Life, liberty, and the pursuit of a good beer:
how the ADA has turned alcoholism into a right [excerpt from The Excuse Factory]

Washington Monthly, September, 1997

By Walter K. Olson

On March 9, 1990, Northwest pilot Norman Lyle Prouse saw, as he later put it, "the end of my career ahead of me." The previous evening, an anonymous tipster had called the local Federal Aviation Administration office to report that Prouse and his crew were tossing back drink after drink at the Speak Easy lounge in a Minnesota suburb of Fargo, N.D. -- even though they were scheduled to fly a plane to Minneapolis at 6:30 the following morning. The FAA's "bottle-to-throttle" rule prohibits drinking within eight hours of take-off, so when they arrived at the airport, the men were met by an FAA inspector. The inspector was concerned by their bloodshot eyes and alcoholic breath -- not to mention the deep gash on Prouse's forehead. But the inspector mistakenly believed he lacked the authority to stop the crew from flying the plane, a Boeing 727 with 58 passengers on board.

Prouse took off in sleet and rain and landed in Minneapolis without incident. There the crew was met by more investigators who conducted blood tests. The crew swore they had had only a few drinks the night before and left the bar by 8:30 at the latest. But lab tests proved otherwise. Prouse had a blood level of .13 percent -- higher than both the FAA's .04 limit for pilots and the .10 level Minnesota uses to define drunk driving. It turned out that Prouse had not left the bar until 11:30, by which time he had knocked off between 15 and 19 rum and cokes and fallen off his chair and cut his head. Prouse, you see, was an alcoholic.

Prouse immediately entered rehab and hired a lawyer. The aviation press was incensed at the many rationalizations offered in Prouse's defense -- particularly the argument that, after all, he had landed the plane safely. They had a point. After all, the true test of safety in the air is not whether you can manage the long boring stretches, but whether you're ready for the unexpected. The judge was equally unimpressed with Prouse's arguments and sentenced him to more than a year in prison.

But Prouse's pessimism about his career prospects proved unwarranted. That's because the Americans with Disabilities Act (ADA) protects alcoholics who enter rehab. Although Northwest could have tried to take shelter under an exception, it chose to bow to the spirit of the law. Northwest rehired Prouse as soon as he was released from jail. And in July 1995 the company quietly confirmed that Prouse had returned to flying passenger jets.

The First Sip

How, exactly, did alcoholism emerge as a protected category in the American workplace, akin to race, sex, or religion? The most powerful force pushing in that direction has been the rise of the disability-rights movement, which culminated in Congress's near-unanimous passage of the 1990 Americans with Disabilities Act. But the story is in fact more complicated. Long before ADA or its predecessor statute in the Rehabilitation Act of 1973 came along, managers in civil service systems were finding it a headache to handle employees who hit the sauce. The same was often true for private-industry managers who dealt with powerful labor unions. In both cases, the reigning principle of tenure -- that workers, once ensconced in their jobs, should not have to worry about losing their jobs unless they engaged in truly lurid misconduct -- had gone far to entrench alcoholic workers against removal for poor performance, absenteeism, or attitude problems.

Modern civil service procedures and the arbitration systems commonly found in unionized workplaces afford a striking degree of protection to the worker with a drinking problem. One crucial premise commonly adopted is that management must prove a case for removing a worker. And impairment on the job, however plausibly suspected, can be hard to prove to an arbitrator's satisfaction: reports of erratic behavior may be subjective, finding liquor in a desk does not prove the worker drank any of it, and so forth. Moreover, it is widely accepted in both civil service and union arbitration settings that management has no right to take into account misconduct that takes place off the job. Thus, indicators that commonly signal a problem, such as a cluster of DWI arrests, may be excluded from consideration. "This was completely unrelated to his job," said a lawyer for another veteran Northwest pilot picked up on the road (not before a flight) with a blood alcohol level of .33; a judge said it was amazing the pilot could walk at all.

Even if management can prove alcohol-related misconduct, it is only one step toward winning a right to remove a worker from his post. Arbitrators tend to demand that management have demonstrated its willingness to work with the employee by offering second, third, and nth chances. One arbitrator, summarizing his colleagues' view, observes that before a company may fire a worker for alcoholism-linked misconduct it must have encouraged him to seek treatment; if he agrees, only "fail[ure] to make substantial progress over a considerable period of time" could justify termination. Arbitrators seldom uphold dismissal for job-related liquor abuse. And a study of workers reinstated by arbitrators after alcohol abuse found that only a quarter of them improved their performance after reinstatement.

