Ever since the first edition of my book in 2000 and in every edition since, I have discussed the case of Miners v. Cargill Communications, Inc., 113 F.3d 820 (8th Cir. 1997). That case illustrates the perils of what can happen when an employer perceives someone as being an alcoholic. In that case, the plaintiff worked as a promotions director for a radio station, where part of her job involved going to bars to promote the radio station in the company van. After a while, her supervisor, who happened to be a recovering alcoholic, became suspicious that the plaintiff was drinking while at the bars and hired a private investigator to follow the plaintiff. A private investigator observed her drinking and then called the supervisor. The supervisor showed up at the bar and when the plaintiff left, demanded the keys to the company van. The next day the president of the radio station informed the plaintiff that she was facing termination unless she entered a chemical dependency program. She declined to enter the program and was terminated. The plaintiff brought suit alleging that she was terminated on the basis of a perceived disability, alcoholism, and the Eighth Circuit found sufficient evidence existed that the plaintiff had been fired because of a perceived disability.
With that case as background, let’s look at the recent case of Scheffler v. Dohman, 2013 WL 6179381 (D. Minn. November 26, 2013). In this case, the plaintiff was arrested for DWI multiple times in 1997. After the last incident in 1997, the plaintiff’s driving privileges were canceled, and as a condition to regaining his driving privileges he was required to complete a one-year abstinence-based alcohol rehabilitation program. He successfully completed that program and was issued a drivers license at the end of 1998 with the restriction that he abstain from the use of alcohol. In 1999, his driving privileges were canceled again. As a condition to regaining the driving privileges, the plaintiff was required to complete a three year alcohol rehabilitation program and he did so. Accordingly, at the end of 2002, the plaintiff was issued a drivers license again on the condition that he not consume alcohol. At the end of 2010, plaintiff was arrested for DWI and his driving privileges were again canceled. He was required to complete a six year alcohol rehabilitation program or he could elect to participate in the ignition interlock program in order to be issued a restricted driver’s license.
The plaintiff sued saying that this statutory and regulatory scheme violated title II of the ADA because it perceived him as having a disability, alcoholism. In particular with respect to alcoholism, the plaintiff pleaded the following: 1) he had a record of alcohol-related driving offenses; 2) the Commissioner of Public Safety compelled the plaintiff to sign a pledge of alcohol abstinence as a condition of receipt of driving privileges; 3) that his license stated that any use of alcohol one validated license; 4) plaintiff’s last consumption of alcoholic beverages took place on November 1, 1999; 5) an acknowledgment that his driving privileges would be canceled if there is sufficient cause to believe that he consumed alcohol; and 6) pledging to not drink alcohol prevented the plaintiff from partaking of the sacrament of holy Communion.
The question before the court was whether the plaintiff had a disability. While the court acknowledged that under Miners, an employer could be liable for regarding someone as being an alcoholic, alcoholism is not a disability per se. That is, a plaintiff asserting an ADA claim based on alcoholism still has to establish a disability under one of the definitions of disability in the ADA (actual, record of, or regarded as). In this case, with respect to actual disability, the plaintiff made no allegations supporting a finding that he had a physical or mental impairment due to alcoholism that substantially limited of one or more major life activities. In fact, the plaintiff did not even allege that he was an alcoholic.
With respect to record of impairment, the court found that the plaintiff did not make that showing either. The plaintiff did not allege that he had a past record of alcoholism, how any such diagnosis, if such was the case for the plaintiff, limited a major life activity, or even if his decision to drive while intoxicated was due to the disease of alcoholism.
With respect to regarded as, just because the plaintiff had a record of DWI’s, that not mean that the state perceived him as being an alcoholic. After all, there are many reasons for such a conviction besides alcohol.
Finally, even if the plaintiff was somehow a qualified person with a disability, the plaintiff still loses because the state offered reasonable accommodation through its alcohol rehabilitation program and the ignition interlock program.
1. If this case does anything, it shows the importance of pleadings. In a disability discrimination case, a person is going to have to plead enough facts to show that the person either has an actual disability, a record of a disability or is regarded as having a disability. Just saying that the client is either perceived as being an alcoholic or is an alcoholic, without more, isn’t going to cut it.
2. Even so, it shouldn’t be impossible to be able to plead that an alcoholic is a person with a disability, particularly after the ADAAA, because major life activities under the ADA as amended now includes major bodily functions such as neurological and brain. Also, a person who has been in an alcohol rehabilitation program is protected under the ADA.
3. In chapter 4 of my book, I discuss Miners v. Cargill Communications, Inc. and some preventive steps an employer can take when dealing with an employee that may or may not be an alcoholic. I also discuss in that chapter two other issues of importance with respect to drug and alcohol addiction: First, how the courts define a current user of drugs or alcohol (the ADA does not protect people who are using drugs or alcohol); and second, from what point in time the courts measure whether the person is a current user of alcohol or drugs. That is, the second question, in which there is a split among the circuits, deals with the situation where a person could be using drugs or alcohol one day and goes into a rehabilitation program the next day all prior to termination, would such a person then not be considered a current user of drug or alcohol and therefore, be protected as a person with a record of an impairment?