ADA Mental Illness Claims Increase in the Workplace

What to Do When an Employee Requests an Accommodation

Recent cases suggest that employers should do more to confirm that an alleged mental illness qualifies as a 'disability' under the ADA before proceeding to discuss potential accommodations. The process of confirming a qualifying disability will also often narrow the range of required accommodations, thereby benefiting the employer. When an employee requests an accommodation based on a mental illness, the employer should make the following determinations prior to addressing potential accommodations: 1) has the alleged mental illness been properly diagnosed?; 2) is the mental illness a long-term pervasive problem which substantially limits a major life activity?; and 3) can the employee, with or without reasonable accommodation, continue to perform the essential job functions in light of the mental illness?

Has the mental illness been properly diagnosed?

It is appropriate for an employer to require that the employee requesting accommodation provide a written diagnosis of the mental disorder from a qualified health care provider. Often, we suggest that the employer provide a copy of the employee's job description to the health care provider and request that the health care provider specifically identify which job functions are impacted by the disorder ' and in what fashion. That process helps employers in a few ways. First, if the mental disorder's impact on job functions is narrow, that may limit the scope of required accommodations. Second, if the impact of the disability on job functions is severe, even with reasonable accommodations, the employee may not be qualified for protection under the ADA because he or she is unable to perform the essential functions of the job.

Does the mental illness qualify for protection under the ADA?

Employers should not accept all diagnoses of mental illness as automatically qualifying for a reasonable accommodation. As mentioned above, employers must determine whether the employee's particular mental illness qualifies for ADA protection. In some instances, such a determination is straightforward, such as cases of temporary depression (not a qualifying illness) or cases of a severe bipolar disorder (qualifying). The test to determine whether a mental illness qualifies for potential protection under the ADA is whether it is a long-term condition that 'substantially limits a major life activity.' While the courts have not always been uniform or even clear on what this phrase means, the cases do provide some guidance to employers.

Does the mental disorder substantially limit a 'major life activity'?

Most courts require an employee to articulate not only the impairment, but also the 'major life activity it affects.' It is the disorder's impact on the specified major life activity that determines whether the disorder is a 'disability' covered by the ADA.

Courts and the Equal Employment Opportunity Commission (EEOC) have given some guidance on what constitutes a major life activity. The U.S. Supreme Court has ruled that major life activities are those 'of central importance to daily life.' In explaining that decision and others, the EEOC lists activities such as caring for oneself, walking, seeing and hearing as major life activities. In 1997, the EEOC first included as major life activities mental and emotional processes, such as thinking, interacting with others and concentrating. While the EEOC's guidance is helpful, recognize that the courts have not always agreed with the EEOC's interpretation of major life activities. For instance, in Doebele v. Sprint, 342 F.3d 1117 (10th Cir. 2003), the court concluded that concentration was not a major life activity, despite the EEOC's guidance to the contrary.

Rulings in case after case have affirmed that employees are not protected under the ADA due to mental stability issues alone and, therefore, such employees are not eligible for special accommodations in the workplace. For example, Mundo v. Sanus Health Plan of Greater New York, 966 F. Supp. 171 (E.D.N.Y. 1997), found that the ADA was 'not intended to categorize people with common personality traits as disabled.'

The courts have considered a variety of perceived mental disorders and ruled there is no protection under the ADA if personality traits are aspects of an employee's character and not a mental illness. For instance, in Watson v. City of Miami, 177 F.3d 932 (11^th Cir.1999), the court held that 'paranoid, disgruntled, oppositional,
difficult to interact with, unusual, suspicious, threatening and distrustful' are behavioral characteristics, not qualifying mental impairments. Job-related stress caused by an unlikeable boss or unpleasant duties is not a covered ADA impairment (Dewitt v. Carsten, 941 F. Supp. 1232 (N.D. Ga. 1996)), nor is 'poor judgment' (Greenberg v. New York State Department of Correctional Services, 919 F. Supp. 637 (E.D.N.Y. 1996)) or the inability to get along with others (Steele v. Thiokol Corp., 241 F.3d 1248 (10^th Cir. 2001)).

