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 R YAN B ALLARD * & C HRIS H ENRY ** I. I NTRODUCTION 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 Cincinnati 13 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 ADA 14 and the subsequent 2012 EEOC regulations 15 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 WITH DISABILITIES ACT AND PSYCHIATRIC DISABILITIES, Notice No. 915.002 (Mar. 3, 1997) [hereinafter EEOC ENFORCEMENT 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. T HE 1992 R EGULATIONS 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 intellectual disability (formerly termed ‘mental ( continued ) 34 CAPITAL UNIVERSITY LAW REVIEW [44:31 The regulations formerly defined a “major life activity” as “functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” 26 One of the most important sections of the regulation is the definition of “substantially limits.” 27 A person’s disability substantially limits his or her life activity if he or she is “[u]nable to perform a major life activity that the average person in the general population can perform” or the individual is “[s]ignificantly restricted as to the condition, manner, or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.” 28 The regulation provides three factors for determining whether an individual is substantially limited in a major life activity. 29 These factors are: “(i) [t]he nature and severity of the impairment; (ii) [t]he duration or expected duration of the impairment; and (iii) [t]he permanent or long term impact resulting from the impairment.” 30 The regulation provides special guidance for the major life activity of “working” in that “substantially limits means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities.” 31 The regulations state that “[t]he inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.” 32 The regulations also provide additional factors to “consider[] in determining whether an individual is substantially limited in the major life activity of ‘working’”: (A) The geographical area to which the individual has reasonable access; (B) The job from which the individual has been disqualified because of an impairment, and the retardation’), organic brain syndrome, emotional or mental illness, and specific learning disabilities. 29 C.F.R. § 1630.2(h)(2) (2011). 26 29 C.F.R. § 1630.2(i) (1992). Most of these major life activities listed in the 1992 regulations primarily involve physical elements. See id. Additional categories were added to this definition. See infra Part VI. 27 29 C.F.R. § 1630.2(j) (2011). 28 Id. § 1630.2 (j)(1)(i)–(ii). 29 Id. § 1630.2 (j)(2)(i)–(iii). Significant changes were made in the regulations concerning this section. See infra Part VI. 30 29 C.F.R. § 1630.2 (j)(2)(i)–(iii). 31 Id. § 1630.2 (j)(3)(i). 32 Id. 2016] MEDIATION AND MENTAL HEALTH CLAIMS 35 number and types of jobs utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment . . . ; and/or C) The job from which the individual has been...