Disability discrimination claims under the Americans with Disabilities Act (ADA) can be based on “disparate treatment” and/or “disparate impact.”  In disparate treatment claims, employees assert they were treated less favorably than others because of their disability.  In disparate impact claims, employees assert that employment practices that are facially neutral actually impact disabled individuals more harshly than others, and cannot be justified by business necessity.

Raytheon Company v. Hernandez, an opinion delivered by the U.S. Supreme Court in early December of 2003, notes the distinction between these two types of ADA claims.  Hernandez had been forced to resign from his employment with Raytheon after testing positive for cocaine and admitting that his behavior violated the Company’s workplace conduct rules.  Over two years later, he applied for re-employment with the company.   The employee who reviewed Hernandez’ application reviewed his employee separation summary, and then rejected his application, claiming she relied on the Company’s policy against rehiring employees who were terminated for workplace misconduct.  She indicated that she did not know that Hernandez was a former drug addict when she made this decision.
Hernandez brought suit, asserting initially that the Company rejected his application because of his record of drug addiction and/or because he was regarded as being a drug addict.    In his response to a summary judgment motion filed by the Company, Hernandez argued, for the first time, that the Company’s neutral “no rehire policy” violated the ADA because it had a disparate impact on disabled individuals.   The U.S. Supreme Court disregarded Hernandez’s disparate impact claim, finding he had failed to raise it on a timely basis.  In addressing his disparate treatment claim, the Court considered whether the Company’s alleged application of its neutral policy against rehiring employees previously terminated for violating workplace conduct rules constituted a legitimate nondiscriminatory reason for the decision not to rehire Hernandez.  Although it recognized that there could be a factual dispute over whether the Company did, in fact, apply this policy when deciding not to rehire Hernandez, it concluded that the Company’s proffer of this neutral policy “plainly satisfied its obligation . . . to provide a legitimate, nondiscriminatory reason for refusing to rehire” an employee who was terminated for violating workplace conduct rules. 

The Court did not answer the question initially raised – i.e., whether the ADA confers preferential rehire rights on disabled employees lawfully terminated for violating workplace conduct rules.  

Nor did the Court state whether a neutral “no rehire” policy could be deemed to violate the ADA under a disparate impact analysis as a matter of law.  However, the Court’s opinion does suggest that decisions that are, in fact, the result of an employer’s implementation of a neutral, nondiscriminatory policy are not likely to give rise to liability for a disparate treatment ADA claim.  This reflects the importance of consistent application and enforcement of existing policies.  The Court’s opinion also should serve as a reminder to employers, when adopting policies and practices that are similar to the “no rehire” policy at issue in this case, that consideration should be given to the impact such policies might have on disabled employees.