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February 5, 2016

USC Could be Thrown for a Loss In Football Coach Firing

The University of Southern California made national news last fall when it publicly fired its head football coach Steve Sarkisian.  Sarkisian was on shaky ground even before the season started, when he showed up drunk at a preseason rally, slurring a profanity-laden speech before a stunned audience of university supporters and parents.  He apologized soon after, announcing he planned to get treatment of some kind.  Yet he also said he didn’t believe he had a drinking problem.  His outburst, he said, was due to his mixing alcohol and medication.  Apparently Sarkisian was reprimanded after the incident by Athletic Director Pat Haden.
Other than a lackluster win-loss record at the time (3-2 and 1-2 in the Pac-12), the season began without further incident.  But after being upset by his former team, the University of Washington, Sarkanian arrived at team facilities appearing to be intoxicated, according to the school and several media reports.  Depending on which report you believe, Sarkisian either requested, or was placed by Haden on, an indefinite leave of absence.  But the next day, USC terminated his employment for cause.

From the Gridiron to the Courtroom
Surprising to some, and not so much to others, Sarkisian sued the school, alleging 14 causes of action, including breach of contract and disability discrimination under the California Fair Employment and Housing Act (FEHA) and failure to reasonably accommodate his disease of alcoholism.  He is seeking a reported $30 million, the remaining value under his contract plus damages for emotional distress, since he was, according to the complaint, “kicked to the curb.”
Alcoholism is a recognized disability under the federal ADA and analogous state disability laws including the FEHA.  This doesn’t mean an employee can come to work drunk and avoid disciplinary action by claiming he was under the influence of alcohol.  However, while an alcoholic employee’s misconduct can serve as grounds for termination, some courts will still find liability against the employer when the misconduct is the “direct result” of the disability (e.g., absenteeism caused by alcoholism.)  An employer who has a policy expressly prohibiting alcohol in the workplace that contains the consequence of disciplinary action up to and including termination will be in a much stronger position to defend its actions in such a case than an employer lacking a policy.  It’s also important for the employer to apply its policies consistently.
Just like any other qualified disabled individual, an individual who suffers from alcohol dependency still must be able to perform the essential functions of the job, with or without reasonable accommodations.  Employers are permitted to hold an employee dealing with alcoholism to the same job performance and attendance standards as other employees.  Employers have the right to discipline an employee who abuses alcohol and fails to perform the job.  Yet, employers must be cautious not to overreact, as USC allegedly did, and discriminate against an alcoholic employee based solely on their disease.

Advice for Employers
•    Employers should have a policy expressly prohibiting alcohol in the workplace.
•    Train supervisors on how to respond to episodes that may involve alcohol.
•    Train supervisors to respond to requests for accommodation nonjudgmentally and to forward the request to Human Resources.