|
|
|
December 2003 - Raytheon Co. v. Hernandez |
|
We have been following the case of Raytheon Co. v. Hernandez because of the potential implications on policies concerning the hiring of individuals in recovery. This case involved a claim of discrimination in violation of the Americans with Disabilities Act 1 that arose after the company (Raytheon) refused to rehire a former employee (Hernandez) two years after his resignation. Hernandez had been forced to resign his employment for illegal drug use. Raytheon had an unwritten policy prohibiting the rehiring of former employees who had been terminated (or forced to resign) for violating workplace conduct rules. Hernandez, who submitted evidence of his recovery with his application, alleged that the company discriminated against him because he had a record of drug addiction and/or because he was regarded as being a drug addict. Even though the U.S. Supreme Court recently issued its decision in this case, we must still wait before we will have any idea of its significance. This is because the sole issue that was addressed by the U.S. Supreme Court was which legal analysis of the discrimination claim was appropriate. Although the Ninth Circuit court had found discrimination, the U.S. Supreme Court concluded that the Ninth Circuit’s analysis was erroneous. Therefore, the Ninth Circuit’s opinion was vacated and they were directed to reconsider the case in light of the Supreme Court’s decision. Though the Supreme Court did not address the merits of the claim, the tenor of the opinion suggests that the Supreme Court would likely have overruled the Ninth Circuit’s finding even if the Ninth Circuit had applied the correct analysis. The specifics of the U.S. Supreme Court’s opinion are set forth below. In order to establish unlawful discrimination on a disparate treatment theory, the plaintiff must show that the employer treated him or her differently than others because of his or her race, disability, or other protected status. In these cases, the plaintiff succeeds if he or she is able to show that the protected status motivated the employer's action. Here, Hernandez would need to show that the employer refused to hire him because he is, or is regarded as being, a drug addict. Under a disparate impact theory, the plaintiff need not show that the defendant treated him or her differently due to a protected characteristic. Rather, the plaintiff must show that a practice or policy, even if facially neutral, has a disparate impact on members of a protected class when applied to them, regardless of whether the employer intends that result. Here, Hernandez would need to show that the no rehire policy, as applied to recovering addicts who had committed drug-related workplace rule violations, had a discriminatory effect. When he filed his lawsuit in federal District Court, Hernandez maintained that he was not rehired because he was or was perceived to be a drug addict, thereby raising a disparate treatment claim. Raytheon responded that it had a policy prohibiting it from rehiring employees who had violated workplace conduct rules, and asserted that this was a legitimate reason for its refusal to rehire Hernandez. By offering a legitimate, non-discriminatory reason for its decision, Raytheon shifted the burden back to Hernandez to demonstrate that the reason offered was pretext, and that the real motive was discrimination. Hernandez subsequently claimed in the alternative that the facially neutral no rehire policy had a disparate impact on recovering addicts, thereby raising a disparate impact claim. Had the claim been timely raised, Raytheon would have been required to show that, despite the disparate impact, the policy was justified by a business necessity. However, the District Court refused to consider the disparate impact claim, because it was not timely raised. On appeal, the Ninth Circuit agreed that the disparate impact claim was not timely raised, yet rather than examine whether Raytheon’s proffered reason was, in fact, pretext -- the customary next step in a disparate treatment analysis -- the Court found as a matter of law that the policy was not a legitimate reason for Raytheon’s decision not to rehire Hernandez, because the policy has a discriminatory effect “as applied to former drug addicts whose only work-related offense was testing positive because of their addiction.” Therefore, the Ninth Circuit found that there had been unlawful discrimination. However, in so doing, according to the Supreme Court, the Ninth Circuit improperly combined the disparate treatment and disparate impact analyses. The Supreme Court vacated the opinion and remanded the matter for further proceedings. The Ninth Circuit must now consider Hernandez’s claim under a strict disparate treatment analysis. We will keep you posted on further developments. |
1 The term “disability”, for the purposes of the ADA, means:
|