By Mary Giliberti, J.D., Staff Attorney, Bazelon Center for Mental Health Law, Washington, DC
Although the Americans with Disabilities Act (ADA) sets forth a specific requirement for workplace accommodations, every statute is subject to interpretation. Such interpretation can come from two sources: the agency charged with enforcing the Act and the courts.
At this early stage of the ADA’s development, there does not appear to be a clear trend in court decisions, which tend to be conflicting and fact-specific. On the other hand, the Equal Employment Opportunity Commission (EEOC), the enforcing agency for the employment provisions of the ADA, has brought several cases and has issued a new guidance which should be very useful in clarifying the ADA’s accommodation provisions with respect to workers with psychiatric disabilities.
The EEOC’s litigation choices have recognized that individuals with psychiatric disabilities have a right to reasonable accommodations. The agency has prevailed and obtained consent decrees with monetary damage awards for the employees in two important cases.
First, in EEOC v. Bentley Tools, the agency contended that the company failed to accommodate the employee’s anxiety and depression by denying her request for a 90-day medical leave of absence. A second case, EEOC v. Union Carbide, was brought when an employee with bipolar disorder was denied the accommodation of non-rotating shifts, which he needed because of the effects of the medication. A third case, however, on behalf of an employee with depression and bulimia, was unsuccessful. In EEOC v. Amego, the appellate court ruled that the employer did not have to accommodate an employee who attempted suicide by overdosing on medication. Her job entailed administering medication. She sought the accommodation of reassignment to a behavior therapist which would have been necessary to ensure safety for clients who may need medication. This was considered an undue burden for a small non-profit. Each of these cases involved an accommodation that is frequently needed by employees with psychiatric disabilities.
In addition to these three cases, the agency recently released the EEOC Enforcement Guidance: The Americans with Disabilities Act and Psychiatric Disabilities.
Approximately one third of the guidance addresses reasonable accommodation issues, from requesting an accommodation to selected types of accommodation. The guidance takes into account practical realities for employees with psychiatric disabilities who seek accommodations. It states that an individual may use “ English” and need not mention the ADA or use the phrase “ accommodation.” The agency gives the example of an employee who asks for time off because he is depressed and stressed.
In addition, the EEOC takes the position that a family member, friend, health professional, or other representative may ask for the reasonable accommodation on behalf of an individual with a disability. The EEOC notes that its interpretation directly conflicts with a court case, Miller v. National Cas. Co., 61 F. 3d 627 (8th Cir. 1995), in which the court held that an employer was not notified of the need to accommodate an employee with bipolar disorder when her sister phoned the employer to say that the employee could not come to work because she was “ falling apart” and may need hospitalization. Unlike the court, the agency recognized that the employee who is in crisis may not be able to ask for the accommodation in a timely manner due to her disability: accordingly, an employer should consider a request from a third party as a starting point for discussions about the employee’s disability and possible accommodations.
Importantly, the EEOC limits what information an employer can seek in response to a request for accommodation. It notes that an employer is entitled to “” documentation that a person has a disability and that the functional limitations necessitate the accommodation requested. The employer cannot, however, ask for all records and therapy notes. This is very helpful to employees who would not ask for needed accommodations because they feared a wholesale invasion of their privacy.
Finally, the guidance contains many examples of reasonable accommodations that are particularly useful to employees with psychiatric disabilities. Despite some negative caselaw, the guidance makes clear that reassignment to a vacant position and adjustment of supervisory methods are forms of reasonable accommodation.
The agency also states that an employer may be required to provide a temporary job coach to assist in training, as long as it is not an undue hardship. Also, an employer “ be required to allow a job coach paid by a public or private social service agency to accompany the employee to the job site as a reasonable accommodation.” (Guidance, pp. 27).
In 1990, Congress mandated an end to discrimination against people with mental and physical impairments. Thus far, the vast majority of enforcement and compliance efforts have focused on physical disabilities. By issuing this guidance and engaging in litigation, the EEOC has formally acknowledged that psychiatric disabilities are equally covered under the ADA and equally entitled to accommodations. This recognition is an important first step that is long overdue.
To obtain a copy of the EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities 3/25/97 No. 915.002 contact the Equal Employment Opportunity Commission, 1801 L. Street, N.W., Washington, D.C. 20507 or call 1/800/669-EEOC. Web address is http://www.eeoc.gov.
Moss, K., Johnsen, M., & Ullman, M. (In press). Assessing employment discrimination charges filed by individuals with psychiatric disabilities under the ADA. Journal of Disability Policy Studies.
This article presents findings from analyses of nationwide data on employment discrimination charges filed under the Americans with Disabilities Act. In conducting the analyses, emphasis was placed on understanding the extent to which the ADA charge process differentially affects individuals with psychiatric disabilities. Results indicated that 16.3 percent of individuals whose charges were closed as of June 30, 1995 received benefits from filing charges; individuals with psychiatric disabilities were only somewhat less likely to experience benefits from filing charges than were individuals with non-psychiatric disabilities; individuals with schizophrenia had a strikingly lower benefit rate than all other individuals with other types of psychiatric disorders; and there was considerable variation among individuals with different kinds of non-psychiatric disabilities in benefit rates.
Moss, K. & Johnsen, M. C. (In press). Employment discrimination and the ADA: A study of the administrative complaint process. Psychiatric Rehabilitation Journal.
This article presents findings from the first in-depth study of how the employment discrimination charge process, mandated under Title I of the ADA is working. After briefly summarizing quantitative findings related to the nationwide experience of ADA complaints, the article provides a mostly qualitative examination of how the charge process works within five U.S. Equal Employment Opportunity Commission offices. It points out that many charges filed with the EEOC under the ADA are given extensive and well thought-out investigations. It explores numerous problems that have taken their toll on charge processing; understaffing, insufficient investigative time, inadequate travel and training funds, and several recently discontinued administrative policies of the EEOC.
Reprinted from the Community Support Network News, Summer/Fall, 1994 , 12 (1)
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