Walking a straight (and fine) line: alcoholism and the Americans with Disabilities Act.

Notwithstanding the negative connotation associated with alcoholism and alcohol abuse, certain protections are afforded in the workplace by the Americans With Disabilities Act (ADA). This paper will explore the extent of those protections and describe some of the issues surrounding them. An

The rationale for limiting the review to appellate decisions is based on the greater importance they carry in establishing precedence and creating principles to provide guidance for subsequence judicial decisions as well as providing direction for employers' actions. While it would have been possible to include more individual cases in the review, it was felt that doing so would create considerable redundancy in the principles illustrated. Therefore, cases were chosen based on the "richness" of the legal reasoning underlying the decisions.

Alcoholism Within the ADA Definition of Disability?.

Of critical importance is the question of whether alcoholism is a disability within the meaning of the ADA. Title 42 U.S.C. [section] 12102(2) provides as follows:

The term "disability" means, with respect to an individual:

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.

Some of the circuits have accepted without deciding that alcoholism is a disability. Others have made an explicit decision one way or the other.

For example, in Burch v. Coca-Cola Co., (1) the Fifth Circuit refused to accept that alcoholism is a per se disability under the ADA. It reversed the district court's denial of Coca-Cola's motion for judgment as a matter of law on Butch's ADA reasonable accommodation claim. Butch had maintained that Coca-Cola failed to reasonably accommodate him when it refused to allow him to return to his job after completing a rehabilitation program.

First the Court made a distinction between "disability" and "limitation." It stated that, "the existence ... of a disability or impairment is material to a reasonable accommodation claim only insofar as it limits an employee's ability to perform his or her job." (2) Then the Court differentiated between the requirements for showing disability when claiming intentional discrimination and when claiming failure to accommodate. It stated that in order to establish disability status when claiming intentional discrimination, one would be required to show an impairment that substantially limited a major live activity such as walking, seeing or hearing. However, in order to establish disability when claiming failure to accommodate, there must be a substantial limitation specifically on the major life activity of working.

In addressing the former, the Court noted that Burch's inebriation produced effects no different than that of a social drinker who overindulges:

   That Burch's inebriation was temporarily incapacitating is not
   determinative. Butch produced no evidence that the effects of his
   alcoholism-induced inebriation were qualitatively different than
   those achieved by an overindulging social drinker: in both
   situations, the natural result of overindulgence is the temporary
   impairment of senses, dulled reactions, and the prospect of a
   restless sleep followed by an unpleasant morning. (3)

   It also noted that even though Burch overindulged on a frequent
   basis, this did not indicate that the effects were permanent:

   Although Burch's alcoholism may have been permanent, he offered no
   evidence that he suffered from any substantially limiting impairment
   of any significant duration)

Finally the Court noted that his being hospitalized for alcoholism was not sufficient to indicate that he was disabled.

Next the Court addressed the issue of failure to accommodate. It stated that in order to state a cause of action, it is necessary to have an impairment that requires an accommodation; otherwise, one could not be limited in the activity of working. An accommodation, according to the Court, by definition involves changing some aspect of the work or work environment. Burch had not requested any accommodation other than to be allowed to return to his job.

The Court also considered whether Burch had a "record of impairment." It quickly dismissed this possibility by stating that because he had not established the existence of an impairment that significantly limited a major life activity, he could not have a record of impairment:

   At most, Butch had a record of treatment for alcohol abuse and/or
   alcoholism. That Butch's alcoholism was severe enough to warrant
   treatment does not establish a record of a disability. (5)

Finally, the issue of "regarded as impaired" was decided. The Court stated that for Butch to be regarded as impaired, his employer would have had to perceive Butch's alcoholism substantially limiting when in fact it was not. This was rejected because the evidence would not "support a finding that Coca-Cola regarded Butch as anything other than what he actually was: an alcoholic whose alcoholism did not substantially impair any major life activity, including the major life activity of working." (6)

The Court went on to say that even if Butch's employer regarded his alcoholism as limiting his ability to work at the job from which he was terminated, it still would not meet the standard necessary for limiting the major life activity of working. In order to do so, his alcoholism would have to preclude him from working in a broad class of jobs. The court rejected that conclusion.

