May is mental health awareness month. It is designated as such to bring awareness to the importance of mental health and to de-stigmatize mental illness. As an employment lawyer, I believe this effort is of the upmost importance.
Mental health should not be looked at any differently than physical health. Our brain is a part of the body. Accordingly, health issues that are associated with the brain should not be treated differently than health issues that affect other parts of the body.
The good news is, under the law, they are not treated differently. The Americans with Disabilities Act (“ADA”) defines a disability as “a physical or mental impairment that substantially limits one or more major life activities.” 42 U.S.C. § 12102(1)(A) (emphasis added). The bad news is, despite the fact that individuals with mental disabilities are entitled to the same protections under the law as those with physical disabilities, employers have a tendency to treat them differently. This may be in part because mental disabilities are so called “invisible disabilities”. When employers cannot see the disability physically manifested, perhaps they do not believe the workers should be entitled to any protection. But they are wrong.
Clearly, under the law, individuals with mental disabilities are protected from discrimination on the basis of their disability. They are also protected from retaliation if they make complaints about discrimination on the basis of their disability. Nevertheless, discrimination against those with mental health issues is prevalent. Moreover, when individuals with mental disabilities are discriminated against, it can be particularly difficult because of their underlying condition.
Almost everyone who is subjected to illegal discrimination or retaliation in the workplace finds it takes a toll on their mental health. When this additional strain is added on top of an existing underlying mental health issue, the problem is often exasperated. It’s like the difference between kicking someone in the leg versus kicking someone in the leg who already has a broken leg. Unfortunately, too often, employers seem to attempt to use this to their advantage. This can come in all different forms, such as the employer being overly intrusive into an employee’s health information, or overly burdensome as to what medical documentation they claim they “need” for leave or accommodations to be provided, or sometimes it can even be suspending the employee and subjecting them to a fit-for-duty evaluation. Although an employee facing such a scenario may want to refuse or quit, although it may all feel like too much to handle, it is very important to instead contact a lawyer immediately.
Overall, it is of the upmost importance for those with mental disabilities who are experiencing discrimination or retaliation in the workplace to not only seek medical help, but also legal help. Under the ADA, there is protection from discrimination and retaliation for those who are being targeted because of their mental health condition and those who have complained about discrimination. Workers with mental disabilities also have the right under the ADA to request reasonable accommodations from their employers to be able to do their job. Accommodations for workers with underlying mental health issues can vary widely, but employers are required to engage in what is called the interactive process to determine what accommodations can be provided. Obviously, an employee’s mental health care provider will also play an important role in this process.
If you have faced discrimination because of your mental health, or retaliation for complaining about mental health discrimination, or your employer is refusing to provide you with reasonable accommodations, you should consult with an employment attorney right away. You are not alone in your fight for equal treatment.