On December 30, the USC Trojans take on the Wisconsin Badgers in the National University Holiday Bowl in San Diego, California. This will be USC’s second consecutive year to play in what some may amount to a home game based upon the fact it takes place in the Trojan’s home state. The Trojans are highly favored to walk away with a victory; however, this will not be the last matchup USC faces as a result of this tumultuous season. On December 7th, former USC head coach Steve Sarkisian, who was fired by email while on a plane to a treatment facility, filed a $30 million wrongful termination lawsuit against the school, alleging that he was protected from termination because of a disability – alcoholism.
How Did We Get Here?
Following Steve Sarkisian’s termination, numerous stories — some more believable than others — came to light:
BREAKING: #USC players said Sarkisian drank and passed out on flight back from Washington State game in 2014. Some reportedly took photos
— InsideUSC (@InsideUSC) October 11, 2015
BREAKING: Some #USC assistant coaches believed Steve Sarkisian was drunk during the Arizona State game on Sept. 26.
— InsideUSC (@InsideUSC) October 11, 2015
However, there is no dispute that the root of Sarkisian’s termination stems from Sarkisian’s actions at USC’s “Salute to Troy” pep rally, which took place August 22. The Salute to Troy is the official kickoff of USC’s football season and generally serves as a school-sponsored event for deep-pocket donors to partake in the celebration of what is assumed to be another successful year for the Fightin’ Trojans. However, on this specific occasion, Sarkisian appeared to take the festivities to another level, allegedly appearing visibly drunk and slurring his words. Then, this happened:
Due to the profanity and inability to complete his speech, Sarkisian was removed from stage by USC Athletic Director, Pat Haden, and was instructed to sign a letter, which among other things, required Sarkisian to issue a formal apology and attend weekly counseling sessions with a therapist employed by USC. The letter also ordered Sarkisian to refrain from any other conduct – especially conduct involving alcohol – that could be viewed as embarrassing to USC.
Then, on Sunday, October 11, following a Thursday night loss to the University of Washington, Sarkisian was scheduled to lead a team meeting. According to USC and multiple sources within the program, Sarkisian apparently showed up inebriated and appeared “not normal,” and as a result, was asked to leave; however, according to his Complaint, Sarkisian elected to leave upon his own volition.
In any event, Pat Haden called Sarkisian that night, and was informed by Sarkisian’s family members that the coach was not well and needed treatment. Later that night, Haden placed Sarkisian on indefinite leave and appointed Clay Helton as interim head coach. However, the following day, on a flight to receive inpatient treatment for alcoholism, Sarkisian was fired as USC’s Head Football Coach, leading to the wrongful termination lawsuit filed by Sarkisian against the university on December 7 for damages in excess of $30 million.
First Things First: What is the Law?
The crux of the dispute between Sarkisian and USC can be summed up into one question:
Did USC follow proper procedure in terminating Sarkisian in light of the fact he allegedly suffers from a disability (alcoholism) under California’s Fair Employment and Housing Act (FEHA)?
Like the Americans With Disabilities Act (ADA), FEHA protects employees from discrimination due to age, religion, race, gender, mental and physical disability, and a host of other protected categories. Specifically, and using a standard that sets a lower bar for classification as a disability than the ADA, FEHA states that alcoholism may be considered a disability if it limits major life activities of the individual suffering from the disease.
[pullquote align=”right” cite=”” link=”” color=”” class=”” size=””]Under FEHA, alcoholism may be considered a disability if it limits major life activities.[/pullquote]
Furthermore, FEHA prohibits an employer from failing to make a reasonable accommodation for an employee with a known disability. However, reasonable accommodations are not required if the implementation of such would cause an undue hardship – defined as an action requiring significant difficulty or expense – on behalf of the employer. Additionally, an employer may exempt itself from having to provide reasonable accommodations if it can demonstrate either of the following:
- The employee or applicant is unable to perform the essential functions of his or her job, and no reasonable accommodations exist that would allow the individual to perform the essential functions as required; OR
- The employee or applicant would create an imminent and substantial danger to himself/herself or others by performing the job, and no reasonable accommodations exist that would effectively remove or reduce such danger.
When an employee has a recognized disability – such as alcoholism – the employer must explore all possibilities for providing reasonable accommodations prior to making any employment-related decisions. As long as no undue hardship is imposed, the FEHA lists the following as examples of providing reasonable accommodations:
- Changing job duties
- Changing the work shift
- Accommodating work schedules
- Relocating the work area
Notably, when dealing with alcoholism, a commonly recognized form of reasonable accommodations is allowing the employee to go on an unpaid leave of absence while seeking medical treatment.
