“There is a big problem between what the law states in terms of discrimination and the reality in the workplace,” stated Alison Gibbs, a senior policy officer for Mind. “We recently conducted a poll where a great number of people reported being discriminated against [because of] mental illness – people being demoted, refused promotion, or having job offers withdrawn after having disclosed a mental health problem.” Even though the Americans with Disabilities Act (ADA) prevents people with mental illnesses from being discriminated against in the workplace, it happens every day. In fact, a survey of over 1300 people with mental illnesses found that 25% of them felt like they were discriminated against or avoided. This percentage was higher in industries such as law, banking, and insurance. While the guidelines regarding mental illness in the workplace are clear, there are still many differences on how employees are treated based on their particular mental illness and the stigma that surrounds it; consequently, employment discrimination on the basis of disability disproportionately affects people with mental illnesses and psychiatric disorders.
A disability is a physical or mental impairment that substantially limits one or more major life activities as stated in the ADA. Employees or job applicants who have a mental illness that fits the ADA criteria are afforded legal protections against discrimination. These protections include the right to privacy, prohibition of differential treatment of disabled employees, and being provided an accommodation that does not create undue hardship for the employer. However, employers do not have to hire people who cannot perform the job with a reasonable accommodation or whose mental illness poses a direct threat or safety risk. According to the Equal Employment Opportunity Commission (EEOC), which is the federal agency that enforces civil rights laws against workplace discrimination, the employer must have objective evidence of inability to perform job duties without relying on myths or stereotypes about mental health conditions.
One case that dealt with the issue of an employer relying on myths about mental illness is Equal Employment Opportunity Commission v. Cottonwood Financial. A bipolar employee was fired from Cottonwood Financial in Washington State for requesting two weeks of leave following a mental breakdown. In the subsequent lawsuit, the Washington District Court ruled that the employer violated both the ADA and the Washington Law Against Discrimination. The Court noted that Cottonwood Financial’s multiple reasons for terminating the employee were based on discriminatory practices. The employee was awarded back wage and compensation for pain and suffering. In addition, Cottonwood Financial was mandated by the court to train personnel about anti-discrimination laws and compliance. William Tamayo, an EEOC attorney, said, “The court sent an important message today that employers can’t substitute fiction for facts when making employment decisions about disabled workers. Employers acting on outdated myths and fears about disabilities need to know that the EEOC will not shy away from taking ADA cases to trial to bring them into the 21st century.” This case shows that discrimination due to the stigma surrounding mental illnesses such as bipolar disorder is not tolerated and that employers who do not provide reasonable accommodations will face legal consequences.
Mental illness is a common disability in the workplace. About 18% of workers in the United States, or 44 million adults, have stated that they live with a mental illness.3 Mental illnesses are diagnosed by psychologists and psychiatrists in accordance with the Diagnostic and Statistical Manual of Mental Disorders, more commonly known as DSM-5, the universal code for diagnosis of psychiatric disorders. These disorders vary, and the National Institutes of Health estimates that of these people, 18% have an anxiety disorder, 9.5% have depression, 4% have ADHD, 2.6% have bipolar disorder, and 1% have schizophrenia. Each type of mental illness positions itself differently in the workplace. As a result, the accommodations required vary. An employer must take this into account when thinking about how to provide employee accommodations. For example, a person with post-traumatic stress disorder (PTSD), which affects someone who has experienced a shocking, scary, or dangerous event, may need accommodations such as a quiet space to work, flexible scheduling, or the presence of an emotional support animal.3 A different mental disorder, such as obsessive compulsive disorder (OCD), which drives someone to perform repetitive actions, will require a different set of accommodations. These could include dividing assignments into smaller tasks, use of a checklist, or scheduled meetings with a supervisor to discuss job duties and work progress.3 These examples of accommodations are some that have been upheld as reasonable by the EEOC and the court system.
An employee must decide whether or not to disclose a psychiatric disability to the employer; if the choice is made to do so, what is the appropriate time to make a disclosure? The United States Department of Labor has developed some recommendations for youth with mental illnesses who are searching for their first jobs. There is no particular time during the employment process that is perfect for disclosing a disability, but an informed choice should be made about the appropriate step in which to make the disclosure. Those who opt for disclosure might do so during an interview, after receiving a job offer, or after beginning a job. In addition, disclosure of mental illness should be on a need-to-know basis and reasoning for disclosure should be mentioned as well. Overall, the most important things in this process are to be truthful and proactive.
