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Psyched Out

The Americans With Disabilities Act protects workers with psychiatric problems as well as those with physical impairments. But ambiguities in the law and the mental health arena have created a minefield for employers. New government guidelines may complicate the issue even more.

By Julie Kosterlitz
National Journal, May 24, 1997

There's nothing quite like the hurt of a doomed love affair. But should that anguish be a legally protected disability?

Consider the recent case of a New York City publishing house employee, who--as the company's attorney tells it--became distraught over the end of an affair with a married co-worker. Her psychiatrist told the company she'd be unable to return to work unless the firm could do more to spare her the sight of her former beau.

The company--having already tried to prevent such encounters--said it could do no more and, when the woman failed to return in two months, fired her.

But that wasn't the end of it. The woman had filed a complaint with the Equal Employment Opportunity Commission (EEOC), the federal government's guardian against discrimination in the workplace. Her claim: The company had violated the Americans With Disabilities Act (ADA) by failing to take ``reasonable'' steps to accommodate her psychiatric impairment.

The government ultimately did not pursue her claim, but in the meantime, the employer ``had to spend probably $10,000'' and invest significant effort on the case, said Michael Delikat, co-chairman of the employment law department in the New York office of the San Francisco law firm of Orrick, Harrington & Sutcliffe, which represented the publishing house.

Cleaning up after office romances was not what Congress had in mind when it passed the historic Americans With Disabilities Act in 1990. Lawmakers wanted to tear down the barriers that prevent qualified people who have disabilities from enjoying the same employment opportunities as other Americans.

Just as the law was meant to demonstrate that using a wheelchair or a Seeing Eye dog need not render someone incapable of productive work, it also was intended to force employers to drop their preconceptions and stereotypes of people with mental illness, and instead judge them on their individual ability to perform specific jobs.

The ADA outlawed discrimination against those with psychiatric, as well as physical, disabilities and required employers to take ``reasonable'' steps to accommodate them. And it indeed has helped some people with severe, yet manageable, mental illnesses to get or keep jobs that they might not otherwise have had, or to get compensation after their illnesses unfairly cost them their jobs.

But the ADA also injected a whole new area of uncertainty--and a new level of fractiousness--into the relationship between employers and employees, as well as an open invitation for abuse, some observers believe.

Undoubtedly, public ignorance about mental illness and prejudice against those afflicted with it are causing some of the problems. The confusion also arises, however, because experts themselves don't yet completely understand psychiatric illnesses. The diagnosis is often still subjective because when it comes to human emotions and behavior, science has yet to draw a clear line between biochemical determinism and free will, between affliction and attitude.

The friction generated by the ADA is palpable: Since the law went into effect in 1992, the EEOC has received 9,216 complaints of discrimination concerning a psychiatric disability--13 per cent of all ADA complaints and the second- largest source of complaints (after back problems--nearly 19 per cent of all claims).

For managers, the requirement to accommodate people with psychiatric disabilities in the workplace raises a host of thorny issues, because mental function plays a critical role in a variety of job skills--from exercising judgment to getting along with others. The agency has been deluged with questions, mainly from employers, about what constitutes a psychiatric disability, how much an employer is entitled to know about a worker who claims one and what sort of ``reasonable accommodation'' the law requires.

In an attempt to clear up the confusion, the EEOC recently issued guidelines to help its own investigators and lawyers, as well as employers and employees. But many employers have complained that the guidelines just raised a host of new, perplexing issues. The guidelines have ``done very little to clear very much up,'' said Barry Lawrence, spokesman for the Society for Human Resource Management, a Washington trade group for personnel directors. ``In some cases, they have added more confusion.''

Delikat said that with its guidelines, the EEOC is ``not creating new rights out of whole cloth, but they do take an aggressive view of how the law ought to be applied. They're pushing the envelope for an expansion of employee rights.''

The EEOC's guidelines have attracted massive media attention, which, some speculate, could trigger an increase in new complaints and lawsuits--much the way that the spotlight on sexual harassment during the 1991 confirmation hearings on Supreme Court Justice Clarence Thomas resulted in a flood of sexual harassment complaints.

For all their good intentions, according to Manhattan psychiatrist and workplace consultant Jeffrey P. Kahn, who also teaches at Cornell University Medical College, ``these guidelines promote an adversarial relationship, rather than resolution of problems.''

