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   Employment discrimination against alcoholics and drug addicts has long
been an acknowledged problem. Prior to the passage of the Rehabilitation Act
of 1973 (the Act),' and the subsequent promulgation of the Department of
Health, Education and Welfare's (HEW) regulations under the Act, alcohol-
ics or addicts had to bring claims of employment discrimination under Title
VII of the Civil Rights Act of 1964,2 under section 19833 or under the equal
protection clause of the fourteenth amendment. 4 There have been a few
attempts to vindicate addicts' rights based upon these provisions, 5 but
stretching them to fit the special circumstances of addicts has proven
difficult.6 Furthermore, the Supreme Court recently declared that Title VII,

   1.Pub. L. No 93-112, 87 Stat. 355 (codified at 29 U.S.C. §§ 701-794 (1976), as amended by the
Rehabihtation and Comprehensive Services, and Developmental Disabilities Amendments of 1978, Pub. L.
No. 95-602, 92 Stat. 2955).
   2. 42 U.S.C. § 2000e (1976). Title VII states that it is an unlawful practice for an employer to
discriminate against an individual based upon his "race, color, religion, sex or national origin." Id. §
2000e-2(a)(l). (2) It does not prohibit employment discrimination against rehabilitated drug addicts.
   3 Civil Rights Act of 1871, 42 U.S.C. § 1983 (1976).
   4. U.S. CONST. amend. XIV.
   5. Beazer v.New York City Transit Auth., 558 F.2d 97 (2d Cir. 1977), revsd, 440 U.S. 568 (1979),
involved a class action brought under 42 U.S.C. § 1983 (1976) and Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e (1976). The court of appeals affirmed the district court's holding that the New York City
Transit Authonty's blanket exclusion from employment of all persons participating in or having
successfully completed methadone maintenance programs violated the equal protection clause of the
fourteenth amendment. The district court had granted injunctive relief. Beazer v. New York City Transit
Auth., 399 F. Supp. 1032 (S.D.N.Y. 1975). The injunction, however, did not prevent the exclusion of
methadone maintenance users from specific "sensitive categories" of jobs involving safety considerations,
and the conditioning of eligibility on at least one year's satisfactory performance in a methadone
maintenance program. Id. at 1058. The district court based its finding of a fourteenth amendment violation
on the lack of a rational relationship between the employment policy and the Transit Authority's business
needs, rather than on a finding of discriminatory purpose. Id. at 1057-58. See note 7 infra. See also Spruils
v New York City Transit Auth., 61 A.D.2d 1014, 402 N.Y.S.2d 623 (1978) "transit authority's blanket
excluston from employment of persons using methadone is unconstitutional, arbitrary, and capricious"
without "rational relation to the demands of the jobs." 61 A.D.2d at 1015, 402 N.Y.S.2d at 623). Under the
Federal Rules of Civil Procedure, FED. R. Civ. P. 60(c), the Spruils case may be reopened because of the
Supreme Court's reversal of the Beazer decision upon which Spruils relied.
   6. See Comment, Methadone Maintenance Program Participation as a Hiring Criterion, 5 Cot.usi.
                       THE AMERICAN UNIVERSITY LAW REVIEW                                       [Vol. 28:507

section 1983, and the fourteenth amendment do not afford addicts protection
against employment discrimination. 7 In light of the Supreme Court's rejection
of these sources of redress, it is imperative that the Rehabilitation Act of 1973
provide an effective means of protecting addicts' employment rights.
   The Rehabilitation Act is the first federal legislation to provide addicts
with specific statutory protection from employment discrimination. 8 Section
504 of the Act proscribes discrimination against the handicapped by any
program or activity receiving federal financial assistance. 9 By regulation,
HEW has interpreted "handicapped" to encompass alcoholics and drug
addicts. 10 That inclusion has provoked tremendous controversy.
   This comment, after examining the inclusion of addicts within the
definition of handicapped, focuses on the scope of the rights created by
HEW's decision, and analyzes the impact of the 1978 amendment to the
Rehabilitation Act," in which Congress specifically addressed the inclusion
of addicts. This analysis considers the Supreme Court's first interpretation of
section 504,12 and the potential effect of that interpretation on employment
discrimination protection for addicts. Finally, by exploring the regulations

HUMAN RIGHTS L. REV. 421 (1973) (legal theories used to attack exclusionary employment policies
against the ex-addict prior to the Rehabilitation Act of 1973). For Title VII, Civil Rights Act of 1964, 42
U.S.C. § 2000e (1976), to apply to drug addicts or alcoholics, it must be shown that the employment
practice has a discriminatory impact on one of Title VII's categories of protected persons. See note 2 supra;
see generally Griggs v. Duke Power Co., 401 U.S. 424 (1971). In assessing an equal protection argument, a
court will apply a rational relationship test, rather than strict scrutiny, unless a suspect class is affected. See
note 5 supra.
    7. New York City Transit Auth. v. Beazer, 440 U.S. 568 (1979). The Supreme Court first chastised the
district court and court of appeals for addressing the equal protection argument, a constitutional question,
before the Title VII, Civil Rights Act of 1964, 42 U.S.C. § 2000e (1976), argument, a statutory question.
440 U.S. at 582. The court dismissed the Title VII claim for lack of a statistical showing that the Transit
Authority's employment policy had a disparate impact on black and Hispanic minorities. Id. at 586-87.
Justice White dissented, however, finding that the statistics sufficiently supported the inference of disparate
impact to establish a prima facie case, thus shifting the burden of proof to the employer. Id. at 598-602.
See, e.g., Griggs v. Duke Power Co., 401 U.S. 424, 429 (1971) (employment policy can create disparate
impact on minorities).
   The Beazer Court concluded that its treatment of the Title VII claim also disposed of a § 1981, Civil
Rights Act of 1870, Rev. Stat. § 1977, 42 U.S.C. § 1981 (1976), claim which did not provide any greater
substantive protection than Title VII. New York City Transit Auth. v. Beazer, 440 U.S. at 582-84, 583
n.24. It also found that the Transit Authority's exclusion of all users of narcotics, including methadone
users, "places a meaningful restriction on all of its employees and job applicants.., and satisfies the equal
protection principle ....    " Id. at 588. This was true even if the rule might have been broader than
necessary, or unwise as a personnel policy. Id. at 592.
   8. The term "addict" will be used in this article to include both alcoholics and drug addicts, unless
otherwise indicated.
   9. 29 U.S.C.A. § 794 (West Supp. 1979) provides: "No otherwise qualified handicapped individual in
the United States, as defined in section 706(7) of this title, shall, solely by reason of his handicap, be
excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance ....
    10. 45 C.F.R. pt. 84 app. A, at 404 (1978).
    11. Rehabilitation and Comprehensive Services, and Developmental Disabilities Amendments of 1978,
Pub. L. No. 95-602, 92 Stat. 2955.
    12. Southeastern Community College v. Davis, 99 S. Ct. 2361 (1979).
 1979]                                       SECTION       504

and their impact on addicts, this comment demonstrates that further
administrative action is necessary to effect an appropriate balance between
the right of addicts to be free from employment discrimination and the right
of employers and the public to be free from potential risks.

                                  I. SOURCES OF PROTECTION

                           A. THE REHABILITATION ACT OF 1973

   Over fifty years of federal rehabilitation legislation preceded the enactment
of the Rehabilitation Act of 1973.13 The primary thrust of the earlier
legislation was to provide federal rehabilitation services and funding for
grants to the states to promote rehabilitation of handicapped persons. The
ultimate goal was to enable such individuals to become self-sufficient and
gainfully employed. 14 The success of this legislation has been documented.15
The 1973 Act, however, expanded the legislative goal; for the first time, the
statute prohibited recipients of federal financial assistance from discriminat-
ing against the handicapped.6
   Under the original Act, the definition of a "handicapped person" included
two requirements. First, the individual had to have a physical or mental
disability which constituted or resulted in a substantial handicap to employ-
ment.1 7 Second, there had to be a reasonable expectation that the individual's
employability would be improved as a consequence of the rehabilitative
services provided by the Act. 18 This definition was applicable both to the
sections of the Act dealing with grants and to those dealing with discrimina-

    13. See H R. REP. No. 244, 93d Cong., I st Sess. 3-5 (1973) (historical background) [hereinafter cited as
H R. REP.No. 244]; see also Cook, Nondiscriminationin Employment Under the Rehabilitation Act of 1973,
27 AM. U.L. REv. 31, 33 (1977).
    14 H.R. REP. No. 244, supra note 13, at 3-5. The first vocational rehabilitation program was enacted
in 1920. Act of June 2, 1920, ch. 219, 41 Stat. 735 (1920). Although initially it offered only training,
counseling, and placement services to ph sically handicapped persons, the scope of the services provided
and the population benefited was expanded continuously by numerous amendments. The basic concept of
vocational rehabilitation as a "combination of services provided as needed to physically or mentally
handicapped persons to prepare them for employment and productive, useful living" remained unchanged.
H.R REP. No. 244, supra note 13, at 2-3.
   15. During the period of time from the initial legislation in 1920 to the proposal of the 1973 Act, over
three million handicapped persons were rehabilitated. The House Committee Report for the 1973 Act
noted that the benefits of the rehabilitation program far exceeded its cost. H.R. REP. No. 244, supra note
13, at 5-7.
   lt. The Act was also the first to mandate affirmative action programs for the hiring of handicapped
persons, discussed in § 503. 29 U.S.C. § 793 (1976). In Southeastern Community College v. Davis, 99 S. Ct.
231 (1979), however, the Supreme Court rejected the argument that § 504 mandated affirmative action.
Id. at 23os-70. 2370 n.ll. This comment, however, discusses only employment discrimination.
   17. Rehabilitation Act of 1973, Pub. L. No. 93-112, § 7(6), 87 Stat. 361 (1973) (current version at 29
U S C.A. § 70t)7) (West Supp. 1979)).
   18, Id.
                     THE AMERICAN UNIVERSITY LAW REVIEW                                   [Vol. 28:507

tion and affirmative action. In 1974, however, Congress amended and
broadened the definition of "handicapped person" in section 504 to expand
the group of persons protected from discrimination. 19 Unlike the original
definition, the amended version no longer required the disability to be a
"substantial handicap to employment." 20 The new definition included any
person who has a physical or mental impairment that substantially limits one
or more of such person's major life activities, has a record of such an
impairment, or is regarded as having such an impairment. 21 Congress
intended this amendment to prevent discrimination against all handicapped
persons, including those who already were rehabilitated. Congress felt that
protection from discrimination should not be contingent upon either the need
for or the ability to benefit from vocational rehabilitative services.
   A "plain meaning" analysis of the statutory language, however, provides
insufficient guidance to determine the scope of the definition. 23 The language
permits considerable interpretive latitude. Consequently, including alcoholics
and addicts within the definition required an administrative analysis of the
intent of Congress in passing both the original Act and the 1974 amendment.


