All too often employers let their fears and perceptions guide their actions, and they fail to initiate a dialogue with the employee about their condition. The type of knee-jerk reaction that Mr. Black experienced when he went back to work often leads to claims of discrimination based on a “perceived” disability. Both the Americans with Disabilities Act, and many states’ laws, protect employees like Mr. Black who are “regarded as” disabled. This type of protection was expanded when the ADA was amended in 2009. Since then, employees who can show that their employer regarded them as having a mental or physical impairment do not need to show that the impairment substantially limited any major life activity to be entitled to protection. Although the amended law carves out an exception to the rule for “perceived” impairments which are determined to be minor or transitory (lasting less than six months), it cannot be assumed that mental illnesses, including depression and anxiety disorders, will fall into that category.
The EEOC has stressed the importance of an interactive dialogue, and the recent amendments clearly signify the law’s intent to provide protection for a broad class of individuals.
If an employer can establish that they engaged in the required dialogue with a potentially “disabled” employee before any job action is taken, the EEOC and the courts are more apt to find that the employer acted reasonably to accommodate an employee’s potential disability. Employers who want to avoid claims of discrimination that are based on a “perceived” disability, are cautioned not to make assumptions about the limitations caused by mental illness, and to discuss performance issues with the employee before any decision is made.
For a more in-depth look at the workplace protections afforded to individuals with mental health issues, please join Gina Grath, Esq. of Portnoy, Messinger, Pearl & Associates, Inc. on May 16, 2013, at 6900 Jericho Turnpike in Syosset, who will be co-presenting this topic with Aoifa O’Donnell, CEO of National EAP, Inc.
Gina Grath, Esq.