My colleague, Chris Engler, returns with another stellar post today tying in the news of the week.   Although you may have read a lot about Robin Williams this week, I encourage you to read one more. 

As everyone knows by now, comedian and actor Robin Williams passed away on Monday after a long struggle with depression and addiction.  Many of the articles about his death have emphasized Williams’s compassion and ability to put a positive spin on unfortunate circumstances. 

Following his lead and with all the attention his death has garnered, I decided to look for meaningful lessons from his life and career.

It would be easy to write about the employment lessons to be gleaned from Williams’s acting roles.  After all, his characters had a knack for getting themselves into troubles at work. 

We might ask whether Mrs. Doubtfire could have sued for gender identity discrimination after she was fired for trying to “poison” Pierce Brosnan.  Or we could ponder whether tenure laws would have protected John Keating, Williams’s character in Dead Poets Society.  We could even debate whether Mork’s alien heritage counted as a “race” or “national origin” for Title VII purposes.  (I’d like to think the answer is “yes”.)  And we can probably all agree that signing a noncompete agreement with the Genie before Jafar stole his lamp would have saved Aladdin a lot of trouble.

But I’d rather focus on Robin Williams himself, and specifically on the depression with which he apparently struggled for much of his life.

The popular media is occasionally eager to discuss mental health issues when a celebrity dies or a tragedy occurs.  But average, everyday folks suffer from mental health issues too.  As employers, we need to know how to respond when our employees are among the sufferers.

First and foremost, Connecticut law prohibits discrimination on the basis of “present or past history of mental disability.”  The nondiscrimination statute goes on to broadly define “mental disability” as any mental disorder defined by the American Psychiatric Association.  (Dan has touched on this in prior posts here and here, for example.)

So we know that employers can’t discriminate against people with mental health issues.  That’s the easy part.  The trickier question is what an employer must do to help such people.

To answer that, we can turn to the federal Americans with Disabilities Act (“ADA”).  The ADA requires an employer to provide a reasonable accommodation to an employee who has a disability.  For physical disabilities, this is often a fairly straightforward analysis.  For example, if an employee is vision-impaired, you might provide a Braille keyboard.  If someone requires a wheelchair, you make sure her workspace is accessible.

But this analysis becomes somewhat more complicated for mental disorders.  For recent examples of what might be a reasonable accommodation, we can look at what courts have done:

  • In one case, a police officer with anxiety and depression requested a permanent transfer from patrol duties.  He asked for a position in Booking or the Canine unit.  The court agreed that it was reasonable to keep him away from patrol duties to accommodate his mental issues, but upheld the employer’s decision to instead place him in the Training unit.
  • In another case, a teacher with anxiety and a panic disorder requested an extended leave of absence.  His employer refused because there was no guarantee that he would be able to return to work at the end of the leave.  The Second Circuit agreed, and also faulted the teacher for failing to respond to the school’s attempts to collaborate on finding a suitable accommodation.
  • Another teacher with depression and mood disorders was granted two accommodations over the course of her career.  The school first cut her hours to 20 hours per week and then assigned a full-time paraprofessional to assist her in her band teaching duties.  After fourteen years of having these accommodations, the teacher continued to act “dazed and confused” and “zombie-like” at work, and frequently reported to the wrong school or for the wrong class.  The court upheld the school’s decision to dismiss the teacher because she couldn’t perform her job duties even with reasonable accommodations.
  • Finally, a manufacuring company employee who developed severe depression requested an accommodation of having no direct contact with any coworkers and, in particular, no contact with his supervisors.  The employee based this request on his psychiatrist’s evaluation that he posed a risk of workplace violence or suicide if he returned to the workplace.  The Second Circuit agreed with the employer that this was an unreasonable request.

So what’s the takeaway? 

The trend seems to be that the courts will require employers to go to significant lengths (including hiring a full-time paraprofessional, as in the third case) to enable employees with mental disabilities to keep working.  But that goal from courts is not limitless.

The courts also want some reassurance that an employee can continue performing his or her job.  If the employee can’t do the job even with the requested accommodation – or if the accommodation is to not do the job at all, as in the second case above – it’s probably not a reasonable accommodation.

Of course, as with any accommodation request, the employer must have an interactive dialogue with the employee to determine the employee’s needs.  Your employment counsel can assist you with the process.  After all, you ain’t never had a friend like him or her.

In the meantime, I’ll be singing along to “Prince Ali” and missing one of my childhood icons.

Nanu nanu.

In May 2013, a fifth version of the Diagnostic and Statistical Manual of Mental Disorders is expected to be published.  It is widely anticipated in the mental health field.

What is the DSM-5 all about? DSM is published by the American Psychiatric Association (APA) and contains descriptions, symptoms, and other criteria for diagnosing mental disorders. These criteria for diagnosis provide a common language among clinicians – professionals who treat patients with mental disorders.

And if Connecticut isn’t careful, its publication could mean that proposed mental disorders under the DSM-5, such as Premenstrual Dysphoric Disorder, could become protected.

How can that be? Well, Connecticut — unlike the federal ADA which lumps mental and physical disabilities together — specifically protects employees with a “mental disability”.   How is a “mental disability” defined?  It “refers to an individual who has a record of, or is regarded as having one or more mental disorders, as defined in the most recent edition of the American Psychiatric Association’s “Diagnostic and Statistical Manual of Mental Disorders.”

And that’s the issue. The DSM-5 (and its current version of DSM-IV) will be very broad.  (It will also be dropping the Roman Numerals, but that’s a post for another day.)

Why is it broad? Because the DSM-5 will be a diagnostic tool for mental disorders and as with all diagnostic tools, it is designed to find answers to different types of symptoms or conditions.  This new version will expand the notion of a mental disorder to new limits.

As a legal tool, the new version will be a lousy device. Already, it is overbroad for legal purposes and the proposed version will include things that the legislature probably doesn’t want to protect (such as Early Ejaculation).

So what can be done about this? The legislature ought to use the new version of the DSM as an opportunity to revisit the definitions of both physical and mental disabilities.  The ADA has been revised recently to modernize the defintion.  It’s time Connecticut considered doing the same.

Otherwise, the employee with a Hoarding Disorder could soon be in a protected class of of his or her own.

The Connecticut Bar Association’s Labor & Employment Law Section is out with their quarterly publication on various employment law articles. Among the topics this quarter:

  • Connecticut’s Family Violence Leave Law
  • "This isn’t discriminatory — and I’m not going to investigate it!" Retaliation? Good policy?
  • The Definition of "Mental Disability" Under CFEPA
  • 2010 Legislative Wrapup

Hugh Murray’s article on mental disabilities is worth a particular read. It touches on a subject that I covered in some prior posts arising from the case of Curry v. Allan S. Goodman, Inc. (here) and (here). Notably, Hugh and I also discussed this issue in the context of nicotine dependence in a separate post too.

In essence, Hugh asks the question: Is it really a sound policy for Connecticut to say that conditions found in the Diagnostic and Statistical Manual of Mental Disorders ("DSM") should be recognized as disabilities? What about, as Hugh asks, something like "pedophilia" or "voyeurism"?  It’s hard to say that the legislature has really thought about all the consequences.