                                  1. Administrative Decisions
  For a considerable period of time after the passage and amending of the
Act, no action was taken to bring about effective enforcement of section 504.24

    19. 29 U.S.C. § 706(6) (1976) (amended 1978). Earlier vocational rehabilitation legislation provided the
source for the 1973 definition which was retained as the first sentence of the 1974 amended definition.
Compare Vocational Rehabilitation Amendments of 1954, Pub. L. No. 83-565, § 11(b), 68 Stat. 660 with
29 U.S.C. § 706(6) (1976) (amended 1978); see S. REP. No. 1297, 93d Cong., 2d Sess. 63 (1974), reprinted
in [1974] U.S. CODE CONG. & AD. NEWS 6373, 6413 [hereinafter cited as S. REP. No. 1297]. The 1974
definition provided: "The term 'handicapped individuals' means any individual who is under a physical or
mental disability which constitutes a substantial handicap to employment, but which is of such a nature
that vocational rehabilitation services may reasonably be expected to render him fit to engage in a gainful
occupation ....     " 29 U.S.C. § 706(6) (1976) (amended 1978).
    20. S. REP. No. 1297, supra note 19, at 64, reprinted in [1974] U.S. CODE CONG. & AD. NEWS at 6414
(emphasis omitted).
    21. 29 U.S.C. § 706(6) (1976) (amended 1978).
    22. S. REP. No. 1297, supra note 19, at 37-38, reprintedin [1974] U.S. CODE CONG. & AD. NEWS at
6388; see 41 Fed. Reg. 20,296 (1976) (discussion accompanying HEW's Notice of Intent to Issue Proposed
    23. In Southeastern Community College v. Davis, 99 S. Ct. 2361 (1979), the Supreme Court adopted
the district court's understanding of § 504 because it appeared to comport with the plain meaning of the
statutory language. Id. at 2367. Thus, the Court concluded that "[a]n otherwise qualified person is one who
is able to meet all of a program's requirements in spite of his handicap." Id. The Court found that HEW's
regulations interpreting § 504 reinforced this conclusion. Id.
    24. Federal courts have acknowledged that Congress intended speedy implementation of § 504 through
the promulgation of comprehensive regulations. See Lloyd v. Regional Transp. Auth., 548 F.2d 1277, 1282
(7th Cir. 1977); Cherry v. Mathews, 419 F. Supp. 922, 924 (D.D.C. 1976).
1979]                                         SECTION      504

Initially, HEW failed to promulgate any regulations. 25 More than two years
later, President Gerald Ford issued an executive order, designating HEW the
coordinating agency for establishing guidelines, standards, and procedures for
government-wide implementation. 26 The order required all federal depart-
ments and agencies that provided federal financial assistance to a program or
activity to issue regulations consistent with the guidelines established by
   HEW first promulgated regulations for recipients of the department's own
funds. 28 It then promulgated guidelines to be used by other departments and
agencies in writing their individual regulations.
   The issue of inclusion of addicts in the definition of "handicapped persons"
received considerable attention throughout the rulemaking process. HEW's
first draft proposal, published May 17, 1976, raised the status of addicts for
consideration. 30 The majority of the comments received urged exclusion of
addicts. 31 The second set of proposed regulations, issued on July 16, 1976,
nevertheless took the view that "addiction is clearly within the statutory

   25. Southeastern Community College v. Davis, 99 S. Ct. at 2366 n.4. HEW had acted only after the
United States District Court for the District of Columbia had held, in Cherry v. Mathews, 419 F. Supp. 922
(D.D.C. 1976), that Congress intended regulations to be issued. See note 24 supra.
   26. Exec. Order No. 11,914,3 C.F.R. 117 (1976). The order directed the Secretary of HEW to establish
"standards for determining what are discriminatory practices within the meaning of section 504." Id.
HEW was permitted to adopt whatever rules and regulations were necessary to carry out the order. Id.
   27. Id. Thus, HEW had to issue two sets of regulations: one for their own recipients, and one for other
departments and agencies to use as guidelines. The agency was charged with ensuring that "rules,
regulations, and orders [were not] inconsistent with, or duplicative of, other Federal Government policies
relating to the handicapped ....    "   Id.
   28. 45 C.F.R. §§ 84.1-84.61 (1978). Unless otherwise specified, references in the text of this comment
to regulations, or HEW regulations, refer to those for HEW's own recipients, rather than to the guideline
regulations or regulations of other agencies. See note 29 infra.
   29. On January 13, 1978, HEW issued final guideline regulations. 43 Fed. Reg. 2132 (to be codified in
45 C.F.R. §§ 85.1-85.85). Since the issuance of the guideline regulations, the following agencies have issued
final regulations: Department of Transportation, 44 Fed. Reg. 31,442 (1979); ACTION, 44 Fed. Reg.
31,018 (1979); National Endowment for the Arts, 44 Fed. Reg. 22,737 (1979); Small Business Administra-
tion, 44 Fed. Reg. 20,067 (1979). The following agencies have proposed regulations: Civil Aeronautics
Board, 44 Fed. Reg. 32,401 (1979); Nuclear Regulatory Agency, 44 Fed. Reg. 26,887 (1979); Agency for
International Development, 44 Fed. Reg. 24,868 (1979); Legal Services Corp., 44 Fed. Reg. 22,482 (1979);
Department of Interior, 44 Fed. Reg. 22,372 (1979); Department of State, 44 Fed. Reg. 21,661; Civil
Service Commission, 43 Fed. Reg. 43,465 (1978); Community Services Administration, 43 Fed. Reg.
28,758 (1978); Veterans' Administration, 43 Fed. Reg. 19,166 (1978); Tennessee Valley Authority, 43 Fed.
Reg. 18,693 (1978); Department of Housing and Urban Development, 43 Fed. Reg. 16,652 (1978);
National Science Foundation, 43 Fed. Reg. 16,518 (1978); National Endowment for the Humanities, 43
Fed. Reg. 15,737 (1978); Department of the Treasury, Office of Revenue Sharing, 43 Fed. Reg. 15,735
(1978); Legal Services Corp., 43 Fed. Reg. 13,927 (1978); Federal Home Loan Bank Bd., 43 Fed. Reg. 1619
(1978). All those agencies that have finalized their regulations have submitted them to HEW for review.
    30. 41 Fed. Reg. 20,296 (1976).
    31. 41 Fed. Reg. 29,548 (1976). The comments on the first proposed draft expressed the belief that
addiction is not a handicap because it is self-inflicted; that § 504 is not the proper vehicle for dealing with
discrimination against addicts; that historically addiction is not a handicap; that inclusion of addicts would
detract from concentrating efforts on "real" handicapped persons; and that inclusion would cause
disruption of educational programs. Id.
                      THE AMERICAN UNIVERSITY LAW REVIEW                                     [Vol. 28:507

definition." 32 In spite of a court order to promulgate regulations without
further delay, 33 newly appointed HEW Secretary Joseph Califano chose to
review the controversial issues before signing the proposed draft.3 4 To this
end, he requested an opinion from Attorney General Griffin Bell to determine
whether Congress intended to include addicts within the definition of
handicapped individuals.3 5 After reviewing the legislative history of the
Rehabilitation Act of 1973, the Attorney General concluded that Congress
did intend to include addicts in the definition, and therefore to protect them
from discrimination.

                             2. The Attorney General's Analysis
  The Attorney General's interpretation rested upon a finding that Congress
had acknowledged the inclusion of addicts in earlier rehabilitation legisla-

    32. 41 Fed. Reg. 29,548-49 (1976). The proposal had asked for comments on the exclusion of
homosexuals as well. Many comments were made in reference to both addicts, see note 31 supra, and
homosexuals. Interestingly, HEW, on the basis of comments that homosexuality is not an impairment,
decided to exclude homosexuals from § 504 coverage. 41 Fed. Reg. at 29,548-49. In comparison, however,
alcoholism and drug addiction are both generally considered by medical experts to be diseases, although
there is some debate over whether they are mental or physical illnesses. 45 C.F.R. §§ 84.62-84.99 (1978).
Both the Attorney General, see Opinion Letter from Griffin Bell to Joseph Califano (April 12, 1977)
[hereinafter cited as Opinion Letter], and the final regulation, 45 C.F.R. pt. 84 app. A, at 404 (1978), refer
to medical support for inclusion of addicts. See Powell v. Texas, 392 U.S. 514, 522-24 (1968) (certain types
of alcoholism are diseases); Robinson v. California, 370 U.S. 660, 667 (1962) (drug addiction is a disease);
DISEASES (No. 303, alcoholism; No. 304, drug addiction).
   33. The District Court for the District of Columbia had ordered HEW to ensure that "no further
unreasonable delays affect the promulgation of regulations under § 504." Cherry v. Mathews, 419 F. Supp.
922, 924 (D.D.C. 1976). The order was stayed, however, until the Government's appeal could be heard.
   34. Califano became Secretary of HEW two and one-halfyears after the Act became effective. Thus, the
two preceding drafts did not reflect his opinions concerning alcoholics and drug addicts. The first proposed
draft was issued under Secretary David Mathews, 41 Fed. Reg. 20,297 (1976); the second was issued under
Acting Secretary Marjorie Lynch, 41 Fed. Reg. 29,560 (1976). U.S. DEP'T OF HEALTH, EDUCATION AND
WELFARE, HEW NEWS (April 28, 1977) (statement of HEW Secretary Califano accompanying
regulations pursuant to § 504 of the Rehabilitation Act of 1973) [hereinafter cited as HEW NEWS].
   For a more thorough discussion of the history of the regulations, see Cook, supra note 13, at 37-39. See
also 42 Fed. Reg. 22,676 (1976) (Rulemaking History).
   35. HEW NEWS, supra note 34, at 5. The Secretary of HEW, as head of an executive department, "may
require the opinion of the Attorney General on questions of law arising in the administration of his
department." 28 U.S.C. § 512 (1976).
   36. Opinion Letter, supra note 32.
1979]                                        SECTION      504

tion.3 7 The Senate Report did not deal with the issue.38 The Senate was,
however, aware of the House Report for the 1973 Act 39 which specifically
referred to the use of funds and services for the rehabilitation of addicts under
earlier versions of the Act. 40 The Attorney General interpreted the lack of
disagreement or inquiry as concurrence. 4t Furthermore, the legislative history
of the 1974 amendment did not consider inclusion or exclusion of addicts. 42
Thus, the Attorney General concluded that it was only logical to assume
congressional intent to continue the inclusion of addicts. 43 He based his

    37. Id. at 3-6. The Attorney General based his conclusion on two related factors. First, the House
Report for the 1973 Act commended HEW's prior efforts in rehabilitating addicts. It noted the work of the
Rehabilitation Services Administration (established by the former Rehabilitation Act) for addict rehabili-
tation programs using money appropriated to serve the physically and mentally handicapped under the
Rehabilitation Act. Significantly, the House did not question the administrative authority to do so. H.R.
REP. No. 244, supra note 13, at 10. Second, the earlier rehabilitation legislation was the source for the 1973
definition. That definition provided: "The term 'physically handicapped individual' means any individual
who is under a physical or mental disability which constitutes a substantial handicap to employment, but
which is of such a nature that vocational rehabilitation services may reasonably be expected to render him
fit to engage in a remunerative occupation.       ... Vocational Rehabilitation Amendments of 1954, Pub. L.
No. 83-565, § 1l(b), 68 Stat. 660 (amending Act of June 2, 1920, ch. 219, § 2, 41 Stat. 735). The continued
use of the basic definition and the previous practice are strong evidence of congressional approval of the
administrative policy.
    38. Opinion Letter, supra note 32, at 7; S. REP. No. 318, 93d Cong., 1st Sess. (1973), reprintedin [1973]
U.S. CODE CONG. & AD. NEWS 2076.
    39. Opinion Letter, supra note 32, at 7, 9 n.5. HEW communicated its position during Senate
committee hearings prior to the enactment of the Rehabilitation Act of 1973. To Amend the Rehabilitation
Act of 1972: Hearings on H.R. 8395 Before the Subcomm. on the Handicappedof the Senate Comm. on
Laborand Public Welfare, 92d Cong., 2d Sess. 134 (1972) (statement of Stephen Kurzman); U.S. DEP'T OF
REHABILITATION MANUAL (1967), reprinted in id. at 153, 165, 297.
   40. H.R. REP. No. 244, supra note 13, at 10. Although the report stressed that funding priority under
the Rehabilitation Act would be given to "serving those who are most severely physically or mentally
handicapped," id., the Attorney General's opinion also noted that the report foresaw augmenting funds
from this Act, used to provide rehabilitative services for alcoholics and drug addicts, with funds
appropriated under other legislation. Thus, the opinion concluded that it was the intent of the House
Committee to include alcoholics and addicts under the Act. Opinion Letter, supra note 32, at 5.
   41. Opinion Letter, supra note 32, at 7. The reenactment of statutory language which has been
construed in a certain way lends additional support to that construction. See, e.g., Chemehuevi Tribe of
Indians v. FPC, 420 U.S. 395, 420 (1975).
   42. . REP. No. 1297, supra note 19, at 38, reprinted in [1974] U.S. CODE CONG. & AD. NEWS at
   43. The Attorney General's opinion reasoned that the stated intention of the 1974 amendment, 29
U.S.C. § 706(6) (1976), to expand protection, and its lack of specific exclusion of addicts, indicated a
continuation of pre-existing congressional intent to include them. Opinion Letter, supra note 32, at 11-12.
The opinion noted, in particular, that "mere silence" in the legislative history of the amendment, which
expanded the definition, does not indicate an intent to exclude addicts:
         We cannot read this silence as evincing an intent to exclude alcoholism and drug addiction
      from coverage in the face of the legislative history of the 1973 Act which indicates that both
      conditions were regarded as handicaps that could give rise to eligibility for rehabilitation
      services under the first sentence of section 7(6) . . . . It would be illogical to include such
      persons under one prong of the now expanded definition of the term "handicapped
      individual" but not the other.
Opinion Letter, supra note 32, at 13.
                     THE AMERICAN UNIVERSITY LAW REVIEW                                   [Vol. 28:507

