Perceived Mental Impairment in the Workplace

The “regarded as” prong protects against discrimination based on misperceptions concerning an individual's abilities. An individual is “regarded as” disabled when he or she: 1) has a physical or mental impairment that does not substantially limit a major life activity but is treated by an employer as having such limitation; 2) has a physical or mental impairment that substantially limits a major life activity only as a result of the attitudes of others toward the impairment; or 3) has no impairment but is treated by an employer as having a substantially limiting impairment. 29 C.F.R. ' 1630.2(l). The “regarded as” prong does not focus on the individual's actual abilities, “but rather on the reactions and perceptions of the persons interacting or working with him.” Kelly v. Drexel Univ., 94 F.3d 102, 109 (3d Cir. 1996) (citation omitted).

The Interpretative Guidance for Title I of the ADA provides three scenarios as examples of when individuals may establish a “regarded as” claim of disability discrimination: 1) an employer reassigns an employee, who has controlled high blood pressure that is not substantially limiting, to less strenuous work because of unsubstantiated fears that the employee will nevertheless suffer a stroke; 2) an employer takes action against an individual with a prominent facial scar or disfigurement because of the negative reactions of customers; and 3) an employer discharges an employee in response to a rumor that the employee is infected with HIV even though the rumor is totally unfounded. 29 C.F.R. Pt. 1630, App.

Although these examples involve physical impairments, the ADA applies equally to mental impairments. Just substitute “mental impairment,” “bipolar disorder” or any other mental condition for the conditions in these examples: 1) an employer reassigns or terminates an employee who has controlled bipolar disorder that is not substantially limiting because of unsubstantiated fears that the employee will nevertheless become violent; 2) an employer takes action against an individual with a mental impairment because of the negative reactions of co-workers; 3) an employer discharges an employee in response to a rumor that the employee is crazy or mentally unstable even though the rumor is totally unfounded. It is readily apparent how rumors or concerns about an employee's mental stability may form the basis for a “regarded as” claim.

What Is the Basis for the Concerns?

“Regarded as” claims result from incorrect assumptions or unfounded fears. When an employer acts based on unsubstantiated fears, myths or stereotypes about an employee, it runs the risk of violating the “regarded as” prong of the ADA. Therefore, when concerns arise about an employee's mental stability, an employer is wise first to determine the root of the concerns. Has there been a recent diagnosis or claimed diagnosis of a mental impairment (depression, anxiety, bipolar disorder, schizophrenia, etc.)? Are there new performance issues or unexplained or erratic conduct in the workplace? Does the employee just not “fit in” with the other employees?

Diagnosis of a Mental Impairment

Employers often find themselves faced with an ADA lawsuit when they learn about an employee's mental condition and subsequently take an employment action against that employee. Mere knowledge of an employee's mental condition is not enough to establish a “regarded as” disability claim. However, when that knowledge is combined with comments by supervisors about the employee's condition, questions by the employer about the employee's ability to work because of the condition or comments that the employee is “nuts,” “psycho,” “certifiable,” “crazy,” “schitzo” or “mental,” courts have allowed “regarded as” claims. Such statements, particularly when made by decision makers, can be fatal to an employer's defense of a disability discrimination claim.

Employers should be wary about making assumptions about an employee's abilities based solely on a diagnosis of a mental impairment. Employers who take action based only on a diagnosis without an accompanying medical opinion that there is reason for concern face the potential for liability. As one court has stated: “The belief that the mentally ill are disproportionately dangerous is precisely the type of discriminatory myth that the Rehabilitation Act and ADA were intended to confront.” Quiles-Quiles v. Henderson, 439 F.3d 1, 6 (1st Cir. 2006).

The ADA requires individualized inquiries into an individual's capabilities. The same diagnosis may result in different limitations for different individuals. An employer rarely should take an adverse action based solely on a diagnosis.

If the employer has a legitimate concern that an employee can no longer perform the job or poses a direct threat of harm to himself or others, the employer may consider seeking medical advice. If there is a legitimate basis for concern, a fitness-for-duty exam may be appropriate. However, if there is no legitimate basis for the concern, even requiring the exam may be viewed as discriminatory.

An employer may first need to seek medical advice concerning whether a particular diagnosis or behavior it has witnessed is cause for concern before it requests an exam. Under the ADA, an employer may only require an exam of an employee if there is a legitimate reason for the exam
and the exam is job related and consistent with business necessity. The employer must have a reasonable basis to inquire as to whether the employee is capable of performing his job, and the exam must be limited to evaluating the employee's fitness related to the job.

