Termination of Employee Perceived As Incurable Alcoholic Violated ADA
An employer who perceived an employee to be an incurable alcoholic violated the Americans with Disabilities Act when it terminated the employee while on mandatory leave for treatment of his dependency. The U.S. Court of Appeals for the Sixth Circuit (Cincinnati) found ample evidence to support the conclusion that the hospital where the employee was receiving treatment regarded him as disabled, thereby triggering the employee's protection from employment discrimination under the ADA. Moorer v. Baptist Memorial Health Care System, 2005 U.S. App. LEXIS 2227 (6th Cir. February 11, 2005).
Federal courts, including the U. S. Supreme Court, have said consistently that the determination of whether an individual is disabled or is regarded as being disabled for purposes of the ADA is made on a case-by-case basis by assessing the facts of each particular situation. Because these determinations are so fact-sensitive, it is instructive to look closely at the particular circumstances surrounding this court's determination.
The plaintiff worked for the employer for 17 years until he was terminated in 1997. He received a number of promotions over the years, and in 1995 he was promoted to Administrator and Chief Financial Officer. In January 1997, he received a performance evaluation that listed several concerns, and in May 1997, his new supervisor was advised that he had made progress with some of the deficiencies but not all.
At a meeting that July, where both the plaintiff and the supervisor were present, the supervisor detected the smell of alcohol on the plaintiff's breath, observed his complexion to be ruddy, and observed him slumped in his chair with his chin on his chest. Two days later the supervisor met with a senior executive, as well as the Senior Vice President of Human Resources, who advised her to contact the in-house Employee Assistance Program. The supervisor did so, indicating to the EAP director the plaintiff's work performance problems and her suspicions of alcohol at the meeting.
According to the supervisor, the director advised her that the meeting was a "good indicator" of a "broader, long-term issue," that she should discuss the plaintiff's performance issues with him and, as part of that discussion, refer him for treatment, place him on leave for three to four weeks, and terminate him if he refused. At the trial, the director denied saying any of these things.
Agreeing to follow this plan, the supervisor prepared a letter to the plaintiff discussing his performance deficiencies, including his drunkenness at the meeting in July 1997. The letter required him to contact the EAP for a fitness-for-duty assessment and advised that he would be terminated if he did not cooperate. The supervisor presented him with the letter that August, at which time she told him that she had a family history of alcoholism and that she thought he was an alcoholic. She also assured him that he would have a job when he returned from alcohol rehabilitation.
To avoid termination, the plaintiff had the evaluation the next day. He was diagnosed with "chemical abuse" and was recommended for five weeks of treatment, which he attended. While he was in recovery, the supervisor called his wife and told her about her own family's history of alcoholism, stating that "alcoholism is an incurable disease and your husband will never be cured, and it is a deadly disease."
During the period of time the plaintiff was in alcohol rehabilitation, the supervisor learned about numerous problems and deficiencies at the hospital, including maintenance problems, supply shortages, employee relations issues, high accounts receivables, and potential fraud issues. She attributed these problems to the plaintiff and recommended his termination. Senior management agreed, and he was terminated on September 18, 1997, while he was still undergoing alcohol treatment. At the time of the terminati on, the supervisor told the plaintiff that his performance problems were caused by his disease.
The plaintiff filed suit and alleged violation of the Americans with Disabilities Act, among other claims. After a trial without a jury, the federal district court held that the employer had regarded him as having the disability of alcoholism (the plaintiff admitted at trial that he was an alcoholic.) The court awarded $425,553 in back pay (plus pre-judgment interest), $124,260 in front pay (plus pre-judgment interest), $250,000 in compensatory damages (for emotional distress), and, $212,060 in attorneys' fees.
The employer appealed to the U. S. Court of Appeals for the Sixth Circuit, which subsequently affirmed the judgment on the ADA claim. The court found ample evidence to support the trial court's conclusion that the employer had regarded the plaintiff as disabled, i.e., regarded him as an alcoholic. Among other things, the court noted the following significant facts in its decision: 1) the supervisor's belief that the plaintiff had a "long term" issue, even though she had smelled alcohol on his breath on one occasion only; 2) her demand that the plaintiff submit to a fitness-for-duty examination or face immediate termination; 3) her statement to the plaintiff that she thought he was an alcoholic and her statement to his wife that alcoholism is incurable; and, 4) the supervisor's statement when she fired the plaintiff that his work problems were caused by the disease of alcoholism.
As illustrated by this case, employers should be wary of accusing employees of having an alcohol or drug-related problem. First, if the employee is not a substance abuser, he or she may have a claim under the ADA and/or comparable state law for being mistakenly or falsely labeled a substance abuser. Second, if the employee does have a substance abuse problem, he or she may be "disabled" and fall within the protection of the ADA. Alcoholics and recovering and recovered drug addicts may be "disabled" under the ADA and comparable state laws.
Employers never should require employees to enter drug or alcohol rehabilitation, particularly if it is unclear whether the employee has a substance abuse problem. Rather, employers should wait until after an employee has admitted to having a substance abuse problem or receives a positive test result on an appropriate substance abuse test. Even with that admission or test result, however, the employer should suggest initially only that the employee obtain an assessment or evaluation, rather than treatment (at least not until after an evaluation concludes that treatment is necessary).
In situations where the employee denies any substance abuse problem, the employer may have to document performance and other behavioral problems until it becomes clear that drug or alcohol involvement is undeniable; even at that point, the employer should not make statements that could fuel an employee's "regarded as disabled" claim. Testing for alcohol or drug use may assist the employer in establishing a basis for referring employees for evaluation and, if necessary, treatment.
If you have any questions, or would like to discuss this case further, please contact the Jackson Lewis attorney with whom you regularly work, or one of the attorneys in our Substance Abuse Practice Group.