On December 12, 2016, the U.S. Equal Employment Opportunity Commission (EEOC) published a resource document for employees advising them of their rights with respect to mental health conditions under the Americans with Disabilities Act of 1990 (the ADA). The focus of the publication is on preventing discrimination and harassment in the workplace due to depression, post-traumatic stress disorder (PTSD) and other mental health conditions.
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The EEOC advises that before employers can refuse to hire, fail to promote, or terminate an employee based upon a mental health condition, they must have “objective” evidence that the condition renders them unable to perform their essential job duties with a reasonable accommodation, or that the condition would create a significant safety risk. The EEOC explains that the duty of providing a reasonable accommodation extends to any mental health condition that would, if left untreated, “substantially limit” the employee’s ability to “concentrate, interact with others, communicate, eat, sleep, care (for himself or herself), regulate (his or her) thoughts or emotions, or do any other ‘major life activity.’”
The EEOC further states that the mental health condition symptoms do not need to be permanent, but rather, can “come and go”. This is because, according to the EEOC, “what matters is how limiting (the mental health conditions) would be.” According to the EEOC, certain mental health conditions “should easily qualify” as substantially limiting disabilities under the ADA. The following mental health conditions were identified by the EEOC as “easily qualify(ing”) as a substantially limiting disability under the ADA: major depression, PSTD, bipolar disorder, schizophrenia, and obsessive compulsive disorder.
The EEOC further explains that a mental health condition does not have to result in a high degree of functional limitation in order to be considered “substantially limiting.” Rather, the EEOC states that mental health conditions may qualify as substantially limiting so long as they result in “making activities more difficult, uncomfortable, or time-consuming to perform compared to the way that most people perform them.”
Further, the EEOC advises employees that they may generally keep their mental health condition private at work, but identified four scenarios under which employers may legally ask an employee about their mental health condition:
- When an employee asks for a reasonable accommodation due to the condition;
- After a job offer, but before employment begins, so long as everyone entering the same job category is asked the same question;
- When the employer is engaging in affirmative action for people with disabilities, in which case the employee may choose whether or not to respond; and
- When an employer has objective evidence that the employee is unable to perform the job, or that the employee may pose a safety risk, because of the condition.
The EEOC’s published guidance may reflect that it intends to take a more aggressive approach on alleged discrimination or harassment claims based on mental health conditions. In conjunction with its publication, the EEOC issued a press release reflecting a concern over discrimination based on mental health disabilities, stating that its data shows that charges of discrimination based on mental health conditions are on the rise and that “[d]uring fiscal year 2016…the EEOC resolved almost 5,000 charges of discrimination based on mental health conditions, obtaining approximately $20 million for individuals with mental health conditions were unlawfully denied employment and reasonable accommodations.”
This guidance serves as a reminder to employers regarding their duties under the ADA. Most employers are aware that physical disabilities are covered under the ADA. However, employers must also remember that they cannot discriminate or retaliate against, and have a duty reasonably accommodate, employees who have mental health disabilities as well. Employers should pay particular attention to the specific disabilities identified by the EEOC that “should easily qualify” for ADA treatment. Finally, the EEOC also makes clear that you “cannot rely on myths and stereotypes” about a particular mental condition, when deciding whether a job applicant or employee can perform the job duties in question or pose a significant safety risk.