Nearly two years ago, we began reporting on a lawsuit involving Hughes Missile Systems’ decision not to rehire an employee terminated for reporting to work under the influence. The question of whether the decision violated the Americans with Disabilities Act (ADA) went to the U.S. Supreme Court, which sent the case back to the Ninth Circuit appeals court to determine whether the Hughes no-rehire decision was based on the employee’s status as disabled. Now the Ninth Circuit has issued a new ruling in this matter. We’ll explain what this latest development means to you.
Employee Resigns After Drug Test
Joel Hernandez was a long-time employee of Hughes Missile Systems Co., which has since been purchased by Raytheon Missile Systems. After testing positive for cocaine use, he faced termination but chose to resign, signing a separation agreement that noted he quit instead of being discharged for personal conduct.
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Rehire Application Rejected
A few years later, Hernandez reapplied to Hughes for employment. With his application he attached letters of recommendation indicating he was “clean and sober.” But he wasn’t rehired. According to the labor relations person who reviewed Hernandez’s application, he was rejected because Hughes had an unwritten policy not to rehire anyone who was terminated for a workplace conduct violation.
Hernandez filed a disability discrimination charge with the EEOC. During the EEOC’s investigation, a diversity manager at Hughes explained that Hernandez wasn’t rehired because of his “demonstrated drug use while previously employed and the complete lack of evidence indicating successful drug rehabilitation.”
High Court Reviews Case
The case proceeded to the U.S. Supreme Court, which held, in a victory for employers, that a neutral no-rehire policy (which applies to all equally) that has a disparate impact on individuals protected by the ADA is not illegal. But, said the high court, Hernandez could still try to prove that, despite the neutral policy, Hughes intentionally discriminated against him by basing the rejection on Hernandez’s protected status as a recovered addict.
Evidence of Intentional Bias
Now the Ninth Circuit, which covers California, has allowed Hernandez’s lawsuit to continue, finding that a reasonable jury could infer that he wasn’t rehired based on his status as a former substance abuser.
The appeals court noted that the labor relations employee who decided not to rehire Hernandez had access to information that would have made her aware of his disabled status. And, said the appeal court, even though this employee testified that her decision was based on the unwritten no-rehire policy, Hernandez’s status could have influenced her. Additionally, Hughes admitted during the EEOC’s investigation that Hernandez wasn’t rehired because of a continuing addiction problem.
The appeal court also remarked that no one at Hughes could identify the origin or scope of the unwritten no-rehire policy, suggesting that the policy didn’t exist or wasn’t consistently applied.
Implications for Employers
This latest holding highlights that a neutral policy won’t protect you from bias charges if the policy isn’t followed uniformly. What’s more, it’s important to put discipline and no-rehire policies in writing and distribute the policies to all employees. Finally, make sure managers understand that the ADA protects qualified individuals who have been rehabilitated for drug or alcohol addiction.