RAYTHEON CO. v. HERNANDEZ

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Syllabus
RAYTHEON CO. v. HERNANDEZ
certiorari to the united states court of appeals for
the ninth circuit
No. 02–749. Argued October 8, 2003—Decided December 2, 2003
After respondent tested positive for cocaine and admitted that his behav-
ior violated petitioner’s workplace conduct rules, he was forced to re-
sign. More than two years later, he applied to be rehired, stating on his
application that petitioner had previously employed him, and attaching
letters both from his pastor about his active church participation and
from an Alcoholics Anonymous counselor about his regular attendance
at meetings and his recovery. The employee who reviewed and re-
jected respondent’s application testified that petitioner has a policy
against rehiring employees who are terminated for workplace miscon-
duct and that she did not know that respondent was a former drug
addict when she rejected his application. Respondent filed a charge
with the Equal Employment Opportunity Commission (EEOC), claiming
that he had been discriminated against in violation of the Americans
with Disabilities Act of 1990 (ADA). The EEOC issued a right-to-sue
letter, and respondent filed this ADA action, arguing that petitioner
rejected his application because of his record of drug addiction and/or
because he was regarded as being a drug addict. In response to peti-
tioner’s summary judgment motion, respondent for the first time argued
in the alternative that if petitioner applied a neutral no-rehire policy
in his case, it still violated the ADA because of that policy’s disparate
impact. The District Court granted petitioner’s motion for sum-
mary judgment on the disparate-treatment claim and found that the
disparate-impact claim had not been timely pleaded or raised. The
Ninth Circuit agreed as to the disparate-impact claim, but held as to the
disparate-treatment claim that, under the burden-shifting approach of
McDonnell Douglas Corp. v. Green, 411 U. S. 792, respondent had prof-
fered a prima facie case of discrimination, and petitioner had not met
its burden to provide a legitimate, nondiscriminatory reason for its em-
ployment action because its no-rehire policy, though lawful on its face,
was unlawful as applied to employees who were lawfully forced to resign
for illegal drug use but have since been rehabilitated.
Held: The Ninth Circuit improperly applied a disparate-impact analysis
to respondent’s disparate-treatment claim. This Court has consistently
distinguished between disparate-treatment and disparate-impact claims.
The former arise when an employer treats some people less favorably

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Syllabus
than others because of a protected characteristic. Liability depends on
whether the protected trait actually motivated the employer’s action.
The latter involve facially neutral employment practices that fall more
harshly on one group than another and cannot be justified by business
necessity. Such practices may be deemed illegally discriminatory with-
out evidence of the employer’s subjective discrimination. Both claims
are cognizable under the ADA, but courts must be careful to distinguish
between the theories. Here, respondent was limited to the disparate-
treatment theory that petitioner refused to rehire him because it re-
garded him as disabled and/or because of his record of disability. Pe-
titioner’s proffer of its neutral no-rehire policy plainly satisfied its
obligation under McDonnell Douglas to provide a legitimate, nondis-
criminatory reason for refusing to rehire respondent. Thus, the only
remaining question before the Ninth Circuit was whether there was
sufficient evidence from which a jury could conclude that petitioner did
make its employment decision based on respondent’s status as disabled
despite its proffered explanation. Instead, that court concluded that,
as a matter of law, the policy was not a legitimate, nondiscriminatory
reason sufficient to defeat a prima facie case of discrimination. In doing
so, the Ninth Circuit improperly focused on factors that pertain only to
disparate-impact claims, and thus ignored the fact that petitioner’s no-
rehire policy is a quintessential legitimate, nondiscriminatory reason for
refusing to rehire an employee who was terminated for violating work-
place conduct rules. Pp. 52–55.
298 F. 3d 1030, vacated and remanded.
Thomas, J., delivered the opinion of the Court, in which all other Mem-
bers joined, except Souter, J., who took no part in the decision of the
case, and Breyer, J., who took no part in the consideration or decision of
the case.
Carter G. Phillips argued the cause for petitioner. With
him on the briefs were Alan Charles Raul, Paul Grossman,
Paul W. Cane, Jr., Neal D. Mollen, Jay B. Stephens, and
Ronald Stolkin.
Deputy Solicitor General Clement argued the cause for
the United States as amicus curiae urging reversal. With
him on the brief were Solicitor General Olson, Assistant
Attorney General Boyd, John P. Elwood, David K. Flynn,
and Sarah E. Harrington.

