Two significant employment cases before the U.S. Supreme Court have recently been decided: General Dynamics Land Systems, Inc. v. Cline, et al. (No. 02- 1080 decided 2/24/04), and Hernandez v. Raytheon, 540 U.S. _______, 157 L.Ed.2d 357, 124, S.Ct. 513 (2003). Both cases are discussed below.

At issue in General Dynamics was whether the ADEA protects younger workers against older workers. The Company and a union had eliminated from their labor contract management’s obligation to provide health benefits to subsequently retired employees, but grandfathered employees then at least 50 years old. Employees in the 40-49 age group (and thus protected under the Act) claimed that they had been discriminated against. A lawsuit brought by these employees was dismissed by a federal district court. A divided panel of the Sixth Circuit reversed, finding that the ADEA protects "any individual" covered by the Act from discrimination because of age, and that if Congress had intended the Act to protect only the older workers against the younger it would have clearly said so.

In a 6-3 decision, the Supreme Court resolved the issue in the employer’s favor: "We see the text, structure, purpose, and history of the ADEA, along with its relationship to other federal statutes, as showing that the statute does not mean to stop employers from favoring an older employee over a younger one. The judgment of the Court of Appeals is reversed." Justice Scalia filed a dissenting opinion, as did Justice Thomas, joined in by Justice Kennedy.

The Supreme Court’s majority decision construes the word "age" to mean different things depending upon where it appears in the ADEA. Thus, "age" when used to establish the defense of a bona fide occupational qualification means comparative youth. However, in the context of discrimination "age" means "old age." In the majority’s view, Congress’s concern with distinctions that hurt older people was manifested in a statute "structured and intended to protect the older from arbitrary favor for the younger."

Hernandez involved a claim of disability discrimination under the ADA. Hernandez was allowed to resign from his employment in lieu of termination after persistent substance abuse and a positive drug test. Two years later, and allegedly drug free, he reapplied for employment and was rejected. The employer told the EEOC that the rejection was based on Hernandez’s demonstrated drug use while previously employed. After receiving a rightto- sue letter, Hernandez filed suit under the ADA claiming discrimination based upon his record of a disability.

A federal district court granted summary judgment to the employer. On appeal the Ninth Circuit reversed. The Court of Appeals cited record evidence that Hernandez had been a drug addict, that his addiction had substantially limited one or more of his life activities, and that his positive drug test formed a record of that addiction. Thus, at the time he resigned in lieu of termination he was disabled under the ADA and a record of that disability existed.

The Court of Appeals concluded that Hernandez had made out a prima facie case of discrimination on the basis of disability. Additionally, it held that a policy that serves to bar the reemployment of a drug addict despite his successful rehabilitation violates the ADA. In a 7-0 decision (Souter and Breyer not participating), the Supreme Court rejected the 9th Circuit’s disparate impact analysis and stated (slip op. p. 7):

". . . the Court of Appeals held that a neutral norehire policy could never suffice in a case where the employee was terminated for illegal drug use, because such a policy has a disparate impact on recovering drug addicts. In so holding, the Court of Appeals erred by conflating the analytical framework for disparate-impact and disparate-treatment claims. Had the Court of Appeals correctly applied the disparate-treatment framework, it would have been obliged to conclude that a neutral norehire policy is, by definition, a legitimate, nondiscriminatory reason under the ADA. And thus the only remaining question would be whether respondent could produce sufficient evidence from which a jury could conclude that ‘petitioner’s stated reason for respondent’s rejection was in fact pretext.’"

Citing the McDonnell Douglas shifting burden of proof standard, the Supreme Court remanded the case to determine whether Rayethon’s apparent nondiscriminatory reason for refusing to hire Hernandez (terminated for violating workplace conduct rules) was a pretext.

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