So,too, is the amount of employment litigation related to mental disabilities. Employeespreviously reluctant or unable to litigate mental disability discrimination claims aredoing so with increasing frequency. As a result, employers face a host of thorny problemsranging from limits on independent psychiatric evaluations to requests for accommodationof stress and other vague, uncorroborated, or hidden emotional problems.
Familiaritywith the ADA and its interpretation by courts and the U.S. Equal Employment OpportunityCommission (EEOC) is essential if an employer is to avoid litigation.
Congressexpressly excluded the following conditions, among others, from the ADAs definitionof disability: kleptomania, pyromania, exhibitionism, voyeurism, other sexualbehavior disorders, and psychoactive substance use disorders resulting from currentillegal drug use. Nor are common personality traits protected. Covered mental impairmentsdo not include, for example, poor judgment, a quick temper, or irritability, so long asthe traits are not a symptom of a protected mental impairment.
Excludedconditions aside, neither the EEOC nor the ADA itself provides a comprehensive list of allpotentially protected mental impairments. Rather, EEOC regulations broadly define a mentalimpairment as [a]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-endednature, coupled with the subjective and ill-defined nature of emotional illness, virtuallyensures that mental health professionals will play a key role in determining -- anddisputing -- that an employee suffers from a protected mental impairment. Second, becausethere is no definitive list of covered mental impairments, employers must analyzedisability claims and accommodation requests on a case-by-case basis. The statutorycriteria for all impairments, mental or physical, should guide the analysis.
As a general rule, the ADA places mental impairments onan equal footing with physical impairments. The ADA prohibits employers fromdiscriminating against a qualified individual with a disability because of thedisability, in regard to the terms, conditions, and privileges of employment. A personwith a mental or physical impairment is a qualified individual if he or she isable to perform the essential functions of the job with or without reasonableaccommodation.
Evenif an individual is a qualified individual, a mental impairment is notautomatically a disability. Under the ADA, a mental or physical impairment must substantiallylimit one or more major life activities of an individual. If a qualified employeehas a mental impairment that substantially limits one or more major life activity, has arecord of such an impairment, or is regarded as having such an impairment, the employeewill likely be entitled to protection under the ADA. Protected status, however, does notentitle an employee to each and every accommodation requested. An employer is not requiredto accommodate an employees mental or physical impairment if doing so would resultin an undue hardship.
Litigationof mental disability claims often focuses on whether the employees claim meets thestatutory criteria: is the employee a qualified individual?; is the employeesubstantially limited in a major life activity?; is the requested accommodation areasonable accommodation?; and/or would the accommodation cause the employer an unduehardship?
Ifan employee appears or claims to have a mental impairment, scrupulously avoid relying ongeneralizations or stereotypes regarding mental illness. Analyze situations on acase-by-case basis.
TheEEOC cautions that the ADA was enacted, in part, to combat the myths and stereotypes uponwhich employment discrimination against mentally disabled individuals is based.Stereotypes and uncorroborated information about mental impairments should never be thebasis for an employment decision. Reject generalizations about mental impairments and,when appropriate, conduct a fact-specific case-by-case analysis.
Resistthe temptation to play armchair psychologist.
Acompassionate response to an employees workplace problem is always appropriate;playing armchair psychologist is not. An employee with attendance infractions or conductproblems will find it easier to claim disability discrimination if a supervisor askswhether the employees difficulties are symptomatic of too much stress ora nervous breakdown. Instruct managers to document an employeesperformance problem or misconduct by specifically describing the deficiency or behavior atissue.
Ifan employee complains that working with his supervisor is too stressful and causesemotional problems, elicit a written admission that he will be able to perform essentialjob duties only if he has a different supervisor or works in a different location.
Nomatter how debilitating the effects of a mental impairment, it will not be protected underthe ADA if it stems solely from an inability to work with a particular supervisor or in asingle particular job. Courts and the EEOC agree that an employee is not substantiallylimited in the major life activity of working unless the employee is significantlyrestricted in the ability to perform either a class of jobs or a broad range of jobs invarious classes. Accordingly, ask (but not mandate) that the employee submit anaccommodation request in writing.
