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March 14, 1998 

Employers may have to accommodate some behavioral problems

By Robert Heiferman

Employees with psychological impairments pose unique problems for the unwary employer.

The Equal Employment Opportunity Commission (EEOC) has issued a "guidance" to help companies deal with behavioral problems under the Americans with Disabilities Act (ADA).

The guidance discusses employer responsibilities during the application stage and employment. The EEOC outlines the accommodations it expects companies to make. It also describes employers' rights and obligations responding to employee misconduct to some extent caused by a psychological disability.

Over 12 percent of ADA charges filed with the EEOC involve alleged mental impairments. The guidance does not have the force and effect of law, but the potential for a jury award including punitive and compensatory damages cannot be ignored.

The EEOC suggests that employers consider granting time off or altering the schedule of an employee with a psychological disability to allow for treatment. Also endorsed is flexibility in applying policies.

For example, the EEOC cites the need for certain psychologically impaired employees to have drinking water available at their workstations even if company policy does not permit that. Some departure from dress and grooming standards may be appropriate in other cases.

The guidance concedes that as long as company rules are applied equally to all, discipline of an employee for misconduct is generally not counter to the ADA even if the aberrant behavior is due to a mental disability.

A number of court cases in the past year help illustrate an employer's rights as well as potential pitfalls.

The Third Circuit recently held that a company need not grant a reasonable accommodation if it conflicts with other employees' seniority rights under a collective bargaining agreement.

Similarly, the Eastern District Court in Pennsylvania recently dismissed an ADA claim brought by a program manager suffering from depression who was dismissed due to absenteeism which had caused the program to suffer.

And while the ADA protects an employee from discrimination due to his or her relationship with a disabled person, the Tenth Circuit upheld the discharge of a Utah private school teacher whose mentally ill son had threatened other students. The court found that he was not fired due to his son's illness but as a result of the son's conduct, which did not have to be accommodated.

On the other hand, the circuit courts are split about whether an individual will be considered "disabled" if available medication keeps the psychological disorder under control.

The courts have also rebuked companies that take adverse action against employees with behavioral disorders out of the companies' perceived fear of inappropriate behavior without evidence that such disorders actually affect their work.

All the attention the EEOC guidance has drawn may well result in an increase in complaints filed. Employee requests for reasonable accommodation cannot be ignored, whether due to a physical or mental impairment.

However, consistent application of policies and work rules, documentation of employee misconduct, and training as to supervisory responsibilities in this area should reduce the likelihood of such claims and resulting liability.

Robert Heiferman is a partner in Jackson Lewis, a national labor and employment law firm in White Plains.