Vol. 8, No. 1, Pg. 32. Stress and Mental Disorders in the Workplace: Increased Focus Under the Americans with Disabilities Act.

• Author: By Kenneth E. Young and William H. Foster III

South Carolina Lawyer

1996.

Vol. 8, No. 1, Pg. 32.

Stress and Mental Disorders in the Workplace: Increased Focus Under the Americans with Disabilities Act

32STRESS AND MENTAL DISORDERS IN THE WORRPLACE: Increased Focus Under the Americans with Disabilities ActBy Kenneth E. Young and William H. Foster IIIPost traumatic stress syndrome. Bipolar mood disorder Manic depression. Medical terms once confined to the cloistered walls of psychiatrists' offices and mental health clinics and for which employees who were discriminated against had few legal remedies, if any, are now demanding the attention of employers. No longer viewed by society as a weakness or character flaw, it is "okay" to seek help for mental disorders in the '90s. Not only is it socially acceptable but, in many instances, legally protected

The National Institute of Health estimates that over 17.6 million Americans suffer from some form of depression, including 9% of the male work force and 17% of the female work force. By virtue of lost production, absenteeism and medical care, the estimated cost of employers is approximately $50 billion annually.

While there have been limited restricions employers regarding the handling of employers regarding the handling of employees with mental disorders under the Rehabilitation Act of l973, 29 U.S.C. § 701, et seq., (covering government employers, contractors, subcontractors, etc.) and various state laws, it was not until July 26, 1992 - the effective date of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq., (ADA) that a large, gaping coverage hole, the national private sector, was filled.

The ADA prohibits an employer from discriminating "against a qualified individual with a disability because of the disability of such individual" in any aspect of unemployment. Remedies provided under the ADA include reinstatement, back pay, compensatory and punitive damages and attorney's fees. 42 U.S.C. § 12117 (a). This article provides a brief overview of key provisions of the Act from an employer's perspective and discusses recent cases which interpret these provisions.

DISABILITY

The term disability means, with respect to an individual: (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 impairment; or (C) being regarded as having such impairment.

42 U.S.C. § 12102(2). Mental impairment is further defined as "[a]ny mental or physiological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities." 29 C.F.R. § 1630.2(h)(2)(1995). The existence of a mental impairment is to be determined without regard to medication or other mitigating

34 measures that eliminate or control the symptoms of the disorder. 29 C.F.R. App. § 1630.2(h) (1995). Common personality traits such as poor judgment or a quick temper will not by themselves constitute impairments under the ADA. Id. Likewise, generalized stress from job or personal pressures, without more, is not a disability under the ADA. See ADA Technical Assistance Manual at II-3. The ADA also specifically excludes certain disorders, including current illegal drug use, compulsive gambling, pedophilia, exhibitionism, and sexual behavior disorders. See 42 U.S.C. § 12211. Homosexuality and bisexuality are likewise excluded from coverage. Id.

KNOWLEDGE

The ADA does not require an employer to make accommodation for a physical or mental limitation of an employee of which it is unaware. 29 C.F.R. app. § 1630.9 (1995) ("[A]n employer would not be expected to accommodate disabilities of which it is unaware."); See, e.g., Miller v. National Casualty Co., 61 F.3d 627, 630 (8th Cir. 1995) ("The ADA does not require clairvoyance."). In general, "it is the responsibility of the individual with a disability to inform the employer that an accommodation is needed." 29 C.F.R. app. § 1630.9 (1995).

SUBSTANTIALITY LIMITS

To constitute a disability covered by the ADA, an impairment must substantially limit one or more major life activities. 42 U.S.C. § 12102(2). Factors to be considered in determining whether a condition substantially limits major life activities include...