Ten Years After the ADA Amendment Act (2008): The Relationship Between ADA Employment Discrimination and Substance Use Disorders

The Americans with Disabilities Act (ADA) is the most important piece of federal legislation barring discrimination against people with disabilities as employees, customers of commercial enterprises, and recipients of public services (1). The ADA affords protections to people with a wide variety of disorders, including many mental disorders. However, it provides only limited protection against discrimination on the basis of substance use disorders, even though stigmatization of substance use disorders is common and persons with these disorders experience frequent discrimination.

Originally enacted in 1990 (2), the ADA was modified in important ways in 2008 (3), chiefly by expanding the activities and group of persons qualifying for ADA protections. Given that a decade has passed since the law’s modification, in this article, we look at how the courts have applied the ADA to substance use disorders in the context of employment, the area in which most litigation involving substance use disorders is brought. We also consider the policy implications of the differential treatment of people with substance use disorders.

Overview of the ADA’s Employment Provisions

Legal protections from discrimination for people with disabilities were first codified in federal law in Title V of the Rehabilitation Act of 1973 (4). The statute prohibits federal agencies or organizations that receive federal funds from discriminating against qualified disabled individuals and requires that employers make “reasonable accommodations” for those who are “otherwise qualified” for the position and do not pose a direct threat to others.

Building on this foundation, Congress enacted the ADA in 1990 to provide protections to persons with a physical or mental disability and those who are treated as if they have a disability. The ADA comprises five titles, each addressing one potential area of discrimination against qualified individuals. These include employment (Title I), state and local government services (Title II), public accommodations and private services (Title III), telecommunications (Title IV), and miscellaneous services (Title V) (2, 3).

Under Title I of the ADA, any employer with more than 15 employees is prohibited from discriminating against a qualified employee with a disability on the basis of that disability. To establish a claim of discrimination, plaintiffs must prove that they have or are regarded as having a physical or mental disability that substantially limits one or more “major life activities,” are otherwise qualified for the job, and were subject to an adverse employment decision as a result of their disability.

As is often the case with a new law, cases challenging the law’s application were brought not long after it was enacted. In Sutton v. United Airlines, the first of the major cases related to employment discrimination, the plaintiffs, identical twins, were denied employment as airline pilots because their uncorrected sight did not meet the airline’s threshold requirement, even though they had no vision problems when wearing corrective lenses (5). The U.S. Supreme Court held in 1999 that the plaintiffs did not qualify for protection under the ADA because the corrective effect of their lenses meant that they were no longer substantially limited by their disability. The Sutton twins were thus caught in a legal conundrum— without corrective lenses, they were too impaired to fly, but with them, they were no longer covered by the ADA.

In 2002, Toyota v. Williams became the next major employment case to reach the U.S. Supreme Court. The plaintiff was terminated from her job after she became unable to perform some physical tasks because of the combined effects of a fall, carpal tunnel syndrome, and tendinitis (6). She sued her former employer for failing to provide her with reasonable accommodations. The U.S. Supreme Court ruled that she was not a qualified individual under the ADA merely because her disability prevented her from performing certain tasks at work, because work was not a “major life activity.” Under Williams, workers would need to prove that their disability affected important activities outside the workplace.

In 2008, in response to these decisions, Congress passed the ADA Amendment Act. Reacting to Williams, Congress clarified that it did not intend for the term “major life activities” to impose a restrictive standard for qualifying for ADA protections (3). As such, the Act included a nonexhaustive list of qualifying major life activities, including learning, reading, concentrating, thinking, communicating, working, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, and breathing. In response to Sutton, it expanded the group of persons qualifying for ADA protections to include those who would qualify absent mitigating measures or, if in remission, would qualify if the disorder were active. As such, an individual’s impairment is judged by his or her functioning during the condition’s active state, regardless of mitigating measures or remission. The amended ADA also eliminated the requirement for limitations on major life activities in cases where the individual is erroneously regarded as impaired by their employer even when the individual does not suffer from said impairment. The . The updated requirements to establish a prima facie claim of employment discrimination under the ADA are summarized in Box 1.

