This is a suit under the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq., and, because the plaintiffs employer is a recipient of federal funds, also under the Rehabilitation Act, 29 U.S.C. §§ 701 et seq. The district court granted summary judgment for the defendants, and the plaintiff appeals.
Mr. Despears worked as a maintenance worker for a public medical facility. His work involved occasional-driving, to deliver parts; and a regulation of the employer required workers in his job classification to have a valid driver’s license. Despears’ license was revoked after he was convicted a fourth time of driving under the influence of alcohol. Upon learning of the revocation, his employer demoted Despears to custodial worker, a job сlassification that does not involve any driving and does not require that the worker have a driver’s license — and that pays less. Despears attributes the loss of his license to his having been an alcoholic, and the defendants do not deny that alcoholism is a disability within the meaning of both statutes. Te
ahan v. Metro-North Commuter R.R.,
Although something like a third of all drivers who are convicted for driving under the influence of alcohol are not alcoholics in the sense of persistent alcohol abusers (Transportation Research Board of thе National Research Council, “Strategies for Dealing with the Persistent Drinking Driver,” pp. 1, 21 (Transportation Research Circular No. 437, Feb. 1995); Eric J. Gouvin, Note and Comment, “Drunk Driving and the Alcoholic Offender,” 12
American Journal of Law & Medicine,
99,116 (1986)), and although many alcoholics refrain from driving while under the influence of alcohol, there is no doubt (though we cannot find any statistics on the question) that an alcoholic is more likely than a nonalcoholic to lose his license because of drunk driving. The high fraction of alcoholics among persons convicted of drunk driving implies this, as does the fact that the set of nonalcoholics includes many people who do not drink at all and therefore never lose their license because of drunk driving. So alcoholics are more likely, probably much more likely, to lose their driver’s license because of drunk driving than people who are not alcoholics, and this is enough to show that therе is a causal relation between Despears’ alcoholism and his demotion. We may assume, because he claims not implausibly and there is no contrary evidence аt this stage, that he would not have been convicted four times of drunk driving had he not been an alcoholic and that his alcoholism also made it anteced-ently more probаble that he would be convicted. A necessary condition that makes the event of which it is a condition more likely to occur is a “cause” for most purposes in law,
Brackett v. Peters,
But a cause is not a compulsion (or sole cause); and we think the latter is necessary to form the bridge that Despears seeks to construct between his alcoholism and his demotion. If being an alcoholic he could not have avoided becoming a drunk driver, then his alcoholism was the
only
cause of his being demoted, and it would be as if the employer’s regulation had said not that you must have a valid driver’s license to be a maintenance worker but that you must not be an alcoholic. But Despears’ alcoholism was not the only cause of his being convicted of drunk driving. Another cause was his decision to drive while drunk. Some alcoholics are drunk all the time, but obviously not all — and not Despears, since if he were drunk all the time he could not function as a custodial worker, let alone аs a maintenance worker. The criminal law, by refusing to recognize alcoholism as a defense to a charge of driving under the influence of alcohol, takes the not irrational position that alcoholics
are
capable of avoiding driving while drunk. “[E]ven among many who consider alcoholism a ‘disease’ to which its victims are genetically predisposed, the consumption of alcohol is not regarded as wholly involuntary,”
Traynor v. Turnage,
But we have drifted from the point, which is simply that the criminal law рroceeds on the premise that even alcoholics can avoid driving while under the influence of alcohol. And if this is so, then Despears despite his alcoholism could have avoided the demotion of which he complains by avoiding driving while drunk. His disability concurred with a decision to drive while drunk to produce the loss of license and resulting demotion. The disаbility contributed to but did not compel the action that resulted in the demotion.
To impose liability under the Americans with Disabilities Act or the Rehabilitation Act in such circumstances would indirectly but unmistakably undermine the laws that regulate dangerous behavior. It would give alcoholics and other diseased or disabled persons a privilege to avoid some of the normal sanctions for criminal activity. It would say to an alcoholic: We know it is more difficult for you to avoid committing the crime of drunk driving than it is for healthy people, and therefore we will lighten the sanction by letting you keep your job in circumstances where anyone else who engaged in the same criminal behavior would lose it.
The refusal to excuse, оr even alleviate the punishment of, the disabled person who commits a crime under the influence as it were of his disability yet not compelled by it and so not excused by it in the eyes of the criminal law is not “discrimination” against the disabled; it is a refusal to discriminate in their favor. It is true that the Americans with Disabilities Act and the Rehabilitation Act require the employer tо make a reasonable accommodation of an employee’s disability, but we do not think it is a reasonably required accommodation to overlook infractions of law. Leary v. Dalton, supra, at 753.
We can imagine a slightly different case in which Despears would stand on firmer ground. Suppose when he was hired by the medical facility he told his employer, “I dare not drive because of my alcoholism, and therefore I ask you to excuse me from having to have a driver’s license to be a maintenance worker, since driving is not an essential part of the job.” That would be a request for an accommodation, rather than a request to be excused from a consequence of criminal activity. The latter requеst seems to us to have no status in the law of disability discrimination, save possibly in the case, if there is such a case — if the Eighth Amendment allows there to be a ease — where the disability itself, or an inevitable rather than merely likely consequence of it, is the crime.
AFFIRMED.