This case illustrates the substantial requirements that may be placed on the consideration of alcoholism as disability under the ADA. While accepting that Butch was a recovering alcoholic under the generally accepted definition, the Court still required a showing that the former alcohol abuse had created a substantial limitation on working. Without this showing, there was no change in the job or job environment needed. Consequently, Butch was not disabled within the meaning of the ADA.

In a similar vein, in Bailey v. Georgia-Pacific Corp., (7) the First Circuit rejected a claim that a plaintiff's alcoholism qualified as a disability under the ADA. Here Bailey had been incarcerated for driving under the influence of alcohol. He requested that his employer sponsor him for a work release program, which the employer refused to do. After using all his leave time, Bailey was terminated for failure to be available to work. Bailey then filed an ADA claim for disability discrimination and failure to accommodate.

The First Circuit used much the same reasoning as the Fifth. First it addressed whether Bailey's impairment--alcoholism--did substantially limit the major life activity of working. In order to do so there would have to be evidence that he was "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities." (8) The Court concluded that Bailey's evidence showed that he had difficulties in the performance of a single job and even those difficulties were not surmountable. The Court also indicated that even though his incarceration limited his ability to work in a broad class of jobs, this was a temporary condition that did not rise to the level of permanence needed for disability status.

Next it considered whether Bailey had a record of disability or was regarded as disabled. The Court ruled that in order to have a record of disability, the impairment in question must have, in the past, substantially limited a major life activity. To be regarded as disabled, a person must show one of two things:

a. the person is mistakenly believed to have a limiting impairment which he/she does not have, or

b. an impairment which the person has is mistakenly believed to limit a major life activity.

The Court indicated that while Bailey was correctly believed to have an impairment, there was nothing to show that the employer believed that the impairment substantially limited his ability to work in a broad class of jobs:

   Since Bailey contends that Georgia-Pacific perceived him to be
   substantially limited in the major life activity of working, he must
   show that he was perceived as being unable to work in either a class
   of jobs or a broad range of jobs in various classes as compared with
   the average person having comparable training, skills, and
   abilities. (9)

The Court concluded that, at most, the employer found him to be unable to meet the requirements of a single job when he was unavailable during his incarceration.

In Buckley v. Consolidated Edison Co. II, (10) the Second Circuit appeared to be on both sides of the issue regarding alcoholism as a disability. First it indicated that the status of "recovering alcohol abuser" does not seem to rise to the level of substantially limiting a major life activity as required by the ADA. However, it noted that having a record of impairment does afford a person protective coverage. It then required that a plaintiff "must demonstrate that he was actually addicted to drugs or alcohol in the past, and that this addiction substantially limited one or more of his major life activities. (11) Ultimately though the Court ruled that Buckley had met his burden by his alleging, "that he is a qualified individual with an ADA-covered disability, namely a record of past drug and alcohol addiction that impaired one or more of his major life activities." (12)

However, this same Court took a more restrictive view of alcoholism as a disability in Nucifora v. Glass. (13) In affirming summary judgment granted by the district court to the defendant employer, the Court indicated that it was in full agreement that the plaintiff had not established that she was disabled under the ADA. The lower court had noted that the case was very similar to Burch. That is the plaintiff had not established that her alcoholism affected major life activities other than during the time that she was intoxicated. Mso, the plaintiff had testified that she believed that she had been able to perform her job responsibilities in an adequate fashion so therefore she was not restricted in the activity of working. Consequently the lower court had ruled that she had not established that she was disabled.

In an interesting turn of events, the Tenth Circuit, in Nelson v. Williams Field Servs. Co., (14) affirmed a lower court decision that the plaintiff was not disabled within the definition of the ADA. This occurred even though the employer had required him to sign a return to work agreement, which stated that he would not consume alcoholic beverages during the time of his employment and would have to submit to alcohol tests. The implication of this requirement was that the employer regarded the plaintiff as being an alcoholic. Nevertheless, the Court agreed that the plaintiff had not been able to show an impairment that substantially limited any major life activities.

In Office of the Senate Sergeant at Arms v. Office of Senate Fair Employment Practices, (15) the Federal Circuit reached a markedly different conclusion. (16) In this case, an employee, Singer, had missed several days of work without advance notification. When faced with termination, Singer admitted to alcoholism and was offered a last chance agreement requiring participation in a substance abuse program. Because the "agreement" did not include expunging his employment record of reference to past disciplinary actions, Singer refused. When the "agreement" was imposed, Singer claimed disability discrimination.

