Pubdate: Thu, 23 Nov 2000 Source: Australian Financial Review (Australia) Copyright: 2000 Australian Financial Review Contact: GPO Box 506, Sydney 2001 Fax: (61 2) 9282 3137 Website: http://www.afr.com.au/ Author: Stephen Long COURT RULES DRUG ADDICTION IS A DISABILITY The Federal Court has found for the first time that addiction or drug dependency is a legally recognised disability in a ruling that will have major implications for employers and service providers. The court ruling means companies that refuse to hire potential employees or sack people because they are drug-dependent could breach the federal Disability Discrimination Act and be liable for damages. Denying a person membership of a club or sporting organisation or refusing to rent him or her a property because the person is drug-dependent could also be unlawful. Lawyers say the judgement, handed down last week, is the first authoritative finding that people with addictions are protected by laws prohibiting discrimination on the grounds of disability. They say it has profound implications for employment law and the provision of goods and services. "What this means is that if you want to discriminate against someone who is addicted, you can't do so simply on the basis that they are an addict," said Mr Dan Williams, a partner in Minter Ellison's Brisbane employment and dIscrimination law practice. "If at the recruitment stage, if all you know is that the person is an addict and don't have evidence that they stagger around or abuse people, you cannot deny them a job." It also throws into question the legality of screening practices used by employers. These include drug and alcohol policies that test for the presence of a substance, rather than impairment, and pre-employment questionnaires or psychological tests that ask people if they have ever been addicted to drugs or belonged to "recovery" fellowships such as Alcoholics Anonymous or Narcotics Anonymous. The decision by Justice Catherine Brauson overturned a finding by a Human Rights and Equal Opportunity Commissioner that an ex-services club had not breached the Disability Discrimination Act when it expelled a member who was a former heroin addict on a methadone treatment program. Justice Branson rejected the commissioner's "tentative" view that the man's drug dependency could not constitute a disability under the Act. She said it was wrong for the commissioner to find it was "reasonable" for the club to expel the man on the basis of his behaviour, in the best interests of all members of the club. Instead, the commissioner should have compared the man's treatment with that of other club members in similar circumstances not suffering from an addiction to see whether he had been treated less favourably. "It was sufficient, for the purposes of the applicant's complaint, that the club had discriminated against him on the grounds that he had previously been addicted to heroin, might in the future be addicted to heroin or another opiate, or because it imputed a disability to him," Justice Branson said. - --- MAP posted-by: Don Beck