Babcock & Wilcox Co. v. Ohio Civil Rights Com'n

• Decision Date: 15 July 1987
• Docket Number: No. 86-1063,86-1063
• Citation: 31 Ohio St.3d 222,31 OBR 430,510 N.E.2d 368
• Parties: , 52 Fair Empl.Prac.Cas. (BNA) 1790, 46 Empl. Prac. Dec. P 37,880, 31 O.B.R. 430, 1 A.D. Cases 1117 BABCOCK & WILCOX COMPANY, Appellee, v. OHIO CIVIL RIGHTS COMMISSION, Appellant.
• Court: Ohio Supreme Court

Page 222

31 Ohio St.3d 222

510 N.E.2d 368, 52 Fair Empl.Prac.Cas. (BNA) 1790,

46 Empl. Prac. Dec. P 37,880, 31 O.B.R. 430,

1 A.D. Cases 1117

BABCOCK & WILCOX COMPANY, Appellee, v. OHIO CIVIL RIGHTS COMMISSION, Appellant.

No. 86-1063.

Supreme Court of Ohio.

July 15, 1987.

William Wirth, Jr. ("Wirth") filed an affidavit with appellant, Ohio Civil Rights Commission ("commission"), alleging that appellee, Babcock & Wilcox Company ("B & W"), refused to hire him as an electrician because of his handicap of alcoholism. The commission investigated Wirth's charge and found probable cause that B & W had engaged in discriminatory practices in violation of R.C. 4112.02(A). After efforts towards conciliation failed, the commission held an evidentiary hearing before an examiner who found that Wirth was a recovering alcoholic, that alcoholism was a handicap within the definition of R.C. 4112.01(A), and that Wirth was rejected from employment because of his alcoholism. The hearing officer recommended that B & W offer Wirth a position as an electrician or a similar position and pay him back wages. B & W filed objections to the hearing examiner's report with the commission, which upon consideration of the hearing examiner's report and the briefs of the parties, issued a final order which incorporated the hearing officer's recommendations and found that B & W had violated R.C. 4112.02(A).

B & W appealed the commission's decision to the Stark County Court of Common Pleas pursuant to R.C. 4112.06. On October 7, 1985, the trial court issued a memorandum decision which stated in its entirety that "the decision of the Ohio Civil Rights Commission is hereby reversed. Plaintiff-petitioner to prepare journal entry for this court's signature." A judgment entry, which stated that the commission's findings were not supported by reliable, probative and substantial evidence was prepared by counsel for B & W, signed by the court and filed on October 17, 1985.

On appeal, the court of appeals affirmed the trial court's decision, holding that the trial court "ruled correctly as a matter of law in reversing the Commission's order." The court of appeals premised its affirmance " * * * upon the narrow ground that the complainant Wirth's alcoholic condition is not a 'handicap' as defined in R.C. 4112.01(A)(13), or as 'handicap' is applied in R.C. 4112.02." The court further explained: "[I]n other words, no handicap existed as a matter of law to effectively 'trigger' R.C. 4112.02."

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Appeal from the Court of Appeals for Stark County.

Buckingham, Doolittle & Burroughs, John T. Billick, Akron, Sullivan & Cromwell and William A. Ziegler, New York City, for appellee.

Anthony J. Celebrezze, Jr., Atty. Gen., and Sherrie J. Passmore, Columbus, for appellant.

PER CURIAM.

In Hazlett v. Martin Chevrolet, Inc. (1986), 25 Ohio St.3d 279, 25 OBR 331, 496 N.E.2d 478, syllabus, we held that "[d]rug addiction and alcoholism are handicaps as defined in R.C. 4112.01(A)(13)." Since Hazlett was decided after the court of appeals issued its decision in this cause, neither of the lower courts had the benefit of that decision. Therefore, we must reverse the decision of the court of appeals which directly contradicts our holding in Hazlett and remand this matter to the trial court for reconsideration, in light of Hazlett, of the issue of whether Wirth was impermissibly rejected by B & W because of his handicap. ¹

Judgment reversed and cause remanded.

MAHONEY, GEORGE, WRIGHT and HERBERT R. BROWN, JJ., concur.

HOLMES, J., concurs separately.

MOYER, C.J., dissents.

DOUGLAS, J., dissents with opinion.

MAHONEY, J., of the Ninth Appellate District, sitting for SWEENEY, J.

GEORGE, J., of the Ninth Appellate District, sitting for LOCHER, J.

GEORGE, Judge, concurring.

Neither the trial court nor the court of appeals had the opportunity to view this case in the context of Hazlett v. Martin Chevrolet, Inc. (1986), 25 Ohio St.3d 279, 25 OBR 331, 496 N.E.2d 478. Thus, neither court looked at the merits of the case, but rather decided the case on a question of law, i.e., that alcoholism was not a handicap as that term is defined in R.C. 4112.01(A)(13). Since neither the trial court nor the appellate court had the benefit of the Hazlett decision, it is appropriate that each court should be given the opportunity to view this case in the light of that pronouncement.

On remand, the trial court must determine as a matter of law whether the Ohio Civil Rights Commission's determinations, finding Wirth to be an alcoholic, and finding that his job rejections were related to his alcoholism, are supported by reliable, probative and substantial evidence. R.C. 4112.06(E). See Hazlett, supra, at 281, 25 OBR at 333, 496 N.E.2d at 480. The trial court is obligated to review the evidence presented to the commission, particularly as it addresses the determinative issues. In this review, the trial court must determine whether the evidence sufficiently supports the commission's finding of a handicap discrimination. If the findings are supported by reliable, probative and substantial evidence, they are conclusive and should be affirmed. South Wind Motel v. Ohio Civil Rights Comm. (1985), 24 Ohio App.3d 209, 24 OBR 386, 494 N.E.2d 1158. However, if the findings are based upon evidence which is not reliable, such as when inferences are improperly drawn from the evidence, they are legally deficient and thus should be reversed. Plumbers & Steamfitters Commt. v. Ohio Civil Rights Comm. (1981), 66 Ohio St.2d 192, 200, 20 O.O.3d 200, 205, 421 N.E.2d 128, 133; Republic Steel Corp. v. Hailey (1986), 30 Ohio App.3d 103, 30 OBR 202, 506 N.E.2d 1215, paragraph two of the syllabus.

Not every person claiming to be alcoholic is an alcoholic for the purposes of an action under R.C. Chapter 4112. R.C. 4112.01(A)(13) defines a handicap as a " * * * medically diagnosable, abnormal condition * * *." In Hazlett, the drug addiction recognized by this court as a handicap was supported by both a treating physician and a drug counselor. Something more than the self-serving testimony of the person claiming the handicap might be needed to demonstrate an otherwise hidden disability. Whether the person actually has such a handicap and whether the handicap would affect job performance are factual determinations to be made in each case.

MAHONEY and WRIGHT, JJ., concur in the foregoing opinion.

HOLMES, Justice, 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 debilitations 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 work-place problems, if employers were required to literally comply with R.C. 4112.02(E), the General Assembly excepted certain considerations. Under subsection (O), employers are permitted to "(1) [e]stablish 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 sub judice, 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...