interpretation on the specific and uncontradicted reference in the House
Report for the 1973 Act, and the expressed intent in the legislative history of
the 1974 amendment to expand the Act's antidiscrimination protection.
   At the same time, the Attorney General's opinion dismissed on two
grounds the argument that other legislation pertaining to addicts preempted
their inclusion in the definition of handicapped persons under section 504.45
First, the House Report for the 1973 Act specifically indicated that coopera-
tive agreements would allow the use of other sources of funding for this Act's
purposes. 46 This acknowledgment of the Act's coexistence with other legisla-
tion pertaining to rehabilitation of addicts was interpreted as support for their
inclusion. Second, the other legislation did not have all the antidiscrimination
provisions contained in this Act. 47 This demonstrated not only the absence of
legislative overlap, but also the need to protect addicts under section 504.
   Significantly, the Attorney General prefaced and concluded his analysis of
the legislative history with the caveat that inclusion of addicts does not mean
that all addicts are protected from employment discrimination. 48 The defini-
tion excludes persons who are not "qualified." The opinion concluded that a
person is not qualified if the "manifestations of his condition prevent him
from effectively performing the job in question."
   Secretary Califano adopted the Attorney General's conclusion that addicts
were to be included in the regulatory scheme. The Secretary stressed that the
"legal opinion" of the Attorney General left him "without authority to
exclude these conditions" from the definition. 50 The accuracy of that
statement is questionable. The Attorney General, in rendering his interpreta-
tion of the legislative history, acted as an agent of the executive branch of
government, not the judiciary. 51 His interpretation, though persuasive, was

  44. Opinion Letter, supra note 32, at 3-8.
  45. Id. at 13-14. The acts referred to are the Comprehensive Alcohol Abuse and Alcoholism
Prevention, Treatment, and Rehabilitation Act of 1970, 42 U.S.C. § 4551 (1976), and the Drug Abuse
Office and Treatment Act of 1972, 21 U.S.C. § 1101 (1976).
   46. Opinion Letter, supra note 32, at 14. The Attorney General's opinion determined that the I973
House Report discussion of cooperative agreements with other sources of funding was a recognition of
possible duplication and a proposed solution. See H.R. REP. No. 244, supra note 13, at 10.
  47. Opinion Letter, supra note 32, at 14 n.7. These laws prohibit discrimination against addicts by
health care facilities. They do not, however, deal with employment discrimination.
  48. Id. at 2, 15. The Attorney General compared his position with the opinion in the second proposed
draft, 41 Fed. Reg. 29,548 (1976).
  49. Opinion Letter, supra note 32, at 2. In Southeastern Community College v. Davis, 99 . Ct. 2361
(1979), the Court reiterated the Attorney General's opinion that the statute is limited in its protection of
handicapped persons; § 504 does not require that all handicapped persons must be accommodated
regardless of the burden on the recipients. The Court was careful, however, to restrict its holding to the
facts of the case, and to indicate clearly that many circumstances will warrant individual accommodation.
In such cases, the Court stated, lack of accommodation would constitute discrimination under § 504. 99 S.
Ct. at 2370-71.
   50. 42 Fed. Reg. 22,686 app. (1977). The implication is that Secretary Califano, faced with all the
expressed opposition, did not want to make the ultimate decision.
   51. The Attorney General is a member of the President's Cabinet and head of an executive department.
1979]                                        SECTION       504

not binding on HEW.5 2 Similarly, it would not bind a court. The court's
appraisal of congressional intent would  be determinative. 54
   In fact, ambiguities in the House Report's treatment of addicts permitted
alternative interpretations of congressional intent. 55 The report not only
considered use of funds from other legislation; it also stressed that the most
severely handicapped persons must be given priority. 56 This may have
indicated an intent to exclude addicts. 57 At the end of 1978, however,

The advtsory function of the Attorney General, though it has a quasijudicial component, is an executive
function granted by the opinion clause of the Constitution, U.S. CONST. art. II, § 2, cl.2, and implemented
by the Judiciary Act of 1789, 28 U.S.C. § 511 (1976). See Note, Removing Politics from the Justice
Department: Constitutional Problems with Institutional Reform, 50 N.Y.U.L. REV. 366, 398 (1975).
   52. It is uncertain whether the opinion rendered by the Attorney General in this case was an official
advisory opinion or just his personal interpretation of the legislative history. Regardless, HEW was still the
agency charged by the executive order to carry out the enforcement of the Act.
   In case of a conflict between the opinion of the Secretary of Health, Education and Welfare and the
Attorney General, the Secretary need not follow the advice of the Attorney General. See Lawson, The
Importance and Value of the Attorney General's Opinion, 41 IOWA L. REV. 351, 361 (1956) (discussion of
Attorney General of Iowa, comparing functions to U.S. Attorney General).
   53 Court% often accept a well-reasoned opinion that cites adequate authority, because the court
assumes that the opinion is supported by a complete and detailed understanding of the administrative
function of the particular department involved. Id. at 362. In New York City Transit Auth. v. Beazer, 440
U S. 568 (1979), the Supreme Court quoted from the Attorney General's interpretation, thus giving judicial
sanction to his two-year old analysis of the Rehabilitation Act's legislative history. At this time, however,
Congress had already passed the 1978 amendment, bringing addicts within the ambit of the Act. Id. at 581
   But in McDonald v United States, 89 F.2d 128 (8th Cir. 1937) the court observed:
           It is. . . idle to urge that federal courts are bound to follow the views or opinions as to the
      law held and expressed by the Attorney General. Such are persuasive and such deference
      should be accorded to them as is given to the opinions of other able persons learned in the law
       . . . but no more. . . . [H]is office is to be allocated to the executive and not to the judicial
      branch ....
Id. at 135
    54. See Mogis v. Lyman-Richey Sand and Gravel Corp., 189 F.2d 130 (8th Cir. 1951) (Attorney
General's opinion has no controlling authority upon state of law discussed in it and, standing alone, is not
to be regarded as legal precedent or authority of such character as a judicial decision); but see United States
v. Republic Steel Corp., II F. Supp. 117, 124 (N.D. Ohio 1935) (courts will take notice of Attorney
General's opinion as "not without importance"). For collected cases indicating that the Attorney General's
opinion is highly persuasive, see Lawson, supra note 52, at 364 n.4 (1956).
    Interestingly, when the Supreme Court was faced with construing § 504 of the Rehabilitation Act in
Southeastern Community College v. Davis, 99 S. Ct. 2361 (1979), it paid great attention to HEW's
regulations. Had the Court been faced with the issue of inclusion of addicts, it is very likely that the Court
also would have shown deference to the Attorney General's analysis of the legislative history. See notes
57-58 & accompanying text infra.
    55. During the debates on the 1978 amendment, see notes 61-72 & accompanying text infra. Senator
Cannon indicated that:
          [Ilt is questionable whether Congress intended such a result when the underlying
       legislation 11973 Rehabilitation Act] was adopted, [although] it has been determined by the
       two Federal departments [HEW and the Department of Labor] that alcoholics and drug
       addicts are to be considered as handicapped individuals under the Rehabilitation Act of 1973

124 CONG. REC S15.566 (daily ed. Sept. 20, 1978).
   56 H.R. RLP No. 244, supra note 13, at 1, 6, 9-10.
   57. Marty Lasore, Minority Counsel for the House Subcommittee on Education and Labor, believes
516                   THE AMERICAN UNIVERSITY LAW REVIEW                                     [Vol. 28:507

Congress ended the controversy by amending the definition to address
specifically the inclusion of addicts.5 8 Thus, regardless of its original intent,
Congress has declared explicitly its present intention concerning the protec-
tion of addicts under section 504.


   The promulgation of HEW's regulation did not quell public apprehension
regarding the inclusion of addicts in section 504's antidiscrimination protec-
tion. Employers and handicapped job applicants demonstrated a need for
further clarification of section 504's coverage by requesting additional
interpretation from HEW in regard to specific hiring practices.5 9
   The problem is not a simple one; it involves delicate balancing of the right
of a qualified addict to be free from employment discrimination and the right
of an employer to make sensible choices when faced with potential risks.
Although HEW responded to inquiries regarding the regulations, there was
concern within Congress that HEW's regulations and informal responses to
questions were not providing adequate guidance and protection to employers,
qualified addicts, or the public. 60 Accordingly, it passed the Rehabilitation
Comprehensive Services, and Developmental Disabilities Amendments of
1978,61 which included an amendment specifically addressing the applicabili-
ty of section 504 to the employment of addicts.
   The original House version of the bill provided that "handicapped
individual," for purposes of sections 50363 and 504, would not include a

that the Attorney General's opinion is invalid, that the legislative history did not support the decision to
include addicts, and that the law has been written by regulation, without congressional funding. Telephone
Interview with Marty Lavore, Minority Counsel, House Subcomm. on Education and Labor, in
Washington, D.C. (Nov. 8, 1978) [hereinafter cited as Lavore Interview]. See 118 CONG. REC. 8977 (1972)
(remarks of Rep. Ogden Reed, written by Marty Lavore).
   58. Rehabilitation Comprehensive Services, and Developmental Disabilities Amendments of 1978, Pub.
L. No. 95-602, tit. I, § 122 (a)(4)-(8), 92 Stat. 2984, 2985 (amending 29 U.S.C. § 706(6) (1976)).
   59. Most of the questions from employers involved hiring for jobs where drug handling was one of the
duties or access to drugs a necessity. E.g., Letter from David Tatel, Director of the Office for Civil Rights,
Dep't. of Health, Education and Welfare, to Joseph R. Abrahamson, M.D., Director of Laboratory,
Community Hospital of San Diego (Aug. 15, 1977) (permissible for employers to refuse to hire or retain
people who are active addicts if job involves direct contact with drugs); Letter from Hale Champion on
behalf of Joseph A. Califano, Jr. to Alexander McMahon, Chicago, Illinois (Nov. 22, 1977) (hospitals are
not required to hire either active or former drug addicts in positions that call for handling of drug supplies,
or that require regular, unrestricted access to drug supplies) (letters on file in the Office for Civil Rights,
Department of Health, Education and Welfare) [hereinafter cited as HEW Letters].
   60. 124 CONG. REC. S15,566-68 (daily ed. Sept. 20, 1978) (remarks of Senators Cannon, Randolph,
Stafford, qnd Williams).
    61. Pub. L. No. 95-602, 92 Stat. 2955 (amending scattered sections of 29, 38, 42 U. S.C.).
    62. Id. tit. I, § 122(a)(4)-(8) (amending 29 U.S.C. § 706(6) (1970)).
   63. Section 503, 29 U.S.C.A. § 793 (West Supp. 1979), requires that employers who have at least $2,500
worth of contracts with the federal government establish affirmative action programs to hire disabled
persons. It is enforced by the Department of Labor's Office of Federal Contract Compliance. 29 U.S.C.A. §
793 (West Supp. 1979).
1979]                                      SECTION       504

person "who is an alcoholic or who is a drug abuser in need of rehabilita-
tion."64 The Senate found the House wording too broad and unnecessarily
discriminatory.65 The Senate's version, proposed on the floor rather than in
committee, excluded any persons whose condition of addiction rendered them
'not qualified for employment by preventing their performance of the
essential functions of the job in question." 66 The debates disclosed concern
about employment situations in which potential risk to human safety was a
significant factor.
   The conference committee compromise ultimately passed both Houses. It
       For purposes of sections 503 and 504 as such sections relate to
       employment, such term does not include any individual who is an
       alcoholic or drug abuser whose current use of alcohol or drugs
       prevents such individual from performing the duties of the job in
       question or whose employment, by reason of such current alcohol
       or drug abuse, would constitute a direct threat to property or the
       safety of others. 68
   There is disagreement on the practical effect of the 1978 amendment on
employers and addicts. Both HEW and the Department of Justice maintain
that the new amendment merely codifies HEW's regulations and interpreta-
tions.69 Additional support for this view can be found in the Senate debates. 70
In contrast, the House Subcommittee on Education and Labor, which
originally proposed the amendment, firmly believes that the 1978 amendment
clarifies congressional intent and minimizes potential employer risk. 7'

