The Americans with Disabilities Act generally prohibits discrimination against persons with disabilities or records of past disabilities. For example, an employer could not refuse to hire an applicant who has been through drug addiction treatment and rehabilitation because of a concern over relapse. Earlier this month, however, the Sixth Circuit Court of Appeals concluded in an unpublished opinion, that an employer may enforce a general exclusion against persons with restricted professional licenses, even if those restrictions resulted from prior drug addiction.

In Lopreato v. Select Specialty Hosp.-N.Ky., the plaintiffs were two nurses fired by their previous employers and reported to the state licensing commission based on theft of narcotics for personal use. The two successfully completed drug treatment and were subsequently hired by a hospital. They both had nursing licenses that contained restrictions against unsupervised medication dispensing. The defendant bought the hospital, but refused to hire the plaintiffs. It cited a policy against employment of any applicant with restrictions on their professional licenses, regardless of the reason for the restriction. The plaintiffs sued, alleging disparate treatment under the ADA.

The Sixth Circuit affirmed dismissal of the claim. The court cited the U.S. Supreme Court’s 2003 Hernandez decision, which stated that a consistently applied, neutral employment policy serves as a legitimate non-discriminatory business reason for adverse decisions. In this case, the policy was intended to prevent recidivism in general, and not to exclude persons with histories of drug abuse. The Sixth Circuit noted that this reasoning only applies to disparate treatment claims. The plaintiffs never alleged disparate impact discrimination, which would allow a challenge to a neutral policy based on disproportionate exclusion of members of a protected classification.

Disparate impact cases are more difficult to prove due to the statistical burden of proof placed on the plaintiff. Absent allegations of disparate impact, employers are entitled to enforce facially neutral employment policies even if such enforcement negatively impacts members of a class protected under antidiscrimination laws.