Just about everyone on the Internet and in the blogosphere is talking about the filing of Coach Sarkisian’s disability discrimination lawsuit against University of Southern California. All kinds of folks have blogged on it already. Normally, since all kinds of folks have blogged on it, many doing it quite well, I would refrain from commenting. However, since I have written on the ADA and sports for years, I didn’t feel it was something I could avoid. So here goes:

1. The allegations are entirely based upon California state law. They include: breach of contract for coaching USC; breach of implied covenant of good faith and fair dealing; failure to engage in the interactive process; disability discrimination; retaliation; breach of confidentiality of medical information; invasion of privacy; negligent disclosure; wrongful termination; breach of contract with respect to a marketing agreement; negligent supervision, retention and hiring.

2. California for years, I actually took a course while receiving my J.D. degree from the University of San Diego on the breach of implied covenant of good faith and fair dealing, has had a separate cause of action holding a party to a contract liable where that party does not behave in a reasonable way with respect to its contractual terms. Other states do require good faith and fair dealing in their contracts but it is not a separate cause of action (Illinois for example).

3. Interesting that all the allegations are based entirely on California state law for two reasons. First, the FEHA (Unruh Civil Rights Act), makes a violation of the ADA a violation of that act. Second, interesting that there is no Family and Medical Leave Act allegation. Clearly, the coach worked the requisite number of hours in the prior year and a serious health condition was involved. The advantage to a Family and Medical Leave Act allegation is that a person is entitled to the same or equivalent job upon return from Family and Medical Leave Act leave.

4. Turning to the specific allegations (for purposes of this blog entry, we are going to take the allegations as if they were true like a motion to dismiss, which, of course, may not actually be the case:

A. In November 2015, the coach pleaded with the athletic director for help and was immediately placed on leave. Less than 24 hours later while on a plane to a rehabilitation facility, the coach was fired.

If this is true, this could be a problem for the University of Southern California along the lines of the case discussed in this blog entry, which held that a person requesting the ability to enter a rehabilitation program was protected conduct vis a vis the ADA.

B. The coach has now completed a rehabilitation program, is sober, and ready to return to work.

This raises the question of whether the coach can perform the essential functions of the job with or without reasonable accommodations. For an article discussing what might be the essential functions of his job and a coach’s ability to perform them, take a look at this article.

C. In early 2015, his wife seeks divorce after 17 years of marriage. This led to anxiety, depression, and further alcohol dependency. He still recruited well.

This raises two points. First, did the University know about his anxiety, depression, and further alcohol dependency. An employer is under no obligation to accommodate an individual if they are not aware of the disability. The coach alleges that at all time the University of Southern California knew of his disability. Also, magic words are not required. Second, the reference to recruiting well is probably an attempt to show that he was able to perform the essential functions of the job.

D. The widely known episode that occurred at the “salute to Troy,” function was the result of anxiety medicines being mixed with alcohol. After this episode, a psychologist employed by the University of Southern California that he had been seeing told him to change the plan if it was not working.

E. The coach was made to sign a letter requiring weekly visits with the therapist.

This allegation would go to whether the University of Southern California was aware of his disability.

F. The coach has suffered from chronic sleeplessness for over 20 years

Chronic sleeplessness could well be a disability. On the other hand, it raises the question of whether the coach was able to perform the essential functions of the job with or without reasonable accommodations.

G. The athletic director threatened to fire the coach. In response, the coach said that he was not right and needed time to get well. The athletic director responded “unbelievable,” and ignored any opportunity for the interactive process.

Once an employer is aware of a disability they do have the obligation to engage in the interactive process. On the other hand, employers have a perfect right to a substance abuse free workplace and are free to discipline for violation of those policies. If the University of Southern California is relying on this, hopefully they will be able to show that their discipline of the coach was similar to others faced with this situation. If not, that would create the inference that disability motivated the actions of the University.

H. The contract for coaching the football team said that if he was fired for cause, 10 days advance notice was necessary in order to allow him to cure the problem.

The allegations are that the opportunity to cure was never given to him. On the other hand, perhaps the University would argue that giving the opportunity to cure would be a futile act in light of the disability. You also wind up circling back as to how the University handles alcoholism where employees are not meeting the standard of the job (under the ADA, an employer is permitted to evaluate an alcoholic based upon the work they are doing regardless of the fact that they are an alcoholic).

I. Putting an assistant coach, who is now the coach of the University of Southern California football team (signed a five-year deal I believe) would not constitute an undue hardship to University of Southern California while the coach worked things out. That is certainly true. University of Southern California did quite well with the assistant coach they put in. So well, that they are in a bowl game and they signed him to a five-year deal. On the other hand, the ADA is pretty clear that it is not a reasonable accommodation to have someone else do a person’s essential functions of the job. This leads again to wondering why the Family and Medical Leave Act was not activated nor is it being argued by the plaintiff. The reasoning being is that while it is not a reasonable accommodation under the ADA to have someone else do a person’s essential functions of the job, if a serious health condition is involved, that person is entitled to 12 weeks of leave under the Family and Medical Leave Act in order to deal with the situation and then he gets his job back when he returns from the leave. Under that scenario, putting someone else in to do the job would make perfect sense and the coach would get the job back after the 12 weeks.

