The Court notes, however, that there is authority holding that the activation of previously imposed (but suspended) disciplinary measures may be improper on the ground that, contrary to the intent of the Alcohol Rehabilitation Act, it treats an employee handicapped by alcoholism punitively. See Walker v. Weinberger, 600 F. Supp. 757, 760, 762 (D.D.C. 1985).See supra note 14.

Appellant correctly points out that alcoholism is considered a handicap under the antidiscrimination sections of the Federal Rehabilitation Act of 1973. See, e.g., Ferguson v. United States Dep't of Commerce, No. 86-079-CIV-T-17, slip op. (M.D. Fla. Mar. 1, 1988); Walker v. Weinberger, 600 F. Supp. 757, 761 (D.D.C. 1985); Whitlock v. Donovan, 598 F. Supp. 126, 129 (D.D.C. 1984), aff'd sub nom. Whitlock v. Brock, 790 F.2d 964 (D.C. Cir. 1986).

However, the agency is obligated before removing the employee from its work force to evaluate whether keeping the employee presents an undue hardship. . . . If removal seems to be the only feasible option, the agency is obligated to conduct a formal evaluation, including a fitness-for-duty examination if necessary, to confirm whether the employee's alcoholism disease is in fact responsible for the employee's poor performance. If so, the agency must offer leave without pay if the employee will seek more extensive rehabilitative therapy that seems promising, and the agency must also counsel the employee regarding the disability.See Callicotte, 698 F. Supp. 944 (Parker, J.); Whitlock, 598 F. Supp. 126 (Gesell, J.); see also Lemere v. Burnley, 683 F. Supp. 275 (D.D.C. 1988) (Revercomb, J.); Walker v. Weinberger, 600 F. Supp. 757 (D.D.C. 1985) (Jackson, J.).Whitlock, 598 F. Supp. at 133-34.

Id. at 133-134. Accord Walker v. Weinberger (D.D.C. 1985), 600 F. Supp. 757; Burchell v. Dept. of Army (D.S.C. 1988), 679 F. Supp. 1393. The duty to accommodate a handicap attaches only when an employer knows of the handicap, or should have known of the handicap from knowledge of factors from which the handicap might reasonably be inferred.

The Rehabilitation Act requires employers to make reasonable accommodation for handicapped employees, which the Agency failed to do in Ms. Callicotte's case. It is inconsistent with the legislative perception of alcoholism as a disease to allow the use of pre-treatment records, conceded to be attributable to alcohol abuse, for disciplinary purposes. See Walker v. Weinberger, 600 F. Supp. 757, 762 (D.D.C. 1985) (ordering pre-treatment violations excluded from compilation of subsequent disciplinary record). Furthermore, prior to the Court's intervention, the Agency failed to take sufficient steps to accommodate plaintiff's disability.

Numerous courts have at least implicitly agreed with this view insofar as § 504 suits have been entertained when an employee's termination was prompted by substance abuse-related or -induced conduct. See, e.g., Rodgers v. Lehman, 869 F.2d 253, 254 (4th Cir. 1989); Callicotte v. Cheney, 744 F.Supp. 3, 4 (D.D.C. 1990); McElrath v. Kemp, 741 F.Supp. 245, 246 (D.D.C. 1989); Nisperos v. Buck, 720 F.Supp. 1424, 1426 (N.D.Cal. 1989); see also Walker v. Weinberger, 600 F.Supp. 757, 761 (D.D.C. 1985). We hold therefore that termination by an employer subject to the Act which is justified as being due to absenteeism shown to be caused by substance abuse is termination "solely by reason of" that substance abuse for purposes of § 504.

We are aware that two decisions of district courts have interpreted the ADA to require an accommodation which includes what amounts to a fresh start, viz., expungement of records and forgiveness of past misconduct. See Callicotte v. Carlucci, 731 F. Supp. 1119, 1121-22 (D.D.C. 1990); Walker v. Weinberger, 600 F. Supp. 757, 762 (D.D.C. 1985). We have considered those decisions, but are not persuaded by them.

Accordingly, someone with an alcohol problem, like a mentally impaired individual, must be afforded a reasonable accommodation pursuant to the Fair Housing Act. Samaritan Inns v. District of Columbia, 11 Am. Disabilities Dec. 1166 (D.D.C. 1995), aff'd in relevant part, 325 U.S.App.D.C. 19 (1997); Walker v. Weinberger, 600 F. Supp. 757 (D.D.C. 1985); Robinson v. Devine, 37 Fair Empl. Prac. Cas. (BNA) 728 (1985).In re Melton, 597 A.2d 892, 897 (D.C. 1991) (en banc).

Alcohol abuse, like mental impairment, is a "handicap" that can serve as the basis for a discrimination claim under the Fair Housing Act, 42 U.S.C. § 3602(h)(1)-(3) (2000); H.R. Rep. No. 100-711, at 22 (1988), reprinted in 1988 U.S.C.C.A.N. 2173, 2183 (making clear Congress's intent that the Fair Housing Act's definition of "handicap" be interpreted and regulated consistently with the same term in the Rehabilitation Act of 1973); United States v. Southern Mgmt. Corp., 955 F.2d 914 (4th Cir. 1992). Accordingly, someone with an alcohol problem, like a mentally impaired individual, must be afforded a reasonable accommodation pursuant to the Fair Housing Act. Samaritan Inns v. District of Columbia, 11 Am. Disabilities Dec. 1166 (D.D.C. 1995), aff'd in relevant part, 325 U.S.App. D.C. 19, 114 F.3d 1227 (1997); Walker v. Weinberger, 600 F.Supp. 757 (D.D.C. 1985); Robinson v. Devine, 37 Fair Empl. Prac. Cas. (BNA) 728 (D.D.C. 1985). It is not entirely clear whether the court was saying that individuals with Sutton's and Byrd's training and experience were not qualified to opine on "mental impairment" under the Fair Housing Act, or was saying merely that the two witnesses, while perhaps generally qualified for this purpose, did not impress the court enough to justify crediting their testimony in this particular case.