When an impairment does not substantially limit a major life activity, a court will likely dismiss the complaint. For instance, in Caraccuiki v. Bell Atlantic-Pennsylvania, 2005 U.S. App. LEXIS 3698 (3d Cir. 2005) (unpublished), the Third Circuit made the distinction between the employee's inability to interact with others (because she could not tolerate certain types of negative communication) versus higher levels of mental disability leading to social withdrawal, hostility and failure to communicate. For this reason, the court ruled that the employee's mental disorder did not create substantial limitations. The Ninth Circuit has ruled that a person's diminished capacity to perform was not the same as being substantially limited (Thornton v. McClatchy Newspapers, Inc., 292 F.3d 1045 (9th Cir. 2002)).

Employees suffering from temporary depression may seek a reasonable accommodation under the ADA. However, this condition is rarely a qualifying disability. Courts generally find that while temporary depression may create difficulty for the plaintiff, it does not substantially limit the ability to perform on the job or substantially limit other major life activities. The Supreme Court has analyzed the issue of substantial limitation with two questions: 1) Is the individual unable to perform a class or broad range of jobs because of the disability?; and 2) Is the individual nonetheless able to perform many other jobs? The word 'able' speaks to the issue of whether an employee is 'qualified' under the ADA. Under this analysis, temporary depression usually is not a qualified disorder.

Perhaps counter to what employers might expect, some courts have not agreed with the argument that the major life activity being affected must have a connection to the employee's ability to function in the workplace in order to seek ADA protection. In Janssen v. COBE Laboratories, Inc., 1999 U.S. App. LEXIS 30586 (10th Cir. 1999) (unpublished), the court made clear that applicable law 'does not require that the disability affect a claimant's work, only that it affects a major life activity.' Prior to this, Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499 (7th Cir. 1998), indicated that working was one of the possible major life activities that could be substantially limited by the disability. Chenoweth v. Hillsborouch County, 250 F.3d 1328 (11th Cir. 2001), however, stated the disability 'had no relevance at all to [the claimant's] work' and therefore, no accommodation was necessary.

Is the employee 'qualified'?

Since the ADA only protects individuals with disabilities that are 'qualified,' it is important for employers to understand that 'qualified' means an employee claiming a mental disorder is nevertheless able to perform the essential functions of the job, either with or without reasonable accommodation. This is outlined in 42 U.S.C. 12111(8); 29 C.F.R. ' 1630.2(m). Employees that continue to perform a job, even after the onset of a disability, have a good chance of proving they are qualified for the job. A deteriorating condition, though, becomes less convincing despite previous satisfactory performance. The court in Land v. Washington County, 243 F.3d 1093 (8th Cir. 2001) (unpublished), stated that an 'ADA plaintiff may not rely on past performance to establish that he is a qualified individual without accommodation when there is undisputed evidence of diminished or deteriorated abilities.'

Further, the courts have made it clear that it is the employer's burden to prove what functions are essential to a job; however, employees must prove whether they are qualified for ADA protection. Hamlin v. Township of Flint, 165 F.3d 426 (6^th Cir. 1999), states that the employer must show which functions are essential, if that is the issue in dispute. The plaintiff, however, 'retains the ultimate burden of proving that he is a qualified individual.' In addition, employees must often show a strong link as to how, even with reasonable accommodation, they remain qualified for the job. For example, Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560 (7th Cir. 1996), was dismissed because the employee was unable to 'produce sufficient evidence to establish a genuine issue of material fact as to his ability to perform the essential functions of his job with reasonable accommodation.'

In order to determine whether a disability 'substantially limits' an individual's ability to perform, the courts often compare the employee's limitations to what would be considered average ability. The Third Circuit determined, in Collins v. Prudential Investment and Retirement Services, 2005 U.S. App. LEXIS 148 (3d Cir. 2005) (unpublished), that an employee's ADHD did not 'substantially limit' her thinking and concentration abilities, and that being distracted during tasks, having trouble prioritizing, or showing up on time were limitations with which many people without ADHD must also manage. The court also suggested that the disability could be corrected with medication.

