By:  Amy Epstein Gluck

“Ugh, why do you hang out with her?  She’s mental.”

“Stop being psycho!”

“You’re crazy!”

Anxious Woman Talking To a Colleague.

Such language was ubiquitous in the 70’s and 80’s growing up in South Florida. I didn’t think anything of it.  Someone did something dumb or forgetful, it was “retarded.”  A display of high emotion from parents, friends, a teacher—they were “mental!”

Now such terms are derogatory in the workplace and out of it.   Not only is it disrespectful, but if you go around calling a colleague retarded you run the risk of a discrimination lawsuit based on the Americans with Disabilities Act (“ADA”).  The ADA protects employees from workplace discrimination based upon physical disabilities and mental health impairments, as well as perceived impairments.

In an article that I read in WaPo this weekend, Patrick Kennedy urges citizens not to call Donald Trump “crazy” because it demeans people with mental illness and “slows our efforts toward equality.”

Why are we still throwing around these terms?  We know that anti-semitic and misogynistic remarks, as well as racial slurs, can violate Title VII of the Civil Rights Act of 1964 if it rises to the level of “harassment,” sexual or otherwise.  As I noted here, although occasional jokes or obnoxious comments based on a protected class may not rise to the level of harassment, conduct that is frequent or severe so as to create a hostile or offensive work environment will.

This is as true for disabilities – mental and otherwise – as for sexual harassment.

Using such language casually and insidiously legitimizes it—using it in the workplace and, as Kennedy noted, pretending that illness of the brain somehow differ from physical impairments, may get your company sued.

3d image Mental illness issues concept word cloud background

Mental health disorders are common.

And when I say “disorder” I don’t just mean schizophrenia or bipolar disorder. I mean depression, anxiety, and OCD, commonplace afflictions/diagnoses today that are fueling a multi-million dollar pharmaceutical industry.  Indeed, one in four adults in the U.S. suffer from some type of mental disability.

So why stigmatize, harass, or alienate those with mental illness?

In fact, employers have an affirmative obligation not only to provide a work environment free of harassment based on a person’s disability but an affirmative duty to provide reasonable accommodations.

Because many mental health impairments are not obvious or even noticeable, employers may be unaware of which accommodations may be effective, or hesitant to provide accommodations for an employee who may seem erratic or high-strung, or has trouble concentrating.  But employers should sit down and talk to an employee they suspect of a disability. These folks may be reticent to start the conversation due to the perceived stigma of having a “disability.”  No need to say “Hey, are you suffering from a mental illness?”  No, that can land you in different kinds of trouble.

However, if you see that an employee is struggling, you can say “I see you are having trouble [concentrating], [communicating], [socially interacting]…etc.  Is there any accommodation we can provide to help you?”

This often opens the door to employees who may want help but fear the consequences of telling their employer they have some form of mental impairment.

Things for employers to know:

  1. Once you’ve had this (documented) sit-down with your employee to discuss suspected disabilities and accommodations, and the employee agrees that (s)he would benefit from reasonable accommodations due to a mental impairment, you as the the employer can request information, including regarding the functional limitations caused by the disability, from an employee’s medical provider so as to understand the employee’s difficulties, how accommodations could alleviate an employee’s limitations, and which accommodations may be appropriate.
  2. A wide range of reasonable accommodations exist for any mental impairment.  Check the EEOC website, the JAN Network, or consult with an employment attorney.
  3. Most important, engage in the “interactive process” with your employee to determine what works and what you can provide.  Document any interactions, and remember that the ADA duty to engage in an interactive process to determine how best to accommodate an employee with a disability, mental or otherwise, is ongoing.

Takeaway:  I could go on and on about the do’s and don’ts, but let’s use some common sense:  don’t alienate your employees with mental impairments.  As Kennedy noted, “It keeps people who have brain diseases, including substance use disorders, in the closet.”   Provide them with reasonable accommodations so that they can continue to be productive members of your workforce.

By:  Amy Epstein Gluck