Mediation and Mental Health Claims under the ADA

• Author: Ryan Ballard - Chris Henry
• Position: University of Louisville-Brandeis School of Law, J.D., 2014. Ballard practices business and employment law in New Albany, Indiana. He can be contacted at rballard@ballardlawin.com.
• Pages: 31-65

MEDIATION AND MENTAL HEALTH CLAIMS

UNDER THE ADA

RYAN BALLARD* & CHRIS HENRY**

I. INTRODUCTION

In the United States, 26.2% of adults experience mental health

illnesses.1 Of these adults, 22.3% are classified as experiencing “serious”

illness.2 Furthermore, 30.4% of adults in the United States have

experienced severe depression in the last twelve months.3 A survey of 515

executives and human resource leaders found that 31% of respondents

believed mental health issues were the leading cause of lost productivity

and increased absenteeism at work.4 According to a 2006 study published

in the American Journal of Psychiatry, employees with major depressive

disorder miss an average of 27.2 days of work per year, and employees

with bipolar disorder miss an average of 65.6 days.5 The study also found

a company’s indirect cost per employee is $4,426 for employees with

major depressive disorder and $9,619 for employees with bipolar disorder.6

A study published in the Journal of Occupational and Environmental

Medicine found work loss is more often caused by major depression than

Copyright © 2016, Ryan Ballard & Chris Henry.

* University of Louisville-Brandeis School of Law, J.D., 2014. Ballard practices

business and employment law in New Albany, Indiana. He can be contacted at

rballard@ballardlawin.com.

** University of Louisville-Brandeis School of Law, J.D., Magna Cum Laude, 2014.

Henry is a staff attorney at the Kentucky Court of Appeals.

1 Ronald C. Kessler et al., Prevalence, Severity, and Comorbidity of Twelve-Month

DSM-IV Disorders in the National Comorbidity Survey Replication, 62 ARCHIVES GEN.

PSYCHIATRY 617, 619 (2005).

2 Id.

3 Id. at 620.

4 P’SHIP FOR WORKPLACE MENTAL HEALTH, AM. PSYCHIATRIC FOUND., INNERWORKINGS:

A LOOK AT MENTAL HEALTH IN TODAY’S WORKPLACE 7 (2007), [hereinafter

INNERWORKINGS].

5 Ronald C. Kessler et al., Prevalence and Effects of Mood Disorders on Work

Performance in a Nationally Representative Sample of U.S. Workers, 163 AM. J.

PSYCHIATRY 1561, 1564 (2006).

6 Id. at 1562.

32 CAPITAL UNIVERSITY LAW REVIEW [44:31

by physical conditions such as diabetes, asthma, or arthritis.7 A report by

the National Institute of Mental Health states that 80% of these individuals

who seek treatment for depression improve with appropriate treatment.8

These statistics highlight why employers must learn about the legal issues

involved in addressing employees with depression and other mental health

concerns.

The Americans with Disabilities Act (ADA)9 represents a major step

forward in civil rights for American citizens living with disabilities. This

article begins by explaining the enactment of the original statute, the

regulations promulgated by the Equal Employment Opportunity

Commission (EEOC),10 and the EEOC enforcement guidelines for

psychiatric disabilities,11 with a focus on the application of the ADA to the

employment context. Next, this article analyzes the United States Supreme

Court case Sutton v. United Air Lines, Inc.12 to examine its effect on lower

court decisions. Next, the article analyzes Swanson v. University of

Cincinnati13 from the Sixth Circuit to show how the rule articulated in

Sutton severely limits a plaintiff’s ability to meet the definition of

“disabled” under the ADA for mental health. The article then explores the

2008 amendments to the ADA14 and the subsequent 2012 EEOC

regulations15 to focus on the changes between the old regulations and the

new regulations. Next, the article examines another case from the Sixth

Circuit, Peters v. University of Cincinnati College of Medicine,16 to

demonstrate how the new regulations have made it easier for plaintiffs with

mental health impairments to qualify as disabled under the ADA. The

7 Ronald C. Kessler et al., The Effects of Chronic Medical Conditions on Work Loss and

Work Cutback, 43 J. OF OCCUPATIONAL HEALTH & ENVTL. MED. 218, 220 (2001).

8 Depression Statistics, DEPRESSION AND BIPOLAR SUPPORT ALLIANCE,

http://www.dbsalliance.org/site/PageServer?pagename=education_statistics_ depression

(last visited Oct. 16, 2015).

9 Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12101–12217 (2012).

10 29 C.F.R. §§ 1630.1–1630.16 (1992).

11 U.S. EQUAL EMP. OPPORTUNITY COMM’N, EEOC ENFORCEMENT GUIDANCE ON THE

AMERICANS WI TH DISABILITIES ACT AND PSYCHIATRIC DISABILITIES, Notice No. 915.002

(Mar. 3, 1997) [hereinafter EEOC ENFORCEMEN T GUIDANCE].

12 527 U.S. 471 (1999).

13 268 F.3d 307 (6th Cir. 2001).

14 Americans with Disabilities Amendments Act of 2008, Pub. L. No. 110-325, 122

Stat. 3553.

15 29 C.F.R. § 1630.2 (2012).

16 No. 1:10–CV–906, 2012 WL 3878601 (S.D. Ohio Sept. 6, 2012).

2016] MEDIATION AND MENTAL HEALTH CLAIMS 33

article then explores as the increasing importance of mediation in

employment law in light of new trends for employers who have employees

with mental health disabilities. The article concludes with a discussion of

general mediation practices and provides several resources for employers

to implement effective mental health programs.

II. THE 1992 REGULATIONS

In 1990, Congress enacted the Americans with Disabilities Act (ADA)

to, in part, “provide a clear and comprehensive national mandate for the

elimination of discrimination against individuals with disabilities.”17 This

was in response to a congressional finding that “historically, society has

tended to isolate and segregate individuals with disabilities, and, despite

some improvements, such forms of discrimination against individuals with

disabilities continue to be a serious and pervasive social problem.”18 The

ADA defines “disability” to mean “A) a physical or mental impairment

that substantially limits one or more of the major life activities of such

individual; B) a record of such an impairment; or C) being regarded as

having such impairment.”19 As it pertains to Title I employment

provisions, Section 106 of the Act requires the EEOC to issue regulations

within one year from the enactment,20 which was July 26, 1990.21

The EEOC is responsible for developing comprehensive regulations to

enforce Title I of the ADA.22 These regulations clarify several of the key

terms within the Act’s definition of disability.23 First, the regulation

defines “physical or mental impairment” as “[a]ny physiological disorder,

or condition, cosmetic disfigurement, or anatomical loss affecting” various

body systems.24 The regulations define “mental impairment” as “[a]ny

mental or psychological disorder, such as mental retardation, organic brain

syndrome, emotional or mental illness, and specific learning disabilities.”25

17 Americans with Disabilities Act of 1990, Pub. L. No. 101–336, § 2(b)(1), 104 Stat.

327, 329 (1990).

18 Id. § 2(a)(2).

19 Id. § 3(2).

20 Id. § 106.

21 104 Stat. at 327.

22 § 101(1), 104 Stat. at 330; § 107(b), 104 Stat. at 336–37.

23 29 C.F.R. § 1630.2 (1992).

24 Id. § 1630.2(h)(1).

25 Id. § 1630.2(h)(2). The current regulations define “mental impairment” as “[a]ny

mental or psychological disorder, such as an in tellectual disability (formerly termed ‘mental

(continued)