A substance abuse problem can change everything in a person’s life, but many kinds of help exist. While there is psychological and social rehabilitation for recovering addicts, there are also legal channels. People in recovery have rights, which entitle them to the same privileges and freedoms as anyone else. How to clear up legal problems caused by addiction is one of the most important and necessary processes in recovery, and it can go a long way in ensuring that post-recovery life is enjoyed to its fullest.
Stigma against Drug Addicts
Any addict knows that the descent into substance abuse, and the journey back into health, is complicated by the stigma that lingers over people who have addiction and behavioral and/or mental health disorders. A 2014 study conducted by Johns Hopkins’ Bloomberg School of Public Health found that the general public feels far more negatively toward people with drug addiction than people with mental illnesses. There still exists the belief that substance abuse is primarily a choice, and that the people who indulge in substance abuse are of weak character. Commenting on a report from the United Kingdom’s drug policy commission, The Guardian summed it up in even more blunt terms: “Many people don’t like drug users.” This inherent mistrust closes many doors that recovering addicts have to open in their journey toward social reintegration and future employment.
When the topic of past substance abuse arises in the context of a job interview, a bank loan, a housing application, or some other form of service, the negative perception can often influence decisions and attitudes toward an individual. As recently as 2016, a report published by the U.S. Department of Health and Human Services found that discrimination still exists against people with mental health disabilities and drug addiction, which may cost them professional and academic opportunities, and threaten their housing stability.
Illegal to Discriminate
However, the law is on the side of recovering addicts; in the words of HBO’s Addiction project, “it is illegal to discriminate against people in recovery […] who are seeking jobs, housing, education and services.” At every level of government, social programs, schools, landlords, and employers are not allowed to refuse their services to people on the basis of past drug or alcohol abuse.
There are two federal laws that regulate a history of substance abuse as a disability: the 1973 Rehabilitation Act and the 1990 Americans with Disabilities Act. Both laws forbid employers from refusing to give a job to a qualified applicant with a disability, and both laws include substance abuse as a disability. Substance abuse under the ADA does mandate that people who have been diagnosed with a substance use disorder are entitled to the legal protections that the law grants. However, the wording here is key: A job applicant must have a medical certification (a doctor’s note indicating a health condition that requires ongoing treatment over a significant period of time, which may require having to miss work) and proof of completed treatment for that addiction in order to be legally covered by the ADA and the Rehabilitation Act. Past casual recreational drug use would not fit this criteria (as it would not be considered a disability), and current recreational drug use could similarly be used as justification for not extending a job offer. Similarly, if an employer can legally prove that the past substance abuse and required time off for aftercare treatment would interfere with normal job functions to the point of disruption, then there could be a potential case made for denying an offer of employment based on the past addiction.
The ADA and Rehabilitation Act apply to most private employers and organizations that receive financial assistance from the federal government, so they apply to most of the workforce in the United States. Nonetheless, the stigma that many addicted people feel and experience often leads them to assume that they have no rights, that their history of substance abuse automatically precludes them from consideration, or that employers have the legal basis to deny them employment solely because of that.
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Employment Discrimination and Past Addiction
Understanding legal rights is complicated in any context, and addiction-related problems are no exception. The government’s Equal Employment Opportunity Commission offers a number of resources for people with past drug abuse, such as whether a potential employer is allowed to ask an applicant about previous addiction; the answer to a question like that would be “yes,” but only if the potential employer is not trying to get information on the legal disability (i.e., the addiction) itself. Since the ADA and Rehabilitation Act do not cover current recreational drug use, there are lines of questioning that an employer can and cannot ask. Inquiries about using illegal drugs are not the same as inquiries about being addicted to illegal drugs. Because the distinction between the two is very thin, and both employer and interviewer can be on the wrong side of the line, getting information from the EEOC beforehand is vital.
Many law firms offer employment discrimination services as part of their practices. A person who is looking to re-enter the job market, or feels that they were unfairly denied a job offer because of past substance abuse (and that continuing aftercare support would not be a detriment to carrying out the stated job functions) would be entitled to a consultation to discuss the merits of a respective case.
