Ask The Lawyer, Is that legal?

BUS DRIVER OUT OF JOB, CLAIMS DISCRIMINATION BASED ON ‘FORMER ALCOHOLISM’

QUESTION: Four years ago, I lost my job as a bus driver because I was an alcoholic; I was caught driving while impaired. I lost my license, spent time in jail, then went into rehab, and have been sober ever since. After two years, my license was restored, and I was hired as a bus driver again a few months ago. I was not asked about why I was fired from my former job (the employer did not state the reason for my termination), and I didn’t explain. Somehow, my new employer found out that I used to have a drinking problem. I had a bad cold a few weeks back, and felt pretty woozy at work. My employer decided I must be drunk and I was terminated. Is that legal?

ANSWER: It is illegal under the Americans with Disabilities Act to discharge a worker because of a disability where the worker is qualified to do the essential functions of the job. The law also protects workers who are “regarded as disabled”, those who are perfectly able to perform a job, but are denied because they are viewed as being disabled — “rejected because of the ‘myths, fears, and stereotypes’ associated with disabilities.” Gruener v Ohio Casualty Ins Co, 510 F3d 661, 664 (CA 6, 2008).

            Alcoholism is viewed as a disability under the ADA, and a worker should not be discharged unless the alcoholism interferes with the ability to do the work. This does not mean an alcoholic can show up to work drunk – being drunk and working just about any job (and definitely driving a bus!) are incompatible. Nor is an employer expected to put up with poor work conduct related to alcoholism – tardiness, poor work due to a hangover, etc. In practice, it has meant, for example, giving a recovering alcoholic time off to attend rehab or other counseling.

You say you have not had a drink in four years, your license was restored, and you are able to perform all the functions of your job. You may have a claim that you are being discriminated against because you are perceived as being disabled; your employer assumes that because you had a drinking problem, you still have one and any deficiencies in your ability to do the work are attributable to your past drinking problem. If you have not relapsed in several years, your employer may be liable for discrimination.

You may wish to consult with a lawyer, who can discuss your case in greater detail and determine whether you may have grounds for a lawsuit.

The lawyers at GWINN LEGAL PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinnlegal.com.

Information provided on “Ask the Lawyer” is current as of the date of publication. Laws and their interpretation are subject to change. The material provided through “Ask the Lawyer” is informational only; it should not be considered legal advice. Submitting a question to “Ask the Lawyer” does not create an attorney-client relationship between the person submitting the question and GWINN LEGAL PLLC. To view previous columns, please visit our website.

ASK THE LAWYER
By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law

GWINN LEGAL PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile
daniel@gwinnlegal.com
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