plaintiffs' constitutional arguments as well.
C. DEFENDANT'S POLICY IS VIOLATIVE OF THE EQUAL PROTECTION AND DUE PROCESS CLAUSES OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION
1. EQUAL PROTECTION:
Plaintiffs contend that the City's refusal to hire them violates equal protection. They claim that the City's absolute bar to employing former drug users results from an illegal classification of plaintiffs which is unrelated to the City's purpose of hiring qualified employees. The City counters with the argument that the regulation barring the employment of drug users is discretionary in that it is couched in the terms of "may" disqualify and that this discretion has on several occasions been applied. Thus it contends that no classification whatsoever has been created.
Unfortunately, counsel for the City has missed the point. He does not contest that as to the three named plaintiffs, the three plaintiffs who filed affidavits, and a substantial number of other former drug users, the regulations have been used to deny jobs on the sole basis of prior drug use. Therefore, even if the regulations create no arbitrary and absolute classification on their face, a classification of the class of potential employees which plaintiffs seek to represent has been created by the City's method of applying the statute.
There are various standards for testing such a classification under the equal protection clause. Because I believe the issues are clear, I will indulge in applying the standard most favorable to defendants; that is, whether there is a rational relationship between the classification and the legitimate governmental purpose for which it is used. Johnson v. Robison, 415 U.S. 361, 39 L. Ed. 2d 389, 94 S. Ct. 1160 (1974); Eisenstadt v. Baird, 405 U.S. 438, 31 L. Ed. 2d 349, 92 S. Ct. 1029 (1972). I find that no rational relationship whatsoever exists.
There is no doubt that the City, as an employer, has a legitimate interest in hiring individuals who are qualified to perform particular duties. But defendants have failed to demonstrate that this interest would in fact be threatened by employment of former drug users. The hiring policy applied to the named plaintiffs serves as an absolute exclusion of them. No consideration is given to individual factors such as recent employment history, successful maintenance on a methadone program, or evidence of freedom from drug use. It is undisputed that plaintiff Davis has not used drugs since 1972. Plaintiff Sims has been drug free since 1975. Whatever undesirable characteristics may attach to current drug use -- such as a possible inability to perform on the job or untrustworthiness due to an addict's need to support his addiction -- there is absolutely no basis for concluding that those characteristics will in every case persist after the use has ceased. Thus, I have no hesitancy in terming a regulation which bars former users and addicts from city employment, without any consideration of the merits of each individual case, overbroad and irrational. Such a policy bears no connection whatsoever to the City's interest in maintaining the quality of its work force and assuring that its employees perform their tasks. Thompson v. Gallagher, 489 F.2d 443 (5th Cir. 1973). See also Cleveland Board of Education v. LaFleur, 414 U.S. 632, 651, 94 S. Ct. 791, 39 L. Ed. 2d 52 (1974) (Powell, J. concurring); Beazer v. New York City Transit Authority, supra.
2. DUE PROCESS:
Plaintiffs also allege a due process violation. They base their claim on the majority opinion in Cleveland Board of Education v. LaFleur, supra, where the Supreme Court struck down a mandatory requirement that public school teachers take leaves of absence from their employment at a fixed stage in their pregnancies. The court reasoned that this absolute policy created an irrebuttable presumption of physical incompetency due to pregnancy and thus violated due process because it did not provide for individualized determinations of that incompetency. Cf. Vlandis v. Kline, 412 U.S. 441, 37 L. Ed. 2d 63, 93 S. Ct. 2230 (1973); Stanley v. Illinois, 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972); Schware v. Board of Examiners, 353 U.S. 232, 1 L. Ed. 2d 796, 77 S. Ct. 752 (1957). Defendants again argue that the regulation does not create an irrebuttable presumption because the City has on occasion hired past drug users. As noted above, however, the City has applied the policy inflexibly to the named plaintiffs and other members of the class they seek to represent. Thus the City has established a conclusive presumption that drug addiction will affect their job performance. This presumption is "irrebuttable" within the meaning of LaFleur.
In LaFleur the challenged regulation was found unconstitutional because it created a conclusive presumption that every teacher who is four or five months pregnant is physically incapable of continuing her duties, despite the fact that a pregnant woman's ability to continue past a fixed pregnancy period is an individual matter. The reasoning of LaFleur dictates that a city employment policy may not constitutionally exclude all former drug abusers as poor employment risks for all jobs without any determination that the former drug use will affect job performance.
The City must make individual evaluations of each applicant in light of the demands of the position in question. The plaintiffs in this case were in fact found to meet all the present requirements for City employment and were excluded only because of the conclusive operation of the challenged policy. I believe that as a matter of due process the City had an obligation to at least give plaintiffs an opportunity to show that their former drug use would not have affected their ability to work to the City's satisfaction. See Sugarman v. Dougall, 413 U.S. 634, 37 L. Ed. 2d 853, 93 S. Ct. 2842 (1973).
I make this ruling fully cognizant of the fact that there is a significant distinction between LaFleur and this case. In LaFleur, the plaintiff teachers at the time of their termination were already working, and prior case law had made it clear that they had a procedural due process right to a hearing before their termination. Here plaintiffs had not yet commenced their employment at the time the irrebuttable presumption was applied. I do not hold that before a hiring decision a plaintiff is entitled to a full hearing with respect to all job-qualifying characteristics. But if the City establishes a policy which is as facially arbitrary as the one in the case at bar and seeks to apply it in a conclusive manner, then plaintiffs should, at a minimum, be given an opportunity to demonstrate that the policy is inappropriate in their case. Cf. Scott v. Macy, 121 U.S. App. D.C. 205, 349 F.2d 182, 185 (1965) (McGowan, J., concurring) (exclusion of homosexuals from civil service).
Beazer v. New York City Transit Authority, supra, is on point. The court in Beazer held that an absolute ban against public employment by a municipal transit authority of present and past methadone maintained persons was a violation of due process and equal protection. The court reasoned that, even assuming a rational basis for concluding that some such applicants would pose employment risks, a conclusive bar based on an irrebuttable presumption of incompetency is unconstitutional:
It is perfectly clear that there are substantial numbers of present or past methadone maintained persons who would be capable of performing many of the jobs at the TA. Individual consideration, or narrower rules rationally related to certain classifications of jobs, are constitutionally required.