Disability Discrimination: Blanket Refusal To Rehire Discharged Employees Violates ADA; Would Your Rehire Policy Pass Muster?

Suppose a former employee applies for a position with your company. You check their personnel record and discover the person was terminated. Following standard company procedure not to rehire previously discharged employees, you reject the person’s application outright.But the applicant turns around and sues you under the federal Americans with Disabilities Act, claiming you really based the rejection on their former drug addiction, which led to the termination. You’re not concerned—you simply enforced a standard company policy. But according to a recent Ninth Circuit Court of Appeals decision, your blanket policy in itself violates the ADA. We’ll explain how the court came to this conclusion and what it means for your hiring procedures.

Employee Resigns After Positive Drug Test

Joel Hernandez worked for Hughes Missile Systems Co. in Arizona for 25 years, first as a janitor and then as a service technician. During that time he struggled with a known alcohol problem. But when Hernandez tested positive for cocaine at work, Hughes offered him the choice of voluntarily resigning under threat of termination or being terminated for the positive drug test. Hernandez signed a separation agreement indicating he “quit in lieu of discharge” for personal conduct.

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Rehire Denied

Two years later, Hernandez applied for rehire with Hughes. On theapplication, he noted his previous company employment. He also attached his resume and reference letters from his church pastor and a counselor who worked with recovering alcoholics.

Joanne Bockmiller in Hughes’ labor relations department reviewed Hernandez’s application and employee separation sheet. She concluded that he was ineligible for rehire based on the company’s unwritten policy of not rehiring former employees who were discharged or who resigned in place of termination.

Employee Claims Disability Discrimination

Hernandez sued. He claimed he wasn’t rehired, in violation of the ADA, because of his drug addiction record. Hughes countered that it didn’t consider his drug problem when it rejected his application and that Bockmiller didn’t know why he resigned. Rather, the company claimed, it was simply enforcing a blanket policy of not rehiring employees previously terminated for violating company rules. Hughes argued that this policy doesn’t single out employees with drug or alcohol problems from those terminated for violating other rules, such as fighting or stealing company property.

Reason For Discharge Must Be Considered

The Ninth Circuit Court of Appeals, which covers California, sided with Hernandez. The court explained that although the ADA does not protect an employee or applicant currently engaging in illegal drug use, it does protect qualified individuals who have been rehabilitated for drug or alcohol addiction. Therefore, said the court, a blanket policy against rehiring former employees who violated company policy discriminates against rehabilitated addicts whose only work offense was testing positive for drugs or alcohol.

Thus, the court allowed Hernandez to proceed with his suit. To succeed, he must now prove to a jury that he qualified for the position he sought.

Review Your Hiring Policy

Here are suggestions for avoiding trouble in light of this decision:

 

1. Look past the cover sheet when rehiring employees. If you refuse to hire employees because they violated a company rule, your hiring policy may violate the ADA. Even if an employee was terminated for drug- or alcohol-related misconduct rather than failing a drug test, it can be risky to automatically reject that person for rehire. Keep in mind, however, that if an employee can’t perform the essential functions of the job they’re applying for, you don’t have to rehire them.

    

2. Consider testing applicants who claim to be rehabilitated. According to employment law attorney Jessavel Delumen Wong with the Sacramento firm of Cook Brown LLP, you can adopt or administer reasonable policies or procedures, such as drug testing, to ensure that an employee who claims to be rehabilitated no longer engages in illegal drug use.

    

3. Keep information private. Wong cautions that you should make certain that company managers who receive personal information about an applicant, such as details about drug or alcohol use, understand the importance of keeping it confidential.

    

4. Maintain good records. Scrupulously document your objective nondiscriminatory reasons for refusing to rehire a former employee. Your reasons should be directly tied to the job qualifications and not tainted by anything connected to the former employee’s drug or alcohol problems.