    64. H.R. REP. No. 1780, 95th Cong., 2d Sess. 102 (1978) (Conference Committee Report), partially
reprintedin [1978] U.S. CODE CONG. & AD. NEWS 7375, 7413 [hereinafter cited as H.R. REP. No. 1780].
    65. 124 CONG. REC. S 15,566-68 (daily ed. Sept. 20, 1978) (remarks of Senators Cannon, Randolph,
Stafford, and Williams).
    66. Id.: H.R. REP. No. 1780, supra note 64, at 102, reprinted in [1978] U.S. CODE CONG. & AD. NEws
at 7413.
    67. 124 CONG. REC. S 15,566-68 (daily ed. Sept. 20, 1978) (remarks of Senators Cannon, Randolph,
Stafford, and Williams).
   68. H.R. REP. No. 1780, supra note 64, at 31.
   69. Interview with John Wodatch, former Branch Chief, Handicapped Discrimination Branch, Office
of Standards, Policy and Research, Office for Civil Rights, Dep't of Health, Education and Welfare, in
Washington, D.C. (Oct. 24, 1978); interview with Steve Mikochik, Attorney, Civil Rights Division, Dep't
of Justice, in Washington, D.C. (July 20, 1979), interview with Andrew Barrick, Attorney, Civil Rights
Division, Dep't of Justice, in Washington, D.C. (Oct. 27, 1978).
   70. After discussing the regulation analysis, HEW's interpretation, and the Attorney General's opinion,
Senator Hathaway concluded:
       [I]t is clear that the Rehabilitation Act has been interpreted to permit a distinction to be made
       with respect to the employment of alcoholics and drug addicts on the basis of one's ability to
       perform the essential functions of the job in question. The pending amendment would write
       that interpretation into the law.
124 CONG. REC. S15,568-69 (daily ed. Sept. 20, 1978). See Whitaker v. Board of Higher Educ., 461 F.
Supp. 99 (E.D N.Y. 1978); notes 109-13 & accompanying text infra.
   71 Lavore Interview, supra note 57.
                     THE AMERICAN UNIVERSITY LAW REVIEW                                     [Vol. 28:507

   Eventually, through litigation, the courts will determine the amendment's
meaning. 72 Its language, while more specific and potentially restrictive in
scope, still allows further interpretation. Nevertheless, the 1978 amendment
provides a long-needed legislative statement of intent to support the inclusion
of addicts in section 504's protection. By explicitly excluding "unqualified"
addicts, Congress implicitly has included "qualified" addicts. Thus it has
settled the heated debate over legislative intent, and provided reassurance that
qualified addicts are to be protected from employment discrimination. The
remaining task is to analyze problems presented by the regulations and to
examine possible solutions needed to balance the rights of addicts, employers,
and the public.


   Congress provided little guidance in making section 504 functional. The
statute itself is a brief statement prohibiting discrimination against qualified
handicapped persons. Although generally it has been accepted that Congress
intended HEW to write regulations implementing the mandate of section 504,
the legislative history provides little assistance in the formulation of the
regulations. 73 Thus, the task of defining the scope of the congressionally
created right was left to the bureaucratic mechanism. 74 HEW, as the
designated agency, responded by producing an expansive and complicated set
of regulations.
   In regard to addicts, the regulations create two problems. First, ambiguities
that exist in the general language of the regulations, intended to permit

   72. The Supreme Court, in Southeastern Community College v. Davis, 99 S. Ct. 2361 (1979), addressed
§ 504 for the first time. Davis involved an educational institution's nurse training program to which an
applicant with an auditory problem was denied admission. Although that case is distinguishable from cases
involving employment of addicts, it exemplifies the Court's interpretation of the scope of § 504 and the
HEW regulations. Significantly, the Court, while holding that in this particular situation there was no
violation of § 504, denied any suggestion that "the line between a lawful refusal to extend affirmative action
and illegal discrimination against handicapped persons always will be clear." Id. at 2370. The Court also
indicated that "[i]dentification of those instances where a refusal to accommodate the needs of a disabled
person amounts to discrimination against the handicapped continues to be an important responsibility of
HEW," id., thus emphasizing the significance of HEW's role in making § 504 work. See note 79 infra.
   73. S.REP. No. 1297, supra note 19, at 40, reprintedin [1974] U.S. CODE CONG. & AD. NEWS at 6391.
See notes 24-25 supra.
   74. Although it is normal for Congress to enact skeletal statutes, purposely allowing administrative
agencies with supposed expertise to develop the rules, the legislative history frequently provides some
indication of congressional expectations for the statute. That this was not the case with § 504, however, is
stated in the regulations' background information: "The very general language of section 504 itself and the
scant legislative history surrounding its enactment provide little guidance as to how [the] complex issue.
should be resolved." 42 Fed. Reg. 22,676 (1977).
   75. 45 C.F.R. §§ 84.1-84.99 (1978) (regulations for HEW's own recipients). See notes 27-29 &
accompanying text supra; HEW NEws, supra note 34, at 7.
1979]                                        SECTION 504

interpretive discretion, 76 also produce a lack of clarity. 77 Because the prob-
lems of addicts differ from those of other handicapped persons, application of
this general regulatory scheme to addicts creates special difficulty. 78 Second,
there are significant problems that arise in relation to addicts that the
regulations do not address.
   Judicial interpretation of the statute and regulations has been limited.
Southeastern Community College v. Davis, 0 the only Supreme Court case
dealing with section 504, concerned only the part of section 504 that pertains
to admissions policies of institutions of higher education; thus, it is not
directly applicable to employment discrimination against addicts. 81 The
decision does, however, give some indication of the Court's approach to the
legislation and regulations. 82 An examination of these regulations provides a
framework for a consideration of the need for further action, reflected by the
legislative step already taken by Congress and HEW's passive response to it.

   76. See 42 Fed. Reg. 22,676-77 (1977) (supplementary information).
   77. The language of § 504 closely parallels that in other antidiscrimination legislation. See, e.g., Civil
Rights Act of 1964,42 U.S.C. § 2000d-3 (1976); Education Amendments of 1972, 20 U.S.C. §§ 1681-1686
   78. This comment deals only with those parts of the regulations that critically affect the protection of
alcoholics and addicts from employment discrimination. For a more extensive discussion of § 504
regulations as a whole, see Cook, supra note 34.
   79. Lower court case law involving addicts is discussed in detail in notes 123-58 & accompanying text
infra. In New York City Transit Auth. v. Beazer, 440 U.S. 568 (1979), the Supreme Court declined to
interpret § 504 on two grounds. First, the acts of discrimination complained of occurred prior to the 1978
amendment of the Rehabilitation Act's definition of "handicapped." Id. at 581 & n.18. Second, the
plaintiffs had already been awarded monetary relief. Id. at 581. Instead, the Court restricted its
consideration to the grounds upon which it had granted certiorari, namely Title VII and the equal
protection clause. Id. The Court observed that the language of § 504, "even after its amendment, is not free
of ambiguity ... " Id. Significantly, the Court indicated some of the issues it would have to determine if
it were to address § 504, given the Beazer facts:
       (1)whether heroin addicts or current methadone users qualify as "handicapped individu-
       al[s]"-i.e., whether that addiction or use is (or is perceived as) a "physical impairment which
       substantially limits one or more . . .major life functions";
       (2) whether methadone use prevents the individual "from performing the duties of the job"
       or "would constitute a direct threat to the property or the safety of others"; and
       (3) whether the members of the respondent class are "otherwise qualified"-the meaning of
       which phrase is at issue in Southeastern Community College v. Davis.
Id. at 581 n.20 (1979). It is unfortunate that the Court did not take this opportunity to resolve the questions
that it raised. It would have provided much needed guidance to addicts and employers.
   80. 99 S. Ct. 2361 (1979).
   81. See note 72 & accompanying text supra.
   82. HEW's regulations differ in their treatment of educational institutions' admission policies and
employment discrimination. Compare 45 C.F.R. §§ 84.3(k)(1), 84.11-.14 (1978) with 45 C.F.R. §§
84.3(k)(2), 84.42 (1978). The Supreme Court's decision in Southeastern Community College v. Davis,
however, relied heavily upon the factor of human safety, a factor that relates directly to employers'
concerns in hiring addicts. See 99 S. Ct. 2361, 2367-69 (1979).
                      THE AMERICAN UNIVERSITY LAW REVIEW                                   [Vol. 28:507


   Section 504 does not require that an employer have an addict on the payroll
to continue receiving federal financial assistance. 83 Rather, section 504 is very
specifically limited to 'qualified handicapped persons." 84 Only exclusion of
"qualified" persons solely because they are addicts would be violative of the
Act. 85 Thus, for an addict to be a victim of employment discrimination,
section 504 requires an initial determination that the addict is a "qualified
handicapped person. ' 86 In addition, the employer's action must constitute a
discriminatory employment practice with respect to the "qualified handi-
capped person." 87 To define the scope of an addict's right, the definitions and
criteria will be examined specifically in the context of addicts. 88

    83. This was a major concern of employers who responded to the proposed drafts of the regulations and
employers who requested information from HEW after promulgation of the final regulations. 42 Fed. Reg.
22,676 (1977); HEW Letters, supra note 59. HEW has found that application of the regulations precludes
such a result. See note 69 & accompanying text supra. The House Subcommittee on Education and Labor
interpreted the regulations differently, finding that an employer could be placed in that position, thus
motivating the 1978 amendment. Lavore Interview, supra note 57. Finally, the Supreme Court, in
Southeastern Community College v. Davis, rejected any interpretation of § 504 that would require
affirmative action. 99 S. Ct. 2361, 2369-70 (1979).
    84. 29 U.S.C.A. § 794 (West Supp. 1979).
    85. "Qualified handicapped person," with respect to employment, means "a handicapped person who.
with reasonable accommodation, can perform the essential functions of the job in question.           ... 45
C.F.R. § 84.3(k)(I) (1978).
    In Southeastern Community College v. Davis, the Court carefully distinguished between individuals
qualified "except for" and those qualified "in spite of" their handicaps in construing the meaning of
"qualified handicapped person" with respect to postsecondary education. 99 S. Ct. 2361, 2367 n.7 (1979)
That definition varies somewhat from the definition of handicapped person with respect to employment.
Compare 45 C.F.R. § 84.3(k)(1) (1978) with 45 C.F.R. § 84.3(k)(3) (1978). The latter reads: " 'Qualified
handicapped person' means: . . . With respect to postsecondary and vocational education services, a
handicapped person who meets the academic and technical standards requisite to admission or participa-
tion in the recipient's education program or activity.        ... 45 C.F.R. § 84.3(k)(3) (1978).
    86. The regulation's use of "qualified person" is intended to be synonymous with the statute's use of
"otherwise qualified person." The analysis of the regulation explains:
       The Department believes that the omission of the word "otherwise" is necessary in order to
       comport with the intent of the statute because, read literally, "otherwise" qualified persons
       include persons who are qualified except for their handicap, rather than in spite of their
      handicap . . . . Clearly such a result was not intended by Congress.
45 C.F.R. pt. 84 app. A, at 405 (1978).
   87. Only a discriminatory effect, rather than an employer's intent to discriminate, need be shown. See
Cook, supra note 13, at 51. The term "qualified" introduces a subjective set of criteria. The analysis to the
regulations states: "It cannot be emphasized too strongly that the statute and regulation apply only to
discrimination against qualified handicapped persons solely by reason of their handicap." 45 C.F.R. pt. 84
app. A, at 404 (1978); see 124 CONG. REC. S15,567 (daily ed. Sept. 20, 1978) (remarks of Sen. Stafford).
Opinion Letter, supra note 32, at 2, 15.
   88. Alcoholics and drug addicts are not specifically mentioned in the sections of the regulations that
define "handicapped individual" or discuss employment practices. 45 C.F.R. §§ 84.30), (k)(1), 84.11-. 14
(1978) (discrimination prohibited, reasonable accommodation, employment criteria, and pre-employment
inquiries). The regulations do prohibit discrimination against addicts who seek treatment or admission at a
hospital or outpatient clinic. Id. § 84.53. The preliminary comments state that the regulations cover "all
types of physical and mental impairments, including drug addiction and alcoholism." 42 Fed. Reg. 22,677
1979]                                         SECTION        504

