Responsibilities of employers toward mentally disabled persons under the Americans with Disabilities Act.

• Author: Mika, Karin

1. MENTAL ILLNESS IN GENERAL II. THE LEGAL DEFINITION OF MENTAL DISABILITY III. WHEN MUST AN EMPLOYER BE ON NOTICE OF A MENTAL DISABILITY? IV. ESSENTIAL JOB FUNCTIONS V. REASONABLE ACCOMMODATION VI. OTHERWISE QUALIFIED VII. DIRECT THREAT OF HARM VIII. THE FUTURE OF MENTAL DISABILITIES UNDER THE ADA: SUGGESTIONS FOR CHANGE IX. CONCLUSION

   Proclaimed as "ultimately a civil rights bill,"(3) the Americans with Disabilities Act(4) extended protection of civil rights within the employment sphere for persons with physical and mental disabilities.(5) At the same time, the legislation encouraged the integration of persons with disabilities within the workplace.(6) While the Americans with Disabilities Act incorporates the language of its predecessor, the Rehabilitation Act of 1973,(7) neither Act contains any statutory specifics that address the difficulties of dealing with mental illness in the workplace. Because the Americans with Disabilities Act is vague with respect to accommodating mental illness and because mental illness itself is often part of uncertain science, the rights and responsibilities of employers dealing with alleged or perceived mental illness are also uncertain. One of the areas that is most problematic for an employer when making promotion and retention decisions is making promotion and retention decisions that comport with their legal obligations. Employers raise legitimate concerns about what are their rights in making employment decisions, especially in light of their duty under the Americans with Disabilities Act as well as their interest in maintaining a profitable, efficient business.

   This article will discuss the standards of the ADA with respect to accommodating mental illness in the workplace. It will argue the ADA definitions are not precise enough in apprising employers of what are their obligations regarding mentally ill persons in the workplace. It will additionally make suggestions for revising the statute and regulations to achieve this goal. In reaching its conclusion, this article will discuss popular conceptions about mental illness, and the current statutory framework of the ADA. Representative case law will be considered within the context of these topics. The article will ultimately suggest that fairness to both employers and employees can only be achieved by clearer definitions within the statute and an overt acknowledgment that mental disabilities are not necessarily synonymous with physical disabilities.

1. MENTAL ILLNESS IN GENERAL

   The medical definition of "mental illness," in many respects, differs from the popular understanding of the term.(8) Popular culture often associates mentally ill as synonymous with insanity "with the result" being a crazed and uncontrolled behavior.(9) This picture may conjure images of straitjackets, forced sedation electroshock therapy.(10) Popular culture does not always associate mental illness with depression or alcoholism-legitimate mental health disorders that do not always substantially affect day-to-day functioning, and, in fact, are quite prevalent in our society.(11)

   Mental health professionals themselves disagree as to whether personality disorders, alcohol abuse, and substance abuse are properly characterized as mental illness or personality flaws.(12) There is also a debate as to whether gender-related conditions such as menopause and premenstrual syndrome are substantially "life-impairing" such that they too might require legal accommodation as mental illnesses under the federal statute.(13) In addition, there are some organic disorders, such as mental retardation and Alzheimer's disease, that are both physical and mental disabilities.(14)

   Mental health professionals as a whole struggle with where drawing the line between normal and abnormal behavior.(15) The conglomerate of mental health professionals share many common methods of diagnosing "mentally ill" patients, but often disagree on ultimate assessments and modes of treatments.(16) The tool most widely used by mental health professionals is the Diagnostic and Statistical Manual of Mental Disorders (DSM), produced by the American Psychiatric Association as an attempt at uniform diagnosis within the profession.(17) Now in its fourth revision, the DSM-IV, like its three predecessors, has been criticized because of its complexity and because it is more of an encyclopedia of classification rather than a diagnostic tool.(18) The current DSM validates the reality that there are many uncertain aspects of behavioral study.

