123.22 Alcoholism, drug addiction

The perceived disability of alcoholism requires that an employer perceive an individual to have a condition that would constitute medically assessed alcoholism if it did exist. A perception of an undefined drinking problem is not sufficient. Here, the Respondent did not perceive the Complainant to be disabled where there was no evidence that any board member perceived the Complainant to be dependent on alcohol in a clinical sense or perceived his drinking to be non-volitional. Kostner v. Cochrane Coop. Tel. Co. (LIRC, 11/30/15).

The fact that the Respondent required the Complainant to undergo a drug test fails to establish that it perceived him as having a physical or mental impairment. The Respondent had a substance abuse policy and required the Complainant to undergo a drug test for cocaine after learning of his arrest for possession of cocaine. A Complainant cannot prove a “perceived” substance problem adequate to meet the statutory test of a disability unless there is evidence that the Respondent had actually been provided (and accepted) information that what the person was suffering from was medically assessed as non-volitional and, thus, within the standard for a disabling substance abuse problem. Mork v. Archer Daniels Midland (LIRC, 03/31/10) (unavailable online).

A positive drug test alone is insufficient to establish that the Respondent perceived the Complainant as being an individual with a disability. A positive drug test indicating a use of drugs by an individual fails to provide the necessary level of diagnosis as to whether the individual’s use of drugs had progressed to the point that such use had become non-volitional. To constitute a disability as defined by the Wisconsin Fair Employment Act, the individual’s drug use must have progressed to the point that such use had become non-volitional. This is a determination which requires the expert medical opinion of a physician. A Complainant cannot prove a “perceived” substance abuse problem adequate to make the statutory test unless there is direct evidence that the agents of the Respondent alleged to have had the “perception” that there was such a problem had actually been provided information that what the person was suffering from was medically assessed as non-volitional and potentially within the legal standard for a disabling substance abuse problem. The absence of evidence that the Respondent had information that the Complainant’s use of drugs had been medically diagnosed as non-volitional precludes any basis for concluding that the Respondent perceived her as having a disability. Ranson v. Milwaukee Ctr. for Independence (LIRC, 01/29/09).

A drinking or alcohol abuse problem may or may not be a disability, depending on whether it has progressed to the state that it is non-volitional. Establishing that such a non-volitional condition exists requires that the Complainant introduce competent, expert medical evidence to that effect. In this case, the Complainant presented no admissible evidence to establish that he suffered from the disability of alcoholism. The Administrative Law Judge properly refused to receive medical records relating to an alcohol and drug treatment program the Complainant went through at a hospital. The certification for those records stated that the records consisted of eighteen pages, while they were actually nineteen pages, thus calling into question the reliability of these records in their entirety because they was no way of knowing which page of those documents was not part of the originally certified documents. Even had these records been received at the hearing, there was no medical documentation in the records that the Complainant’s drinking problem had progressed to the state that it was non-volitional and that he, thus, suffered from the disability of alcoholism. The consultation report of the physician who examined the Complainant at the beginning of his treatment listed as his impression, “Alcohol abuse with possible early alcohol dependence.” The physician’s final diagnosis, listed on the Complainant’s discharge summary, was simply, “alcohol abuse.” Nothing in those reports in any way indicated that the Complainant’s drinking or alcohol abuse problem had progressed to the state that it was non-volitional. Hoffman v. City of Fond du Lac (LIRC, 11/21/05).

The Complainant did not establish that the Respondent perceived him as having the disability of alcoholism. The Complainant never provided the Respondent with a definitive report from a health professional about the nature of his substance abuse problem, for which he had been using sick leave. The Complainant could not prove a “perceived” substance problem unless there was direct evidence that the Respondent had actually been provided with information that what he was suffering from was medically assessed as non-volitional and thus potentially within the legal standard for a disabling substance abuse problem. Hoffman v. City of Fond du Lac (LIRC, 11/21/05).

