The Americans with Disabilities Act of 1990 (“ADA”) treats mental illness the same as physical disabilities for purposes of coverage. However, dealing with an employee’s mental health condition can be particularly challenging for employers because the traits that confer protected status are not always visible or otherwise noticeable. An employee’s diagnosis of depression or other mental illness can easily subject a well-meaning employer to potential liability.

According to charge data from the Equal Employment Opportunity Commission (“EEOC”), the number of charges of discrimination filed with the EEOC based on mental health conditions are on the rise. During the 2016 fiscal year, the EEOC resolved almost 5,000 charges of discrimination based on mental health conditions, obtaining approximately $20 million for individuals with mental health conditions who were discriminated against based on a disability. The EEOC has responded by issuing a publication on the rights of job applicants and employees with mental health conditions to raise awareness about the protections the ADA affords individuals with mental health conditions and using its enforcement power to protect individuals with mental health conditions. 

The EEOC continues to aggressively pursue such cases. For example, on November 30, 2016, the EEOC filed suit against Stevens Transport, Inc. (“Stevens Transport”), alleging that Stevens Transport discriminated against a U.S. Air Force veteran because of his bipolar disorder. Specifically, the EEOC alleges that the individual was a qualified candidate and Stevens Transport unlawfully refused to hire him in violation of the ADA. According to the EEOC’s complaint, the candidate applied to be a commercial truck driver with Stevens Transport. As part of the application process, candidates are required under Federal Motor Carrier Safety Administration (“FMCSA”) regulations to take a physical exam, submit a sample for drug testing, and fill out a medical history questionnaire. The EEOC alleges the candidate was told he could not be hired as a truck driver for Stevens Transport “per company policy” because of the medicine he takes to control his bipolar disorder, even though he presented a report from his medical provider indicating he was safe to drive. However the physician with whom the company contracted to conduct FMCSA-required medical examinations advised that he not be hired because of his medications. 

Given the rising number of charges of discrimination filed with the EEOC based on mental health conditions, the EEOC’s interest in protecting individuals with mental health conditions, and the challenges posed by mental illnesses, employers should consider the following steps to minimize liability:

• Remind Managers and Supervisors to involve human resources personnel when employees indicate they may need an accommodation for a mental health condition, and/or exhibit behavior affecting their work such as difficulty concentrating, interacting with others, communicating, eating or sleeping;

• Document objective concerns regarding an employee’s behavior; and

• Engage in one-on-one discussions with the employee to determine if the nature of the employee’s mental health condition impacts the employee’s ability to perform the essential functions of their job, with or without an accommodation.