The proverbial "get out of jail free" card - the Ninth Circuit's treatment of addiction under Hernandez v. Hughes Missile Systems Co.

• Author: Guedes, Edward G.

An employer refuses to rehire a former employee who was given the opportunity and voluntarily chose to resign in lieu of being terminated for undisputedly testing positive for cocaine use while at work. The employer makes the decision not to rehire pursuant to a corporate policy that uniformly prohibits the rehiring of employees who have been terminated or who have resigned in lieu of termination because they violated a company rule or regulation. There is no factual dispute that the corporate reemployment policy has been uniformly applied to all former employees or that this particular former employee was correctly and legally required to resign in lieu of termination.

However, because this particular employee happens to have suffered from an addiction, the Ninth Circuit Court of Appeals has concluded that he has the right to sue his former employer for discrimination under the Americans with Disabilities Act arising from the decision not to rehire him. How the Ninth Circuit reached this somewhat remarkable conclusion in Hernandez v. Hughes Missile Systems Company, 2002 WL 1275603 (9th Cir. 2002), requires further explanation.

The Background Story

The employee, Joel Hernandez, worked as a calibration service technician for Hughes Missile Systems Company ("Hughes"). While at work, Hernandez was given a drug test that yielded positive results for cocaine use. He was given the option to resign in lieu of being terminated, which he chose to do. (1) There was no evidence that Hernandez was coerced to resign or that his resignation in lieu of termination was in any way unlawful. In fact, Hernandez neither challenged the legality of his resignation nor questioned the finding that he was using illegal drugs.

More than two years later, Hernandez reapplied for a position with Hughes and indicated in the application that he had previously been employed by the company. When Hughes rejected the application, Hernandez filed a charge of discrimination with the Equal Employment Opportunity Commission alleging that he had been discriminated against on the basis of his disability, more specifically, his record of drug addiction. (2) In response to the EEOC charge, Hughes argued that Hernandez's application had been rejected because of "his demonstrated drug use while previously employed" and because the company enjoyed the "right to deny reemployment to employees terminated for violation of Company rules and regulations." (3)

During the course of litigation, however, the Hughes representative who actually reviewed and rejected the employee's application testified that she had not been aware of Hernandez's drug history or his reasons for originally resigning from the company. She then stated that the reason she had rejected Hernandez's application was because of Hughes' unwritten policy of not rehiring former employees who either were terminated or who resigned in lieu of termination. (4) At summary judgment, Hughes argued both that Hernandez had failed to establish a prima facie case of discrimination and that he had failed to rebut the company's proffered nondiscriminatory reason for not rehiring him, namely, the company's policy prohibiting the rehire of employees who were previously terminated for violation of company rules and regulations. (5)

The Ninth Circuit's Prima Facie Analysis

In addressing whether Hernandez had stated a prima facie case, the Ninth Circuit observed that he needed to show, among other elements, that he was not rehired because of his disability. Hernandez had admitted that he did not suffer from an actual disability at the time of his reapplication, but insisted that his application had been rejected because of his "record of disability." (6)

The court concluded that a "question of fact" precluding summary judgment existed with respect to whether the decision not to rehire was based on Hernandez's record of disability. As evidence of this factual dispute, the court cited "Hughes's explicit statement to the EEOC that the application was rejected because of Hernandez's prior drug addiction." However, this surprising recharacterization of Hughes' response to the EEOC is contradicted by the court's own verbatim quotation of the response: "[Hernandez's] application was rejected based on his demonstrated drug use while previously employed." (7)

The Ninth Circuit's conclusion that an issue of fact existed as to whether Hernandez's application had been rejected because of his record of addiction could be justified only by transfiguring Hughes' statement to the EEOC about violation of corporate rules through current drug use into one about drug addiction. Apparently, this linguistic alchemy was necessary since even the Ninth Circuit was required to acknowledge that the ADA "does not protect an employee or applicant who is currently engaging in illegal drug use." (8) The court's acknowledgment, however, appreciably understates the disapproval of current drug use written into the ADA; the statute is replete with disapprobation. Section 12114 states, in pertinent part, as follows:

For purposes of this subchapter, the term "qualified individual with a disability" shall not include any employee or applicant who is currently engaging in the illegal use of drugs

A covered entity--

(4) may hold an employee who engages in the illegal use of drugs to the same qualification standards for employment or job performance and behavior that such entity holds other employees, even if any unsatisfactory performance or behavior is related to the drug use ... of such employee....

42 U.S.C. [subsection] 12114(a) and (c) (emphasis supplied). (9)

Notwithstanding the clear statutory disapproval...