                                              1. Definitions
    The regulations' definition of "handicapped individual" coincides with the
 statutory definition in the 1974 amendment. 89 Two of the three clauses of the
 amended definition indirectly made section 504 more applicable to addicts
 than the original 1973 definition. 90
    One clause of the definition extends protection to those individuals who are
completely or partially recovered from their handicap. 91 Although the Senate
 Report for the 1974 amendment mentioned only mental or neurological
illness, heart attack, and cancer as examples of this category, 92 a former addict
 on a methadone maintenance program, or an alcoholic successfully par-
 ticipating in Alcoholics Anonymous, would fit within the definition. Because
addicts who are totally or partially recovered are most likely to be qualified,
 they are also most likely to be the victims of discrimination. 93 In contrast, the
clause covering currently handicapped persons realistically would not include
very many addicts. 94 Currently physically handicapped persons, such as those
in wheelchairs or with limited hearing, would be capable of performing many
jobs; most addicts, however, would have to attain at least some level of

(1977). In the analysis of the final regulations, presented in an appendix, there is a lengthy discussion of the
inclusion of addicts, as well as some guidelines for application of the regulations to addicts. 45 C.F.R. pt. 84
app. A (1978). Compare 45 C.F.R. §84.30) (1978) with 45 C.F.R. § 85.31(a) (1978) (guideline regulations).
   89. 45 C.F.R. § 84.3(j) (1978). For the 1974 amendment's definition, see text accompanying note 21
   90. There are no indications in the legislative history that any consideration was given to addicts in
writing the 1974 amendment. Opinion Letter, supra note 32, at 11-12. The regulations define terms within
the definition without any specific reference to alcoholics and addicts. 45 C.F.R. § 84.3 (1978). The
analysis, however, discusses it in detail:
       The fact that drug addiction and alcoholism may be handicaps does not mean that these
       conditions must be ignored in determining whether an individual is qualified for . . .
       employment opportunities. On the contrary, a recipient may hold a drug addict or alcoholic
       to the same standard of performance and behavior to which it holds others, even if any
       unsatisfactory performance or behavior is related to the person's drug addiction or
       alcoholism. In other words, while an alcoholic or drug addict may not be. . . disqualified
       from employment solely because of his or her condition, the behavioral manifestations of the
       condition may be taken into account in determining whether he or she is qualified.
45 C.F.R. pt. 84 app. A, at 404 (1978).
   91. 45 CF.R. § 84.3(j)(2)(iii) (1978).
   92. S. REP. No. 1297, supra note 19, at 38-39, reprinted in [1974] U.S. CODE CONG. & AD. NEWS at
   93. See 124 CONG. REC. S15,567-69 (daily ed. Sept. 20,1978), (remarks of Senators Stafford and
Hathaway recognizing employability of partially or totally recovered addicts and prevalence of prejudice
against them).
   94. The first clause of the definition addresses handicapped persons with a physical or mental
impairment which substantially limits one or more major life activities. 45 C.F.R. § 84.3(j)(1)(i) (1978).
Addicts fall within the Act only if "their impairment substantially limits one of their major life activities."
45 C.F.R. pt. 84 app. A, at 404 (1978).
   The regulations do not define the phrase "substantially limits." Commenters had requested a definition,
but the analysis of the regulations states that it is not possible to define "the term at this time." Id. at 403.
"Major life activities" are defined as "functions such as caring for one's self, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working," 45 C.F.R. § 84.3(j)(2)(ii) (1978).
                      THE AMERICAN UNIVERSITY LAW REVIEW                                    [Vol. 28:507

rehabilitation before being "qualified" to perform even minimal tasks. The
expanded definition ensures that addicts taking active steps to overcome their
handicaps will not lose section 504 discrimination protection."5
    Another clause of the definition extends section 504's coverage to those
believed to have a handicap, even when they do not.96 This provision protects
 against discrimination due to unfounded suspicion of addiction. The potential
 for discrimination against individuals thought to be addicts is particularly
 great. Society accepts both drinking socially and taking prescribed medica-
 tion. These normal activities are at one end of a continum; alcoholism and
 drug addiction are at the other end. The point at which acceptable behavior
becomes a disease or handicap is a matter of great controversy.
    In the context of section 504, however, disagreement over the precise
definition or etiology of drug abuse or alcoholism is insignificant.9 8 If the
statutory or regulatory definition required that a person be classified as an
addict, such discrepancies might create a problem. The latitude of the
definition, however, removes the need to seek a conclusive diagnosis, or to
choose a psychological, sociological, or medical definition. Whether a person
is characterized as a current addict, a partially or totally rehabilitated addict,
or a suspected addict, section 504 will define that individual as a "handi-
capped person." Thus, the broadened definition provides for the inclusion of
most addicts within the term "handicapped individual." 99
    A "handicapped" addict, nevertheless, must be "qualified" in order to be
entitled to section 504's discrimination protection. With respect to employ-
ment, the regulation defines "qualified" to mean able to "perform the
essential functions of the job in question." 00 Although the regulations do not
elaborate upon this vague definition, the regulation analysis specifically
addresses some factors that may be used in determining whether an addict is
qualified.10 1 It establishes that an employer may consider a person's addictive
condition, and manifestations of that condition, in making the determina-
tion. 102 The addict may be held to the same standards of behavior and

   95. There is evidence that having a job is essential to an addict's sustaining his rehabilitated condition.
See 124 CONG. REC. S15,567-68 (daily ed. 1978) (remarks of Sen. Hathaway).
   96. 45 C.F.R. § 84.3(j)(2)(iii) (1978). See Opinion Letter, supra note 32, at 11-12.
   97. 45 C.F.R. pt. 84 app. A (1978).
   98. For example, persons who once may have had serious drinking problems, may not have had a drink
in several years. If they attend Alcoholics Anonymous, however, they will still identify themselves as
alcoholics. The philosophy of the organization is that a member is always an alcoholic regardless of his or
her lack of current consumption of alcohol. See, e.g., ALCOHOLICS ANONYMOUS WORLD SERVICES,
TWELVE STEPS AND TWELVE TRADITIONS (1953). Because of the tripartite approach of the definition,
any discrimination against such a person would invoke the protection of the statute.
   99. The Supreme Court, in Southeastern Community College v. Davis, 99 S. 2361 (1979), cited the
Senate Labor and Public Welfare Committee Report, S.REP. No. 1297, supra note 19, reprinted in [1974]
U.S. CODE CONG. & AD. NEWS 6373, to support a broad interpretation of the definition of "handicapped"
person. 99 S. Ct. at 2366 n.6, 2367 n.7.
   100. 45 C.F.R. § 84.3(k)(1) (1978). See note 86 supra.
   101. See note 90 supra.
   102. The analysis reads:
1979]                                         SECTION       504

performance as other employees, even if the person's addiction is the cause of
unsatisfactory performance or behavior. 03 Proper considerations, for addicts
as well as other applicants, include "past personnel records, absenteeism,
disruptive, abusive, or dangerous behavior, violations of rules and unsatisfac-
tory work performance."' I04 An employer may consider all these factors in
determining whether an addict is qualified. The employer, however, will bear
the burden of proving an applicant's or employee's inability to perform an
essential job-related task should the employer's action be challenged as
discriminatory. 0 5 In addition, employers may enforce rules prohibiting the
possession or use of drugs at the place of employment, as long as all
employees must follow these rules.'

            With respect to the employment of a drug addict or alcoholic, if it can be shown that the
        addiction or alcoholism prevents successful performance of the job, the person need not be
        provided the employment opportunity in question. For example, in making employment
        decisions, a recipient may judge addicts and alcoholics on the same basis it judges all other
        applicants and employees.
45 C.F.R. pt. 84 app. A, at 404 (1978). The guideline regulations incorporate the above discussion by
reference. They suggest that other agencies may wish to supplement the definition of "qualified
handicapped person" for specific programs, as was done in HEW's regulations. See 45 C.F.R. § 85.3(k)(2),
(3) (1978) (defining "qualified handicapped person" for purposes of employment and with respect to public
preschool, elementary, secondary or adult educational services). See note 88 supra.
    103. 45 C.F.R. pt. 84 app. A, at 404 (1978).
    104. Id.
    105. The analysis accompanying the second proposed draft stated that decisions pertaining to
"reasonable accommodation" and "undue hardship" are to be made initially by the employer, subject to
review by the Department. The ultimate burden, however, "is placed on employers to show that a
particular handicap would prevent an applicant or employee from performing the essential functions of the
job in question." 41 Fed. Reg. 29,553 app. (1976). No mention of burden of proof is made in the body of the
final regulations. The analysis notes, however, that the commenters wanted the definition of qualified
handicapped person to be amended to place explicitly on the employer the burden of showing that a
particular mental or physical characteristic is essential to the job. HEW felt the same result was
accomplished via 45 C.F.R. § 84.13 (1978), which requires the employer to establish that any selection
criterion tending to screen out handicapped persons be job-related. 42 Fed. Reg. 22,686 app. (1977).
Significantly, the Supreme Court, in Southeastern Community College v. Davis, 99 S. Ct. 2361 (1979), did
not establish clearly whether the burden was placed upon the university, a recipient of federal funds, or
upon the handicapped applicant. The case implies that total waiver of the clinical portion of the nursing
training would qualify as meeting the "essential to the program" test set forth in the regulations. The
Court, however, did not consider possible alternatives, such as allowing Ms. Davis to complete enough of
the program to obtain a restricted nursing license which would limit her to practicing nursing in situations
that do not pose a threat to patient safety. For example, nurses working in a doctor's private office may not
require the same auditory capacity needed in the operating room setting where lipreading is not possible.
    It is also significant that the Court cited to the regulations' examples of permissible modifications. 99 S.
Ct. at 2368 n.9. The regulations are designed, however, to suggest possible modifications, rather than to be
all inclusive. By using the regulations in this way, the Court supports the demand that HEW provide clear
and distinct guidelines to define what constitutes employment discrimination against addicts.
    The Court establishes that those practices which are customary and normalwithin a certain field will be
considered "essential" to the program. 99 S. Ct. at 2370. Certainly, such a minimal burden of proof on
recipients of federal funds undermines the protection against discrimination that Congress intended the
Act to provide.
    106. 45 C.F.R. pt. 84 app. A, at 404 (1978).
                    THE AMERICAN UNIVERSITY LAW REVIEW                                   [Vol. 28:507

