The Americans with Disabilities Act (“ADA”) protects employees from termination based upon an employee’s disability and requires employers to reasonably accommodate an employee’s disability so long as the employee can perform the essential functions of the employee’s position with the accommodation. Additionally, the ADA protects employees whom the employer perceives to be disabled from termination. The recent case of Zakaras v. United Airlines, Inc. provides employers with some guidance regarding what the courts consider to be a perceived disability.
Ray Zakaras (“Zakaras”) was a United Airlines, Inc. (“United”) employee. Following a training program and a dinner sponsored by United, Zakaras consumed at least nine beers. As he was drinking, Zakaras openly complained about the training program and made numerous rude comments to female co-workers. Upon learning of the incident, Zakaras’ supervisor conducted an investigation of Zakaras’ conduct at the training program to determine if Zakaras’ conduct violated United’s policy against sexual harassment. While interviewing Zakaras about the incident, Zakaras’ supervisor asked Zakaras whether he had a drinking problem. After Zakaras admitted he was regularly drinking excessively because of stress related to his pending divorce, the supervisor ordered Zakaras to attend United’s Employee Assistance Program (“EAP”). United’s EAP was voluntary, confidential, and provided that a refusal to use the program “is not in itself a cause for disciplinary action.” After completing the investigation, Zakaras’ supervisor demoted Zakaras and cut his pay 30 percent because of Zakaras’ unacceptable behavior at the training program.
Zakaras proceeded to file several discrimination claims against United, including a claim for violation of the ADA. While the other discrimination claims were dismissed, the court allowed Zakaras to proceed to trial on his ADA claim. The court ruled that a jury could reasonably conclude that United may have violated the ADA by demoting Zakaras because of a “perceived disability,” i.e., alcoholism. In so ruling, the court relied on the supervisor’s statement that part of the reason he demoted Zakaras was “because of the perceived drinking problem that in my (the supervisor’s) belief he (Zakaras) was not getting help for.”
United might have avoided liability under the ADA in this case if Zakaras’ supervisor based Zakaras’ demotion on his inappropriate conduct at the dinner, and not a perceived drinking problem. Employers must remember the ADA’s definition of a protected employee includes employees who are simply perceived by the employer as having a disability. Employers should also remember that alcoholism is a protected disability under the ADA. Thus, an employee may not be terminated simply because he is an alcoholic.
While the ADA protects an alcoholic employee, the ADA does not restrict an employer’s right to discipline or fire an alcoholic employee. If the employee’s use of alcohol results in the employee’s failure to perform the essential functions of his position, the employer may lawfully terminate the employee. If you have a question about whether your company perceives an employee to be disabled, please telephone any member of the firm.