Recognizing Rights of Mentally Disabled

After Michael L. Keller started receiving medical treatment for manic depression, he asked his longtime employer for an adjustment in his work routine. He sought a switch from his rotating schedule as a lab technician, regularly flipping between day shifts and night shifts, to working days only.

Even though the request was based on his doctor’s opinion that he needed a regular sleeping pattern, Keller was turned down. And soon afterward, in October 1992, he was fired.

“I was totally flabbergasted,” said Keller, now 48. He said he couldn’t believe that his former employer, a Union Carbide chemical plant in Louisiana, “would do something like this” to him. “They said they would work with me,” he said.

Thanks to a lawsuit filed by federal authorities under the Americans With Disabilities Act, last year Keller won a private financial settlement said by sources familiar with the case to exceed $100,000. The company, which employed Keller for 14 years, declined to comment.

Meanwhile, though, thousands of other people with mental disorders claim they face discrimination in the workplace because of their disabilities. And employers have continued to wonder about their responsibilities in such situations ever since the ADA, as the landmark disabilities act is known, took effect in the American workplace in 1992.

To clear up some of that confusion, officials of the U.S. Equal Employment Opportunity Commission last month issued guidelines for applying the ADA in psychiatric disability cases. Although courts are not bound by such guidelines, they often influence judges’ decisions. They also provide employers with paths they can follow to try to avoid costly litigation--even though, management lawyers contend, legal disputes will remain a big problem even with the guidelines.

Some of the EEOC’s guidance is basic and in line with the ADA requirements for workers with physical disabilities. For instance, employers are required to provide “reasonable accommodations” for workers with psychiatric or physical disabilities unless such measures would “impose an undue hardship” on the employer.

In addition, companies are almost always barred from asking job applicants who have not yet been offered employment about whether they suffer from mental or physical disorders.

Here are some of the key points raised by the new guidelines:

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Q: What is a psychiatric disability under the ADA?

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A: It is any mental impairment that substantially limits one or more “major life activities” of an individual. These impairments can be mental or psychological disorders including schizophrenia, major depression and bipolar disorder, or panic, obsessive compulsive or post-traumatic stress disorders. Not covered by the law, however, is behavior stemming from the illegal use of drugs. Neither is stress, unless it is shown to be tied to a specific mental impairment.

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Q: What are examples of reasonable accommodations that employers might provide?

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A: The guidelines call for accommodations to be determined on a case-by-case basis. They can include physical changes in the workplace such as setting up room dividers or other types of soundproofing to help workers who have problems maintaining their concentration.

Accommodations also include scheduling changes such as allowing an employee to start work later in the day or providing extra unpaid time off. The guidelines point out that some medications for psychiatric disabilities cause extreme grogginess and impair the ability to concentrate in the morning. In Keller’s case, he found that he could not sleep well when he worked long night shifts once he started taking lithium for his manic depression.

Other options include providing a temporary job coach or modifying workplace procedures to, say, provide employees with written comments if they can’t follow oral instructions.

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Q: Can employers discipline workers with psychiatric disabilities if their misconduct stems from a disability?

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A: Yes, if the offending action by the disabled employee also would call for discipline if someone else did it. For example, if an employee steals money from the company, that worker can be fired or otherwise disciplined just as any other employee would.

On the other hand, the EEOC guidelines cite the hypothetical example of an employee with a psychiatric disability who works in a warehouse and has no contact with customers and little contact with other employees. This employee has been coming to work looking increasingly disheveled and acting increasingly rudely toward co-workers, in violation of company rules. In such a case, the EEOC says the dress code and courtesy rules are not significant to the job. Consequently, if the warehouse employee’s work performance has not suffered and the offensive conduct is linked to a psychiatric disability, the worker should be given some leeway and “rigid application” of discipline should be waived.

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Q: When can an employer refuse to hire someone based on the person’s history of violence?

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A: Employers can reject job applicants who pose a “direct threat” to themselves or others at work. Employers have to be able to specify the behavior that poses the threat, however. As an example of a job applicant who could be turned down on those grounds, the guidelines describe someone involved in three months of escalating incidents on a job who then received medical treatment but still couldn’t control his temper. Finally, two weeks before, that hypothetical worker was fired after telling a co-worker that he would find a gun and “get his supervisor if he tries anything again.” The EEOC says that worker poses a direct threat, among other reasons, because of his overt acts in the past, the failure of medical treatment to curb his violent behavior and the short amount of time since he was fired.

On the other hand, someone who has attempted suicide is not considered a direct threat. If someone attempts suicide but then receives medical care and is said by a doctor to be able to safely return to work, there is no justification to bar that person.

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Q: What problems do critics see with the ADA guidelines?

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A: Some management lawyers believe the law and the guidelines are impractical and will lead to even more costly litigation. Christopher G. Bell, a management lawyer in Minneapolis and an authority on the ADA, worries that the guidelines open the door for employees who simply don’t get along well with co-workers to hunt for doctors who can declare them psychiatrically disabled.

“It’s very difficult when you’re talking about a mental impairment or disorder to determine whether we’re talking about fact or fiction,” Bell said.

“Is the person just a jerk and trying to cover for it by getting a note from the doctor? Or do they have a legitimate, serious mental disorder which has to be dealt with in the workplace?”

Management lawyers also fret that employers will be caught between conflicting requirements to accommodate workers with mental disorders while maintaining confidentiality about their conditions. And they say that at a time when the economy demands an increasing amount of teamwork, employees will resist collaborating with co-workers regarded as antisocial.

Advocates for the mentally disabled, however, say the broad protection promised by the ADA has been unfulfilled because of the narrow way that judges and employers have interpreted the law.

“There’s still a tremendous stigma attached to people with mental disabilities,” said Jim Preis, executive director of Mental Health Advocacy Services Inc., a nonprofit public interest law firm based in Los Angeles. “Even though the ADA is clear and these guidelines are even clearer . . , it’s still commonplace that a person with a psychiatric disability, just because of that disability, will not be offered a job.”

Until now, “disability under the ADA has come to mean physical disability,” said Paul Steven Miller, an EEOC commissioner. By zeroing in on psychiatric disabilities, he added, “this moves us a giant leap forward.”

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Disability Claims

Since the Americans With Disabilities Act took effect in U.S. workplaces in July 1992, the second most common type of job discrimination under the law has been bias tied to emotional or psychiatric impairments. Some experts believe these claims will increase now that the U.S. Equal Employment Opportunity Commission has issued workplace guidelines for psychiatric disabilities. Of the 72,687 claims from July 26, 1992, to Sept. 30, 1996, these disabilities were most often cited:

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Percent Impairment Claims of total* Back 13,243 18.2% Emotional/psychiatric 9,216 12.7 Neurological 8,201 11.3 Extremities 6,562 9.0 Heart 3,003 4.1 Diabetes 2,605 3.6 Substance abuse 2,437 3.3 Hearing 2,094 2.9 Vision 1,911 2.6 Blood disorders (including HIV) 1,883 2.6 Cancer 1,706 2.3 Asthma 1,266 1.7

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* Note: Numbers do not add up to 100 percent because additional categories are not listed.

Source: Equal Employment Opportunity Commission