STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

STEVEN M CHILIKAS, Complainant

CON-WAY CENTRAL EXPRESS, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199604829, EEOC Case No. 26G970283

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed April 19, 2000
chilist2.rsd : 164 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The resolution of this matter turns on the question of whether the respondent perceived the complainant as being an alcoholic. The administrative law judge found that it did not, and the commission agrees. Alcoholism is a disease whose diagnosis is a matter of expert medical opinion proved by a physician, and not by a layman. Connecticut General Life Ins. Co. v. DILHR, 86 Wis. 2d 393, 407 (1978).  To label or perceive someone as an alcoholic is a very serious judgment and requires behavior on the individual's part which reveals that the individual drinks consistently and frequently. Schaafs v. Schultz Sav-O-Stores (LIRC, November 6, 1986).  While, in this case, the complainant's two OWI convictions and the one instance in which he called in sick and then appeared at the respondent's premises under the influence of alcohol may have lead the respondent to believe that he had a drinking problem -- and even this much is arguable -- there is no evidence to suggest that the respondent perceived the complainant as suffering from the disease of alcoholism.  To the contrary, where the complainant was, with only one exception over the course of many years, able to report for work on time and in a fit condition and was able to maintain a current license, and where he never informed the respondent he was an alcoholic or provided it with any medical documentation showing this to be the case, the respondent had no reason to perceive the complainant as being an alcoholic and the commission credits its assertions that it did not.

In arguing that the respondent did, in fact, perceive him as an alcoholic, the complainant maintains that the respondent would not have referred him to the EAP or required him to abstain from the use of alcohol on or off duty if this were not the case. The commission is unpersuaded by this argument. At most, a referral to counseling and a requirement that he abstain from drinking establishes that the respondent believed the complainant had a drinking problem. However, for the reasons set forth above, the evidence in the record does not warrant a conclusion that the respondent actually perceived the complainant as having the disease of alcoholism, such as would render him "an individual with a disability," within the meaning of the law. Accordingly, dismissal of the complaint is appropriate.

cc:
Ellen M. Frantz
Christopher J. Johnson

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