Q: This week Steve Sarkisian, USC’s former head football coach, filed a lawsuit claiming that he was wrongfully terminated. As you may recall, Sarkisian was fired shortly after USC’s Athletic Director, Pat Haden, indicated that Sarkisian was placed on indefinite leave and was “not well.” It has been widely reported that Sarkisian has a substance abuse problem, and specifically, a problem with alcohol. This was seemingly confirmed by Sarkisian going to rehab, and now, by this lawsuit. This begs an interesting question – is it possible that USC violated the Americans with Disabilities Act (“ADA”) or other laws that protect those with disabilities by terminating Sarkisian?
A: Well … it is complicated, but there is certainly a possibility. As you may recall, a similar situation was covered in one of our previous blogs about “Johnny Football,” who coincidentally is getting a start this Sunday. (See http://wp.me/p67Lhq-3g )
As a threshold matter, a person that uses illegal drugs, or abuses legal drugs, is not considered “disabled” pursuant to the ADA. However, alcoholism is a covered disability under the ADA so long as the alcoholic is qualified to perform the essential functions of the job. Like any disability, pursuant to the ADA (or the Fair Employment and Housing Act), an employer is required to reasonably accommodate an employee who suffers from alcoholism. Leave can be a form of accommodation.
But, here is where it gets a little confusing. On one hand, an employer can take an adverse employment action, including termination, against an employee whose use of alcohol adversely affects job performance or conduct. Additionally, an employer may also take an adverse employment action if a person is under the influence at work. On the other hand, Title 2 CCR section 7294.0 states that an employer has an obligation to engage in a “timely, good faith interactive process” when the employer “becomes aware of the need for an accommodation through a third party or by observation.” So, even if the employee doesn’t say anything, if the employer is aware from some other source that the employee has an impairment that is interfering with his or her ability to perform his job, the employer is required to initiate the process.
Ultimately, whether USC violated federal or state law is an issue of timing and a variety of other facts. While early reports that Sarkisian was intoxicated at games and/or practices seemingly support the termination, this doesn’t negate USC’s obligation to engage in the interactive process if the disability was obvious. As a result, it could be possible that USC is not liable for wrongful termination, but is liable for its failure to engage in the interactive process and provide an accommodation, such as a leave, to Sarkisian.
Another wrinkle is that Haden allegedly placed Sarkisian under some type of “last chance agreement.” In other words, Sarkisian signed an agreement prohibiting him from using alcohol and subjecting him to immediate termination if found intoxicated. There is not a lot of authority regarding these types of “last chance agreements” and the cases seem to be somewhat contradictory. This makes sense, because in California, terminating an employee for refusing to participate in an employer-mandated alcohol treatment program has been found to violate an employee’s constitutional right of privacy. Meanwhile in federal courts, last chance agreements have generally been upheld. (See i.e., Pettus v. Cole (1996) 49 Cal.App.4th 402; Longen v. Waterous Co (8th Cir. 2003) 347 F.3d 685.)
In the end, these are shakey, not stirred, situations. An employer considering terminating an employee for alcohol abuse must look to both federal and state law for guidance and proceed carefully to avoid getting smashed with a lawsuit.