What are the rights and protections for employees with mental illness?
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Securing and maintaining employment can be a difficult task for anyone, but if you also have a mental illness it can often be an overwhelming undertaking. Fortunately, there are several protections for people with mental illnesses including the Americans with Disabilities Act (ADA) and the Equal Employment Opportunity Act. Both acts prohibit discrimination against people with disabilities in the workplace.
Mental Illness Defined Under the ADA
The ADA protects people who meet one of three definitions. They must have (1) a physical or mental impairment that substantially limits one or more major life activities (2) a history of such a disability, or if an employer believes that you have one, even if you don’t or ( 3) a record of, or being regarded as, having such an impairment. To be protected from job discrimination by the ADA, however, the person must also be qualified to perform the essential duties of the job, with or without reasonable accommodation. The ADA defines a mental impairment as "any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.” Mental and emotional processes such as thinking, concentrating, and interacting with others are also covered under the Equal Employment Opportunity Commission (EEOC).
ADA and Employers Responsibility
The ADA applies to private employers with 15 or more employees, state and local governments, labor organizations, employment agencies, and management committees. While it does not apply to the federal government, discrimination by the federal government or federally assisted programs is barred under Title V of the Rehabilitation Act of 1973.
When reviewing job applicants, employers are prohibited from discriminating against people with mental illnesses. This does not mean that mentally ill people are given preference over those who do not have a disability, but rather that an applicant’s mental status is not taken into consideration. The ADA also forbids employers from offering different compensation (e.g. salary, health insurance, etc.) to applicants with a mental illness.
ADA Protections, Limitations and Accommodations
The ADA only protects employees who the employer knows to have a disability. Although employers may ask objective questions that will help in deciding whether an applicant can perform essential job functions, they are prohibited from making blanket inquiries about an applicant’s or employee's medical and psychiatric history. Mentally ill people are not obligated by law to disclose their illness to a prospective or current employer. However, if the illness affects work attendance or performance, or accommodations are necessary, it might be wise to tell an employer about the disability. This is because once employers are aware of the disability they are required to make reasonable accommodations. These accommodations may include modifying job requirements, providing leave (paid or unpaid) during periods of hospitalization or incapacity, assigning a supportive supervisor, and providing flexible hours to allow people to attend medical or psychological appointments.
Employers may be exempt from the ADA if they meet one of two exceptions. They are exempt if they (1) can demonstrate that providing an accommodation will impose an undue hardship on the operation of their business (e.g. excessive costs); or (2) if the mentally ill individual poses a direct threat to the health or safety of him or herself or others in the workplace. This must be based on objective evidence from a health care provider or another reliable source.
Initiating a Discrimination Case
If an individual feels that he or she has been discriminated against in employment because of his or her disability, there are several paths to take. One path is finding a private employment and labor law attorney or visiting a legal services organization. Another option is to call the U.S. Department of Justice for ADA Title II and III concerns.
One of the easiest options is to contact the EEOC and file a charge with them within 180 days of the alleged discriminatory act. Some states extend this to 300 days. The EEOC can mediate and negotiate a settlement between the employer and the disabled individual. If this doesn’t resolve the matter, the EEOC can choose to either file a lawsuit on behalf of the individual or issue a “right to sue” letter. The right to sue letter authorizes an individual to file a lawsuit in a federal district court. Whichever option you choose, consider consulting the employment discrimination rules and regulations in your state beforehand.