More on the Supreme Court’s Raytheon decision
Here’s the case on Findlaw. I mentioned it yesterday, when it came down.
In part, this case involved waiver of the best argument — disparate impact. The District Court had found that the disparate impact claim had not been timely pleaded or raised. The Supreme Court faulted the Ninth Circuit for nonetheless applying a disparate-impact analysis to the disparate-treatment claim.
The disparate impact claim may have had some legs. The employer’s policy of not rehiring employees terminated for cause may have had a disparate impact on employees with disabilities, if common causes for termination like absenteeism, excessive leave, and alcohol or drug issues are more likely to impact employees with disabilities. The employer would then have had to justify the policy, which it may have been able to do.
This is a good lesson in the difference between disparate impact and disparate treatment, and in the need to properly plead and preserve all possible legal theories.
It would be a mistake to conclude substance abusing employees have no rights, or that no-rehire policies will always be immune from challenge. This decision was much narrower, which is probably why it was unanimous and Thomas got to write it.
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