HR Management & Compliance

Disability Discrimination: Supreme Court Upholds Non-Rehire-for-Drug-Use Policy Violation; Caution Still Required. 3 Practices to Keep You Out of Court

The U.S. Supreme Court has upheld an employer’s refusal to rehire a former employee who violated the company’s drug use policies. This means employers may continue to use neutral policies, but an employee can still prove the employer intentionally discriminated against them and is just using the policy as a pretext to hide wrongdoing. We’ll explain what the ruling means for your policies and give you expert tips for covering your bases.

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. One day when his behavior raised suspicions, he was given a drug test that came back positive for cocaine use. Hernandez then had the choice of voluntarily resigning under threat of termination or being terminated for the positive drug test. He signed a separation agreement indicating he quit in lieu of discharge for personal conduct.

Rehire Denied

Hernandez reapplied for work with Hughes two and a half years later. On the application, he noted his previous employment with the company. He attached his resume and a reference letter from a counselor who stated Hernandez was in recovery. Hughes refused to rehire Hernandez based on the company’s unwritten policy of not rehiring former employees terminated for workplace misconduct.

Employee Claims Disability Discrimination

Hernandez filed a claim with the Equal Employment Opportunity Commission. When Hughes responded to the charge, it included a statement that Hernandez was not rehired because of his previous drug use and a lack of evidence of rehabilitation. Hernandez then sued claiming the real reason he was denied rehire—in violation of the Americans with Disabilities Act—was his drug addiction record. Once in court, Hughes claimed the only reason it didn’t rehire Hernandez was its blanket policy of not rehiring employees fired for violating company rules.


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Supreme Court Overturns Ninth Circuit Ruling

The Ninth Circuit Court of Appeals said that while 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 discriminated against rehabilitated addicts whose only work offense was testing positive for drugs or alcohol.

But the Supreme Court disagreed, saying Hughes offered a legitimate, nondiscriminatory reason for refusing to rehire Hernandez—his violation of company rules. And, if Hughes used a neutral, generally applicable no-rehire policy in rejecting Hernandez’s application, the court said, its decision was not motivated by Hernandez’s disability. The Supreme Court reversed the Ninth Circuit ruling and sent the case back to determine whether, despite this neutral policy, Hernandez could prove Hughes intentionally discriminated against him.

Consistently Apply Your Policies

Theodore Meyer, an attorney with Seyfarth Shaw, says he’s still telling employers they may continue to use standards that prohibit rehiring in the case of past policy violations as long as they are neutrally applied. Here are some other tips to keep in mind:

     

  1. Keep standards work-related. The Supreme Court’s decision clarified that employees may bring claims that neutral policies have a disparate impact on individuals protected by the ADA. According to Paul Hash, an attorney with Jackson Lewis, this means it’s imperative that rules—for example, those relating to absenteeism, productivity, and drug/alcohol use—are related to business necessity. Ensuring your policies are directly related to the successful performance of the job will help you avoid claims they were developed to weed out workers in protected classes.

     

  2. Put policies in writing. As with discipline policies, Meyer says no-rehire policies should be in writing, distributed, and followed uniformly.

     

  3. Live in the present. As the Ninth Circuit correctly pointed out, the ADA protects qualified individuals who have been rehabilitated for past addictions. This means you can’t reject an applicant—either a former employee or a new applicant—because of a past history of drug or alcohol problems. But this doesn’t mean you have to rehire an employee who can’t perform the essential job functions.

 

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