The Complainant did not show that she had an actual disability where her counselor testified that her drug use had never reached the level of addiction or dependency or that her use of an illegal drug had otherwise been non-volitional. Nor did the Complainant present evidence that would create reason to believe that the Respondent terminated her employment because it perceived her as having a disability due to illegal drug use. An outside company had performed a drug test which concluded that the Complainant tested positive for methamphetamines. That company sent a report to the Respondent with the results of its test. Consistent with the express terms of a return-to-work agreement that the Complainant had with the company that a positive drug test would be considered grounds for immediate termination, the Respondent terminated the Complainant’s employment. This did not amount to disability discrimination. Sevals v. Luther Midelfort Clinic (LIRC, 07/16/04).

The fact that the Respondent was aware that the Complainant had been arrested and convicted of driving under the influence of alcohol, and that he had spent three days undergoing inpatient treatment relating to his use of alcohol is not sufficient to establish either that the Complainant was disabled, or that the Respondent perceived him to be disabled. A drinking or alcohol abuse problem may or may not be a disability, depending on whether it has progressed to the state that it is non-volitional. Establishing that such a non-volitional condition exists requires that the Complainant introduce competent, expert medical evidence to this effect. Schleicher v. County of Dodge (LIRC, 10/17/03).

The employer knew that the Complainant had problems with cocaine or alcohol, or both, and that he had received treatment for these problems. However, the Respondent was not provided with a definitive report from a qualified practitioner diagnosing the Complainant with a non-volitional substance abuse problem, or drug addiction. The absence of such a report establishing that the Complainant’s substance abuse problem rose to the level of a disability establishes that the Complainant neither has, nor was perceived by the employer as having, a non-volitional substance abuse problem or a substance addiction, or that the employer perceived him as having a history of such a condition. Bailey v. St. Michael Hosp. (LIRC, 06/30/00).

The Complainant was discharged because of a positive drug test. The Respondent had no reason to believe that the Complainant was under the influence of drugs or that he possessed drugs while on the job. Further, the Respondent’s human resources manager believed the Complainant when he denied engaging in illegal drug use. Nevertheless, the Complainant was discharged. The Respondent’s decision to discharge the Complainant in blind adherence to its drug policy was both unreasonable and counterproductive. However, it did not amount to disability discrimination. The record did not establish that the Respondent regarded the Complainant as having a disabling substance abuse problem. Xiong v. Hoffers, Inc. (LIRC, 05/31/00), aff’d sub nom. Xiong v. LIRC (Marathon Co. Cir. Ct., 12/01/00).

To label or perceive someone as an alcoholic is a very serious judgment and requires behavior on the individual’s part which reveals that the individual drinks consistently and frequently. The Complainant’s two OWI convictions and the instance in which he called in sick and then appeared at the Respondent’s premises under the influence of alcohol may have led the Respondent to believe that he had a drinking problem. However, there was no evidence to suggest that the Respondent perceived the Complainant as suffering from the disease of alcoholism. The Respondent’s actions in referring the Complainant to counseling and requiring that he abstain from the use of alcohol on or off duty merely established that the Respondent believed the Complainant had a drinking problem. These actions do not warrant a conclusion hat the Respondent actually perceived the Complainant as having the disease of alcoholism, such as would render him “an individual with a disability,” within the meaning of the Wisconsin Fair Employment Act. Chilikas v. Con-way Central Express (LIRC, 04/19/00).

The evidence at hearing did not establish that the Complainant was an alcoholic and, thus, handicapped within the meaning of the Wisconsin Fair Employment Act since no expert medical opinion by a physician was presented. The only evidence in the record regarding alcoholism was assessment reports from Department of Human Services personnel showing that the Complainant suffered from “alcohol abuse,” and “suspected alcohol dependency.” Hansen v. AKZO (LIRC, 03/23/94).

A Complainant failed to establish that she suffered from the handicap of alcoholism where she did not provide any direct expert medical evidence that she had been diagnosed as having alcoholism. A letter from a psychiatrist to the Respondent indicating that the Complainant had been involuntarily admitted to inpatient AODA treatment was insufficient. The commitment order discloses that the allegations of the petition were stipulated to rather than having been proven by evidence offered in a hearing. The fact that the party prosecuting the commitment action was willing to stipulate that the Complainant was an alcoholic is not an adequate substitute for competent expert proof that she was. Geske v. H.C. Prange Co. (LIRC, 12/09/93).

