Jottings By An Employer's Lawyer

Monday, February 24, 2003

Supreme Court Takes ADA Case on Refusing to Rehire Employee Terminated For Failing Drug Test

The Supreme Court today granted certiorari [pdf p.4] in Raytheon v. Hernandez. The decision appealed is Hernandez v. Hughes Missile Systems Company [pdf]decided by the Ninth Circuit in June, 2002. The Court issued a supplemental opinion in August making some changes on the petition for rehearing, and noting with the changes there was no vote for granting the motion to rehear or to hear the case en banc. The case will be heard by the Supreme Court in the fall 2003 term.

In the underlying decision, the 9th Circuit overturned a summary judgment for the employer which had refused to rehire an employee who had previously been allowed to resign in lieu of termination after he tested positive on a drug test. When he reapplied two years later, an employee representative refused to hire him after checking his file and finding that he had been allowed to resign in lieu of termination, applying the company's unwritten policy of not rehiring employees who were allowed to resign in lieu of termination. Hernandez did not claim he was disabled at the time of his re-application, but argued that he was being discriminated against because of his past history of a disability (drug use).

The 9th Circuit found two reasons why Hughes may have violated the ADA. First, he attached a letter from his AA counselor to his application, from which the representative could have concluded he had prior drug use. (The court may also have been influenced by the company's position statement to the EEOC in which it noted Hernandez had been allowed to resign after failing a drug test.) Although one might question that automatic leap, even more amazingly, the court held that even if the representative who made the decision did not know the reason why he had been allowed to resign in lieu of termination, it was the company's policy that kept her in ignorance. From there, the court concluded that having created a policy that kept her from knowing why he resigned, the company could not avail itself of the defense that it was not aware of his past drug use when it made the decision.

The Circuit Court's decision seems to preclude a blanket rule against refusing to rehire employees terminated for improper conduct. Otherwise, the employer, as here, could unknowingly violate the ADA. It would not be surprising if this were another case where the Supreme Court reins in a 9th Circuit employment law decision. If so, at least it is unlikely to be a 9 - 0 decision as Justice Breyer took no part in the decision to grant cert.


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