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The Problem
In our November 2003 What Do You Think? segment, we asked for our readers’ input on a case that had just been argued before the United States Supreme Court, Raytheon versus Hernandez. We received a firestorm of comments on the case, some of which we published in our January 2004 issue. The case is a good example of the problems inherent in HR inconsistency. Here’s a quick refresher.
Hernandez had tested positive for cocaine, and was terminated in accordance with Raytheon’s established policies. More than two years later, however, Hernandez successfully completed rehabilitation, and applied for reinstatement. Raytheon refused, and Hernandez sued.
The stigma that attaches to a prior drug user can be a disability under the ADA, and employers cannot refuse to hire an employee on the basis of such prior drug use. Hernandez contended that this had to be the reason why Raytheon refused to rehire him -- he had been a good employee, he was over his addiction, and there was no other reasonable explanation for Raytheon’s position. Raytheon’s rationale, however, was simply this: our policy, albeit unwritten, is not to rehire employees who break the rules, period, and we have no obligation to treat Hernandez any differently than any other rule breaker, disability or no disability.
A lower court took Hernandez’ side, and the Supreme Court then agreed to hear the case. With uncharacteristic speed, the Supreme Court has now issued a ruling. While not yet finally deciding the case, the Supreme Court has sent a not-so-subtle message to the business community.
The Supreme Court ruled that a “blanket” no-rehire policy applicable to any employee who violates a workplace rule is a “quintessentially legitimate, nondiscriminatory reason for refusing to rehire an employee.” That’s a pretty significant ruling by itself, but it’s not our present focus.
What’s important right now is this: the Supreme Court said that on the record before it, there was not enough proof to determine if, in fact, Raytheon refused to re-hire Hernandez because of its “no re-hire” rule, as Raytheon claimed, or because of some illegitimate reason, as Hernandez claimed. Consequently, a trial would have to be conducted on that issue: if Raytheon could prove that it refused to rehire Hernandez because of its no-rehire policy, it wins; if Hernandez could prove that Raytheon discriminated against former drug users, he wins.
Let’s fast forward to the upcoming trial. How will Hernandez prove his case? The Raytheon officials will, no doubt, stridently claim that they made their decision based only on the no-rehire policy. How will Hernandez prove otherwise?
The answer lies in another old maxim: actions speak louder than words. Hernandez will look to see how consistent (foolishly consistent, as Emerson might see it) Raytheon has been in applying the “no rehire” rule. If, indeed, Hernandez can show that rather than the “no re-hire” rule being a “blanket” policy, it is really a policy that Raytheon applies inconsistently, Hernandez will have a very powerful argument: “Raytheon only applies the “no re-hire” rule when it wants to,” Hernandez will contend, “and in this case it wanted to because I was a former drug user.”
In other words, inconsistent HR enforcement will be, as so frequently happens to employers, Raytheon’s soft underbelly during the trial. One more famous maxim: Claire Booth Luce cynically observed that, “No good deed goes unpunished.” If Raytheon made a past exception to the “no hire” rule for some favored employee or because of some perceived “extenuating circumstance,” it will have drastically diluted the strength of its defense against Hernandez’ claim.
We see this all the time: managers and executives make exceptions to the rules, trying to do a good deed, usually motivated by sympathy for the employee or concern for the company. In plain violation of workplace rules, they either fail to fire, or quickly rehire, selected employees because “she’s been a good employee for many years” or “I’m on a deadline and need him” or “she’s got a family and I just couldn’t do it.” Later, when the same rules are applied to another employee and no exception is made, a loophole big enough to accommodate all nine Supreme Court justices quickly opens. In those cases, the employee will argue that the rules are not really rules at all, but are only pretexts that the company uses to get rid of disfavored employees. If the employees who were the recipients of the past “good deeds” are white, or under 40, or not subject to some disability, and the employees to whom the rules were applied without exception are minorities, or older, or, perhaps, former drug users … you get the point.
And what about inconsistencies with regard to the same employee? For example, the employee is repeatedly late and the manager overlooks it. No documentation, no discussion, he simply overlooks it. Months pass and the manager has now reached the point where he is beyond fed up and he disciplines the employee in accordance with the Company’s well written, well publicized attendance policy. The employee alleges that the manager only started caring about his arrival time after he advised the manager in passing that he was suffering from cancer. The inevitable claim quickly follows.
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