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Rehab: It's Not Just for Celebrities Anymore

| William A. Oden, III William A. Oden, III

Shows such as Celebrity Rehab with Dr. Drew have captivated American television audiences for some time.  While this guilty pleasure certainly evokes sympathy and support for those in recovery (and nostalgia for the good ol' days when Gary Busey starred in Lethal Weapon, not The Celebrity Apprentice), it still is hard to imagine a scenario whereby an employer would choose to hire one of the D-List celebrities as an employee once the celebrity's treatment concluded.  However, thanks to a recent lawsuit filed in North Carolina, such a vignette now is more likely to occur in the future.

The United States Equal Employment Opportunity Commission ("EEOC") is the federal agency tasked with enforcing the federal laws prohibiting employment discrimination.  The Americans with Disabilities Act ("ADA") and its amendments specifically protect individuals from being discriminated against because they suffer from a disability.  In the event that an individual is determined to have a disability, the employer and applicant/employee are required to enter into an interactive discussion to determine whether a reasonable accommodation may be made to allow the disabled individual to perform the essential functions of his or her job.  A reasonable accommodation is one that does not produce an undue hardship for the employer, but, given the broad read of the ADA, get-out-of-jail-free undue hardships are almost non-existent.  By way of example, time off from work is often deemed to be a reasonable accommodation which must be granted.  

Under the ADA, are addictions to be treated as disabilities and recovering addicts as disabled?  Perhaps so.  On August 16, 2011, the EEOC's Charlotte Office filed a lawsuit in the United States District Court for the Eastern District of North Carolina against a Chicago-based insurance company, United Insurance Company of America, alleging that the insurance company discriminated against a job applicant due to his disability.  The applicant's alleged disability:  he is a recovering drug addict.

According to the EEOC's lawsuit, Craig Burns, a Raleigh, North Carolina, resident and pizza delivery man, applied to work as an insurance agent for United Insurance Company of America in January of 2010.  As was its practice, the insurance company conditioned Burns' job offer on successful completion of a drug screen.  Because Burns tested positive for methadone, a very powerful pain reliever associated with the treatment of certain drug addictions, the company withdrew Burns' job offer, even after Burns submitted a letter from his treatment provider explaining that Burns had methadone in his system because he is a recovering drug addict.  The EEOC noted that Burns suffered from a seven-year drug addiction prior to entering a seven-year supervised treatment program, and its lawsuit seeks back pay, compensatory damages, and punitive and injunctive relief for Burns.

Although the EEOC traditionally has refrained from bringing lawsuits on behalf of recovering addicts, it also has sued in Pennsylvania and obtained an $85,000.00 settlement for a factory worker who also was denied employment because he tested positive for methadone.  Although a different jurisdiction, such a result does not bode well for United Insurance Company of America.

United Insurance Company of America is far from an unsophisticated mom and pop shop.  In fact, according to an EEOC press release, United Insurance Company of America is a national company that employs more than 2,600 employees nationwide.  Now, it likely will be referred to by corporate America as a cautionary tale. 

Employers should keep in mind that it is the disability of addiction, not the behavior of using illegal drugs, which is protected by federal law.  Along those same lines, while employers may not rescind job offers to applicants or terminate or otherwise discipline employees because they are recovering drug addicts (test positive for legally prescribed methadone, etc.), employers are within their rights to take these actions if those same recovering drug addicts test positive for illegal substance abuse.    

Lynette A. Barnes, regional attorney for the EEOC's Charlotte Office, was quoted in the EEOC's press release as saying:  "It is unfortunate that many employers still deny the opportunity for work to people who are ready and able simply because of inaccurate perceptions of disabilities.  Employers' decisions are often based on irrational fears or stereotypes about individuals with a record of past substance abuse.  The EEOC will continue to fight for the rights of people victimized by such prejudices." 

Note to Gary Busey:  when the reality television shows stop calling, you might consider giving United Insurance Company a call.

© 2011, Ward and Smith, P.A.

For further information regarding the issues described above, please contact William A. Oden, III.

This article is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this article without obtaining the advice of an attorney.

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