                           2. Employment Practice Provisions
   The regulations recognize that the multiplicity of handicaps makes it
difficult to prescribe general rules for enforcing section 504-. This is
particularly true when the broad language of the employment section of the
regulation is applied to discrimination against addicts.
   Two especially problematic phrases are "reasonable accommodation" and
"undue hardship."1 08 The regulations provide: "A recipient shall make
reasonable accommodation to the known physical or mental limitations of an
otherwise qualified handicapped applicant or employee unless the recipient
can demonstrate that the accommodation would impose an undue hardship
on the operation of its program. 109
   The regulations include examples of measures which qualify as reasonable
accommodations, and factors to be used to determine whether undue
hardship exists." 0 None of these examples, however, addresses the problems
of addicts; the examples relate almost exclusively to the problems of
employing physically handicapped individuals. Although the regulation
analysis acknowledges that the list of examples is not exclusive, no accom-
modations are suggested for nonphysical handicaps."' Thus, the terms and
examples built into the regulations to help define the scope of the right
provide few guidelines for accommodating the addict. The employer is faced
with making a decision based on the definition in the statute or the analysis of
the regulations; yet neither definition is sufficiently helpful."
   Illustrative accommodations include a change in scheduling, a one-time
purchase of special equipment, or a structural change in the physical plant. 113
While such measures may provide an adequate solution for a physical
disability, there is no analogous action an employer may take to accommodate
addicts. 114 The regulations are intended to provide a flexible framework
within which an employer and an applicant can judge the fairness of
employment practices." 5 With respect to addicts, however, "reasonable

   107. 42 Fed. Reg. 22,676 (1977) (the problem of discrimination).
   108. 45 C.F.R. §§ 84.12(a)-(c), 85.53 (1978).
   109. 45 C.F.R. § 84.12(a) (1978) (emphasis added).
   110. The regulations state that reasonable accommodation may include making facilities used by
employees accessible to and usable by handicapped persons, restructuring jobs, modifying work schedules,
acquiring or modifying equipment or devices, providing readers or interpreters, and other similar actions.
45 C.F.R. § 84.12(b) (1978).
    111. 42 Fed. Reg. 22,686 app. (1977).
    112. See note 105 supra. In Southeastern Community College Davis, the Court interpreted the statute
to preclude regulations requiring "substantial modifications" of the program. 99 S. 2361, 2370 (1979).
Such a broad judicial limitation makes it difficult to determine what will constitute a violation of the
    113. 45 C.F.R. pt. 84 app. A, at 409 (1978).
    114. Reasonable accommodations, conventionally of a physical nature, have only a limited application
to emotional handicaps. The employment problems of addicts tend to parallel more closely those of the
mentally or emotionally disabled than those of the physically disabled. Id. at 404.
    115. 45 C.F.R. pt. 84 app. A (1978).
 1979]                                       SECTION       504

 accommodation" and "undue burden" become inadequate and meaningless
 standards if the employer has no viable course of action available to him. 6
    Pre-employment inquiries present another troublesome area of the regula-
 tiors with respect to addicts. The regulations generally prohibit pre-employ-
 ment inquiries pertaining directly to the individual's handicap. 117 An em-
 ployer may ask whether an applicant can perform a job-related task, but may
 not ask whether the person has a handicap."1    8
    Again, specific examples in the regulations address physical handicaps. 119
 For instance, an employer may ask whether a person has a valid driver's
license, if the job requires one, but not whether the person is visually
impaired. 120 An employer may ask whether a person can perform a particular
job without endangering other employees, but not whether the applicant is an
epileptic.121 The employer consequently must rely upon the individual's own
evaluation of his or her risk potential. Thus, unless a previous work record
indicates problems caused by addiction, or the applicant voluntarily reveals
them, the employer may be forced to hire a person without proper awareness
of a potentially dangerous problem. 22

    116. The Secretary of HEW and the writers of the regulations felt that the inclusion of addicts within
 the scope of the regulations would not lead "to the consequences feared by many commenters." Id. at 404.
The tone of the analysis of the final regulations even seem to indicate that, although HEW was technically
including addicts, the agency would apply the criteria in such a way that any manifestation of addiction or
alcoholism easily could render an applicant or employee unqualified. See note 102 supra. In fact, none of
the specific guidelines represented by HEW in their regulation analysis and in their response to post-
promulgation inquiries actually appears in the regulations themselves. The regulations fail to distinguish
among current addicts, current addicts who are undergoing treatment, and completely rehabilitated
addicts for purposes of an employer's evaluation.
    117. 45 C.F.R. § 84.14 (1978) (pre-employment inquiries). The regulations proscribe, with two
exceptions, pre-employment medical examinations and questions for the purpose of determining whether
the applicant is handicapped. The first exception permits the recipient to invite applicants to indicate their
handicaps, as long as the information is used solely for purposes of affirmative action, either voluntarily or
under § 503 of the Rehabilitation Act, 29 U.S.C.A. § 793 (West Supp. 1979). 45 C.F.R. § 84.14(b) (1978).
The second exception allows pre-employment medical examinations as long as they are required of all
entering employees. 45 C.F.R. § 84.14(c) (1978).
    118. 45 C.F.R. § 84.14 (1978).
    119. Id.
    120, 45 C.F.R. pt. 84 app. A at 410.
    121. Id. In Southeastern Community College v. Davis, 99 S. Ct. 2361 (1979), the Supreme Court
specifically indicated that the handicap "became apparent" during the admissions interview when the
interviewer inquired about the applicant's condition. Id. at 2364. Such procedures directly violate HEW's
regulations. Se 45 C.F.R. § 84.14 (1978). The regulations also forbid requiring medical examinations
unless they are a standard procedure for all applicants. If the admissions officer had required the applicant
in Davis to consult an audiologist, the school would have violated the regulations.
    122. For example, suppose the work record of a person who is an alcoholic does not indicate this
information to a future employer and the alcoholic does not tell the employer the information. The
employer hires the person to perform certain tasks, e.g., to deliver food trays in hospitals. Because the
employee is inebriated he gives the wrong tray to a patient. The patient consumes food that is harmful to
him. Holding the employer liable would be anomalous, because he was not permitted to inquire whether
the prospective employee was an alcoholic.
                      THE AMERICAN UNIVERSITY LAW REVIEW                                [Vol. 28:507


   In addition to the problems stemming from the regulations, there are two
peripheral issues affecting the scope of the addict's right. One involves the
desirability of making a distinction between current and former addicts in
certain circumstances. The other concerns the existence of a private cause of
action under section 504. Although the latter issue encompasses all handi-
capped persons, not just addicts, it merits attention because of its importance
in defining the scope of addicts' rights. Although alluded to in the regulations
and analysis, neither issue is treated comprehensively. Judicial interpretations
in the very limited section 504 case law pertaining to addicts provide some

                              1. Former and Current Addicts
   Prior to the 1978 amendment, no reference was made to the differences
among current addicts, addicts in the process of rehabilitation, and addicts
who have recovered from their addiction. The 1978 amendment, although
excluding persons whose "current" addiction constitutes a direct threat to
property or safety of others, eliminates only a few cases from section 504
coverage. 123 The first court cases dealing with addicts under section 504,
however, demonstrate that the process of applying the statute and regulations
to actual situations often demands recognition of such distinctions.
   Davis v. Bucher 124 was a class action suit challenging the hiring practices of
the city of Philadelphia regarding job applicants with a prior history of drug
abuse. In a summary judgment for the plaintiffs, the court held that blanket
application of an employment policy that automatically disqualified any
former drug user violated section 504.125 Each plaintiff in the case had been
notified of acceptance for employment. During a pre-employment physical
examination, each had admitted to having or was discovered to have a history
of prior drug use. 126 The city did not contest that the plaintiffs were all
rehabilitated and would have been hired if not for evidence or admission of
former drug use. 27 Rather, the city claimed that the language of the policy
was not discriminatory because it was discretionary.1 The court found,

  123. See notes 59-72 & accompanying text supra.
  124. 451 F. Supp. 791 (E.D. Pa. 1978).
   125. Id. at 800.
   126. Davis's drug history consisted of a four month period of injecting nonnarcotic amphetamines, five
years prior to the medical examination. Plaintiff D'Elia, on a methadone maintenance program, was no
longer using any narcotics. Plaintiff Sims had used morphine and heroin near the end of his two years of
duty with the armed services, but had been totally drug free for three years. Id. at 794.
   127. The city's counsel had stipulated at oral argument that the City of Philadelphia would have hired
the applicants "but for the old scars and admissions of prior drug use." Id.
   128. The City of Philadelphia claimed that their policy was grounded in City Civil Service Reg. 8.0233,
1979]                                        SECTION      504

however, that the policy effectively barred the employment of former drug
users because the city did not exercise its discretion.
   The court concluded that the plaintiffs were qualified handicapped individ-
uals within section 504; that "the clear words of the statute" encompassed
drug addiction; that addiction "substantially affects addict's ability to
perform major life activities"; and, that prior addiction and drug use fall
within the definition of having a "record of such impairment." 130 In support
of these findings, the judge looked to the statute, the regulations, HEW's
analysis of the regulations, and the Attorney General's discussion of the
legislative history.' '
   Bucher clearly states that, under section 504, discrimination based on the
illogical presumption that former addicts are not employable will no longer be
tolerated. 3 2 It also provides some guidance to judicial assessment of the
statutory and regulatory scope with regard to addicts. Nevertheless, the facts
of Bucher presented a blatantly discriminatory hiring policy, with respect to
former drug users, which lacks the complexity of other, less obvious situations
that might arise.
   The more controversial problem of a current addict who is "qualified" is
presented in a case still pending a final decision, Whitaker v. Board of Higher
Education.1 3 The plaintiff, a former professor of African Studies at Brooklyn
College, alleges he was denied tenure and use of a special title solely because
of his alcoholism. 1 4 Dr. Whitaker contends that the detrimental actions were,
in fact, based upon false accusations that his alcoholism interfered with his

quoted in Davis v. Bucher, 451 F. Supp. 791, 795 (E.D. Pa. 1978): "The Director may refuse to examine an
applicant or may disqualify a candidate at any time prior to appointment either during or after an
examination. . . who is addicted to the intemperate use of intoxicating liquors, or the use of harmful drugs
  . ."; in City Civil Service Reg. 10.0910, quoted in Davis v. Bucher, 451 F. Supp. at 795: "The name of
an eligible shall be removed from an eligible list for any of the following reasons: . . . [a]ddiction to the
intemperate use of intoxicating liquors or to the use of harmful drugs." The city also sought support in
Procedures & Policies Regarding Medical Examination § XIV, quoted in Davis v. Bucher, 451 F. Supp.
791, 795 (E.D. Pa. 1978): "Generally, emotional instability, immaturity, psychosis, alcoholism, or drug
addiction, are disqualifying for all positions."
    129. The defendants claimed that the medical examiner had discretion to overlook prior drug use as a
disqualifying characteristic, but stipulated that the discretion was not exercised with respect to the three
plaintiffs and the non-party affiants. Davis v. Bucher, 451 F. Supp. 791, 795 (E.D. Pa. 1978).
    130. Id. At the conclusion of his § 504 analysis, Judge Cahn emphasized that the statute's proscription
against discrimination protects only "qualified" individuals. Id. at 797 n.4.
    131. Id. at 795-97. The judge commented that finding congressional intent to protect former drug users
is reasonable as a matter of public policy. Id. at 796.
    132. The decision specifically noted that the plaintiffs submitted "uncontested evidence that persons
with a history of substance abuse, and in particular ex-heroin addicts, could be employed successfully." Id.
at 796.
    133. Whitaker v. Board of Higher Educ., 461 F. Supp. 99 (E.D.N.Y. 1978) (orders denying preliminary
injunction and cross-motion for dismissal).
    134. Whitaker was originally offered the teaching position of "Martin Luther King Distinguished
Professor." Id. at 101. He was told that the position was offered initially for one year, but if he expressed
interest, it would be converted into a regular tenured appointment. At that time, he was on leave from a
position at Princeton University. Id.
                      THE AMERICAN UNIVERSITY LAW REVIEW                                    [Vol. 28:507

ability to meet his teaching responsibilities. 135 In his affidavit filed upon order
to show cause, he gives detailed and documented evidence to support his
allegations. 136 Dr. Whitaker does not deny that he is an alcoholic; in fact, he
revealed this information during his pre-employment interviews. 37 He main-
tains, however, that his alcoholism is under control and that it has not
interfered with the successful performance of any of his assigned teaching
   In Southeastern Community College v. Davis,139 the Supreme Court specifi-
cally pointed out that it is possible to be currently handicapped, yet be
qualified. 140 Although Davis deals with whether section 504 "forbids profes-
sional schools from imposing physical qualifications for admission to their
clinical training programs,"141 the Court's interpretation of the definition and
how it applies to currently handicapped persons is of great significance. In
Davis, the Court held that the clinical portion of the training program was
essential. Total waiver of the requirement for that portion of the program, in
the Court's view, was beyond the modification called for in the regulations. 142
In Whitaker, on the other hand, the plaintiff asserts that he can and has
fulfilled all of the "essential" tasks of his job. He does not seek modification or
waiver, but asks simply that he not be the victim of discrimination because of
his handicap.
   A decision for Dr. Whitaker could have great impact by judicially
establishing, in spite of the 1978 amendment and in concurrence with the
Court's attitude in Davis, that current addicts may be "qualified" to perform
the essential tasks of a job.144 As more addicts bring suit under section 504,

