Amicus Curiae Brief — Burch v. Coca-Cola Co.

No. 97-791

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

ROBERT P. BURCH,

Petitioner,

VS.

THE COCA-COLA COMPANY,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF OF THE AMERICAN SOCIETY OF

ADDICTION MEDICINE, THE NATIONAL

COUNCIL ON ALCOHOLISM AND DRUG

DEPENDENCE AND THE ASSOCIATION OF

SUBSTANCE ABUSE PROGRAMS OF TEXAS,

AS AMICI CURIAE, IN SUPPORT

OF PETITIONER

ELLEN M. WEBER

Counsel of Record

SALLY FRIEDMAN

PAUL N. SAMUELS

LEGAL ACTION CENTER

236 Massachusetts Avenue, N.E.

Suite 505

Washington, D.C. 20002

(202) 544-5478

1

MOTION OF THE AMERICAN SOCIETY OF

ADDICTION MEDICINE, THE NATIONAL COUNCIL

ON ALCOHOLISM AND DRUG DEPENDENCE AND

THE ASSOCIATION OF SUBSTANCE ABUSE

PROGRAMS OF TEXAS FOR LEAVE TO FILE A

BRIEF AMICI CURIAE IN SUPPORT OF PETITION

FOR WRIT OF CERTIORARI

Pursuant to Rule 37(2)(b) of the Rules of the Supreme

Court of the United States, the American Society of Addiction

Medicine, the National Council on Alcoholism and Drug De-

pendence and the Association of Substance Abuse Programs

of Texas respectfully request leave to file the accompanying

brief as amici curiae in support of Petitioner Robert P.

Burch’s request for a writ of certiorari. Respondent Coca-

Cola, Inc. has withheld consent for the filing of this brief. Pe-

titioner Robert Burch has consented.

Amici, which are described fully in the Interest of Amici

Curiae, are dedicated to preventing and treating the disease at

issue in this case: alcoholism. Their members are among the

Nation’s experts in diagnosing, treating and conducting sci-

entific and policy research about this disease. The Fifth Cir-

cuit’s decision will hinder their efforts to prevent and treat

alcoholism and improve clinical, judicial and public under-

standing of alcoholism.

Amici can provide valuable assistance to the Court. The key

issue in this case is whether the Fifth Circuit has applied the

disability standard of the Americans with Disabilities Act

(ADA) correctly to Mr. Burch, whose disability is alcoholism.

This determination must be grounded in medical knowledge

and science, which all three organizations are persuaded the

Fifth Circuit has ignored. Granting amici leave to participate

will enable them to present relevant scientific information that

is necessary to understand why the Fifth Circuit’s decision is

wrong as a matter of science and law.

Amici are also able to apprise the Court of the far-reaching

implications of the Fifth Circuit’s decision, which conflicts

with several other Circuits’ decisions concerning alcoholism

and other disabilities under the ADA, and would reverse

twenty years of progress made possible by the ADA and the

federal Rehabilitation Act. The legal standard adopted by the

Fifth Circuit will eviscerate the ADA’s protection of qualified

individuals with alcohol dependence. This will hamper our

Nation’s efforts to treat alcohol dependence and to ensure that

those who have been treated retain or find employment, which

is essential to maintain sobriety. Amici believe that informa-

tion about the substantial human and social costs that would

flow from the decision below will assist the Court in deciding

whether to grant certiorari.

Accordingly, the American Society of Addiction Medicine,

the National Council on Alcoholism and Drug Dependence,

and the Association of Substance Abuse Programs of Texas

urge the Court to grant them leave to present their views.

Respectfully submitted,

ELLEN M. WEBER*

SALLY FRIEDMAN

PAUL N. SAMUELS

LEGAL ACTION CENTER

236 Massachusetts Ave, N.E., Suite 505

Washington, D.C. 20002

(202) 544-5478

Fax: (202) 544-5712

Attorneys for Amici Curiae

*Counsel of Record

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE ooeesecccccssssessseescs.....

STATEMENT OF THE CASE.........ccccc-00.-...... otek

I. THE FIFTH CIRCUIT’S LEGAL

STANDARD FOR “DISABILITY”

CONFLICTS WITH OTHER CIRCUITS AND

IS INCONSISTENT WITH THE ADA’S

Seer RO ATO,

A. The Fifth Circuit Erred In Identifying

Mr. Burch’s Impairment As One

Manifestation Of Alcoholism, Not The

Underlying Condition. .0.0......ecceccecseoeeoeeo..

B. The Fifth Circuit’s Legal Standard For

“Substantially Limits” Is Not Supported By

The Law Or Title I Regulations...

1. Extent of Impairment.................................

2. Duration and Impact of Impairment..........

II. THE FIFTH CIRCUIT’S REASONABLE

ACCOMMODATION STANDARD

CREATES A CONFLICT IN THE CIRCUITS

AND IS INCONSISTENT WITH THE

TITLE I REGULATIONS. .....0..cescccsesessceeoosecss-c.

Page

16

Page

Ill. COCA-COLA’S REFUSAL TO PERMIT

MR. BURCH TO RETURN TO WORK

AFTER A LEAVE OF ABSENCE MAY BE

CHALLENGED AS A VIOLATION OF THE

REASONABLE ACCOMMODATION

PEA FR FRREIIEN Eh cs scansesepaevnsincencivhasnmnecsitirvtesioos 18

COO AFR iis intniienecctaccctnbesdstionns uohemusdaaapeeciee 20

:

;

:

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2

TABLE OF AUTHORITIES

Cases:

Buckingham v. United States, 998 F.2d 735 (9th Cir.

