It seems that a recent spate of employees, fired because of their use of controlled substances, have been finding novel methods of challenging their dismissals. First was Brian Milam, the Washington pilot who fought to be reinstated at his job after failing a random drug test and admitting to having used marijuana regularly. Now, an Oregon police officer is challenging his dismissal after a drunk-driving arrest.
Both Milam and the police officer in this case, Jason Servo, have unusual arguments in challenging their respective firings. While an out of court arbitrator found that the failure of Milam’s employer to follow its own dismissal procedures rendered his firing improper, Servo is arguing that his firing constituted a violation of the Americans with Disabilities Act (ADA).
Police Officer Fired After Drunk Driving Arrest – Claims ADA Violation
The Oregonian reports that in January of 2011, Servo, a Gresham city detective and his department’s lead firearms instructor, had taken a police car to a firearms training in a nearby city. After the training session, Servo and a few other Gresham officers went out for dinner and drinks, which Servo alleges was “an inherent part of the culture.” Driving back in the unmarked police car, Servo drove into a ditch and was arrested after refusing to take a Breathalyzer or any field sobriety tests.
Two months after his arrest, Servo pled guilty to driving while under the influence, entered a diversion program that led to his DUI being dismissed, and voluntarily entered an in-patient rehabilitation program where he was diagnosed as an alcoholic. Servo’s lawsuit claims that since alcoholism is a recognized disability under the ADA, he should not have been dismissed but that the city should have made some effort to accommodate his disability. He argues that the Gresham police department ignored his disability and fired him in order to save money.
Firing Might be Permissible Under the ADA
Servo will likely have an uphill battle making his case. First, the Equal Employment Opportunity Commission (EEOC) – the body tasked with making sure that all individuals are given equal opportunities in employment settings, without regard to issues like race, gender, or disability – has already distributed a fact sheet that contains a situation very similar to the Servo case. According to the EEOC, it would be proper to continue termination proceedings against a police officer who is arrested for a drunk driving accident, and after being fired, realizes in the course of treatment that he or she is an alcoholic.
Furthermore, Disability Rights Oregon – one of the state’s leading voices for the rights of disabled individuals – has cast doubt on the idea that the police department would not be allowed to fire Servo. Bob Joondeph, the executive director of Disability Rights Oregon, says that the ADA does not require employers to accommodate disabilities to the extent that doing so would put innocent people in danger.
It will be interesting to see how the courts will deal with Servo’s novel use of the ADA to contest his dismissal. If the court is convinced by his claim that the police department could have worked with him through his recovery, it might open up an entirely new space in employment litigation.
If you or someone you know believes that you have been treated unfairly at work because of a disability, please contact one of our attorneys, who can help you pursue your claim.
