EEO Clarifies Guidelines

CHARLAYNE HUNTER-GAULT: The issue is how much protection should employees with mental illness be given in the workplace? The Americans with Disabilities Act of 1990 prevents discrimination for both physical and mental impairments.

And now the Equal Employment Opportunity Commission has issued guidelines aimed at clarifying that. Key provisions include prohibiting an employer from asking a job applicant whether he or she has a mental disability or has ever been treated for mental illness; requiring an employer to offer a reasonable accommodation to employees with mental disabilities, including such options as an alternative work schedule or quieter rooms; giving businesses the right to ask for documentation of an illness before making such changes in the workplace and allowing a business to refuse to make an accommodation if it would cause undue hardship.

For more on the new rules and their impact we're joined by Michael Lotito, an attorney who advises companies on labor practices, and Peggy Mastroianni, associate legal counsel at the EEOC. And starting with you, the issue–what prompted these guidelines, including telling us about the kind of complaints that were filed?

PEGGY MASTROIANNI, Equal Employment Opportunity Commission: Two things prompted the guidelines. First of all, even though Congress made it really clear that the ADA covers both mental and physical disabilities, from the outset, from 1992, when the act went into effect, we had lots and lots of questions, mostly from employers, about how to deal with workers or applicants who had psychiatric disabilities.

And some of their questions reflected some fear of such workers, can they really do they job, can we have someone here with bipolar disorder actually doing this machinist's job, for example? And other questions reflected some real confusion of some employers. We repeatedly were asked whether employers could apply discipline with psychiatric disabilities. So we thought there was a need to make some clear lines. Secondly, we had received over 9,000 complaints since the act went into effect from people with psychiatric disabilities.

CHARLAYNE HUNTER-GAULT: And how does that compare with other kinds of complaints?

PEGGY MASTROIANNI: Well, it's almost 13 percent of all the complaints that we have gotten, so it's very significant.

CHARLAYNE HUNTER-GAULT: Can you describe some of the disabilities, I mean, describing what for us is a mental disability?

PEGGY MASTROIANNI: A mental disability is a mental impairment or a disorder, so the concept is something that is out of the ordinary, not just being rude or not just being–having sort of a quick temper, but having a real mental disorder which–and that requires medical documentation.

CHARLAYNE HUNTER-GAULT: And some examples–

PEGGY MASTROIANNI: Some examples might be certain phobias, bipolar disorder, schizophrenia, major depression, anxiety disorder, and–but it's not enough to have the disorder under ADA; the disorder must substantially limit a major life activity. So it has to have a real impact in a person's life. Not everyone with depression, for example, would be necessarily covered under ADA if they're dealing with it, and it is not affecting their ability to sleep or to concentrate or interact with others, for example.

CHARLAYNE HUNTER-GAULT: Right. Mr. Lotito, you just heard the act and its reasons described. What do you find wrong with that?

MICHAEL LOTITO, Labor Law Attorney: Well, my disappointment with the guidelines is that I think they could have gone much further in helping employers understand how the Americans with Disabilities Act interrelate to various other statutes that they also have to be in compliance with, such as the Family & Medical Leave Act.

There's one example that's cited in the guidance about an individual who goes into a hospital for treatment related to stress. And there is a discussion about how the employer can ask for various documentation in order to determine whether an accommodation is possible, and it's unfortunate that in that example there wasn't at least a footnote that also mentioned that employers have to be cognizant of the Family and Medical Leave Act because the individual might be entitled to 12 weeks of leave under that particular statute, so I think while the guidance was very necessary, I just wish that it would have gone much further in clarifying the interrelationship of the ADA with a number of other areas of the law that employers need to be mindful of.

CHARLAYNE HUNTER-GAULT: How do you respond to that?

PEGGY MASTROIANNI: We issued guidance in November, 1995, on the interrelationship between the Americans with Disabilities Act and the Family Medical Leave Act. And in that guidance it dealt at some length with the differences in an employer's responsibility under both those laws. The focus in this guidance was on psychiatric disabilities. By the way, the guidance is available on the Internet on our home page.

