In the continuing evolution of equal employment opportunity law, no area has led to more stress for employers (all puns intended) than complying with their poorly defined and ever-changing obligations under the Americans with Disabilities Act (“ADA”), passed in 1990. One particularly gray area of the Act’s coverage concerns the extent of its protection for psychiatric disabilities. The ADA defines a “disability” as: “(a) A physical or mental impairment that substantially limits one or more of the major life activities of [an] individual; (b) a record of such an impairment; or (c) being regarded as having such an impairment.” The E.E.O.C.’s Guidance focuses on the first part of this test.
In the late 1990’s, the Equal Employment Opportunity Commission (EEOC) took notice of the fact that psychiatric disabilities were giving rise to more charge filings than back injuries (the most common basis for claims of physical disability discrimination claims). A short time later, without any public comment, the EEOC put together its Enforcement Guidance: The Americans With Disabilities Act and Psychiatric Disabilities on this issue. The Guidance was met with mixed reviews and remains a tool of mixed utility to this day.
In the Guidance,EEOC tried to define psychiatric disabilities that might be covered by the ADA. The EEOC mentioned several illnesses by name: “major depression, bipolar disorder, anxiety disorders (which include panic disorder, obsessive compulsive disorder, and post-traumatic stress disorder), schizophrenia, and personality disorders.” It also explained that the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (“DSM”) “is relevant” for identifying covered disabilities, but never stated, as defense-side employment lawyers had urged, that only conditions listed in the DSM qualified for protection under the ADA. In addition, the EEOC was clear that not every condition in the DSM is an ADA-protected disability. For instance, “the DSM-IV lists several conditions that Congress expressly excluded from the ADA’s definition of ‘disability.’ While DSM-IV covers conditions involving drug abuse, the ADA provides that the term ‘individual with a disability’ does not include an individual who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of that use. The DSM-IV also includes conditions that are not mental disorders but for which people may seek treatment (for example, problems with a spouse or child). Because these conditions are not disorders, they are not impairments under the ADA. Even if a condition is an impairment, it is not automatically a ‘disability.’ To rise to the level of a ‘disability,’ an impairment must ‘substantially limit’ one or more major life activities of the individual.”
So, to determine what types of mental impairments rise to the level of being ADA-protected disabilities, employers and individuals alike will have to perform a case-by-case analysis. For the U.S. Supreme Court, psychiatric disabilities may ending up being like obscenity in that they know it when they see it.