Mental Health Accommodations and the ADA: What Employers Should Know
Over 46 million adults in the United States have some kind of mental health condition, and 11.2 million adults have a significant psychiatric disability. Mental health conditions are the most common disability in the U.S., yet there are significant disparities in employment. Only 38.1% of adults with significant psychiatric disabilities are employed full-time compared to 61.7% of adults without disabilities. These disparities exist despite policy protections for people with disabilities, as seen in the Americans with Disabilities Act (ADA).
A review of charges filed under Title I of the ADA, maintained by the EEOC, found that almost a third (33.5%) of complaints filed by people with psychiatric disabilities from 2005-2014 were based on alleged violations of rights to reasonable accommodations. Among these cases, the most common were related to workplace flexibility and leave policies. These data align with descriptions of common accommodations found on the Job Accommodation Network (JAN), which is a resource for employees with disabilities and employers regarding workplace accommodations. Examples of common accommodations for people with mental health conditions provided by JAN include: flexible scheduling, modified break schedules, identified rest areas, identification and reduction of triggers, and allowing support animals or persons. A review of EEOC settlements from 2019-2022 found that employers paid out significant sums of money to settle cases brought by the EEOC for disability discrimination specifically regarding mental health accommodations.
Recent EEOC settlements have highlighted that employers are struggling with understanding the need for mental health accommodations in the workplace, and further that they are suffering for it. In Garrison v. Dolgencorp, Garrison requested a leave of absence from her position of lead sales associate at Dollar General, and was subsequently forced to quit because she was told that no form of leave was available, though she made clear to her supervisor that she needed a leave of absence due to her depression and anxiety. Garrison then sued her supervisor and Dollar General, claiming discrimination under the Americans with Disabilities Act (ADA). The court ruled that Garrison put Dollar General on notice that she would require accommodations no less than four times, even though she did not specifically state “accommodation”, and further, that Dollar General failed to engage in the interactive process under the ADA to see if leave at the time was a reasonable accommodation.
In EEOC v. Mine Rite Technologies, LLC,Mine Rite Technologies, LLC, a manufacturing company, agreed to pay $75,000 to settle this ADA lawsuit in which an employee, a veteran with post-traumatic stress disorder (PTSD), was harassed by his supervisor, who referred to the employee as a “psycho” to his coworkers and made comments about “Psycho Thursday” because this was the day of the week that the employee attended therapy sessions for his PTSD. When the harassment became intolerable, the employee was forced to quit to avoid further abuse. In addition to monetary relief, the consent decree includes an injunction against future discrimination based on disability and a requirement that Mine Rite create and implement EEO policies. Mine Rite was also required to train its employees and to provide a letter of apology and a letter of recommendation for the employee.
In EEOC v. Greektown Casinos, Greektown Casino LLC, a Detroit casino operator, agreed to pay $140,000 to settle this ADA lawsuit in which an employee requested an additional four weeks of extended leave following a stress-anxiety-related collapse on the job. Greektown denied the request and subsequently fired the employee after his leave under the Family and Medical Leave Act (FMLA) was exhausted. In addition to monetary relief, Greektown agreed to train supervisory and human resources employees on the requirements of the ADA.
Similarly, the EEOC filed a Civil Action against Party City in EEOC v. Party City Corporation. In this case, EEOC filed suit against Party City alleging disability discrimination when Party City failed to hire a qualified individual with a disability (the individual was on the autism spectrum and suffered from severe anxiety). Party City agreed to pay $155,000 in relief to the employee and agreed to revise and improve its reasonable accommodation policy; train human resources employees on the new policy and distribute it to all employees; report to the EEOC on all denials of employment to applicants with job coaches, and provide a notice regarding its decree to employees within the New England region, where the store at issue was located.
In EEOC v. L-3 Communications, a large defense contractor, L-3 Communications, agreed to pay $75,000 to settle this ADA lawsuit in which a 6-year employee, who went on medical leave after suffering two depressive episodes, was required to submit to a fitness-for-duty exam, even after receiving treatment and being released to return to work by his physician. The psychologist who conducted the fitness-for-duty exam concluded that the employee could return to work, but instead L-3 ended his employment by giving him the option to resign or be fired. In addition to monetary relief, L-3 Communications agreed to conduct employee training on the ADA.
