Atypical Accommodations for Employees with Psychiatric Disabilities

• Author: Stacy A. Hickox,Angela Hall
• DOI: http://doi.org/10.1111/ablj.12125
• Published date: 01 September 2018
• Date: 01 September 2018

American Business Law Journal

Volume 55, Issue 3, 537–594, Fall 2018

Atypical Accommodations for

Employees with Psychiatric

Disabilities

Stacy A. Hickox* and Angela Hall**

People with psychiatric disabilities often need atypical accommodations to par-

ticipate in today’s workforce. Some of these accommodations, including struc-

tural and social changes in the workplace, can address biases against people

with psychiatric disabilities, while others ameliorate deficits that may affect

performance or interaction with others. Many courts have denied requests for

such accommodations based on employers’ assumptions about performance or

the direct threats purportedly posed by people with psychiatric disabilities. By

challenging these assumptions, which can be influenced by stigma and stereo-

types, and by enforcing an employer’s duty to interact regarding potential

accommodations, employees with psychiatric disabilities could benefit from

structural and social accommodations. Courts should consider social science

research in determining which nontraditional accommodations may be reason-

able and whether the employer can establish that they impose any undue hard-

ship. Such consideration will expand opportunities for people with psychiatric

disabilities in the workplace without unduly interfering with employers’

interests.

*Associate Professor, School of Human Resource and Labor Relations, Michigan State Uni-

versity. She received her Bachelor’s degree from the School of Industrial and Labor Rela-

tions at Cornell University and received her law degree from the University of

Pennsylvania.

**Associate Professor, School of Human Resource and Labor Relations, Michigan State Uni-

versity. She received her J.D. from Florida State University, College of Law and her Ph.D.

from Florida State University, College of Business.

©2018 The Authors

American Business Law Journal ©2018 Academy of Legal Studies in Business

537

INTRODUCTION

Courts must interpret the Americans with Disabilities Act (ADA)

1

in a

manner that ensures that employers will consistently and fairly accom-

modate employees with psychiatric disabilities.

2

People with psychiatric

disabilities, also known as mental illness, face unique barriers to employ-

ment and, consequently, have a significantly lower participation rate and

a higher unemployment rate in today’s workforce, compared to the par-

ticipation of those without disabilities.

3

Even if employed, their status has

been described as “at best, precarious.”

4

This lack of stable participation

in the workforce can be attributed, at least in part, to the unwillingness

of employers to provide nontraditional or unique accommodations for

employees with psychiatric disabilities.

5

As the labor market tightens,

employers who may need to “consider workers they once would have

1

42 U.S.C. §§ 12101–12213 (2012).

2

The American Psychiatric Association (APA) defines mental illnesses as “health conditions

involving changes in thinking, emotion or behavior” (or a combination of these). What Is

Mental Illness?,A

M.PSYCHIATRIC ASS’N, https://www.psychiatry.org/patients-families/what-is-

mental-illness (last visited Mar. 18, 2018). The term “psychiatric disability” is used by mental

health professionals and within the context of the ADA when an individual’s mental illness

interferes with performance of major life activities. What Is Psychiatric Disability and Mental

Illness?,B

OSTON UNIV., https://cpr.bu.edu/resources/reasonable-accommodations/what-is-

psychiatric-disability-and-mental-illness (last visited Mar. 18, 2018). Both the International

Classification of Diseases (ICD-10), a publication of the World Health Organization, and the

diagnostic statistical manual, published by the APA, outline three main types of mental ill-

nesses: anxiety disorders (such as panic disorders), mood disorders (such as bipolar disor-

der), and schizophrenia disorders. See id.;W

ORLD HEALTH ORG., INTERNATIONAL

CLASSIFICATION OF DISEASES AND RELATED HEALTH PROBLEMS (2016), http://www.who.int/

classifications/icd/en/.

3

Bureau of Labor Statistics, Employment Status of the Civilian Noninstitutional Population by Disabil-

ity Status and Age, U.S. DEP’TOFLABOR, https://www.bls.gov/news.release/disabl.a.htm (last

visited Mar. 23, 2018). The unemployment rate for people with psychiatric disabilities is

estimated at eighty percent. Mental Illness: NAMI Report Deplores 80 Percent Unemployment

Rate; State Rates and Ranks Listed-Model Legislation Proposed,N

AT’LALL.ON PSYCHIATRIC DIS-

ABILITIES (Jan. 1, 2014), https://www.nami.org/Press-Media/Press-Releases/2014/Mental-

Illness-NAMI-Report-Deplores-80-Percent-Un#sthash.awae8PFd.dpuf.

4

Susan Stefan, “You’d Have to Be Crazy to Work Here”: Worker Stress, the Abusive Workplace, and

Title I of the ADA,31L

OY. L.A. L. REV. 795, 801 (1998).

5

See infra text accompanying notes 58–156 for discussion of claims involving denials of

accommodations.

538 Vol. 55 / American Business Law Journal

turned away”

6

can and should expand their labor pool by providing

atypical accommodations for potentially productive employees with psy-

chiatric disabilities.

Atypical accommodations, including changes to the workplace struc-

ture, job design, and/or required social interactions, would enable many

people with psychiatric disabilities to function successfully in the work-

place without imposing a significant burden on their employers. Thus,

the judiciary system should interpret the ADA to require such atypical

accommodations to enhance the participation of people with psychiatric

disabilities in the labor market, for the benefit of themselves, employers,

and society in general. Such a requirement is supported by existing social

science research, which demonstrates the effectiveness of such atypical

accommodations in creating inclusive and diverse work environments,

and reaping the benefits of untapped human capital.

7

The ADA was enacted by Congress to provide greater inclusion in the

U.S. workforce for persons with disabilities.

8

The ADA requires

employers to provide reasonable accommodations for an otherwise quali-

fied individual with a disability, unless the employer can establish that

the accommodation would impose an undue hardship.

9

Part I of this

article explains the accommodation process and its importance to

employees with disabilities, as well as its potential benefits for employers.

In particular, people with psychiatric disabilities benefit from more atypi-

cal accommodations that enhance their ability to perform by providing

both physical changes in the workplace, such as noise reduction, as well

as social changes, such as different methods of communication with a

supervisor. Both structural and social accommodations could widen

opportunities for people with psychiatric disabilities to participate in the

labor force.

Despite the ADA’s accommodation requirement, employers generally

have been neither willing nor required to accommodate employees with

6

Ben Casselman, As Labor Pool Shrinks, Prison Time Is Less of a Hiring Hurdle, N.Y. TIMES

(Jan. 13, 2018), https://www.nytimes.com/2018/01/13/business/economy/labor-market-

inmates.html.

7

Lynn Perry Wooten, Breaking Barriers in Organizations for the Purpose of Inclusiveness,

47 HUM.RESOURCE MGMT.REV. 191, 191–96 (2008).

8

H.R. REP.NO. 485, pt. 2, at 28–29 (1990); S. REP.NO. 116, at 6 (1989).

9

42 U.S.C. § 12112(b)(5)(A) (2012).

2018 / Atypical Accommodations for Employees 539