WHO'S SICK, WHO'S NOT?

The difficulty starts with pinpointing what's a bona fide psychiatric disability.

Congress in the ADA defined it broadly as a ``mental impairment'' severe enough to ``substantially limit'' at least one major life activity of the individual. But lawmakers left many of the terms of the definition open-ended: There is, for example, no definitive list of mental impairments, nor of ``major life activities.''

The fuzziness reflected the belief that disability ought to be dealt with on a case-by-case basis, and a recognition that knowledge about both mental and physical illnesses evolves over time.

The mental health arena seems to be in a particular state of flux. The premiere reference book for psychiatrists, the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, tells the story: Since 1952, when the first DSM was published, the number of recognized diagnoses has mushroomed from roughly 60 categories to more than 350 listings in the fourth and most current edition, DSM-IV, which appeared in 1994, wrote Sheila Rothman, a senior research scholar at the College of Physicians and Surgeons of Columbia University, in a recent article for The Washington Post.

The proliferation of diagnoses has bred skeptics, including Rothman. They are defined so inclusively, she writes, that ``their status as disorders raises the prospect of defining us all as mentally ill,'' and risks blurring ``the distinction between health and illness, between person and patient.'' That complaint is echoed by psychologist G.E. Zuriff, a professor at Wheaton College and a clinical psychologist in the medical department of the Massachusetts Institute of Technology, who wrote in the spring 1996 issue of Public Interest that psychiatry increasingly is ``medicalizing character.''

Even some of the strongest advocates for the mentally ill wish that psychiatry drew sharper boundaries. ``We feel that the broad, inclusive nature of the DSM-IV is not helpful in clarifying the difference between the day-to-day mental health problems all people face that are not debilitating, and the very debilitating biologically caused problems that those with severe mental illness on the extreme end experience,'' said Ron Honberg, director of legal affairs for the National Alliance for the Mentally Ill, a Washington advocacy group.

In its lobbying and public education efforts, the alliance concentrates on just five conditions that a spokeswoman calls ``biologically based, no-fault brain disorders--meaning your parents didn't cause it.'' They are: schizophrenia, bipolar disorder (manic depression), clinical depression, panic disorders and obsessive-compulsive disorders. That excludes, among other things, ``personality disorders,'' in which some traits that are common to most people become grossly distorted. The more than half-dozen recognized varieties include the paranoid, dependent, antisocial and narcissistic.

But psychiatrists say that you can't draw such a bright line between the physical and the emotional. Research already suggests biochemical attributes in a growing range of emotional conditions, including severe personality disorders. ``Most likely, all mental illnesses are going to prove to have a biological component'' someday, said Rex Cowdry, deputy director of the National Institute of Mental Health (NIMH), in an interview.

Mental illness is ``certainly more difficult'' to detect than many, but not all, physical diseases, said Cowdry, but that ``doesn't mean it can't be reliably diagnosed.''

When crafting the ADA, skeptics in Congress excluded a handful of aberrant behaviors that are likely to be either dangerous or offensive, including various sexual behavior disorders, compulsive gambling, kleptomania, pyromania and disorders stemming from the ongoing use of illegal drugs. But Congress left the rest, by default, to the EEOC and the courts.

The EEOC's guidelines attempt to sidestep this messy debate, calling the DSM-IV a useful tool for determining psychiatric disabilities, but not necessarily the final word. ``We recognize that it's not the Bible'' said Peggy Mastroianni, associate legal counsel at the EEOC and a specialist on the ADA.

The DSM-IV manual, for instance, includes some of the conditions that were already expressly excluded by Congress from the ADA, and other conditions--such as problems with a spouse or child--for which people might seek help, but which aren't considered disorders. The EEOC takes pains to say that personality traits and behaviors, such as irritability, chronic lateness and poor judgment, ``are not, in themselves, mental impairments,'' but could be signs of such a disability.

Instead of defining disability by diagnoses, the ADA tries to define it by how well a person functions, and the EEOC guidelines attempt to flesh out what Congress meant by ``substantially limit major life activities.'' It's not easily done. First, the guidelines list some of these activities: ``learning, thinking, concentrating, interacting with others, caring for oneself, speaking, performing manual tasks, working and sleeping.''

How can an employer judge if the problem is severe enough to be a disability? Here again, the rules get squishy. The guidelines suggest that employers consider how long the problem has gone on. But it also says that they ``may'' rely on the say- so of family, friends and co-workers.

