The Effects of Mental Health Disability in the Workplace: Are Accommodations Needed?

You may already know that mental illness is a protected disability under the Americans With Disabilities Act (ADA). This means that your employer cannot discriminate against you for having a mental illness, and furthermore, must make accommodations to allow you to do your job, with whatever limitations you may have because of your mental illness.

But unlike many physical disabilities, mental illness carries with it an element that often allows employers to discriminate: In many cases, the effects of mental illness can provide an employer what seems on the surface like a good, non-discriminatory reason for firing or punishing an employee.

A Typical Example

Take as an example, an employee, suffering from bipolar disorder, who sends a series of bizarre emails, saying he is going to oust the company CEO. He also sends emails to a work colleague which are threatening, thus making the company become concerned for other employees’ safety. .

Assume that we know that these actions were a result of the man’s bipolarity. When he is punished by his employer for doing these things, he sues under the ADA and the California Fair Employment and Housing Act. Was he discriminated against?

The company will allege that it was not firing the man because he had a mental illness, but rather, because he had made threats to his fellow employee. The man would allege that his boss was just discriminating against him because of his bipolar disorder.

The BFOQ Defense

These issues come up frequently. Often, employers will try to allege that because an employee has a mental illness, he or she cannot do the job, for public safety reasons—this is called a bona fide occupational qualification, or BFOQ defense.

Many first responders, or people who may work with children, or who have other such duties where compromised mental health may make it impossible to do the job, may face this defense if they sue for disability discrimination.

The Employers’ Duties

Situations like these bring up the need for employers to distinguish between behaviors which are simply a violation of company policy, or which are dangerous, and thus, can legally be punished, or whether such behaviors are just a consequence of mental illness, which, if possible, employers have a duty to try to accommodate, or at least, work with the employee to get the mental health symptoms under control.

Employers must look at the behavior, and ask whether immediate firing or punishment is warranted, or whether there is an underlying mental health reason why that behavior is happening.

Telling Your Employer 

Obviously, much of this depends on the employee telling his or her employer about the mental illness, something many employees are hesitant to do. In many cases, employees with mental illness must be the ones to suggest the accommodations needed, as they are in a  better position to know what accommodations may work best.

Contact the San Jose employment discrimination and disability attorneys at the Costanzo Law Firm today for help.

Source:

dol.gov/agencies/odep/program-areas/mental-health/maximizing-productivity-accommodations-for-employees-with-psychiatric-disabilities