(FORTUNE Magazine) – The number most commonly associated with Exxon these days is $5 billion, this fancy figure being the amount of the punitive damages arrived at in September by an Anchorage jury in a lawsuit brought by various fisherpersons and other Alaskans claiming to have been damaged by the Exxon Valdez oil spill in 1989. The jury also required Joseph Hazelwood -- the vessel's skipper, who turned up drunk after the accident -- to add $5,000 to the pot. Your servant was recently reading about Exxon's corporate response to the disaster, and the number that leaped off the page at him was 107. That is the number of lawsuits brought against the company as a result of the tough new drug and alcohol standards imposed on employees after the oil spill. Basically the standards state that Exxon employees with histories of drug addiction or alcoholism will no longer be eligible for certain designated "safety-sensitive" jobs in the company. (Apparently about one job in ten is so designated.) If they are in such jobs, they get reassigned to other non- designated positions in the company with no reduction in pay. As all you Only in America readers have already surmised, the employee-plaintiffs who sued the company (a) have charged discrimination and (b) have a certain amount of law on their side. Two laws are involved: the Rehabilitation Act of 1973 and the Americans with Disabilities Act (ADA) of 1990. Both say recovering alcoholics and drug addicts may not be discriminated against because of their handicaps and disabilities. The 1973 act also appears to require affirmative action on behalf of the handicapped population and says nothing about exceptions for recovering drug and alcohol abusers. Companies can, of course, fire or reassign any employees unable to perform their jobs, but in deciding who's able and who isn't, the company may not consider their histories of addiction. Or at least that seems to be the prevailing view at both the U.S. Labor Department (which monitors the Rehabilitation Act) and the Equal Employment Opportunity Commission (in charge of the ADA). Both agencies tend to see the acts as clear mandates to combat prejudicial presumptions about the workplace performance of folks who have had drug or alcohol problems. As a Labor Department Administrative Law Judge wrote in a 1992 case that went against Exxon: "Public perception of the Valdez incident as having been caused by a recovering alcoholic does not justify discrimination against all recovering alcoholics." So there it is. Five years after the alcohol-related disaster in Prince William Sound, Exxon is under government pressure to put at-risk workers in safety-sensitive jobs. Is there any hope of getting off this Looney-Tunes track? Talking to Exxon people involved in the litigation, one senses that they are modestly hopeful about developments in two areas. First, they hope to get more judges to accept a "business necessity" defense of their new standards, i.e., a defense based on some increased probability of unacceptable losses of life and/or environmental damage when recovering alcoholics and addicts are in safety-sensitive jobs. Exxon has data showing relapses by one-third of its own employees in alcohol-related rehab programs; the figure rises to two-thirds for cocaine. But, of course, the plaintiff's bar can always produce expert witnesses to argue that such data do not apply to the case at hand and that, anyhow, Exxon has an obligation to monitor the rehab population and catch any problems before they recur. The company has in fact won a fair number of cases with a business-necessity defense, but the rules in this area remain murky.

The other area involves privacy, a huge uncharted area of drug-alcohol employment law. It does not, after all, do a company a whole lot of good to write standards that exclude recovering alcoholics from safety-sensitive jobs if the company has trouble identifying those folks. Exxon has taken the position that the affected employees must tell the company if, say, they are in a rehab program or recently got hit with a DWI summons. But it remains unclear how far this can be pushed when employees don't cooperate -- and many obviously don't. Only in America readers will possibly be stunned to learn that affirmative action for recovering alcoholics and substance abusers seems to be going no place. Despite the recruitment mandate in the 1973 act, the Labor Department doesn't seem to be pushing quotas for ex-drunks, and we couldn't find a company that admits to having any such program. A whiff of sanity, eh?