Most employers are well aware that disability discrimination is illegal. But, some may not realize that many mental health issues are also covered by the Americans with Disabilities Act (ADA). Just like any physical disability, mental health conditions are covered by the ADA, and employers cannot discriminate against qualified applicants or employees with such conditions. Also, just as employers have an obligation to work with a disabled individual to determine what reasonable accommodations may be required for a physical disability, the same is true for an individual with a mental health condition.
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That said, an employer is not obligated to hire or keep an employee who is unable to perform the essential functions of the job or who objectively poses a safety threat that cannot be mitigated. But, employers must be wary of making assumptions or judgment calls based on stereotypes. The Equal Employment Opportunity Commission (EEOC) has clarified this, noting on its website:
“An employer doesn’t have to hire or keep people in jobs they can’t perform, or employ people who pose a ‘direct threat’ to safety (a significant risk of substantial harm to self or others). But, an employer cannot rely on myths or stereotypes about your mental health condition when deciding whether you can perform a job or whether you pose a safety risk. Before an employer can reject you for a job based on your condition, it must have objective evidence that you can’t perform your job duties, or that you would create a significant safety risk, even with a reasonable accommodation.”[i]
Tips for Employers to Avoid Mental Health Discrimination in the Workplace
Employers looking to avoid inadvertently discriminating against individuals with mental health concerns could start with the following tips:
- Remember that employees and applicants do not need to disclose a mental health condition—and the employer should not ask about it in most cases. The employer should only ask questions when a reasonable accommodation is requested by the employee or when there is other objective evidence that necessitates a query due to safety concerns.
- Don’t discount the idea that a reasonable accommodation may allow someone with a mental health condition to perform the job. Examples of reasonable accommodations that may help include things like quiet working spaces, irregular or adjusted working schedules, or telecommuting. These are just a few examples.
- Remember that an employee’s mental health condition need not be severe or permanent to still qualify for accommodations under the ADA. A mental health condition simply must be considered “substantially limiting” to meet the guidelines. For example, a mental health condition that limits the ability to concentrate or to sleep would qualify. (Again, these are just examples, not an exhaustive list).
- Be careful to not disseminate an employee’s medical information. If the employer receives information about an employee’s medical condition (such as when an accommodation is requested), this information is private and should not be communicated to anyone who does not directly need to know. Medical information should be kept separate from an employee’s personnel file.
- Do not allow employees to be harassed on the basis of their medical condition, including any mental health issues. Clearly this is easier said than done, but antiharassment is a component of the ADA just like antidiscrimination. If an employee comes to you with a harassment concern, or if you see something happening, take it seriously.
A lot of common mental health conditions will be covered under the ADA, so employers must be aware. Things like posttraumatic stress disorder (PTSD) and depression—which affect a large portion of the population—are covered by the ADA, and the ADA applies to any employer with 15 or more employees. The number of discrimination and harassment claims related to mental health is rising, which tells us that employers could do more. What other tips would you add to help raise awareness and ensure no discrimination occurs?
[i] https://www.eeoc.gov/eeoc/publications/mental_health.cfm?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=