Even if it receives a medical opinion that an employee cannot safely return to work, the employer may not be out of the woods in terms of avoiding an ADA claim. Often, an employee will be able to convince his own physician that he can return to work. Plaintiffs have sometimes successfully challenged employment decisions based on the opinion of the employer's doctor when that opinion is contradicted by the employee's own physician. An employer, therefore, should make sure the employee's doctor has all of the pertinent information about the basis for the employer's concerns, any performance or behavioral issues, the job requirements and, when present, any medical opinions the employer has obtained. An employer's decision is strongest when it relies on an opinion from the employee's treating physician instead of the employer's doctor.

When the employee's physician opines that the employee can safely perform his job, the employer is faced with a difficult decision. If an employer has received a medical opinion that the employee is a danger to himself or others and the employer nevertheless returns the employee to work, the employer may face a negligence or intentional tort claim if something happens. If the employer chooses not to return the employee to work based on its doctor's opinion, but contrary to the opinion of the employee's doctors, it may face an ADA lawsuit.

When there are contrary medical opinions, courts may scrutinize the medical opinion upon which the employer relied to determine whether it is well-reasoned and whether the employer acted reasonably in relying upon it. If misinformation has been provided to the doctor or the doctor did not actually evaluate the employee, but instead just reviewed records, the employer's decision may be called into doubt.

Employee Misconduct or New Behavior Issues

In the absence of a legitimate basis for concern (preferably supported by medical opinion), or a request for an accommodation, an employee's “diagnosis” should generally be ignored by the employer. Regardless of whether there has been a diagnosis of an impairment, an employer's best course of action is to focus on actual behavior or work performance issues rather than unsubstantiated concerns about what an employee's mental state is. Has the employee done something that, regardless of cause, would lead to discipline or discharge? Are the co-workers complaining because of performance deficiencies for which they must cover? Are they complaining because of attitude issues that are disruptive to the work environment? Has the employee engaged in misconduct or insubordination?

If the employee is not adequately performing the essential functions of the job, or has engaged in conduct that would subject him to discipline, the employer should institute corrective action for the employee just as it would any other employee. It should not matter what the cause of the misconduct is unless the employer is on notice that the employee requires a reasonable accommodation. Otherwise, the employer should not assume that the misconduct was caused by some mental impairment.

Fitness-for-Duty Exams

Many employers who think a medical condition may be causing an employee's behavior want to send the employee out for a medical exam before issuing discipline. An employer should only send an employee out for a fitness-for-duty exam if it is willing to return the employee to work if the doctor concludes that the employee is capable of returning to work. If the employer is not willing to return the employee to work, there is no reason for the exam. Sending the employee for a fitness-for-duty exam may imply that the decision whether to discipline or terminate the employee is contingent upon the results of the exam. If the misconduct or performance failings are sufficient to warrant termination, there is no need for a fitness for duty exam to determine the cause of the behavior. When the performance failings or misconduct are such that would normally require discipline, the employer should discipline the employee accordingly.

Determining whether there is a medical cause for the misconduct does nothing but assist the employee in establishing a disability claim. If the employer sends an employee for an exam and then learns that there is a condition causing the misconduct, the employer is now on notice about the employee's impairment or condition. The employer may have a duty to accommodate that condition. If the fitness for duty clears the employee to return to work, the employer, who questioned the employee's ability to work, may now have a problem removing the employee from the workplace because a medical professional has determined that the employee is capable of performing the job.

Conclusion

“Regarded as” claims are among the most frequently litigated disability claims and the hardest to defend. Whenever there are concerns about an employee's “ability” to perform a job, an employer should make sure that its decision is supported either by actual performance or conduct in the workplace or reliable and well-reasoned medical opinion, preferably from the employee's treating physician. If there are no performance issues and no threatening behavior, words or actions, the “concerns” may be nothing more than speculation about the employee who is “odd,” “different,” or just does not “fit in.” Relying on rumors or other unsubstantiated concerns, without investigating the basis for the concerns, may turn this ostracized, but otherwise good, employee into a “disability” plaintiff.

Patricia Anderson Pryor, a member of this newsletter's Board of Editors, is a partner in the Labor and Employment Department at Taft, Stettinius & Hollister LLP. She represents and advises employers in all forms of litigation, and dispute resolution, including mediation and arbitration. She is a frequent speaker at legal seminars and has been featured on the radio broadcast, Employment Straight Talk.

Almost every employer has experienced it: the employee who suddenly seems a little “off,” the rumors circulating among the co-workers that he is “odd,” “strange” or “crazy,” and then the resulting concerns from employees who are uncomfortable around, or fearful of, the labeled employee. Employers who take action because there are rumors that the employee is “crazy,” “psycho” or “nuts” often find themselves the subject of an Americans with Disabilities Act (“ADA”) lawsuit facing claims that they regarded the individual as mentally disabled. What's an employer to do? How an employer handles concerns about an employee may be the difference between an amicable work environment and a lengthy and costly lawsuit.