RED FLAGS FOR EMPLOYERS

If it all sounds rather subjective, it is.

How does the EEOC know how to fill in the blanks? The agency had no formal hearing process and no formal expert advisory boards for coming up with the guidelines.

Instead, Mastroianni said, the guidelines were distilled from less formal encounters with all the affected interest groups, as well as scientific roundtables conducted over the years and a thorough reading of the court cases and the legislative history. The guidelines were drawn up by staff and approved by the agency's presidentially appointed commissioners.

By issuing guidelines rather than formal regulations, the agency was able to avoid long delays, but it also cut out the formal comment period, and thus short-circuited the potential for earlier feedback. ``Certainly, had they published it as a regulatory proposal, we would have commented,'' said Ann Elizabeth Reesman, general counsel of the Equal Employment Advisory Council, a group of 300 major corporations that tracks the federal government's rules and pronouncements on workplace discrimination.

Some feel the process ought to have been more formal. ``When you issue guidelines on something as important as that, testimony ought to be taken,'' said Alvin Golub, a former deputy executive director of the EEOC and now executive director of the Washington Psychiatric Society. But the furor, he said, isn't much different from that initially accompanying every new law barring discrimination.

Cowdry of NIMH believes that the EEOC did a good job in sorting through the difficult issues and that the guidelines enshrine commonsense principles. ``Fundamentally, you have to hold people responsible for their behavior,'' he said. ``But if someone with a mental illness can be productive on the job, we owe it to them to make accommodations.''

Opting for guidelines rather than regulations also means that the agency's pronouncements will have less clout with the courts--the courts may defer to them, but aren't obligated to.

That means that while the guidelines are a good warning of how to stay out of trouble with the EEOC, they're not necessarily consistent with the thinking of the courts. In fact, at least one of the agency's guidelines is at odds with a federal circuit court ruling. ``In the commission's view,'' says a footnote on the guideline, the case in question ``was incorrectly decided.''

Employer reaction to the EEOC guidelines has ranged from diplomatic to outraged. Large employers, with their phalanx of personnel and legal aides, appear the least fazed. ``It was helpful, because it gives us insights into the EEOC's position on things,'' and thus how to avoid running afoul of the agency, said Reesman. Many of the companies she serves have been subject to almost identical disability requirements under the 1973 Rehabilitation Act, which governs the employment practices of federal contractors and organizations that get federal funds.

Small employers have been apoplectic. The new guidelines, the National Federation of Independent Business Inc. (NFIB) said in a statement, are ``lengthy, confusing and dangerously vague,'' leaving small businesses ``wide open to the risk and cost of frivolous litigation.''

One red flag for employers was a guideline stating that a worker need only use ``plain English'' to notify the employer of a disability or the need for accommodation--and not psychiatry or the law's abstruse terms of art. Thus, in the agency's example, an employee who tells the boss that he's ``stressed and depressed'' and needs time off is construed as formally invoking the law's protections.

Although the guidelines say that employers don't have to take the employee's assertion on faith or accede to just any accommodation request, the agency's illustrative example still sent shivers down the corporate spine. ``I think it's pretty shocking,'' said Reesman. ``Words like `stressed and depressed' have much broader meaning in common parlance....How many times have we all said that?''

Another trouble spot for business was the agency's dictum that an employee's request for ``reasonable accommodation'' needn't be in writing. ``Without a paper trail, the case becomes the word of the employer against the word of the employee and renders the employer defenseless,'' the NFIB complained.

The EEOC's attempts to clarify ``reasonable accommodation'' also drew fire from some quarters, even though the agency's illustrative examples are reminiscent of the kind of physical modifications that employers routinely make for those in wheelchairs.

For people with disability-related impairment of concentration, for instance, the guidelines suggest room dividers, partitions, soundproofing or visual barriers. ``This departs from common sense,'' huffed a recent editorial in The Columbus Dispatch. ``Indeed, it borders on the preposterous. Nobody should expect the workplace to look like a treatment center.'' Other proposed accommodations go further: bringing in job coaches from a social service agency, adjusting work schedules or allowing unscheduled time off.

The ADA does leave employers an important out: They're not required to undertake such accommodations if it would cause ``undue hardship.'' (The law also exempts employers with fewer than 15 workers). But once again, there's no clear threshold separating due from undue.