It is important to note the difference between those who suffer from alcoholism, and those who simply show up to work drunk on a routine basis. A person who likes to throw a bottle back before entering the workplace does not necessarily qualify as a protected class requiring reasonable accommodations under FEHA. While employers cannot fire individuals simply because of their status as an alcoholic, employers may fire those who actively drink or abuse alcohol on the job, or whose use of alcohol adversely affects job performance or conduct.
What is Sark Arguing?
Sarkisian’s Complaint – which can be found here – lists a total of 14 (!) causes of action, with the majority relying on whether Sarkisian was properly terminated according to California law. The main arguments by Sarkisian and his legal team all stem from whether USC provided Sarkisian with reasonable accommodations prior to his firing on October 12.
In the Complaint, Sarkisian states that USC had prior knowledge of his recognized disability at least as early as the beginning of the 2015 college football season due to his actions at the Salute to Troy pep rally and the fact USC forced him to sign a letter referring to and regarding such events. At that time, Sarkisian alleges that reasonable accommodations should have been made to help him obtain professional help so that he could return to his job at a later date, and the failure to provide such constitutes a civil offense under the FEHA.
What is USC Possible Defense?
In its defense, USC (although it has not yet filed a response to the Complaint) may allege that no such reasonable accommodations existed that would allow Sarkisian to maintain his position as Head Football Coach of the Trojan. For example, USC may point to the fact that changing job duties or work shifts would be impossible, as long hours are automatically inferred as part of a head football coach’s – especially a head coach for a football program of USC’s prestige and magnitude – job description, thereby making it an essential function of the job.
Additionally, relocating the work area would not be reasonable, as a coach’s work practically follows him wherever he goes. USC may also assert that an indefinite leave of absence would not be reasonable, because substantial time off would prevent Sarkisian from carrying out fundamental job duties, such as traveling to recruit high school athletes, or participating in fundraisers for the university. However, Sarkisian appears to preempt this argument by pointing out in his Complaint that interim head coach Clayton Helton could have handled each and every one of these duties to the satisfaction of USC, especially due to the fact he was subsequently promoted and the interim tag was removed from his title on November 30.
On the other hand, USC could go the direct route, challenge the truthfulness of Sarkisian’s Complaint, and state that it, in fact, did provide Sarkisian with reasonable accommodations and/or assistance, which he refused. USC already appears to be gearing itself up for such defense based upon the statement it released following the filing of the Complaint, in which the university claimed Sarkisian denied that he had a problem with alcohol, never asked for time off to seek help, and resisted efforts made by the school to provide him with assistance.
Furthermore, USC claims Sarkisian had prior notice that any detrimental conduct involving alcohol would lead to termination based upon the letter signed by Sarkisian after his actions at Salute to Troy. This defense serves as the basis for USC’s firing of Sarkisian “for cause,” which would allow USC to avoid paying Sarkisian for the remaining years of his contract.
What are the Next Steps?
Depending on the time USC was actually served with the Complaint, the school will have 30 days to file a formal response. Typically thereafter, the discovery process will begin for the purposes of obtaining admissible evidence that may be used by either party at trial.
However, the chance of Sarkisian receiving his day in court against his former employer is virtually non-existent. For one, over 90% of California civil cases are disposed of prior to trial, thereby making settlement (or pre-trial dismissal) the most likely scenario. Secondly, it can be presumed that neither party wants to continue mud slinging against the other, publicly or behind closed doors, based upon respective tertiary matters at stake.
[pullquote align=”left” cite=”” link=”” color=”” class=”” size=””]Over 90% of California civil cases are disposed of prior to trial, thereby making settlement (or pre-trial dismissal) the most likely scenario.[/pullquote]
Based upon the firm stance taking by USC and the assumption that the school has multiple records on file that may be used to substantially undermine Sarkisian’s claims, one would imagine that Sarkisian – now fully healthy, ready, and willing to coach – would like to resolve this matter as soon as possible in order to avoid any other negative information coming to light that may affect his future coaching prospects. Likewise, it could be imagined that USC – a school constantly fighting to achieve the #1 recruiting class in the country each year and to adhere to the high goals placed upon it by boosters and alumni – would also wish to resolve this matter so that it may focus its energy on maintaining the integrity of its program in the eyes of donors and potential recruits.
Also, should pre-trial discovery result in information leading to the conclusion that USC knew of Sarkisian’s past transgressions and allowed him to continue coaching, not only would that cast a negative light on the program, but such information could also lead to other action against USC for failing to act in a timely manner. Therefore, look for a settlement to be reached between these two adversaries sooner rather than later. If no settlement is achieved, this lawsuit could result in the toughest matchup USC has faced in some time, on or off the field.