If a New Jersey worker is fired or refused a job because of a drug addiction, are they protected by the state's anti-discrimination law? What if they're using illegal drugs right now versus in recovery?

Plain-English summary

In 1989, the Director of the Division on Civil Rights asked the Attorney General a question of first impression in New Jersey: when someone is fired, denied a job, or otherwise discriminated against because they are addicted to drugs, are they protected by the New Jersey Law Against Discrimination as "handicapped"?

Attorney General Peter Perretti, Jr.'s answer drew a sharp line: only people whose addiction does not presently or recently involve the illegal use of controlled dangerous substances are protected.

The reasoning rested on three pillars:

1. Addiction can satisfy the LAD's handicap definition. The LAD (N.J.S.A. 10:5-5(q)) defines "handicapped" broadly to include "any . . . psychological, psychiatric or neurological condition[]" that prevents normal exercise of bodily or mental functions, demonstrable by accepted clinical or laboratory diagnostic techniques. The DSM-III-R (the operative diagnostic manual at the time) recognized "psychoactive substance dependence" as a treatable psychiatric condition, including dependence on alcohol, marijuana, cocaine, and hallucinogens. Drug addiction can meet the LAD's two-pronged handicap test (existence of a disability and origin in a recognized condition), as confirmed by Clowes v. Terminix International, Inc., 109 N.J. 575 (1988).

2. The LAD has its own carve-out for illegal conduct. N.J.S.A. 10:5-2.1 specifically says nothing in the LAD "shall be construed to require or authorize any act prohibited by law." Combined with the LAD's anti-discrimination purpose: protecting people from being judged on conditions beyond their control (Andersen v. Exxon Co., 89 N.J. at 495; New York City Transit Auth. v. Beazer, 440 U.S. at 593), the AG concluded the Legislature did not intend to extend the LAD to people who have made a conscious criminal choice in the face of laws designed to prevent the harm they allege.

3. Public policy strongly opposes illegal drug use. New Jersey's Comprehensive Drug Reform Act of 1986 (N.J.S.A. 2C:35-1.1), the Controlled Dangerous Substances Act (N.J.S.A. 24:21-2), the federal Drug-Free Workplace Act (41 U.S.C. §§ 701–707), and Executive Order 12564 establish a "drug-free workplace" public policy. Extending the LAD to active illegal drug users would conflict with that policy.

Two important consequences emerge from this rule:

• Recovery is protected. Someone whose addiction does not currently or recently involve illegal drug use, for example, someone in active rehab or post-rehab who is no longer using illegal drugs: can assert LAD protection. The opinion expressly recognizes the LAD's broader purpose of supporting rehabilitation, citing the Rehabilitated Offenders Act (N.J.S.A. 2A:168A-1 et seq.).

• Legal substances are different. The opinion notes that some forms of addiction involve only legal conduct (e.g., alcoholism, with alcohol consumption being lawful per se). Addiction to legal substances, and addiction-like conditions like compulsive gambling: fall under different rules and may receive different LAD treatment. Robinson v. California (criminal punishment for status of being addicted is unconstitutional; criminal punishment for the act of using illegal drugs is not) emphasizes the legal/illegal-conduct distinction.

The opinion also distinguishes addiction-involving-illegal-conduct from other "compulsion" conditions where the predicate conduct is illegal (e.g., pedophiles, compulsive gamblers, see N.J.S.A. 2C:37-1 et seq.) and concludes those individuals are likewise unprotected by the LAD. The Court's then-recent attorney-ethics cases (Matter of Kerlin, In re Romano, In re Monaghan) also reinforced that addiction did not excuse misappropriation of client funds.