Employees who believe that they have been discriminated against on the basis of a disability must present their claims initially to the Equal Employment Opportunity Commission (EEOC) (1). The EEOC may determine that no disability discrimination occurred, pursue the claim on the plaintiff’s behalf, or issue a right-to-sue letter that permits the employee to bring the case to federal district court. Either party may appeal the district court decision to a federal court of appeals and ultimately to the U.S. Supreme Court.

The ADA and Substance Use Disorders

Workforce members with untreated substance use disorders generate significant costs for employers, estimated at $6,643 annually per employee, in the form of health care expenses, missed work, and turnover (7). Although the ADA was written to protect persons with both physical and mental disabilities from discrimination, it specifically excludes individuals with some psychiatric conditions, including gender identity disorders, sexual behavior disorders, compulsive gambling, and kleptomania. Similarly, despite the fact that substance use disorders are recognized as mental disorders by DSM-5, people with these disorders are afforded only limited protection under the ADA (2, 3) (Table 1).

For example, the ADA allows employers to hold employees with substance use disorders to the same standards as those without substance use disorders, suggesting that employers may not be required to provide reasonable accommodations for employees with substance use disorders. Furthermore, substance use disorders are treated unequally depending on the substance. Persons “currently engaging in the illegal use of drugs” are excluded from the definition of disability and will not benefit from ADA protections. Thus, in contrast to persons with other relapsing disorders, including alcohol use disorder, people with substance use disorders involving illegal drugs lose ADA eligibility if they relapse—at which point they arguably are most vulnerable to discrimination and in need of protection.

Because the concept of current use is loosely defined in the Act, the period of abstinence necessary for a person to qualify for protection is unclear, especially among persons with a substance use disorder involving illegal drugs. In addition, because drug testing is not considered a medical procedure, employers may require drug tests prior to extending an employment offer and to screen out those who test positive. This contrasts with the statute’s proscription on acquiring or using other medical information prior to a job offer, including information about alcohol use, other psychiatric disorders, and general medical disorders such as diabetes.

Methods

We identified all published federal appellate court opinions involving claims of employment-related discrimination that violated the ADA and in which the claimant cited a substance use disorder as the disabling condition. Only opinions from federal appeals courts were included because they have precedential value within their circuit and are often influential elsewhere. Claims that were settled out of court, resolved by the EEOC, or adjudicated solely in district courts were excluded.

A LexisNexis search using meshwords “Addiction” and “ADA” and covering all federal appellate cases identified 77 cases. We screened these opinions to determine whether they met the inclusion criteria. Twenty-three cases were included from the LexisNexis search, and three additional qualifying cases referenced in those opinions were added. The 26 court opinions (8–35) were reviewed, and information about the details of the case was extracted (Box 2).

Results

Six of the 26 cases reviewed were decided after the passage of the ADA Amendment Act in 2008. Twelve cases involved alcohol, 13 involved drugs, and one involved both alcohol and drugs. Twenty-three plaintiffs were male. The lower court ruled in favor of the employer 25 times; only one case was initially decided in favor of the plaintiff. In four cases, the courts of appeals reversed the lower courts’ rulings, finding for the individual claiming disability discrimination. Fourteen plaintiffs were using drugs or alcohol in the weeks or months preceding the adverse employment decision. The question of whether reasonable accommodations were offered in accordance with the ADA was raised as a central issue in 12 cases. We did not identify any substantial variability among courts of appeals in the cases reviewed. Selected characteristics of the cases are summarized in Table 2. (All 26 cases are summarized in a table in the online supplement.)

The cases highlight three important limitations of ADA employment discrimination litigation for persons with substance use disorders: the dilemma of needing to prove that one’s substance use disorder causes major life activity limitations while simultaneously arguing that one is qualified for the job; expansive interpretations of “current” drug use and the period of sobriety needed to qualify for ADA protections; and restrictions on the extent to which a qualifying disability can serve as a legal excuse for substance use–related misconduct. Below, we review illustrative cases for each limitation, which were dealt with similarly in the various appellate circuits.

