The question remains after Raytheon v. Hernandez Whether no-rehire rules disparately impact alcoholics and former drug abusers

The

question remains after Raytheon v. Hernandez

Whether no-rehire rules disparately impact alcoholics and former drug abusers

O'Brien

Christine Neylon

O'Brien, Christine Neylon

Dept. of Business Law, Carroll School of Management

Author

Darrow

Jonathan J.

Darrow, Jonathan J.

Author

text

article

2004 2004 monographic

2004

monographic

English eng

English

eng

electronic application/pdf digitized other analog

electronic

application/pdf

digitized other analog

In Raytheon v. Hernandez, the United States Supreme Court dealt with an employer's no-rehire rule that was challenged on the basis that it violated the Americans with Disabilities Act. Because of procedural error on the plaintiffs part, the issue of whether Raytheon's rule had a disparate impact upon members of the plaintiffs protected class went unanswered. However, the Court made clear that generally the disparate impact test will apply under the ADA. How do no-rehire rules have a disparate impact upon the disabled? Let us look at Raytheon's rule, for example. Their no-rehire rule (which incidentally was not a written rule) could result in a disparate impact upon the disabled or those with a record of disability, both of which are protected under the ADA. The problem with the policy is that the individuals banned from rehire include those who have worked for the company in the past and were terminated for, or resigned because of, workplace misconduct. Where this misconduct related to alcohol or drug use, and the former employee is thereafter rehabilitated, ADA issues and protections abound. The argument is simply that a former employee should be able to apply for a position for which he/she is qualified, despite prior problems, where he/she is fully rehabilitated. The Raytheon policy was tougher on former employees than it was on new applicants. This was so because applicants who tested positive for illegal drug or alcohol use were permitted to reapply within a set period of time whereas former employees were totally banned for their previous misconduct.

Version of record.

University of Pennsylvania Journal of Labor and Employment Law 1097-4938 7 1 157 172 pp. 157-172 Fall 2004

University of Pennsylvania Journal of Labor and Employment Law

1097-4938

7 1 157 172 pp. 157-172 Fall 2004

157 172 pp. 157-172

157

172

pp. 157-172

Fall 2004

Use of this resource is governed by the terms and conditions of the Creative Commons "Attribution-Noncommercial-No Derivative Works 3.0 United States" (http://creativecommons.org/licenses/by-nc-nd/3.0/us/)

Business Law UPennJLEL-v7-OBrienDarrow-pg157-QC.pdf permission-UPenn-JLEL-3.pdf

Business Law

UPennJLEL-v7-OBrienDarrow-pg157-QC.pdf

permission-UPenn-JLEL-3.pdf

MChB English eng

MChB

English eng

English

eng