In determining that Singer was disabled because of his alcoholism, the Court examined the relationship between his impairment, alcoholism, and work performance. Using a more liberal standard than above, the Court ruled that because Singer's failure to conform to the advance notification policy resulted from his alcoholism, he was limited in performing his job:

   The board concluded that a sufficient causal connection existed
   between Singer's alcoholism and his job performance to qualify him
   as an individual with a disability. Singer's alcoholism clearly
   interfered with his ability to report for work, and it thus
   substantially limited his performance in his job, which was one of
   his major life activities. It was undisputed that Singer had
   competently performed his job; his shortcoming was not in his job
   performance as such, but rather in his inability to regularly report
   for work and to comply with the [advance notification] rule. (17)

The Federal Circuit has certainly imposed a less rigorous standard for meeting the ADA definition of disability. Rather than the considerable obligation of showing that the impairment limits the person from performing a range of jobs on a permanent basis, this court only required a showing that the impairment presents an obstacle to meeting some requirement of the job--in this situation, advance notification of absence.

In Miners v. Cargill Communs, (18) the Eighth Circuit quickly determined that Miners met the definition of disabled because her employer regarded her as an alcoholic. Here, Miners had attempted to operate a company vehicle after consuming alcohol. She was directed to enter a substance abuse program, and when she refused, she was terminated. The Court ruled that she had submitted enough evidence to show that the employer regarded her as an alcoholic, therefore meeting the definition of disability under the ADA. This evidence was described as:

a. the fact that she had been offered the choice between a substance abuse program and being fired, and

b. her supervisor's knowledge that she had missed one day of work previously because of a hangover.

Nowhere in its decision did the Court require a showing that the employer believed that Cargill was limited in performing a wide range of jobs.

In a similar fashion, the Seventh Circuit has also employed a less demanding standard in determining if a person is regarded as disabled due to alcoholism. In Pugh v. City of Attica, (19) the plaintiff had been required to submit to a "breathalyzer" test before driving a city vehicle and to undergo a substance abuse treatment program. Eventually, Pugh was terminated for misappropriation of city funds and then filed an ADA claim of harassment and disability discrimination. Even though the district court granted summary judgment for the city, it did rule that Pugh had established (based on the above requirements) that the city regarded him as an alcoholic. In agreeing that Pugh met this definition of disability, the Appeals Court seems to have implicitly decided that alcoholism, in and of itself, should be considered a disability within the meaning of the ADA.

Finally, in Mararri v. WCISteel, (20) the Sixth Circuit addressed the issue of whether current use of alcohol precluded an alcoholic from protection under the ADA. First it stated, "[t]here is no dispute that alcoholism is a disability within the protection of the ADA." (21) This coincides with the opinion of the Federal, Seventh and Eighth Circuits. Then it went on to differentiate "current use of alcohol" from "current use of illegal drugs":

   Thus, the plain language of [section] 12114(a) does not exclude
   alcoholics from ADA coverage because alcohol is not a "drug" within
   the meaning of the statute. The statute treats drug addiction and
   alcoholism differently, and an alcoholic is not automatically
   excluded from ADA protection because of current use of alcohol. (22)

There is considerable disagreement among some of the Circuits regarding to what extent alcoholism should be considered a disability under the ADA. Some have required that there be an individual showing that the person's alcoholism has a substantial limiting impact on either a major life activity outside of work or on working itself. Others have either accepted alcoholism as a disability per se, relied on the employer's behavior (e.g., requiring an agreement to abstain from alcohol consumption as a condition of employment), or accepted the impact on the person's current job performance as an indication of disability.

Justifiable Cause of Action

Even when qualifying as disabled, alcoholics, many times, were unable to prevail because their employers had been able to put forward a non-discriminatory reason for a punitive job action. These can be classified as either misbehavior (on or off the job) caused by the alcohol abuse or misbehavior unrelated to alcohol. Once the employer has produced a reason for the action, the employee has the burden of showing enough evidence to indicate that the proffered reason is pretext and should be discounted.