People in recovery have legal rights even when they have the job they applied for; similarly, the laws that protect those rights may not apply in certain cases. A person being drunk on the job is an obvious example; in an event like this, the employee would not be protected under the Americans with Disabilities Act. However, the employer cannot use the person’s alcohol use disorder as the basis of taking action against the employee, in the form of punishing that particular employee more severely than an employee who does not have alcohol use disorder, but shows up to work drunk anyway. In other words, an employer would have to treat drunk employees equally, regardless of whether one of them has a substance abuse problem and the other doesn’t.
If there is a general policy applicable to all employees, and one that was in place before the hiring of the person with the past alcohol problem, then the employer is within their rights to take action, which may include termination.
The Brandon Coats Case Study
Even though certain states have legalized recreational marijuana, the federal government still considers cannabis-based products to be illegal at all levels; thus, smoking or using pot is not protected under the ADA and the Rehabilitation Act. This extends to marijuana used for medicinal purposes. Even though such use could be legal under the statutes of certain states, all marijuana consumption is illegal under federal law, and a person who uses marijuana recreationally, or for legitimate medical purposes, could not invoke federal disability protections in an employment discrimination case.
However, past addiction to marijuana is considered a disability under the ADA and the Rehabilitation Act, and cannot be used to deny an applicant a job offer. The legal complexity was illustrated in an example from Colorado, a state where marijuana is legal for both recreational and medical use. Brandon Coats, a customer service representative for the Dish Network, was severely injured in a car accident and used legally prescribed marijuana to help him with his leg spasms. He was on the Colorado Department of Public Health & Environment’s medical marijuana registry and only used marijuana when off duty. However, a random drug test at his place of work showed evidence of marijuana consumption, for which he was fired.
Coats claimed that his use of marijuana was legal under the law of the state where he was fired. When his claim was rejected, he took his case to the state Supreme Court, which looked at the question of whether the use of medical marijuana (which is allowed by the Medical Marijuana Amendment in Colorado) was permitted under the state’s Lawful Off-Duty Activities Statute. The justices said that “off-duty activities” covered activities that were lawful under both state and federal laws, and federal law does not consider any kind of marijuana use to be lawful. Justice Allison H. Eid, Associate Justice of the Colorado Supreme Court, wrote in the 6-0 opinion that “employees who engage in an activity, such as medical marijuana use, that is permitted by state law but unlawful under federal law are not protected by the [Lawful Off-Duty Activities Statute].” In doing so, the court found that the employer was legally justified in firing Coats for his off-duty (and medically necessary) use of marijuana.
Lawful Off-Duty Activities
The case made national news, with the Brookings Institution pointing out that both sides had a legitimate argument. The institution pointed to “an increasingly difficult element of drug policy (and law)” in the country because of the patchwork of statutes surrounding recreational, medicinal, and outright illegal marijuana use. There is a “serious disconnect in the law,” resulting in “inconsistencies between state and federal marijuana laws [that] extend to issues of employment, housing, banking, property rights,” and many other areas.
With more states considering regulating marijuana, and the Department of Justice promising not to relent on the topic, the future of “lawful off-duty activities” might become even murkier. For this reason, consulting law firms that offer employment discrimination services, or using the Equal Employment Opportunity Commission, is a good way for a person to go about clearing up legal problems related to past substance abuse or current use of legal drugs.
Housing Rights for Former Addicts
The legal rights and societal problems that addicts have extends to housing as well. Reviewing the report issued by the United Kingdom’s drug policy commission, the Daily Mail noted that 43 percent of the people in Britain don’t want a former addict living next door to them. The bias is the result of “outdated perceptions of mental illness,” to the point where people who have overcome their addictions are still referred to as “junkies.” Formerly addicted people are subject to “widespread prejudice, discrimination and discouragement,” which can directly undermine the desire for recovery. While the general public agree that recovering drug users should get help and support, there still lingers the impression that those drug users are also untrustworthy. The fear spills over into stigma and discrimination when people in recovery try to access services.