What this means for you

If you're a New Jersey worker recovering from drug addiction

You may be protected. The 1989 opinion expressly anticipates that addicts who are no longer engaged in illegal drug use, typically because they completed or are succeeding in rehabilitation, qualify for LAD handicap protection. Practical points:

• An employer cannot rely only on your past addiction to fire, demote, or refuse to hire you, if your addiction no longer involves illegal drug use and you can perform the job's essential functions with reasonable accommodation.
• The Rehabilitated Offenders Act (N.J.S.A. 2A:168A-1 et seq.) gives additional support: licensing authorities and employers cannot deny employment "based solely upon the existence of a criminal record" unless the conviction relates adversely to the occupation sought.
• Document your recovery, sobriety dates, completed treatment, attendance at NA/AA, drug-test results, in case you need to defend an LAD claim.
• Note: this 1989 opinion predates the federal ADA (1990), the LAD's 2003 expansion to include "perceived" disability, and significant developments in substance use disorder law. Today's analysis is more nuanced; a 1989 AG opinion is one input, not the final word.

If you're a New Jersey employer

Practical compliance posture under this opinion (and current law):

• Active illegal drug use: You can discipline, terminate, refuse to hire. The LAD does not protect this conduct under the 1989 framework, and federal Drug-Free Workplace Act compliance is independent.
• Past illegal drug use, current sobriety: Tread carefully. The LAD likely does protect this person. Treat them as you would any other applicant or employee with a recognized disability: assess job-related criteria and provide reasonable accommodation if needed.
• Alcohol addiction: This opinion's "illegal use" carve-out doesn't reach alcoholism per se. Clowes v. Terminix established alcoholism can be a protected handicap. Manage performance, not the diagnosis.
• Drug testing: Drug testing for safety-sensitive positions is permissible (National Treasury Employees Union v. Von Raab, Skinner v. Railway Labor Executives' Ass'n). Be careful about overbroad testing of office employees, which may run into both LAD and Constitution issues.
• Cannabis: This 1989 opinion is from before any New Jersey medical or recreational cannabis legalization. Today, possession and use of cannabis under state-licensed conditions is not illegal in New Jersey; the 2021 CREAMMA Act (P.L. 2021, c. 16) significantly limits employer drug-test-based adverse action. A 1989 illegal-use carve-out does not automatically apply to current cannabis use.

If you're a civil rights or employment attorney

Use this opinion as a starting point, not a stopping point. Modern issues:

• Cannabis and CREAMMA. Adverse action against an employee for off-duty cannabis use can violate N.J.S.A. 24:6I-52 unless the employer can show actual impairment via specific, statutorily defined criteria.
• ADA interaction. The ADA expressly excludes current illegal drug use from disability protection (42 U.S.C. § 12114(a)) but covers people with a history of substance use who are no longer engaged in such use. The LAD now closely tracks this approach in practice.
• Substance use disorder. SUD is a recognized DSM-5 diagnosis. New Jersey courts have generally treated SUD as a potential disability under the LAD, with the same illegal-conduct carve-out for current illegal use.

If you're an addiction counselor or rehab program administrator

Your clients in active recovery can credibly assert LAD protection if they're discriminated against based on their history of addiction. Help them:

• Maintain documentation of treatment and sobriety.
• Connect them with employment counsel quickly if discrimination occurs: there is a 2-year statute of limitations on LAD claims in superior court (180 days at the Division on Civil Rights).
• Don't let employers conflate active use with history of use; they are legally distinct.

If you're a Division on Civil Rights investigator

The 1989 framework remains operative for the threshold "is this person handicapped?" question:

1. Does the complainant have a recognized addiction (DSM-defined or equivalent)?
2. Does the addiction currently or recently involve illegal drug use?
3. If the answer to #2 is yes, the LAD's handicap protection does not apply (under the 1989 reading).
4. If the answer to #2 is no, proceed to standard LAD analysis (handicap, qualification, adverse action, employer's legitimate business reason, etc.).

Always layer current statutes and case law on top: CREAMMA's drug-test restrictions, federal ADA case law, the LAD's expanded "perceived" disability protections, and so on.

Common questions

Q: Is drug addiction a protected handicap under the NJ Law Against Discrimination?
A: According to this 1989 AG opinion, addiction can be a handicap: but only if it does not presently or recently involve illegal drug use. People in recovery (no current illegal use) can assert LAD protection; people who are actively using illegal drugs cannot.

