The ADA & Mental and Emotional Disabilities

4826-8450-3096
THE ADA & MENTAL AND
EMOTIONAL DISABILITIES
W. Mark Gavre
801.536.6834
mgavre@parsonsbehle.com
Parsons Behle & Latimer Employment Law Seminar
parsonsbehle.com
BOISE CENTRE | TUESDAY, OCTOBER 11, 2016 | BOISE, IDAHO

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 A disability is (a) a physical or mental impairment that (b)
substantially limits (c) a major life activity
 “Any mental or psychological disorder” is included (EEOC)
 A major life activity includes caring for oneself, sleeping,
getting up in the morning, bathing, dressing, preparing meals,
mentally concentrating, speaking, learning, thinking, reading,
communicating, interacting with others, working, etc.
– Also includes “”major bodily functions” (definition circular)
ADA BASICS

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 To be “substantially limited” in a major life activity means
to be “significantly restricted” in the activity when
compared to the “average person in the general
population”
– The person does NOT have to be UNABLE to perform the
activity
ADA BASICS (cont.)

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 To be a disability, an impairment does NOT have to be
permanent or long-term
 It may be transitory, episodic or in remission
– Can last less than six months
 Mitigating measures, e.g., medications, are NOT taken
into account in determining if there is a disability
– Except ordinary eyeglasses and contact lenses
 Negative side effects of medications ARE considered
ADA BASICS (cont.)

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 Impairment “need not severely or significantly limit a major life
activity” to be “substantially limiting”
 “Substantially limits” construed broadly “in favor of expansive
coverage”
 Disability determination “should not require extensive
analysis”
 Determination “will not usually require scientific or medical
evidence”
 Must be based on “individualized assessment”
EEOC on Disabilities

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 Some conditions “should easily be concluded to be
disabilities,” including:
– Autism
– Major depressive disorder
– Bipolar disorder
– Post-traumatic stress disorder
– Obsessive-compulsive disorder
– Schizophrenia
EEOC on Disabilities (cont.)

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 After 2008 ADA amendments, “it will be much easier for
individuals … to demonstrate that they meet the definition
of ‘disability’”
 The “primary focus of an ADA inquiry” should be “whether
discrimination occurred, not whether an individual meets
the definition of ‘disability’”
EEOC on DISABILITIES (cont.)

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 Employee with an actual disability
 Employee with a “record” of a disability, i.e., once was
disabled (but is no longer)
 Employee who is “regarded as” disabled by employer (but
does not actually have a disability)
– Employer treats differently because employee is believed to
have an impairment
 Employee who “associates with” a person with a disability
FOUR CATEGORIES of PROTECTED
INDIVIDUALS

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 Must not discriminate against (treat differently) based on
actual or perceived disability or history of disability or
association with another with a disability
– Refuse to hire, fire, fail to promote, demote, etc.
 Must make “a reasonable accommodation” to a “qualified”
employee with a disability (actual or perceived) that would
enable the employee to perform the “essential functions”
of the job
EMPLOYER OBLIGATIONS

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 Reasonable accommodation must be made if need for
accommodation is known or obvious or if it is requested
 Employer must engage in “interactive process” with
employee over possible accommodations
– Employer should not ask: “Are you disabled?”
• Okay to ask: “Can you do the essential functions of this job?”
 Employer violates the ADA if it fails to do either
EMPLOYER OBLIGATIONS (cont.)

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 A “qualified” person is one who can perform the “essential
functions” of a job “with or without a reasonable
accommodation”
 Employer not required to do something that would impose
“an undue hardship”
– No objective standard and distinction from a “reasonable
accommodation” not always clear
• Rule of thumb: bigger employer must do more

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 Employer not required to employ someone who poses a
“direct threat” to health or safety of others or self
 Employer obligated to offer alternative position (if exists
and vacant) if employee cannot perform current position
even with a reasonable accommodation
– Employee must be able to perform alternative job with or
without a reasonable accommodation
– Employee with a disability must be given priority; does not have
to be most qualified, only “qualified”

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 Leave of absence
 Telecommute or work from home
 Adjust job duties
– Essential functions need not be eliminated
 Modify work schedule; flexible work schedule
 Change start time or end time
 Reduce hours worked or move to part-time
REASONABLE ACCOMMODATIONS

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 Must always engage in interactive process
 Cannot in practice dispute claim of disability
 Difficult to show “undue hardship”
– Even if employee asks for too much, some degree of
accommodation expected and should be offered
 Difficult to show “direct threat”
– Cannot be hypothetical or only remote possibility
– Must be very serious
EMPLOYER’S DILEMMA

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 Identify “essential functions”
– Regular on-time attendance?
– Work in the office? Team work?
– Work well with others?
– Meet deadlines?
– Handle stress?
– Work extra hours? Weekends?
 Job description helps address if employee is “qualified”
and if requested accommodation is “reasonable”
IMPORTANCE OF JOB DESCRIPTION

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 Food service worker with Hydrocephalus, causing
difficulties with memory, dizziness and concentration
 At hiring, worker requested additional training time and
assistance of a job coach to learn to perform job
 Employee terminated
 EEOC sued
 Employer settled for $75,000 and change in policies with
extra training
WORKER WITH HYDROCEPHALUS

