Raytheon Co. v. Hernandez, Joel (12/02/2003)

Questions presented: Whether the Americans with Disabilities Act confers preferential rehire rights on employees lawfully terminated for misconduct, such as illegal drug use?

BY JAMES FISHER, MEDILL NEWS SERVICE

Since the 1960s, Joel Hernandez had worked for Hughes Missile Systems Co. in Tucson, Arizona, rising in the ranks from a janitor. In July 1991, while Hernandez was working as a technician, he was given a drug test, which indicated the presence of cocaine. The test came after a supervisor thought he smelled alcohol on Hernandez breath. Hernandez admitted he had used cocaine the night before. He was allowed to resign instead of being fired; this arrangement was noted on his Hughes personnel file. Specifically, there was a handwritten note in the file that Hernandez "quit in lieu of discharge."

In 1994, Hernandez applied to work for Hughes again, for a job opening similar to the position he had resigned from. Attached to his application was a letter from a drug addiction counselor stating that Hernandez was in Alcoholics Anonymous, was two years sober, and recovering from alcoholism. The job application asked if the applicant had ever worked for Hughes before. Hernandez indicated that he had.

When employees in the personnel office reviewed his application and looked up his old file, they saw the note about quitting in lieu of discharge. The person who reviewed the file testified that she rejected the application for rehire because the company had an unwritten policy against rehiring former employees who (a) were fired or (b) resigned in lieu of being fired. The person said she did not know specifically why Hernandez had been asked to resign, i.e., his history of alcoholism. This action the rejection of Hernandez 1994 job application prompted Hernandez to file a complaint with the Equal Employment Opportunity Commission.

Drug and/or alcohol is a recognized disability under the Americans with Disabilities Act. Hernandez says his employer knew since 1986 that he was an alcoholic, when his Hughes health plan paid for inpatient treatment in a Tucson rehabilitation clinic. Hernandez claims that Hughes perceived he had a disability in 1994, although he does not agree that was actually disabled at the time. The ADA, however, protects people who have "a physical or mental impairment," a record of such impairment, or are regarded as having such an impairment. Hernandez says he fell into the third category in 1994.

A central disputed fact in the case is why Hernandez application for rehire was so quickly rejected. Hernandez claims that when he applied for the job in 1994, he was automatically rejected because of his perceived disability which would be a violation of laws protecting the disabled. He says that Hughes policy on job-seekers who were previously fired or quit instead of being fired was unwritten and inconsistently applied.

But Hughes says that Hernandez was dropped from the applicant pool not because of his disability but because of the misconduct on the job in 1991 coming to work under the influence of drugs. The company argues that the personnel employee who dealt with Hernandez 1994 job application was unaware of his disability and only saw that he had quit in lieu of being fired. Hughes also says that it is common for companies to refuse formerly terminated employees future job applications on their face.

Hernandez filed a complaint with the EEOC in 1994. Hughes reply to the EEOC filing gave two reasons for rejecting his reapplication. A manager wrote that Hernandez application was rejected "ased on his demonstrated drug use while previously employed" the reason Hughes emphasizes now "and the complete lack of evidence indicating successful drug rehabilitation" which Hernandez seizes on as evidence that the company had a disability in mind when it denied his application. In 1997, the EEOC issued a right-to-sue letter, agreeing with Hernandez that there was reasonable cause for a lawsuit.

Hernandez sued Hughes, which has since been acquired by Raytheon Co., in federal court in Arizona. Hughes filed a motion for summary judgment, which the judge granted. Hernandez appealed to the 9th Circuit Court of Appeals, which unanimously reversed.

The appeals court confirmed that drug addiction is a disability under the ADA. "Although the ADA does not protect an employee or applicant who is currently engaging in drug use," Judge Stephen Reinhardt wrote, "it does protect qualified individuals with a drug addiction who have been successfully rehabilitated." The court said Hernandez should be allowed to show that Hughes rejected his application because of his record of prior drug addiction.

Responding to Hughess argument that Hernandez could not reapply because he used drugs on the job, notwithstanding a drug addiction, the court found that the rule, "although not unlawful on its face, violates the ADA as applied to former drug addicts whose only work-related offense was testing positive because of their addiction." In other words, the court declined to separate Hernandez drug use incident in 1991 from the context of his drug addiction. Hughes appealed.

On Feb. 24, 2003, the U.S. Supreme Court accepted review in the case and allowed the Equal Employment Advisory Council to file a "friend of the court" brief. Justice Stephen Breyer took no part in the consideration or decision in the case.

On Dec. 2, 2003, a unanimous Court reversed, holding 7-0 that because Hughes had a neutral no-rehire policy of not employing people who had demonstrated drug use while previously employed, the company's policy did not violate the ADA.

In so holding, Justice Clarence Thomas noted for the Court that there is a distinction between disparate-treatment and disparate-impact claims. The former arise when an employer treats some people less favorably than others because of a protected characteristic, while the latter involve facially neutral employment practices that fall more harshly on one group than another and cannot be justified by business necessity.

Though both claims can be cognizable under the ADA, Hernandez's theory in the case was that he was a victim of disparate-treatment in that Hughes refused to rehire him because it regarded him as disabled. The Court rejected that argument, concluding that Hughes' no-hire policy was a quintessential legitimate, nondiscriminatory reason for refusing to rehire an employee who was terminated for violating workplace conduct rules.

By framing its opinion in this way, the Court did not need to reach the question on which it granted certiorari.

Justices David Souter and Stephen Breyer recused themselves from deciding the case.