Substance Use Disorders and Limitations in Major Life Activities

To present a prima facie case of discrimination under the ADA, plaintiffs must demonstrate that they have a physical or mental impairment that substantially limits one or more major life activities and that they are otherwise qualified for the job, with reasonable accommodations whenever appropriate. In other words, can one simultaneously be qualified for a job and be disabled?

As with other disorders, the courts have assumed that substance use disorders (including alcohol use disorder) are not disabilities per se but may merit protection under the ADA if plaintiffs can demonstrate that the disorder limits one or more major life activities (8–10). The ADA, however, specifies that employees with substance use disorders may be held to the same job performance and behavior as other employees, even if their unsatisfactory performance or behavior is related to alcohol or drug use (42 U.S. Code § 12114 [c]). As such, these provisions create a Catch-22 situation: plaintiffs must demonstrate that because of a substance use disorder, they are limited in their ability to perform major life activities, many of which will be required in the workplace (e.g., interacting with other people), yet by doing so, in essence they are demonstrating their lack of qualifications for the job, thereby invalidating their claim. This contrasts with how the ADA deals with other disabilities: there is no provision in the law that allows employers to hold employees with other impairments to the same job performance and behavior standards as fellow employees if their unsatisfactory performance is related to their disability and, as such, are required to accommodate the needs of these employees incurred by their disability.

One example of the effect of this provision is Evans v. Federal Express Corporation (11). In this case, a plaintiff’s evidence that substance use disorder impaired his functional abilities led the court to find him unqualified for the job. Mr. Evans was allowed to take a medical leave to receive treatment for his cocaine use. During treatment, he realized that he also had alcohol use disorder, although he continued to drink after he returned to work. His request for another medical leave to receive treatment for alcohol use disorder was denied. He was fired after his employer determined that he was unqualified for the job because of his repeated, unexcused absences related to alcohol. Mr. Evans contended that he was fired because of his alcohol use disorder and sued his former employer for wrongful termination in violation of the ADA. The district court issued summary judgment in favor of the employer. On appeal, Mr. Evans argued that alcohol use disorder impaired his ability to work, as evidenced by his absences. He contended that had he been afforded the opportunity to take a medical leave as a reasonable accommodation, he would have become qualified for the job. The court determined that the former employer was not mandated to allow an additional medical leave, noting “It is one thing to say that further treatment made medical sense, and quite another to say that the law required the company to retain Mr. Evans through a succession of efforts.”

This was consistent with the district court’s comment that the defendant was not required to give Mr. Evans “yet another opportunity to seek treatment after indulging Mr. Evans’ errant work habits well beyond anything the law could reasonably expect.” The appellate court, affirming the ruling of the lower court, determined that the defendant’s termination was motivated by his repeated absences, in violation of the company’s attendance policy, and hence he was not qualified for the position.

A second case, Sullivan v. The Neiman Marcus Group (12), illustrates the opposite situation. Mr. Sullivan was fired after his employer claimed he was drinking alcohol on the job. He sued for wrongful termination in violation of the ADA, alleging that his employer failed to reasonably accommodate his disability and illegally discriminated against him. He claimed work as the major life activity that was impaired, albeit without presenting examples of how alcohol use disorder affected his work performance. In fact, to demonstrate that he was qualified for the job, he argued that his performance had been satisfactory and that it had also been satisfactory in previous jobs. The district court issued summary judgment in favor of the employer. On appeal, the U.S. Court of Appeals for the First Circuit noted that proving that Mr. Sullivan’s substance use disorder limited his ability to work would have required demonstrating that he had long-term or permanent restrictions on his abilities to perform a broad range of jobs utilizing his professional skills. Apparently persuaded by Mr. Sullivan’s contentions that his work performance had been satisfactory, the court concluded that there was no evidence to support his claim that alcohol use disorder interfered with his ability to work and, as such, that he did not qualify for ADA protections.