There are myriad topics addressed in the courts related to whether an employee is qualified, and employers are advised to understand the nuances.

Employer's Obligations for 'Reasonable Accommodation'

If an employee has a mental disability that substantially limits a major life activity, and the employee remains qualified to perform the essential job functions, then employers may have an obligation under the ADA to provide reasonable accommodation for the employee to continue to perform the job. The following are some basic guidelines in determining the employer's obligation to provide accommodation.

Request for an accommodation

An employer is under no obligation to initiate an accommodation for an employee with a disability and can require that requests be made in writing and include a description of the accommodation being sought. For instance, in Clouatre v. Runyon, 2003 U.S. App. LEXIS 25148 (5th Cir. 2003) (unpublished), the court stated that although the employee notified the employer of his mental disorder, the employer was under no obligation to make an accommodation, since the employee had not indicated how management could reasonably accommodate him. Likewise, in Seaman v. CSPH, Inc., 179 F.3d 297 (5th Cir. 1999), the court made clear that in cases involving mental disorders 'in which the resulting limitations are not obvious to the employer, an employee cannot remain silent and expect his employer to bear the burden of identifying the need for an suggesting appropriate accommodation.'

On the other hand, employers should note that some courts have ruled there may be an obligation to provide reasonable accommodation when it is known that a disability exists and that there is a need for accommodation, whether or not it was expressly requested. The courts generally agree that an employer cannot make the process for requesting accommodation unusually difficult or require specific language in the request.

A rule of thumb for employers might be to meet employees halfway when it is known a disability exists and the qualified employee can continue performing the job with a reasonable accommodation.

Engage in an interactive process

When an accommodation has been requested, the employer and employee should engage in an interactive process to solve the situation. In Zivkovic v. Southern California Edison Co., 302 F.3d 1080 (9th Cir. 2002), the court described three components of an interactive process. An 'interactive process requires: 1) direct communication between the employer and employee to explore in good faith the possible accommodations; 2) consideration of the employee's request; and 3) offering an accommodation that is reasonable and effective.

Choose an effective and reasonable accommodation

Often, there are several effective accommodations that can be considered to meet a qualified employee's request. Employers should know that they have the right to choose an effective accommodation and do not have to select an accommodation the employee most desires. When exploring the employee's request, employers can consider whether the accommodation creates an undue hardship for the company and whether the accommodation means changing essential functions of the job. Generally, the courts have upheld that employers do not have to lower job standards, change essential job functions or even keep the salary at the same level. Employers are not required to implement accommodations that cause an undue hardship for the company, but proving undue hardship is generally difficult within the court system.

In good faith, some employers make accommodations even if it could be proved that the employee's problem is not covered under the ADA. In doing so, the possibility exists for other employees to seek accommodations for similar maladies, thus opening the door for future litigation. Fortunately, the courts have been reluctant to punish employers for going above and beyond ADA requirements.

Conclusion

Because of the jurisdiction-specific cases interpreting mental illness under the ADA, employers should seek local legal counsel when developing and implementing policies to handle re-quests for accommodation. Training of employees in this area is also encouraged. Having trained employees to act under a clear ADA policy will best serve the interests of the employer as well as disabled employees.

Jonathan Hafen, a Shareholder with Parr Waddoups Brown Gee & Loveless in Salt Lake City, has extensive experience in federal and state courts with employment law issues and has published and lectured widely on a variety of topics including legal ethics, litigation strategy and employment. He can be reached at 801-532-7840 or [email protected].

As the stigma of mental illness lessens, employers are handling more frequent requests for accommodation under the Americans with Disabilities Act (ADA). Because serious physical impairments are often easier to identify and accommodate, learning to handle the gray areas of mental disorders as they relate to the ADA can be a challenge for employers.

As defined by the ADA, a qualifying disability is 'a physical or mental impairment that substantially limits one or more of the major life activities of such individual.' 42 U.S.C. 12102(2)(B), (C). The ADA regulations define disabilities broadly, including a specific reference to 'neurological systems, mental or psychological disorders.' (29 C.F.R ' 1630.2 (h).)

