NBA Prospect’s Fear of Flying Reflects Potential Limits of Employers’ Obligation to Accommodate Disabilities

Maybe you remember Royce White, an NBA hopeful whose fear of flying led him to confront the league’s approach to mental health treatment.

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White graduated from high school in 2009, having been named Minnesota’s Mr. Basketball and a Jordan Brand Classic All American. He went on to play one season for the University of Minnesota before transferring to Iowa State University. At Iowa State, White excelled. During the 2011-2012 season, he led the Cyclones in five major statistical categories (points, rebounds, assists, steals, and blocks), a feat that distinguished him from every other player in the country that season.

White was named First-team All-Big 12 and Newcomer of the Year. After posting 23 points, 9 rebounds, 4 assists, and 3 steals in a loss to the University of Kentucky in the NCCA Tournament, White declared that he would enter the 2012 NBA Draft. The Houston Rockets made him the 16th overall draft pick, and he signed a two-year rookie contract worth $3 million.

White, it appeared, was on the verge of a promising NBA career. Until he made what many believe to be a brave decision: He initiated a public discussion about his diagnosed generalized anxiety disorder and obsessive-compulsive disorder (OCD) as well as the NBA’s approach to mental health treatment. Among other actions, White asked that he be allowed to ride a bus to certain away games rather than fly on the team plane because flying triggered his anxiety.

For me as an employment attorney, White’s request raises some thought-provoking issues about employers’ obligation to accommodate employees’ disabilities.

Protections for “Qualified Individuals with Disabilities”

The Americans with Disabilities Act (ADA) prohibits an employer from discriminating against an employee or job applicant who is a “qualified individual with a disability.” Employers also have a duty to reasonably accommodate employees’ known disabilities. Various states have their own counterparts to the ADA, which provide similar disability-related protections to workers.

Under the ADA, one has a “disability” if he or she has a physical or mental impairment that substantially limits a major life activity (though under some state laws, including California’s Fair Employment and Housing Act, the life activity need not be “substantially” limited, but merely limited).

Among the mental disabilities that have been recognized as potentially being protected by the ADA are those experienced by White–anxiety disorders and OCD. An anxiety disorder, courts have found, may limit one’s ability to speak, breathe, concentrate, think, or communicate. Similarly, OCD can substantially limit an individual’s ability to care for himself since basic tasks such as washing or dressing may take significantly more time than the average person to complete.

Of note, while anxiety disorders and OCD have been recognized as qualified disabilities, several courts have held that fear of flying itself doesn’t rise to that level.

Employee Must Be Able to Perform Essential Job Functions

In addition to being limited in one’s ability to engage in a major life activity, an employee or prospective employee must be able to perform the essential functions of the job at hand, with or without accommodation, to be protected by the ADA (and similar laws).

Essential job duties are tasks that are fundamental to a given position. In evaluating whether a job function is “essential,” the Equal Employment Opportunity Commission (EEOC), which enforces workplace discrimination laws, considers the actual work experience of present or past employees in the job, the time spent performing a function, the consequences of not requiring that an employee perform the function, and the terms of a collective bargaining agreement.

For a prospective NBA player like White, is flying an essential job function? Traveling certainly is. According to the Job Accommodation Network (“JAN”), which provides guidance about accommodation issues and is sponsored by U.S. Department of Labor’s Office of Disability Employment Policy, “In some jobs, travel is an essential part of the job; therefore, the employee needs to be able to travel to be qualified for his/her position. In other jobs, employees may travel, but there are other ways to perform the job without traveling.”

Accommodating Pro Athlete’s Fear of Flying

The ADA and similar laws require that employers provide a reasonable accommodation to the known physical or mental limitations of qualified individuals with disabilities. A reasonable accommodation is a change or adjustment to a job that enables an individual with a disability to perform the essential job functions and enjoy the benefits and privileges of employment equal to those employees without disabilities. According to the EEOC, a reasonable accommodation may include acquiring or modifying job-related equipment or devices; job restructuring; part-time or modified work schedules; reassignment to a vacant position; adjusting or modifying examinations, training materials, or policies; providing readers or interpreters; and making the workplace readily accessible to and usable by people with disabilities.

Employers also may make travel-related accommodations that enable employees to perform their essential duties. Some employees, for example, may be able to work remotely rather than be physically located in a particular workplace. For a professional athlete, however, being physically present at a game, practice, or other team-related obligation is essential.

As discussed above, White asked the Rockets let him ride a bus to certain away games in lieu of flying. As one NBA reporter wrote at the time, “[White] asked the Rockets to address his anxiety the way that they would treat a player with a broken ankle. He’s injured. He just needs certain tools to function.” The two parties reportedly reached an agreement consistent with White’s request. However, he subsequently vowed never to play in another NBA game until the league developed a comprehensive plan to address mental health treatment. White was last seen on an NBA court in 2014 as a member of the Sacramento Kings and last played for the London Lightning of the NBL Canada in 2017 (he won a championship and was the league’s most valuable player that season).

Of note, the ADA doesn’t require that an employer provide a particular accommodation if doing so would result in an undue hardship. However, the employer’s burden for establishing that a specific reasonable accommodation would present such a hardship is high, and it must be shown that the accommodation would cause significant difficulty or expense.

Shedding Light on Mental Health Issues

Employment law issues notwithstanding, White’s transparency regarding his struggles with mental health and willingness to drive a broader conversation are good things. According to the Centers for Disease Control, approximately half of all Americans are diagnosed with a mental illness or disorder at some point during their lifetimes. For adults ages 18 to 44 years old, mental illnesses such as depression are the third most common cause of hospitalization in the United States.

Since White, other high-profile players such as Kevin Love and DeMar DeRozan have shared their experiences and struggles with anxiety. Hopefully, their actions will inspire others to address their own mental health issues.

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