SEF i cicsindivicinystiansnecsidacnieinveaidniuicbinnbcenstbaninadninants

SPS 7 Fi scevonsssnicisciiaseiasaibidaseabaceniasadnnakseaibenitibipeasten

Harris v. H & W Contracting Co., 102 F.3d 516

CDSG Ee. SOIR ins siirninccajeetiticbinitiwidiouonenieeiens

Homeyer v. Stanley Tulchin Assocs., Inc., 91 F.3d

OF CP i EA siscincsaihenaeshicsustnepiectinsranahipltos

Jacques v. Clean-Up Group, Inc., 96 F.3d 506 (ist

COE Fe Misc shcssnukascisvaclousibadaoanaddnncdesasietics nines

RE ccickininiibcuicedelnnsvhceceeaaidanoneaisammensiatneneeaasibe

EID Fo cstscasteitpicnsiainnnicaidnebesocnsbresinmnineitaaaoienieiveen

SIE) vcxarstvisisiesvabsniveneenen cin chibesomenseensnbadnnmcnaniiasibnels

Miller v. Runyon, 77 F.3d 189 (7th Cir. 1996) ..........

Office of Senate Sergeant at Arms v. Office of

Senate Fair Employment Practices, 95 F.3d 1102

ONE ae ee esclndiniscretsudiansrrinmaemniaebars

Riel v. Electronic Data Systems Corp., 99 F.3d 678

CIBER, FE weiss pccsccnsesictcomsacanovissestestiacsiraunces

Roush v. Weastec, Inc., 96 F.3d 840 (6th Cir. 1997)...

Vande Zande v. Wisconsin Dep't of Admin., 44 F.3d

Soe Fat Gk: BS die cic aocdabaiadanin

Whitbeck v. Vital Signs, Inc., 116 F.3d 588 (D.C.

Rae, BF Ty scans celassciscovinceeninsakaneneccnapiienvabitipnenpeminaitits

iv

Page

Statutes:

I Beers NC res crnsanthsilinpaeatnidnibsaitieiebebetianiencs 8

Me San Ie AR Fi i cicsivuibsiiebtiiasiaicnatis bohardiiomsenisieas 14

Regulations And Other Administrative

Materials:

20 C.F.R. Pt. 404, Subpt. P, App. 1, §§ 12.09,

11.04, 11.14 and 12.02(A)(2) (1997)...........cccceeeee 13

Me ee © SIE Mistinc basics snchaiiactndlieniaginesoasi adic 11,12

SE CAF Be & FOU acc indecent me in 14

Be ak Rs. PEE ecnacenscaalnacinesecnsavcbabuectchieesskos 17, 18

SS. FOG Y GIO, FOG, TZ CTT Pasties sicscssensvsissornscedas 16

ABD, 20 FP er B Ri is lich pedesaciinccvecbedipulivenlssnin 18

EEOC Compliance Manual, Definition of the Term

TAUITEA . wiccsibbitniniohyehcshsiudscihiiascigs sbi Uibhitaldasisscteminiadiags tb 11, 13-15

Other Authorities:

Drusilla Campbell & Marilyn Graham, Drugs and

Alcohol in the Workplace: A Guide for

Managers, 9 (New York: Facts on File

ARISEN, ROMIUED csavcecitesosclipiceiusisadiebediunsssotintaariaun 5

Bridget F. Grant et al., “Prevalence of DSM-IV-R

Alcohol Abuse and Dependence: United States,

1992,” Alcohol Health & Research World, Vol.

RG, BUD: Sy Be CR ER copia ied nacanuaerarnandsteusciiconades 4

National Institute on Alcohol Abuse and

Alcoholism, Alcohol Alert, No. 30, Washington,

Bie CA PUET D viverceshacesbiaiachsiicdieuidealee cambiar 9-10, 12

Page

Dorothy P. Rice, “The Economic Cost of Alcohol

Abuse and Alcohol Dependence: 1990,” Alcohol

Health & Research World, Vol. 17, No. 1, 10

on | SERENE re IOS ULE dite ts se aOR 4

Frederick S. Stinson et al., “Prevalence of DSM-III-

R Alcohol Abuse and/or Dependence Among

Selected Occupations, United States 1988,”

Alcohol Health & Research World, Vol. 16, No.

Fi tilt AE IOS I ted 5s ite ets tit cate adder cna ihe

Fe Ee hts cases netic Lid cals daaiwlenetencsinessocs 4

U.S. Department of Labor, What Works:

Workplaces Without Drugs, 3 (August 1990)........ 4

STA ah cemetee ede. Ble

Sati. CMA ee eat lh 9 eh I i OLE

No. 97-791

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

ROBERT P. BURCH,

Petitioner,

vs.

THE COCA-COLA COMPANY,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF OF THE AMERICAN SOCIETY OF

ADDICTION MEDICINE, THE NATIONAL

COUNCIL ON ALCOHOLISM AND DRUG

DEPENDENCE AND THE ASSOCIATION OF

SUBSTANCE ABUSE PROGRAMS OF TEXAS,

AS AMICI CURIAE, IN SUPPORT

OF PETITIONER’

The American Society of Addiction Medicine, the National

Council on Alcoholism and Drug Dependence, and the Asso-

ciation of Substance Abuse Programs of Texas respectfully

submit this brief amici curiae in support of Petitioner’s

' No party participated in the drafting of this brief, and counsel for amici

funded it in total.

request for a writ of certiorari, contingent on the granting of

the accompanying motion for leave, pursuant to Rule

37(2)(b). Petitioner, Robert Burch, has consented to the filing

of this brief. Respondent, Coca-Cola Company, has withheld

consent.

