Issue Of Fact Whether Employer Failed To Rehire “Clean And Sober” Former Employee Because Of His Past Record Of Drug Addiction Rather Than In Reliance On A Uniform No Re-Hire Policy

Joel Hernandez worked for Hughes Missile Systems, which has since been purchased by Raytheon Company, for 25 years, beginning in 1966. In 1986, his drug and alcohol problem began affecting his conduct at work. In August of that year, rather than face termination for absenteeism as a result of this problem, Hernandez accepted Raytheon's offer to enter a treatment program. Upon finishing the treatment program, Hernandez went back to work for the company.

In 1991, Hernandez's attendance problems recurred. On July 11, 1991, he arrived at work demonstrating signs of drug or alcohol impairment. He submitted to a drug test pursuant to company policy. After testing positive for cocaine, he resigned in lieu of being discharged for violating the company's workplace code of conduct. The "Employee Separation Summary" noted the reason for Hernandez's separation only as "discharge for personal conduct (quit in lieu of discharge)."

From July of 1992 through at least January of 2001, Hernandez was "clean and sober."

On January 24, 1994, Hernandez applied with Raytheon for the same position that he held prior to his discharge, stating on his application that he had previously been employed and attaching letters from his pastor about his active church participation and his Alcoholics Anonymous ("AA") sponsor/counselor about his regular attendance at meetings and his commitment to the program.

Joanne Bockmiller, in Raytheon's Labor Relations Department, reviewed Hernandez's application and rejected it.

After being informed that his application was rejected, Hernandez filed charges with the Equal Employment Opportunity Commission ("EEOC"). In its response to these charges, Raytheon took the position that it had a uniform policy of not rehiring anyone fired for misconduct (including on account of substance abuse), and that Hernandez’s application had been rejected on the basis of that policy, and not on his status as an alcoholic.

The EEOC issued a determination on the merits of Hernandez's charge in his favor, finding that "the evidence shows Raytheon rejected Charging Party's application based on his record or past alcohol and drug use."

Hernandez then brought suit against Raytheon under the Americans with Disabilities Act ("ADA"), which makes it unlawful for an employer, with respect to hiring, to "discriminate against a qualified individual with a disability because of the disability of such individual." As applied here, the ADA protects individuals "who have successfully completed or are participating in a supervised drug rehabilitation program and are no longer using illegal drugs, as well as individuals who are erroneously regarded as using drugs when in fact they are not."

The district court granted summary judgment in favor of Raytheon. On appeal, the 9th Circuit reversed, holding that that there was a genuine issue of material fact as to whether Raytheon failed to re-hire Hernandez because of his "status as an alcoholic," rather than in reliance on a uniform no re-hire policy.

Hernandez v. Hughes Missile Sys. Co.

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The 9th Circuit Court of Appeals’ jurisdiction includes California, Oregon, Washington, Arizona, Montana, Idaho, Nevada, Alaska and Hawaii.

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