The ADA protects employees with mental health problems from discrimination. That makes it dangerous for managers to engage in armchair psychology. Sometimes, all it takes to launch an employee lawsuit is for someone in authority to assume that a transient problem such as depression might recur, or that employees who take psychiatric medications can?t do their jobs.
Either way, it?s a mistake to treat the employee as if she will become disabled, especially if an ill-informed assumption leads to termination.
Recent case: Mary, an Erie firefighter, used considerable FMLA leave when her mother went into a long, painful physical decline ending in her death. Mary didn?t take it well and became depressed. She took more time off, using accumulated sick leave and other time-off programs.
However, when Mary was supposed to return to work, she never showed up, nor did she answer her phone. Her supervisors became concerned and went to her house to check on her. She said she was still severely depressed and had started taking medication to get better.
Shortly after the visit, Mary disconnected the smoke alarms at her house, took an overdose of medication and set a pile of clothing on fire. Mary survived her suicide attempt, but the police launched an investigation into whether she should be charged with arson for setting the fire.
Meanwhile, the fire department discussed whether Mary was fit to remain a firefighter. It later claimed the only reason it was concerned was that Mary had essentially attempted arson, which could have put firefighters in danger. It also claimed that someone who had attempted suicide by arson was a danger to others and therefore wasn?t suitable for work as a firefighter.
Mary was terminated, and she sued, alleging disability discrimination.
At trial, her attorneys questioned the managers involved in the termination decision.
One testified that her own mother had been on one of the medications Mary took and it had made her lethargic. From this, the manager reasoned that Mary couldn?t be fit as a firefighter because of the medication she took for depression.
The manager also testified that she was worried that Mary might relapse, somehow putting her fellow firefighters in danger. Plus, she assumed that Mary would be depressed for the rest of her life.
The trial court considered the EEOC?s guidance on disabilities, especially its provision on attempted suicide. That section clearly says that most employees who attempt suicide are not a direct threat to others when ready to return to work. Before employers can use a past suicide attempt as evidence the employee is a threat, they must seek out medical advice about the specific situation. It?s not enough to rely on misconceptions about suicide attempts.
A jury concluded Mary had been discriminated against on account of her disability. The fire department won a new trial on a technicality, but will again have to explain why managers made assumptions about an employee based strictly on a diagnosis and not the specific, individual circumstances. (Wolski v. City of Erie, No. 1:08-CV-289, WD PA, 2012)
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