Mediation and Mental Health Claims under the ADA

AuthorRyan Ballard - Chris Henry
PositionUniversity 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.
Pages31-65
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 TODAYS 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 plaintiffs 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. §§ 1210112217 (2012).
10 29 C.F.R. §§ 1630.11630.16 (1992).
11 U.S. EQUAL EMP. OPPORTUNITY COMMN, 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. 1:10CV906, 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 disabilityto 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 Acts definition of disability.23 First, the regulation
defines “physical or mental impairmentas [a]ny physiological disorder,
or condition, cosmetic disfigurement, or anatomical loss affectingvarious
body systems.24 The regulations define “mental impairmentas [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. 101336, § 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 33637.
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)

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