Because the ADA only provides such general guidance, litigation continues to arise as parties try to refine the concepts presented in the Act, such as whether a mental disorder is a qualifying impairment, whether an employee with a qualifying mental illness can perform essential job functions, and how the limitation of a major life activity caused by a qualifying mental illness can be reasonably accommodated in the workplace. As the contours of these issues sharpen, the employer's pathway to compliance, without 'overcomplying,' is becoming more clear.

What to Do When an Employee Requests an Accommodation

Recent cases suggest that employers should do more to confirm that an alleged mental illness qualifies as a 'disability' under the ADA before proceeding to discuss potential accommodations. The process of confirming a qualifying disability will also often narrow the range of required accommodations, thereby benefiting the employer. When an employee requests an accommodation based on a mental illness, the employer should make the following determinations prior to addressing potential accommodations: 1) has the alleged mental illness been properly diagnosed?; 2) is the mental illness a long-term pervasive problem which substantially limits a major life activity?; and 3) can the employee, with or without reasonable accommodation, continue to perform the essential job functions in light of the mental illness?

Has the mental illness been properly diagnosed?

It is appropriate for an employer to require that the employee requesting accommodation provide a written diagnosis of the mental disorder from a qualified health care provider. Often, we suggest that the employer provide a copy of the employee's job description to the health care provider and request that the health care provider specifically identify which job functions are impacted by the disorder ' and in what fashion. That process helps employers in a few ways. First, if the mental disorder's impact on job functions is narrow, that may limit the scope of required accommodations. Second, if the impact of the disability on job functions is severe, even with reasonable accommodations, the employee may not be qualified for protection under the ADA because he or she is unable to perform the essential functions of the job.

Does the mental illness qualify for protection under the ADA?

Employers should not accept all diagnoses of mental illness as automatically qualifying for a reasonable accommodation. As mentioned above, employers must determine whether the employee's particular mental illness qualifies for ADA protection. In some instances, such a determination is straightforward, such as cases of temporary depression (not a qualifying illness) or cases of a severe bipolar disorder (qualifying). The test to determine whether a mental illness qualifies for potential protection under the ADA is whether it is a long-term condition that 'substantially limits a major life activity.' While the courts have not always been uniform or even clear on what this phrase means, the cases do provide some guidance to employers.

Does the mental disorder substantially limit a 'major life activity'?

Most courts require an employee to articulate not only the impairment, but also the 'major life activity it affects.' It is the disorder's impact on the specified major life activity that determines whether the disorder is a 'disability' covered by the ADA.

Courts and the Equal Employment Opportunity Commission (EEOC) have given some guidance on what constitutes a major life activity. The U.S. Supreme Court has ruled that major life activities are those 'of central importance to daily life.' In explaining that decision and others, the EEOC lists activities such as caring for oneself, walking, seeing and hearing as major life activities. In 1997, the EEOC first included as major life activities mental and emotional processes, such as thinking, interacting with others and concentrating. While the EEOC's guidance is helpful, recognize that the courts have not always agreed with the EEOC's interpretation of major life activities. For instance, in Doebele v. Sprint , 342 F.3d 1117 (10th Cir. 2003), the court concluded that concentration was not a major life activity, despite the EEOC's guidance to the contrary.

Rulings in case after case have affirmed that employees are not protected under the ADA due to mental stability issues alone and, therefore, such employees are not eligible for special accommodations in the workplace. For example, Mundo v. Sanus Health Plan of Greater New York , 966 F. Supp. 171 (E.D.N.Y. 1997), found that the ADA was 'not intended to categorize people with common personality traits as disabled.'

The courts have considered a variety of perceived mental disorders and ruled there is no protection under the ADA if personality traits are aspects of an employee's character and not a mental illness. For instance, in Watson v. City of Miami , 177 F.3d 932 (11 th Cir.1999), the court held that 'paranoid, disgruntled, oppositional,
difficult to interact with, unusual, suspicious, threatening and distrustful' are behavioral characteristics, not qualifying mental impairments. Job-related stress caused by an unlikeable boss or unpleasant duties is not a covered ADA impairment ( Dewitt v. Carsten , 941 F. Supp. 1232 (N.D. Ga. 1996)), nor is 'poor judgment' ( Greenberg v. New York State Department of Correctional Services , 919 F. Supp. 637 (E.D.N.Y. 1996)) or the inability to get along with others ( Steele v. Thiokol Corp. , 241 F.3d 1248 (10 th Cir. 2001)).