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46 RAYTHEON CO. v. HERNANDEZ
Opinion of the Court
Stephen G. Montoya argued the cause and filed a brief
for respondent.*
Justice Thomas delivered the opinion of the Court.
The Americans with Disabilities Act of 1990 (ADA), 104
Stat. 327, as amended, 42 U. S. C. § 12101 et seq., makes it
unlawful for an employer, with respect to hiring, to “discrim-
inate against a qualified individual with a disability because
of the disability of such individual.” § 12112(a). We are
asked to decide in this case whether the ADA confers prefer-
ential rehire rights on disabled employees lawfully termi-
nated for violating workplace conduct rules. The United
States Court of Appeals for the Ninth Circuit held that an
employer’s unwritten policy not to rehire employees who left
the company for violating personal conduct rules contra-
venes the ADA, at least as applied to employees who were
lawfully forced to resign for illegal drug use but have since
been rehabilitated. Because the Ninth Circuit improperly
applied a disparate-impact analysis in a disparate-treatment
case in order to reach this holding, we vacate its judgment
and remand the case for further proceedings consistent with
this opinion. We do not, however, reach the question on
which we granted certiorari. 537 U. S. 1187 (2003).
I
Respondent, Joel Hernandez, worked for Hughes Missile
Systems for 25 years.1 On July 11, 1991, respondent’s ap-
*Ann Elizabeth Reesman, Stephen A. Bokat, Robin S. Conrad, and
Ellen D. Bryant filed a brief for the Equal Employment Advisory Council
et al. as amici curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the Betty Ford
Center et al. by David T. Goldberg and Daniel N. Abrahamson; and for
the National Employment Lawyers Association et al. by Claudia Center,
Brian East, Terisa E. Chaw, and Arlene Mayerson.
1 Hughes has since been acquired by petitioner, Raytheon Company.
For the sake of clarity, we refer to Hughes and Raytheon collectively as
petitioner or the company.

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pearance and behavior at work suggested that he might be
under the influence of drugs or alcohol. Pursuant to com-
pany policy, respondent took a drug test, which came back
positive for cocaine. Respondent subsequently admitted
that he had been up late drinking beer and using cocaine
the night before the test. Because respondent’s behavior
violated petitioner’s workplace conduct rules, respondent
was forced to resign. Respondent’s “Employee Separation
Summary” indicated as the reason for separation: “discharge
for personal conduct (quit in lieu of discharge).” App. 12a.
More than two years later, on January 24, 1994, respondent
applied to be rehired by petitioner. Respondent stated on
his application that he had previously been employed by peti-
tioner. He also attached two reference letters to the appli-
cation, one from his pastor, stating that respondent was a
“faithful and active member” of the church, and the other
from an Alcoholics Anonymous counselor, stating that re-
spondent attends Alcoholics Anonymous meetings regularly
and is in recovery. Id., at 13a–15a.
Joanne Bockmiller, an employee in the company’s Labor
Relations Department, reviewed respondent’s application.
Bockmiller testified in her deposition that since respondent’s
application disclosed his prior employment with the com-
pany, she pulled his personnel file and reviewed his employee
separation summary. She then rejected respondent’s appli-
cation. Bockmiller insisted that the company had a policy
against rehiring employees who were terminated for work-
place misconduct. Id., at 62a. Thus, when she reviewed
the employment separation summary and found that re-
spondent had been discharged for violating workplace con-
duct rules, she rejected respondent’s application. She testi-
fied, in particular, that she did not know that respondent was
a former drug addict when she made the employment deci-
sion and did not see anything that would constitute a “record
of ” addiction. Id., at 63a–64a.

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48 RAYTHEON CO. v. HERNANDEZ
Opinion of the Court
Respondent subsequently filed a charge with the Equal
Employment Opportunity Commission (EEOC). Respond-
ent’s charge of discrimination indicated that petitioner did
not give him a reason for his nonselection, but that respond-
ent believed he had been discriminated against in violation
of the ADA.
Petitioner responded to the charge by submitting a letter
to the EEOC, in which George M. Medina, Sr., Manager of
Diversity Development, wrote:
“The ADA specifically exempts from protection individ-
uals currently engaging in the illegal use of drugs when
the covered entity acts on the basis of that use. Con-
trary to Complainant’s unfounded allegation, his non-
selection for rehire is not based on any legitimate dis-
ability. Rather, Complainant’s application was rejected
based on his demonstrated drug use while previously
employed and the complete lack of evidence indicating
successful drug rehabilitation.
“The Company maintains it’s [sic] right to deny re-
employment to employees terminated for violation of
Company rules and regulations. . . . Complainant has
provided no evidence to alter the Company’s position
that Complainant’s conduct while employed by [pe-
titioner] makes him ineligible for rehire.” Id., at
19a–20a.
This response, together with evidence that the letters sub-
mitted with respondent’s employment application may have
alerted Bockmiller to the reason for respondent’s prior ter-
mination, led the EEOC to conclude that petitioner may have
“rejected [respondent’s] application based on his record of
past alcohol and drug use.” Id., at 94a (EEOC Determina-
tion Letter, Nov. 20, 1997). The EEOC thus found that
there was “reasonable cause to believe that [respondent] was
denied hire to the position of Product Test Specialist because
of his disability.” Id., at 95a. The EEOC issued a right-to-

