Mental Disabilities in the Workplace
Employers face a host of thorny problems ranging from limits on independent psychiatric
evaluations to requests for accommodations of "stress."
By Stephen P. Sonnenberg
So, too, is the amount of employment litigation related to mental disabilities. Employees
previously reluctant or unable to litigate mental disability discrimination claims are doing
so with increasing frequency. As a result, employers face a host of thorny problems
ranging from limits on independent psychiatric evaluations to requests for
accommodation of "stress" and other vague, uncorroborated, or hidden emotional
problems. Familiarity with the ADA and its interpretation by courts and the U.S. Equal
Employment Opportunity Commission (EEOC) is essential if an employer is to avoid
litigation.
Congress expressly excluded the following conditions, among others, from the ADA’s
definition of "disability": kleptomania, pyromania, exhibitionism, voyeurism, other
sexual behavior disorders, and psychoactive substance use disorders resulting from
current illegal drug use. Nor are common personality traits protected. Covered mental
impairments do not include, for example, poor judgment, a quick temper, or irritability,
so long as the traits are not a symptom of a protected mental impairment.
Excluded conditions aside, neither the EEOC nor the ADA itself provides a
comprehensive list of all potentially protected mental impairments. Rather, EEOC
regulations broadly define a mental impairment as "ny mental or psychological disorder,
such as mental retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities." This broad and non-exclusive definition has two
implications. First, its open-ended nature, coupled with the subjective and ill-defined
nature of emotional illness, virtually ensures that mental health professionals will play a
key role in determining -- and disputing -- that an employee suffers from a protected
mental impairment. Second, because there is no definitive list of covered mental
impairments, employers must analyze disability claims and accommodation requests on a
case-by-case basis. The statutory criteria for all impairments, mental or physical, should
guide the analysis.
As a general rule, the ADA places mental impairments on an equal footing with physical
impairments. The ADA prohibits employers from discriminating against a "qualified
individual with a disability" because of the disability, in regard to the terms, conditions,
and privileges of employment. A person with a mental or physical impairment is a
"qualified individual" if he or she is able to perform the essential functions of the job with
or without reasonable accommodation.
Even if an individual is a "qualified individual," a mental impairment is not automatically
a disability. Under the ADA, a mental or physical impairment must "substantially limit"
one or more major life activities of an individual. If a qualified employee has a mental
impairment that substantially limits one or more major life activity, has a record of such
an impairment, or is regarded as having such an impairment, the employee will likely be
entitled to protection under the ADA. Protected status, however, does not entitle an
employee to each and every accommodation requested. An employer is not required to
accommodate an employee’s mental or physical impairment if doing so would result in
an undue hardship.
Litigation of mental disability claims often focuses on whether the employee’s claim
meets the statutory criteria: is the employee a "qualified individual"?; is the employee
substantially limited in a major life activity?; is the requested accommodation a
reasonable accommodation?; and/or would the accommodation cause the employer an
undue hardship?
Tips for Employers
1. If an employee appears or claims to have a mental impairment, scrupulously
avoid relying on generalizations or stereotypes regarding mental illness. Analyze
situations on a case-by-case basis.
The EEOC cautions that the ADA was enacted, in part, to combat the myths and
stereotypes upon which employment discrimination against mentally disabled individuals
is based. Stereotypes and uncorroborated information about mental impairments should
never be the basis for an employment decision. Reject generalizations about mental
impairments and, when appropriate, conduct a fact-specific case-by-case analysis.
2. Resist the temptation to play armchair psychologist.
A compassionate response to an employee’s workplace problem is always appropriate;
playing armchair psychologist is not. An employee with attendance infractions or conduct
problems will find it easier to claim disability discrimination if a supervisor asks whether
the employee’s difficulties are symptomatic of "too much stress" or a "nervous
breakdown." Instruct managers to document an employee’s performance problem or
misconduct by specifically describing the deficiency or behavior at issue.
3. If an employee complains that working with his supervisor is too stressful and
causes emotional problems, elicit a written admission that he will be able to perform
essential job duties only if he has a different supervisor or works in a different
location.
No matter how debilitating the effects of a mental impairment, it will not be protected
under the ADA if it stems solely from an inability to work with a particular supervisor or
in a single particular job. Courts and the EEOC agree that an employee is not
substantially limited in the major life activity of working unless the employee is
significantly restricted in the ability to perform either a class of jobs or a broad range of
jobs in various classes. Accordingly, ask (but not mandate) that the employee submit an
accommodation request in writing.
4. Consider even vague requests for accommodation from employees, their family
members, or their representatives as triggering a duty to engage in an interactive
process with the employee.
