BOSTON--Federal courts have construed the Americans with Disabilities Act narrowly in cases involving mental and intellectual disabilities, attorneys for employees and employers agreed Jan. 6 at a session of the Labor and Employment Relations Association conference.

Mental disability is an area of the law where courts have not always accepted the guidance of the Equal Employment Opportunity Commission, according to Peter Bennett of the Bennett Law Firm in Portland, Maine, and Jon Rosen of Jon Rosen & Associates in Seattle.

Courts have shown "less deference" to EEOC on the subject of disabilities than almost any other area in the law, Rosen said. He explained that the EEOC guidelines are broader than the language of the ADA, which is "much more detailed" than most discrimination statutes.

For instance, Rosen said, the law defines "direct threat" as a significant risk of harm to others, while the commission has reworked the language to say significant risk of substantial harm to oneself or others.  Courts have found that "that's not what the statute says," Rosen said.

Bennett added that EEOC guidelines on psychiatric disability conclude that an employee's request for time off because he or she is "depressed or stressed" is sufficient to put an employer on notice of a disability.  "I don't agree, I think it takes more than that," he said.

But narrow interpretation of disability at the federal level has prompted a reaction at the state level, where 48 of the 50 states have some type of disability discrimination statute, according to Bennett.

State Laws More Favorable to Plaintiffs

"In the last couple of years as courts have clamped down, a number of states have started to look at their interpretation of disability discrimination law on the state level," Bennett said.  State laws in Maine, California, and Washington are more favorable to plaintiffs on such topics as mitigation of disability and definition of major life function, participants said.

Courts consistently have found that the act does not protect alcoholic employees or alcoholic-related behavior off the job, nor does it cover workers who use drugs or who exhibit serious misconduct as a result, the attorneys agreed.

Courts also uniformly agree that the statute does not protect workers who abuse prescription drugs, Rosen said. Some employers require that employees in safety-sensitive jobs inform their employer of all medications they are taking.  But for a job where safety concerns are not present, such a requirement is a potential violation of the ADA and of common law privacy, Bennett suggested.

One area where there is a lot of litigation and disagreement is over less serious misconduct in such areas as performance, attendance, and attitude, according to Bennett.  "The courts are all over the place, and if anything, the trend seems to be to protect the individual," he said.

Supervisors as Cause of Stress or Depression

A common complaint of plaintiffs is that they are experiencing stress or depression as a result of supervisory pressure, Rosen said.  But, he added, "courts are loath to accept this as a disability" or to agree that a request for another supervisor is a reasonable accommodation.

Under the law, Rosen said, employers may be required to provide "a" reasonable accommodation, one that is "not the best one or the one the employee wants."

Bennett noted that the size of and competitive pressures on an employer may affect the ability to provide a reasonable accommodation and the definition of essential function.  He described a case currently in litigation in which a department store employee who occasionally is called upon to operate a cash register asked to be relieved of that duty because of an anxiety disorder.

To compete with giant chains like Wal-Mart, the employer said it has had to cut its workforce hours from 4,000 to 2,000 per month and does not have the flexibility to juggle assignments.  "We are seeing more and more of that coming along," Bennett said.

But even large employers have wide latitude to decide the essential functions of a job, Rosen said, citing a case in which Microsoft successfully argued that it needed an employee with a stress disorder to be available for an 80-hour workweek.

Notification a Key Issue

Notification to the employer is a key issue in mental disability cases, the attorneys agreed. "You don't see these things; it's not like a bad back or blindness," Bennett said.  Often an employer will be unaware that an employee's behavior is attributable to bipolar disorder, depression, or obsessive compulsive disorder, Rosen added.

Because of the "stigma" attached to some of these disorders, it is difficult to decide how to advise an employee to proceed, Rosen said. He said he attempts to describe the options and explain the possible consequences of informing the employer of a disability. "You don't know what an employer is going to do," he said, adding that there is a risk of co-workers learning of the disability and "tormenting" the employee.

A protective step for employers that suspect an employee may be disabled is to write a letter advising employees who think they might have a problem to contact their employee assistance program or the personnel office, Rosen said.

By Rick Valliere

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 ISSN 1522-5968
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