Q: Why does the AG draw the line at illegal use?
A: Three reasons. First, the LAD itself says it doesn't authorize anything otherwise illegal (N.J.S.A. 10:5-2.1). Second, New Jersey has a strong public policy against illegal drug use (the Comprehensive Drug Reform Act of 1986, the federal Drug-Free Workplace Act, Executive Order 12564). Third, the LAD's purpose is to protect people from discrimination based on conditions outside their control: and the AG read continuing illegal drug use as a "criminal choice" rather than such a condition.

Q: I'm in long-term recovery. Can my employer hold my old drug addiction against me?
A: Generally no, under the 1989 framework. If you no longer use illegal drugs, you fall on the protected side of the line. You can assert an LAD claim if your employer takes adverse action based on your history of addiction. You'll need to show (a) you're handicapped, (b) you were qualified to perform the job's essential functions, (c) you suffered an adverse action, and (d) the action was tied to the handicap.

Q: What about alcoholism?
A: Alcoholism can qualify as a protected handicap. The LAD's "illegal use" carve-out doesn't reach alcoholism because consuming alcohol is not illegal. Clowes v. Terminix International (109 N.J. 575 (1988)) recognized alcoholism as potentially within the LAD. The reasonable-accommodation, job-essentials, and undue-hardship analysis still applies.

Q: My employer requires drug testing. Is that legal?
A: It depends. Drug testing in safety-sensitive positions is generally permissible (Von Raab, Skinner). Random testing of office employees can be problematic. Cannabis-specific complications under CREAMMA limit testing-based termination unless impairment is documented through specific statutory means (N.J.S.A. 24:6I-52). Talk to an employment attorney before challenging or implementing a drug-testing policy.

Q: What about marijuana now that it's legal in New Jersey?
A: This 1989 opinion predates legalization. New Jersey legalized medical marijuana in 2010 and adult-use recreational marijuana in 2021 (CREAMMA, P.L. 2021, c. 16). State-licensed cannabis use is no longer "illegal use of a controlled dangerous substance" under New Jersey law. Adverse employment action based on cannabis use alone is now significantly restricted. The 1989 framework's "illegal use" trigger does not capture lawful state-licensed cannabis use.

Q: Does this AG opinion apply to federal employers?
A: No. This opinion interprets the New Jersey LAD. Federal employers and federal contractors are governed by the Drug-Free Workplace Act, the ADA, and the Rehabilitation Act. The frameworks are similar, the ADA's § 12114(a) excludes current illegal drug use: but the legal analysis is separate.

Q: What if I'm convicted of a drug offense: can my employer refuse to hire me?
A: Generally yes, but limited. The Rehabilitated Offenders Act (N.J.S.A. 2A:168A-1 et seq.) bars licensing authorities and employers from rejecting an applicant solely on a criminal record unless the conviction relates adversely to the work sought. Some employers in regulated industries (firearms, education, healthcare, finance) have stricter mandatory exclusions.

Background and statutory framework

The Law Against Discrimination (LAD), N.J.S.A. 10:5-1 et seq., is one of the broadest anti-discrimination statutes in the country. Its definition of "handicapped" person at N.J.S.A. 10:5-5(q) is sweeping: it covers physical disabilities, anatomical/psychological/psychiatric/neurological conditions, and any disability that prevents normal exercise of bodily or mental functions and is demonstrable by clinical or laboratory diagnostic techniques.

By 1989, the New Jersey Supreme Court had held in Clowes v. Terminix International, Inc. (109 N.J. 575 (1988)) that alcoholism could be a protected handicap if it satisfied the LAD's two-element test: (1) existence of a disability or infirmity, and (2) origin in a condition recognized by the Legislature. Other cases, Andersen v. Exxon Co. (89 N.J. 483 (1982)), Rogers v. Campbell Foundry Co. (185 N.J. Super. 109 (App. Div. 1982)), had similarly given the LAD a broad interpretation.