INTEREST OF AMICI CURIAE

This case is about whether individuals with alcohol de-

pendence are protected against discrimination under the

Americans with Disabilities Act (ADA). It began as a classic

case of discrimination when Coca-Cola terminated a valued

employee who took medical leave to get treatment for his al-

coholism. The Fifth Circuit, which held, in part, that Mr.

Burch is not disabled under the ADA, has transformed the

case into an unprecedented decision that establishes incorrect

legal standards and promotes a fundamentally flawed and bi-

ased understanding of the disease of alcoholism. If permitted

to stand, the decision, even in its narrowest application, will

eviscerate the ADA’s protection of qualified individuals with

alcohol problems. It could also undo workplace practices that

help individuals get the care they need and remain employed

and reduce the workplace, health and social costs resulting

from untreated alcoholism. If applied generally, the decision

will constrict the ADA’s protection of all individuals with

disabilities.

The American Society of Addiction Medicine (ASAM), the

National Council on Alcoholism and Drug Dependence

(NCADD), and the Association of Substance Abuse Programs

of Texas and their members are dedicated to preventing and

treating one of the Nation’s most serious and costly public

health problems: alcohol dependence. The anti-discrimination

protections of the ADA are critical to the fight against alco-

holism.

ASAM, founded in 1954, is an international association of

3,200 physicians in a wide range of medical specialties.

ASAM is dedicated to improving the treatment of alcoholism

and other addictions, through research, prevention, and edu-

cation of the medical community and the public. ASAM is a

3

delegate in the American Medical Association’s House of

Delegates, and, in June 1990, the AMA’s Board of Trustees

designated addiction medicine as a practice specialty.

NCADD is a voluntary health organization with a nation-

wide network of affiliates. NCADD advocates for prevention,

intervention, research and treatment of alcoholism and drug

dependence, and pioneered efforts to establish employee as-

sistance programs that enable employers and employees to

address and resolve work-related problems stemming from

these diseases. NCADD and its affiliates work to eradicate the

stigma of alcoholism and educate the public that alcoholism is

a complex medical condition that can and must be treated.

The Association of Substance Abuse Programs of Texas

represents fifty non-profit substance abuse service organiza-

tions. Its purpose is to strengthen the quality and scope of

substance abuse prevention, education, intervention and

treatment for the people of Texas. The Association’s members

treat thousands of individuals for alcoholism each year and

help them to maintain their sobriety and retain or find em-

ployment.

All three organizations have a keen interest in ensuring that

the courts understand the disease of alcohol dependence and

apply medical and scientific knowledge appropriately in re-

solving discrimination suits. As discussed below, the clinical

conditions that would satisfy the Fifth Circuit’s standard for

finding a disability under the ADA exist in only a tiny seg-

ment of people diagnosed with alcohol dependence and never

appear in those who are employed or employable. Accord-

ingly, these organizations are very concerned about the estab-

lishment of a legal standard that is based on a flawed

understanding of the disease and would exclude virtually all

persons with alcohol dependence from the protections of the

ADA. The Fifth Circuit’s standard would deter employees

from coming forward and entering treatment for fear of losing

their livelihood, drive the problem underground, and increase

costs to employers.

4

The legal protections afforded individuals with alcohol

problems are important because the disease reaches into al-

most every corner of the American workplace. An estimated

13.8 million Americans, the vast majority of whom are em-

ployed, have alcohol problems. Approximately 8.1 million of

these are alcohol dependent, and the remainder fit a diagnosis

of alcohol abuse.’ A national survey that examined the preva-

lence of alcohol abuse and dependence among workers in 500

occupations found that over ten percent of American workers

have a problem with alcohol.’

Untreated alcohol abuse and dependence cost the United

States approximately $98.6 billion in 1990.‘ Approximately

72 percent of these costs are associated with lost employment

and reduced productivity resulting from alcohol-related death

and illness.’ Absenteeism among employees with alcoholism

or drinking problems is 3.8 to 8.3 times greater than normal.°

And the health care costs for individuals with alcoholism are

? Bridget F. Grant et al., “Prevalence of DSM-IV-R Alcohol Abuse and

Dependence: United States, 1992,” Alcohol Health & Research World,

Vol. 18, No. 3, 243, 245 (1994). The diagnosis of alcohol disorders is

made most commonly by using the diagnostic criteria set out in the

American Psychiatric Associations’ Diagnostic and Statistical Manual of

Mental Disorders (DSM). The criteria for distinguishing alcohol abuse

from alcohol dependence are described infra at p. 9, 10, and 12. Alcohol

dependence is synonymous with alcoholism.

* Frederick S. Stinson et al., “Prevalence of DSM-III-R Alcohol Abuse

and/or Dependence Among Selected Occupations, United States 1988,”

Alcohol Health & Research World, Vol. 16, No. 2, 165, 167-71 (1992).

* Dorothy P. Rice, Sc.D., “The Economic Cost of Alcohol Abuse and Al-

cohol Dependence: 1990,” Alcohol Health & Research World, Vol. 17,

No. 1, 10 (1993).

* Stinson et al., supra, n. 2, at 172.

