Mental Disorder, Work Disability, and the Law

This book addresses how mental disorder can affect work, how work can affect mental disorder, and the role of law in addressing employment discrimination based on mental rather than physical disability. Unlike socialist countries, the United States does not recognize an individual right to employment, yet numerous statutes and programs implement work disability policies. In the United States there is now a web of antidiscrimination statutes, such as the Americans with Disabilities Act (ADA), with the aim of facilitating equal access to employment; vocational rehabilitation statutes that provide rehabilitative services; and a system of insurance and social welfare legislation that guarantees benefits to people with disabilities who are unable to work.

This book of 10 essays by 20 contributors is edited by Richard J. Bonnie and John Monahan of the University of Virginia. It focuses on this body of law as it relates to individuals with disabilities attributable to mental disorders. It is organized in four sections. Part 1 focuses on the epidemiology of mental disorders, work disability, and labor force participation. It provides evidence that mental conditions accentuate other labor market disadvantages. Part 2 focuses on the choices made by individuals who are deciding whether to work or seek disability benefits. If the satisfaction of working is very great, it is noted, a person might be willing to pay a high personal cost in emotional discomfort and inconvenience in order to find or hold a job. The individual might even spend 2–4 hours daily in commuting. This part of the book investigates how clinical impairments, psychological and instrumental dependencies, social characteristics, and the use of mental health services interact to influence people with severe mental illnesses to apply for disability income.

Parts 3 and 4, likely to be of most interest to psychiatrists, focus on those bodies of work disability law which apply to people with mental disorders. Part 3 consists of an essay by Ellen Smith Pryor that presents an integrated analysis of disability benefit statutes and programs, including private disability insurance, workers' compensation, the Supplemental Security Income/Social Security disability insurance statutes, and the vocational rehabilitation program. She identifies the ways in which these programs differentiate between mental and physical disabilities, and she assesses whether these differences are justified.

Part 4 consists of four essays, all dealing with the ADA. Christopher Bell, who played an important role in drafting the ADA, surveys the employment provisions of the act. Jean Campbell and Carolyn Kaufman look at the ADA from a consumer protection viewpoint. They explore the possible negative consequences of claiming protection under the ADA for individuals with mental disorders. The authors note that because psychiatric disabilities are not necessarily apparent by visual cues, there must be disclosure of a history that may be stigmatizing. Revealing a history of mental hospitalization or other mental health care records puts the individual at risk of being scrutinized for potential bizarre behavior. The ADA provides protection from discrimination and the benefits of reasonable accommodation only when the employer is informed of the disability.

Laura Lee Hall focuses on what will be needed to achieve effective implementation of the ADA for people with mental disorders. She notes that changes to the physical environment, such as a private office or secluded work space, may be useful, and that measures such as restructuring job tasks or schedules may often be required. Finally, in the last chapter, philosopher Norman Daniels explores the ethical foundations of the ADA, especially as it applies to persons with mental disorders.

Accommodating mental disabilities under the ADA ranks as one of the most important employment issues. Signed into law in 1990, the ADA has proven to be one of the most complex employment laws in recent American history. Given that the legislative history focused primarily on physical disabilities, some speculate that if enacted again, it would not include parity of mental and physical disorders. In 1997, charges of discrimination based on emotional or psychiatric disabilities constituted 23% of ADA claims.

In March 1997, litigation prompted the Equal Employment Opportunity Commission (EEOC), the administrative agency responsible for enforcing the ADA, to publish a 40-page set of guidelines that the EEOC hoped would clarify—and in some cases, reassert—the workplace rights of the mentally ill. The guidelines are not binding on the courts, and judicial reception has been tepid at best. In fact, of the 37 mental disability decisions published from April through August of 1997, no judge cited the guidelines, and EEOC officials could not name a case they would call a clear victory for the guidelines (1).

Many commentators have offered explanations for the controversy and confusion. The line between a poor performer and a person with a mental disability in need of accommodation is a difficult one to discern. Moreover, in contrast to individuals protected under other fair employment statutes, those with mental disabilities may move in and out of protected status. The EEOC Compliance Manual suggests that an “impairment” is “substantially limiting” if it lasts for more than several months and significantly restricts the performance of one or more life activities during that time. “Working” is cited in the regulations as a “major life activity”; other examples include thinking, breathing, concentrating, interacting with others, caring for oneself, speaking, walking, performing manual tasks, and sleeping.

The ADA requires employers to accommodate disabled workers if they can do so without undue hardship. The regulations state that the determination of impairment is made without regard to the corrective effects of medication. Thus, an individual who is taking medication for a mental impairment has an ADA disability if there is evidence that the mental impairment, when left untreated, substantially limits a major life activity. In one hypothetical case, the EEOC said that an employer should tolerate disheveled appearance and curt conversation from a mentally disabled worker whose only job was to load boxes in a warehouse. That is a “license to behave badly,” critics charge, but, in practice, courts have not issued that license.

In an Illinois case (2), a social service caseworker was dismissed after being accused of threatening to kill her supervisor. The caseworker sued, arguing that she suffered from depression and paranoia. The Seventh Circuit Court of Appeals affirmed summary judgment for the employer, saying, “It would be unreasonable to demand of the employer either that it force its employees to put up with this or that it station guards to prevent the mentally disturbed employee from getting out of hand.”

The First Circuit Court of Appeals (3) recognized that “the ability to get along with others” is a skill to be prized, but, the court ruled, it is too nebulous and too subjective to constitute a major life activity under the ADA. In another case (4), a federal district court held that a “quick temper” did not qualify as a disability.

In February 1998 the EEOC heralded the settlement (not a court opinion) of a long-term disability claim by a man identified only as Leonard F., who was burdened by severe depression. The EEOC joined in a complaint against the Israel Discount Bank of New York, where the man worked before severe depression disabled him. In the settlement, the company agreed to adopt a long-term insurance policy that provides equal benefits to employees whether they have psychiatric or physical disabilities.

In all likelihood, the Supreme Court will address some of the developing issues, such as the definition of a mental disability and, in particular, to what extent chronic, episodic conditions should be afforded protection under the ADA and whether the corrective effects of medications should be considered in determining a disability. Moreover, the issue of the type and scope of a reasonable accommodation for mental disability needs to be resolved. One critic (quoted in this book) has suggested that the accommodation be a padded cell.

This book makes a valuable contribution to the literature. It is remarkably well organized and free of repetition for a multiauthored book (except somewhat in parts 3 and 4). Although not an exciting read, it is informative for mental health professionals, lawyers, and policy makers alike.