Behavior Unrelated to Alcohol

In Pugh, (23) cited above, the employer claimed that Pugh had been terminated for misappropriation of city funds. Pugh, on the other hand, claimed that he was terminal ed because of his alcoholism. The Seventh Circuit affirmed an order of summary judgment for the employer issued by the district court. In doing so, the Court stated that, first of all, Pugh had not offered enough evidence to disprove the allegations regarding misappropriation of funds. It discounted the fact that Pugh's discharge had occurred just one week after his filing a charge of harassment and that his letter of termination had not contained a reason for the termination. Even with evidence of his innocence, Pugh would still have had to show that the city did not, in fact, believe the allegations to be true:

   Mr. Pugh must provide more than his unsupported declaration that
   the City was mistaken in order to defeat the City's motion for
   summary judgment. Even if the City was incorrect in its belief,
   we will not contest the City's reasoning if the City acted in
   good faith and held an honest belief in the proffered reason for
   Mr. Pugh's termination. (24)

Essentially, the Court seems to say that when the employer can offer a legitimate justification for its employment action, a plaintiff cannot rely on just a belief that the action was motivated by an unlawful consideration. In other words, one should not automatically assume that a punitive action was based on one's alcoholism.

In Brennan v. New York City Police Dept, (25) Brennan, a probationary officer, had two episodes involving his firearm. The first occurred when, after working an extra shift and then consuming several beers, he left a bag containing his firearm on a subway train. The second occurrect when he was discovered "slouched against a mailbox," intoxicated, with two rounds of ammunition missing from his firearm. After the second episode, Brennan entered a substance abuse program, which he successfully completed. However, at the end of his probationary period, he was recommended for dismissal. Brennan filed an ADA complaint, claiming failure to accommodate.

The Second Circuit, in upholding the district court verdict in favor of the defendant, ruled that Brennan had been terminated not for reasons associated with his alcoholism but for failure to maintain the security of his firearm. This was based on Brennan's assertion (at the time of the first incident) that the loss of his weapon was caused by fatigue and not his consumption of alcohol. Consequently, the Court ruled that Brennan was unqualified for the job and was not entitled to any accommodation:

   Continuous monitoring by the EAP might be an effective accommodation
   to Brennan's alcoholism (insofar as his alcoholism affects his
   ability to do his job). But this is an issue that we need not and do
   not decide, since such monitoring would not solve the problem of
   Brennan's non-alcohol-related carelessness with his weapon. (26)

In the first of the above cases, there was definitely a disconnect between the activity upon which the employer based its termination decision and the disability of alcoholism. The issue there was whether the reason given was a pretext covering up unlawful disability discrimination. In the second case the nexus between the disability and the behavior, which resulted in termination, is less clear. The Court seemed to place a great deal of credence in the plaintiff's self-assertion (at the time of the incident) that the behavior did not result from his consumption of alcohol.

Alcohol-Related Misbehavior

Almost universally Courts have held that disciplinary action for unacceptable behavior is permissible under the ADA even if the behavior is attributable to the person's alcoholism. (27) This holding has been based to a great extent on Section 12114 (c) of the ADA, which states, in part, that an employer:

   [M]ay hold an employee who engages in the illegal use of drugs or
   who is an alcoholic to the same qualification standards for
   employment or job performance and behavior that such entity holds
   other employees, even if any unsatisfactory performance or behavior
   is related to the drug use or alcoholism of such employee.

Some illustrative cases follow.

In Maddox v. University of Tennessee, (28) the plaintiff, Maddox, had been hired as an assistant football coach. At the time of hire, he had not divulged that he was an alcoholic. A few months later he was arrested for driving under the influence of alcoholism and public intoxication. This, in turn, resulted in a great deal of negative publicity for the university and Maddox was fired. Maddox then charged unlawful discrimination under the ADA, claiming that his behavior was caused by his alcoholism. Consequently, he asserted, his termination was because of his disability:

Maddox argues that, in the instant case, when UT acted on the basis of the conduct allegedly caused by the alcoholism, it was the same as if UT acted on the basis of alcoholism itself. (29)

Both the district court and the Sixth Circuit disagreed. They ruled that there was a distinction between firing someone for unacceptable behavior and firing them for their disability:

   [T]o hold otherwise, an employer would be forced to accommodate all
   behavior of an alcoholic which could in any way be related to the
   alcoholic's use of intoxicating beverages; behavior that would be
   intolerable if engaged in by a sober employee or, for that matter,
   an intoxicated but non-alcoholic employee. (30)

In addition, the Court stated that while alcoholism might compel someone to become intoxicated, it did not compel that person to drive while intoxicated or engage in some other illegal behavior.

