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Be careful when drafting your responses to an investigation. The Ninth Circuit Court of Appeals decision underscored this fact in Hernandez v. Hughes Missile Systems Company. A former employee was denied application for re-employment. He tested positive for drugs and had an alcohol problem while employed. He was allowed to resign in lieu of termination. The former employee reapplied for his old job three years later, but was ineligible for rehire because of the company’s policy that prohibited rehiring terminated employees. The court ruled that the rejection was unlawful and the policy invalid when applied to recovered drug or alcohol abusers. Recovered drug and alcohol abusers are protected by the ADA.
The representative who made the no-rehire decision testified that she knew only that the prior employment ended because of misconduct. However, a written position statement from the company to the EEOC stated that the applicant “was rejected based on his demonstrated drug use when previously employed and complete lack of evidence indicating successful rehabilitation.” The court cited this conflict as one of the reasons that it decided the case should go to trial. The decision reinforces the importance of a carefully drafted position statement to the EEOC during a discrimination investigation.1
1. Hernandez v. Hughes Missile Systems Company, 362 F.3d 564 (9th Cir. 2004)