Important employment cases in U.S. Supreme Court.

Writing in the October newsletter of the Employment Law Committee, Eve B. Masinter and Melissa M. Mulkey of McGlinchey Stafford, New Orleans, discuss cases the U.S. Supreme Court will consider in its current term:

The U.S. Supreme Court has several important employment cases on its 2003-04 docket. They range from a challenge to a hiring policy under the Americans with Disabilities Act to recovery of attorney's fees under the Equal Access to Justice Act.

Raytheon Co. v. Hernandez

On October 8, the Court heard arguments in the first, and likely the most significant, of the cases. (No. 02-479, decision below, 298 F.3d 1030 (9th Cir. 2002).) Hernandez involves an appeal from the Ninth Circuit's decision reversing a grant of summary judgment in favor of Raytheon in claims brought by a former employee, Joe Hernandez.

He worked for Hughes Missile System (later acquired by Raytheon) for 25 years. In July 1991, he tested positively for cocaine use on the job, an offense which was grounds for his immediate termination. Rather than being terminated, however, he was given the option to resign in lieu of termination, which he choose to do. This was noted on his personnel file and pursuant to an "unwritten" policy, it resulted in his ineligibility for rehire. Two and a half years later, in January 1994, Hernandez applied to be rehired by Hughes. He was not selected for rehire based on the unwritten policy against rehire of individuals who had resigned in lieu of termination.

He sued under the Americans with Disabilities Act (ADA), alleging that be was denied employment based on his record of drug addiction. In reviewing the district court's grant of summary judgment, the Ninth Circuit determined that Hernandez met his prima facie burden of demonstrating that he had a record of disability (drug addiction), applied and was qualified for the position, and was not hired because of his record of disability. There were disputed issues of fact as to whether the employer knew of the alleged disability at the time of its decision.

In examining whether the employer met its burden of articulating a legitimate nondiscriminatory reason for its actions, the Ninth Circuit held that "Hughes' unwritten policy against rehiring former employees who were terminated for any violation of its misconduct rules, although not unlawful on its face, violates the ADA as applied to former drug addicts whose only work-related offense was testing positive because of their addiction."...