From Agoraphobia to Xenophobia: Phobias and Other Anxiety Disorders Under the Americans With Disabilities Act

• Publication year: 1993

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 17, No. 2WINTER 1994

From Agoraphobia to Xenophobia: Phobias and Other Anxiety Disorders Under the Americans with Disabilities Act

John M. Casey(fn*)

I. Introduction

You are the owner of a small business. A few years ago, you asked a white female employee to make a delivery to another part of town. While making her delivery, your employee was accosted by a large African American man. She was thrown to the ground and left with a broken vertebrae, in a state of shock.

Your employee regained her physical health. Mentally, however, she did not fare so well; she has been plagued by emotional troubles ever since. She has nightmares in which she relives the attack, and being near black males causes her to experience panic attacks. The attacks bring on sweating, panic, and a rapid heartbeat. She is undergoing psychiatric treatment and has been diagnosed as having post-traumatic stress disorder and simple phobia. She does not experience similar nightmares or panic concerning men who are white or members of other racial groups.

Now the employee asks to speak with you in private. She demands that you accommodate her condition by segregating her from all African American males in her work section. What can you do? What must you do? If you consult an attorney for help, he or she will look to the Americans with Disabilities Act of 1990 (ADA)(fn1) for guidance. The ADA, however, will not provide much assistance.(fn2)

The ADA and the Civil Rights Act of 1964(fn3) have profoundly impacted how employers treat persons with physical or mental disabilities.(fn4) The ADA's individualized approach, coupled with the broad-reaching remedial provisions of the Civil Rights Act of 1991,(fn5) force employers to accommodate persons with disabilities to an unprecedented degree.

But the degree of required accommodation is unclear.(fn6) So too are the standards used to determine whether one is a person with a disability. In essence, the ADA prevents discrimination against persons with mental impairments, as long as the impairments substantially limit those persons' "major life activities."(fn7) A "mental impairment" is broadly defined as any mental or psychological disorder, except for certain disorders that Congress chose not to include.(fn8)

Conditions such as behavioral disorders, a type of mental disability,(fn9) are often less apparent to employers than are most obvious forms of mental disability. Yet such hidden behavioral disorders are a potentially greater source of stigma, employer indifference, and, ultimately, job termination. The ADA fails to address behavior disorders in general and phobias in particular. Does that mean that all behavioral disorders and phobias are disabilities under the ADA? Which of the available diagnostic systems will be used to help the courts decide?

Neither Congress nor the Equal Employment Opportunity Commission (EEOC), the agency responsible for promulgating many of the regulations under the ADA,(fn10) has answered these questions. Courts cannot simply rely on the broad provisions of preexisting federal statutes. Without extensive guidance on what is a mental disability under the ADA, employers and employees will be left to the haphazard, costly, and time-consuming alternative of resorting to the courts to determine the precise nature of their responsibilities and rights in the workplace. It is time that the EEOC provide that guidance.

This Comment proposes that the EEOC take two actions. First, the EEOC should pass administrative rules that settle the question of which standards to use in determining whether an individual is mentally impaired. Second, and more importantly, the EEOC should issue interpretive guidance that acknowledges the burdens facing persons with hidden behavioral anomalies and phobias, and gives these persons additional help under the Act.

Part II of this Comment describes the ADA generally. It explains the Act's purpose and summarizes the Act's legal requirements. Part III describes the legal requirements for bringing a mental impairment case under the ADA. Cases decided under the Rehabilitation Act of 1973(fn11) are used to illustrate the legal hurdles that face an ADA plaintiff and to provide guidance as to how similar cases would be decided under the ADA. Finally, Part IV of this Comment examines some of the pragmatic concerns of employers and employees regarding persons with hidden disorders and proposes that the EEOC take steps to ameliorate the treatment of such persons under the ADA.

II. The ADA Generally and Mental Impairments

Former President George Bush signed the ADA into law on July 26, 1990.(fn12) The Act is a comprehensive plan that seeks to prohibit discrimination against persons with disabilities. Certain aspects of the ADA, such as which employers are covered, what burdens of proof are used, and what damages are available, are roughly patterned after Title VII of the Civil Rights Act. The ADA has five titles, the first of which governs the hiring and employment of disabled Americans.(fn13) While the Act does not guarantee jobs for persons with disabilities,(fn14) it does specify that employers may not discriminate against disabled persons who meet the job-related requirements for a particular position and who can perform the essential functions of the job, with or without reasonable accommodation.(fn15) Section A below examines the purpose of the ADA. Section B addresses the substantive law of the ADA.

A. Purpose of the ADA

The ADA's main purpose is to ensure that individuals with disabilities are not excluded from job opportunities unless such individuals are actually unable to do the job.(fn16) Secondarily, the ADA attempts to prevent "common attitudinal barriers" that often result in employers excluding individuals with disabilities by requiring that employers ensure that job criteria in fact measure skills required on the job.(fn17) The ADA presumes that, once we as a society grow accustomed to measuring job requirements by the essential skills of the job, we will more readily accept persons with disabilities into the work force.

The ADA requires that individuals with disabilities be given the same consideration for employment that individuals without disabilities are given.(fn18) But a major policy question is how far the ADA ought to go to affect the workplace. Should the ADA attempt to revolutionize the way employers treat their employees in general? Does the ADA require employers to give the same level of accommodation to an employee with a behavioral anomaly as the employer would give to a worker with a physical disability? The law is unclear. It seems that courts will have to decide unless the EEOC clarifies the issue. A brief discussion of the substantive law of the ADA will put the issue into perspective.

B. The Substantive Law of the ADA

Briefly stated, the ADA prohibits a covered entity(fn19) from discriminating against a qualified individual with a disability because of the disability.(fn20) For simplicity, this Comment refers to all covered entities as "employers."

1. Stating a Case Under the ADA

To successfully state a case under the ADA, one must first prove discrimination.(fn21) To "discriminate" under the ADA is to directly limit or segregate individuals because of their disabilities, to use standards or criteria that have the effect of discriminating, or to fail to make reasonable accommodations to the known physical or mental limitations of applicants or employees.(fn22)

A discrimination claim, thus, involves an individual with a disability. An "individual with a disability" is one who (1) has a current physical or mental impairment that substantially limits one or more of the individual's major life activities, (2) has a record of having such impairment, or (3) is regarded as having such an impairment.(fn23) Congress chose to exclude several disorders from the definition of "disability"; these excluded disorders include gender identity disorders not resulting from physical impairments, voyeurism, kleptomania, compulsive gambling, and pyromania.(fn24)

An individual with a disability is "qualified" if he or she meets the skill, experience, education, and other job-related requirements of a position held or desired, and can perform the essential functions of the job, with or without reasonable accommodation.(fn25)

Determining whether the individual has a disability is only the first step of proving discrimination under the ADA. The second step requires a showing that the disability substantially limits the individual in one or more major life activities.(fn26) A major life activity is a basic activity that the average person in the general population can perform with little or no difficulty.(fn27) Sitting, standing, lifting, reaching, caring for oneself, walking, seeing, hearing, speaking, breathing, learning, and working are major life activities.(fn28) In determining whether a person is substantially limited in a major life activity, one should consider the nature and severity of impairment, the duration or expected duration of the impairment, and the actual or expected long-term impact of the impairment.(fn29) One should consider whether a plaintiff is substantially limited in the major life activity of working only if the plaintiff is not severely impacted in any other major life activity.(fn30)

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