In Martin v. Barnesville Exempted Village Sch. Bd. of Educ., (31) the plaintiff, Martin, had been caught drinking a beer while at work. In order to keep his job he was required to sign a "last chance" agreement that included admitting to a drinking problem, attending a rehabilitation program and submitting to alcohol testing for two years. Three years later he was turned down for a job driving a school bus. An arbitrator awarded him the job and this award was upheld by a state court. However, Martin filed an ADA claim for back pay and punitive damages. The district court granted summary judgment for the school board, which was affirmed by the Sixth Circuit. While accepting that Martin was regarded as an alcoholic, the Court found that his rejection was based on his past behavior, not his disability. It indicated that, "[t]he ADA does not protect [a] plaintiff from his own bad judgment in drinking on the job." (32) Therefore, the school board had not violated the ADA.

In Despears v. Milwaukee County, (33) Despears had his driver's license revoked after his fourth conviction for driving under the influence of alcohol. Upon learning of this, the defendant demoted him from maintenance worker to custodial worker with a loss of pay because one of the job requirements for the maintenance position was having a driver's license. Despears proposed the following causal chain: his alcoholism caused him to drive while intoxicated, his driving while intoxicated caused him to lose his driver's license and losing his driver's license caused him to be demoted. Therefore, his alcoholism caused him to be demoted.

The Court agreed that if alcoholism absolutely compelled him to drive while intoxicated, there might be a cause of action:

   If being an alcoholic he could not have avoided becoming a drunk
   driver, then his alcoholism was the only cause of his being demoted,
   and it would be as if the employer's regulation had said not that
   you must have a valid driver's license to be a maintenance worker
   but that you must not be an alcoholic. (34)

However, the Court would not agree that alcoholism creates a compulsion to drive while intoxicated. It indicated that Despears still made the decision to drive when intoxicated and that criminal law does not hold a person harmless for their criminal behavior while intoxicated.

   But we have drifted from the point, which is simply that the
   criminal law proceeds on the premise that even alcoholics can avoid
   driving while under the influence of alcohol. And if this is so,
   then Despears despite his alcoholism could have avoided the demotion
   of which he complains by avoiding driving while drunk. His
   disability concurred with a decision to drive while drunk to produce
   the loss of license and resulting demotion. The disability
   contributed to but did not compel the action that resulted in the
   demotion. (35)

Therefore, even while recognizing that driving might not have been an essential requirement of the job, the Court affirmed summary judgment for the defendant.

Courts have been very consistent in refusing to limit employers' ability to hold alcoholics to the same standards as other employees. Even when accepting the existence of a causal relationship between alcohol and the misbehavior, a distinction has been made between this type of disability based behavior and behavior resulting from other types of impairments.

Disabled But Unqualified

Sometimes it is accepted that an alcoholic is disabled, but then a question is raised regarding whether the person is "otherwise qualified." In Bekker v. Humana Health Plan, Inc., (36) the plaintiff, Bekker, was a physician employed by Humana. After a period of time during which there were patient complaints about smelling alcohol on her breath, she was told that she would have to undergo a substance abuse evaluation, enter treatment, and submit to random tests for a period of two years. When Bekker did not accept these conditions of employment, she was terminated. In reviewing the district court's grant of summary judgment for the defendant, the Seventh Circuit essentially agreed that even though Bekker was perceived as disabled by alcoholism, she was not otherwise qualified. The district court had indicated that Bekker had the obligation to show that she was not a threat to the health and safety of her patients. The fact that she had not caused harm in the past was not considered sufficient.

In Smith v. Davis, (37) a district court had ruled that Smith was unqualified for his job because of excessive absenteeism resulting from his alcoholism. Accordingly, it granted summary judgment to the defendant, stating that Smith was not entitled to protection under the ADA because he was not otherwise qualified. While agreeing that, "[a] n employee who does not come to work on a regular basis is not 'qualified,'" (38) the Third Circuit remanded the case because there was not enough undisputed evidence such, "that a reasonable fact-finder would have to conclude that Smith was unqualified due to excessive absenteeism." (39) Here the issue raised by the Court was whether Smith's level of absenteeism was sufficient to render him unqualified regardless of its cause.