When an impairment does not substantially limit a major life activity, a court will likely dismiss the complaint. For instance, in Caraccuiki v. Bell Atlantic-Pennsylvania, 2005 U.S. App. LEXIS 3698 (3d Cir. 2005) (unpublished), the Third Circuit made the distinction between the employee's inability to interact with others (because she could not tolerate certain types of negative communication) versus higher levels of mental disability leading to social withdrawal, hostility and failure to communicate. For this reason, the court ruled that the employee's mental disorder did not create substantial limitations. The Ninth Circuit has ruled that a person's diminished capacity to perform was not the same as being substantially limited ( Thornton v. McClatchy Newspapers, Inc. , 292 F.3d 1045 (9th Cir. 2002)).

Employees suffering from temporary depression may seek a reasonable accommodation under the ADA. However, this condition is rarely a qualifying disability. Courts generally find that while temporary depression may create difficulty for the plaintiff, it does not substantially limit the ability to perform on the job or substantially limit other major life activities. The Supreme Court has analyzed the issue of substantial limitation with two questions: 1) Is the individual unable to perform a class or broad range of jobs because of the disability?; and 2) Is the individual nonetheless able to perform many other jobs? The word 'able' speaks to the issue of whether an employee is 'qualified' under the ADA. Under this analysis, temporary depression usually is not a qualified disorder.

Perhaps counter to what employers might expect, some courts have not agreed with the argument that the major life activity being affected must have a connection to the employee's ability to function in the workplace in order to seek ADA protection. In Janssen v. COBE Laboratories, Inc., 1999 U.S. App. LEXIS 30586 (10th Cir. 1999) (unpublished), the court made clear that applicable law 'does not require that the disability affect a claimant's work, only that it affects a major life activity.' Prior to this, Davidson v. Midelfort Clinic, Ltd. , 133 F.3d 499 (7th Cir. 1998), indicated that working was one of the possible major life activities that could be substantially limited by the disability. Chenoweth v. Hillsborouch County , 250 F.3d 1328 (11th Cir. 2001), however, stated the disability 'had no relevance at all to [the claimant's] work' and therefore, no accommodation was necessary.

Is the employee 'qualified'?

Since the ADA only protects individuals with disabilities that are 'qualified,' it is important for employers to understand that 'qualified' means an employee claiming a mental disorder is nevertheless able to perform the essential functions of the job, either with or without reasonable accommodation. This is outlined in 42 U.S.C. 12111(8); 29 C.F.R. ' 1630.2(m). Employees that continue to perform a job, even after the onset of a disability, have a good chance of proving they are qualified for the job. A deteriorating condition, though, becomes less convincing despite previous satisfactory performance. The court in Land v. Washington County , 243 F.3d 1093 (8th Cir. 2001) (unpublished), stated that an 'ADA plaintiff may not rely on past performance to establish that he is a qualified individual without accommodation when there is undisputed evidence of diminished or deteriorated abilities.'

Further, the courts have made it clear that it is the employer's burden to prove what functions are essential to a job; however, employees must prove whether they are qualified for ADA protection. Hamlin v. Township of Flint , 165 F.3d 426 (6 th Cir. 1999), states that the employer must show which functions are essential, if that is the issue in dispute. The plaintiff, however, 'retains the ultimate burden of proving that he is a qualified individual.' In addition, employees must often show a strong link as to how, even with reasonable accommodation, they remain qualified for the job. For example, Bombard v. Fort Wayne Newspapers, Inc. , 92 F.3d 560 (7th Cir. 1996), was dismissed because the employee was unable to 'produce sufficient evidence to establish a genuine issue of material fact as to his ability to perform the essential functions of his job with reasonable accommodation.'

