Labor and Employment Update: Myths and Realities: The EEOC Guidance on the Americans with Disabilities Act and Psychiatric Disabilities. . . One Year Later

In the eight years since the Americans with Disabilities Act (ADA) was enacted, the number of discrimination claims based on psychiatric disabilities has steadily risen. Claims of discrimination based on emotional or mental disability now constitute the second largest source of complaints filed with the Equal Employment Opportunity Commission (EEOC) under the ADA, surpassed only by claims based on back problems. With the rising number of claims has come an increased confusion about what constitutes a mental impairment and what the employer's obligations are to an employee with such an impairment. In an effort to alleviate some of this confusion, in March 1997, the EEOC issued its guidance on the ADA and psychiatric disabilities to answer questions of employees and employers alike, as well as to "facilitate the full enforcement of the ADA."

When announced, the guidance was met with significant alarm and outcry -- predictions of flood gates opening to litigation involving every conceivable type of personality disorder resulting in employers losing their ability to conduct business. One year later, however, these predictions of doom appear to have been overreactions. Employers continue to win most claims of discrimination based on mental disability and the reaction of the courts toward the EEOC guidance is mixed or negative. Employers, however, continue to face increasing requests for accommodation based on psychiatric disability and discrimination claims based on psychiatric disability continue to rise.

What is a psychiatric disability?

The ADA prohibits, among other things, discrimination against a qualified individual with a disability. A disability is a physical or mental impairment that substantially limits one or more major life activities. The EEOC has indicated that it issued its guidance to educate employers and others regarding the stereotypes and fears surrounding psychiatric disabilities. The guidance clarifies for employers what must be done when an employee claims he has a psychiatric disability or mental impairment and asks for an accommodation.

The guidance recognizes for the first time that interaction with others constitutes a major life activity under the ADA. Here, employer overreaction to the guidance was initially justified. Most courts, however, have been unwilling to expand the concept of major life activity to include an individual's inability to successfully interact with others primarily because the concept of the "getting along with others" is "remarkably elastic" and "amorphous." While such ability is no doubt one to be lauded, it certainly differs in gravity from the ability to breathe or walk; two examples of major life activities used in the regulations governing the ADA. Furthermore, as one court explained prior to the issuance of the guidance, "whether a person has such an ability may be a matter of subjective judgment; and the ability may or may not exist depending on context." Soileau v. Guilford of Maine, Inc., 105 F.3d 12 (1st Cir. 1997). What appears clear is that if an employee's trouble is getting along with the boss, this problem is not covered by the ADA.

While a personality conflict with a co-worker or boss will not alone suffice to establish a disability under the ADA, if the "personality conflict triggers a serious mental illness that is in turn disabling, the fact that the trigger was not itself a disabling illness is no defense" for the employer. Palmer v. Circuit Court of Cook County, Illinois, 117 F.3d 351 (7th Cir. 1997). The Palmer court explained that "after [the triggering event, the employee] may be incapable of productive employment" for the rest of his or her life. In such a situation, the requirements of the ADA may attach.

Contrary to what many employers believed initially, the guidance does not automatically obligate an employer to grant a request for accommodation based on a psychiatric disability. The employer's responsibility remains the same. The employer's obligation is to listen to and consider the request in order to determine if an employee indeed has a psychiatric disability that can be accommodated to enable the employee to perform the essential functions of the job. In fact, the guidance further indicates that the employer may ask the employee for documentation if it is "job-related and consistent with business necessity." For example, if the employer has a reasonable belief based on objective evidence that the employee's ability to perform his or her work is hindered by a medical condition, the employer may request medical examination, including a psychiatric examination.

What about mitigating factors?

The EEOC guidance provides that an individual who is taking medication for a mental impairment has a psychiatric disability under the ADA if the mental impairment, left untreated, substantially limits a major life activity. The courts, however, are split on this issue. The Third Circuit Court of Appeals joined the Eighth, Ninth, and Eleventh Circuits and the EEOC Guidance in ruling that mitigating measures used to alleviate physical or mental impairments should not be used to determine whether an individual is disabled under the ADA. Matczak v. Frankford Candy and Chocolate Co., 136 F.3d 933 (3d Cir. 1997). See also Doane v. City of Omaha, 115 F.3d 624 (8th Cir. 1997); Holihan v. Lucky Stores, 87 F.3d 362 (9th Cir. 1996); Harris v. H & W Contracting Co., 102 F.3d 516 (11th Cir. 1996). The Third Circuit noted "although we are not bound by the EEOC's guidelines, we do afford its interpretation a great deal of deference . . . ." The Fifth, Sixth, and Tenth Circuits have reached the opposite conclusion and consider the mitigating measures in determining whether an ADA disability exists. See Ellison v. Software Spectrum, Inc., 85 F.3d 187 (5th Cir. 1996); Gilday v. Mecosta County, 124 F.3d 760 (6th Cir. 1997); Sutton v. United Air Lines, Inc., 130 F.3d 893 (10th Cir. 1997).

What are reasonable accommodations for psychiatric disabilities?

The EEOC guidance also clarified the otherwise amorphous notion of "reasonable accommodation" by providing examples of reasonable accommodations. In the area of psychiatric disabilities, particularly relevant reasonable accommodations include changes to workplace policies, procedures, or practices. While accommodations must be determined on a case-by-case basis, they often involve flexible work schedules, leaves of absence, changing supervisory methods, and modified work environments.

Can an employee with a psychiatric disability be disciplined?

In addition, the guidance clarifies employee misconduct. Some have been operating under the misconception that if an employee has a disability, the disability provides the employee with protection from discipline. However, the guidance explains that if the employer's rules regarding conduct are job-related and required for business necessity, the employer may apply the rule without regard to an employee's disability. The guidance also explains the natural intersection of reasonable accommodation and misconduct by, for the first time, clarifying that reasonable accommodation does not excuse prior misconduct -- reasonable accommodation governs prospective conduct only.
Practical Tips

When presented with an employee with a psychiatric disorder requesting accommodation, the following issues should be considered or addressed:

  1. Is the employee's condition a "mental impairment" classifiable as a disability under the ADA?
  2. Can the employee now or will the employee in the future be able to perform the essential functions of his/her job?
  3. Review all available personal and medical information. Talk with the employee and others suggested by the employee. Gather additional medical information if it is "job-related and consistent with business necessity."
  4. Keep all gathered information confidential.
  5. Have an interactive discussion with the employee to determine whether there are any accommodations which the employee is requesting.
  6. Are there other accommodations which will enable the employee to perform the essential functions of the job?
  7. What impact will the accommodation have on your company? Will it cause undue hardship?
  8. Discuss the proposed accommodation with the employee.
  9. If the employee agrees to the accommodation, put the agreement in writing and implement the accommodation.
  10. If the employee objects to your proposed accommodation, caution is in order. You have legal obligations which do not hinge on employee agreement. In many circumstances, you should go forward and implement your proposed accommodation, even if it differs from the employee's proposed accommodation.

In March 1997, the EEOC's guidance on the ADA and psychiatric disabilities was received with much alarm, skepticism, and cynicism. One year later, as the EEOC and the courts continue to struggle with an employer's obligations to individuals with psychiatric disabilities, a good rule of thumb is to afford such employees the same treatment/opportunities as afforded employees suffering from any other disability.