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sue letter, and respondent subsequently filed this action al-
leging a violation of the ADA.
Respondent proceeded through discovery on the theory
that the company rejected his application because of his
record of drug addiction and/or because he was regarded
as being a drug addict. See 42 U. S. C. §§ 12102(2)(B)–(C).2
In response to petitioner’s motion for summary judgment,
respondent for the first time argued in the alternative that
if the company really did apply a neutral no-rehire policy
in his case, petitioner still violated the ADA because such a
policy has a disparate impact. The District Court granted
petitioner’s motion for summary judgment with respect to
respondent’s disparate-treatment claim. However, the Dis-
trict Court refused to consider respondent’s disparate-impact
claim because respondent had failed to plead or raise the the-
ory in a timely manner.
The Court of Appeals agreed with the District Court that
respondent had failed timely to raise his disparate-impact
claim. Hernandez v. Hughes Missile Systems Co., 298 F. 3d
1030, 1037, n. 20 (CA9 2002). In addressing respondent’s
disparate-treatment claim, the Court of Appeals proceeded
under the familiar burden-shifting approach first adopted by
this Court in McDonnell Douglas Corp. v. Green, 411 U. S.
792 (1973).3 First, the Ninth Circuit found that with respect
2 The ADA defines the term “disability” as:
“(A) a physical or mental impairment that substantially limits one or more
of the major life activities of such individual;
“(B) a record of such an impairment; or
“(C) being regarded as having such an impairment. ” 42 U. S. C.
§ 12102(2).
3 The Court in McDonnell Douglas set forth a burden-shifting scheme
for discriminatory-treatment cases. Under McDonnell Douglas, a plain-
tiff must first establish a prima facie case of discrimination. The burden
then shifts to the employer to articulate a legitimate, nondiscriminatory
reason for its employment action. 411 U. S., at 802. If the employer
meets this burden, the presumption of intentional discrimination disap-
pears, but the plaintiff can still prove disparate treatment by, for instance,

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to respondent’s prima facie case of discrimination, there were
genuine issues of material fact regarding whether respond-
ent was qualified for the position for which he sought to be
rehired, and whether the reason for petitioner’s refusal to
rehire him was his past record of drug addiction.4 298 F. 3d,
at 1034–1035. The Court of Appeals thus held that with
respect to respondent’s prima facie case of discrimination,
respondent had proffered sufficient evidence to preclude a
grant of summary judgment. Id., at 1035. Because peti-
tioner does not challenge this aspect of the Ninth Circuit’s
decision, we do not address it here.
The Court of Appeals then moved to the next step of Mc-
Donnell Douglas, where the burden shifts to the defendant
to provide a legitimate, nondiscriminatory reason for its
employment action. 411 U. S., at 802. Here, petitioner
contends that Bockmiller applied the neutral policy against
rehiring employees previously terminated for violating
workplace conduct rules and that this neutral company pol-
icy constituted a legitimate and nondiscriminatory reason
offering evidence demonstrating that the employer’s explanation is pretex-
tual. See Reeves v. Sanderson Plumbing Products, Inc., 530 U. S. 133,
143 (2000). The Courts of Appeals have consistently utilized this burden-
shifting approach when reviewing motions for summary judgment in
disparate-treatment cases. See, e. g., Pugh v. Attica, 259 F. 3d 619, 626
(CA7 2001) (applying burden-shifting approach to an ADA disparate-
treatment claim).
4 The Court of Appeals noted that “it is possible that a drug user may
not be ‘disabled’ under the ADA if his drug use does not rise to the level
of an addiction which substantially limits one or more of his major life
activities.” 298 F. 3d, at 1033–1034, n. 9. The parties do not dispute that
respondent was “disabled” at the time he quit in lieu of discharge and thus
a record of the disability exists. We therefore need not decide in this
case whether respondent’s employment record constitutes a “record of ad-
diction,” which triggers the protections of the ADA.
The parties are also not disputing in this Court whether respondent was
qualified for the position for which he applied.

