Babcock & Wilcox Co. v. Ohio Civil Rights Commission

Holmes, J.,

concurring. In Hazlett v. Martin Chevrolet, Inc. (1986), 25 Ohio St. 3d 279, 25 OBR 331, 496 N.E. 2d 478, in my concurring and dissenting opinion at 282, 25 OBR at 334, 496 N.E. 2d at 481, I agreed that one should not be the object of discriminatory treatment on account of former status as a drinking alcoholic, and that such persons who have recognized their problem and are undertaking rehabilitation are under the protections of R.C. 4112.01 et seq. However, this chapter provides in unambiguous terms that the statute shall not “be construed to require a handicapped person to be employed or trained under circumstances that would significantly increase the occupational hazards affecting either the handicapped person, other employees, the general public, or the facilities in which the work is to be performed, or to employ or train a handicapped person in a job that requires him routinely to undertake any task, the performance of which is substantially and inherently impaired by his handicap.” R.C. 4112.02(L). Consequently, while mere status as an alcoholic may not be the per se basis for a hiring or firing decision, those job-related *225debilitations which flow from the inordinate and habitual consumption of alcohol are most certainly factors which a responsible employer may, and indeed must, consider as part of such decision.

Recognizing the potentiality of accidents or injuries to the handicapped person and his co-workers, as well as the likelihood of other workplace problems, if employers were required to literally comply with R.C. 4112.02(E), the General Assembly excepted certain considerations. Under subsection (0), employers are permitted to “(1) [establish bona fide employment qualifications reasonably related to the particular business or occupation which may include standards for skill, aptitude, physical capability, intelligence, education, maturation, and experience.”

By way of analogy, those afflicted with alcoholism often suffer impairment of “skill, aptitude, physical capability, intelligence, [and] education.” Such persons may be further plagued by lethargy, psychological disorders and/or inability to resist becoming intoxicated while at work. It is only rational that employers have the legal ability to take notice of such factors.

In order for the petitioner, in the case subjudice, to fall within the purview of the chapter, there must be a showing by substantial, reliable, and probative evidence, that the complainant was either an alcoholic or that he was a recovering alcoholic at the time of the interview upon which both decisions to refuse employment were made. One who claims to be an alcoholic, or a recovering alcoholic, must shoulder the burden of proof himself, not merely by his own affirmation that he was an alcoholic or that, having been such, he no longer drinks. His word would only be credible, according to all the testimony before, and findings of, the Civil Rights Commission, if he in fact had recognized the problem and was reasonably attempting to meet it.

It appears that there was no showing in the record that complainant had ever been diagnosed as an alcoholic by anyone but himself. He has not, during the time in question, entered into any hospital program for detoxification, nor had he been seen by any physician, psychiatrist, or psychologist. No medically qualified person testified before the commission that complainant either was or had been an alcoholic, or that he was a non-drinking alcoholic at the time of the job interview.

Although he had never examined or diagnosed complainant’s condition, the sole medical expert testified for complainant at the commission hearing. He established that an alcoholic who merely “swore off” alcohol, but who had not participated in a hospital detoxification program, would have a poor chance of successfully combating his addiction, even if he voluntarily attended support group meetings. The expert further testified that, in order to be considered a recovered alcoholic, one must have successfully overcome his alcoholism for “a few years, at least.” While there may be provable, individual variations, this assessment generally seems to be reasonable. Accordingly, and as per my concurrence in Hazlett, supra, those alcoholics who may receive protection against discriminatory treat*226ment must be limited to those who are shown to be alcoholics and who have demonstrated reasonable measures for recovery and thus deserve the benefit of the doubt.

The commission found that complainant’s rejections from the applied-for position “were related to complainant’s alcoholism * * * [and that his] alcoholism was a factor in respondent’s refusal to consider him for employment * * *.” (Emphasis added.) There are, of course, several difficulties with the above findings. It is beyond dispute that employers have full discretion to hire whomever they please, so long as they do so on the basis of neutral considerations, even if a particular handicap is brought to the attention of the employer. The case before us would appear to be an example of an evaluation based upon factors which were not only neutral but well-established at the company. One example of a legitimate employer concern is found in what appears to be a clearly expressed company policy regarding employee absences. Testimony was to the effect that at the end of each of the more than thirty-five interviews, the interviewer informed the applicants that the company had a strict policy requiring mandatory attendance. Later, one of those hired was terminated because he missed two days of work during the sixty-day probation period. This would seem to constitute a bona fide attendance requirement, which, in light of complainant’s admission that his “drinking problem” had caused him attendance problems in the job he then held, might constitute a sufficient reason for refusal to hire.

Also, specific job requirements are for an employer to determine, including both the tangible, easily explained criteria as well as the inherently subjective values which may be desired in a prospective employee. In the case here, the interviewer possessed an engineering degree with electrical engineering course work. Of those hired, most also had advanced course work in electronics. Several had associate degrees, and one had nearly earned an electrical engineering degree. The others appeared to have vast experience and skills. Complainant’s application may reasonably be evaluated in light of these actions by the employer.

Testimony by the employer that it selected those who individually and subjectively demonstrated a positiveness and eagerness to learn more should be given great weight. While such factors may be less readily demonstrated, it is also commonly understood that such factors are of immense, long-term benefit to employers, generally. On the other hand, the mere fact that a non-drinking alcoholic applies for a position does not entitle him to any more special consideration than may be voluntarily extended. Moreover, an assertion that he fulfills all of the company’s job requirements must be supported by evidence, not of mere belief that he could perform the assigned tasks, but that he was in fact fully qualified and was overlooked because of his former status as an alcoholic. This latter fact is not proved or inferred when the only evidence provided is that the employer did not hire complainant, but chose others instead.

*227Peripherally, it would seem that the hiring decisions were based upon neutral criteria and that complainant, among others, did not qualify. Complainant’s poor performance upon the first interview may have provided an ample basis upon which to continue to refuse hiring in the subsequent confrontations. However, these determinations must be made at the trial court level in view of this court’s holding in Hazlett.

Accordingly, I concur in the judgment that this case be remanded to the court of common pleas for further determination.