Requests for accommodation of emotional problems are often as vague and ill defined as
the underlying impairment. A family member may inform a supervisor that the employee
is "falling apart" and needs professional help and "time off"; an employee may blurt out
in the midst of a rush project that he is so "depressed and stressed out" that he can "no
longer cope emotionally unless something changes." Such comments are more than mere
complaints; they are, in part, requests. In response to the "requests" described above, the
employer should speak with the employee to clarify his needs and create a written record
of the meeting. Assuming that the employee articulates specific requests, the employer
need not provide each of the requested accommodations. Rather, it may choose among
reasonable accommodations so long as the chosen one is effective.
5. When considering requests for accommodation, remember that the ADA requires
employers to accommodate only disabilities that cause substantial limitations, not all
disabilities. In other words, a psychiatric diagnosis is not determinative.
In response to an employee’s request for accommodation, an employer’s fact-specific
analysis should focus not just on the employee’s psychiatric diagnosis but also on the
extent to which the employee is limited, if at all, in a major life activity. The analysis
should be grounded on the employee’s limitation at the time of the requested
accommodation.
6. In misconduct situations, distinguish between prospective and retrospective
requests for accommodation and ensure that disciplinary rules are uniformly
applied.
Courts and the EEOC agree that reasonable accommodation is always prospective, not
retrospective. A prospective request for an accommodation that will assist an employee in
complying with the company’s conduct rules should generally be granted, so long as it
does not cause the employer an undue hardship. However, if an employee is unable to
perform essential functions of her job even with reasonable accommodation, she is not a
qualified individual under the ADA.
7. Don’t be intimidated by psychiatric jargon; mentally impaired employees can
often be accommodated in the same ways as physically impaired employees.
Most individuals are more familiar with physical than mental disorders. The same types
of accommodations (e.g., sick leave, time off, reduced hours) that are afforded to
employees with physical impairments should be considered for employees with mental
impairments.
8. Designate one person or office to review all company requests for additional
medical information about employees; ensure that such requests are narrowly
tailored.
Requests for accommodation based on claims of "stress " or "difficulty coping " are often
suspect because the mental impairments on which they are based are hidden, unlike some
physical impairments. In response to such vague complaints or equally vague diagnoses
from mental health professionals, employers may request certain additional medical
information. Imposing limits on the type and scope of the information requested is the
key to avoiding liability. As a general rule, when the medical impairment or need for
accommodation is not obvious, an employer may ask an employee for reasonable
documentation about his or her purported disability and functional limitations.
Reasonable documentation does not mean an employee’s entire medical record; it is
limited to documents necessary to establish that the employee has an ADA disability and
that the disability necessitates a reasonable accommodation.
9. Require that employees submit to an independent psychiatric examination only in
limited circumstances; designate one person or office to review and issue such
requests.
To guard against abuse and malingering, an employer may require that a psychiatrist or
psychologist of its choice evaluate an employee if one of three conditions is met. First, a
psychiatric examination may be required if an employer has a reasonable belief based on
objective evidence that an employee’s ability to perform essential job functions will be
impaired by a medical/psychiatric condition. Second, if an employee requests a
reasonable accommodation, and either the mental impairment or need for accommodation
is not obvious, an employer may request an independent psychiatric exam. Third, an
employer may require a psychiatric examination if, based on objective, scientific
information, the employee poses a direct threat to the health or safety of himself or others
because of a medical condition.
10. Treat all information about an employee’s psychiatric impairment as
confidential, whether disclosed by the employee, a mental health professional, or a
coworker.
The ADA requires that employers keep confidential all information regarding their
employees’ medical conditions, including information about their psychiatric disabilities.
Even medical information voluntarily disclosed by an employee should be treated as
highly confidential.
11. Review and revise job descriptions to include references to employees’ ability to
cope with stressful circumstances and to cordially interact with coworkers to
accomplish common tasks.
Numerous courts have held that mental stability and the ability to get along with
coworkers are essential functions of a job, without which an employee is not qualified.
Courts have also held that the inability to cope with a stressful work environment does
not constitute a protected disability.
12. Develop relationships with mental health professionals and accommodation
experts and maintain a database regarding their work.
Accommodation requests for mental impairments are typically supported by psychiatrists
and psychologists. Employers can employ such professionals to their advantage. In
situations involving a direct threat, for example, the immediate referral of an employee to
a psychiatrist with expertise in violence assessment is often imperative.
Source: Sonnenberg, S. P. (June 2000), "Mental Disabilities in the Workplace," Workforce, , Vol. 79, No.
6, pp. 142-146.
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