The question remains after Raytheon v. Hernandez

Abstract

In Raytheon v. Hernandez, the United States Supreme Court dealt with an employer's no-rehire rule that was challenged on the basis that it violated the Americans with Disabilities Act. Because of procedural error on the plaintiffs part, the issue of whether Raytheon's rule had a disparate impact upon members of the plaintiffs protected class went unanswered. However, the Court made clear that generally the disparate impact test will apply under the ADA. How do no-rehire rules have a disparate impact upon the disabled? Let us look at Raytheon's rule, for example. Their no-rehire rule (which incidentally was not a written rule) could result in a disparate impact upon the disabled or those with a record of disability, both of which are protected under the ADA. The problem with the policy is that the individuals banned from rehire include those who have worked for the company in the past and were terminated for, or resigned because of, workplace misconduct. Where this misconduct related to alcohol or drug use, and the former employee is thereafter rehabilitated, ADA issues and protections abound. The argument is simply that a former employee should be able to apply for a position for which he/she is qualified, despite prior problems, where he/she is fully rehabilitated. The Raytheon policy was tougher on former employees than it was on new applicants. This was so because applicants who tested positive for illegal drug or alcohol use were permitted to reapply within a set period of time whereas former employees were totally banned for their previous misconduct.