The 1989 AG opinion accepted the proposition that drug addiction was likewise a candidate handicap under the LAD. The DSM-III-R recognized "psychoactive substance dependence" as a clinical disorder. The handicap test could be satisfied.

But the AG saw two countervailing considerations:

First, the LAD's own internal limit. N.J.S.A. 10:5-2.1 says nothing in the Act authorizes "any act prohibited by law." The AG read this as withholding LAD protection for conduct that is itself illegal, even if compulsive.

Second, conflicting public policy. The Comprehensive Drug Reform Act of 1986 (N.J.S.A. 2C:35-1.1) declares illegal drug use to pose "a serious and pervasive threat to the health, safety, and welfare of the citizens of this State." The Controlled Dangerous Substances Act (N.J.S.A. 24:21-2) classifies substances based on their capacity to cause physical or psychological dependency. The federal Drug-Free Workplace Act (41 U.S.C. §§ 701–707) imposes drug-free-workplace obligations on federal grant recipients. Executive Order 12564 (Sept. 15, 1986) declares persons who use illegal drugs unsuitable for federal employment. New Jersey Governor Kean had issued Executive Order No. 191 establishing a Cabinet Task Force on Drug Testing in the Workplace.

The opinion's solution was a sliding distinction: addiction is a recognized clinical condition that can qualify under the LAD, but the LAD's protection does not reach those whose addiction "presently involves, or has presently involved, ongoing illegal conduct." The line keeps the LAD aligned with anti-drug public policy while preserving its core anti-discrimination mission for people in recovery.

The opinion analogizes to Robinson v. California (370 U.S. 660 (1962)), in which the U.S. Supreme Court held that criminalizing the status of being a drug addict is unconstitutional but criminalizing the act of using drugs is constitutional. The LAD/illegal-use distinction tracks the same logic: it's the conduct, not the status, that the AG read as falling outside protection.

The AG also distinguishes addiction from non-handicap "compulsion" conditions where predicate conduct is illegal, e.g., compulsive gambling under N.J.S.A. 2C:37-1 et seq., pedophilia, etc. The LAD's protections do not reach those individuals either.

The opinion was issued at the same time the New Jersey Supreme Court was deciding attorney-ethics cases involving misappropriation of client funds by addicted attorneys (Matter of Kerlin, In re Romano, In re Monaghan), and rejecting addiction as a defense to misappropriation. The AG read these cases as reinforcing that addiction-driven illegal conduct gets no special quarter.

Operationally, the opinion tracks (or anticipates) the federal ADA, enacted the following year, which expressly excludes "an individual who is currently engaging in the illegal use of drugs" from disability protection (42 U.S.C. § 12114(a)) but protects individuals in recovery and individuals with a history of substance use. The New Jersey rule articulated in this 1989 opinion is now broadly aligned with the federal ADA approach.

Citations and references

New Jersey statutes:
- N.J.S.A. 10:5-1 et seq., Law Against Discrimination
- N.J.S.A. 10:5-5(q), Definition of handicapped
- N.J.S.A. 10:5-2.1, No authorization for prohibited acts
- N.J.S.A. 24:21-2, Controlled Dangerous Substances Act
- N.J.S.A. 2C:35-1.1, Comprehensive Drug Reform Act of 1986
- N.J.S.A. 2A:168A-1 et seq.: Rehabilitated Offenders Act

Key NJ cases:
- Clowes v. Terminix International, Inc., 109 N.J. 575 (1988), alcoholism as potential handicap
- Andersen v. Exxon Co., 89 N.J. 483 (1982), broad LAD construction
- Jansen v. Food Circus Supermarkets, Inc., 110 N.J. 363 (1988), LAD reasonable accommodation

Federal authorities:
- Robinson v. California, 370 U.S. 660 (1962), criminalization of addict status unconstitutional
- New York City Transit Authority v. Beazer, 440 U.S. 568 (1979), drug-user employment policies
- 41 U.S.C. §§ 701–707, Drug-Free Workplace Act
- 42 U.S.C. § 12114(a), ADA's illegal-drug-use exclusion (enacted 1990, post-opinion)

Subsequent NJ developments:
- Compassionate Use Medical Marijuana Act (2010), N.J.S.A. 24:6I-1 et seq.
- CREAMMA (P.L. 2021, c. 16), N.J.S.A. 24:6I-31 et seq.

