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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

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