But, as with employment, the law is on the side of ex-addicts. The Fair Housing Act treats disability in the same way that the ADA and Rehabilitation Act do. According to the U.S. Department of Housing and Urban Development, “any person who has a […] mental impairment that substantially limits one or more major life activities,” or who has “a record of such impairment” and simply “is regarded as having such an impairment.” This covers past behavioral and substance abuse, as much as it does other forms of mental illness.
As with employment, while the law covers past addiction, it does not cover present drug use. The Fair Housing Act does not prohibit landlords from refusing housing access to tenants who currently use illegal drugs or tenants who have been convicted of illegally manufacturing or distributing drugs, specifically exempting those categories from its protection. Similarly, the law clarifies discrimination against “mental or psychological” disorders is illegal, but this does not extend to “addiction caused by current illegal use” of a drug.
A Landlord’s Right to Refuse Housing
Again, however, people in recovery have rights when it comes to fair housing. A landlord who only asks certain applicants about drug history is breaking the law. A landlord who asks a potential tenant about current drug use, addiction to drugs, or criminal history as it relates to illegally making and selling drugs only on the basis of a suspicion that the potential tenant may be addicted is violating the FHA’s ban on discrimination based on disability. Either the landlord asks these questions of every single applicant, regardless of cause for suspicion, or the landlord does not ask these questions at all (in the words of Connecticut’s Fair Housing Center, a landlord cannot “ask for more information than would be asked of any other potential tenant”). If a person feels they have been targeted for this line of questioning, and this led to an application for housing being denied, the person might have a case for being discriminated against because of past drug abuse.
A landlord does have the right to refuse housing if they feel the applicant is unable to meet the tenancy requirements, such as paying rent; similarly, housing can be legally denied if the landlord feels the applicant’s tenancy would pose a threat to the wellbeing of the other tenants or would cause physical damage to the property. However, the denial has to be based on tangible, documented information that the client’s tenancy would cause financial or safety problems; if no such documentation can be provided, and if the denial is instead based on fear or suspicion that past drug use would cause such problems, the landlord would be in violation of the Fair Housing Act.
Housing and Urban Development Action
In the event that a person feels that they were discriminated against by a landlord because of their past history of substance abuse, law firms that offer services in housing discrimination can take up the case. Additionally, the Fair Housing Act allows private citizens to file complaints through the Department of Housing and Urban Development. The person would have to explain to HUD how they feel the landlord acted in a discriminatory manner because of the past substance abuse, and if the HUD intake specialist feels that this behavior meets the criteria for a FHA violation, the case can proceed.
If HUD agrees that the landlord’s denial of housing access was based on the suspicion of past drug use, the agency will issue a “determination of reasonable cause,” wherein it formally charges the landlord with the appropriate violation of the Fair Housing Act. In the event that HUD feels otherwise (i.e., there are no reasonable grounds to believe that the denial of housing was on the basis of past drug use), the agency will instead issue a determination of “no reasonable cause” and close the case. The person has the right to file an appeal.
If the landlord contests the determination of reasonable cause, the case goes before an administrative law judge. The person will be represented by a HUD attorney. The FHA authorizes HUD to award civil penalties of up to $16,000 per violation for first-time landlords found guilty of FHA violations, in addition to actual damages, attorney fees, etc. (fines for repeated violations may be as high as $65,000). The person also has the option of taking the discrimination case to the Department of Justice. Since the issue would then be contested in a federal court, the person could stand to be awarded actual and punitive damages, which could total well in excess of the $16,000 that would come from a civil decision.
Preparing Clients for Legal Problems
Much of the rehabilitation that takes place in a treatment center is based on preparing clients for what to expect in the outside world; to that effect, providing basic legal help falls under that purview. This could take the form of classes or one-on-one sessions with a legal expert in a residential and inpatient setting, or referrals to a community-based agency for outpatient clients.