2. THE LEGAL DEFINITION OF MENTAL DISABILITY

   One of the difficulties of eliminating employment discrimination against persons with mental disabilities is recognizing what is a mental disability requiring accommodation under federal law. Many mental disabilities are not visible or readily apparent to most observers and still may warrant protection under the ADA if properly diagnosed;(19) however, definitions of some types of mental disabilities under the ADA are not precise enough to make clear the persons who are intended to benefit from the Act's protection. The statute grants protection to those having a "mental impairment that substantially limits one or more of the major life activities of such individual."(20) The Code of Federal Regulations supplements this definition by adding, "any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities."(21) There is no comprehensive list as to what emotional or mental illnesses were contemplated by the legislature, and recognized "legal" mental disabilities are established on a case-by-case basis.(22)

   Under both the Rehabilitation Act and the ADA, individuals may meet the definition of "handicapped" or "disabled" in three different ways.(23) The first is that the person must have an actual physical or mental impairment that "substantially limits one or more major life activities."(24) The second is that the person has a "record" of such an impairment;(25) for instance, the person has been previously hospitalized for the disorder.(26) The third way is to be regarded "as having such an impairment"(27)--Sometimes described as "having been treated as handicapped," or discriminated against because of "unsubstantiated concerns."(28) Those meeting one of the definitions must be qualified for the job which they "hold or desire."(29) Any accommodation for the person must be "reasonable" for the employer to make.(30) In this definitional section, the Act makes no distinction between physical and mental impairments.

   Congress articulated a desire for the ADA to provide better standards for application than did the Rehabilitation Act.(31) Section 12101(b)(2) of the ADA expressly states that the purpose of the legislation is to develop "clear, strong, consistent, enforceable standards" for preventing employment discrimination with respect to those disabilities articulated. To accomplish this purpose, Congress instructed the Equal Employment Opportunity Commission (EEOC) to formulate final instructive regulations within one year of the implementation of the Act.(32) The interpretative guidelines for the portions of the statute dealing with Mental Disabilities is included in the Code of Federal Regulations as an appendix to Section 1630. The EEOC has also issued "technical assistance manuals" for Parts I, II, and III of the Americans with Disabilities Act.(33)

   The "Interpretive Guidance" of the EEOC mirrors the Rehabilitation Act regulations. Both specify that "mental impairment" is "any mental or psychological disorder."(34) However, under the interpretive guidelines, a distinction is made between behaviors that are merely the result of undesirable personality traits as opposed to behaviors that are symptoms of a mental or psychological disorder.(35) The guidelines and the corresponding federal regulations specifically exclude from their definitions persons with disorders stemming from current illegal drug use.(36)

   Once the existence of a protected "impairment" is established, the individual must demonstrate that he or she is "otherwise qualified" for the job.(37) Qualification is measured by whether the person has the appropriate educational background, skills, and experience.(38) If So, the person must be able to perform "essential job functions,"(39) as opposed to marginal functions, with or without reasonable accommodation provided by the employer.(40) A qualified person with a disability must request an accommodation from the employer who then has the option to choose the mechanism for the accommodation from among any available "reasonable" alternatives.(41) The ADA does not allow pre-employment inquiries into medical history.(42)

   Daley v. Koch(43) is the leading case dealing with the distinction between general character or behavioral traits that are undesirable as distinguished from behavior symptomatic of an abnormal mental condition. In Daley, the employee applied for a position as a police officer. The application process required the employee to submit to psychological testing.(44) The testing revealed that the employee exhibited "poor judgment, irresponsible behavior and poor impulse control."(45) As a result of the testing, he was denied the position. The employee then filed a discrimination claim under the Rehabilitation Act, charging that he was denied the position because of his mental disability.(46) The court refused to recognize the claim, holding that commonplace personality traits do not rise to the level of impairment intended by Congress to be protected. No further evidence was presented by the plaintiff-employee to show that he had been diagnosed with mental illness or a mental disorder. The court did not consider a personality shortcoming to fall within the protections of the Statute.(47)

   In another case decided under the Rehabilitation Act, the employee also failed to meet the threshold requirement of...