   135. Whitaker maintains that he fulfilled all his obligations as teacher and lecturer. He missed three
 classes because of a temporary lapse, but made certain that his students' academic work did not suffer.
 Affidavit in Response to Order to Show Cause at 6 (on file in office of Andrew Barrick, Attorney, Civil
 Rights Division, Dep't of Justice). The harrassment by his superior commenced when it became evident
 that Whitaker was competing with his superior for limited tenure positions; before that time, his superior
'supported and actively sought Whitaker's appointment to a tenured position. Id.
     136. Affidavit in Response to Order to Show Cause (on file in office of Andrew Barrick, Attorney, Civil
 Rights Division, Dep't of Justice).
     137. Whitaker's physician assured him that his condition would not interfere with his obligations as a
 teacher and scholar. Id.
     138. Because the denial of tenure and the prohibition against his using the special title were due solely
to his alcoholism, Whitaker further alleges that the defendants violated § 504. He claims that his
alcoholism is a "handicap," and that he is an "otherwise qualified handicapped individual." 461 F. Supp. at
106. For more details, see pleadings and accompanying affidavits, Whitaker v. Board of Higher Educ., 461
F. Supp. 99 (E.D.N.Y. 1978) (interim decision). Dr. Whitaker's academic background is excellent. He is a
well-known expert in his field, has excellent recommendations, and has published significant works. Id.
   139. 99 S. Ct. 2361 (1979).
   140. Id. at 2366 n.6.
   141. Id. at 2364.
   142. "§ 84.44(a) [of the regulations] does not encompass the kind of curricular changes that would be
necessary to accommodate respondent in the nursing program." Id. at 2369.
   143. See notes 135-38 supra.
   144. It is possible that the court could decide Whitaker v. Board of Higher Educ., 461 F. Supp. 99
1979]                                         SECTION      504

new fact patterns inevitably will raise issues involving current versus former
addicts. Case-by-case analysis will expand the guidelines for addicts and

                                   2. Private Cause of Action
   Whitaker and Bucher both raise the issue whether a private cause of action
exists to protect the rights created under section 504.145 Congress did not so
indicate in the 1973 statute. 46 HEW stated that conferring such a right is
beyond the authority of the executive branch, but suggested that there is case
law to support the existence of the right. 147 Consequently, the threshold issues
in each section 504 lawsuit have been the existence of a private cause of action
and the mandatory exhaustion of administrative remedies. 148
   Although the Supreme Court declined to consider the question of a private
cause of action under section 504 in New York City Transit Authority v.

tE.D.N.Y. 1978), on grounds other than § 504 by holding that tenure decisions are within the discretion of
the university. Whitaker currently is teaching at Rutgers University, and the case has reached a temporary
    145. Whitaker v. Board of Higher Educ., 461 F. Supp. 99, 106-09 (E.D.N.Y. 1978); Davis v. Bucher,
451 F. Supp. 791, 797-99 (E.D. Pa. 1978).
    146. Rehabilitation Act of 1973. Pub. L. No. 93-112, 87 Stat. 355 (codified at 29 U.S.C. §§ 701-794
(1976), as amended by the Rehabilitation and Comprehensive Services, and Developmental Disabilities
Amendments of 1978, Pub. L. No. 95-602, 92 Stat. 2955.
    147. A private cause of action is the legislatively created right of an individual to bring suit. 45 C.F.R.
pt. 84 app. A, at 406 (citing Lloyd v. Regional Transp. Auth., 548 F.2d 1277 (7th Cir. 1977) (determination
that § 504 created a private cause of action)). See Hairston v. Drosick, 423 F. Supp. 180 (S.D. W. Va. 1976)
(decision based on violation of § 504 without addressing issue of private cause of action); Gurmankin v.
Costanzo, 411 F. Supp. 982 (E.D. Pa. 1976) (discussion of § 504 challenge without questioning right to
private cause of action), affd, 556 F.2d 184 (3d Cir. 1977); cf. Lau v. Nichols, 414 U.S. 563 (1974) (§ 601 of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e (1976), held to create a private cause of action).
    148. In Whitaker v. Board of Higher Educ., 461 F. Supp. 99 (E.D.N.Y. 1978), Chief Judge Michler
denied plaintiffs motion for a preliminary injunction and defendant's motion to dismiss the complaint. The
defendant's motion asserted that no private cause of action exists under § 504 of the Rehabilitation Act, 29
U.S.C.A. § 794 (West Supp. 1979), and even if it does exist, the plaintiff should be required to exhaust
certain administrative remedies before bringing suit. 461 F. Supp. at 106. Judge Michler's opinion stated:
       [W]hile the administrative process may effectively provide, by way of threat of funding
       termination, an incentive to comply with section 504, it provides no means by which an
       individual can obtain personal redress for a section 504 violation . . . . The regulations do
       not provide a "meaningful enforcement mechanism" for the vindication of personal rights.
Id. at 108. The 1978 amendments to the Rehabilitation Act provide for the incorporation of remedies,
procedures, and rights of Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000, into § 504 of the
Rehabilitation Act, 29 U.S.C.A. § 794 (West Supp. 1979). H.R. REP. No. 1780, supra note 64, at 29. See
Supplemental Memorandum of the United States as Amicus Curiae in Opposition to Defendant's Motion
to Dismiss Section 504 Rehabilitation Claims, Whitaker v. Board of Higher Educ., 461 F. Supp. 99
(E.D.N.Y. 1978). The United States Department of Justice sought participation in Whitaker because it was
concerned that an unfavorable ruling in a private suit would impair the early development of § 504 case
law. The Department's issues of concern were a right to a private cause of action and exhaustion of
administrative remedies, as well as the inclusion of alcoholism under § 504. 10 DEP'T OF JUSTICE
NEWSLETTER 227 (1978).
                      THE AMERICAN UNIVERSITY LAW REVIEW                                  [Vol. 28:507

Beazer,149 it did indicate its intention to address the issue in Davis.1' t   5
Unfortunately, however, when the Court decided Davis three months later, it
failed to do so. In fact, the Court specifically stated that it was deciding the
case on the merits, and need not address whether, in the absence of any
express statutory provision, a private cause of action exists under section
504.151 Thus, the Court avoided this opportunity to resolve the question.
    In Cannon v. University of Chicago, the Supreme Court held that a
private cause of action exists under Title IX of the Education Amendments of
 1972,153 despite the absence of any express statutory provision. Similarly, in
Regents of University of Californiav. Bakke, 1 4 eight Supreme Court Justices
either assumed or expressly found the existence of a private cause of action
under Title VI of the Civil Rights Act of 1964,155 which also lacks an express
provision. Since section 504 is so closely modeled after Title IX and Title
VI,156 it is reasonable to assume that the Court would find that an implied
private cause of action exists under this statute as well.
   Obviously, the issue is not unique to section 504 cases involving addicts. 157
It is significant to note, however, that the courts in both Whitaker, in an
interim decision, and Bucher found the existence of a private cause of
action.1 58 The importance of this cannot be understated. If an addict cannot

    149. 440 U.S. 568 (1979). See notes 5-7 & accompanying text supra. The Court, in New York City
Transit Auth. v. Beazer, 440 U.S. 568 (1979), refused to consider the validity of the New York City Transit
Authority's policy of total exclusion from employment of present or former users of methadone under §
504. See note 79 supra.
    150. New York City Transit Auth. v. Beazer, 440 U.S. 568, 580 n.17.
    151. Southeastern Community College v. Davis, 99 S.Ct. 2361, 2366 n.5 (1979). In support of its
refusal to consider the private cause of action question, the Court cited other cases in which it found that
the particular disposition eliminated the need to address the remaining issues. See Norton v. Mathews, 427
U.S. 524, 529-31 (1976) (resolution of jurisdictional arguments unnecessary in light of disposition of
substantive issues in related decision); Moor v. County of Alameda, 411 U.S. 693, 715 (1973) (resolution of
question of federal jurisdiction unnecessary because of lower court's proper refusal to join the claims in
question); United States v. Augenblick, 393 U.S. 348, 351-52 (1969) (question ofjurisdiction over suits not
exceeding $10,000 under Tucker Act, 28 U.S.C. § 1346(a)(2) (1948) (amended 1978), not reached where
present cases fail to rise to that level).
    152. 99 S. Ct. 1946 (1979).
    153. 20 U.S.C. §§ 1618-1686 (1976). Cannon v. University of Chicago, 99 S.Ct. 1946, 1953 (197c),
rested upon the Court's interpretation of congressional intent under the highly discretionary rules of
construction established in Cort v. Ash, 422 U.S. 66 (1975). Cori held that the availability of a remedy
depends on whether the statute was intended to benefit the particular class of which the plaintiff is a
member; whether there is any apparent legislative intent to create a private cause of action; whether such
intent is consistent with the general purpose of the statute; and whether a federal remedy is appropriate in
view of the States' interest in the subject matter. 422 U.S. at 82-85. Mr. Justice Powell, dissenting in
Cannon, called the Cort analysis "an open invitation to federal courts to legislate.       99
                                                                                         ... S Ct. at 1975.
    154. 429 U.S. 953 (1978).
    155. 42 U.S.C. § 2000 (1976).
    156. S.REP.No. 1297, supra note 19, at 39-40, reprinted in [1974] U.S. CODE CONG. & AD. NEWS at
    157. See Note, Section 504 and the HEW Regulations: Effectuating the Rights of the Handicapped, 5
OHIO N.L. REV. 107-32 (1978) (discussion of case law pertaining to a private cause of action under § 504).
    158. Whitaker v. Board of Higher Educ., 461 F. Supp. 99, 106-09 (E.D.N.Y. 1978); Davis v. Bucher,
451 F. Supp. 791, 797-99 (E.D. Pa. 1978).
1979]                                          SECTION 504

bring suit to protect his section 504 rights, his only recourse is to file a
complaint with HEW. While HEW may cut off any additional federal funds
to an offending recipient, it is not able to provide any remedies to the injured
addict. Only a court may enforce such equitable and legal remedies as back
pay, reinstatement, or monetary damages. A qualified addict's right to be free
from employment discrimination cannot be protected unless the addict has
access to the legal system to protect that right. 59


   Congress enacted the 1978 amendment in response to public concern and
uncertainty 60 Although the guidelines provided by the regulations proved
adequate for most handicaps, employers remained doubtful and fearful about
the application of these regulations to addicts. The amendment was an
attempt to allay the concern while maintaining protection for "qualified"
addicts.' 6 1
   HEW must now take appropriate steps to add substance and meaning to
the congressional statement. 62 This is particularly true in light of the

