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Wanted: Mythbusters to change views on mental disabilities

March 18th, 2011  |  Sheryl Allenson

The greatest barrier to employment for people with intellectual and psychiatric disabilities is employers’ myths and fears about their conditions, not their conditions themselves, the EEOC learned during a meeting of experts on March 15, 2011. Litigation has bore out this philosophy in practice recently, as a number of cases have come before federal district courts on employees’ claims that they were discriminated against because of perceptions arising from their mental disabilities.

Employees with mental disabilities face stigma in the workplace, as both individuals at the meeting testified and the litigation demonstrates.  One individual who spoke to the EEOC told the Commission that she was discharged following her hospitalization due to a psychiatric condition, after years of successful service at Land Air Express.  The woman stated she was terminated because her supervisor had a “gut feeling” that she was a “danger” and had to “look out for the safety of his other employees.”  Following a lawsuit by the EEOC alleging failure to accommodate a discriminatory termination under the ADA, the case was settled for $360,000.

Similarly, a Barnes and Noble employee who had bipolar disorder had worked for the company successfully as a manager, and as a result was assigned a poorly-performing store in May 2009 (Goins v Barnes and Noble.com LLC, March 8, 2011, Campbell T).  In May 2010 she admitted that she was placed on an performance improvement plan, but alleged that after writing up her own plan,  she was told by her manager she should not worry about being fired. In October 2010 she advised the company she had bipolar disorder. One month later, she was terminated for ineffective communications. In the interim human resources contacted her to ask if she wanted to take a leave of absence. Here, the court denied the employer’s motion to dismiss the employee’s disability bias complaint under the ADA and state law, ruling that she sufficiently alleged in her complaint that she was disabled or regarded as disabled. The employee alleged that the bookseller regarded her as disabled, alleging that human resources asked her if she wanted to take leave after she disclosed the condition, although the employee had not indicated she was having difficulty working with bipolar disorder, and had worked with it for 20 years. Furthermore, her supervisor “had to perceive her as disabled because he took steps to call human resources and advise them of her condition,” the employee alleged.

In deciding the case, the court specifically rejected the employer’s attempt to escape liability on the coattails og the Sixth Circuit and the EEOC itself by arguing that the two have established that an offer of a reasonable accommodation itself is not enough to show that an employee is regarded as disabled. Barnes and Noble could not establish that either the Sixth Circuit or the EEOC asserted this position, however,  first, the EEOC rulemaking that the bookseller referred to, question number 22, states that “[a]sking if an employee who appears to be having difficulty performing a job because of an impairment needs a reasonable accommodation would not violate the ADA.” Here, the employee alleged she was not having, nor had not had when she disclosed her ailment, difficulty performing her job, thus “leaving it an open question when leave was offered as a reasonable accommodation or for some other reason.” Further, the company’s reliance on the Sixth Circuit was misplaced, the court held, because the case it cited was decided on summary judgment and the defendant came forward with no evidence. Here, of course, the court was dealing not with evidence, but with pleading standards.  Therefore the employee could proceed with her disability bias claims against the bookseller.

Target was also at the center of a disability discrimination case, where the employee alleged that the company terminated him because of his disability, as well as his age, after being hospitalized for a psychiatric condition. (Steen v Target Corp). The employee, who had undisputed performance problems,  presented evidence that he continued to work until June 23, 2006, was admitted to the hospital June 26, 2006, but did not learn that he had been terminated in late June until the middle of July. Target alleged that it terminated him at a June 12, 2006 meeting when it sent a letter to his counsel meeting, or at the latest, on June 20, 2006. However, the employee presented evidence that he worked after those dates. Furthermore, he asserted that he received a long-term assignment from his supervisor during that time. The court denied Target’s motion for summary judgment, ruling that a fact issue remained as to whether the employee was qualified based on his performance review. Further, a reasonable jury could find that the real reason for the termination was disability bias, based on the temporal proximity between the employee’s return from hospitalization and his termination, in light of the fact that the employee alleged that he was not officially notified of his termination prior to his hospitalization, the court ruled.

The Goin and Steen cases demonstrate some of the hardships that employees with psychiatric and mental conditions face. As one expert at the EEOC meeting expressed, “one of the biggest obstacles to employment is consciously and unconsciously-held beliefs about people with psychiatric, cognitive or intellectual disabilities,”  said Ruby Moore, Executive Director of the Georgia Advocacy Office, the designated Protection and Advocacy System for People with Disabilities in Georgia. Ms. Moore testified to the EEOC that most of the accommodations individuals with mental disabilities require can be provided in a well-managed, flexible workplace often without any out-of-pocket costs to the employer.  Because of these challenges, people with intellectual, developmental and mental disabilities are underutilized in the workplace, according to the EEOC. William E. Kiernan, PhD, Director and Research Professor of the Institute for Community Inclusion, a University Center for Excellence in Developmental Disabilities located jointly at the University of Massachusetts Boston and Children’s Hospital Boston said “Persons with mental illness have a somewhat lower labor force participation rate (15 percent).” According to Kiernan, “there is clear underutilization of persons with intellectual disabilities and mental illness in the current labor force nationally.”

In this arena, reality must be more important than perception, and myths must be overcome.