The 'Regarded As' Prong of the ADA

The ADA prohibits an employer from discriminating against an employee because of a disability. Under the ADA, an individual has a disability if he or she has an actual impairment that substantially limits a major life activity; has a record of an impairment that substantially limits a major life activity; or is regarded by his or her employer as substantially limited in a major life activity.

The “regarded as” prong protects against discrimination based on misperceptions concerning an individual's abilities. An individual is “regarded as” disabled when he or she: 1) has a physical or mental impairment that does not substantially limit a major life activity but is treated by an employer as having such limitation; 2) has a physical or mental impairment that substantially limits a major life activity only as a result of the attitudes of others toward the impairment; or 3) has no impairment but is treated by an employer as having a substantially limiting impairment. 29 C.F.R. ' 1630.2(l). The “regarded as” prong does not focus on the individual's actual abilities, “but rather on the reactions and perceptions of the persons interacting or working with him.” Kelly v. Drexel Univ. , 94 F.3d 102, 109 (3d Cir. 1996) (citation omitted).

The Interpretative Guidance for Title I of the ADA provides three scenarios as examples of when individuals may establish a “regarded as” claim of disability discrimination: 1) an employer reassigns an employee, who has controlled high blood pressure that is not substantially limiting, to less strenuous work because of unsubstantiated fears that the employee will nevertheless suffer a stroke; 2) an employer takes action against an individual with a prominent facial scar or disfigurement because of the negative reactions of customers; and 3) an employer discharges an employee in response to a rumor that the employee is infected with HIV even though the rumor is totally unfounded. 29 C.F.R. Pt. 1630, App.

Although these examples involve physical impairments, the ADA applies equally to mental impairments. Just substitute “mental impairment,” “bipolar disorder” or any other mental condition for the conditions in these examples: 1) an employer reassigns or terminates an employee who has controlled bipolar disorder that is not substantially limiting because of unsubstantiated fears that the employee will nevertheless become violent; 2) an employer takes action against an individual with a mental impairment because of the negative reactions of co-workers; 3) an employer discharges an employee in response to a rumor that the employee is crazy or mentally unstable even though the rumor is totally unfounded. It is readily apparent how rumors or concerns about an employee's mental stability may form the basis for a “regarded as” claim.

What Is the Basis for the Concerns?

“Regarded as” claims result from incorrect assumptions or unfounded fears. When an employer acts based on unsubstantiated fears, myths or stereotypes about an employee, it runs the risk of violating the “regarded as” prong of the ADA. Therefore, when concerns arise about an employee's mental stability, an employer is wise first to determine the root of the concerns. Has there been a recent diagnosis or claimed diagnosis of a mental impairment (depression, anxiety, bipolar disorder, schizophrenia, etc.)? Are there new performance issues or unexplained or erratic conduct in the workplace? Does the employee just not “fit in” with the other employees?

Diagnosis of a Mental Impairment

Employers often find themselves faced with an ADA lawsuit when they learn about an employee's mental condition and subsequently take an employment action against that employee. Mere knowledge of an employee's mental condition is not enough to establish a “regarded as” disability claim. However, when that knowledge is combined with comments by supervisors about the employee's condition, questions by the employer about the employee's ability to work because of the condition or comments that the employee is “nuts,” “psycho,” “certifiable,” “crazy,” “schitzo” or “mental,” courts have allowed “regarded as” claims. Such statements, particularly when made by decision makers, can be fatal to an employer's defense of a disability discrimination claim.

Employers should be wary about making assumptions about an employee's abilities based solely on a diagnosis of a mental impairment. Employers who take action based only on a diagnosis without an accompanying medical opinion that there is reason for concern face the potential for liability. As one court has stated: “The belief that the mentally ill are disproportionately dangerous is precisely the type of discriminatory myth that the Rehabilitation Act and ADA were intended to confront.” Quiles-Quiles v. Henderson , 439 F.3d 1, 6 (1st Cir. 2006).

The ADA requires individualized inquiries into an individual's capabilities. The same diagnosis may result in different limitations for different individuals. An employer rarely should take an adverse action based solely on a diagnosis.

If the employer has a legitimate concern that an employee can no longer perform the job or poses a direct threat of harm to himself or others, the employer may consider seeking medical advice. If there is a legitimate basis for concern, a fitness-for-duty exam may be appropriate. However, if there is no legitimate basis for the concern, even requiring the exam may be viewed as discriminatory.

