Monday, September 10, 2007

Riddle and Bales on Disability Claims for Alcohol-Related Misconduct

Bales L. Dustin Riddle (Northern-Kentucky Chase Student) and our own Rick Bales (Northern Kentucky-Chase) have posted on SSRN their forthcoming piece in the St. John's Law Review: Disability Claims for Alcohol-Related Misconduct.

Here's the abstract:

Two employees arrive at work half an hour late. It is both employees' first offense, and each is dealt with separately by the same supervisor. The first employee tells the supervisor that an alcoholic binge the preceding night caused her to oversleep. The supervisor fires her, explaining that it is company policy to terminate an employee who is late without a valid excuse. The second employee tells the supervisor that he is late for work because he overslept. This employee, however, receives only a verbal warning and suffers no further punishment.
Under traditional discrimination law, these facts would state a straightforward case of discrimination against the first employee on the basis of alcoholism. The employer's proffered reason for firing the first employee (oversleeping) would be considered a pretext - a false reason given by the employer to hide the true reason - and this would be proven by the employer's decision not to fire the otherwise similarly situated second employee. This, however, is the minority approach to alcoholic-misconduct cases. Under the majority approach, the case of the first employee would be dismissed on the theory that alcohol-related misconduct is not “because of the disability.”

This article argues for a third approach: an employer's duty to reasonably accommodate an alcoholic employee should arise when the employer suspects that the employee's misconduct is alcohol-related, but the employer should be permitted to give an alcoholic employee a “firm choice” between rehabilitative treatment and termination.

This is a very timely and relevant topic, especially in light of recent cases brought by the EEOC involving professional athletes, like Roy Tarpley from the NBA and Odell Thurman from the NFL.  The proposed solution seems like a well-suited middle ground which takes into account both the needs of the employer and the employee.


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