° U.S. Department of Labor, What Works: Workplaces Without Drugs, 3

(August 1990).

5

roughly twice as high as that for those who do not have this

disease.’

Treatment dramatically reduces alcohol-related health care

and other workplace costs. A study of over 3,000 individuals

who were treated for alcoholism revealed that their health care

costs dropped by 23%, on average, after treatment. The study

also found that over a 14-year period, the health care costs of

persons who received alcoholism treatment were 24% lower

than were the health costs of those who were not treated for

their alcoholism. Many employers, particularly large corpora-

tions, have implemented Employee Assistance Programs to

reduce workplace problems associated with untreated alco-

holism and to treat, rather than terminate, employees with

such problems. Many have documented the value of provid-

ing treatment.*

The Fifth Circuit’s decision shatters the legal foundation

that has made these strides possible.

STATEMENT OF THE CASE

A. Facts

Amici adopt the factual statement in Petitioner’s Brief and

highlight several additional facts. Mr. Burch sought inpatient

alcoholism treatment after being unable, even with the assis-

tance of outpatient counseling, to control his drinking for a

year and a half. Mr. Burch’s drinking affected him both on

and off the job. He testified that when he became intoxicated,

"Id. at 149.

* For example, employees of the Philadelphia Police Department who re-

ceived treatment reduced their sick days by an average of 38% and their

injured days by 62%. Oldsmobile’s Lansing, Michigan plant saw the fol-

lowing results in the year after its employees with alcoholism received

treatment: lost work hours declined by 49%; health care costs declined by

29%: leaves declined by 56%; grievances declined by 78%; disciplinary

problems declined by 63%; and accidents declined by 82%. Drusilla

Campbell & Marilyn Graham, Drugs and Alcohol in the Workplace: A

Guide for Managers, 9 (New York: Facts on File Publications, 1988).

6

he suffered blackouts and insomnia and lost his ability to

walk, talk, think and function. While he did not drink during

work hours, his drinking affected his memory and caused him

to avoid interaction with co-workers in the morning. Indeed,

Mr. Burch decided to enter alcoholism treatment the day after

an incident at a company dinner, which opened his eyes to the

seriousness of his problem. He testified that he realized that

his drinking was affecting his personal life and, in his words,

“the last thing I wanted it to do was have it affect my business

life.” (TR. 224) He sought treatment before he was informed

that his conduct at the company function was being investi-

gated.

Mr. Burch’s treating physician at Charter Hospital diag-

nosed him as suffering from “alcohol withdrawal syndrome,

alcohol dependence and possibly depression.” As such, ac-

cording to Dr. Nace, alcohol-induced changes to the brain had

caused Mr. Burch to permanently lose control over his ability

to regulate the amount of alcohol he drank, which resulted in

increasingly more interpersonal conflicts. (TR. 665-66) No

other medical evidence was presented at trial to refute Dr.

Nace’s diagnosis or his opinion that Mr. Burch fit the defini-

tion of “disabled” under the ADA.

B. The Fifth Circuit’s Decision

The Fifth Circuit reversed the jury verdict for Mr. Burch.

The Court held that he did not meet the ADA definition of

disability, as he did not suffer from an impairment that sub-

stantially limited a major life activity, did not have a record of

such an impairment, and was not perceived as having such an

impairment. The Court found that while Mr. Burch’s alco-

holism may be permanent, it did not reach the level of sever-

ity to substantially limit any major life activity. The Court

reasoned that Mr. Burch’s condition, which it characterized as

inebriation that was temporarily incapacitating, was no differ-

ent than that of an overindulging social drinker who experi-

enced impaired senses, dulled reactions, restless sleep and an

unpleasant morning after drinking. Finding no difference be-

tween Mr. Burch and social drinkers, the Court went on to

7

identify the physical and mental conditions that an individual

with alcohol dependence would have to present to satisfy the

definition of disability: “alcoholism-induced inebriation that

permanently altered his gait, his ability to speak properly, his

memory when sober, or produced long-term insomnia.” The

Court cited no medical evidence to support its formulation of

Mr. Burch’s impairment or its list of the conditions that

would render an alcoholic disabled under the ADA. It also

provided no legal support for its disability standard, which

requires individuals with alcoholism, at a minimum, to prove

additional, permanently impairing conditions to be covered

under the ADA.

The Court also held that Burch had not stated a reasonable

accommodation claim because he had not demonstrated that

the major life activity of “work” was substantially limited,

which, according to the Court, is necessary for a such claim.

Again citing no support for this legal standard, the Court rea-

soned that if work is not affected there is nothing to be ac-

commodated. Only with claims of intentional discrimination,

according to the Court, can an aggrieved employee rely on a

major life activity other than work.

Finally, the Court held that Mr. Burch’s request for a leave

of absence to obtain treatment and return to work upon com-

pletion is not a “cognizable, reasonable accommodation.” The

Court reasoned that, because Coca-Cola permitted him to en-

ter treatment and paid him during his absence, the only thing

Mr. Burch had requested was the ability to return to his job.

The Court found that, as a matter of law, Coca-Cola’s refusal

to permit Mr. Burch to return after his leave of absence can

only be challenged as a discriminatory discharge, not as a

failure to provide a reasonable accommodation.

