United States Department of Labor
Office of Administrative Law Judges Law Library

NOTICE: THIS INDEX WAS PREPARED BY THE CIVIL RIGHTS DIVISION, OFFICE OF THE SOLICITOR, U.S. DEPARTMENT OF LABOR, FOR INTERNAL USE. IT IS NOT AN OFFICIAL INTERPRETATION OF THE CASES, AND WAS LAST REVISED IN NOVEMBER, 1996.

Return to Table of Topics, 503 Index

The Assistant Secretary held that language employed by an ALJ which paraphrased exceptions to the Rehabilitation Act's definition of an "individual with handicaps" is overly broad in that it can be read to include . . . past substance abusers, previously contagious or infected persons, or persons with contagious diseases or infections who do not pose a direct threat to the health and safety of others. OFCCP v. Mt. Bell Telephone Co., 87-OFC-25, Assistant Secretary for Employment Standards, Order Denying Motion to Strike; Decision and Order of Remand, August 25, 1994, at 4-5; Consent Decree, February 9, 1995.

To the extent that Section 503 relates to employment, the term "individual with a disability" does not include any individual who is an alcoholic whose current use of alcohol prevents such individual from performing the duties of the job in question or whose employment, by reason of such current abuse, would constitute a direct threat to property or the safety of others. 29 U.S.C. § 706(8)(C)(v). OFCCP v. Exxon Corporation d/b/a/ Exxon Company, 92-OFC-4, Final Decision and Order, Administrative Review Board, October 28, 1996, at 4.

The ARB affirmed the ALJ's finding that complainant was an individual with a disability because Exxon regarded him as having an impairment which substantially limited a major life activity. Id. at 5.

The ARB held that an employee may fall under subpart (iii) of the definition [of individual with a disability], if he has an impairment that does not substantially limit a major life activity, but the impairment is regarded as being substantially limiting. The ARB further noted that individuals also come into this category if they have an impairment which is substantially limiting only because of attitudes of others toward the impairment. For example, a job applicant's facial scar may be substantially limiting because the prospective employer believes it will dissuade customers. Finally, an individual with no impairment may be regarded as having one that is substantially limiting. This circumstance would encompass discrimination based on the mistaken belief that an individual is physically or mentally impaired or on genetic information relating to illness, disease or disorders. Id. at 5 and n.7.

By including the "regarded as" criterion, "Congress acknowledged that society's accumulated myths and fears about disability and diseases are as handicapping as are the physical limitations that flow from actual impairment." School Board of Nassau County v. Arline, 480 U.S. 273, 283 (1987). Id. at 5.

An alcoholic whose current alcohol abuse poses a direct threat to property or safety is not an individual with a disability. Direct threat has been defined under the American with Disabilities Act ("ADA") to mean a significant risk of substantial harm to health or safety that cannot be eliminated or reduced by reasonable accommodation. Such a determination requires an individualized assessment of the person's present ability to perform the essential function of the job safely. Factors germane to determining whether an individual poses a "direct threat" include the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur and the imminence of harm. See 29 CFR § 1630.2(r). Id. at 7.

Complainant does not come within the statutory exemption of alcoholics whose current use poses a direct threat, because the record reveals that alcohol use or abuse does not affect his employment. He has made a strong recovery and his risk of relapse is low. Therefore, he is an individual with a disability. Id. at 7.

Complainant's records of prior alcohol consumption, of public drunkenness, of adverse marital effects, and diagnosis and history of medical treatment for alcoholism constituted a sufficient record of a substantially limiting impairment to satisfy the definition of individual with a disability. Id. at 8-9.

The ARB overruled the ALJ's conclusion and found complainant to be an individual with a disability under 29 U.S.C. § 706(8)(B)(ii) in that he has a record of an impairment that substantially limited major life activities other than "working." The ARB further observed that "[T]he nature of the disease of alcoholism requires that there be a continuum of treatment and that the alcoholic be permitted some opportunity for failure in order to come to the acceptance of his disease which is the critical element of his cure." Rodgers v. Lehman, 869 F.2d 253, 259 (4th Cir. 1989) Id. at 9.

Congress excluded from coverage only those alcoholics whose current use of alcohol prevented them from performing the duties of the job or whose employment, because of current alcohol abuse, posed a direct threat to others. 29 U.S.C. § 706(8)(C)(v). Id. at 10.