Continuing the unfortunate trend, in EEOC v. Interconnect Cable Technology Corporation, Interconnect Cable Technologies Corporation (ICTC), an electronics manufacturer, agreed to pay $35,000 to settle this ADA lawsuit in which an employee, who was diagnosed with major depressive disorder and hospitalized, was stripped of her job duties, demoted, and had her pay cut upon returning to work after her hospitalization. ICTC terminated her employment about four months after her hospitalization. In addition to monetary relief, ICTC agreed to appoint an ADA coordinator, develop and distribute a written policy against disability discrimination, conduct anti-discrimination training for all company personnel, post a notice at its worksite about the lawsuit, and submit annual written reports to the EEOC.
In EEOC v. Kaiser Foundation Health Plan of Georgia, Inc., an employee of Kaiser requested a reasonable accommodation of using available non-revolving doors to access the workplace instead of using revolving doors. Due to the employee’s disability, using the revolving doors was traumatic for her. Kaiser refused to allow this and forced her to use the revolving doors. The court ruled that a reasonable accommodation under the ADA need not relate to the performance of an essential function of the job, and Kaiser was forced to pay $130,000 in damages to the employee.
In EEOC v. Hollingsworth Richards, LLC, a car dealership in New Orleans agreed to pay $100,000 to settle a lawsuit brought by the EEOC after subjecting the sales associate to unlawful inquiries and to an unlawful medical examination under the ADA after the employee disclosed that she took specific medication to help her with her diagnosed Attention Deficit Hyperactivity Disorder (ADHD). In addition to paying the employee, the three year consent decree also requires Hollingsworth to conduct training, revise policies, provide regular reports to the EEOC, and post a notice that affirms its obligations under the ADA and states that employees can report violations of the ADA.
In EEOC v. PeopleReady, Inc. et al, labor sourcing companies TrueBlue, Inc. and PeopleReady, Inc. agreed to pay $125,000 to settle this ADA lawsuit in which an employee, diagnosed with a psychiatric disability, was hospitalized and medically cleared to return to work but nonetheless terminated by the companies. The suit alleged that the termination was also based on the employee’s need to take future intermittent leave for outpatient medical appointments. In addition to monetary relief, TrueBlue, Inc. and PeopleReady, Inc. agreed to implement an ADA reasonable accommodation policy, engage in the interactive process to consider requests for medical leave as a reasonable accommodation, provide ADA compliance training, and submit periodic reports to the EEOC.
Not to be left out of the trend, Ranew’s Management Company, Inc., a provider of fabrication, coating, and assembly products to pay $250,000 to settle this ADA lawsuit in which an employee, diagnosed with severe depression, was terminated. The employee had requested and been granted time off to recuperate, per his doctor’s recommendation. When the employee tried to return to work and presented a doctor’s release, he was fired by the company’s CEO and told he couldn’t be trusted to perform his job. In addition to monetary relief, Ranew’s agreed to take steps to implement and distribute an ADA policy, train its executives, managers, and employees on the ADA’s obligations, and post a notice.
These cases highlight the importance of employers, even those without dedicated, on-site human resources employees, ensuring they are educated on reasonable accommodations and the process by which such are granted under the ADA. However, the courts have also placed some of the burden back on the employee when they are notifying the employer of the need for reasonable accommodation, specifically with regard to proving they are a qualified individual. In Jessup v. Barnes Group, Inc., the court highlighted the distinction between what constitutes a qualified individual under the ADA with relation to the timing during which the claims arose/took place. In 2000, Jeffrey Jessup began to work as a regional sales manager for one of the subsidiaries of the Barnes Group, Inc. ("Barnes"), "a global provider of highly engineered products, differentiated industrial technologies, and innovative solutions." He eventually became a business development manager for another Barnes subsidiary. Jessup testified that he experienced "[s]ignificant" stress in this role. In October 2016, he suffered a panic attack. Following his panic attack, Jessup requested a leave of absence through January 18, 2017. Barnes approved that request. Jessup later requested an extension of his leave through June 13, 2017, which Barnes also approved. Upon his return to work, Barnes subjected Jessup to discriminatory treatment and a hostile work environment. The court distinguished between Jessup’s claims that Barnes failed to accommodate under the ADA, and further that he was subjected to a hostile work environment and wrongfully terminated. The court stated that Jessup had failed to prove that he was a “qualified individual” in relation to his failure to accommodate and wrongful termination claims, but that Jessup did prove that he was a “qualified individual” for the purposes of his hostile work environment claim. The court further explained that (1) Jessup could not show that he was a “qualified individual,” a required element of his wrongful termination and failure-to-accommodate claims, because he admitted in his complaint and deposition that he had been unable to work since his relapse; and (2) Jessup failed to establish that Barnes’ treatment of him was sufficiently severe or pervasive to succeed on his hostile work environment claim.