SUMMARY OF ARGUMENT

The Fifth Circuit’s unprecedented holding that Mr. Burch,

an individual diagnosed with alcohol dependence, is not dis-

abled under the ADA is based on several errors of law. First,

the Court has erroneously misconstrued Mr. Burch’s impair-

ment as one manifestation of alcohol dependence —

inebriation — rather than the underlying condition. Second, in

determining whether Mr. Burch’s impairment is “substantially

limiting,” it has required that the limitations resulting from his

impairment be both permanent and of such severity that sec-

ondary physical and mental conditions exist (in addition to his

alcoholism). The Court’s formulation amounts to a legal stan-

dard that excludes all individuals with alcoholism from the

protection of the ADA; one must also have another secondary

disability caused by the primary disability, alcoholism. It con-

flicts with other Circuit Court decisions that have analyzed

the legal standard for disability in cases relating to alcohol

dependence as well as other impairments.

The Court has also established an incorrect standard for

stating a reasonable accommodation claim under the ADA by

requiring proof that a disability substantially limits the major

life activity of work rather than any other major life activity.

Finally, the Court has misconstrued the accommodation of a

leave of absence and has erroneously ruled that the refusal to

permit an employee to return after a leave can only be chal-

lenged as intentional discrimination, not a violation of the

reasonable accommodation requirement.

ARGUMENT

I. THE FIFTH CIRCUIT’S LEGAL STANDARD

FOR “DISABILITY” CONFLICTS WITH OTHER

CIRCUITS AND IS INCONSISTENT WITH THE

ADA’S TITLE I REGULATIONS

A. The Fifth Circuit Erred In Identifying Mr. Burch’s

Impairment As One Manifestation Of Alcoholism,

Not The Underlying Condition.

The Fifth Circuit made several legal errors in holding that

Mr. Burch does not meet the ADA definition of “disability”

(42 U.S.C. § 12102(2)). First, the Court misconstrued the very

nature of Mr. Burch’s disability by focusing on the most ap-

parent manifestation of alcoholism — inebriation — and re-

casting his impairment as nothing more than temporary

9

episodes of inebriation. Other Circuit Courts have explicitly

rejected this approach.

For example, the Sixth Circuit in Roush v. Weastec, Inc.,

96 F.3d 840 (6th Cir. 1997), reversed the district court’s rul-

ing that an employee who had a bladder condition that caused

intermittent bladder infections was not an individual with a

disability. The Sixth Circuit found that the lower court had

erred in analyzing whether a disability existed because,

“[ijnstead of considering whether plaintiff’s bladder condition

constitutes a disability, the District Court considered only

whether her bladder infections constitute a disability.” Jd. at

844. Since the bladder infections are a characteristic manifes-

: tation of the particular impairment, they are a part of the un-

derlying impairment and should not be considered separately.

The Sixth Circuit remanded the case for a determination of

whether the bladder condition substantially limited plaintiff's

major life activities. Similarly, in Vande Zande v. Wisconsin

Dep't of Admin., 44 F.3d 538 (7th Cir. 1995), the Seventh

Circuit held that an employer had a duty to reasonably ac-

commodate plaintiff’s pressure ulcers because they were a

: part of her disability of paralysis. The Court rejected defen-

| dant’s assertion that because the pressure ulcers were inter-

mittent and episodic, and, thus, outside the definition of

disability, they did not have to be accommodated. The Court

: noted that “[o]ften the disabling aspect of a disability is, pre-

: cisely, an intermittent manifestation of the disability, rather

than the underlying impairment.” /d. at 544.

In this case, the Fifth Circuit missed the forest — an unre-

butted medical diagnosis of alcohol dependence — for the

trees. A diagnosis of alcohol dependence means that Mr.

Burch had a pattern of drinking — not singular and temporary

episodes — that satisfied at least three of the following crite-

ria:

4 a ee

(1) tolerance, which is the need for markedly in-

creased amounts of alcohol to achieve intoxication

or the desired effect, or diminished effect with the

continued use of the same amount of alcohol;

10

(2) withdrawal, exhibited by withdrawal symp-

toms and consuming alcohol to avoid or relieve

such symptoms;

(3) impaired control as exhibited by the persistent

desire or one or more unsuccessful efforts to control

drinking and drinking larger amounts or over a

longer period of time than intended;

(4) neglect of important social, occupational, or

recreational activities because of drinking;

(5) a great deal of time devoted to obtaining al-

cohol, drinking and recovering from its effects;

(6) inability to fulfill role obligations at work,

school or home;

(7) hazardous use of alcohol;

(8) continued drinking despite knowledge of

having persistent or recurring social, psychological

or physical problems caused by alcohol use; and

(9) some symptoms have persisted for at least one

month or have occurred repeatedly over a longer pe-

riod.”

It is this constellation of symptoms that must be examined to

determine whether Mr. Burch was substantially limited in any

major life activity.

* National Institute on Alcohol Abuse and Alcoholism, Alcohol Alert, No.

30, Washington, D.C. (1987), citing the American Psychiatric Associa-

tion, Diagnostic and Statistical Manual of Mental Disorders, Third Edi-

tion, Revised (DSM-III-R), which was the standard diagnostic tool at the

time of Mr. Burch’s diagnosis.

eR Pena ence eae aed

Cota R ERED NAC keV LRU Wie ME i I Fs

11

B. The Fifth Circuit’s Legal Standard For

“Substantially Limits” Is Not Supported By The

Law Or Title I Regulations.

The regulatory definition of “substantially limits”'’ requires

an examination of the extent, duration and impact of the im-

pairment. EEOC Compliance Manual, Definition of the Term

“Disability,” § 902.4(b). The Fifth Circuit erred in three ways

when making this determination.