    159. The comments and questions submitted both before and after the promulgation of HEW's
regulations indicated that inclusion of addicts in the definition of handicapped is one of the most
controversial issues raised by the enactment of § 504. 45 C.F.R. pt. 84 app. A, at 404; comments and letters
on the regulations for § 504 of the Rehabilitation Act of 1973 (on file in Office for Civil Rights, Dep't of
Health, Education and Welfare). Despite the controversy, no complaints have been filed with HEW, and
few suits have been brought, during the five years since the passage of the Act. This is, in part, a
consequence of society's lack of compassion towards addicts and their problems, which are often regarded
as self-inflicted. Thus, coming forward to admit one's present or former addiction may require considerable
inner strength and courage.
   Also, lawsuits can be costly. A victim of employment discrimination is likely to have limited resources.
Thus, an attorney or legal clinic must be willing to take the case in the hope that the court may award
attorney's fees. The 1978 amendment provides for attorney's fees. H.R. REP. No. 1780, supra note 64, at
31. Although filing a complaint with HEW or another agency does not require legal counsel, it does take
time and perseverance. The bureaucracy must make specific accommodations in order to be accessible to
potential victims. Significantly, the regulations are oriented toward bringing recipients of financial
assistance into compliance. The Fact Sheet issued by HEW to explain § 504 deals almost exclusively with
TION ACT OF      1973 FACT SHEET (1977). A single paragraph on the final page discusses how to file a
complaint. Id. at 8. It does, however, say that citizens may ask the Office for Civil Rights for help in writing
the complaint. Id. As yet, no addict has filed a complaint with HEW under § 504. Interview with John
Wodatch, former Branch Chief, Handicapped Discrimination Branch, Office of Standards, Policy &
Research, Office for Civil Rights, Dep't of Health, Education and Welfare, in Washington, D.C. (Oct. 24,
   A number of additional factors have inhibited effective utilization of the legislation. These include the
lengthy delay in the issuance of regulations, the lack of clearly defined available remedies, the lack of a
legislatively declared right to a private cause of action, and the resulting need to litigate that right. See note
34 & accompanying text supra. Furthermore, since HEW issued its guideline regulations, only a few
agencies have proposed their own. Many of those regulations currently are waiting to be reviewed by HEW
for consistency. See note 29 supra.
    160. 124 CONG. REC. S15,565-69 (daily ed. Sept. 20, 1978).
   161. Id.
   162. See Exec. Order No. 11,914, 3 C.F.R. 117 (1976). Under the Order, HEW is responsible for
                        THE AMERICAN UNIVERSITY LAW REVIEW                                       [Vol. 28:507

Supreme Court's attention to HEW's regulations in its analysis in Davis. 0
HEW cannot disregard the demand for further clarification of how it will
implement section 504 to protect addicts in the face of the legislative
proclamation and judicial acknowledgment of the agency's regulatory role. It
must recognize the expressed need for additional guidelines' 64 because those
set out in the regulations and in the policy responses to individual inquiries
have not provided enough clarification. If the existing guidelines were
adequate, Congress would not have felt compelled to enact the 1978
   The regulations provide for a determination of "reasonableness" on a case-
by-case basis. 165 In many situations involving addicts, the "reasonable
accommodation" may simply require a change in the employer's negative
attitude toward hiring addicts.166 Discrimination resulting from such an
attitude is precisely what the statute is designed to prevent. 167 In some cases,
however, employers' fears may result from their legitimate concern for the
safety of others and their apprehension of their own exposure to "unreasona-
ble" tort liability rather than a stereotypic distrust of addicts.168 The rights of
the employer and the public must be recognized and protected. In order to
balance appropriately the rights of those involved, stronger statements and
reasoned guidelines must address the specific problems of employing ad-

 providing standards and guidelines for determining who are handicapped individuals and what are
 discriminatory practices under § 504. Presumably, the Executive Order also mandates further HEW
guidelines to effectuate the 1978 amendment.
     163. 99 S. Ct. at 2367-68.
     164. See notes 69-72 & accompanying text supra.
     165. 42 Fed. Reg. 22,686 app. (1977). See notes 108-16 & accompanying text supra.
    In Southeastern Community College v. Davis, 99 S. Ct. 2361 (1979), the Supreme Court determined
what would constitute "unreasonableness" with respect to a nursing training program. It subjectively
determined that allowing Ms. Davis to participate in the training program would require the school "to
lower or to effect substantial modifications of standards to accommodate a handicapped person." Id. at
2370 (emphasis added). It allowed the school to decide that the purpose of the program was to train its
students to participate in all phases of nursing and to be eligible for licensing as established by the State
Board of Nursing. Id.
    The Court should have considered alternatives to total waiver of the clinical program. It rested its
opinion on the requirements for a nursing license without considering whether those requirements may
have resulted in employment discrimination. Drivers are issued licenses restricting them to daytime driving
if they are unable to see at night. Similarly, nurses could be issued licenses restricting their areas of practice.
     166. 124 CONG. REC. S15,568 (daily ed. Sept. 20, 1978) (remarks of Sen. Stafford).
     167. See Southeastern Community College v. Davis, 99 S. Ct. 2361, 2366-67, 2366 n.6 (1979).
     168. 124 CONG. REC. S15,568 (daily ed. Sept. 20, 1978) (remarks of Sen. Stafford). Although in
Southeastern Community College v. Davis, 99 S. Ct. 2361 (1979), the Court was concerned about patients'
safety, an analogy may be drawn to situations involving addicts. Certainly, the safety element was a
motivating factor in the enactment of the 1978 amendment.
    169. It is important to recognize that this is HEW's responsibility. As a regulatory agency, it can
investigate and hold hearings to accumulate the necessary information from people with expertise in
dealing with the problems of addicts and from employers and other groups within industries potentially
affected by the hiring of qualified addicts. Such specialized knowledge is the critical element in successfully
1979]                                       SECTION       504

   The existing regulation analysis and policy responses to individual inquiries
do not provide adequate answers to significant questions regarding addicts.
Critical questions to be answered include: how much risk an employer must
assume in accommodating an addict before the risk constitutes undue burden;
what constitutes a "direct" threat to property and the safety of others; and
what criteria an employer should use to determine whether a genuine threat
exists. Different jobs naturally require different standards. For instance, the
move for the 1978 amendment was initiated by the airline industry which
feared having to hire or to continue to employ addicts as pilots. The Senate
acknowledged the possible danger in such a case, 170 but noted that an addict
would not pose any "direct threat" as a baggage handler. 171 In the health care
area, the letters of inquiry that HEW has received reflect concern about hiring
current or former addicts to work in a facility where drugs are available, such
as a hospital. 172 In response, HEW has taken the position that a hospital is not
required to hire an addict for jobs that permit direct access to drugs.
HEW's opinions, however, provide no basis upon which other employers can
judge the applicability of these decisions to their own employment situations.
HEW may have been establishing a broad policy that it is an undue burden on
the employer to hire an addict to work in a place that by its very nature
provides access to drugs. If that is HEW's rationale, however, it provides little
help to employers because asking a prospective employee about addiction is
an impermissible pre-employment inquiry. 174 Alternatively, HEW may have
established that a drug-free history is a bona fide occupational qualification or
business necessity, therefore permitting pre-employment inquiry into an
applicant's drug-use history.
   Secretary Califano stressed that a common sense approach must be used in
applying the regulations. 7 6 The Supreme Court has stated that HEW
continues to bear the responsibility for their application. 177 While common
sense may preclude placing a drug abuser in an environment that provides

writing regulations to guide the balancing of the rights of all those involved. In the process of writing the
present regulations for § 504, HEW undertook such field research. HEW employees met with handicapped
groups and individuals to gain the expertise needed to write meaningful and appropriate regulations. See
Note, Administrative Action to End Discrimination Based on Handicap:HEW's Section 504 Regulation, 16
HARV. J. LEGIs. 59, 71-72 (1979). Similarly, to address those specific problems unique to addicts, HEW
must examine those questions raised by individual inquiries and develop adequate expertise to address such
   170. 124 CONG. REC. S15,567 (daily ed. Sept. 20, 1978) (remarks of Sen. Cannon).
   171. Id.
   172. HEW Letters, supra note 59.
   173. Id.
   174. 45 C.F.R. § 84.14 (1978). See notes 117-22 & accompanying text supra.
   175. Bona fide occupational qualification may be raised as a defense to a charge of discriminatory
employment practice. For an extensive discussion of its potential use in § 504 cases, see Cook supra note 13,
at 61, 66-73.
1973 FACT SHEET 3 (1977).
   177. Southeastern Community College v. Davis, 99 S. Ct. 2361, 2370 (1979).
                    THE AMERICAN UNIVERSITY LAW REVIEW                                [Vol. 28:507

easy access to drugs, or giving an addict control of a plane, such decisions
provide no guidelines to the proper application of the regulations in evaluat-
ing other employment situations involving addicts.
   The Supreme Court in Davis suggests that human safety is a factor that
may, in an employment context, impose an undue burden. 178 Nowhere in the
regulations, however, is this made clear. The Court considered this factor in a
medical training program context, but where the line is to be drawn in other
circumstances is still unresolved.
   The abstract policies of the regulations may ultimately remain unaffected
by the 1978 amendment. The need, which that legislation addressed, for more
concrete guidelines, however, will still exist. HEW is obligated to follow
through on the congressional action with guidelines for their own recipients
and recipients of federal funds from other agencies. Such guidelines must
indicate what constitutes a "direct threat" to property or the safety of others,
and under what circumstances it may be permissible to inquire about a
person's actual handicap. Although the determinations still will be made on a
case-by-case basis, the employer who bears the burden of proof that his
actions are nondiscriminatory is entitled to some indication of the factors to
be considered. If an employer must make the determination without any
preliminary guidance, the risk of discriminatory employment practices
against addicts is increased.


   Strong policy reasons support the inclusion of addicts in the plan of the
Rehabilitation Act. There is a social benefit to be realized by eliminating
employment discrimination, increasing national earnings, increasing stability
of employment for handicapped workers, and reducing costs to public welfare
and social services. 79 A tremendous amount of government money, both
federal and state, is spent to rehabilitate drug addicts and alcoholics. This
represents a large investment in the future well-being and productivity of the
recipients, the total benefit of which can be realized only if such individuals
are protected from employment discrimination. 8 0
   While addicts must be protected from discrimination, employers must be
permitted to make fair and justified decisions when faced with real risks.
HEW is responsible for balancing the competing interests. The courts, in
turn, must provide the remedies for discriminatory practices.

   178. See id. at 2367-69.
   179. See 41 Fed. Reg. 20,313, 20,321 (1976) (Discrimination Against Handicapped Persons, The Costs,
Benefits, and Inflationary Impact of Implementing Section 504 of the Rehabilitation Act of 1973.)
   180. Documented evidence shows that rehabilitated addicts can and do make successful, reliable
employees. 124 CONG. REC. S15,568 (daily ed. Sept. 20, 1978) (remarks of Sen. Hathaway). Successful
employment is a key to maintaining a rehabilitated state. See Note, Employment DiscriminationAgainst
Rehabilitated Drug Addicts, 49 N.Y.U.L. REV. 67 (1974).
1979]                            SECTION    504

   The difficulties in applying the regulations to addicts suggest that section
504 may not be the most effective way to reach an appropriate balance.
Negative public sentiment, however, may make it difficult to devise any other
statutory design strong enough to be effective and yet be able to surmount
political opposition. The new amendment reflects such a problem.
   Ideally, legislation that specifically prohibits employment discrimination
against drug addicts would be preferable. Regulations designed to deal with
the unique problems of addicts could define the protection more clearly, and
would be easier to understand, follow, and enforce than broad regulations
dealing with all types of handicaps. Unfortunately, it takes time to set the
legislative, bureaucratic, and judicial systems in motion and to produce
effective results-more time than addicts should have to wait for adequate
protection. Thus, it is best to utilize the mechanism already set in motion by
the Rehabilitation Act of 1973.
   Section 504's potential effectiveness is substantially a function of HEW's
provision of much needed guidelines for the unique problems of addicts.
Beyond that, protection of addicts against employment discrimination under
section 504 is in the hands of the courts. If future cases indicate that qualified
addicts are not receiving adequate protection against employment discrimina-
tion, it will be time for Congress to produce new legislation.

                                           MARJORIE SHAMES BERTMAN

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