Readers have been clamoring for my take on the alcoholism-discrimination lawsuit filed by Steve Sarkisian against the University of Southern California.
Actually, I got one email from a reader, who had a better take on the whole situation than I do.
But who cares! I still think it’s a great topic, and a case worth following!
Here’s the deal, as I understand it:
Mr. Sarkisian took over as head coach of the USC football team in 2014, and they had a so-so year. Apparently, the Coach made it through the off-season of 2015 without incident until August, when the team had its annual “Trojan Salute” pep rally. Mr. Sarkisian spoke at the event and appeared to be inebriated. In addition to reportedly slurring his words and acting like an idiot, he said a number of rival teams “s**ked,” and he used the “f” word more than once.
I have searched in vain for footage of this Trojan Salute incident, but could find only this pretty poor quality video of part of Mr. Sarkisian’s behavior:
What happens in LA, stays in LA, apparently.
After the Trojan Salute incident, Mr. Sarkisian apparently was called on the carpet by Athletic Director Pat Haden. At this point, because all we have is Mr. Sarkisian’s lawsuit, not a formal “legal” response from USC, it isn’t clear whether he was counseled about alcoholism, about being rude and obnoxious at a school event, about beating Notre Dame, or what.
The allegations in the lawsuit (copy embedded in this LA Times article) struck me as evasive, almost as if it were written by someone with a substance abuse problem. But taking Mr. Sarkisian’s word for it, he behaved pretty well after the Trojan Salute incident, and we know he was receiving counseling through the university and taking meds of some sort. On October 8, Mr. Sarkisian’s former school, the University of Washington Huskies, beat the Trojans in an upset, 17-12. Mr. Sarkisian took the loss very hard, and indulged in some hard behavior over that weekend. It isn’t clear from his lawsuit whether he drank the weekend away, medicated the weekend away, or self-destructed in some other manner.
On Sunday, October 11, he had to excuse himself from a team meeting because he was such a mess. He got home, and his family came to be with him, and he told AD Haden over the phone that he needed help. Mr. Haden told him he was being placed on an indefinite leave and ordered him to talk to a psychologist with the school. Mr. Sarkisian had one meeting with the psychologist on Monday, October 12, felt he needed to be in an inpatient program right then and there, and got on a plane and headed to wherever this program was. Because Mr. Haden had told him he was on indefinite leave, he assumed it was ok to do what he needed to do. But when the plane landed, Mr. Sarkisian had an email from Mr. Haden telling him that he was being terminated for “cause” effective immediately. (We don’t yet know whether it had anything to do with the termination, but that same day, the LA Times had published a story about Mr. Sarkisian’s drinking while he was a coach at the University of Washington.)
Alcoholism and disability discrimination law
Mr. Sarkisian’s lawsuit has nine or ten claims in all, but the ones I want to focus on are his disability discrimination claims, all of which are brought under the California Fair Employment and Housing Act, not the Americans with Disabilities Act. Based on his alcoholism, he’s claiming (1) disability discrimination, (2) failure to engage in the interactive process, and (3) failure to make reasonable accommodations. He also says that the university retaliated against him for trying to engage in the interactive process and seeking reasonable accommodation.
(It appears that USC may contend that it didn’t know Mr. Sarkisian was an alcoholic. Based on the way Mr. Sarkisian’s lawsuit seems to tiptoe around certain facts, I would not be surprised. Lack of university knowledge would, of course, be a defense to all of Mr. Sarkisian’s disability-related claims.)
Here are the really interesting (to me) points, from a disability rights standpoint:
1) According to the lawsuit, other coaches and coaching staff have been drunk and stupid at school events, and USC didn’t care. USC cared when Mr. Sarkisian was drunk and stupid only because he was an alcoholic. If this is true, it might give Mr. Sarkisian a valid disability discrimination claim. I’ve cautioned clients about this under the ADA, as well — you can’t treat an alcoholic who gets drunk and behaves badly any more harshly than you would treat a non-alcoholic who gets drunk and behaves badly. If you do, then you could be discriminating based on the alcoholic condition, which is against the law.
On the other hand, if Mr. Sarkisian can’t prove that USC knew he was an alcoholic, then it’s going to be tough for this claim to go anywhere.
2) Under California state law, employers are required to engage in the interactive process with an employee with a disability. The ADA has an interactive process provision, but courts in most (not all) jurisdictions view it as a “no harm, no foul” thing – failure to engage in the process is a problem under the ADA only if there is an accommodation that could have been made and wasn’t because the employer didn’t talk to the employee and find that out. (This is no small matter, and it’s the reason we always recommend that employers have a sit-down with the employee to discuss reasonable accommodation options.)
Again, this claim could fail if USC didn’t know Mr. Sarkisian was an alcoholic (that is, that he had a disability requiring any “interactive” discussions).
3) The fact that Mr. Sarkisian may have been a “current” user of alcohol is not a defense for USC. The alcohol rules and the illegal drug rules are not the same. The ADA specifically exempts from coverage “current user[s] of illegal drugs.” That’s why you can fire someone for testing positive for, say, heroin, even if they’re certifiably “addicted.” The FEHA is more lenient and excludes only “psychoactive substance use disorders” that result from current use of illegal or other drugs.
But neither the ADA nor the FEHA has a “current user” exemption for alcohol. That means an alcoholic who is “currently” drinking is still protected from discrimination and may be entitled to reasonable accommodation (such as time off for rehab or AA meetings).
That said, employers are still entitled to enforce their normal standards of performance, behavior, and attendance with alcoholic employees, as long as they don’t treat alcoholics more harshly because of the alcoholism. (See point No. 1, above.) What this means is that an employer doesn’t have to “accommodate” an alcoholic employee by, for example, letting the employee violate a no-alcohol-on-premises policy, come to work under the influence, or sleep off a hangover during work time. This may be a problem for Mr. Sarkisian, who created a scene at the Trojan Salute and left the job in the critical part of football season. (On the other hand, entering alcohol rehab may have been a legitimate reason for him to have done the latter.)
We should get the official legal response from USC around New Year’s. If they don’t settle, this will be an interesting case to follow.
And here is a good summary of the disability provisions of the California FEHA. It even includes a handy chart comparing the FEHA with the ADA.
Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years’ experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.