1. Extent of Impairment

First, in evaluating the extent of Mr. Burch’s impairment,

the Court selected the wrong comparison group to analyze

whether his condition was severe enough to set him apart

from the average person. The regulatory definition of

“substantially limits” requires a comparison between the way

an individual with an impairment performs versus the

“average person in the general population.” 29 C.F.R.

'° The term “substantially limits” means:

(i) Unable to perform a major life activity that the average

person in the general population can perform; or

(ii) Significantly restricted as to the condition, manner or

duration under which an individual can perform a particular

major life activity as compared to the condition, manner, or

duration under which the average person in the general popu-

lation can perform that same major life activity.

(2) The following factors should be considered in deter-

mining whether an individual is substantially limited in a ma-

jor life activity:

(i) The nature and severity of the impairment;

(ii) The duration or expected duration of the impairment;

and

(iii) The permanent or long term impact, or the expected

permanent or long term impact of or resulting from the im-

pairment.

29 C.F.R. § 1630.2(j).

12

§ 1630.2(4))(1). The Court, however, did not compare Mr.

Burch to the average person, but rather to a segment of the

population that drinks to the point of inebriation. If this stan-

dard were generaily adopted, it would require a comparison of

the individual with an impairment to others who share the

same defining characteristic of that impairment. Thus, for ex-

ample, a person with a mobility impairment would have to be

compared to those in the public who have broken legs and

cannot walk temporarily; a person with hemophilia would

have to be compared to individuals who are experiencing in-

ternal bleeding; an individual with severe depression would

have to be compared to individuals who are experiencing

temporary depression. This would lead to absurd and unin-

tended results; no one would be able to demonstrate that a

condition is substantially limiting because all would be expe-

riencing the exact same effects.

As a factual matter in this case, Mr. Burch’s diagnosis dis-

tinguishes him from one who abuses alcohol'’ and one who

occasionally gets drunk but has no alcohol problem, like the

Court’s social drinker. Clearly, Mr. Burch is not like the aver-

age person, much less every other drinker.

The Court’s second error of law was to require, as proof of

severity, the existence of secondary impairments beyond al-

cohol dependence; i.e., permanently altered gait, speech,

memory or sleeping disorders. According to physicians who

treat alcoholism, these conditions appear very rarely in indi-

viduals with alcohol dependence — on the order of 2 out of

'' The DSM-III-R criteria for alcohol abuse are (1) a maladaptive pattern

of alcohol use indicated by either continued use despite the knowledge of

having persistent or recurrent social, occupational, psychological or

physical problem that is caused by alcohol use or drinking in hazardous

situations; (2) some symptoms have persisted for at least one month or

have occurred repeatedly over a longer time period; and (3) never met the

criteria for alcohol dependence. National Institute on Alcohol Abuse and

Alcoholism, Alcohol Alert, No. 30, Washington, D.C. (1987), citing the

American Psychiatric Association, Diagnostic and Statistical Manual of

Mental Disorders, Third Edition, Revised.

|

'

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}

'

13

every 1,000 cases — and only in those whose alcoholism has

gone untreated for a very long time. Individuals who are em-

ployed or employable do not have these conditions. The gait,

memory and speech problems result from severe central nerv-

ous system damage, due primarily to thiamine deficiency,”

and are often reversible with treatment. The Court’s formula-

tion defines the sickest of the sick and appears to have been

taken from the Supplemental Security Income eligibility stan-

dards, 20 C.F.R. Pt. 404, Subpt. P, App. 1, §§ 12.09, 11.04,

11.14 and 12.02(A)(2) (1997), which are totally inapplicable

in ADA cases.

The regulations do not require that an impairment be at its

most severe stage, causing secondary impairments. According

to the EEOC, the key is whether the impairment “significantly

restricts” life activities (EEOC Compliance Manual,

§ 902.4(c)(1)), not whether it renders the individual com-

pletely unable to engage in a life activity. Other Circuit

Courts have clearly rejected the Fifth Circuit’s standard by

finding that individuals with chronic medical conditions meet

the definition of disability even when they receive treatment

to prevent severe health and other consequences. For exam-

ple, in Harris v. H & W Contracting Co., 102 F.3d 516 (11th

Cir. 1996), the Eleventh Circuit held that a woman with

Graves’ disease, whose condition was completely controlled

by medication, had raised a genuine issue of material fact as

to whether she was substantially limited in a major life activ-

ity. The Court concluded that the evidence demonstrated that

without medication, the woman could suffer numerous severe

consequences, including lapsing into coma and death. Proof

of what could occur absent mitigating measures was suffi-

cient, rather than evidence that the individual had suffered

these consequences. Id. at 523. Similarly, the Sixth Circuit

held in Gilday v. Mecosta County, 124 F.3d 760 (6th Cir.

1997), that a paramedic whose diabetes was controlled by

medication and proper diet had put forward sufficient

'? The Court’s other condition, long-term insomnia, is not even recognized

as a symptom of alcoholism.

14

evidence to withstand summary judgment, because without

medication his condition had caused him to become frus-

trated, irritable and rude. The Sixth Circuit concluded that this

could prevent him from getting along with co-workers, and

thereby substantially limit his ability to work. /d. at 762-65.