In Bekker there appears to be a clear nexus between the effects of alcohol abuse and the ability to perform effectively the responsibilities of the job in question. Certainly the potential to cause harm to a patient and/or the reputation of the employer is unquestionable. Her refusal to accept the terms of a "last chance" agreement rendered her unqualified. A different situation exists in Smith. If it is accepted that absenteeism is related to a person's alcoholism and that it is possible to mitigate the effects of alcoholism through substance abuse programs, then it would seem the person would be otherwise qualified and entitled to a reasonable accommodation.

Reasonable Accommodation

Where the courts have recognized an alcoholic as an otherwise qualified disabled individual, the question of reasonable accommodation may still arise. The ADA requires an employer to make reasonable accommodations for the disabled, but certainly the types of accommodation appropriate for an alcoholic are considerably different than for other disabilities. For the most part, accommodation for alcoholism has involved allowing the person time off for substance abuse rehabilitation programs or the issuance of a "last chance" agreement to refrain from alcohol consumption in lieu of disciplinary action.

Even those types of accommodations have their limits. In Brown v. Lucky Stores, (40) after being arrested and incarcerated for driving under the influence of alcohol and possession of illegal drugs, Brown was required to participate in a round-the-clock rehabilitation program, which resulted in her missing work. Even though her sister notified her supervisor regarding her incarceration, Brown was fired after missing three days of work without authorization. She then filed an ADA complaint, charging that the employer had failed to accommodate her alcoholism by not allowing her time for the rehabilitation program. The district court granted summary judgment for the defendant and the Ninth Circuit affirmed. The Court indicated that her employer was not required to accommodate her alcoholism because she had not, in fact, notified them of a need for accommodation until after the fact.

In a similar fashion, in Despears, (41) the Seventh Circuit addressed the timing of a request for accommodation. Here the Court indicated that had the situation been different, he might be entitled to an accommodation.

   We can imagine a slightly different case in which Despears would
   stand on firmer ground. Suppose when he was hired by the medical
   facility he told his employer, "I dare not drive because of my
   alcoholism, and therefore I ask you to excuse me from having to
   have a driver's license to be a maintenance worker, since driving is
   not an essential part of the job." That would be a request for an
   accommodation, rather than a request to be excused from a
   consequence of criminal activity. (42)

The gist of this statement is that the Court would only consider the need for accommodation when the request is made prior to any alcohol related misbehavior.

In Flynn v. Raytheon Co., (43) the plaintiff, Flynn, after nine years of alcoholism related absences and tardiness, was fired for reporting to work under the influence of alcohol. After completing his fourth rehabilitation program, Flynn requested reinstatement. Raytheon refused and Flynn filed charges under the ADA. Flynn claimed that he had been given a conditional "promise" for reconsideration once he rehabilitated himself. Both the district court and the First Circuit ruled that the ADA does not require an employer give a "second chance" once a person has been lawfully discharged.

   Flynn's contention confuses a conditional promise to consider a
   future request to rehire with a putative ADA-based obligation to
   rehire at present. The ADA does not require an employer to rehire a
   former employee who was lawfully discharged for repeated
   disability-related failures to meet its legitimate job requirements;
   viz., punctuality and sobriety.... "A second chance ... is not an
   accommodation, as envisioned in the ADA." (44)

Two Court decisions involved the extent an employer is required to make accommodations regarding travel after the revocation (for driving while intoxicated) of a person's driver's license. In Arbogast v. ALCOA Bldg. Prods., (45) Arbogast had enrolled in an apprenticeship program that was held in a location 15 miles from where he lived. Because he had a permanent suspension of his driver's license, he requested one of three accommodations:

a. the employer provide transportation,

b. a modification of his work schedule to make it easier to arrange transportation, or

c. a leave of absence until the class was completed.

The employer refused to make any of the accommodations, and after failing to complete the class Arbogast filed a complaint under the ADA. The district granted summary judgment for the defendant and the Seventh Circuit affirmed. The Court stated that it was not Arbogast's alcoholism that created the difficulty in attending the training class, but his act of driving while under the influence of alcohol. Consequently, the employer was not required to provide an accommodation:

   [T]he barrier to Arbogast getting to the training classes is his own
   past conduct, not a disability such as alcoholism. Because
   Arbogast's disability did not cause his travel difficulties, the ADA
   does not require ABP to accommodate those travel difficulties any
   more than it would require ABP to provide transportation to someone
   who does not own a car. (46)

In Turner v. Fleming Cos., (47) Turner required extensive outpatient counseling Monday through Thursday evenings because of his alcohol dependency. Because he was assigned to work during the evening, he requested that he be reassigned to the day shift. Citing the unavailability of a vacancy during the day, the employer offered Turner time off during his evening shift with a travel time allotment of 15 minutes each way. Turner considered the travel time insufficient and once again requested a different work schedule. After missing work for three days, Turner (according to company policy) was terminated. Turner then filed charges under the ADA, claiming, among other things, a failure to reasonably accommodate his disability.