The courts have also distinguished that having accommodations for a psychiatric disability does not absolve an employee from observing basic conduct standards with regard to decency and decorum in the workplace. In Scheidler v. Indiana, Scheidler, employed by the Indiana Department of Insurance (IDOI), sought accommodations for disabilities related to her mental health. She asked, among other things, that her coworkers not startle her. She received these accommodations for several years. In May 2013, a frustrated supervisor reached toward Scheidler and said, “I could just strangle you.” An investigation into the incident discovered that several months earlier Scheidler commented in an elevator about a coworker’s apparent promotion prospects: “It’s who you know and who you blow.” IDOI terminated Scheidler. She sued for disability discrimination, retaliation, and other claims. She lost some claims at summary judgment and the rest at trial. The Seventh Circuit affirmed. The closest Scheidler comes to advancing a failure-to-accommodate claim is under the theory that she asked her coworkers not to startle her, but the supervisor threatened to strangle her in an episode that was an isolated, “one-off” event. Scheidler claimed that her elevator comment was statutorily protected activity but the court held she failed both the subjective and objective factors because she did not have a sincere, good-faith belief she opposed an unlawful practice and because her comment did not involve discrimination prohibited by Title VII.
The court emphasizes in Zuckerman v. GW Acquisition LLC by the U.S. District Court for the Southern District of New York last year, an employee cannot simply establish a mental disability based on a diagnosis alone. Plaintiff began working for the Defendant in 2013, and after a pregnancy and request for lactation space in the workplace, was subjected to a hostile work environment at the hands of the defendant. On March 19, 2020, Plaintiff was furloughed due to the COVID-19 pandemic. She was put back on the payroll in May 2020 and was told that she would have to report back to the office for in-person work on July 6, 2020. In advance of the return date, Plaintiff requested that she be allowed to work from home for four to six additional months as a reasonable accommodation for her mental health condition. Plaintiff contends that Defendants initially agreed to allow her to work from home until September 7, 2020, but when they realized that her claimed anxiety was related to their alleged harassment, not to the pandemic, Defendants reneged on their work-from-home agreement. Regarding plaintiff’s disability discrimination suit, the court dismissed the suit stating that a diagnosis alone does not establish a mental or psychiatric disability.
Finally, in Summerland v. Exelon Generation Co., the courts have clarified that a “reasonable accommodation” isn’t always what the employee wants and/or demands, and that the employer is permitted to distinguish between reasonable vs. unreasonable accommodations. In this case, the U.S. District Court for the Northern District of Illinois recently evaluated the ADA and FMLA claims of an employee suffering from adjustment, anxiety and depression disorder. The employee's mental health conditions sometimes prevented her from working, driving or otherwise leaving her home, and would occasionally manifest in panic attacks. After the employee took FMLA leave twice, the employer pulled her badge, put her on a last-chance agreement and threatened to permanently revoke her work site access if she requested additional FMLA leave. The court held that those actions were sufficient to allege interference and retaliation under the FMLA and ADA. However, the court dismissed the employee's reasonable accommodation claim asserted under the ADA. The employee requested a changed work schedule in order to attend therapist appointments, but the court found that the employee was able to attend those appointments without a change in schedule, and could perform the essential functions of her job without such accommodation because she received only satisfactory evaluations and had no disciplinary record.
Accommodations for disabilities, whether physical or mental, are not a one-size-fits-all solution. Every person, disability, and need are different and employers must remember that the interactive process to find a solution that is reasonable for both the employee and the employer is essential.
In sum, mental health awareness is essential for employers to create a successful workplace environment. As we shift to a new normal workforce composed of a hybrid of employees working in-person and remotely in a society coping with mental health conditions, implementing mitigating measures could be beneficial to employers and create a better workplace environment for employees.
Mental Health & the ADA: What Employers Need to Know © 2022 by Heather Wester is licensed under CC BY-SA 4.0