Millions of American know addiction – but also know that recovery is possible, and brings untold benefits to individuals’ health and lives. For many people in recovery, dealing with discrimination may also be a part of life. But this, too, can be overcome.
FIVE THINGS YOU NEED TO KNOW ABOUT DISCRIMINATION AGAINST PEOPLE IN RECOVERY FROM ADDICTION
These laws give people in recovery from addiction the same rights as people who have suffered from other illnesses or “disabilities” (the legal term). They can only be denied jobs, housing, admission to school, or other services or activities for which they are qualified if their addiction history would prevent them from successfully participating.
These legal protections extend to people who are in treatment for drug or alcohol problems, or have been in the past – including methadone and other medication-assisted treatment. But the federal laws do not provide any protection from discrimination to people who currently engage in the illegal use of drugs, except when it comes to denying these individuals health services if they are otherwise entitled to those services.
These laws give people in recovery the right to sue anyone who breaks these laws and discriminates against them.
Unfortunately, the federal laws described above that protect people from discrimination because they have an addiction history do not forbid discrimination against someone because of a past criminal record.
No federal law specifically prohibits employers or others from discriminating against people based on their past arrests or convictions. So, for example, while it is illegal for an employer, before making a job offer, to ask questions about whether a job applicant has or has had a disability or about the nature or severity of an applicant’s disability, or to discriminate on the basis of a disability, employers can ask about conviction and in some states arrest histories, and in many states employers can refuse to hire a person because of that arrest or conviction history.
There are also still some federal laws that specifically target people with drug-related criminal records and bar or limit their eligibility for some public benefits, education aid and housing.
Some states do have laws that prohibit public and/or private employers and occupational licensing agencies from discrimination. Some states make it illegal for employers and licensing agencies to ask about arrests that did not lead to convictions. Some states also make it illegal for employers to have blanket policies against hiring people with criminal histories. These states require employers to individually consider each person who applies for a job and make a decision about hiring that person based on his or her qualifications and other factors. To find out if your state has a law that prohibits discrimination, call your state’s human rights agency.
If a person goes into treatment for a drug or alcohol problem, federal (as well as many state) laws strictly protect the confidentiality of that information. A treatment provider in most cases cannot tell entities such as employers, schools or insurers anything about a person’s treatment, or even the fact that he or she is in treatment, without the person’s consent.
The federal discrimination laws noted above also require that employers maintain the confidentiality of all information they obtain about job applicants’ and employees’ health conditions, including treatment for drug or alcohol problems – and prohibit employers from disclosing or using that information to discriminate illegally against employees in recovery.
What can you do if you believe you have been discriminated against?
You don’t have to live with discrimination – you can act to stop or remedy it! You can consider several options for taking action:
- Informal resolution. You many want to try to talk to the person who you believe has discriminated against you, and ask him or her why she or he took the action that you believe is discriminatory. This may accomplish two things. Getting the person to admit that the action was taken because of your drug or alcohol history will help you prove a claim if you decide to resort to formal legal proceedings. It may also give you an opportunity to sit down and discuss the matter, stress your qualifications and determine if the matter can be resolved informally.
- Administrative appeals (sometimes). If you believe a government agency (such as a public employer or occupational licensing agency, public housing agency, or government benefits program) discriminated against you, you may have the right to challenge the action in an administrative appeal to that agency or another one designated to hear such appeals. Check to see if there is a deadline for appealing this way.
- Formal legal challenges – charging a violation of the federal antidiscrimination laws that protect people disability-based discrimination, such as the Americans with Disabilities Act.
If you believe you have been or are being discriminated against because of your history of addiction in violation of these federal laws, you can challenge the violation of your rights in two ways: You may be able to get those charged with the discrimination to correct their actions and policies, compensate you or give you other relief.
- Discrimination complaint – with federal (or state) agency. You may file a complaint with the Office of Civil Rights of the federal agency(s) with power to investigate and remedy violations of the disability discrimination laws. In many states, these complaints may be filed with the state human rights agency. You do not need a lawyer to do this, and it can be faster and easier than a lawsuit and get you the same remedies.
Do not sleep on your rights! The deadline for filing these administrative complaints can be as soon as 180 days after the discriminatory act – or even sooner, with federal employers, so always check.
- Discrimination lawsuit – in federal or state court. In most (but not all) cases, you may also file a lawsuit in federal or state court, in addition to or instead of filing an administrative complaint. Deadlines vary from one to three years.
If you are charging an employer with discriminating against you in violation of the federal American with Disabilities Act, take note: You first must file your employment discrimination complaint with the U.S. Equal Opportunity Employment Commission (EEOC). You may not file a lawsuit first or instead of filing with the EEOC.
By Paul Samuels J.D.