A federal court in Nevada dismissed a casino employee’s American with Disabilities Act (“ADA”) claims — even though he had been treated for substance abuse in the past — because he admitted to current drug use which is not protected under the ADA. Scott v. Harrah’s LLC, No. 2:17-cv-01066-APG-VCF (D. Nev. May 9, 2017).

Donald A. Scott Jr. (“Scott”) worked at Harrah’s Hotel & Casino (“Harrah’s”) from 2006 to 2015. In 2014, Scott informed Harrah’s that he suffered from drug addiction. In response to Scott’s admission, Harrah’s adjusted his work schedule so that he could seek treatment. Scott voluntarily sought treatment and rehabilitation services in 2014 and again in November 2015. In December 2015, Harrah’s randomly drug tested Scott and suspended him without pay pending the results. The results came back positive and Scott admitted to using marijuana approximately 2 to 3 weeks before the test. Consequently, Scott’s employment was terminated. He filed suit against Harrah’s for disability discrimination, wrongful termination and retaliation under the ADA.

The Court stated that drug addiction that “substantially limits” one or more major life activities of an individual is a recognized disability under the ADA. Individuals who have successfully completed or are participating in a drug rehabilitation program are protected. However, the phrase “individual with a disability” specifically excludes an “individual who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.” 42 U.S.C. §12210(a). Furthermore, the phrase “currently engaging” is not limited to the use of drugs on the day of the test. Indeed, the Court noted that the Ninth Circuit has interpreted the “currently engaging” language to mean “employees who have not refrained from using drugs for a significant period of time.”

Because Scott had admitted to using drugs within a few weeks of the drug test, the Court found that he was actively engaging in prohibited conduct at the time of his termination. Therefore, Scott was not a qualified individual under the ADA and the Court dismissed his complaint with prejudice.