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Supreme Court Watch: Employer’s Non-Rehire Policy Challenged by Alleged Rehabilitatd Alcohol/Drug User

Volume 2, Issue 4
May 1, 2003

On February 24, 2003, the United States Supreme Court accepted review of a Ninth Circuit case that challenged, under the Americans with Disabilities Act ("ADA"), an employer's no-rehire policy. Hernandez v. Hughes Missile Systems, Inc., 298 F.3d 1030 (9th Cir. 2002), cert. granted sub nom. Raytheon Co. v. Hernandez, -- U.S. --, 123 S. Ct. 1255 (2003). The Supreme Court will consider whether an employer violated the ADA when it refused to rehire a rehabilitated alcohol/drug user.

Joel Hernandez, who was known to have a history of alcohol problems, had worked for the employer for twenty-five years when he tested positive for cocaine. Hernandez resigned in lieu of termination. More than two years later, Hernandez reapplied for employment with the employer. Although Hernandez allegedly offered the employer evidence of his sobriety, the employer refused to rehire Hernandez because he had resigned in lieu of discharge.

Hernandez argues that the employer failed to rehire him because of his disability, i.e., rehabilitated alcohol/drug user. The Equal Employment Opportunity Commission ("EEOC") agreed and issued a probable cause determination. The employer argued its policy was not discriminatory against former employees who experienced drug addictions because it did not single out such employees or treat them differently than employees who violated other rules. The United States Court of Appeals for the Ninth Circuit held that the employer's no-rehire policy, "although not unlawful on its face, violate[d] the ADA as applied to former drug addicts whose only work-related offense was testing positive because of their addiction."

The Hernandez case illustrates how courts can view facially-neutral policies as discriminatory in their application. The Supreme Court's opinion will hopefully provide useful guidance to employers as to rehire policies, as well as the treatment of rehabilitated drug users.

Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.