United States Supreme Court Addresses “Recovered Addict” Case

On December 2, 2003 , the United States Supreme Court issued a decision in an ADA case regarding drug addiction and rehabilitation that arose out of the Ninth Circuit Court of Appeals.  Raytheon v. Hernandez, 2003 U.S. LEXIS 8965.  In that case, an employee, Joel Hernandez, tested positive for cocaine.  He admitted that his conduct violated Raytheon's workplace conduct rules, and he was allowed to resign in lieu of termination.   More then two years later, Hernandez applied to be rehired.  In his application, he advised that he had worked for Raytheon before.  He also presented evidence of drug rehabilitation, including regular attendance at Alcoholics Anonymous meetings.  His application was rejected.  In her deposition, the person who made the decision not to rehire him explained that Raytheon has an unwritten policy of not rehiring employees who were previously terminated for workplace misconduct.  She stated she did not know Hernandez was a former drug addict and did not see anything to suggest he had a record of addiction.  Rather, because he indicated he was a former employee she reviewed his personnel file and based on that review simply knew he had been discharged for violating workplace conduct rules.  (The "Employee Separation Summary" she reviewed simply stated "discharge for personal conduct (quit in lieu of discharge).")  Based on the no-rehire rule, this was a basis to reject his application.

Hernandez filed a charge with the EEOC claiming that he had been discriminated against in violation of the ADA.  He received a right-to-sue letter and filed an ADA action alleging that he was the victim of unlawful disparate treatment -- i.e., Raytheon rejected his application because of his record of drug addiction and/or because he was regarded as being a drug addict.  Raytheon moved for summary judgment on the basis that it simply applied a neutral policy of not rehiring employees who had been terminated  for violating a workplace rule.  In response to the motion, Hernandez argued for the first time that even if Raytheon applied a neutral no-rehire policy to him, it still  violated the ADA.  In other words, even if there was no intent to unlawfully discriminate and thus no disparate treatment, the policy had a disparate and discriminatory impact on him.  The district court granted summary judgment on the disparate treatment claim and held that the disparate impact claim had not been timely raised.  Hernandez appealed.  The Ninth Circuit affirmed as to the disparate impact claim but as to the disparate treatment claim held that Raytheon had not met its burden of establishing a legitimate, nondiscriminatory reason for its decision not to rehire Hernandez.  According to the Ninth Circuit, Raytheon's no-rehire policy, though lawful on its face, was unlawful when applied to an employee who was forced to resign due to illegal drug use but has subsequently been rehabilitated. 

The Supreme Court vacated the Ninth Circuit's decision.  The Court held that the Ninth Circuit in essence mixed apples with oranges by improperly applying a disparate impact analysis to Hernandez's disparate treatment claim.  The Court explained that while both claims are cognizable under the ADA , they are distinct concepts that the Ninth Circuit improperly blurred together.  Specifically, disparate treatment occurs where an employer treats someone less favorably because of a protected characteristic -- i.e., there is evidence of an intent to unlawfully discriminate.  Disparate impact, on the other hand, involves a facially neutral employment practice that affects one protected group more harshly than other groups and cannot be justified by business necessity.  Under a disparate impact theory, there is thus no need to prove discriminatory intent.  The Court agreed with the Ninth Circuit that because Hernandez did not timely assert a disparate impact theory he was limited to the disparate treatment theory -- i.e., that Raytheon refused to rehire him because it regarded him as disabled and/or because of his record of disability.  

The Court then turned to the McDonnell-Douglas shifting burdens analysis used in disparate treatment cases.  First, the Court found that Hernandez presented a prima facie case.  Then the Court found that through its explanation of its no-rehire policy, Raytheon presented a legitimate, nondiscriminatory basis for not rehiring Hernandez.  At that point, the Court explained, the issue before the Ninth Circuit should have been whether there was sufficient evidence to could conclude that Raytheon's proffered explanation for rejecting Hernandez's application was instead a pretext for unlawful discrimination based on his disability.  Rather than turn to the pretext analysis, however, the Ninth Circuit had, as a matter of law, rejected Raytheon's explanation of its no-rehire policy because "it serves to bar re-employment of a drug addict despite his successful rehabilitation."  The Court held that in so doing the Ninth Circuit applied an analysis that is inapplicable to a disparate treatment claim and instead improperly focused on factors relating to a disparate impact claim.  The Court remanded the case for further proceedings focused on the pretext issue.