Former Alcoholic Denied Job Files A.D.A. Suit

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David B. White thought he had a good shot at being hired as a high school basketball coach. He had 14 years of experience as a physical-education teacher and had been an assistant coach at several Wisconsin schools.

But, according to a suit he recently filed in Madison, Wis., he was rejected three times for that position by officials in the McFarland school district and at McFarland High School, where he has taught physical education for a decade. He was rejected, he claims, because he is a recovering alcoholic.

Wendy G. Gunderson, a lawyer representing the school district, denied Mr. White's allegations but declined to discuss the specifics of the case.

Mr. White is suing the district and the high school for discrimination under the 1990 Americans with Disabilities Act, which protects people like Mr. White who have gone through a rehabilitation program, and those who are far from recovery, unless their job performance is affected or they violate work rules.

When the A.D.A. passed, it was hailed as a victory for the nation's estimated 43 million people with disabilities. It essentially bars all forms of discrimination against the disabled.

While parts of the law have been in effect since 1992, the final phase took effect in July, so observers caution that it may be too early to assess the law's impact on schools. Few public-school-related cases have made their way through the legal pipeline.

Many of the higher-profile A.D.A. cases to date have involved private businesses and institutions, which for the most part had not been covered under earlier laws banning discrimination against people with disabilities.

In contrast, most public schools already had to insure that they did not discriminate against the disabled under the Rehabilitation Act of 1973.

But Mr. White's suit is one of the types of cases legal observers had expected the A.D.A. to trigger, said August W. Steinhilber, the general counsel for the National School Boards Association.

"This [case] is going to be a tough one," he said. "We predicted this when A.D.A. first passed."

No Stereotyping Allowed

One reason the case is not surprising, observers said, is that while educators have focused on parts of the 1973 law that more directly affect students, the A.D.A. has brought renewed attention to employment issues. (See Education Week, Jan. 15, 1993.)

Perry A. Zirkel, a professor of law and education at Lehigh University who conducts disability-law seminars for schools, said he has received more employment-related questions since A.D.A. passed.

"Most districts have not woken up to this yet," he said.

On drug and alcohol dependencies, the A.D.A. takes a tack different from that of earlier laws. If a qualified job candidate or employee is using drugs illegally, he or she is not covered under the A.D.A., according to an official at the U.S. Equal Employment Opportunity Commission. But a past history of illegal drug use is protected. With alcoholism, a person's past and present use is covered.

In all cases, however, the law stipulates that people must be able to perform the "essential functions" of a job and not be a risk to students. Schools must provide them "reasonable accommodations." Legal experts and educators said they expect that future court cases, such as Mr. White's, will help define more clearly what those terms mean.

Mr. White's lawyer, Timothy P. Tobin, said his client was never drunk at school and had never been arrested for drunken driving. Mr. White's suit claims that school officials said that he did not get the coaching position because of his personal "baggage" and that hiring him would bring "negative attention" to the basketball program.

"The purpose of the law is not to put students at risk or to prevent schools from making performance-based decisions," Mr. Tobin said. "It's there to prevent schools from making assumptions about future performance based on the status of 'alcoholic.'"

It was also created to protect people against stereotypes, said Linda D. Kilb, the managing director of the Disability Rights, Education, and Defense Fund Inc.

"Not 'fitting an image' with a disability was part of the impetus for passing the law," she said.

Schools must base their employment decisions on the specific facts of each case, be able to clearly document their decisions, and be careful about asking job candidates questions about their medical history, Mr. Zirkel said.

Of the 29,720 employment-related disability complaints filed with the E.E.O.C. to date under the 1990 law, 2.3 percent were brought by people with alcoholism, an agency official said. But because of the way the E.E.O.C. and the U.S. Education Department's office for civil rights keep their records, it is difficult to determine whether school-related employment claims have increased as a result of the A.D.A..

New Rules for Private Schools

Other A.D.A. complaints on school-employment practices have surfaced with fired teachers who say the reasons they were fired stem from stress or depression, said Janet L. Horton, a lawyer who has written about school-related A.D.A. issues for the National Organization for Legal Problems in Education. One such case is pending in Florida.

Many observers had predicted that private secular schools, which were not covered under the 1973 law but now must comply with the A.D.A., would have to start from scratch in insuring that their employment practices were nondiscriminatory.

According to James T. Kaull, the director of business services for the 1,000-member National Association of Independent Schools, the majority of questions have centered on admissions standards, such as how far a school has to go to accommodate a student with a disability in the admissions process.

But many private schools are also "scrambling around" to rewrite job descriptions so that they more clearly state what their "essential functions" include, he said.

Meanwhile, educators said they will be watching Mr. White's case because it strikes a nerve.

"Public schools depend on the public's confidence," said Bruce Hunter, the senior associate executive director of the American Association of School Administrators. "Common sense used to say if you have confidence that this person was going to be O.K., that you'd think about them for the job, but if you didn't have confidence you wouldn't. A.D.A. has shifted that ground."

Vol. 14, Issue 01, Page 20

Published in Print: September 7, 1994, as Former Alcoholic Denied Job Files A.D.A. Suit
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