In order to determine whether a disability 'substantially limits' an individual's ability to perform, the courts often compare the employee's limitations to what would be considered average ability. The Third Circuit determined, in Collins v. Prudential Investment and Retirement Services, 2005 U.S. App. LEXIS 148 (3d Cir. 2005) (unpublished), that an employee's ADHD did not 'substantially limit' her thinking and concentration abilities, and that being distracted during tasks, having trouble prioritizing, or showing up on time were limitations with which many people without ADHD must also manage. The court also suggested that the disability could be corrected with medication.

There are myriad topics addressed in the courts related to whether an employee is qualified, and employers are advised to understand the nuances.

Employer's Obligations for 'Reasonable Accommodation'

If an employee has a mental disability that substantially limits a major life activity, and the employee remains qualified to perform the essential job functions, then employers may have an obligation under the ADA to provide reasonable accommodation for the employee to continue to perform the job. The following are some basic guidelines in determining the employer's obligation to provide accommodation.

Request for an accommodation

An employer is under no obligation to initiate an accommodation for an employee with a disability and can require that requests be made in writing and include a description of the accommodation being sought. For instance, in Clouatre v. Runyon, 2003 U.S. App. LEXIS 25148 (5th Cir. 2003) (unpublished), the court stated that although the employee notified the employer of his mental disorder, the employer was under no obligation to make an accommodation, since the employee had not indicated how management could reasonably accommodate him. Likewise, in Seaman v. CSPH, Inc. , 179 F.3d 297 (5th Cir. 1999), the court made clear that in cases involving mental disorders 'in which the resulting limitations are not obvious to the employer, an employee cannot remain silent and expect his employer to bear the burden of identifying the need for an suggesting appropriate accommodation.'

On the other hand, employers should note that some courts have ruled there may be an obligation to provide reasonable accommodation when it is known that a disability exists and that there is a need for accommodation, whether or not it was expressly requested. The courts generally agree that an employer cannot make the process for requesting accommodation unusually difficult or require specific language in the request.

A rule of thumb for employers might be to meet employees halfway when it is known a disability exists and the qualified employee can continue performing the job with a reasonable accommodation.

Engage in an interactive process

When an accommodation has been requested, the employer and employee should engage in an interactive process to solve the situation. In Zivkovic v. Southern California Edison Co. , 302 F.3d 1080 (9th Cir. 2002), the court described three components of an interactive process. An 'interactive process requires: 1) direct communication between the employer and employee to explore in good faith the possible accommodations; 2) consideration of the employee's request; and 3) offering an accommodation that is reasonable and effective.

Choose an effective and reasonable accommodation

Often, there are several effective accommodations that can be considered to meet a qualified employee's request. Employers should know that they have the right to choose an effective accommodation and do not have to select an accommodation the employee most desires. When exploring the employee's request, employers can consider whether the accommodation creates an undue hardship for the company and whether the accommodation means changing essential functions of the job. Generally, the courts have upheld that employers do not have to lower job standards, change essential job functions or even keep the salary at the same level. Employers are not required to implement accommodations that cause an undue hardship for the company, but proving undue hardship is generally difficult within the court system.

In good faith, some employers make accommodations even if it could be proved that the employee's problem is not covered under the ADA. In doing so, the possibility exists for other employees to seek accommodations for similar maladies, thus opening the door for future litigation. Fortunately, the courts have been reluctant to punish employers for going above and beyond ADA requirements.

Conclusion

Because of the jurisdiction-specific cases interpreting mental illness under the ADA, employers should seek local legal counsel when developing and implementing policies to handle re-quests for accommodation. Training of employees in this area is also encouraged. Having trained employees to act under a clear ADA policy will best serve the interests of the employer as well as disabled employees.

Jonathan Hafen, a Shareholder with Parr Waddoups Brown Gee & Loveless in Salt Lake City, has extensive experience in federal and state courts with employment law issues and has published and lectured widely on a variety of topics including legal ethics, litigation strategy and employment. He can be reached at 801-532-7840 or [email protected].