What did the University of Southern California (USC) know and when did it know it?
That would seem to be the pivotal question in a December 7 lawsuit brought by former head football coach Steve Sarkisian, which alleges that the university fired him, even though it knew he was an alcoholic, which would violate under California’s Fair Employment and Housing Act.
USC answered the lawsuit in Los Angeles Superior Court last month, maintaining that it did not know Sarkisian was an alcoholic and thus did not discriminate against him based on a disability, as alleged.
The Complaint
Sarkisian maintained in his lawsuit, which is seeking the $12.6 million remaining in his contract and unspecified damages, that the defendant first became aware of his “disability” at a Salute to Troy booster event in August of last year, where the coach reportedly used a profanity and slurred words when he spoke. Sarkisian maintained that two light beers and medication for anxiety triggered the incident.
The plaintiff alleged that USC Athletic Director Pat Haden met with him shortly thereafter and noted that he could have fired him for the incident. Nevertheless, his alcohol consumption continued until it came to a head after a home loss to the University of Washington in October. Haden, allegedly, advised him the next day, Oct. 9, to meet with a sports psychologist.
On Oct. 11, Sarkisian allegedly had a tearful phone conversation in which he asked Haden for time off to get professional help. The AD fired Sarkisian the following day, just after he arrived at an out-of-state treatment facility, according to the complaint. At the time of the termination, the plaintiff claimed that he had completed treatment, was sober, and was ready to return to coaching.
“Under the circumstances of this case, California law required USC to make reasonable accommodation of giving Steve Sarkisian time off to get help for his disability and then return to his job,” reads the complaint . “Instead, USC ignored both its obligations under California law and the commitments it made to Steve Sarkisian.”
The Answer
The university’s response was swift.
“It is absolutely false that Sarkisian ever admitted to having a drinking problem, to being an alcoholic or needing to seek treatment,” according to USC. “The truth is he denied ever having a drinking problem, but blamed his inability to perform the essential functions of his job on marital stress, lack of sleep and anxiety for which he was taking medication.”
The university also disputed that the psychologist in question, Dr. Robin Scholefield, “ever treated, counseled or prescribed medication to Sarkisian as described in his lawsuit.”
The university also identified a clause in Sarkisian’s five-year contract, which allowed it to fire him the coach for reasons that included the use of, “alcohol or any substance which adversely affects Sarkisian’s ability to effectively perform his duties as a head coach.”
The university continued, noting that Sarkisian “should not be allowed to use the judicial system as a bully pulpit in an attempt to litigate the case through the press and spread misinformation in the process, rather than through the arbitral forum to which all parties agreed.”
The Analysis
Attorney Robin E. Shea of Constangy Brooks Smith & Prophete LLP, who represents employers in connection with disability discrimination claims, recently offered some analysis of the case, from “a disability rights standpoint
“According to the lawsuit, other coaches and coaching staff have been drunk and stupid at school events, and USC didn’t care. USC cared when Mr. Sarkisian was drunk and stupid only because he was an alcoholic. If this is true, it might give Mr. Sarkisian a valid disability discrimination claim. I’ve cautioned clients about this under the ADA, as well — you can’t treat an alcoholic who gets drunk and behaves badly any more harshly than you would treat a non-alcoholic who gets drunk and behaves badly. If you do, then you could be discriminating based on the alcoholic condition, which is against the law.
“On the other hand, if Mr. Sarkisian can’t prove that USC knew he was an alcoholic, then it’s going to be tough for this claim to go anywhere.
“Under California state law, employers are required to engage in the interactive process with an employee with a disability. The ADA has an interactive process provision, but courts in most (not all) jurisdictions view it as a ‘no harm, no foul’ thing — failure to engage in the process is a problem under the ADA only if there is an accommodation that could have been made and wasn’t because the employer didn’t talk to the employee and find that out. (This is no small matter, and it’s the reason we always recommend that employers have a sit-down with the employee to discuss reasonable accommodation options.)”
She continued:
“The fact that Mr. Sarkisian may have been a ‘current’ user of alcohol is not a defense for USC. The alcohol rules and the illegal drug rules are not the same. The ADA specifically exempts from coverage ‘current user[s] of illegal drugs.’ That’s why you can fire someone for testing positive for, say, heroin, even if they’re certifiably ‘addicted.’ The FEHA is more lenient and excludes only ‘psychoactive substance use disorders’ that result from current use of illegal or other drugs.
“But neither the ADA nor the FEHA has a ‘current user’ exemption for alcohol. That means an alcoholic who is ‘currently’ drinking is still protected from discrimination and may be entitled to reasonable accommodation (such as time off for rehab or AA meetings).
“That said, employers are still entitled to enforce their normal standards of performance, behavior, and attendance with alcoholic employees, as long as they don’t treat alcoholics more harshly because of the alcoholism. (See point No. 1, above.) What this means is that an employer doesn’t have to ‘accommodate’ an alcoholic employee by, for example, letting the employee violate a no-alcohol-on-premises policy, come to work under the influence, or sleep off a hangover during work time. This may be a problem for Mr. Sarkisian, who created a scene at the Trojan Salute and left the job in the critical part of football season. On the other hand, entering alcohol rehab may have been a legitimate reason for him to have done the latter.”
Sarkisian is represented by Dallas-based attorney, Alan Loewinsohn.