The district court granted summary judgment on the basis that Turner had failed to demonstrate a disability under the ADA. While accepting without deciding that Turner was disabled, the Sixth Circuit affirmed on the grounds that the accommodation that was offered was reasonable and that the employer did not have to provide the accommodation favored by the disabled individual:

Instead, Turner attempted to hold out for an accommodation he preferred, either a position on the first shift or, in the proposal he faxed to Fleming on December 5, a schedule where he worked primarily during the first shift on Monday through Thursday and any time on Friday and Saturday. However, an employee cannot use the ADA to compel an employer to offer a particular reasonable accommodation. This court has previously noted that "the employer providing the accommodation has the ultimate discretion to choose between effective accommodations and may choose the less expensive accommodation or the accommodation that is easier for it to provide." (48)

A potentially important decision regarding reasonable accommodation occurred when Buckley v. Consolidated Edison Co. (1) (49) was decided en banc by the Second Circuit. Here Buckley, a recovering alcohol and drug abuser was required to submit to a urine test on a monthly basis. Suffering from neurogenic bladder condition, Buckley was not able to produce a urine sample in the time allotted. He requested that he be given more time, or alternately, be allowed to undergo a blood test (for which he offered to pay). The employer refused and subsequently Buckley was fired. Reversing an order for summary judgment by the district court, a divided panel of three justices ruled that Buckley should be accommodated. (50) It based this ruling on the fact that those with neurogenic bladder disorder who were former addicts were required to undergo monthly testing while those with the same disorder who were not former addicts were only tested once every five years. Therefore, former addicts were more likely to be terminated for failure to produce a urine sample than non-addicts. Subsequently, there was disparate impact based upon their addiction.

The full Court vacated the panel decision. First it indicated that all parties agreed that Buckley's bladder condition was not an impairment that significantly limited a major life activity. Then it ruled that the requested accommodation was for a non-disabling condition and therefore not required by the ADA.

   Rather, Buckley's accommodation claim was that Con Edison's "failure
   ... to reasonably accommodate him by extending the time allowed for
   him to urinate, [was] a violation of [section] 12114 and of the duty
   of reasonable accommodation as included in 42 U.S.C. [section]
   12112." ("he was denied" a "reasonable accommodation in order to
   produce his urine specimen"). There being no suggestion that
   Buckley's inability to produce a urine sample under time constraints
   or under supervision was related to his recovering-substance-abuser
   status, this too fails to state a claim under the ADA, for what the
   ADA forbids is discrimination "because of the disability of" the
   qualified individual, 42 U.S.C. [section] 12112(a), and
   discrimination "on the basis of disability".... Thus, the language
   of the Act, in defining discrimination to include the failure to
   make reasonable accommodation for an otherwise qualified employee's
   known disability, does not require an employer to make accommodation
   for an impairment that is not a disability within the meaning of
   the Act or that does not result from such a disability. (51)

While the above conclusion, no doubt follows the "letter" of the statute, it, nonetheless, is troubling. One might argue that, in the above situation, a neurogenic bladder condition is an impairment, which substantially limits the major life activity of working. It is true that the bladder condition might not limit the opportunity to work in a broad range of jobs for most people. However, the U. S. Supreme Court has ruled that disability must be determined on an individual basis. Therefore, someone who is required to submit to a urine test where the sample is obtained under supervision could be precluded from many types of jobs.

Conclusions

The Circuits seem to be about evenly divided on the issue of establishing alcoholism as a disability within the meaning of the ADA. Some Circuits have considered alcoholism a disability per se, or required very little substantiation on an individual basis. Others have placed a considerable burden on someone claiming disability as an alcoholic, such as requiring that alcohol abuse preclude the person from working in a wide range of jobs. At the very least, there needs to be clear guidelines established for determining when alcohol abuse is severe enough to constitute a disability. However, this will not be as simple as stating a maximum blood-alcohol level, above which someone is considered legally intoxicated.