Consider even vague requests for accommodation from employees, their familymembers, or their representatives as triggering a duty to engage in an interactive processwith the employee.
Requestsfor accommodation of emotional problems are often as vague and ill defined as theunderlying impairment. A family member may inform a supervisor that the employee is fallingapart and needs professional help and time off; an employee may blurtout in the midst of a rush project that he is so depressed and stressed outthat he can no longer cope emotionally unless something changes. Such commentsare more than mere complaints; they are, in part, requests.
Inresponse to the requests described above, the employer should speak with theemployee to clarify his needs and create a written record of the meeting. Assuming thatthe employee articulates specific requests, the employer need not provide each of therequested accommodations. Rather, it may choose among reasonable accommodations so long asthe chosen one is effective.
Whenconsidering requests for accommodation, remember that the ADA requires employers toaccommodate only disabilities that cause substantial limitations, not all disabilities. Inother words, a psychiatric diagnosis is not determinative.
Inresponse to an employees request for accommodation, an employers fact-specificanalysis should focus not just on the employees psychiatric diagnosis but also onthe extent to which the employee is limited, if at all, in a major life activity. Theanalysis should be grounded on the employees limitation at the time of the requestedaccommodation.
Inmisconduct situations, distinguish between prospective and retrospective requests foraccommodation and ensure that disciplinary rules are uniformly applied.
Courtsand the EEOC agree that reasonable accommodation is always prospective, not retrospective. A prospective request for an accommodation thatwill assist an employee in complying with the companys conduct rules shouldgenerally 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 withreasonable accommodation, she is not a qualified individual under the ADA.
Dontbe intimidated by psychiatric jargon; mentally impaired employees can often beaccommodated in the same ways as physically impaired employees.
Mostindividuals are more familiar with physical than mental disorders. The same types ofaccommodations (e.g., sick leave, time off, reduced hours) that are afforded to employeeswith physical impairments should be considered for employees with mental impairments.
Designateone person or office to review all company requests for additional medical informationabout employees; ensure that such requests are narrowly tailored.
Requestsfor 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 vaguediagnoses from mental health professionals, employers may request certain additionalmedical information. Imposing limits on the type and scope of the information requested isthe key to avoiding liability. As a general rule, when the medical impairment or need foraccommodation is not obvious, an employer may ask an employee for reasonable documentationabout his or her purported disability and functional limitations. Reasonable documentationdoes not mean an employees entire medical record; it is limited to documentsnecessary to establish that the employee has an ADA disability and that the disabilitynecessitates a reasonable accommodation.
Requirethat employees submit to an independent psychiatric examination only in limitedcircumstances; designate one person or office to review and issue such requests.
Toguard against abuse and malingering, an employer may require that a psychiatrist orpsychologist 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 onobjective evidence that an employees ability to perform essential job functions willbe impaired by a medical/psychiatric condition.
Second,if an employee requests a reasonable accommodation, and either the mental impairment orneed for accommodation is not obvious, an employer may request an independent psychiatricexam.
Third,an employer may require a psychiatric examination if, based on objective, scientific information, theemployee poses a direct threat to the health or safety of himself or others because of amedical condition.
Treatall information about an employees psychiatric impairment as confidential, whetherdisclosed by the employee, a mental health professional, or a coworker.
TheADA requires that employers keep confidential all information regarding their employeesmedical conditions, including information about their psychiatric disabilities. Evenmedical information voluntarily disclosed by an employee should be treated as highlyconfidential.
Reviewand revise job descriptions to include references to employees ability to cope withstressful circumstances and to cordially interact with coworkers to accomplish commontasks.
Numerouscourts have held that mental stability and the ability to get along with coworkers areessential functions of a job, without which an employee is not qualified. Courts have alsoheld that the inability to cope with a stressful work environment does not constitute aprotected disability.
Developrelationships with mental health professionals and accommodation experts and maintain adatabase regarding their work.
Accommodationrequests for mental impairments are typically supported by psychiatrists andpsychologists. Employers can employ such professionals to their advantage. In situationsinvolving a direct threat, for example, the immediate referral of an employee to apsychiatrist with expertise in violence assessment is often imperative.