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Oracle Tips by Burleson |
EEOC and the Rehire Case
An employee repeatedly violated the
employer’s written drug and alcohol policies. He was terminated for
this reason. After his release, the individual voluntarily entered a
drug and alcohol rehabilitation program. A few years later, the
fired employee reapplied for a job with his former employer. Along
with his job application, the individual submitted supportive
letters from his pastor and his counselor from Alcoholics Anonymous.
The employer had an unwritten policy that
disallowed the rehire of employees who were terminated for violating
company rules. When the employer became aware that the person had
been previously fired for violating its policies, it rejected the
job application based on this unwritten policy.
The former employee filed a complaint with
the EEOC and subsequently a lawsuit claiming he was discriminated
against under the Americans with Disabilities Act. The basis for the
allegation stemmed from the refusal to rehire him because of his
record of substance abuse. In its EEOC position statement, the
employer did not specifically refer to its unwritten policy that
prohibited rehiring individuals who were terminated for violating
company policies. Instead, the position statement noted the
individual’s use of drugs at the time of his firing and an alleged
lack of evidence that the employee had completed a rehabilitation
program.
Both the Supreme Court and the circuit court
of appeals acknowledged that a uniformly applied policy prohibiting
the rehire of employees who were fired for violating company rules
could constitute a legitimate reason for refusing to rehire an
employee. This would require the former employee to prove that the
employer’s stated reliance on the policy was established pretext for
discrimination.
The court found abundant evidence to
establish pretext, including evidence that the no rehire policy was
in writing, was not formally communicated by the employer, and none
of the employer’s witnesses could describe the origin or scope of
the policy. The ruling stated that the policy “either did not exist
or was not consistently applied.” The jury also could have
determined that the employer’s written drug use policies applied in
the case, rather than the unwritten policy, but they did not.
The absence of any reference to the
unwritten policy in the employer’s EEOC position statement, along
with the employer’s assertion in its position statement that the
individual’s previous drug use was the reason he was not hired,
suggested that the individual was discriminated against. The
employer lost the case.
The above book excerpt is from:
You're Fired!
Firing Computer Professionals
The IT
manager Guide for Terminating "With Cause"
ISBN 0-9744486-4-8
Robert Papaj
http://www.rampant-books.com/book_2005_1_firing.htm |
