkie justice.

Oral argument from the court.
Oct. 10 2003 11:50 AM

Junkie Justice

Are drug addicts covered under the ADA?

Raytheon v. Hernandez is the sort of case the Warren Court lived to hear: An old-fashioned sob story about a broken victim and the soulless corporation that wouldn't cut him a break. On one side, Joel Hernandez, recovering addict fighting for his old job after he finds God and gets sober. On the other, Raytheon, huge defense contractor, which—along with the federal government—is defending its no-second-chances-for-cokeheads policy. Hernandez is, not to put too fine a point on it, screwed from the word go. His case is being argued by his Phoenix trial attorney, while Raytheon is represented by D.C.'s Carter Phillips, one of those appellate Harlem Globetrotters who's spinning-the-ball-on-his-finger-while-tap-dancing-and-talking-Urdu magnificent. Hernandez's brief in the case is, well, not good. And Justices David Souter and Stephen Breyer—who tend to side with the sad sack—both recuse themselves for unexplained reasons.

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You might think the Supreme Court would treat all these imbalances and disparities with compassion: Put a wee thumb on the scale for the little guy. But this is a court of tough guys and just-the-facts. Unless the facts are the problem.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

The facts: Hernandez worked for Hughes Missile Systems (later acquired by Raytheon) for 25 years. He started as janitor, working his way up to technician. He got in trouble in 1986 for absenteeism and admitted to being an alcoholic. He underwent treatment, fell off the wagon and—after going on a bender in 1991—tested positive for cocaine. He resigned in lieu of termination, and a note to that effect went on his file. It did not specify that he was an addict. Hernandez bottomed out, gave up drugs, and joined AA. In 1994, he asked for his job back.

Hughes rejected his application immediately. Hernandez says this was because he was an addict. Hughes says it was because of their unwritten zero-tolerance policy of never rehiring employees terminated for misconduct. Hernandez sued Hughes under the Americans With Disabilities Act claiming his application was rejected as a result of his drug use, which constitutes discrimination.

The case never went to trial. The district court granted summary judgment for Hughes—meaning the judge felt there was no genuine factual issue for trial *. Enter the 9th Circuit, in a panel led by Judge Stephen Reinhardt—a man who's never met a sad sack he couldn't love. Reinhardt crafted an opinion reversing the district court that lacked for nothing save sound legal analysis. Lord, save us from compassionate liberal judges. The Supreme Court agreed to hear the case because thousands of businesses have similar no-rehire policies, and if they all violate the ADA, warns Raytheon, we'd have federal law giving addicts a mandatory second crack at spilling heroin into the plutonium.

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One other piece of legislative weirdness to note: The ADA does, in fact, define addiction as a disability, but only recovered and recovering addicts qualify. The ADA offers no protection to current users of drugs, which means that you are only an addict for ADA purposes once you're either being treated or cured.

The court took the case to tackle the thorny issue of whether drug addiction really does constitute a disability under the ADA, rendering all zero-tolerance policies invalid. But they can't quite get past the factual dispute about whether Raytheon had such a policy. And the fact that there's a factual dispute suggests this case wasn't a good candidate for summary judgment. Justice Sandra Day O'Connor seems to be leaning this way, interrupting Carter Phillips almost immediately, "I might agree with you that the no-hire policy is lawful," she says, but there seems to be a genuine issue of fact about whether there even was such a policy in this case. The allegedly neutral "policy" may have been a pretext for discrimination against addicts.

Justice Ruth Bader Ginsburg agrees, noting that the "record is suspicious" on whether there even was a no-rehire policy and whether it was "applied with an even hand." These are facts for a jury, she says, they cannot be decided by courts of appeals. Phillips insists that there is no dispute that the policy exists, pointing to Footnote 17 in the 9th Circuit opinion, which seems to concede this point. ("There is no question that Hughes applied this policy in rejecting Hernandez's application.") Here he gets flustered (or as flustered as a Carter Phillips can get), calling Ginsburg, "O'Connor." After years of O'Connor as swing justice, most oral advocates have learned to start every sentence with "Yes, Justice O'Connor," regardless of who is posing the question. We call it cutting out the middlemen …

Phillips closes by noting that the only way the 9th Circuit could decide as they did was by believing that the Hughes employee who rejected Hernandez's application "flat-out lied" when she testified at deposition that she never knew about his addiction and simply rejected him based on his prior termination and the no-rehire policy.

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Paul Clement from the solicitor general's office gets 10 minutes to defend Raytheon. He admits upfront that he doesn't much care whether this case goes to trial, so long as the high court vacates the 9th Circuit ruling that every zero-tolerance policy violates the ADA. The whole summary judgment issue is distracting from Clement's real concern: That this broader opinion get off the books.

Stephen G. Montoya represents Hernandez, and he gets into hot water when Justice Antonin Scalia asks him to reconcile his contention that Hughes had a no-rehire policy with Reinhardt's Footnote 17, finding they did. "I can't," confesses Montoya, and it is indeed unfair that the 9th Circuit decided the case on a different theory than his own. The court wants Montoya to argue Reinhardt's theory. Montoya wants simply to convince them that Hughes' policy was a pretext. Montoya squirms while Scalia levels with him: "We didn't take this case to decide whether or not there was a policy," he says. "We assume the policy exists. It's an important proposition, whether such a policy violates the ADA. You care about it, I know. But that's not what's important to us." It takes a brave man to screw the little guy, but it takes a braver one to tell him that he's totally immaterial to the case he's brought.

Finally, the court seems to agree that Hernandez has never even recovered from his cocaine addiction, and this bit is so depressing, I can only quote it for you:

Ginsburg points out that Hernandez's proof that he's no longer a drug addict consists of a letter from his pastor and another letter from his AA counselor. "There's not one thing here that says he's not addicted to cocaine," she notes.

Montoya tries to parse the letter: "[I]n recovery for addiction," he quotes, noting that addiction includes cocaine.

Ginsburg: If I get a letter from an AA counselor, I assume it's an alcoholic.

Montoya: If you construe the facts in favor of the nonmoving party ...

Scalia: The inference you want us to construe is that "alcohol" means "other than alcohol."

So Montoya points out that the letter discusses Hernandez's "sobriety."

Scalia: Sober refers to drunkenness.

Rehnquist: A drug addict is stoned.

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Do these guys have the drug lingo down or what?

Then Ginsburg chides Montoya for failing to file interrogatories to determine whether, in fact, the unwritten no-rehire policy ever existed. If they lose on Montoya's theory, she implies, it's Montoya's own fault.

So let's recap: We were supposed to be hearing a case about whether blanket bans on rehiring drug-addicted workers violate the ADA. But instead, we go nine rounds on whether the plaintiff is recovered enough to be discriminated against as an addict, under a policy that may or may not have existed, for purposes of a law that plainly cannot protect him.

It's a good thing Joel Hernandez has found Jesus. Because the meek and downtrodden are not the concern of the court today.

Correction, Oct. 9, 2003: Summary judgment is granted where a judge finds no material issue of fact in dispute. (Return to corrected sentence here.)