Recent U.S. Supreme Court and Massachusetts SJC Decisions Clarify Disability Discrimination Issues

Last month, the United States Supreme Court and the Massachusetts Supreme Judicial Court issued decisions regarding disability discrimination issues of significant interest to employers. This Alert describes those decisions and their potential impact on employers.

Raytheon v. Hernande

The United States Supreme Court's decision in Raytheon Co. v. Hernandez, 02-749 (December, 2003), addressed important questions regarding claims of disparate treatment and disparate impact under the Americans with Disabilities Act ("ADA"). The Court unanimously held that an employer's "no re-hire policy," pursuant to which the company refused to re-hire individuals who had left the company due to workplace misconduct, constitutes a "legitimate, nondiscriminatory reason" for refusing to re-hire a former employee. The Court, however, left unanswered the question of whether such a policy might, under certain circumstances, give rise to a disparate impact claim.

Background

The ADA, along with many other anti-discrimination statutes, allows for two broad categories of claims - disparate treatment and disparate impact. Disparate treatment is readily understandable. In such a case, plaintiffs seek to prove that their employer has treated them less favorably than others because of their disability. Proof of discriminatory motive is vital in such cases. Disparate impact, by contrast, requires no showing of discriminatory motive. Instead, in a disparate impact case, the plaintiff seeks to prove - through statistical evidence - that a facially neutral employer policy or requirement adversely affects members of the protected class in a disproportionate manner.

In Hernandez, the plaintiff brought a disparate treatment claim against his former employer, Raytheon, after the company refused to re-hire him. Hernandez had worked for Raytheon for over 20 years when, in 1991, he failed a drug test administered after his appearance and behavior at work suggested that he might be under the influence of drugs or alcohol. Upon notification that he had failed the test, Hernandez admitted to the company that he had used cocaine and alcohol the night before and resigned rather than face termination.

Over two years later, Hernandez applied for re-hire. Upon receipt of his application, which indicated his prior employment with the company, Raytheon's human resources department reviewed his personnel file. The file contained an "Employee Separation Summary," prepared at the time of his resignation, which stated the following as the reason for separation: "discharge for personal conduct (quit in lieu of discharge)." There was no indication in the file that Hernandez had been addicted to drugs - the employment separation summary stated that he had been discharged for violating workplace conduct rules. However, one of the two letters of reference submitted by Hernandez along with his application stated that he regularly attended meetings of Alcoholics Anonymous and was "in recovery." Raytheon rejected Hernandez's application because it had a policy against re-hiring employees who were terminated for workplace misconduct.

After receiving a determination from the EEOC that Raytheon may have "rejected [Hernandez's] application based on his record of past alcohol and drug use," Hernandez filed a complaint against Raytheon in federal district court. He alleged that Raytheon refused to re-hire him because of his record of drug addiction or because he was regarded as being a drug addict. In response to Raytheon's motion for summary judgment, Hernandez argued - for the first time - that, if Raytheon had applied its no re-hire policy to him, it violated the ADA because such policy has a disparate impact on recovering drug...