Whether a drinking problem is or is not a handicap depends on whether it has progressed to the stage that it is “non-volitional.” This is a subjective point which must be determined by a medical expert. It is difficult to apply the “perceived handicap” theory in substance abuse cases because the nature of the problem as it appears to lay persons witnessing it may be the same whether it is simply a “drinking problem,” or “non-volitional alcoholism.” A Complainant cannot prove a “perceived” substance abuse problem adequate to meet the statutory test definition of perceived handicap unless there is direct evidence that the agents of the Respondent alleged to have had the “perception” that there was such a problem had actually been provided with (and accepted), information that what the person was suffering from was medically assessed as non-volitional and, thus, potentially within the Connecticut General standard for a handicapping substance abuse problem. Geske v. H.C. Prange Co. (LIRC, 12/09/93).

There was no probable cause to believe that the Complainant was unlawfully discharged because of his alcoholism. The Complainant’s drinking had clearly reached the point where it was affecting his work performance and was, thus, substantially related to his ability to adequately undertake his job-related responsibilities. The Respondent had attempted to accommodate the Complainant’s condition by, among other things, counseling him on alcohol problems. Nelson v. Massey Ferguson (LIRC, 02/02/89).

The Respondent had attempted to accommodate the Complainant’s alcohol problem by, among other things, counseling him and relieving him from some responsibilities. The Respondent would have employed further accommodation but for the Complainant’s denial of having any problem. Nelson v. Massey Ferguson (LIRC, 02/02/89).

Although the Complainant testified that he had gone to a rehabilitation hospital for treatment and had been diagnosed as an alcoholic, the hearing examiner was entitled to give no weight to this testimony, since no expert testimony was received on the subject. Alcoholism is a disease, the diagnosis of which is matter of expert medical opinion proved by a physician and not a layman. Where the Complainant additionally failed to prove that the Respondent perceived him as being an alcoholic, or believed he had a record of alcoholism, the Complainant failed to prove that he was handicapped. Schaafs v. Schultz Sav-O-Stores (LIRC, 11/06/86).

Where the Respondent was aware that the Complainant suffered from alcoholism, and that he had past convictions for drunk driving, but never took any kind of disciplinary or other adverse action against him based on this knowledge, the Respondent did not violate the Act when it eventually terminated the Complainant. The evidence showed that the termination was based on the Respondent’s belief that the Complainant was under the influence of alcohol while at work on the day of the discharge. Deltour v. Gilbert Paper Co. (LIRC, 06/20/86).

A rule against drunkenness does not have a discriminatory impact on alcoholics because recovering alcoholics are able to refrain from drinking. Even if it did, however, the rule is related to the legitimate business purpose of job performance. Mittlestadt v. LIRC (City of Appleton) (Outagamie Co. Cir. Ct., 11/28/85).

It was not discrimination to discharge an alcoholic employee who failed to report for work on two consecutive days because of his alcoholism. Benson v. Bumper and Auto of Milwaukee (LIRC, 01/06/84), aff’d sub nom. Benson v. LIRC (Milwaukee Co. Cir. Ct., 09/19/84).

It was not discrimination to discharge an alcoholic employee who came to work under the influence of alcohol and who was unable to perform his duties. Squires v. LIRC, 97 Wis. 2d 648, 294 N.W.2d 48 (Ct. App. 1980).

An employee who might seek treatment for his alcoholism was discriminated against when his employer discharged him after learning of the treatment, and when the employer failed to establish its claims of unsatisfactory performance. Bachand v. Connecticut Gen. Life (LIRC, 06/20/80).

Since alcoholism is a disease, its diagnosis is a matter of expert medical opinion by a physician and not by a layperson. Connecticut Gen. Life v. DILHR, 86 Wis. 2d 393, 273 N.W.2d 206 (1979).