An employer may first need to seek medical advice concerning whether a particular diagnosis or behavior it has witnessed is cause for concern before it requests an exam. Under the ADA, an employer may only require an exam of an employee if there is a legitimate reason for the exam
and the exam is job related and consistent with business necessity. The employer must have a reasonable basis to inquire as to whether the employee is capable of performing his job, and the exam must be limited to evaluating the employee's fitness related to the job.

Even if it receives a medical opinion that an employee cannot safely return to work, the employer may not be out of the woods in terms of avoiding an ADA claim. Often, an employee will be able to convince his own physician that he can return to work. Plaintiffs have sometimes successfully challenged employment decisions based on the opinion of the employer's doctor when that opinion is contradicted by the employee's own physician. An employer, therefore, should make sure the employee's doctor has all of the pertinent information about the basis for the employer's concerns, any performance or behavioral issues, the job requirements and, when present, any medical opinions the employer has obtained. An employer's decision is strongest when it relies on an opinion from the employee's treating physician instead of the employer's doctor.

When the employee's physician opines that the employee can safely perform his job, the employer is faced with a difficult decision. If an employer has received a medical opinion that the employee is a danger to himself or others and the employer nevertheless returns the employee to work, the employer may face a negligence or intentional tort claim if something happens. If the employer chooses not to return the employee to work based on its doctor's opinion, but contrary to the opinion of the employee's doctors, it may face an ADA lawsuit.

When there are contrary medical opinions, courts may scrutinize the medical opinion upon which the employer relied to determine whether it is well-reasoned and whether the employer acted reasonably in relying upon it. If misinformation has been provided to the doctor or the doctor did not actually evaluate the employee, but instead just reviewed records, the employer's decision may be called into doubt.

Employee Misconduct or New Behavior Issues

In the absence of a legitimate basis for concern (preferably supported by medical opinion), or a request for an accommodation, an employee's “diagnosis” should generally be ignored by the employer. Regardless of whether there has been a diagnosis of an impairment, an employer's best course of action is to focus on actual behavior or work performance issues rather than unsubstantiated concerns about what an employee's mental state is. Has the employee done something that, regardless of cause, would lead to discipline or discharge? Are the co-workers complaining because of performance deficiencies for which they must cover? Are they complaining because of attitude issues that are disruptive to the work environment? Has the employee engaged in misconduct or insubordination?

If the employee is not adequately performing the essential functions of the job, or has engaged in conduct that would subject him to discipline, the employer should institute corrective action for the employee just as it would any other employee. It should not matter what the cause of the misconduct is unless the employer is on notice that the employee requires a reasonable accommodation. Otherwise, the employer should not assume that the misconduct was caused by some mental impairment.

Fitness-for-Duty Exams

Many employers who think a medical condition may be causing an employee's behavior want to send the employee out for a medical exam before issuing discipline. An employer should only send an employee out for a fitness-for-duty exam if it is willing to return the employee to work if the doctor concludes that the employee is capable of returning to work. If the employer is not willing to return the employee to work, there is no reason for the exam. Sending the employee for a fitness-for-duty exam may imply that the decision whether to discipline or terminate the employee is contingent upon the results of the exam. If the misconduct or performance failings are sufficient to warrant termination, there is no need for a fitness for duty exam to determine the cause of the behavior. When the performance failings or misconduct are such that would normally require discipline, the employer should discipline the employee accordingly.

Determining whether there is a medical cause for the misconduct does nothing but assist the employee in establishing a disability claim. If the employer sends an employee for an exam and then learns that there is a condition causing the misconduct, the employer is now on notice about the employee's impairment or condition. The employer may have a duty to accommodate that condition. If the fitness for duty clears the employee to return to work, the employer, who questioned the employee's ability to work, may now have a problem removing the employee from the workplace because a medical professional has determined that the employee is capable of performing the job.

Conclusion

“Regarded as” claims are among the most frequently litigated disability claims and the hardest to defend. Whenever there are concerns about an employee's “ability” to perform a job, an employer should make sure that its decision is supported either by actual performance or conduct in the workplace or reliable and well-reasoned medical opinion, preferably from the employee's treating physician. If there are no performance issues and no threatening behavior, words or actions, the “concerns” may be nothing more than speculation about the employee who is “odd,” “different,” or just does not “fit in.” Relying on rumors or other unsubstantiated concerns, without investigating the basis for the concerns, may turn this ostracized, but otherwise good, employee into a “disability” plaintiff.

Patricia Anderson Pryor, a member of this newsletter's Board of Editors, is a partner in the Labor and Employment Department at Taft, Stettinius & Hollister LLP. She represents and advises employers in all forms of litigation, and dispute resolution, including mediation and arbitration. She is a frequent speaker at legal seminars and has been featured on the radio broadcast, Employment Straight Talk.