For some occupations, the interaction of the ADA with other federal laws all but rules out the possibility that someone with substance use disorders could be otherwise qualified for a job. In Jarvela v. Crete Carrier (13), a driver of commercial motor vehicles received alcohol treatment after being given a diagnosis of alcohol dependence (DSM-IV TR; corresponding to DSM-5 alcohol use disorder) (36–38). Following treatment, he was cleared to return to work by his treating physician as well as by a physician designated by the employer to perform a fitness-for-duty evaluation. However, Mr. Jarvela was fired on the basis of his diagnosis, notwithstanding his current remission, and he sued for wrongful termination in violation of the ADA. The ADA, however, includes a provision whereby employees in an industry subject to the regulations of the Department of Transportation (DOT) may be required to comply with the standards established by that agency. Under DOT regulations, physical qualification standards include that the person has “no current clinical diagnosis of alcoholism” (39). The district court issued summary judgment in favor of the employer. On appeal, the circuit court established that “alcohol dependence” and “alcoholism” are materially equivalent. The physicians who evaluated him as safe to return to the job testified that alcohol dependence is a chronic medical condition and that an “alcoholic is an alcoholic for life.” As such, the court concluded that Mr. Jarvela had a “current clinical diagnosis of alcoholism” and rejected his contention that being in remission meant that his diagnosis was not current. Based on these findings, the court determined that Mr. Jarvela did not meet the physical qualification standards, and because alcohol use disorder precluded him from driving, an essential function of his job, he was not qualified for the position and thus not eligible for ADA protection.

Challenges in Determining What Constitutes Current Drug Use

Although the ADA excludes from protection individuals who are currently engaging in the illegal use of drugs (42 U.S. Code § 12114 [a]), “safe harbor” provisions exempt those who have been successfully rehabilitated and those participating in supervised rehabilitation programs, assuming they are no longer engaging in such use (42 U.S. Code § 12114 [b]). However, the meaning of “current” has been interpreted differently, with various courts taking into account the duration of abstinence, the potential impact of substance use on work performance, and the nature of the job. Neither the ADA’s legislative history (40) nor the EEOC’s interpretive guidance (41) is helpful in determining how “current” should be interpreted, given that both indicate that a bright-line standard would be inappropriate. The legislative record describes congressional intent for the “current” qualifier: “The provision excluding an individual who engages in the illegal use of drugs from protection . . . is not intended to be limited to persons who use drugs on the day of, or within a matter of days or weeks before, the employment action in question. Rather the provision is intended to apply to a person whose illegal use of drugs occurred recently enough to justify a reasonable belief that a person's drug use is current” (40). The EEOC’s guidance notes that the current qualifier “is intended to apply to the illegal use of drugs that has occurred recently enough to indicate that the individual is actively engaged in such conduct.”

Clearly the legislative history and guidance contain indications that duration of abstinence should be the basis on which current use is determined. Nonetheless, the case law demonstrates that the courts have focused instead on a subjective appraisal of the effects of substance use, the specific nature of the job in question, or the impact of potential drug-related misconduct. For example, in Zenor v. El Paso Healthcare (14), a pharmacist was mandated by his employer to enter a drug treatment program after he exhibited job performance issues related to his cocaine use. While in treatment, Mr. Zenor’s employment was terminated, and he sued for wrongful termination under the ADA. The district court issued a judgment as a matter of law in favor of the defendant, finding that as a current drug user, Mr. Zenor did not qualify for ADA protections. On appeal, the U.S. Court of Appeals for the Fifth Circuit concluded that the severity of the substance use disorder, the relapse rates for the specific substance used, and the level of responsibility required by the job must be taken into consideration to assess whether a plaintiff’s drug use is current. As such, the term “means that the drug use was sufficiently recent to justify the employer's reasonable belief that the drug abuse remained an ongoing problem.” In this case, the defendant had presented “substantial testimony about the extremely high relapse rate of cocaine addiction.” The court affirmed summary judgment in favor of the employer.

