I moderated and led a panel discussion on “Continuing Developments in Disability Litigation: The impact of Mental Health Diagnosis on Accommodation and Related Issues Cutting Edge ADA Issues in Litigation” at the May 19-20, 2014, Annual Upper Midwest Employment Law Institute in St. Paul. This presentation focused on the huge growth of mental health-related disability cases in recent years, how these cases have been treated by the courts and the favorable impact of the 2008 amendments to the Americans with Disabilities Act on these cases.
Mental health diagnosis are now almost universally recognized by the courts as disabilities, requiring the employer to provide reasonable accommodation and even excusing conduct which may violate workplace rules when this conduct is the result of this disabling condition or behavior associated with this condition. Since the passage of the 2008 amendments to the Americans with Disabilities Act, battles in these cases has shifted from disputes over whether the plaintiff is indeed disabled to disputes over whether the employer was actually motivated by disability bias against the plaintiff when these conditions are disclosed and accommodations are sought. This was the essential purpose of these amendments.
Moreover, given the huge increase in diagnosis such as Major Depression, Anxiety Disorder, PTSD, Autism, and ADHD and related conditions, a growing segment of the workforce are entitled to the protections against disability discrimination. Effective advocates need to fully understand not only these diagnoses and the hard-to-control behavior that can sometimes result from them, but the accommodations that are generally legally required when these conditions are disclosed to the employer. Advocating successfully for these plaintiffs requires this depth of knowledge. My significant experience in successfully litigating for plaintiffs with these conditions allows the Firm to routinely craft strategies to increase the likelihood of success through every step in the litigation process.
As examples, workplace attendance and tardiness rules must occasionally be relaxed to allow for the effects of medications patients take to cope with these conditions, which often affect sleep patterns. Allowing a later start time, or flexibility in this area, is an accepted accommodation in this circumstance. Similarly behavior in the workplace that is caused by these disabilities must sometimes be excused or accommodated, especially if this behavior is difficult to control or may have been provoked in some manner. Understanding the side effects of medication can be very important in these circumstances. Finally, telecommuting should be seen as a reasonable accommodation when difficult symptoms arise for individuals with mental health disabilities, especially when the work can readily be completed from home or this option has been granted to others in the past.
As one of the most recognized plaintiff’s lawyers nationwide, Larry Schaefer has earned the respect of judges and other lawyers for his thorough and aggressive client advocacy in negotiation and litigation. He concentrates his practice representing people who are injured through employment discrimination practices. Larry serves as the firm’s CEO and head of litigation.
