Hazlett v. Martin Chevrolet, Inc.

Locher, J. The issue before us is whether drug addiction and alcoholism are handicaps as defined in R.C. 4112.01(A)(13). Pursuant to — 280 — the discussion that follows we find for appellee and hold that drug addiction and alcoholism are handicaps as defined by R.C. 4112.01(A)(13). R.C. 4112.01(A)(13) states that “ ‘[hjandicap’ means a medically diagnosable, abnormal condition which is expected to continue for a considerable length of time, whether correctable or uncorrectable by good medical practice, which can reasonably be expected to limit the person’s functional ability, including, but not limited to, seeing, hearing, thinking, ambulating, climbing, descending, lifting, grasping, sitting, rising, any related function, or any limitation due to weakness and significantly decreased endurance, so that he can not perform his everyday routine living and working without significantly increased hardship and vulnerability to what are considered the everyday obstacles and hazards encountered by the nonhandicapped.” R.C. 4112.02 indicates that “it shall be an unlawful discriminatory practice” to discharge, without just cause, an individual on the basis of, inter alia, a handicap. In the course of the evidence adduced below, the unrebutted deposition of Dr. Edward Novasel, a physician in general practice, indicated that drug addiction creates in its victims a debilitating chemical imbalance that is an abnormal physical condition. Such condition limits the user’s functional ability, including physical endurance, mental capacity and judgment. While treatment of a drug addiction may cause the condition to go into remission, the effects of the drug may remain for a considerable period of time. It is clear to us that alcohol and/or drug addiction falls within the ambit of R.C. 4112.01(A)(13). A number of courts have reviewed this issue and have come to the conclusion that drug and/or alcohol addiction is a handicap. In Davis v. Bucher (E.D. Pa. 1978), 451 F. Supp. 791, it was determined that “* * *[d]rug addiction is a serious public problem. It is therefore not surprising that Congress would wish to provide assistance for those who have overcome their addiction and give some support and incentive for those who are attempting to overcome it.* * *” Id. at 796. Although the basis for the Davis decision, the Rehabilitation Act of 1973, Section 701 et seq., Title 29, U.S. Code, was subsequently amended to exclude alcoholism and drug addicts whose “current” abuse prevented the proper performance of their jobs, no suggestion or amendment has been made to indicate a prior abuse or condition in remission would not be a handicap as articulated in Davis. See, also, Whitaker v. Bd. of Higher Edn. of New York (E.D.N.Y. 1978), 461 F. Supp. 99, 106 (no basis found to challenge characterization of alcoholism as a handicap). In Consolidated Freightways, Inc. v. Cedar Rapids Civil Rights Comm. (Iowa 1985), 366 N.W. 2d 522, the Iowa Supreme Court held that alcoholism could constitute a handicap and protected disability under a civil rights ordinance. Similarly, in Squires v. Labor & Industry Review Comm. (1980), 97 Wis. 2d 648, 294 N.W. 2d 48, it was undisputed that the employee there was handicapped by reason of his alcoholism. — 281 — The threads that run through these cases are first, that alcoholism and/or drug addiction is a handicap and second, if an individual, because of alcoholism and/or drug addiction is unable to perform his or her responsibilities, he or she may be lawfully discharged. We do not depart from these rules today. In the present case evidence demonstrated that on several occasions appellant had granted disability or sick leave for employees. In one instance three or four weeks’ leave was granted for phlebitis; in another, four weeks’ leave was allowed for a heart attack. Most importantly, the unrebutted testimony of appellant’s own witness, general manager Arthur Sweet, indicated that appellee was doing a good job: “Jim was doing a good job. I can’t say that at all times I was satisfied, but he was doing a good job. His figures and reports looked good.” Moreover, when appellant was notified by the OCRC that drug addiction was a handicap, Sweet asked appellee if he could come back to work. Appellee testified that when he spoke with Sweet he asked for leave of “28 days or a month. And at that time Mr. Sweet expressed what I determined was concern. And he had the attitude of gees, what the matter? [Sic.] And I told him at that time that I had problems with drugs and alcohol. And it was at that time that he told me that that hit him like a ton of bricks. And he’d have to terminate me. They’d have to replace me.” In contrast, Sweet testified that the reason for termination was that appellant could not do without appellee for the requested length of time. Insofar as due deference must be given to the administrative resolution of evidentiary conflicts, Univ. of Cincinnati v. Conrad (1980), 63 Ohio St. 2d 108, 111 [17 O.O.3d 65], sufficient evidence was adduced for us to conclude that the commission’s findings were supported by reliable, probative, and substantial evidence. Plumbers & Steamfitters Commt. v. Ohio Civil Rights Comm. (1981), 66 Ohio St. 2d 192 [20 O.O.3d 200], paragraph two of the syllabus; R.C. 4112.06(E). We uphold such findings and affirm the determination by the court below of the commission’s decision. Some additional observations are in order to insure that our decision herein is not misconstrued. Today, we have not endorsed drug addiction or alcoholism. Where chemical dependency adversely affects job performance an employer is clearly within its rights to discharge the employee. Where, as in the instant case, an employee is discharged in contravention of statute on the basis of a handicap, the consequence of such action resulting in a judgment for the employee is appropriate. To prove a prima facie case of handicap discrimination the commission must show not only that the complainant was handicapped and that the action was taken by the employer, at least in part, because the complainant was handicapped, but, further, that the complainant, though handicapped, can safely and substantially perform the essential function of the job in question. Ohio Adm. Code 4112-5-02(J). It is absurd to state, as the dissent does below, that the appellate decision stands for the proposition that — 282 — “drug users, abusers, and pushers * * * have more rights and better rights than the balance of society.” One measure of a culture’s viability and maturity is established by how well it addresses its problems. We gain nothing by pretending alcoholics and drug addicts can solve their problems without help or that substance abuse problems do not exist. By affirming that alcoholics and drug addicts are handicapped, to the extent that a dependency exists and has not yet compromised work skills, we seek to deal with a problem at a point where these individuals are still productive members of society, can still be helped, and still have the incentive to help themselves. Beyond this point the statute does not protect the chemically dependent individual. It is with these considerations in mind that we hold that drug addiction and alcoholism are handicaps as defined in R.C. 4112.01(A)(13) and affirm the judgment of the court below. Judgment affirmed. Celebrezze, C.J., C. Brown and Wright, JJ., concur. Sweeney and Douglas, JJ., concur in judgment only. Holmes, J., concurs in part and dissents in part.