Publications
WHAT DO YOU THINK?
This month’s WHAT DO YOU THINK? puts you in the shoes of the United States Supreme Court.
On October 8, arguments were held in the case of Raytheon Co. v. Hernandez. Here are the facts. Hernandez was employed by Hughes Missile Systems (later acquired by Raytheon). As the result of a drug screening, Hernandez tested positive for cocaine, and resigned rather than facing termination pursuant to Hughes’ clear anti-drug policy. Later, Hernandez claimed that he successfully completed rehabilitation, and he reapplied for a job with his former employer, but was turned down. Hernandez then sued under the ADA, claiming that he was being discriminated against because of his “disability” – a former drug addiction.
Remember: Hernandez was not a stranger who walked in off the street, applied for a job and was refused employment because of a former drug problem. In fact, the ADA will protect former addicts from discrimination based on the stigma of their previous addiction. Rather, Hernandez was an employee who not only violated the law, but also violated a very serious and important company rule that prohibited drug use on the job. Shouldn’t Hernandez’ employer be allowed to refuse employment on that basis? If they are forced to rehire law breakers and rule violators, what will that do to their efforts to enforce the law and their rules in the workplace?
But what about Hernandez’ position? Suppose a physician testified that Hernandez’ physical and mental conditions created a susceptibility to drug use that was virtually impossible for Hernandez to control without treatment? Now that Hernandez has beaten his “disability,” should the employer still be permitted to discriminate against him? Suppose Hernandez was fired because he had a back problem and could no longer do his job – once he is better, the ADA would prohibit the employer from discriminating against him on the basis that he used to have a back problem. What’s the difference?
In due course, we will find out what the Supreme Court thinks. What do you think?
Click here to give us your point of view. Next month we will share your input (but we will never disclose your name, email address or other identifying data without your permission).
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