>Even though substance abuse does not qualify as a disability under ADA, discrimination due to past abuse is covered. In this case, Raytheon v. Hernandez , the constitutional question centers around Raytheon Co’s policy of not rehiring anyone who was once terminated for cause, in the case of Joel Hernandez for past substance abuse, according to a Legal Times report.
Hernandez, a 25-year employee at Raytheon’s Hughes Missile Systems Co plant in Tucson, Arizona, attempted to convince the company to rehire him – three years after he quit when he tested positive for cocaine. Hughes rejected the 1994 rehire request because of the company’s policy against reemploying those who departed because of misconduct.
An Arizona federal judge threw out Hernandez’s initial discrimination suit, but the US 9thCircuit Court of Appeals reinstated itfinding that Hernandez was entitled to a trial and had made a prima facie case of disability discrimination. Appeals judges said Hughes’ policy against rehiring employees who left because of misconduct violated the law, as it applied to ex-addicts whose only work-related offense was testing positive for drug use and who have been rehabilitated. “A policy that serves to bar the reemployment of a drug addict despite his successful rehabilitation violates the ADA,” the appeals court said.
Raytheon raised questions about the appellate court’s decision in the company’s Supreme Court arguments, sayingmany companies refuse to rehire discharged workers. “Such a no-rehire rule provides an essential form of institutional memory to help ensure that failed former employees do not slip back into an organization simply because hiring personnel do not know (or have forgotten) why former employees earlier departed,” the company said.
In the latest round, much of the argument focused onprocedural problems and factual uncertainties about the case; specifically, the appeals court’s assumption of certain facts about the case that had never been proven. To this point, Hernandez’s attorney, Stephen Montoya, suggested the high court could still issue a ruling on Raytheon’s policy even if the case was sent back for factual findings.
Further mudding the turbulent water is the recusal of two justices. Justice Stephen Breyer – who owns between $50,000 and $100,000 in Raytheon stock according to his financial disclosure form – made his recusal known from the earliest stages of the case. Additionally, Justice David Souter was absent at the latest round of hearings; suggesting a possible recusal, according to the Times report.
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