legislation: Mental Illness Claims Routinely Challenged Nationwide

A waste company owner fires an employee for being hot-tempered. The owner says the employee antagonized customers and cost the company business. The worker goes to court, claiming that his behavior stems from a mental disorder. Because the suit seems to fit under the new Equal Employment Opportunity Commission (EEOC) guidelines on mental disability, the worker should win. Or, so went the conventional wisdom following the March debut of the guidelines.

Not so, however. Judges and juries across the country are rebuffing many controversial discrimination claims. Moreover, employment law specialists predict that the guidelines won't affect very many federal courts, which get the final say.

"The rights of the mentally ill - though greater 10 years ago - are dramatically less than what most people think," says a San Francisco attorney who represents management.

What creates the problem for emotionally troubled workers and their employers is the difficulty in clarifying mental disability in general and any number of mental illnesses in particular. Subjective diagnoses lead to widely varying interpretations of workplace behavior.

Some recent cases were "incorrectly decided," according to EEOC attorney Peggy R. Mastroianni. The agency repeatedly has suffered judicial setbacks on one issue or another. An overall credibility problem, together with its inordinate delay in issuing guidelines on mental disabilities, has left EEOC with formidable odds against successfully reversing court precedents.

The Americans With Disabilities Act (ADA) protects the disabled, including the mentally disabled, from discrimination. However, the courts have a lot of latitude in determining who is covered. Many courts have rejected claims by individuals with emotional problems, ruling that they simply are not impaired in the way the law requires - substantially limited in one or more "major life activities."

Take the case of Luis R., a truck driver for a waste hauling firm in the Southwest, who was fired in 1995 for his "negative attitude." He sued, claiming that depression limited his ability to interact with others and that the company fired him without making special accommodations. He asked to be excused from customer contact, and his doctor said that he shouldn't be criticized or startled in front of co-workers.

Earlier this year, a federal appeals court agreed that the driver was depressed, but ruled that he was not legally disabled because interacting with owners or managers of commercial businesses about trash pick-up, is not a "major life activity." Under EEOC guidelines, however, "interacting with others" is such an activity.

Even employees who have trouble with job requirements that courts recognize as major life activities - learning new skills, for exampleS don't seem to be successful in convincing courts that the impairment is severe enough to be a disability.

Last February, a New Jersey federal judge ruled that an equipment designer was not substantially limited in the major life activity of working. The employee had been diagnosed with stress and depressive disorders while on temporary stress leave. These disorders, the employee said, restricted him from "unduly stressful" jobs, and he requested a transfer. However, the judge noted that the employee had been called back from leave for work on a special project and that "his supervisors did not regard him as having a substantial limiting impairment."

Filing suit, however, gives some employees leverage with their employers. Plaintiffs' lawyers say many people with emotional problems are winning important concessions in out-of-court settlements: unpaid leaves, modified hours, job transfers and, occasionally, cash payments.

Settlement seems to produce better results for plaintiffs than does litigation. Trial courts have ruled that employees who suffered nervous breakdowns or manic depression were not legally disabled, especially when taking medicine that reduced or eliminated their symptoms.

For its part, EEOC insists that someone whose symptoms are relieved when he takes medicine is, nevertheless, disabled.

Some courts say that a person cannot claim incapacity in one workplace and fitness in another. Last year, a South Carolina federal judge threw out the case of a former hospital technician who was fired while on medical leave. The exemployee was drawing Social Security disability benefits by claiming that her depression prevented her from working.

She then sued under the ADA, protesting the hospital's failure to re-hire her after temporary leave for psychiatric treatment. Her brief in the appeals court argued that she has the right to take inconsistent positions when different laws apply, and EEOC supports her contention.

In May, a federal jury in Cincinnati found that an employer did not discriminate against an employee when it placed her on involuntary disability leave and, eventually, fired her for lashing out at supervisors. The employee insisted that her stress-related depression was not severe enough to be a disability, but her employer proved that it prevented her from performing her duties.