Supreme Court Decides ADA Case With Mixed Results

January 23, 2004 Advisory
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On December 2, 2003, the United States Supreme Court decided Raytheon Co. v. Hernandez, No. 02-749, an Americans with Disabilities (ADA) case that had been watched for its potential impact on the ability to uniformly enforce employer policies. Unfortunately, the decision left many questions unanswered.
Facts of the Case.

Joel Hernandez had worked for Hughes Missile Systems for 25 years at the time he was terminated for being under the influence of illegal drugs and alcohol. Two years after his termination, he re-applied for a position and attached two reference letters to his application, one from his pastor and one from an Alcoholics Anonymous counselor that stated he was in recovery. The Human Resources employee who reviewed Mr. Hernandez' application claimed that when examining the application she noted that Mr. Hernandez had previously worked for the company. Upon investigation, she discovered he had been terminated for workplace misconduct, and rejected his application pursuant to a company policy against rehiring such employees. Mr. Hernandez filed a claim against the company, alleging he had been discriminated against in violation of the ADA.
Holding.

The Supreme Court held that the Ninth Circuit Court of Appeals applied the wrong analysis to the case, and remanded it for further proceedings. The Court reiterated the distinction it has historically made between disparate treatment and disparate impact cases. In disparate treatment cases, the employer treats individuals less favorably because of their protected class status (e.g., the employer discriminates against individuals on the basis of their race, religion, etc.). Since Mr. Hernandez claimed he was treated differently because of his disability, the question was whether the employer's offer of its policy as justification for the failure to re-hire him was simply a pretext for a different, discriminatory reason. The Ninth Circuit's finding that the blanket policy against hiring former employees terminated for workplace misconduct screened out persons with a record of addiction and thus violated the ADA was, the Court found, an analysis of the law as relates to disparate impact, rather than disparate treatment, cases.
The Good News.

The Court unequivocally stated that a rehire policy such as the one at issue in this case, "is a quintessential legitimate, nondiscriminatory reason for refusing to rehire an employee . . . " The use of one thus can be evidence that the decision not to re-hire a former employee had a legitimate, nondiscriminatory basis. In addition, the Court suggested in footnotes to the case both that employers may discipline employees for behavior arising out of their disability and that an employer cannot violate the ADA if it is unaware of the disability in question.
The Open Question.

The question left unanswered by the Court in Hernandez, however, is whether the application of a policy not allowing the rehire of anyone involuntarily terminated can be uniformly applied, or whether exceptions may need to be made.
Some Guidance for Employers.

Any employer with a policy that makes employees who have been involuntarily terminated for workplace misconduct ineligible for hire should consider whether it is appropriate to have a procedure in place for determining whether exceptions may need to be made. An employee who was terminated for behavior arising out of his/her disability may have a claim under the ADA if he/she is not considered for re-hire. More generally, employers should consider, on a case-by-case basis, whether any rule or policy should be waived as a reasonable accommodation when it impacts the ability of an employee to perform the essential functions of his/her job.

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