Under the Fifth Circuit’s standard, virtually no individual

with alcoholism would meet the definition of disability. Even

if one did, he or she would not be a “qualified individual with

a disability,” i.e., able to perform the essential functions of a

job either with or without a reasonable accommodation. 42

U.S.C. § 12111(8); 29 C.F.R. § 1630.2(m). Similarly, indi-

viduals with other disabilities would not meet the definition

of disability unless their conditions had progressed to the

most severe stage. An individual with diabetes would have to

experience blindness or organ failure to be protected under the

ADA. Congress clearly did not have this in mind in enacting

the ADA.

2. Duration and Impact of Impairment

Finally, in determining the duration and impact of the im-

pairment, the Fifth Circuit held that the limitations must be

“permanent” to be substantially limiting. Other Circuit

Courts, the Title I regulations and the EEOC have rejected

this legal standard. For example, in Katz v. City Metal Co.,

Inc., 87 F.3d 26 (1st Cir. 1996), the First Circuit considered

whether a heart condition was of sufficient duration and im-

pact to be substantially limiting. The Court adopted the stan-

dard set forth in the EEOC’s Compliance Manual,'’ finding

'’ The Compliance Manual states:

Although short-term, temporary restrictions generally are

not substantially limiting, an impairment does not necessarily

have to be permanent to rise to the level of a disability. Some

conditions may be long-term or potentially long-term, in that

their duration is indefinite and unknowable or is expected to

be at least several months. Such conditions, if severe, may

constitute disabilities.

(Footnote continued)

15

that a jury must determine whether the “limitations [on major

life activities] were permanent or persisted on a long-term

basis, or that their duration was indefinite and unknowable or

expected to be at least several months.” Id. at 32 (emphasis

added).

The Fifth Circuit’s standard is also incompatible with the

coverage of chronic conditions that have episodic, active

stages. As the EEOC has explained:

[S]ome chronic conditions may constitute substan-

tially limiting impairments. Such conditions may be

substantially limiting when active or may have a

high likelihood of recurrence in substantially limit-

ing forms....Some severe back problems and most

forms of heart disease and cancer fall into this cate-

gory. This category also includes illnesses, such as

tuberculosis, that may lay dormant for long periods

but can reemerge at any time in a substantially lim-

iting manner. Similarly, episodic disorders, such as

: bipolar disorder, which remit and then intensify also

| fall into this category.

EEOC Compliance Manual, § 902.4(d). The evidence in this

case demonstrates that the active phase of alcoholism for

which Mr. Burch sought treatment lasted for over one and

one-half years, and that alcoholism itself is a permanent con-

dition that has a life-long impact on Mr. Burch. If Mr. Burch

were to begin drinking alcohol again, he would suffer the

same debilitating consequences that affected his ability to

function.

In sum, the Fifth Circuit’s restrictive standard stands in

stark contrast to every other Circuit Court decision that has

considered whether an individual with alcoholism is disabled

under the Rehabilitation Act or ADA. See Petitioner’s Brief at

17-18. None has required permanent impairments beyond the

EEOC Compliance Manual, Definition of the Term “Disability,”

§ 902.4(d) (emphasis added).

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16

diagnosis of alcohol dependence. It also conflicts with the

policy considerations articulated in 1977 by then-Attorney

General Griffen Bell who concluded that alcoholics are

“handicapped individuals” within the meaning of the Reha-

bilitation Act of 1973, as amended.

[I]t is consistent with Congress’ obvious purpose to

prohibit discrimination against otherwise qualified

individuals solely on the basis of an illness or other

handicap to include alcoholism...within the statute’s

reach. The Supreme Court took note in Powell v.

Texas of the “shame which we have associated with

alcoholism,”...and observed that “the uncharitable

attitude of our society toward alcoholics causes

many of them to refrain from seeking treatment

from any source.”

43 Op. Att’y Gen. No. 12 at 12 (1977). Mr. Burch’s experi-

ence clearly demonstrates that protection against discrimina-

tion is as necessary today as it was twenty years ago.

Il. THE FIFTH CIRCUIT’S REASONABLE

ACCOMMODATION STANDARD CREATES A

CONFLICT IN THE CIRCUITS AND IS INCON-

SISTENT WITH THE TITLE I REGULATIONS

The Fifth Circuit also established a new legal standard for

stating a reasonable accommodation claim, which conflicts

with the law in at least four other Circuits and with the EEOC

regulations and interpretative guidance. Under the Court’s

formulation, an individual who seeks a reasonable accommo-

dation must demonstrate that the major life activity of work-

ing is substantially limited. This standard incorrectly merges

the reasonable accommodation obligation with the definition

of disability. If the Fifth Circuit’s decision stands, a substan-

tial number of people with a broad array of disabilities will be

denied accommodations they are entitled to under the ADA.

At least four Circuit Courts have found that an employer

has a duty to accommodate an impairment even when it does

not limit the activity of working. In Lyons v. Legal Aid Soc’y,

17

68 F.3d 1512 (2d Cir. 1995), for example, a plaintiff who re-

lied on walking devices claimed that her employer failed to

accommodate her disability by refusing to provide a parking

space near her office. Even though her impairment substan-

tially limited her ability to walk, not to work, the Second Cir-

cuit held that plaintiff stated a claim and that the requested

accommodation was not unreasonable as a matter of law. Jd.

at 1515. The court held that requiring an employer to provide

a qualified person with a disability assistance in getting to

work was consistent with Congress’ views and those of the

EEOC. Jd. at 1517. The EEOC has included the provision of

reserved parking spaces as an example of a possible required

accommodation. /d. at 1515 (citing EEOC Interpretive Guid-

ance at 407).

The First Circuit reached the same conclusion in Jacques v.

