On Dec. 2 the U.S. Supreme Court handed down a unanimous (7-0, two members not voting) decision in the much-watched Americans with Disabilities Act case of Hernandez v. Hughes Missile Systems (see Oct. 14, Oct. 7, Sept. 16-17, 2002. It held that notwithstanding the ADA’s protection of rehabilitated drug users, an employer is not obliged to rehire such drug users when it is following an otherwise neutral rule prohibiting the rehiring of former employees terminated for misconduct, provided it is not invoking such a rule as a mere pretext. The decision was widely reported as a straight-out victory for employers (see, for example, “US court rules for company on drug-use disability”, Reuters/Forbes, Dec. 2) but a closer look suggests a more complicated picture, with the door still open for legal attacks on many seemingly neutral employment rules (“Supreme Court Says No-Rehire Policy Is Not Discriminatory Practice Under ADA”, BNA, Dec. 8; “Supreme Court Dodges Question Whether Rehire Policy Barring Former Drug User Violates Disability Law”, Jackson Lewis, Dec. 3).
On the other coast, disabled-rights litigators suffered a significant setback last month that has been little noted in the national press, when a Bay Area judge rejected an suit attempting to hold the clothing discounter Mervyn’s liable for maintaining merchandise displays too crowded for wheelchair users to navigate. In his decision, Alameda Superior Court Judge Henry Needham “wrote that fixing Mervyn’s California stores to make all aisles conform with a 32-inch clearance for wheelchairs would cost the company $70 million in lost annual sales and $30 million in lost profits, according to the company’s estimates.” This exceeds the scope of “reasonable” accommodation, the judge ruled (Melanie Payne, “Judge backs Mervyn’s in disability suit”, Sacramento Bee, Nov. 5). Disabled-rights litigators had made wide-aisle mandates an important priority in lawsuits and protests: see Aug. 23 and links from there.
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