Case Before High Court Centers On Job Rights, Addict's Recovery

By Charles Lane
Washington Post Staff Writer
Thursday, October 9, 2003; Page A10

A lawyer for a major defense contractor told the Supreme Court yesterday that an employee who lost his job in 1991 because of drug use was not entitled to the protection of federal anti-discrimination law when he tried to get rehired three years later.

Hughes Missile Systems Co., now owned by Raytheon Co., acted lawfully in 1994 when it told Joel Hernandez, who said he had recovered from cocaine and alcohol addiction, that he could not return to the company because it had a policy against rehiring employees who had been dismissed for misconduct.

Raytheon is like "thousands of companies that have precisely the same rule," Carter G. Phillips told the justices. "That policy was valid."

Raytheon is appealing a ruling last year by the San Francisco-based U.S. Court of Appeals for the 9th Circuit, which held that Hernandez was entitled to a jury trial to decide whether the company's refusal to rehire him violated the Americans with Disabilities Act.

The ADA says that employers may fire people addicted to drugs or alcohol when their substance abuse impairs their ability to work. But under the law, people in recovery who are not impaired at work may be considered disabled, and protected from discrimination.

The case has attracted attention as the latest test of the Supreme Court's application of the ADA to the workplace. In recent years, the justices have narrowed workers' ability to claim discrimination on the basis of disability.

But, as the oral argument progressed yesterday, it appeared that this case poses anomalies that may prevent the justices from clearly answering the legal question they hoped to settle when they agreed to hear it: whether the company's refusal to rehire Hernandez was discrimination against him because of his past addiction, or merely the application of a valid general rule against rehiring workers who were guilty of illegal conduct in the past.

Only seven justices were on the bench. Justices Stephen G. Breyer and David H. Souter recused themselves for unspecified reasons.

Hernandez's lawyer, Stephen G. Montoya, insisted to the court that the company's claim of an "unwritten" policy that forbade rehiring Hernandez was a sham, and that for that reason alone he should have the chance to convince a jury he was wrongfully denied a job.

Justice Sandra Day O'Connor told Phillips that these factual disputes made her "concerned" that the 9th Circuit had overreached in deciding the legal issue as well as in granting Hernandez a trial.

Justice Ruth Bader Ginsburg referred to the case as "puzzling" and noted that there was "no evidence other than two employees' testimony" that the policy existed.

Phillips countered that the 9th Circuit held that the policy existed.

Another issue, the justices noted, was that Hernandez claimed discrimination in being denied a job, without framing his claim as a demand for "reasonable accommodation" of his condition, as the law allows.

Arguing on behalf of the United States, Deputy Solicitor General Paul D. Clement told the court that, whatever it thinks about such details of Hernandez's case, it should vacate the 9th Circuit ruling and articulate a clear rule favoring what the defense firm did in this case.

"When an employer applies a neutral policy, he cannot be guilty of disparate treatment," Clement said.

Ginsburg also questioned whether Hernandez had provided sufficient evidence of recovery from his addiction when he sought to be rehired. She and other justices called attention to a letter from an Alcoholics Anonymous program that said Hernandez was "sober." That did not necessarily apply to cocaine, Ginsburg noted -- setting off a broader discussion of whether words such as "sober" or "sobriety" could apply to those who have recovered from drug abuse rather than alcoholism.

Montoya countered that "clean and sober" was a term often used to describe rehabilitated drug addicts.

That prompted Chief Justice William H. Rehnquist to interject that when people are using drugs, "you say they're 'stoned.' "

The case is Raytheon Co. v. Hernandez, No. 02-749. A decision is expected by July.