On April 29, the federal government told employers “they may not discriminate against qualified workers with mental illness, may not ask job applicants if they have a history of mental illness, and must take reasonable steps to accommodate employees with psychiatric or emotional problems.” That’s what the first paragraph of the next day’s New York Times story said, anyway. But the Times got it wrong. The government actually “told” private employers these things in July 1990, when Congress passed the Americans with Disabilities Act. The workplace provisions of the ADA have covered every American business with 15 or more employees since 1994 — that’s at least 85 percent of the nation’s current workforce. And from the start, discrimination against Americans with psychiatric disabilities — in hiring, career advancement, and working accommodations — has been grounds for restitution and punitive-damage claims in federal court.
Needless to say, employment discrimination against otherwise competent people who suffer some treatable mental illness is not nice. Perhaps it should even be illegal. In any case, Congress has so decided, and that’s okay by us. But the ADA, as applied, isn’t okay at all.
Supporters of the Americans with Disabilities Act argue that physically and mentally impaired Americans have always faced sweeping and irrational barriers to employment. They point out that most “disabled” people still do not have full-time work. And they routinely insist that prejudice — “myths, fears, and stereotypes” is the stock phrase — is a major reason why. The sheer volume of ADA-related complaints in the past four years — almost 73, 000 — might seem to sustain this contention.
But only a tiny fraction of these cases, barely 10 percent, involve accusations that employers have refused to hire the disabled. The vast majority involve people already in the workforce who allege they were let go wrongfully. And only a tiny fraction of them, again barely over 10 percent, suffer classic disabilities, like vision, hearing, or motion impairment. In fact, the most common ADA complaints come from people with back pain. Next come neurological, emotional, or psychiatric ailments. There’s good reason to suspect that an increasing number of Americans assert ” disabilities” to extort money or favor from employers when they have been fired or denied promotion.
Consider. There have been ADA claims by asthmatic firefighters. By one- armed policemen. By a 460-pound prison inmate who wanted a bigger cell. By an office worker who smelled so bad she made her colleagues vomit. Worst of all, perhaps, there have been repeated ADA claims made by employees whose on-the- job performance is inadequate, disruptive, or actually dangerous — and who explain their actions after the fact by reference to a “psychiatric disability.” In this context, we find people who claim they suffer from ” chronic lateness syndrome.” And alcoholic surgeons. And people who bring loaded guns to work or threaten to blow their supervisor’s brains out. And a nuclear power plant engineer who says his depression is exacerbated by proximity to nuclear power. And a bank employee who says his depression is exacerbated by negative annual appraisals. And so on.
ADA defenders say these horror stories paint a dishonest and incomplete picture of how the disability law really works. Many of the most extreme claims were quickly dismissed in administrative proceedings, they note. And the few genuinely loopy cases that ever reached trial were generally rejected by their juries. But the paucity of $ 300,000 punitive-damage awards to ADA ” victims” with outlandish or obviously bogus psychiatric disabilities proves very little about the law’s full effect.
ADA is not a traditional civil-rights statute that turns on questions of discriminatory intent by an employer. In fact, under ADA, malign intentions are basically irrelevant: An employer may quite consciously treat a disabled person exactly as he would anyone else and still find himself in violation of the law. Why? Because this law requires him to make “reasonable accommodations” for the needs and behavior of any “person with a disability” who might thereafter be able to perform the “essential functions” of a job.
But what is a “reasonable accommodation”? What, for that matter, is a ” psychiatric disability,” and what if its symptoms are indistinguishable from poor work performance? These are questions of definition. And it was to answer them that the Equal Employment Opportunity Commission released a new ” enforcement guidance” on ADA’s mental-health protections. It was this document that spurred the New York Times story.
Alas, the EEOC “guidance” offers precious little guidance. The agency insists that ADA should never conflict with common sense. But the agency is still committed to an assault on widespread discrimination grounded in, well, “myths, fears, and stereotypes.” So it has decided not so much to restrict its interpretation of ADA, but rather to urge an expansive understanding of ” common sense” on the rest of us.
According to the EEOC, “reasonable accommodation” of an employee’s psychiatric disability encompasses virtually anything that doesn’t impose a vaguely outlined “undue hardship” on a business: new office space, soundproofing, relaxed supervision, “job coaching,” or reassignment. You may even have to “accommodate” the psychiatrically disabled in the workplace by allowing them not to work — through a grant of extended unpaid leave.
There are many other problems with the new guidance. Multiple provisions appear to conflict with other state and federal laws, for example. But the biggest confusion is still the most basic: Who is covered by ADA and under what circumstances? ADA is supposed to cover “any mental or psychological disorder.” And the place to find out the meaning of the word “disorder” is the psychiatric profession’s Diagnostic and Statistical Manual, now in its fourth edition. Known as DSM-IV, it lists 10 specific “personality disorders” — and an eleventh, the personality disorder “Not Otherwise Specified.” Together, these categories describe almost every sort of weird or obnoxious (but less than incapacitating) behavior known to man.
Are you allowed to fire an employee who is persistently unclean and verbally abusive to his colleagues? No, says the EEOC, not if that employee has a personality disorder and the code of conduct you are applying has no meaningful bearing on the job tasks he must perform. Can you refuse to hire a personality-disordered man with a history of violence? Only if you first appraise “the most current medical knowledge” and then prove that a “specific behavior” by this man poses a “direct” and “significant” risk of imminent violence. If one of your employees happens to mention that he is “depressed and stressed,” are you legally on notice for some subsequent ADA action? Yes, you are.
The Equal Employment Opportunity Commission now pursues a vision of the American workplace in which every employed jerk or miscreant enjoys a presumptive claim to protected civil-rights status — in which every American employer, worried about possible litigation, must codify in writing workplace behavioral standards that almost all of us take for granted.
But it’s not the EEOC’s fault, not really. The Americans with Disabilities Act that Congress overwhelmingly passed in 1990 is one of the worst-drafted pieces of legislation in history. Congress may not have meant the law to mean what the EEOC says it means. But it was Congress that left most practical decisions about the law’s meaning in the EEOC’s hands.
So Congress should rewrite ADA to ensure that its application to most of American daytime life is fair, humane, and rational. Drawing the necessary legal distinctions for “accommodations” and “disability” will not be easy. But not doing so would mean leaving federal civil-rights law in its present state of disorder. And that, you should pardon the expression, would be insane.
David Tell, for the Editors