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for its decision not to rehire respondent. The Court of Ap-
peals, although admitting that petitioner’s no-rehire rule
was lawful on its face, held the policy to be unlawful “as
applied to former drug addicts whose only work-related of-
fense was testing positive because of their addiction.” 298
F. 3d, at 1036. The Court of Appeals concluded that peti-
tioner’s application of a neutral no-rehire policy was not a
legitimate, nondiscriminatory reason for rejecting respond-
ent’s application:
“Maintaining a blanket policy against rehire of all for-
mer employees who violated company policy not only
screens out persons with a record of addiction who have
been successfully rehabilitated, but may well result, as
[petitioner] contends it did here, in the staff member
who makes the employment decision remaining unaware
of the ‘disability’ and thus of the fact that she is commit-
ting an unlawful act. . . . Additionally, we hold that a
policy that serves to bar the reemployment of a drug
addict despite his successful rehabilitation violates the
ADA.” Id., at 1036–1037.
In other words, while ostensibly evaluating whether peti-
tioner had proffered a legitimate, nondiscriminatory reason
for failing to rehire respondent sufficient to rebut respond-
ent’s prima facie showing of disparate treatment, the Court
of Appeals held that a neutral no-rehire policy could never
suffice in a case where the employee was terminated for ille-
gal drug use, because such a policy has a disparate impact
on recovering drug addicts. In so holding, the Court of
Appeals erred by conflating the analytical framework for
disparate-impact and disparate-treatment claims. Had the
Court of Appeals correctly applied the disparate-treatment
framework, it would have been obliged to conclude that a
neutral no-rehire policy is, by definition, a legitimate, non-

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discriminatory reason under the ADA.5 And thus the only
remaining question would be whether respondent could pro-
duce sufficient evidence from which a jury could conclude
that “petitioner’s stated reason for respondent’s rejection
was in fact pretext.” McDonnell Douglas, supra, at 804.
II
This Court has consistently recognized a distinction be-
tween claims of discrimination based on disparate treatment
and claims of discrimination based on disparate impact. The
Court has said that “ ‘[d]isparate treatment’ . . . is the most
easily understood type of discrimination. The employer
simply treats some people less favorably than others because
of their race, color, religion, sex, or [other protected char-
acteristic].” Teamsters v. United States, 431 U. S. 324,
335, n. 15 (1977). See also Hazen Paper Co. v. Biggins,
507 U. S. 604, 609 (1993) (discussing disparate-treatment
claims in the context of the Age Discrimination in Employ-
ment Act of 1967). Liability in a disparate-treatment case
“depends on whether the protected trait . . . actually moti-
vated the employer’s decision.” Id., at 610. By contrast,
disparate-impact claims “involve employment practices that
are facially neutral in their treatment of different groups but
that in fact fall more harshly on one group than another
and cannot be justified by business necessity.” Teamsters,
supra, at 335–336, n. 15. Under a disparate-impact theory
of discrimination, “a facially neutral employment practice
may be deemed [illegally discriminatory] without evidence of
5 This would not, of course, resolve the dispute over whether petitioner
did in fact apply such a policy in this case. Indeed, the Court of Appeals
expressed some confusion on this point, as the court first held that re-
spondent “raise[d] a genuine issue of material fact as to whether he was
denied re-employment because of his past record of drug addiction,” id.,
at 1034, but then later stated that there was “no question that [petitioner]
applied this [no-rehire] policy in rejecting [respondent’s] application,” id.,
at 1036, n. 17.

