From: mquigley@ncd.gov (Mark Quigley)

NEWS RELEASE NCD #04-442
December 3, 2003
Contact: Mark S. Quigley
202-272-2004
202-272-2074 TTY

National Council on Disability Says Partial Victory in Supreme Court's Hernandez v. Raytheon Decision

WASHINGTON-The U.S. Supreme Court decision in Hernandez v. Raytheon (No. 01-15512) (December 2, 2003) is a partial victory for people with disabilities because it left intact the Americans with Disabilities Act (ADA) requirement that employers may not discriminate against applicants who have been rehabilitated and do not currently use drugs illegally. The Court's ruling was narrow. While the court ruled that Raytheon did not have to rehire workers who are dismissed for violating workplace conduct rules, it did not decide the broader question of the extent of protections afforded by the ADA to the more than five million workers with a history of substance abuse if they are disparately impacted by an employer's workplace policies.

Facts and Arguments

Raytheon refused to rehire a former twenty-five-year employee, Joel Hernandez, who had been dismissed from the company two years earlier for having failed a drug test. When Mr. Hernandez reapplied, his application included documentation of his being in recovery. The Ninth Circuit Court of Appeals ruled that the company's blanket policy of rejecting any application from previously terminated employees violates the ADA when the failure to rehire is related to a disability. While an individual currently engaged in the illegal use of drugs is not protected by the ADA, an individual who has recovered or is in recovery and no longer illegally using drugs is protected. The plaintiff argued that the reason his application was rejected was because of his history of drug addiction, and that even if the person who reviewed his application was unaware of his prior drug addiction, the company's no-rehire policy violated the ADA because it had a "disparate impact" on recovering drug addicts. That is, Mr. Hernandez raised two claims - first, that Raytheon's rejection of his application amounted to "disparate treatment" (intentional discrimination against him because of his disability), and second, that Raytheon's blanket policy of rejecting applicants formerly dismissed for workplace misconduct, had a "disparate impact" on recovering drug addicts (facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another).

As to the plaintiff's claim that his application for employment was rejected because of his prior drug addiction, the Supreme Court found that the employer's facially neutral policy of not rehiring previously dismissed employees would be a legitimate defense unless the plaintiff can show the policy was used as a pretext and that the employer, in fact, based its decision on the applicant's disability. The record is unclear as to exactly what information Raytheon considered in its decision not to rehire Mr. Hernandez. On remand, the Ninth Circuit will now have to examine the facts to determine the employer's real reason for not rehiring the plaintiff. As to the plaintiff's argument that such a facially neutral policy is by law a violation of the ADA because it has a disparate impact on certain people with disabilities, the lower courts determined, and the Supreme Court agreed, that Mr. Hernandez had not raised the "disparate impact" claim in a timely manner.

The Supreme Court acknowledged that both "disparate treatment" and "disparate impact" claims are available under the ADA, but declined to address whether disparate impact occurred in this case because it was not raised in a timely manner. At a minimum, the Raytheon case establishes that when plaintiffs bring a "disparate treatment" claim under the ADA for discrimination in the workplace, and the employer invokes a blanket policy defense, the plaintiffs will have to prove that the employer's actions were actually motivated by the individual's disability and not the blanket policy.

For more information contact Mark Quigley or Jeff Rosen at 202-272-2004 or 202-272-2074 (TTY).

# # #

Note: NCD is an independent federal agency making recommendations to the President and Congress on disability policy. NCD first proposed and then drafted the original Americans with Disabilities Act.