Stephen J. Cabot, Esq. and Michel Lee, Esq
Since the Americans with Disabilities Act (ADA) was passed in 1990, protecting the mentally as well as the physically disabled, employers have been confused, even alarmed, over how it affects their ability to deal with mentally impaired employees.
The question that causes the greatest concern is whether, under the Americans with Disabilities Act, employers risk liability for firing employees who function poorly or engage in disturbing, disruptive, possibly even threatening, behavior in the workplace. Adding to the anxiety is uncertainly over what kinds of cognitive or psychiatric conditions are covered by the disability discrimination law.
Who Is Mentally Disabled?
The ADA itself does not define mental disability. Enforcing regulations issued by the EEOC describe mental impairments as any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and learning disabilities. However, such conditions must be severe enough to substantially impair one or more of an individual's "major life activities" to constitute a disability.
Cognitive impairments having a physiological basis tend to be the most readily identified and quantified mental disabilities. These would include conditions such as neurological damage, autism, dementia, retardation, and learning disabilities.
Mental illness and other emotional disorders, however, have been dealt with inconsistently by the courts. Some tend to accept the notion that employees with established diagnoses of recognized psychiatric conditions--major depressive and anxiety disorders, bipolar disorder, schizophrenia, and the like--should be given the benefit of the doubt. These courts leave determination of whether a condition is sufficiently severe to be a disability to the jury.
Other courts (the majority, in fact) require employees demonstrate that their conditions truly incapacitate functioning. Moreover, the impairment must be long term. Therefore, some cases where plaintiffs suffered severe depressive episodes and panic attacks have been dismissed because the conditions were not chronic. Unfortunately, this split in judicial thinking has left employers with little guidance on how to identify employees who may be protected by the ADA. The best approach to take, accordingly, is to assume that any worker who might reasonably be viewed as mentally disabled is covered.
Can Employers Fire Mentally Disabled Workers Who Are Disruptive, Violate Work Rules or Fail to Meet Work Standards?
One thing is absolutely clear under the ADA: A worker who is mentally disabled cannot be fired because of prejudice or stereotype-based assumptions about how he may function or what he might do. For instance, a company may not discharge someone with autism because fellow workers (or even customers), are made uncomfortable by his inappropriate gesticulation or comments. Nor can a worker with an illness like paranoid-schizophrenia be fired because the employer surmises that any such individual poses a threat to company safety.
Nevertheless, an employer will usually be able to mount a solid defense to an ADA claim where an employee has engaged in consequential infractions of important work rules (as opposed to simply breaking protocol) or seriously disrupts the workplace. The ADA does not require work become a nightmare for other employees. Workers who are unable to interact with others (assuming interaction is part of the job), who regularly have hostile outbursts or who menace others will not be protected, even where such behaviors are uncontrollable manifestations of genuine mental disabilities. In such cases, courts find employees are not qualified to hold their jobs.
On the other hand, the issue of how to treat employees who simply cannot meet work standards is far trickier. If the employee is utterly unable to perform the essential functions of his job or poses a hazard to other workers or third parties, he will be deemed not qualified. Thus a federal court recently dismissed the case of a hospital technician whose mental condition rendered him unable to properly monitor vital medical equipment.
Yet most cases do not involve extreme or dangerous dereliction of duty. If the employee is simply performing below par because of a known disability, the employer will more than likely have a legal obligation to accommodate him.
How Must the Employer Accommodate the Mentally Disabled?
The ADA mandates accommodation of disabled employees, even unqualified ones, if accommodation would enable them to perform the essential functions of their jobs. The problem is that accommodation for people with mental disabilities is usually hard to conceptualize. Unlike accommodations for physical impairments--which may simply require a mechanical solution like making a work station wheelchair accessible--accommodations that might compensate for the limitations of cognitively and psychologically impaired persons require a greater degree f imagination and employer flexibility.
Many people with mental disorders, for example, take medications that make it difficult to awaken easily in the morning or create drowsiness at other times of the day. Such individuals may also need to regularly attend counseling sessions, or even require periodic hospitalization. For such individuals, accommodations like part-time or modified work schedules, allowing use of accrued paid leave or providing additional unpaid leave may be in order.
Employees having difficulty coping with the stress of certain job assignments might be accommodated through job restructuring, partial at-home work time, reassignment, reorganization of work space, or allowance of periodic work breaks. One interesting form of accommodation was noted in a First Circuit case where a worker suffering from anxiety neurosis was given the opportunity to relieve pent-up stress by leaving the work station to go off and scream. (The opinion did not say where that employee went off to.) The only defense provided by the ADA to failure to provide accommodation is where it would be an undue hardship for the employer. Yet the courts have, by and large, been cognizant of the real life exigencies of businesses and other organizations. Most judges do not apply a true hardship test to determine the feasibility of accommodations proposed by employees. Instead, accommodations are analyzed in terms of whether they appear reasonable.
For the most part, accommodations involving major job restructuring, placing significant interpersonal burdens upon co-workers and supervisors, or creating an increase in health or safety risks have not been required. Modest alterations of scheduling, leaves of absence allowances, changes in methods of operation, and permitting employees to shift to less stressful projects, have been found reasonable.
Conclusion
The law governing treatment of the mentally disabled in the workplace is sufficiently muddled to leave even the most sophisticated employer mystified as to its legal obligations.
In practice, most mental disability discrimination suits are settled or dismissed. However the legal fees, expert fees, lost productivity and workplace disruption entailed in defending litigation can add up to a considerable expense. Furthermore, in those cases that go forward, the exposure is substantial. Congress expressly provided for compensatory and punitive damages under the ADA. This potential liability makes disability discrimination something all employers must take very seriously.
Even employers having the most progressive human resource policies are vulnerable to ADA claims. Employers, like every one else in our society, carry culturally embedded negative attitudes and misperceptions about the mentally impaired. Before any negative employment action is carried out against an employee so affected, the responsible managers must carefully and critically evaluate the decision to make certain it has not been motivated by animus or fear. To protect against an ADA claim, the employer must additionally implement procedures specifically directed towards ensuring that all potential reasonable forms of accommodation are fairly and thoroughly explored.
Stephen J. Cabot, Esq. is chairman of the labor relations and employment law department of the Philadelphia-based national law firm of Harvey, Pennington, Herting & Renneisen, Ltd. He is author of the best-selling book "Everybody Wins!" Michel Lee, Esq. is a lawyer in HPHR's New York City office.
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