The decision in Mauerhan v. Wagner Corporation (15) underscores that participation in a drug treatment program does not automatically render an individual qualified under the ADA’s safe harbor provisions. Mr. Mauerhan was asked to submit to a random drug test and was terminated after informing his employer that he had used cocaine and marijuana. He completed a 30-day treatment program, after which he unsuccessfully reapplied for his job and brought suit under the ADA. The district court ruled that the plaintiff was a current drug user because one month of abstinence from drugs was insufficient to qualify for the ADA and issued summary judgment for the employer. On appeal, the U.S. Court of Appeals for the 10th Circuit commented that mere participation in a drug treatment program “will bring an individual closer to qualifying for the safe harbor” but is not a per se guarantee of protection. Rather, the individual must have abstained from using drugs for a “sufficient period of time that the drug use is no longer an ongoing problem.” The court affirmed summary judgment in favor of the employer on the basis that Mauerhan failed to present sufficient evidence demonstrating that he was stable in his recovery.

Protection From the Consequences of Misconduct

The ADA’s protection of persons with qualifying disabilities from discrimination raises the question of whether it protects them from the consequences of misconduct in which they engage as a consequence of their disabilities. In the case of substance use disorders, this can be a contentious issue.

In Despears v. Milwaukee County (16), an appellate court recognized substance use disorders as a disease to which persons can be genetically or otherwise predisposed. However, it ruled that the consumption of substances is not wholly involuntary. Mr. Despears was demoted to a job that did not require driving after his driver’s license was revoked following his fourth conviction for driving under the influence (DUI) of alcohol. He sued, arguing that alcohol use disorder caused him to drive under the influence, which in turn caused him to lose his license, leading to his demotion and, therefore, that alcohol use disorder was the cause of his demotion, violating the ADA. On appeal from a summary judgment in favor of the employer by the district court, the U.S. Court of Appeals for the Seventh Circuit acknowledged that persons with alcohol use disorder are more likely to lose their licenses because of driving drunk. As such, it agreed that there was a causal relationship between Mr. Despears’ alcohol use disorder and his DUI convictions and, consequently, with his demotion. The court opined, however, that “a cause is not a compulsion (or sole cause); and we think the latter is necessary to form the bridge that Despears seeks to construct between his alcoholism and his demotion.” Indeed, the court suggested that Mr. Despears’ decision to drive under the influence of alcohol was another cause of his demotion and that he could have avoided the demotion by not driving drunk. In this case, the court argued that “the disability contributed to but did not compel the action that resulted in the demotion. To impose liability under the Americans with Disabilities Act or the Rehabilitation Act in such circumstances would indirectly but unmistakably undermine the laws that regulate dangerous behavior.” Reasonable accommodations mandated by the ADA ought not to require overlooking infractions of the law.

Nielsen v. Moroni Feed Company (9) demonstrates that misconduct related to substance use disorder can be held to a different standard than misconduct resulting from other disabilities. Mr. Nielsen, then the president of the company, was referred for evaluation at a drug treatment center because the company’s board of directors believed that he had abused prescription pain medication. They acted after repeated incidents in which he was found, uninvited, in the private homes of company employees. He was evaluated at the center, found not to have a substance use disorder, and discharged. When he returned to work, his employment was terminated because he “had lost the trust of the Board.” He sued for wrongful termination in violation of the ADA, claiming that he was perceived as having substance use disorder and that the board believed he was stealing medications from the residences of employees. The district court issued summary judgment in favor of the employer. On appeal, the U.S. Court of Appeals for the 10th Circuit noted that the ADA allows individuals with substance use disorders to be held to the same standards of performance and behavior as others. As a result, substance-related misconduct is not afforded ADA protections, even among persons found disabled by their disorders under the Act. The court of appeals affirmed the ruling of the lower court that Mr. Nielsen was terminated because of his home-entering activity and not because of a disability, real or perceived.