The EEOC has created guidelines for both employees and employers on how to handle mental illness disclosure and develop a plan that can benefit all parties. Employees with mental health conditions should begin by evaluating their illness with respect to their job and how it will affect their performance. They should ask themselves whether or not they can perform the job duties without any accommodations, and if not, what types of accommodations they should ask for. The employee should also be sure to ask for something specific and focus on the limitations of the mental illness rather than the specific diagnosis and symptoms. The information that the employee provides should focus on how specific job tasks may be impacted by his or her mental illness. Following these suggestions can ensure a more streamlined work experience for the employee.4
There are also several things that employers can do to make sure that an employee with a mental illness can be productive and perform appropriately. This is important because approximately 1 in 5 current employees work with a psychiatric disability. One thing that an employer can do is provide trainings to managers and supervisors that teach them to be receptive and respectful to people with disabilities. Often times, managers and supervisors are some of the first people an employee will approach when requesting an accommodation, and it is important to make sure that these people set the tone for disability inclusiveness. Another thing that employers can do is create a disability support group for employees who struggle with psychiatric disorders. This could be something as simple as the whole group having lunch together once a month, but it can be an avenue for people with mental illnesses to talk about their challenges in the workplace. Most importantly, an employer needs to think about building an environment of trust by making sure that there is no harassment or bullying, and that employees with mental illnesses are heard and helped when needed. These measures can help to ensure that employee talent is fully leveraged in the workplace.4
However, there are some barriers to employers fully embracing and accommodating people with mental illnesses in the workplace. One significant barrier is the stigma that surrounds mental illnesses and impairments. In a study conducted soon after the provision to protect people with mental illnesses in the workplace was enacted, researchers found that employers complied with the law due to a fear of being sued rather than because it was the right thing to do. This raises questions about social attitude change rather than simple behavior modification and the balance that we see today. The study also found that many employers tended to have negative attitudes towards people with mental disabilities, and some even went out of their way to make sure that the person was not hired.
The National Alliance on Mental Illness (NAMI) provides several resources for legal recourse to people with mental illnesses who feel they were discriminated against. The most common way to directly challenge employment practices under the ADA is to file a complaint with the EEOC. The EEOC is the federal agency that reviews claims under the ADA, and they will provide a determination as to the merit of the claim. Another way to take action is to file a claim with a State Fair Employment Practice Agency. Several states have laws similar to the ADA and use their own state agencies to enforce them. Lastly, people with mental illnesses can contact the Department of Labor to file a complaint if they have been denied leave under the Family Medical Leave Act (FMLA). All of these options provide a means to fight discrimination in the workplace.
The EEOC handled over 5,000 claims of discrimination on the basis of mental disability and won a combined total of $20 million in settlements in a single year. Taking a broader point of view, researchers from the Virginia Commonwealth University analyzed over 400,000 cases of alleged employment discrimination from the EEOC’s Integrated Mission System database. This study, which was part of the National EEOC ADA Research Project, found that there was a 19.83% merit rate for mental illness allegations and a 23.39% merit rate for all other alleged ADA violations. This suggests two possibilities—either employment discrimination is less prevalent among people with mental illnesses or it is more difficult to prove. EEOC investigators have agreed that cases involving employment discrimination due to mental illness are some of the most complex and expensive to handle, compared to other discrimination cases that involve physical health issues. This is due to lack of documentation or exacerbation of symptoms due to stress when someone suffers from mental illness.
One particularly strong case that created excessive stress for a plaintiff with a psychiatric disorder was highlighted in a lawsuit filed against Voss Electric Company. This company fired a man with bipolar disorder, which causes mood shifts, changes in energy, and depressive/manic episodes. The employee with bipolar disorder needed in-patient treatment, but rather than give him time off, Voss Electric Company fired him by taping a notice to his front door. This perpetuated his issues and made it difficult for him to recover. Voss Electric Company argued that the employee was not able to perform his job duties, but the EEOC argued that he should have been given medical leave. “Mentally disabled employees are protected under the ADA just as those who are physically disabled,” said Sidney B. Chesnin, lead trial counsel for the EEOC. “Disabled employees are entitled to consideration of a reasonable accommodation for their disability. By simply giving a worker a reasonable period of leave to adjust to a medical condition related to a disability, the employer can often pave the way for the return of a productive employee.” As a result, the employee won the case and received $91,250 as a settlement. This case shows that discrimination due to mental illness is something that the EEOC will not tolerate, and it gives people with mental disabilities confidence that their cases matter.
