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Employment Law Update: Recent Developments in the Supreme Court and Congress

By E. Fredrick Preis and Melissa M. Mulkey

The U.S. Supreme Court continues to keep employers on their toes by dealing with cases involving employment issues this term. During the first week of December, the Court issued its decision in Raytheon Co. v. Hernandez, No. 02-749, ___ S. Ct. ___ (2003), an ADA case involving the legality of an employer policy prohibiting the rehire of individuals fired for violating the employer's drug use policy. Also, the Court agreed to consider two other employment cases. First, in Pennsylvania State Police v. Suders, the Court will decide whether constructive discharge is a “tangible employment action” for purposes of sexual harassment claims. Second, in Central Laborers' Pension Fund v. Heinz, the Court will tackle an issue involving ERISA's anti-cutback rule for pension benefits.

In Raytheon, the Court declined to decide the issue generating interest among employment law practitioners (and upon which it had granted certiorari): “whether the ADA confers preferential rehire rights on disabled employees lawfully terminated for violating workplace conduct rules.” Instead, the Court sent the decision back to the Ninth Circuit due to its failure to apply the proper standard for evaluating the plaintiff's claims.

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