CHARLAYNE HUNTER-GAULT: So how will an employer define reasonable accommodation? I mean, explain what might fit into that category.

PEGGY MASTROIANNI: I think that a central concept in reasonable accommodation is trying to find something that will enable an individual with a disability to do a job, either the job that the person originally has, or if that's impossible another job. So the focus is always on the ultimate result of getting the person with the disabilities to be working, and that's the focus of the whole act.

CHARLAYNE HUNTER-GAULT: Can you give us a brief example?

PEGGY MASTROIANNI: An example might be someone who has bipolar disorder.

CHARLAYNE HUNTER-GAULT: And what is that? You mentioned that.

PEGGY MASTROIANNI: Yes. It used to be called manic depression, and I think the term that is now used is bipolar disorder, and it is characterized by periods of great depression and periods of what is called mania.

And a common drug that is used to–that many people with bipolar disorder take is lithium carbonate, and we, for example, had a case of a fellow who was working at a chemical plant, and he needed–he was on a–he was on a rotating shift, and he couldn't be on a rotating shift and still take his medicine to control his condition. So the reasonable accommodation he asked for was to have a steady shift. That's an example of reasonable accommodation.

CHARLAYNE HUNTER-GAULT: All right. Let's just take that. Mr. Lotito, why would something like that be onerous to employers?

MICHAEL LOTITO: Well, you can't answer that in the abstract because reasonable accommodation is an individualized determination. And what might be reasonable in one setting for a particular employer and employee might be completely unreasonable for another employer and employee. One of the great strengths of the ADA is that it calls for an individualized assessment, but that's also a great weakness under the ADA because the correct answer under any ADA analysis is always the same. It definitely depends.

CHARLAYNE HUNTER-GAULT: Well, where do you see the onerous–where do you see–give me an example of something you would consider onerous under this for the employer.

MICHAEL LOTITO: Well, the guidance cites as another hypothetical an individual who is working in a warehouse who has limited contact with the public, and this individual over a period of some weeks comes to work.

Their clothing is disheveled, there's holes in the clothes, his interactions with his fellow employees is characterized by being very rude and abrupt, and the employer in this hypothetical has a handbook provision that says that employees need to come to work neatly attired and that their interactions with their fellow workers needs to be courteous; the guidance concludes that since this individual, his behavior stems from a mental disability, that it would be improper for the employer to apply its disciplinary standards as stated in the employee handbook vis-a-vis this particular employee, and I think that that would be an undue hardship for most employers because I don't think most employers want their employees going around being rude to others.

CHARLAYNE HUNTER-GAULT: Ms. Mastroianni, the guidelines do say that business can get around these guidelines if they can prove undue hardship, right?

PEGGY MASTROIANNI: Yes, but I think even more important that example, it was very carefully crafted; it was someone who had no contact with the public. He was not a greeter at Disney World. He was working alone essentially in this loading dock. He had practically no contact with his coworkers, and the other point we made is that rigid application of the grooming rules makes no sense for this person in this job.

It doesn't mean employers cannot have grooming rules. We also make really clear that employers can have rules about threats of violence, actual violence, stealing, destruction of equipment, and can apply those rules across the board to anyone who violates them, even if it's because of his psychiatric disability.

CHARLAYNE HUNTER-GAULT: Mr. Lotito, wouldn't the undue hardship relieve business of a little of this onerousness?

MICHAEL LOTITO: Well, it does, but one person's undue hardship is another person's reasonable accommodation. And I pointed out there are literally thousands of these charges that are filed before the EEOC making the allegations that an employer has acted improperly, and I believe about 50 percent of all of the charges involved an allegation that a reasonable accommodation was not granted.

CHARLAYNE HUNTER-GAULT: In a word because we have to go, will there be a legal challenge to this?

MICHAEL LOTITO: I suspect in many ways there will be legal challenges, as individuals bring these cases, and employers try to defend by saying the guidance isn't consistent with the ADA.

CHARLAYNE HUNTER-GAULT: All right. Well, I'm assuming you expect to defend that.


CHARLAYNE HUNTER-GAULT: Thank you for being with us, both of you.