For cases in which the EEOC determines no merit or the plaintiff is not content with the outcome, a lawsuit can be brought against the employer. However, in these cases, plaintiffs with mental illnesses tend to get poorer legal outcomes in discrimination suits in comparison to plaintiffs with physical disabilities. This is because juries often do not understand the impact of an “invisible disability” in the workplace and how it affects the employee. Often times, it is also difficult is distinguish between mental illnesses and personality disorders. This makes job performance evaluations confusing to interpret for people who are not familiar with the difference between the two types of conditions.
Aside from legal remedies to discrimination due to mental illness, there are social implications of employment discrimination as well. A meta-analysis research study shows that unemployment rates are three to five times higher among people with a mental health problem compared to people who do not have a disability. The rate of unemployment often correlates with the severity of a person’s mental illness. For example, people with major depression have an unemployment rate of 40-60%, while people with schizophrenia have an employment rate of 80-90%. As a result, people with mental disabilities are one of the largest groups that rely on some form of public assistance, such as welfare. For the few people with mental illnesses who have jobs, one in three report being told to take jobs lower than their qualifications and educational level, and one in five report facing employment discrimination, such as not receiving earned promotions, being refused a location transfer, and making lower than a fair wage for the position.
The executive branch has taken an interest in the issue of employment discrimination due to mental disorders. In 2002, the President’s New Freedom Commission on Mental Health issued a report titled Achieving the Promise: Transforming Mental Health Care in America. In this report, the commission provided several recommendations for improving governmental systems that are dedicated to helping people with mental illnesses secure employment. Some of these options include healthcare coverage for psychiatric prescription medications, vocational trainings tailored to skill sets, creation of secondary education options for interrupted educational careers, financial literacy training, and legal aid for those facing employment discrimination.15 While many of these resources have been developed and put into place by various governmental agencies and non-profit organizations, we still have a long way to go to make sure that the stigma surrounding mental illness does not result in employment discrimination.
In 1973, the U.S. Supreme Court acknowledged that “[s]ociety’s accumulated myths and fears about disability and disease are as handicapping as are the [limitations] that flow from actual impairment.” Decreasing the stigma surrounding mental illness will allow barriers in employment to slowly break down, protecting the initial promise of the ADA and upholding America’s culture of meritocracy. Collaboration to address the interests and mutual gains of both employers and employees will result in stronger policies and laws. However, there is still a gap between what the law states and what actually occurs in the workplace; reducing this gap will lead to positive social change as we work towards building a culture of respect and inclusion in employment, society, and beyond.
 Quinn, C. (2009, January 20). Mental illness at work: Why employers need a change of mindset. Retrieved April 03, 2018, from https://www.theguardian.com/money/2009/jan/20/mental-illness-discrimination-at-work
2 Reavley, N. J., & Jorm, A. F. (2015, October). Experiences of discrimination and positive treatment in people with mental health problems: Findings from an Australian national survey. Retrieved April 03, 2018, from https://www.ncbi.nlm.nih.gov/pubmed/26310264
3 Northeast ADA Center. (n.d.). Mental health conditions in the workplace and the ADA. Retrieved April 03, 2018, from https://adata.org/factsheet/health
