Alcoholism As a Disability Under the New Jersey Law Against Discrimination: An Anniversary

On this date in 1988, the Supreme Court decided Clowes v. Terminix Int’l, Inc., 109 N.J 575 (1988). The Court’s unanimous opinion, written by Justice Clifford, stated that “[t]he principal issue posed by this appeal is whether alcoholism is to be deemed a handicap under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -42” (“the LAD”).

Plaintiff had been employed by defendant as a pest control salesman. “His employment duties included inspecting properties for pests (e.g., roaches and the like), instructing property owners on preventive measures, prescribing a course of treatment to eliminate pests, and attempting to secure a contract with the property owners for that treatment.” Plaintiff and other Terminix salespeople were given targets of various types, such as how many sales calls they were to make each day, how many additional (that is, beyond sales leads that defendant provided to them) contacts and additional sales they were to generate, and how many sales each day they were required to close.

Defendant asserted that plaintiff was not meeting those metrics, and that defendant made a decision to terminate plaintiff at a certain point. But defendant did not terminate plaintiff until about two months later. In the interim, plaintiff entered and was later released from an alcohol rehabilitation facility. Defense witnesses testified that plaintiff’s alcoholism was not made known to them before plaintiff was discharged, and that plaintiff’s stint at the rehab facility did not enter into the decision to fire him.

Plaintiff filed a complaint with the Division on Civil Rights. He asserted that he had been fired due to his alcoholism, that alcoholism was a handicap (now we might say “disability” instead) under the LAD, so that his discharge violated the protections of the LAD. After a contested hearing, an Administrative Law Judge ruled that alcoholism was not a handicap covered by the LAD and that even if it were, plaintiff had failed to prove that the reasons given for his termination were pretextual. On review of that ruling, the Director of the Division on Civil Rights, disagreed, finding that alcoholism was a handicap and that plaintiff had proven pretext.

Terminix appealed to the Appellate Division. That court did not address whether alcoholism was a handicap under the LAD. Instead, it held that even if it were, plaintiff did not prove wrongful termination. The case then came to the Supreme Court.

Justice Clifford first discussed the standard of review because plaintiff contended that the Appellate Division applied de novo review instead of a more deferential standard generally afforded to agencies. No deference was due to the Director. Unlike the ALJ, who saw the witnesses, the Director relied on a cold written record. While courts do give a certain amount of deference to administrative determinations, if those determinations are “so wide of the mark” as to give rise to “a definite conviction” that “a mistake must have been made,” a court is justified in overturning the administrative agency. Justice Clifford held that the Appellate Division had applied an appropriate level of review.

That did not, however, resolve the question of alcoholism as a handicap, since the Appellate Division had not reached that issue. The Court was told that the Division frequently ruled that alcoholism was a handicap, and Justice Clifford “agree[d] with that proposition.” He traced how the LAD’s definition of “handicapped,” whose terms are broad to begin with, expanded in its coverage since the LAD’s enactment in 1945.

As explained before the ALJ by plaintiff’s expert, “and as generally understood by the medical profession, alcoholism is a disease that manifests itself by both physical and psychological symptoms. Depending on the symptoms presented in any one case, an alcoholic might suffer from either a “physical disability [or] infirmity * * * which is caused by illness,” or from a “mental [or] psychological * * * disability resulting from psychological, physiological or neurological conditions which * * * is demonstrable, medically or psychologically, by accepted clinical or laboratory diagnostic techniques,” N.J.S.A. 10:5-5(q), or both.” The Court therefore held that alcoholism was a handicap under the LAD. As further support, Justice Clifford cited cases form other jurisdictions that had so held under their own laws.

Plaintiff won that battle, but he lost the war. The Court went on to affirm the Appellate Division’s conclusion that plaintiff had not proven that “the stated reasons for his discharge were pretextual. Even more fundamentally, we believe that Clowes failed to meet his burden of establishing a prima facie case of unlawful discrimination, particularly in that his proof fell short of demonstrating that he was an alcoholic.” But the ruling that alcoholism is covered by the LAD has had lasting effect, and this decision continues to be cited, including as recently as this year.