As part of their range of services, most facilities will retain the services of a licensed lawyer or a legal aid, a person who has extensive knowledge about the discrimination that recovering addicts face and the legal protections (in terms of housing or employment) that exist for those in recovery. These services can include simply explaining complicated legal issues to clients or providing legal representation for clients if there is a concern that rights have been violated.
Other addiction-related legal problems that may require professional help include:
- Driving under the influence charges. Different states have different laws regarding DUI penalties, but none of them are good. A single DUI conviction can lead to big fines and long driver’s license suspensions. Some judges may even impose mandatory jail time for a first-time offense. A lawyer who specializes in legal issues relating to addiction could help to minimize the legal consequences or even get the DUI struck from record.
- Divorce proceedings: The end of a marriage is one of the more tragic consequences of addiction, and to ensure that all parties are represented fairly and equally, legal help is very necessary. A law firm that understands the complexities of substance abuse, and the nuance of divorce litigation (which is an important component of the practice of family law), can help a client through the proceedings of custody, division of assets, and alimony determinations while still keeping them on track for overall recovery.
- Loss of child custody: As a rule, courts do not want to get involved in custody battles, preferring that both parents come to an arrangement themselves. Unfortunately, this does not always happens, and a judge will have to make a ruling that is simultaneously fair to both parents and protects the children’s interests. A past history of substance abuse will obviously not help; but having the services of a lawyer who understands addiction issues, and can argue those issues in court, will go a long way in ensuring that the client in recovery is able to make a good case for their custody rights.
- Loss of professional license: A working professional (a doctor, lawyer, accountant, law enforcement officer, etc.) who breaks the law because of drugs or alcohol could see their license revoked. A lawyer who has experience defending against drug and alcohol charges knows best how to negotiate a settlement that might save the client’s license.
These are just some of the legal challenges facing a person in recovery, but there is no reason that the individual should not get the appropriate representation to fight for their rights. Legal firms recognize that, and the law itself recognizes that. Attorneys who practice discrimination law, and who know about the challenges that those in recovery people face, are the best judges of what potential consequences may arise from a client’s former days as an addict, so it is very important that people in recovery make these inquiries as soon as they are able.
Clearing Legal Problems Caused by Addiction
There is no form of discrimination against people in recovery that is legal. If a sober person feels that their past drug use is the reason for being denied employment, housing, school, a loan, or any kind of public service, there is a case that can be made through the relevant government department or a law firm that specializes in discrimination law. This means that, regardless of the addiction or its circumstances, and as long as the addiction is in the past, every recovering addict is eligible to the same public and civil rights as a person who has never abused drugs. The expansion of a “disability” (as a legal term) means that such iconic laws as the Americans with Disabilities Act and the Fair Housing Act cover people in recovery, as much as they do anybody suffering from a physical disability that impedes their day-to-day life.
There is nothing about navigating legal landmines that is pleasant or enjoyable, but it a process that is nonetheless very important for a person in recovery to understand. There still remains discrimination (whether blatant or subtle) against former addicts, and the damage done by an old addiction (even one years past) can create numerous problems in the present. People in recovery may not know that they have the right to housing, jobs, and education, and if they are mistreated by suspicious and fearful employers or landlords, they may be unaware that they could (and should) seek legal redress.
To that effect, a number of legal services that specifically assist ex-addicts exist, such as the Legal Action Center, a public interest law firm that offers counseling and representation in cases of suspected discrimination. They pledge to “help people rebuild their lives with dignity,” through offering free legal services to people with substance use disorders and “trainings on a variety of legal issues critical to people with addiction,” among many other forms of assistance.
Finding meaningful work gives people a sense of purpose and foundation, increasing self-worth, adding skills, and making progress toward personal goals, says Mental Health America. All those points are important for everyone, and even more so for a recovering addict. The same applies to living in a good home; having a safe, secure home that offers contentment and pleasure helps everyone. For people who are managing specific mental health vulnerabilities, a supportive housing environment allows them to grow and thrive, according to the Center on Budget and Policy Priorities. A past history of substance abuse does not have to disqualify a person from finding the right job or finding the right home.