According to the Equal Employment Opportunity Commission’s (EEOC) most recent published annual reporting, claims for disability-related discrimination (38%) outpaced race (34%) and sex (26%) related filings. Indeed, in the past three reporting years, the number of charges filed claiming disability-related discrimination increased by 34% (25,004 to 33,668), more than in any other filing category.
Disability Discrimination Claims
Of all medical conditions identified as the basis for a claim of disability discrimination, depression and mental health conditions represented the most cited conditions. In the most recent EEOC reporting, 21% of the disability claims involved depression, anxiety or similar conditions; tenfold cardiac claims (2.4%), cancer (2.9%) or diabetes (2.7%).
Employer Challenges
Traditionally, when discrimination was discussed in the employment context, concerns about gender and race often occupied the dialogue. Frontline supervisors are usually aware of prohibited gender- and race-related conduct. However, few frontline supervisors and managers have been fully trained to appreciate the affirmative accommodation requirements for employees presenting with mental conditions that limit certain substantial life activities, and who are thus protected by the ADA.
Today’s employers are especially challenged when intermittent leave rights are applied to mental conditions such as depression or migraine headache episodes, which may make attendance unpredictable.
EEOC Guidance
The EEOC technical assistance guidance lists a number of possible accommodations for employer consideration when an employee seeks an accommodation for a mental condition: “altered break and work schedules (e.g., scheduling work around therapy appointments), quiet office space or devices that create a quiet work environment, changes in supervisory methods (e.g., written instructions from a supervisor who usually does not provide them), specific shift assignments, and permission to work from home.” Easier said than done is an understandable response in many employment settings. The guidance does not address the intermittent leave needs when merely reporting to work is uncertain, day by day.
Takeaway
At a minimum, an employer acts at great risk when it fails to engage in an interactive process of self-education as to the employee’s limitations and a full discussion exploring what accommodations might still allow the employee to perform the essential functions of the job.
Not every disability can be accommodated. That conclusion should not be reached without legal discussion as to whether accommodation considerations have been adequate. Whiteford attorneys are available to assist in those considerations.
Steven E. Bers is a partner with Whiteford, Taylor & Preston, L.L.P., in Baltimore, Maryland, and can be reached at sbers@whitefordlaw.com.