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 Long-term employee with good record suffered from
intensified depression
– Could not maintain normal work schedule
– Missed significant work time; worked unscheduled hours to
make up missed time; completed all work assignments
 Supervisor did not allow employee to work after 6:00 pm
 Part-time telecommuting and advanced sick leave denied
 Employee takes permanent disability retirement
EMPLOYEE WITH SEVERE DEPRESSION

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 Requested flexible work schedule might be reasonable
– Employee worked modified schedule earlier under different
supervisor
– Individualized assessment required—not done
 Physical presence at work at specific time not shown to be
necessary, i.e., an essential function
 Employer retaliated against employee for asking for
accommodation
 Disability retirement did not bar employee’s ADA claims
RULING ON EMPLOYEE
WITH DEPRESSION

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 Employee made “credible, detailed and unwavering plan to kill
his supervisors”
 Thus employee “was unable to appropriately handle stress
and interact with others—an essential function of his job”
 Employer had no “reasonable accommodation” obligation
 Employer did not need “legitimate, nondiscriminatory reason”
for discharge
 Not a “direct threat” case—no need to assess future risk
EMPLOYEE MAKING DEATH THREATS

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 Female hired as aircraft mechanic—only woman in the group
 Suffered from PTSD based on childhood trauma
– Triggered by profanity, confrontation, stress, sexual violence, etc.
– Caused debilitating anxiety and dissociative episodes
 Overwhelmed by workplace behaviors and hospitalized with
severe anxiety and suicidal ideation
 Independent medical assessment (15 hrs): has “low threshold
for feeling threatened,” “perceives threats and hostility where
none existed,” and “triggers difficult to predict”
FEMALE EMPLOYEE WITH PTSD

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 Employee never returned to work and sued
 Six-day bench trial (judge, no jury); employer wins
 Judge: Workplace not a hostile work environment
 Judge: Employee unable “to manage normal stresses of the
workplace,” could not “interact appropriately with others,”
could not “deal with ambiguous, intense or emotionally-
charged circumstances”
 Employee “did not have the coping skills to perform the
essential functions of her job”—not qualified
EMPLOYEE WITH PTSD (cont.)

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 Employee a medical transcriptionist; good performer
 Developed “problems getting to work on time or at all” due to
“series of obsessive rituals”
 “Leave of absence for medical treatment” a reasonable
accommodation because “plausibly” could have helped
– No guarantee of success required
 Work from home a reasonable accommodation because
“physical attendance” at office “not an essential job duty”
– Employer allowed other transcriptionists to work at home
EMPLOYEE WITH OBSESSIVE
COMPULSIVE DISORDER

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 Flexible start-time tried but does not work
 Duty to accommodate is a “continuing duty that is not
exhausted by one effort”
 Employee “does not forfeit her right to a more substantial
accommodation upon the failure of the initial effort”
 Employer rejects work-from-home request without
discussing other possibilities—failure to engage in inter-
active process
OBSESSIVE COMPULSIVE EMPLOYEE (cont.)

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 Employee fired for absenteeism and tardiness
 Judge: case to go to jury trial
 Issues:
– Employer failed to engage in interactive process?
– Employer failed to make reasonable accommodation?
– Discriminatory firing because of employee’s disability?
OBSESSIVE COMPULSIVE EMPLOYEE (cont.)

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 Employee “managed employees,” “worked closely with
partners and suppliers,” and responsible for “employee
development”
 “Maintaining a regular and predictable work schedule”
normally an essential Job function, but “regular and
predictable attendance at the workplace is not per se an
essential function of all jobs”
 Employer concedes “vast majority of plaintiff’s job is
accomplished over the computer and phone which does not
require physical presence in the office”
EMPLOYEE WITH MIGRAINES

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 Employee fired for absenteeism
 In past employee had “successfully telecommuted and
worked from home during migraine episodes”
 Judge: At trial plaintiff can try to prove employer’s failure
to engage in interactive process since one or more
accommodation was possible
 Judge: At trial plaintiff can try to prove discriminatory
firing because her absenteeism resulted from her
migraines
EMPLOYEE WITH MIGRAINES (cont.)

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 After heart attack, warehouse worker has “has short-term
memory loss and cognitive issues from cardiac arrest.”
 Employee’s MD:
– Patient “to permanently experience problems with 5-20 percent
of his memory” which is “worsened by stress”
– Patient can “work fine with some help” such as “taking notes”
 After returning to work, employee asks for assistance
“using handheld scanner”
EMPLOYEE WITH HEART ATTACK

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 Employee tells supervisor “having trouble remembering
procedures”
 Employee reprimanded for excessive bathroom breaks
 Employee criticized for taking “too long” to do tasks
 Employee takes intermittent FMLA leave for stress
 Employee disciplined for poor performance and discharged
 Judge: At trial, plaintiff can assert interactive process,
reasonable accommodation and discriminatory firing claims
EMPLOYEE WITH HEART ATTACK (cont.)

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 Hair stylist with claustrophobia could not work in confined
space between other hair stylists
 Initially assigned to open station away from others
 Reassigned to station between other stations
 Repeated requests to return to original location denied
 Had anxiety attack and sent to hospital emergency room
 Needed two months off for medical treatment and fired
 EEOC sues. Employer settles for $60,000 plus ADA training
EMPLOYEE WITH CLAUSTROPHOBIA

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 W. Mark Gavre
801.536.6834
mgavre@parsonsbehle.com
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The ADA & Mental and Emotional Disabilities

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