Ensuring Freedom To Compete in the Workplace
Passage of the Americans with Disabilities Act (ADA) in 1990 extended
federal protection from discrimination on the basis of disabilities—including
hidden disabilities—to the private sector workplace, thereby establishing
the freedom for all Americans to compete on a level playing field. Among
many hidden disabilities, psychiatric disabilities are perhaps the most
misunderstood and subject to myths, stereotypes and stigma, resulting
in high unemployment and underemployment of qualified individuals and
denial of equal opportunities.
Since July 26, 1992, the effective date of the ADA, there have been more
than 189,600 charges of employment discrimination filed nationally under
the ADA, of which about 28,470 have been based on psychiatric disabilities
such as anxiety disorders, depression, bipolar disorder and schizophrenia.
In addition to enforcing the ADA, the U.S. Equal Employment Opportunity
Commission (EEOC) educates the public and employers about the rights and
responsibilities of businesses, employees and job applicants, and also
provides information about reasonable accommodations and about hiring
and retaining qualified individuals with disabilities.
Under the ADA, people with disabilities should be assessed individually
so that their knowledge, skills, abilities and talents, not their diagnoses,
are the focus. The EEOC hopes that an active education process will help
raise sensitivity and shatter generalizations and misunderstandings about
mental conditions. Scientific advances have demonstrated that mental disabilities
are complex brain conditions which may result from an interplay of factors
such as genetic predisposition, chemical imbalances, physical brain injuries,
environmental conditioning, etc. With this knowledge, Americans may become
more accepting of the reality that psychiatric conditions have nothing
to do with individuals’ character, moral fiber or ability to make
multi-faceted contributions as employees. Accommodations allowing people
with psychiatric disabilities to perform effectively in the workplace
are usually low-cost and relatively easy to implement.
Title I of the ADA addresses employment, covering the full spectrum of
employment issues including the job application process, hiring, assignment,
wages, training, benefits, discipline, promotions, harassment, privileges
of employment and terms and conditions. The ADA specifically prohibits
retaliation for opposing discrimination, participating in an EEOC investigation
or requesting reasonable accommodation. Workplace issues frequently relevant
for people with mental conditions are confidentiality, hiring and reasonable
Due to the stigma of psychiatric disabilities in our society, many workers
are understandably fearful of disclosing mental health issues to their
employers. In reality, many of us are already working closely with capable
coworkers who have mental conditions; we may simply be unaware that they
have disabilities from time to time affecting their mental or emotional
health. Unfortunately, myths and misconceptions abound in the workplace
and in society about these conditions and those who have them.
The ADA provides protection for all people, whether or not they have disabilities,
in maintaining the confidentiality of medical information and records.
Employers must maintain separate medical files from their personnel files,
must restrict access to those records, and cannot disclose medical information,
even after an employee leaves (exceptions include sharing information
with supervisors for necessary restrictions and reasonable accommodations,
with first aid and safety officials for emergency situations, with government
officials who enforce compliance with the ADA, with workers’ compensation
agencies, and with insurance carriers as required for coverage).
Additionally, employers may not make medical inquiries or require physical
exams at the application, interview or pre-offer stage of employment.
Following an offer of employment, however, an employer may ask any medical
questions, whether job-related or not, as long as the employer does so
across-the-board for all employees entering the job category, not just
for a single individual. If a person is rejected based on a medical reason
it must be job-related and consistent with business necessity. At this
early stage, however, many prospective employees are still reluctant to
disclose psychiatric disabilities because of concern about negative consequences.
Breaches of confidentiality by the employer or management can adversely
affect people with disabilities, especially if the disability is psychiatric.
If a breach of confidentiality results in harassment toward the individual
or in ostracism by coworkers, the employer will also be liable. Managers
must be vigilant and proactive in ensuring a workplace free from unlawful
harassment and can promote the acceptance of all by modeling respectful
Although it is unlawful for an employer to ask medical questions or to
ask about the existence, nature or severity of any disability at the applicant
stage, individuals may choose on their own to self-disclose their disabilities
at any stage of employment. When might it be beneficial to self-disclose?
(1) When the employer is a state, local or federal government agency or
federal contractor, or is required by one of these entities to have an
affirmative action plan for the benefit of people with disabilities in
hiring and promotion; (2) When the person with a disability has enriched
his or her qualifications for the job as a result of having a disability;
(3) When the disability itself is a requirement for the job (such as when
rehabilitated drug addicts will become employed as counselors working
with addicts during a rehabilitation program).
What psychiatric disabilities are recognized under the ADA?
The definition of an individual with a disability under the ADA is unique:
a person having a physical or mental impairment (or a combination of two
or more impairments) that substantially limits a major life activity compared
to the average person in the general population; a person with a record
of such impairment; or a person who is regarded as having such an impairment.
An individual with a disability qualifying for protection under the ADA
is a person who meets the job-related requirements of a position, with
the knowledge, skills, abilities and experience required for the job,
and who with or without reasonable accommodation can perform the essential
functions of the job. There should be an individualized assessment on
a case-by-case basis, because functional limitations caused by psychiatric
disabilities vary among individuals with the same condition.
Employers should not make assumptions that people with unpleasant personality
traits have mental illnesses and should avoid making generalizations about
psychiatric conditions. Unpleasant personality traits make others difficult
to get along with, but they do not necessarily limit major life activities
and are frequently not indicative of diagnosable psychiatric conditions
(which, by contrast, are often hidden).
Keep in mind that not all people with psychiatric disabilities are protected
under the ADA. The individual must have a mental impairment that substantially
limits a major life activity. Conditions listed in the American Psychiatric
Association’s Diagnostic and Statistical Manual of Mental Disorders
(DSM) that qualify as mental impairments if they either prevent or significantly
restrict a major life activity include anxiety disorders, depression,
bipolar disorder, schizophrenia, obsessive-compulsive disorder, post-traumatic
stress disorder, mental retardation, organic brain syndrome, learning
disabilities and neurological disorders.
Not every condition listed in the DSM qualifies for protection by the
ADA, however. Conditions such as pyromania, kleptomania, pedophilia, compulsive
gambling and various sexual disorders are specifically excluded as disabilities
under the ADA. A person who currently uses drugs illegally is not protected
under the ADA; however, rehabilitated drug addicts or those currently
undergoing rehabilitation are considered as individuals with a disability
under the ADA, as are people with alcoholism. Personality traits such
as irritability, poor anger management, impulsivity and poor judgment
are also not covered under the ADA.
Short-term conditions, such as the depression many of us experience from
the loss of a loved one, are not qualifying disabilities. The ADA specifically
applies to chronic, long-term conditions. However, episodic conditions
are covered if the person is substantially limited during episodes and
there is a high likelihood they will recur.
The symptoms of some psychiatric conditions can be lessened or controlled
with medications, but both the positive and negative effects of medications
must be considered when evaluating the impact on major life activities.
Reasonable accommodations may be required due to side effects of medications
when employees rely upon them to control their conditions (for example,
flexible time schedules if medications are sedating)
What major life activities are most affected by psychiatric disabilities?
continued in ABILITY Magazine subscribe
by Cynthia Stankiewicz Equal Employment Opportunity Commission
Job Accommodation Network
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