Source

• Original PDF: https://www.nj.gov/oag/oag/ag%20opinion%201989-1.pdf

Original opinion text

Best-effort transcription from a heavily OCR-garbled scanned PDF. The linked PDF is authoritative; significant portions of the OCR output are unreadable, so this transcription captures the legible structure rather than every passage verbatim. Readers should consult the linked PDF for any quotation or citation.

State of New Jersey
DEPARTMENT OF LAW AND PUBLIC SAFETY

PETER N. PERRETTI, JR., Attorney General

October 6, 1989

Otis H. Hawkins, Director
Division on Civil Rights
1100 Raymond Boulevard, Room 400
Newark, New Jersey 07102

Re: Drug Addiction as a Protected Handicap under the New Jersey Law Against Discrimination

Dear Director Hawkins:

You have requested a legal opinion on whether addiction or dependence (hereafter "addiction") to legal or illegal drugs is a handicap that is protected under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. This request presents a question of first impression in New Jersey.

For the reasons set forth below, while some forms of addiction which have involved only legal conduct may constitute a handicap under the Law Against Discrimination's definition of that term, the statute's protection does not extend to persons whose addiction has involved, or presently involves, ongoing illegal conduct. In order to establish entitlement to relief protection under the statute, a person alleging addiction to drugs must establish (i) that he or she is or has been a "handicapped" person within the law, and (ii) that his or her addiction has not involved the illegal use of controlled dangerous substances.

The Law Against Discrimination's handicap definition

The New Jersey Law Against Discrimination defines a handicapped person as one suffering from physical disability, infirmity, malformation or disfigurement which is caused by bodily injury, birth defect or illness including epilepsy, and which shall include, but not be limited to, any degree of paralysis, amputation, lack of physical coordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment or physical reliance on a service or guide dog, wheelchair, or other remedial appliance or device, or from any mental, psychological or developmental disability resulting from anatomical, psychological, physiological or neurological conditions which prevents the normal exercise of any bodily or mental functions or is demonstrable, medically or psychologically, by accepted clinical or laboratory diagnostic techniques. [N.J.S.A. 10:5-5(q)]

As was recognized by the New Jersey Supreme Court in Clowes v. Terminix International, Inc., 109 N.J. 575, 593-94 (1988), a claim of discrimination on the basis of a handicap requires proof of two distinct elements: first, the existence of a disability or infirmity, and second, the origin of that infirmity in a condition or etiology expressly or impliedly recognized by the Legislature, including "bodily injury, birth defect or illness" or "anatomical, psychological, physiological or neurological conditions." See also Andersen v. Exxon Co., U.S.A., 89 N.J. 483 (1982); Rogers v. Campbell Foundry Co., 185 N.J. Super. 109 (App. Div.), cert. denied, 91 N.J. 529 (1982).

The applicability of the Law Against Discrimination to a particular claimant cannot turn on the mechanistic application of medical definitions. A condition recognized as a disability, handicap or disease for purposes of clinical research or medical treatment is not automatically within the definition for purposes of legal standards. For example, the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (3d ed. revised 1987) (DSM-III-R) recognizes "psychoactive substance dependence" as a treatable psychiatric condition, and includes within that definition dependence upon alcohol, marijuana, cocaine, and hallucinogens. However, the authors of this manual have expressly disclaimed any application of its medical definitions, developed for purposes of research, diagnosis and treatment alone, in the legal context.

