the situation
You have an employee that has suffered from severe alcoholism for
some time. After a couple of instances where he fails a breathalyzer
while on the job, you fire him. You tell him he can come back if he
completes an intensive alcohol rehab program. He enrolls in such a
program and then after completion, applies for a job. You decide not to
hire him. Should you be worried about a claim of disability
discrimination?
the ruling
Perhaps so—or at least you should be aware that his alcoholism may be
a disability, according to a recent decision from the United States
Court of Appeals for the District of Columbia Circuit. Alexander v.
Washington Metropolitan Area Transit Auth., No. 15-7039 (June 24, 2016).
Carlos Alexander was employed with WMATA, first as an Automatic train
Control Mechanic Helper and then as a Communications Mechanic Helper.
After about eight years of working for WMATA, Alexander’s supervisor
smelled alcohol on him. Alexander failed a breathalyzer and was
suspended and referred to the company’s EAP program. At that point in
time, Alexander had suffered from alcoholism for over 25 years.
Alexander returned to work around eight months later, subject to
periodic alcohol tests. When he continued to test positive for alcohol,
he was fired. But during his exit interview, Alexander was told that
he could apply to be rehired in one year, as long as he completed an
intensive alcohol dependency treatment program.
Alexander applied a number of times after completing such a program,
but he was not hired by WMATA. He brought a number of claims against
WMATA, including a claim of discrimination under the Rehabilitation Act.
The district court ended up granting summary judgment to WMATA on the
grounds that Alexander had not established that he was an individual
with a disability under the Rehabilitation Act (which applies the ADA
definition of disability) because he failed to point to any evidence in
the record that his alcohol dependency substantially limited at least
one of his major life activities.
The Court of Appeals disagreed with this conclusion—first because the
district court had failed to consider whether Alexander had
sufficiently shown that he was discriminated against because of his
record of impairment or because he was regarded as impaired.
Additionally, pointed out the court, the lower court had ignored the
amendments to the ADA, which expanded the definition of disability.
The bottom line—the 2008 amendments to the ADA eliminated the
requirement of evidence of substantial limitation on a major life
activity for regarded-as-disabled claims. All that Alexander needed to
show was that WMATA took an action against him because of an actual or
perceived impairment. In this case, although WMATA claimed Alexander
was not hired because he had falsified some information on his medical
form and provided insufficient documentation of his completion of the
rehab program, Alexander had presented evidence that when tried to get
his job back, he was told that he couldn’t come back because he had
failed the EAP program and because he was fired. He also testified that
he was told by an HR representative that she remembered him as the one
that couldn’t have safety-sensitive positions. Alexander also presented
evidence of shifting reasons for his termination given by WMATA—first
because he lied on a medical form, then later because he had to wait two
years to re-apply. There was also evidence from WMATA’s own witnesses
about Alexander being a safety risk, along with acknowledgement that no
one had ever been terminated for violating the substance abuse policy
and then rehired. All of this, along with the other evidence before the
court, was enough to permit a reasonable jury to find that he was not
hired because he was regarded as disabled.
Furthermore, found the court, not only had Alexander stated a
“regarded-as-disabled” claim, but there was sufficient evidence to show
that his alcoholism was a disability. He had presented evidence that
this condition substantially limited his major life activities,
including the ability to care for himself, walking, concentrating, and
communicating.
the point
Since the 2008 amendments to the ADA, employers have been aware that
challenging whether a condition is a disability is an uphill battle—even
when it come to substance abuse or addiction issues. This decision only
reinforces that point. Additionally, even if there is room for
argument regarding whether a condition substantially limits major life
activities, you still may face a claim that you took action based on the
perception of a disability.
Originally posted to Virginia Employer Law Blog, by Elaine Hogan on June 29, 2016.