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the employer’s subjective intent to discriminate that is re-
quired in a ‘disparate-treatment’ case.” Wards Cove Pack-
ing Co. v. Atonio, 490 U. S. 642, 645–646 (1989), superseded
by statute on other grounds, Civil Rights Act of 1991, § 105,
105 Stat. 1074–1075, 42 U. S. C. § 2000e–2(k) (1994 ed.).
Both disparate-treatment and disparate-impact claims are
cognizable under the ADA. See 42 U. S. C. § 12112(b) (de-
fining “discriminate” to include “utilizing standards, criteria,
or methods of administration . . . that have the effect of
discrimination on the basis of disability” and “using qualifi-
cation standards, employment tests or other selection crite-
ria that screen out or tend to screen out an individual with
a disability”). Because “the factual issues, and therefore
the character of the evidence presented, differ when the
plaintiff claims that a facially neutral employment policy
has a discriminatory impact on protected classes,” Texas
Dept. of Community Affairs v. Burdine, 450 U. S. 248,
252, n. 5 (1981), courts must be careful to distinguish be-
tween these theories. Here, respondent did not timely pur-
sue a disparate-impact claim. Rather, the District Court
concluded, and the Court of Appeals agreed, that respond-
ent’s case was limited to a disparate-treatment theory, that
the company refused to rehire respondent because it re-
garded respondent as being disabled and/or because of re-
spondent’s record of a disability. 298 F. 3d, at 1037, n. 20.
Petitioner’s proffer of its neutral no-rehire policy plainly
satisfied its obligation under McDonnell Douglas to provide
a legitimate, nondiscriminatory reason for refusing to rehire
respondent. Thus, the only relevant question before the
Court of Appeals, after petitioner presented a neutral expla-
nation for its decision not to rehire respondent, was whether
there was sufficient evidence from which a jury could con-
clude that petitioner did make its employment decision based
on respondent’s status as disabled despite petitioner’s prof-
fered explanation. Instead, the Court of Appeals concluded
that, as a matter of law, a neutral no-rehire policy was not

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a legitimate, nondiscriminatory reason sufficient to defeat a
prima facie case of discrimination.6 The Court of Appeals
did not even attempt, in the remainder of its opinion, to treat
this claim as one involving only disparate treatment. In-
stead, the Court of Appeals observed that petitioner’s policy
“screens out persons with a record of addiction,” and further
noted that the company had not raised a business necessity
defense, 298 F. 3d, at 1036–1037, and n. 19, factors that per-
tain to disparate-impact claims but not disparate-treatment
claims. See, e. g., Grano v. Department of Development of
Columbus, 637 F. 2d 1073, 1081 (CA6 1980) (“In a disparate
impact situation . . . the issue is whether a neutral selection
device . . . screens out disproportionate numbers of [the pro-
tected class]”).7 By improperly focusing on these factors,
the Court of Appeals ignored the fact that petitioner’s no-
rehire policy is a quintessential legitimate, nondiscrimin-
atory reason for refusing to rehire an employee who was
6 The Court of Appeals characterized respondent’s workplace miscon-
duct as merely “testing positive because of [his] addiction.” 298 F. 3d, at
1036. To the extent that the court suggested that, because respondent’s
workplace misconduct is related to his disability, petitioner’s refusal to
rehire respondent on account of that workplace misconduct violated the
ADA, we point out that we have rejected a similar argument in the con-
text of the Age Discrimination in Employment Act. See Hazen Paper
Co. v. Biggins, 507 U. S. 604, 611 (1993).
7 Indeed, despite the fact that the Nation’s antidiscrimination laws are
undoubtedly aimed at “the problem of inaccurate and stigmatizing stereo-
types,” ibid., the Court of Appeals held that the unfortunate result of
petitioner’s application of its neutral policy was that Bockmiller may have
made the employment decision in this case “remaining unaware of [re-
spondent’s] ‘disability.’ ” 298 F. 3d, at 1036. The Court of Appeals did
not explain, however, how it could be said that Bockmiller was motivated
to reject respondent’s application because of his disability if Bockmiller
was entirely unaware that such a disability existed. If Bockmiller were
truly unaware that such a disability existed, it would be impossible for her
hiring decision to have been based, even in part, on respondent’s disability.
And, if no part of the hiring decision turned on respondent’s status as
disabled, he cannot, ipso facto, have been subject to disparate treatment.

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terminated for violating workplace conduct rules. If pe-
titioner did indeed apply a neutral, generally applicable
no-rehire policy in rejecting respondent’s application, peti-
tioner’s decision not to rehire respondent can, in no way, be
said to have been motivated by respondent’s disability.
The Court of Appeals rejected petitioner’s legitimate, non-
discriminatory reason for refusing to rehire respondent
because it “serves to bar the re-employment of a drug addict
despite his successful rehabilitation.” 298 F. 3d, at 1036–
1037. We hold that such an analysis is inapplicable to a
disparate-treatment claim. Once respondent had made a
prima facie showing of discrimination, the next question for
the Court of Appeals was whether petitioner offered a legiti-
mate, nondiscriminatory reason for its actions so as to dem-
onstrate that its actions were not motivated by respondent’s
disability. To the extent that the Court of Appeals strayed
from this task by considering not only discriminatory intent
but also discriminatory impact, we vacate its judgment and
remand the case for further proceedings consistent with
this opinion.
It is so ordered.
Justice Souter took no part in the decision of this case.
Justice Breyer took no part in the consideration or deci-
sion of this case.