The Americans With Disabilities Act (ADA) was passed in 1990, guaranteeing specific protections to anyone who meets the definition of disabled. However, even those who in theory should be aware, such as human resources personnel, sometimes make mistakes in accommodating and assisting those with mental illnesses. Sometimes, it is even disputed as to whether mental illnesses are covered by the ADA. If you encounter mental health discrimination at work or mistreatment due to a mental disability, you may be able to seek compensation.
Mental Health Discrimination Is Common
While it may not be a well known fact to many, mental health discrimination at work claims make up a significant part of the caseload of the Equal Employment Opportunity Commission (EEOC). During FY 2016, the commission handled nearly 5,000 incidents of alleged discrimination against interviewees and employees, obtaining compensation and other relief for many. It is the EEOC’s settled policy to treat mental illness as identical to physical illness.
It is important to note the statistics on how often such claims are decided in favor of the employee. If one examines recent data, one can see that only 2 percent of decisions were actually brought to trial and decided in favor of the employee. Many of these were decided for the employer because the employee was unable to show that their mental disability would create long-term difficulty. If the employee is not able to show disability (as defined under the ADA), the issue of alleged unfair treatment can become irrelevant.
To Disclose Or Not?
South Carolina’s Human Affairs Law protects those with a disability from unfair treatment, but like with the EEOC, one must be able to show that they have a disability as defined in the ADA. While the definition is legal, not medical, it still must apply. If someone has “a physical or mental impairment that substantially limits one or more major life activity/activities,” they fall under the protection of the law. If an employee is able to work, with or without the accommodations they are entitled to, they cannot be terminated just because of their mental disability.
It is important to keep in mind that while an employee with mental illness is entitled to reasonable accommodations if they are found to be disabled, they do not have to be retained if it is found that they cannot perform the essential functions of their job. The law does allow for unpaid leave in some cases, if treatment may be undertaken during that unpaid leave—but otherwise, termination is an option. An employer is simply not permitted to terminate a mentally ill employee solely because of their mental illness. Unfortunately, this can lead to firings disguised as terminations for legitimate reasons. It is because of this that many employees choose not to disclose at all.
Seek Experienced Assistance
If a disabled employee wants to work, they have the right to try and do so and are entitled to reasonable accommodations. This applies equally to the mentally and physically disabled, but sometimes the invisibility of mental illness can work against the employee. If you believe you have been the victim of mental health discrimination at work, attorney A. Christopher Potts and his Charleston employment law discrimination firm may be able to help.
Contact us today to set up an appointment.