The area where the concept of accommodation may give the most pause, however, is in the realm of employee conduct and performance. Accommodation, says Mastroianni, does not include ``lowering the standards'' for a job. But the guidelines say that some workplace standards may be found to be discriminatory if they're not necessary for the performance of the particular job in question.

Thus, in another of the guideline's hypothetical examples, it would not be a violation of the law to discipline an employee who stole money, or a clinic employee who tampered with medical equipment, and who then cited a disability to explain that conduct. But it would be a violation to discipline an increasingly disheveled and surly warehouse worker who has a psychiatric disability, for violating dress code and courtesy rules. That's because his job entails scant contact with co- workers or the public, and he can still get the work done. ``If he were a greeter at Disney World, he would have to smile and be polite,'' says Mastroianni.

Similarly, the guidelines say an employer is entitled to ask a worker who wants accommodation for a psychiatric disability to provide evidence of the disability or to be examined by a mental health professional. This is appropriate when the need isn't obvious, for example, or when the employee poses a potential safety threat. The inquiry or exam, however, has to be limited narrowly to the employee's ability to do the job.

But in the real world, psychiatrists and lawyers don't speak the same language, says Cornelia G. Gamlem, a personnel director for a large company she prefers not to have named, and chairwoman of the Society for Human Resource Management's workplace diversity committee. ``[Psychiatrists] will say, `Joe's released . . . he can go back to light duty,' and they do not really have an understanding of what a patient does'' in his or her job, she said.

Another major headache for employers, according to Gamlem and others, is trying to figure out how the ADA interacts with other laws: chiefly the Family and Medical Leave Act. That law, passed in 1993, allows workers 12 weeks of unpaid leave annually for the birth of a child, or for personal or family medical emergencies. Its provisions come into play for workers with psychiatric disabilities, and it has its own rules about what employers are entitled to ask about a worker's condition.

And what about the Occupational Safety and Health Administration, meanwhile, which requires employers to provide a safe environment for workers? Although the new ADA guidelines attempt to reassure employers that they don't have to put up with a violent employee--disability or no--employers bear the burden of proof to show that the worker poses a threat, ``including an assessment of the likelihood and imminence of future violence.''

The EEOC's attempt to put so much burden of proof on employers hasn't always gone over with the courts. In April, the U.S. Court of Appeals for the 1st Circuit ruled against the EEOC in a case that it brought on behalf of a behavior therapist in a residential program for mentally disabled people who was dismissed after twice attempting suicide by using drugs while employed there.

The agency had argued that it was up to employers to defend themselves against the discrimination charge by proving that a worker poses a significant risk to others in the workplace. But the court ruled it was the plaintiff's burden to show that she didn't pose such a threat.

BRACING FOR THE FALLOUT

For all the controversy that the guidelines have sparked, there's little hint that Congress intends to intervene.

The NFIB has been pushing for lawmakers to specify a list of covered psychiatric disabilities, and spell out what constitutes ``reasonable accommodation'' by, say, defining it as a share of a firm's revenues. So far, they've found no takers. ``Many Members are afraid they'll be considered anti-disabled,'' said NFIB lobbyist Mary Reed.

Rep. Charles T. Canady, R-Fla., chairman of the Judiciary Subcommittee on the Constitution, is considering a hearing on a narrow aspect of the ADA: whether state agencies or commissions charged with licensing doctors or selecting judicial candidates should be allowed to inquire about candidates' history of mental illness, drug or alcohol abuse.

``There are clear, very important public interests in assuring that people in those positions are not impaired, and can perform their responsibilities,'' he said. The idea for the hearing predates the new EEOC guidelines, he said.

Advocates for the mentally ill concede that the law has its rough edges, but are taken aback by the furor surrounding the new guidelines. ``I think they make sense,'' said Mary Giliberti, staff attorney at the Bazelon Center for Mental Health Law, a nonprofit Washington advocacy group. ``We lose millions in productivity for people who are not accommodated'' in the workplace.

For all the stories of incompetents, malingerers or human time bombs hiding behind the disability law's protections, there are plenty of cases of hardworking, productive workers unfairly fired or harassed on the job because of mental diseases beyond their control.