Discussion

This review of published federal appellate cases illustrates judicial interpretations of ADA protections for persons with substance use disorders. Potential plaintiffs with substance use disorders in employment discrimination litigation may find their cases complicated by the ADA’s provision allowing employers to hold workers with substance use disorders to the same job performance and behavior standards as other employees, even if their unsatisfactory performance or behavior is related to alcohol or drug use. Indeed, this provision has been interpreted by the federal courts of appeals as requiring potential plaintiffs to demonstrate work performance equivalent to that of their colleagues who do not have substance use disorders. Doing so often means showing that their substance use disorders are not causing limitations in major life activities, effectively undermining their status as persons with disabilities. Alternatively, should plaintiffs seek to establish that a substance use disorder causes significant functional impairment, they would be demonstrating, in essence, that they are unqualified for the job.

This Catch-22 is further complicated by the absence of a requirement for reasonable accommodations for people with substance use disorders, even though reasonable accommodations are part of the core package of ADA protections for people with other disabilities (42). This asymmetry in the treatment of substance-related conditions suggests that the ADA’s authors believed that the willful engagement in substance use among persons with substance use disorders, despite its negative consequences, reflects a moral failure, a belief that is consistent with longstanding moralistic views of substance use. In this context, the law echoes commonly held cultural and societal views. A person with diabetes who indulges in unhealthy eating habits does not become disqualified from ADA protections—but someone with a substance use disorder who gives in to cravings for a drug is without a remedy against an employer’s adverse actions. As one legal scholar framed it, the only persons with substance use disorders covered under the ADA are those whose conditions do not affect their work performance (43), which seems contrary to the stated intent of the Act. Moreover, as Jarvela v. Crete Carrier (13) demonstrates, the ADA provision allowing employers subject to the regulations of the Department of Defense, the Nuclear Regulatory Commission, or the DOT to require their employees to comply with these agencies’ standards may result in excluding from ADA coverage even persons who otherwise would be qualified.

A second problematic aspect of the ADA for workers with substance use disorders is the exclusion of current drug users from eligibility. Analysis of the cases reviewed in this article suggests that the courts are mostly consistent in defining current use as a marker of severity. Rather than define current use as a set time period, the courts have looked at past history of relapse, the substance or substances being used, and the consequences of a potential relapse in the context of a specific work role. Moreover, persons with substance use disorders are likely to need legal protections precisely when they are most vulnerable to adverse employment actions, typically during relapses. Denying protections during relapse is the approximate equivalent of denying persons with major depressive disorder legal protections against workplace discrimination specifically when they are depressed. Legal scholars have interpreted this restriction as creating a subclass of disabled individuals against whom discrimination is condoned (43). These provisions allow employers broad discretion in singling out employees with substance use disorders for adverse action (44). As such, employees with substance use disorders are held responsible for the social and legal circumstances associated with their illnesses, circumstances that may be beyond their control (45).

Finally, this review of case law highlights the limits of the ADA as it relates to legal responsibility for substance-related misconduct. In such situations, the courts have consistently ruled that even when a person with substance use disorders is protected by the ADA, their actions while intoxicated are not. As such, engaging in behaviors that violate company policy may justify adverse employment actions against a person with substance use disorders. In the same way that a person who drives while intoxicated may be charged with criminal misconduct, a company may opt to take adverse action against employees who violate company policies on substance use. Such behavior may be attributed to the ingestion of drugs or alcohol directly (e.g., being intoxicated during work hours) or indirectly (e.g., stealing company property to fund drug use). Protections against discrimination on the basis of a diagnosis of substance use disorders evaporate when the actual use of substances during or proximate to work hours is involved, a substantial limitation on the value of the ADA for persons with substance use disorders.

Conclusions

The ADA affords limited protections for individuals with substance use disorders. These protections are restricted by what appears to be the statute’s moralizing perspective on drug and alcohol use and those who use these substances. In the cases we reviewed, judicial application of the ADA often leaves workers with little to no protection. If the ADA is to fulfill its promise of protecting against discrimination in the workplace on the basis of disability, the statute itself will need to be modified to grant protections for substance use disorders equivalent to those available for other disorders.