Courts have generally concluded that the ADA allows employers to hold employees who are alcoholic to the same work and behavioral standards as non-alcoholic employees. Even when "misbehavior" could be attributed to alcohol abuse, employers are safe in administering normal disciplinary measures. It is important, though, for the employer to administer discipline in a consistent manner that does not differentiate between a behavior resulting from alcohol abuse and the same behavior resulting from other causes.

The most common accommodation required is allowing an employee time off for seeking substance abuse rehabilitation. Even this accommodation usually requires that the employee notify the employer of a need before alcohol related misbehavior occurs. With regard to other types of accommodations, such as waiving the requirement that an employee possess a driver's license, courts have been generally unsympathetic.

All and all, while alcoholism may be considered a disability under the ADA, in many, if not most situations, little in the way of special treatment is required. Employees should not count on their status as an "alcoholic" to protect them from repercussions for violating work rules. Consequently, employers need not hesitate in enforcing work-related rules and policies. On the other hand, employers would be wise to accommodate any request for time to undergo rehabilitation treatment made in a timely manner before misconduct occurs. Failure to do so could be a violation of the ADA requirement that reasonable accommodations be made.

Notes

(1) 119 F.3d 305 (5th Cir. 1997).

(2) Id. at 314.

(3) Id. at 316

(4) Id.

(5) Id. at 322.

(6) Id.

(7) 306 F.3d 1162 (1st Cir. 2002)

(8) Id. at 1168.

(9) Id. at 1169.

(l0) 127 F.3d 270 (2nd Cir. 1997).

(11) Id. at 274.

(12) Id.

(13) 36 Fed. Appx. 472 (2nd Cir. 2002).

(14) 2000 U.S. App. LEXIS 13020.

(15) 95 F.3d 1102 (Fed. Cir. 1996).

(16) It should be noted that the claim was filed was filed under the Government Employee Rights Act (GERA), and an administrative ruling under GERA was being appealed. Because the definition of disability was drawn from the ADA, the Court based it conclusions its interpretation of ADA requirements.

(17) Id. at 1106.

(18) 113 F.3d 820 (5th Cir. 1997).

(19) 259 F.3d 619 (7th Cir. 2001).

(20) 130 F.3d 1180 (6th Cir. 1997)

(21) Id. at 1185.

(22) Id.

(23) Pugh v. City of Attica, Supra.

(24) Id. at

(25) 1998 U.S. App. LEXIS 1923 (2nd Cir. 1998)

(26) Id.

(27) The exception to this standard is Teahan v. Metro-North Commuter Railroad Co., which was tried under the Rehabilitation Act.

(28) 62 F.3d 843 (6th Cir. 1996).

(29) Id. at 847.

(30) Id.

(31) 209 F.3d 931 (6th Cir. 2000).

(32) Id. at 935.

(33) 63 F.3d 635 (7th Cir. 1995.

(34) Id. at 636.

(35) Id. at 637.

(36) 229 F.3d 662 (7th Cir. 2000).

(37) 248 F.3d 249 (3rd Cir. 2001).

(38) Id. at 251.

(39) Id. at 252.

(40) 246 F.3d 1182 (9th Cir. 2001).

(41) Despears v. Milwaukee Count., Supra.

(42) Id. at 637.

(43) 1996 U.S. App. LEXIS 20837 (1st Cir. 1996).

(44) Id.

(45) 1998 U.S. App. LEXIS 21500 (7th Cir. 1998).

(46) Id.

(47)1999 U.S. App. LEXIS 1194 (6th Cir. 1999)

(48) Id.

(49) 155 F.3d 150 (2nd Cir. 1998).

(50) 127 F.3d 270 (2nd Cir. 1997)

(51) Buckley v. Consolidated Edison I, Supra. at 156.

Author

Douglas Massengill, Ph.D.

Associate Professor of Management

Loyola University Chicago

820 N. Michigan Avenue

Chicago, IL 60611

(312) 915-6538

dmassen@luc.edu

Dr. Douglas Massengill is an associate professor of management at Loyola University Chicago. He received a Ph.D. in organizational-industrial psychology from the University of Tennessee, Knoxville. He has published several articles on employers' obligations under Title VII and the Americans with Disabilities Act.