Ban the Box laws generally prohibit employers from inquiring about an applicant’s conviction history before making a conditional employment offer.  Once the employer makes the offer, they are allowed to investigate the applicant’s conviction history.  After completing an individualized assessment, the employer cannot deny employment unless the criminal history, in relation to the position, justifies the employment denial.  Further, the applicant has a right to respond to an employer’s initial rejection. Applicants possessing conviction history due to substance abuse can respond and assert their disability rights, giving them greater leverage during the individualized assessment proceeding.

Disability Defined Under Federal & California Law

Under federal disability law, disability means a physical or mental impairment that substantially limits at least one major life activity.  42 U.S.C. § 12102.  Disability is defined to include any drug addiction.  28 CFR § 36.105.  However, the law excludes current use of illegal drugs from the definition of disability, and those individuals are not entitled to protection.  28 CFR § 36.104; 28 CFR § 36.209.  Alcoholism is also a protected disability under the federal ADA. Collings v. Longview Fibre Co., 63 F. 3d 828, 832, fn. 4 (9th Cir. 1995).

Under federal law, individuals recovering or who have recovered from substance abuse qualify for ADA disability protection.  The law is clear, substance abuse is a disability.

Under California disability law, codified in the Fair Employment & Housing Act (“FEHA”), disability means a physical or mental impairment that limits at least one major life activity.  Disability is defined to include drug addiction.  Government Code § 12926(n).  Mirroring federal law, FEHA excludes current unlawful drug use from protection.  Government Code §§ 12926(j)(5), 12926(m)(6).  Alcoholism is also a protected disability under California FEHA.  Government Code § 12926(n).

Employees and applicants can request accommodation for their disabilities during employment and the application process.  Applicant’s with substance abuse related conviction histories can use federal and state law to strengthen their Ban the Box rights.


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Claiming Reasonable Accommodation for Substance Abuse Conviction History Under Ban the Box

If you received or are receiving treatment for substance abuse and no longer use illicit substances or suffer from alcoholism, you can request an accommodation under federal ADA law and California during the employment process, including while an employer performs a Ban the Box individualized assessment.

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Under most Ban the Box laws, applicants have the right to respond to an initial employment rejection due to their prior conviction history.  For example, California’s Ban the Box right requires employers to provide at least five days for a response, which the applicant can extend.  Typically, applicants provide information and evidence demonstrating their fitness for the position or dispute the accuracy of the conviction history report. However, where the conviction history involves substance abuse or alcoholism, the applicant can also inform the employer about their disability and request accommodation.  Once the employer becomes aware of the disability, they not only have to comply with the Ban the Box law but also the disability law.  If the employer unlawfully rejects the applicant, the applicant suffered employment discrimination on two folds, their disability and conviction history.

What Reasonable Accommodation Must Employer Provide Job Applicants Protected by Ban the Box?

Federal and California disability law applies to applicants.  42 U.S.C. § 12112(b); Government Code § 12940(o).  Under these laws, an employer must provide reasonable accommodation to a disabled applicant that enables an equal opportunity to participate in the application process and be considered for the position.  42 U.S.C. § 12112(b); Government Code § 12940(n).

Applicants with substance abuse conviction histories are typically disabled, provided they no longer use illicit drugs.  Thus, the employer should not consider the conviction or prior drug use during the application process.  Under most Ban the Box laws, the employer must consider information related to the applicant’s disability while performing the individualized assessment.

The employer only need provide accommodation when a disability is known.  So, the applicant must inform the employer of their disability in writing.

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Astanehe Law Knows Employee Rights

If the employer unreasonably decides to disqualify the applicant from the position, the applicant should reconsider filing a complaint with the state or taking legal action. Employers who fail to follow the aforementioned procedure cannot revoke a job offer or terminate their employee. If your employer or prospective employer has denied your Ban the Box law rights, contact Astanehe Law immediately for your consultation. You have rights, and Astanehe Law may be able to assist you. Call us at (415) 226-7170 or email us at Astanehe Law Knows Employee Rights.