Clean-Up Group, Inc., 96 F.3d 506 (1st Cir. 1996), where a

plaintiff whose epilepsy prevented him from driving claimed

that his employer failed to accommodate his disability by not

providing transportation to work. Though the First Circuit

affirmed the district court’s denial of plaintiff’s claim, it held

that employers are not relieved of the duty to accommodate

merely because a qualified employee is able to perform a

job’s essential functions. Rather, employers must provide ac-

commodations “to allow equal enjoyment of employment

privileges and benefits or to pursue therapy or treatment.” Jd.

at 515, n.9.

The Seventh and Ninth Circuits have reached the same

conclusion in both ADA and Rehabilitation Act cases. See

Homeyer v. Stanley Tulchin Assocs., Inc., 91 F.3d 959 (7th

Cir. 1996); McWright v. Alexander, 982 F.2d 222 (7th Cir.

1992); and Buckingham v. United States, 998 F.2d 735 (9th

Cir. 1993). See discussion in Petitioner’s Brief at 23-26.

The Burch Court’s interpretation also contradicts the plain

language of the EEOC’s implementing regulations and inter-

pretative guidance. The regulations do not limit reasonable

accommodations to those that enable the individual to per-

form the essential functions of the job (29 C.F.R.

|

18

§ 1630.2(0)(11)), but rather include accommodations “that en-

able a covered entity’s employee with a disability to enjoy

equal benefits and privileges of employment as are enjoyed

by its other similarly situated employees without disabilities.”

29 C.F.R. § 1630.2(0)(iii). As an example of such an accom-

modation, the interpretative guidance suggests the “use of ac-

crued paid leave or providing additional unpaid leave for

necessary treatment....” App. to 29 C.F.R. § 1630.2(0).

The interpretive guidance further provides that “[i]f an in-

dividual is substantially limited in any other major life activ-

ity, no determination should be made as to whether the

individual is substantially limited in working.” App. to 29

C.F.R. § 1630.2(j). Nowhere do the regulations or interpreta-

tion provide that this provision only applies to intentional dis-

crimination claims.

The Burch court’s unprecedented holding rests on the

faulty premise that an employer would have nothing to ac-

commodate if the ability to work were not limited. Under this

rationale, employers would not need to build ramps, provide

accessible toilets, or modify work schedules because such ac-

commodations do not address a work-related impairment.

“~~ Clearly, the ADA does not limit the reasonable accommoda-

tion requirement to individuals with impairments that sub-

stantially limit their ability to work.

Il. COCA-COLA’S REFUSAL TO PERMIT

MR. BURCH TO RETURN TO WORK AFTER A

LEAVE OF ABSENCE MAY BE CHALLENGED

AS A VIOLATION OF THE REASONABLE

ACCOMMODATION REQUIREMENT

For individuals who are alcohol dependent, a leave of ab-

sence to obtain treatment is often necessary and, as noted

above, is certainly the type of job modification that is con-

templated under the ADA. As the Court noted in Office of

Senate Sergeant at Arms v. Office of Senate Fair Employment

Practices, 95 F.3d 1102, 1107 (Fed. Cir. 1996), “Treatment

would seem to be essential to any accommodation for alco-

holism.” Yet, the Fifth Circuit’s strained formulation of leave,

19

i.e., coming back to work is not a component of a medical

leave, renders this accommodation meaningless. No employee

would request a medical leave for any disability, if there were

no guarantee that he or she could return to work after treat-

ment.

As a matter of law, nothing in the ADA precludes Mr.

Burch from challenging Coca-Cola’s refusal to let him return

from leave as a violation of the reasonable accommodation

requirement. While Coca-Cola’s actions may be more easily

understood as a discriminatory discharge, that does not mean

that Coca-Cola did not also violate its statutory duty to pro-

vide a reasonable accommodation. There is no accommoda-

tion if the leave is cut short through suspension or discharge.

This is no different than a claim against an employer who,

when faced with a request for an accommodation, fires the

employee instead. In such cases, a reasonable accommodation

claim exists. See e.g., Whitbeck v. Vital Signs, Inc., 116 F.3d

588 (D.C. Cir. 1997) (sales representative with a spinal cord

tumor whose employer terminated her after refusing her ac-

commodation request to use a motorized cart states a reason-

able accommodation claim); Riel v. Electronic Data Systems

Corp., 99 F.3d 678 (Sth Cir. 1996) (engineer with renal con-

dition who was discharged after requesting a reasonable ac-

commodation stated a reasonable accommodation claim); and

Miller v. Runyon, 77 F.3d 189 (7th Cir. 1996) (employee’s

claim that the Postal Service violated its obligation to provide

reasonable accommodation, when it refused his transfer re-

quest and terminated him, has merit under the Rehabilitation

Act).

Similarly, in this case, Mr. Burch is entitled to challenge

Coca-Cola’s refusal to provide a leave of absence as a viola-

tion of the reasonable accommodation requirement.

20

CONCLUSION

For the above reasons, a writ of certiorari should be issued

to review the decision of the Fifth Circuit Court of Appeals.

Respectfully Submitted,

ELLEN M. WEBER*

SALLY FRIEDMAN

PAUL N. SAMUELS

LEGAL ACTION CENTER

236 Massachusetts Avenue, N.E., Suite 505

Washington, D.C. 20002

(202) 544-5478

Fax: (202) 544-5712

Attorneys for Amici Curiae

*Counsel of Record

Dated: Washington, D.C.

December 11, 1997