The Alcoholic's Bill of Rights

But it took the rise of the disability movement to make "alcoholics' rights" seem like something other than a satirist's slogan. "Certain classes of disability, including drug abuse, alcoholism, and mental illness, have frequently been misunderstood and viewed in a negative light," laments the author of a 1989 academic history of handicap-rights law. Now, of course, all that has changed, and it is a staple of the disabled-rights literature to deny differences between the various frailties of body, mind, and character. "A professional with a mental disability is legally no different than a blue-collar worker with a serious back injury," declares ADA drafter Christopher Bell. Why, after all, should trouble controlling impulses be seen as different from trouble carrying packages? Why should an inability to maintain sobriety or a rational flow of thought be seen as different from an inability to reach a high shelf?

These views acquired the force of law when, at the behest of congressional staff, Congress adopted Section 504 of the Rehabilitation Act of 1973, which in vague language guarantees disabled persons equal access to federal programs and to the activities of federal contractors. The power to enforce the provision was soon taken up by the highly activist Office of Civil Rights within the then Department of Health, Education, and Welfare. The OCR staff racked up one victory after another in these early years in interpreting the new statute expansively so as to impel the widest and most expensive range of "accommodations" for disabled persons. One of their notable successes was to establish that alcoholics and drug users should be legally treated as disabled, just as if they were people missing their sight or legs. The idea reportedly drew consternation when it reached the desks of then-cabinet secretary Patricia Harris and President Jimmy Carter, but it was too late to turn back: Staff attorneys had established the rule as part of the agency's practice, and the precedent was set.

Soon civil service managers were being required to provide ever more obliging accommodation of alcoholic employees. The process could be observed in a remarkable series of cases in the courts and before the federal government's in-house Merit Systems Protection Board (MSPB). The board got things rolling with a ruling ordering the General Services Administration to reinstate an alcoholic guard found sleeping on the job. To "afford reasonable accommodation to an employee who is handicapped by alcoholism," an agency would have to offer him therapy with sick leave before it could discipline him for related misconduct. Moreover, the offer had to be a formal one. GSA had told the guard at an earlier disciplinary hearing that help was available if he wanted it, but the MSPB did not find this pointed enough. Such a formal offer must be made before [rather than simultaneously with] initiating any disciplinary action for continuing performance or misconduct problems related to his alcoholism."

The next turn of the screw came in the 1984 case of Whitlock v. Donovan. Judge Gerhard Gesell of the federal court in Washington ruled that not only must employees be given a chance at rehab, but one chance will hardly be enough. After all, "relapse is predictable in treatment of alcoholics." A 1985 case added the final horse to the merry-go-round. Once a worker agreed to enter rehab, the agency would have to wipe the slate clean of offenses, since "reasonable accommodation of an alcoholic employee requires forgiveness of his past alcohol-induced misconduct." Given the right to relapse, this might have to happen again and again.

During the public campaign for the ADA, which was meant to extend the principles of the Rehabilitation Act to private industry, supporters tried to assure employers that they would not have to go quite as far in accommodating the disabled as the federal government had. But before long it became clear that the ADA's coverage of alcoholism and analogous afflictions would have all sorts of implications for the private workplace -- unleashing a series of eyebrow-raising legal actions. ADA spawned successful lawsuits to bar medical boards and other licensing authorities from asking applicants about their alcohol, drug, and mental-health histories -- even though a high share of misconduct by doctors is linked to substance abuse and even though many such boards use disclosure of past problems simply as a way to make sure an applicant is offered extra help, explain an otherwise inexplicable pattern of complaints or violations, and aid in catching recurrences early.

In Hamden, Conn., school superintendent David Shaw used the ADA to turn his misconduct into a money-making venture. Picked up twice by the police for drunk driving, Shaw had pleaded guilty and got off with a fine and license suspension. When it became clear the press would report embarrassing details of the second arrest -- he'd been picked up leaving a pornographic bookstore, dressed in what appeared in a police photo to be women's clothing -- he proceeded to flee the state "without his Prozac," as the Hartford Courant put it, and made himself unreachable for about two weeks in the thick of the school year. Then, says school board chairman DeWitt Jones, "he came back [into town] with a gun-slinging lawyer to browbeat us." Shaw entered rehab and sued the board for trying to fire him, charging, among other things, that they had failed to treat his alcoholism as a disability. Two months later town officials settled, paying Shaw a reported $ 240,000. Explains the town's attorney, "Termination would have been difficult because of the ADA."

Proceed With Caution

The havoc wrought by alcoholism in the workplace has never been in doubt. Many abusers are relatively good at maintaining job performance for long periods -- at best a mixed blessing, since it can result in a higher level of damage when they finally do spin out of control. Unlike the problems of, say, simple incompetence or bad character (which typically either are there or are not), alcoholic misconduct and serious mental disturbance tend to come and go, with plenty of ambiguous behavior, spectacular flameouts followed by vows to reform, more backsliding, and imaginative rationalization through second, third, and fourth chances.