4 EEOC. (n.d.). Depression, PTSD, & other mental health conditions in the workplace: Your legal rights. Retrieved April 03, 2018, from https://www.eeoc.gov/eeoc/publications/mental_health.cfm
5 EEOC. (2012, March 28). EEOC wins disability discrimination suit against payday lender ‘The Cash Store’. Retrieved April 05, 2018, from https://www1.eeoc.gov//eeoc/newsroom/release/3-28-12a.cfm?renderforprint=1
6 American Psychiatric Association. (n.d.). Diagnostic and Statistical Manual of Mental Disorders (DSM–5). Retrieved April 05, 2018, from https://www.psychiatry.org/psychiatrists/practice/dsm
7 Loy, B., & Whetzel, M. (2015, October 22). Accommodation and Compliance Series: Employees with Mental Health Impairments. Retrieved April 03, 2018, from https://askjan.org/media/Psychiatric.html
8 National Institute of Mental Health. (2016, February). Post-traumatic stress disorder. Retrieved April 03, 2018, from https://www.nimh.nih.gov/health/topics/post-traumatic-stress-disorder-ptsd/index.shtml
9 Gorrindo, T., & Parekh, R. (2017, July). What is obsessive-compulsive disorder? Retrieved April 03, 2018, from https://www.psychiatry.org/patients-families/ocd/what-is-obsessive-compulsive-disorder
10 U.S. Department of Labor. (n.d.). Youth, disclosure, and the workplace why, when, what, and how. Retrieved April 05, 2018, from https://www.dol.gov/odep/pubs/fact/ydw.htm
11 Scheid, T. L. (2005). Stigma as a barrier to employment: Mental disability and the Americans with disabilities act. International Journal Of Law And Psychiatry, 28(6), 670-690. doi:10.1016/j.ijlp.2005.04.003. Retrieved April 03, 2018, from https://www-sciencedirect-com.proxy-remote.galib.uga.edu/science/article/pii/S0160252705000828?_rdoc=1&_fmt=high&_origin=gateway&_docanchor=&md5=b8429449ccfc9c30159a5f9aeaa92ffb&ccp=y
12 National Alliance on Mental Illness. (n.d.). Succeeding at work. Retrieved April 03, 2018, from https://www.nami.org/Find-Support/Living-with-a-Mental-Health-Condition/Succeeding-at-Work
13 EEOC. (2016, December 12). EEOC issues publication on the rights of job applicants and employees with mental health conditions. Retrieved April 03, 2018, from https://www.eeoc.gov/eeoc/newsroom/release/12-12-16a.cfm
14 McMahon, B., Hurley, J. E., Monasterio, E. A., McMahon, B. T., & West, S. L. (2012). Merit determinants of ADA Title I allegations filed by persons with mental illness. Journal of Vocational Rehabilitation, 36(3), 171. Retrieved April 03, 2018, from http://eds.b.ebscohost.com.proxy-remote.galib.uga.edu/eds/pdfviewer/pdfviewer?vid=1&sid=ea559202-3115-4f42-955e-bc11276fcef8%40pdc-v-sessmgr01
15 Cook, J. A. (2006). Employment Barriers for Persons with Psychiatric Disabilities: Update of a Report for the President’s Commission. PSYCHIATRIC SERVICES, (10). 1391. Retrieved April 03, 2018, from https://search-proquest-com.proxy-remote.galib.uga.edu/docview/213087265?accountid=14537
16 National Institute of Mental Health. (2016, April). Bipolar disorder. Retrieved April 03, 2018, from https://www.nimh.nih.gov/health/topics/bipolar-disorder/index.shtml
17 EEOC. (2003, March 18). Worker with bipolar disorder to receive $91,000 in disability discrimination case settled by EEOC. Retrieved April 03, 2018, from https://www.eeoc.gov/eeoc/newsroom/release/3-18-03b.cfm
18 Hipes, C. (2016). Stereotypes, Gender, Power, and the Stigmatization of Workers with Mental Illness. Conference Papers — American Sociological Association, 1-34. Retrieved April 03, 2018, from
19 Callard, F., & Callard, F. (2012). Mental illness, discrimination, and the law. [electronic resource]: Fighting for social justice. Chichester, West Sussex; Hoboken, NJ: Wiley-Blackwell, 2012. Retrieved April 04, 2018, from https://ebookcentral-proquest-com.proxy-remote.galib.uga.edu/lib/ugalib/reader.action?docID=896067&query=
20 Baldwin, M. L., Marcus, S. C., & Simone, J. D. (2010). Job loss discrimination and former substance use disorders. Drug and Alcohol Dependence, 110(1-2), 1-7. doi:10.1016/j.drugalcdep.2010.01.018. Retrieved April 04, 2018, from, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2885482/
21 Brennan, W. (n.d.). School Bd. of Nassau County v. Arline, 480 U.S. 273 (1987). Retrieved April 05, 2018, from https://supreme.justia.com/cases/federal/us/480/273/