EEOC Reminds Employers that Mental Health Conditions Are Covered by the ADA

Client Alert


On December 12, 2016, the EEOC issued a guidance document discussing workplace rights for individuals diagnosed with mental health conditions under the Americans With Disabilities Act. The EEOC noted that in 2016, the agency resolved approximately 5,000 charges of ADA discrimination based on mental health conditions and obtained almost $20 million in settlement for those charging parties. Statistics show that claims in this area continue to rise.

The document (found here) answers basic questions about how employees with mental health conditions should approach their employers for accommodation. Specifically, it focuses on individuals who may suffer from depression or PTSD---two very common conditions. It recognizes that an employer can reject an individual for a job based on a mental health diagnosis, but only if they have objective evidence that the employee could not perform the essential job duties or that the employee would create a significant safety risk for the workplace, even with a reasonable accommodation.

In addressing potential privacy concerns, the EEOC informs employees that they may keep their mental health disability private, but that there are some exceptions:

  1. When an employee asks for a reasonable accommodation under the ADA;

  2. After an employer has made a job offer and is giving a pre-employment medical exam, as long as all employees are asked the same questions;

  3. When an employer is engaging in affirmative action for people with disabilities and needs to track statistics; or

  4. If there is objective evidence that the employee cannot perform the job or may pose a safety risk due to his or her condition.

The EEOC document gives the agency’s interpretation of what counts as a mental health condition that is entitled to reasonable accommodation under the ADA. It notes that if an employee suffers from any mental health condition that would, if left untreated, “substantially limit” a major life activity, the employee may be entitled to a reasonable accommodation. As examples, the EEOC talks about the inability to concentrate, interact with others, or regulate thoughts or emotions as meeting that criteria. With regard to those symptoms, according to the EEOC, it is not necessary that they be permanent or severe to qualify. Conditions that the EEOC says should “easily qualify” include major depression, PTSD, bipolar disorder, schizophrenia and OCD.

The EEOC goes on to describe the proper process for requesting an accommodation. It acknowledges that an employer can require the request to be in writing and accompanied by a letter from a healthcare provider noting the condition and the need for an accommodation. The EEOC instructs employees that if they do not want their employer to know the specific diagnosis, it may be enough to simply state that the employee has an “anxiety disorder.” If a reasonable accommodation exists that does not involve significant difficulty or expense, the employer must provide it. Interestingly, in line with the EEOC’s focus on leave as a reasonable accommodation, the document goes on to state that if an employee cannot perform his or her job and has no paid leave available, that employee may still be entitled to unpaid leave as a reasonable accommodation if that leave will get the employee “to a point where [the employee] can perform those functions.”

The document ends by providing information for how an employee who feels that they have been harassed or that – his or her rights have been violated can contact the EEOC and file a charge.

Although the EEOC document attempts to put a simple spin on the application of the ADA to mental health diagnoses, the real world practicalities are much more complicated. One of the most difficult inquiries that must be undertaken by an employer is whether an employee’s condition actually meets the definition of a disability under the law. A good example of this struggle can be found in the case of Jacobs v. N.C. Administrative Office of the Courts from the Fourth Circuit Court of Appeals. In that case, the plaintiff was a deputy courthouse clerk in North Carolina. She had been diagnosed at 18 years old with “social anxiety disorder.” As part of her job as a clerk, she was at times required to work at the front counter of the clerk’s office and interact with the public. Ms. Jacobs informed her employer that doing so caused her anxiety and asked for an accommodation that would exempt her from that aspect of her job. The Administrative Office of the Courts denied the request and she was later terminated. Ms. Jacobs filed suit claiming that she had been denied a reasonable accommodation and had been terminated due to her disability. At the trial court level, the employer was granted summary judgment because it found that Ms. Jacobs’ social anxiety disorder did not meet the definition of disability under the law. It noted that Ms. Jacobs was able to interact with people on a daily basis, both at and outside of work, and could participate in social media.

The Fourth Circuit reversed the district court decision by finding that the inquiry should be more focused on whether the employer met their obligations under the ADA and not wither an individual meets the definition of disability. The Court held that a mental health impairment is a qualifying disability if it substantially limits an employee’s ability to perform a major life activity as compared to most people in the general population. As such, since Ms. Jacobs’ condition limited her ability to interact with others as compared to the general population, it met the low threshold set by the ADA and its amendments. This ruling places an obligation on an employer to default to the position that a mental health condition reported by an employee is a disability that automatically generates a need to accommodate.

As shown by the EEOC guidance document and the increase in charge filings, ADA claims for mental health conditions are likely to become more commonplace. The EEOC instructs employers to treat a request for an accommodation due to a mental health diagnosis exactly like it would one for a broken arm. However, as seen in the Jacobs case, and other opinions on this subject, whether the condition substantially limits a major life activity is not as objectively easy as looking at a broken bone. As with all ADA requests, the key is good dialogue with the employee and good documentation.