J. Both contracts with the coach may have an arbitration clause in them. If so, he is claiming that the arbitration clauses are procedurally and substantively unconscionable. I am aware that the United States Supreme Court is hearing a case on whether California can get around the preemption of the federal arbitration act. If the United States Supreme Court track record on arbitration act cases is any indication, it is quite possible that the court will find that the get around California uses with respect to the federal arbitration act will not fly. However, we will have to see what the United States Supreme Court says. Also, that decision will have to be analyzed to see how it would apply to this case, if at all.

K. The University of Southern California did not follow contractual requirements for termination with or without cause. That is certain notice requirements were not met. If the contract was terminated without cause, a liquidated damages provision kicks in and the University of Southern California did not pay it.

L. Allegation of retaliation was made for seeking accommodations (see the blog entry mentioned above).

M. There are allegations that the University failed to put in preventive systems to prevent disability discrimination and retaliation for pursuing rights under the disability discrimination statutes.

N. The coach claims that the University psychologists disclosed information without his consent.

Under the ADA, information about a person’s disability is confidential and needs to be in a place separate and apart from the personnel file. This creates the question of just where will you find the disability related information regarding the coach. On the other hand, the University might argue that they have a perfect right to that information since the coach was seeing a University psychologist. It a similar argument to what the University of Oregon argued when it wanted the information of counseling sessions by a student who had been sexually assaulted and saw a University counselor and then proceeded to sue the University for not doing anything about the assault. Considering what the coach was getting paid, it is interesting that the coach did not use his own medical professionals rather than the University’s.

O. The marketing contract was never lawfully terminated.

P. The coach is being represented by a California firm and by a Dallas Texas firm.

5. You may ask why didn’t the University of Southern California allow the coach to go into the rehabilitation program and then terminate him because he was a current user of alcohol per this blog entry? The answer to that question is that an argument can be made, as Robin makes in her blog entry, that the current user exception does not apply to alcoholism. That indeed may be the case. On the other hand, an argument can be made that the current user exception does apply to alcoholism because while it is absolutely true that 42 U.S.C. § 12114(a),(b) specifically talks about drugs and there is no mention of alcoholism or alcohol at all in those provisions, 42 U.S.C. § § 12114(c),(e), quite explicitly mention alcohol. That leads to the argument that the current user exception, notwithstanding language apparently to the contrary, was meant to apply to alcohol as well. Otherwise why is alcohol being mentioned throughout 42 U.S.C. § § 12114(c),(e).

In addition to the above, what might the defendant be thinking? Two excellent blog posts on this very subject can be found here (Jon Hyman) and here (Robin Shea).

Next week, I plan to post the top 10 most popular blog entries of the year. After that, I just might take a couple of weeks off. It is the Christmas break after all:-)

5 Responses to Essential job functions, Big Time College Football and Alcoholism

Hi, Bill – I enjoyed your insights on the Sarkisian issue and appreciate the link to my post. I don’t think 42 USC 12114(c) creates a “current user” exception to the ADA for alcoholism similar to the one for illegal drug use. All 12114(c) says is that an employer can hold an alcoholic employee to its normal behavior, performance, etc., standards that would apply to any other employee, and doesn’t have to excuse deficiencies just because they’re caused by the alcohol. I alluded to that in my blog post when I said that an employer didn’t have to, e.g., let an alcoholic employee drink, or sleep off a hangover, on the job. I think it’s pretty well recognized that terminating an employee only for being an alcoholic violates the ADA. On the other hand, terminating an employee for being a current user of illegal drugs does not. Thanks, Robin

I agree with Robin with respect to her interpretation of 12114(c). What I was arguing was that the omission of alcohol in the current user section was unintentional when the entire statute is read as a whole. So, I went to the case law. When I did a search on Lexis for this issue (“current user” w/6 alcohol and ADA), I came up with three cases (four when I expanded it to 10 words). Two dealing with the fair housing act, which is a bit of a different kettle of fish, and two facing this issue squarely (one from South Dakota state court and one from 1997 out of the Sixth Circuit). The Sixth Circuit case as did the South Dakota case said that the current user exception does not apply to alcoholism. I still think that the counterargument exists, but as far as the case law goes, the little that exists, it would seem that Robin is correct.

RE: Why not plead the FMLA? I can think of several reasons: (1) Employment Lawyers often take cases based on damages. Loss of 12 weeks back pay, when you make over $3 million per year, is a nice chunk of change; (2) having the ex-wife-to-be’s attorney claim that it is a ruse to lower his income, and thus his obligations for spousal support; (3) employers can require a fitness-for-duty certification from a physician. Whether this latter includes surprise pee-in-the-cup tests as it does for athletes, I don’t know. But one slip, and he could be fired for cause. He’s already slipped at least once, while attempting to deal with the problem on his own.

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