There is no reason to think these will necessarily be upheld by federal courts as grounds for dismissing a worker. "[E]rrors in judgment, aggressive behavior, insubordinate behavior, inability to get along with coworkers, absenteeism, [or] a quick temper [may] constitute notice to an employer that an employee has a mental disability," notes attorney Margaret Hart Edwards in the Employee Relations Law Journal. EEOC guidelines say employers must expect covered workers to fall short on such dimensions as "thinking, concentrating, and interacting with other people."

And so the handling of suspected tipplers on staff has emerged as one of the trickier ADA areas. One newsletter advises employers to see a lawyer before taking "any adverse employment action against suspected alcoholic employees", publish a policy, as on sexual harassment; train employees how to recognize alcoholism, one early case having hit a big company with punitive damages for failing to do so; and allow the employee a full measure of paid and unpaid leave. On the giving of time off, the indicated course is to emulate the Ontario arbitrators who ordered the city of Toronto to give Emmerson Phillips sick pay, rather than making him take a vacation day, after a hangover kept him out of work one Monday. ("It's not just a day's pay," he told the Toronto Star. "It's the principle. ... I was sick and they should have believed my story that I was sick.") One court applying Section 504 proposed that if an employer would have allowed a worker a set number of leave days to recover from a heart attack, it should give him the same number for an alcoholic binge.

Especially vexing for the employer is the question of when, whether, and how to confront a suspected abuser. Courts had already ruled that the federal government as an employer had a positive duty to confront. Thus a court awarded $ 150,000 to Clarence Ferguson, saying the National Marine Fisheries Service should have called him on the carpet about his pint-of-gin-a-day habit. Ferguson missed 389 days of work between 1980 and 1983, but the agency said it had never been sure what his problem was: Co-workers testified that he hadn't smelled of booze, slurred words, or been caught sneaking drinks.

Of course, if employers do lead glazed-looking workers into the personnel office and pull out a breathalyzer, they set themselves up for suits over privacy invasion, defamation, and similar outrages. In a 1988 case, an employer confronted a worker while been performing poorly and whose wife had expressed concern about his drinking, only to be hit with $ 100,000 punitive damages when it turned out his problem was depression rather than booze.

Thus it seems necessary for firms to address problems without identifying them, hinting heavily, and getting their meaning across through the use of significant pauses, like a fine stage actor. Managers should "not even ... mention drinking, let alone diagnose alcoholism," warns Business Week. The goal, says the McNair law firm's South Carolina employment newsletter, is to "help the employee unilaterally realize his problem," and yet "if possible, confine any alcohol-related discussions to the employee's job performance." The MSPB, in reinstating the snoozing guard, tied itself in verbal knots trying to explain how this could be done. A supervisor "need not confront him with the ... belief that the employee has a drinking problem," yet "must make the employee aware in general terms that the supervisor suspects the employee has a problem affecting his performance or conduct, and that the supervisor recommends that the employee participate in a particular rehabilitation or counseling program which is available to him."

Much rehab wisdom holds that the most effective jolt in getting an addict to go straight is to threaten his job. The new law serves to postpone that threat. Many also suspect that clients who enter rehab strategically -- as a condition of a suspended sentence, for example -- do less well than highly motivated volunteers convinced that their lives, marriages, or jobs are truly at risk.

Courts and many others show great faith in the idea of rehabilitation, yet its success rates are painfully modest. Even the most widely admired programs have high relapse rates, and most first-timers appear to backslide no matter which program they enter. What happens then? The employer wins the right to begin the laborious process of documentation again and to negotiate the same legal shoals over the timing and content of the next confrontation. A Berkeley Journal of Employment and Labor Law article takes a pessimistic (from the employer's point of view) line. It predicts that, despite the seeming clauses in ADA about the right to hold alcoholics to prevailing work standards, "judges may adopt the Whitlock analysis," with its right to relapse, as being consistent with the law's "spirit."

Of course, when besotted employees hurt themselves or others, their employers will be expected to pay. In this country's most notorious environmental disaster of recent times, the Exxon Corp. allowed a captain who it knew had a history of alcoholism to command a tanker, accepting his story that his problems were behind him. The Exxon Valdez proceeded to run aground in Alaska's Prince William Sound, causing one of history's worst oil spills. After a lawyer charged that the company had taken a "callous, cold-hearted business risk," an Alaska jury responded by hitting the company with $ 5 billion in punitive damages.

Meanwhile, in other courtrooms lawyers were suing Exxon on behalf of workers with drinking pasts whom the company had taken off safety-sensitive positions. By the mid-1990s at least 100 challenges to the company's substance abuse policies had been filed, with dozens of cases pending. Lawyers citing language in an employee handbook, which they said should be read as contractually binding, had already won one big verdict for an officer in Portland, Maine, whom Exxon had transferred with no cut in pay. "Public perception of the Valdez incident as having been caused by a recovering alcoholic," declared a Department of Labor judge in 1992, "does not justify discrimination against all recovering alcoholics".

*****

Walter Olson is senior fellow at the Manhattan Institute and author of The Excuse Factory, from which this is adapted.

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