Gary Phelan, a plaintiff's attorney in New Haven, Conn., who specializes in ADA cases, is representing a woman who was hospitalized for severe depression soon after her company had promoted her from accountant to chief financial officer. When she was released and returned to work, she found her employer had changed the locks on her door to keep her out.

If anything, Phelan says, the disabled have a hard time finding an attorney to take their case. Not only do few lawyers specialize in the area, but those who do ``have to be extremely selective, because there are so many ways to lose a case. . . . The better able you are to show that a person is disabled, the more you make the employer's case that [the person] is not qualified to hold the job,'' he said. As it is, he says, he turns down 90 per cent of those who approach him.

The most common of his mental disability cases--roughly 20 per cent of his caseload--Phelan says, involve bipolar disorder, or manic depression. The plaintiffs are often overachieving executives and professionals who, after treatment, ``slow down, and either aren't what they used to be, or are viewed as damaged goods,'' he said, and then they're fired. Few get their jobs back, but many obtain financial settlements, he said.

How many frivolous complaints or suits are brought?

It's hard to know, for sure. At the EEOC, of the 7,266 psychiatric disability cases that it considers closed, 49 per cent were found to have insufficient grounds for pursuing. A scant 1.43 per cent were cases in which the agency believes discrimination has occurred, the majority of which end up in court. In another 11 per cent of the cases, there was a settlement, sometimes with the agency mediating. Overall, these cases have produced $16 million for victims. The agency doesn't track what happens to another 40 per cent of the cases, either because they are outside the agency's jurisdiction or because employees choose to pursue cases on their own.

In court, observers generally agree, judges have tended to take a hard line against psychiatric disability complaints.

In one recent discrimination case, for example, the court rejected a suit by a man whose claim of disability centered on the fact that his depression substantially impaired his ability to get along with others. While the court acknowledged that ``ability to get along with others'' could sometimes be considered as evidence of a disability, it found that the plaintiff's main interaction problem was with his supervisor.

``The concept of `ability to get along with others' is remarkably elastic, perhaps so much so as to make it unworkable as a definition,'' said the U.S. Court of Appeals for the 1st Circuit in the case of Soileau v. Guilford of Maine Inc. The plaintiff's ability to get along ``came and went, and was triggered by vicissitudes of life which are normally stressful for ordinary people,'' the court wrote. ``To impose legally enforceable duties on an employer based on such an amorphous concept would be problematic.''

Just how much difference the new EEOC guidelines will make in the courts remains to be seen. But they will surely raise awareness among potential litigants. Until the recent press coverage of the guidelines, Phelan said, many people ``were completely unaware that the law might apply to them.''

But some experts wonder whether the presumptions in the guidelines don't also create perverse incentives and rewards. ``When you read this stuff, it starts to seem as though the only people you can't get rid of are the most problematic ones,'' said Richard A. Ratner, a clinical professor of psychiatry and behavioral sciences at George Washington School of Medicine, who has testified in court cases for both employers and workers.

If employees are merely irritating, Ratner said, ``you can fire them because they're a pain in the ass, but if they wave the flag of disability, then you can't.'' For an employer, that's counterintuitive, he argues. ``If you have someone with a little problem, they might be worth the investment to keep around. If they're incredibly screwed up, it may be more worth your while to get rid of them.''

Manhattan psychiatrist Kahn worries that the law and the guidelines give workers encouragement to adopt a permanent posture of disability when their emotional problems may be transient, and to prefer accommodation to improving their mental health. ``There's a perverse incentive not to improve,'' he said.

For Walter Olson, a senior fellow at the conservative Manhattan Institute for Policy Research, the ADA is just the latest in an large procession of nondiscrimination laws that are replacing the voluntary relationship between employer and employee with an adversarial one.

Olson, author of a forthcoming book on such laws--The Excuse Factory: How Employment Law Is Paralyzing the Workplace-- says it's more than just productivity that's at risk. ``It destroys some job security, morale among co-workers, social cohesion and general niceness,'' he said. Employers come to view workers, and indeed some workers to view their fellows, not as colleagues, he said, ``but as potential plaintiffs.''

And Lawrence of the Society for Human Resource Management, said, ``The pendulum has swung so far to accommodate everyone, at some point you have to wonder: Does this make sense? How much further will it swing?'' Anti-discrimination laws, according to Lawrence, are ``making employers judge and jury, and in this case, doctor and psychiatrist. I'm not sure employers are always able to do that.''

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