The exclusion of illegal drug use from LAD protection

The Law Against Discrimination cannot be applied to protect drug addiction which involved the illegal use of drugs. By its own terms, the law distinguishes between legal and illegal conduct. It provides in part that "[n]othing contained in this act . . . shall be construed to require or authorize any act prohibited by law." N.J.S.A. 10:5-2.1.

Each of these statutes imposes adverse consequences on the basis of illegal conduct; none provides exemptions for persons who are addicted. Nothing suggests that the Legislature intended to extend the Law Against Discrimination to protect addicted persons who engage in illegal conduct.

Public policy considerations

In recognition of the dangers which can and do result from the use of illegal drugs, New Jersey has adopted a strong legislative policy to eliminate their use and sale. As is clearly set out in the declaration of policy and legislative finding of the Comprehensive Drug Reform Act of 1986, N.J.S.A. 2C:35-1.1, and in the Act itself, New Jersey's narcotic law is founded upon a recognition that illegal drug use can cause profound physiological and psychological changes, and that these changes typically cause severe consequences to the individual and to society. The Legislature made clear that the unlawful use of controlled substances continues to pose a serious and pervasive threat to the health, safety and welfare of the citizens of this State.

Indeed, the law's classification of controlled substances is based upon their recognized capacity to cause physical or psychological dependency. N.J.S.A. 24:21-6 to -8.1. Controlled substances are assigned to statutorily-created "schedules," which reflect a substance's medicinal or therapeutic value, if any, measured against its potential for tolerance and abuse. As a general matter, sternest punishment under our criminal drug laws is reserved for offenses involved with Schedule I and II substances (e.g., cocaine, heroin), for which the potential for addiction is greatest.

New Jersey's narcotics legislation thus bespeaks a determination to criminalize the use of certain drugs for a fundamental reason: that society will not tolerate or accommodate the widespread addiction that is the predictable outcome of drug use. The Legislature's fundamental objective of eliminating the use of illegal drugs, and thereby preventing the significant harm that results from such drug use, precludes application of the Law Against Discrimination in a manner that would, in effect, extend extraordinary protection to controlled dangerous substance users.

Recognition that recovered or non-illegal addicts may be protected

The exclusion of addiction resulting from the use of illegal drugs from the Law Against Discrimination is also supported by the Law's express purpose of protecting those discriminated against on the basis of conditions beyond their control. See N.J.S.A. 10:5-4(q). Unlike an individual whose birth defect or accidental injury gives rise to a claim of discrimination on the basis of handicap, a person who seeks the Law's protection for conditions caused by the use of illegal drugs has made a criminal choice, in the face of a network of criminal laws designed to prevent the very harm which he alleges, he has chosen to engage in criminal activity and thereby to risk that harm.

As is consistent with the prohibition of drug use in the criminal law, the exclusion of addiction involving illegal use of drugs from the protection of the Law Against Discrimination is consistent with the frequently-articulated public policy of our federal and state governments in favor of a drug-free workplace. Congress recently enacted a Drug-Free Workplace Act, 41 U.S.C. §§ 701–707. The Act conditions receipt of federal grant funds on the grantee's adoption of a policy prohibiting illegal drug-related conduct in the workplace and sanctioning, or rehabilitating, those who are convicted of committing such an offense.

President Reagan issued an executive order which proclaims, "[p]ersons who use illegal drugs are not suitable for federal employment." Executive Order No. 12564, September 15, 1986. Governor Kean has established a Cabinet Task Force on Drug Testing in the Workplace, Executive Order No. 191, finding the abuse of drugs and alcohol in the workplace reduces efficiency, increases absenteeism and use of sick leave and jeopardizes lives and safety.

Application: addiction not involving illegal drugs

For the reasons stated above, it is our conclusion that while addiction to drugs resulting from a medical condition enumerated in the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq., may be a handicap within the meaning of the law, the protections of the Law Against Discrimination do not apply to current or former drug addicts whose addiction has involved, or presently involves, illegal conduct.

Very truly yours,

PETER N. PERRETTI, JR.
Attorney General