Americans With Disabilities Act and Depression
American With Disabilities Act and Depression
The ADA, or Americans with Disabilities Act, came into effect on July 26, 1992. This important legislation prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions and privileges of employment. This act applies to employers with 15 or more employees.
Are You Covered?
Persons covered by this act include anyone who:
- has a physical or mental impairment that substantially limits one or more major life activities;
- has a record of such an impairment; or
- is regarded as having such an impairment.
Although clinical depression is a mental impairment under the ADA, not everyone with clinical depression will qualify for coverage.
In 1999, the Supreme Court ruled ( Sutton v. United Airlines, Inc., Murphy v. United Parcel Service, Inc. and Albertson's Inc. v. Kirkinburg) that the determination of whether a person has an ADA "disability" must take into consideration whether the person is substantially limited in performing a major life activity when using a "mitigating measure". This means that even though clinical depression is a permanent condition, if you are able through medications and therapy to perform major life activities without difficulty you will not meet the ADA's definition of "disability."
Some feel that these decisions weakened the ADA as it applies to those with depression. Those diagnosed with depression will no longer automatically fall under the ADA's protection. This does not mean, however, that persons with depression are without recourse. Instead, it means that they must prove that they continue to experience limitations despite their medications and therapy. If your job performance is compromised by your illness despite the fact that you are in treatment, you would still be protected under the ADA.
Drug and Alcohol Abuse
Because self-medication with drugs and alcohol are so common among those with depression, it is important to note that the ADA does not cover those with a substance abuse problem. Any employee with a substance abuse problem can be held to the same standards as other employees. If your employer does not know about your depression and then later discovers a substance abuse problem, you will not be protected.
What Are Your Rights?
Under the ADA, employers are required to make what is called a "reasonable accommodation" to those with a known disability if it would not impose an "undue hardship" on the operation of the employer's business. Undue hardship is defined as an action requiring significant difficulty or expense when considered in light of factors such as an employer's size, financial resources and the nature and structure of its operation. An employer is not required to lower quality or production standards to make an accommodation.
Examples of reasonable accommodation for those with depression might include:
- clear delineation of performance expectations,
- schedules which incorporate flex-time,
- part-time positions or job sharing,
- time off for scheduled medical appointments or support groups,
- the use of break time according to individual needs rather than a fixed schedule,
- physical arrangements (such as room partitions or an enclosed office space) to reduce noise or visual distractions,
- extending additional leave to allow a worker to keep his or her job after a hospitalization,
- allowing workers to phone supportive friends, family members, or professionals during the work day,
- joint meetings between the employer, supervisor, and job coach or other employment service provider.
Making a Claim
A key concept for those with depression is that the disability must be known. Employers are forbidden by law to ask about the existence, nature or severity of a disability. They may only ask the employee about their ability to perform the job functions. This puts the responsibility on the employee to confer with his employer about the existence of his illness and what accommodations he may need. A job offer may only be conditioned on the results of a medical examination if that examination is required for all entering employees in the same job category regardless of disability. The information obtained must be handled according to confidentiality requirements specified in the Act.
Because of the stigma and misconceptions surrounding mental illness, disclosure may be a difficult choice for the employee to make.
Unless an employee feels a high degree of trust and support from his supervisor, he may opt to "tough it out" rather than risk disclosure. If you are struggling to fulfill your job obligations due to your illness this may be a bad move, however. By requesting accommodations, you may be able to avoid poor performance reviews or even a lost job. Even if you do lose your job after your illness becomes known, disclosure will help you retain your right to bring suit against your employer. Remember, it's not discrimination if your employer was unaware of your illness.
If You've Been Discriminated Against
If you think you have been discriminated against in employment on the basis of disability you should contact the U.S. Equal Employment Opportunity Commission (EEOC) to file your complaint. A charge of discrimination generally must be filed within 180 days of the alleged discrimination. You may have up to 300 days to file a charge if there is a state or local law that provides relief for discrimination on the basis of disability.
To file a charge of discrimination contact any EEOC Field Offices. These offices are located in cities throughout the United States. If it is found that you have been discriminated against, you are entitled to a remedy that will place you in the position you would have been in if the discrimination had never occurred. You may be entitled to hiring, promotion, reinstatement, back pay, or reasonable accommodation, including reassignment. You may also be entitled to attorneys fees.