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Reducing Discrimination against Job Applicants with Substance Use Disorders

posted on Thu, Jul 30 2015 1:16 pm by Derek Carr

A recent survey conducted by the Substance Abuse and Mental Health Services Administration shows that an estimated 6.9 million individuals experienced substance use or dependence issues within the past year. Addiction carries a greater stigma than most other diseases, often ostracizing those affected and producing discriminatory policies, including employment practices. Indeed, one study found that 64 percent of people surveyed said employers should be allowed to deny employment on the basis of a person’s drug addiction. To a certain extent, federal law prohibits such discrimination.

The Americans with Disabilities Act (ADA) and the Rehabilitation Act, which apply to most private employers and organizations receiving federal financial assistance, prohibit employers from treating an otherwise qualified applicant unfavorably simply because of the applicant’s disability. These protections apply not only to physical disabilities, but also to mental disabilities, including addiction. Importantly, however, these laws draw subtle distinctions that determine whether an individual’s substance use or abuse constitutes a “disability” and consequently, whether employers are prohibited from acting on the basis of such use.

To invoke the laws’ protection, a person must first demonstrate that he or she has a disability, defined as a physical or mental impairment that substantially limits a major life activity, a history of such an impairment, or is regarded as having such an impairment. Under controlling interpretations of these laws, a person’s previous addiction to illegal drugs or controlled substances is a covered disability, but past casual use is not. Both the ADA and Rehabilitation Act explicitly exclude any individual “currently engaging in the illegal use of drugs.” This determination requires a case-by-case analysis, but courts will generally disqualify a person from protection where their use is recent enough to evidence an “ongoing problem,” often looking back weeks or months. Even when enrolled in rehabilitation programs, the law only applies where individuals abstain from any illegal drug use.

With research indicating that people experiencing employment troubles are more likely to keep their substance use history a secret, thereby precluding effective treatment, a more proactive approach is necessary to prevent discrimination in the first place. This starts with individuals knowing their rights and how to exercise them.

According to the Equal Employment Opportunity Commission, the federal agency tasked with enforcing the ADA and Rehabilitation Act, employers may not ask questions “likely to elicit information about a disability.” Thus, applicants may be asked if they currently use, have ever used, or how recently they have used illegal drugs. However, before making a conditional employment offer, employers may not ask applicants about how frequently they used illegal drugs in the past, whether they are or have ever been addicted to drugs, or whether they are or have ever been treated for drug abuse or addiction.

These protections are often not enough to prevent individuals from being refused positions for which they are qualified. Governments and advocates have experienced recent success in addressing employment discrimination through “ban the box” initiatives aimed at reducing the stigma attached to criminal convictions. Similar efforts may be helpful in protecting those who are in recovery from substance use disorders. Such efforts ensure fairer employment practices, encourage seeking treatment when needed, and continue the fight to end the stigmatization of addiction.

This blog post was developed by Derek Carr, J.D., Legal Fellow at the Network for Public Health Law – Southeastern Region at the National Health Law Program (NHeLP).

The Network for Public Health Law provides information and technical assistance on issues related to public health. The legal information and assistance provided in this post does not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state.

Support for the Network is provided by the Robert Wood Johnson Foundation (RWJF). The views expressed in this post do not necessarily represent the views of, and should not be attributed to, RWJF.

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