RAYTHEON FIGHTS REHIRING OF EX-EMPLOYEE WHO USED DRUGS

The U.S. Supreme Court Tuesday pondered whether an employee fired for drug
use can later, after rehabilitation, demand special rehiring preferences as
a recovered addict under the Americans With Disabilities Act.

The justices took up the issue in the case of Raytheon Co. v. Hernandez,
02-749, which challenges employer drug-use guidelines in place at companies
across the country. "This is a decision that has extraordinary implications
for thousands of companies that have similar policies," said attorney Carter
Phillips, who represented Raytheon (RTN) at oral arguments.

Raytheon, based in Lexington, Mass., appealed to the Supreme Court over a
9th U.S. Circuit Court of Appeals ruling that said Joel Hernandez, a 25-year
veteran at Raytheon's Hughes Aircraft unit, should get a trial over the
company's refusal to rehire him. Hughes Aircraft was acquired by Raytheon
after this case began.

The 9th Circuit decision, noting that the ADA bars discrimination against
recovering substance-abuse addicts, said a former employee couldn't be
denied a job based on a past record of drug use.

Hernandez was fired in 1991 after he tested positive for cocaine after
showing up for work showing signs of substance abuse. He reapplied for his
job in 1994, saying he had undergone rehabilitation and was in recovery.

Raytheon turned Hernandez down, citing an unwritten policy against rehiring
employees who broke company rules. Hernandez sued under the ADA. A federal
trial court judge ruled in favor of Raytheon, dismissing the case.

After the 9th Circuit, based in San Francisco, revived the Hernandez claim,
Raytheon appealed to the Supreme Court.

At the oral argument, some Supreme Court justices voiced concern over the
facts surrounding the case. Justice Ruth Bader Ginsburg, for example, asked
questions about why the company's rehiring policy wasn't written down.

"The record is suspicious," Ginsburg said, on "whether there was a policy
and, two, whether it was applied with an even hand."

Should the justices decide there are factual problems with the case, they
could simply dismiss it and let the matter go to trial.

Phillips, however, urged the justices to go one step further and reverse the
9th Circuit decision, which created new precedent on the reach of the ADA.
Justice Antonin Scalia indicated that is what he was inclined to do. And
Justice Sandra Day O'Connor said she didn't see how Hernandez was covered by
the disabilities law.

"He just doesn't fit the definition of disability in the statute," O'Connor
said.

Deputy U.S. Solicitor General Paul Clement, arguing for the U.S. government,
agreed. Clement said it was legal under the ADA for a company to assert a
neutral policy of not rehiring a worker, even if that person was fired for
drug use and is now recovering.

Stephen Montoya, a Phoenix attorney who represented Hernandez, urged the
Supreme Court to uphold the lower court ruling, saying the ADA protects his
client from being "segregated from the job market" due to past substance
abuse.