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Mental Illness and the ADA

By Bryce G. Murray and E. Fredrick Preis, Jr.

Congress enacted the Americans with Disabilities Act ('ADA') as an attempt to provide physically and mentally disabled Americans with a means to combat a long history of discrimination in nearly all areas of civic life. To achieve this goal, Congress divided the Act into five titles, the first of which focuses exclusively on employment discrimination. While the statutory language and regulations seem straightforward, the corresponding legal realities to employers have caused many to come to the realization that 'even the most conscientious employer, without clear guidance as to what the [ADA] statute and implementing regulations require in a given situation, may find itself defending a lawsuit because of business decisions made in good faith, but adversely to an allegedly disabled individual.' 42 Am. Jur. 3d Proof of Facts Sec. 1 (2007).

One potentially dangerous situation employers struggle to understand arises when an employer neither knows nor recognizes an employee's mental disability, and has cause to terminate that employee, but, prior to termination, discovers the disability. In these types of situations where behavioral or performance problems may be caused by mental disease or the mental disease may be contributing to behavioral or performance problems, employers are many times left between 'a rock and a hard place,' especially when the employee fails to disclose the mental illness until the last moments of an employer's discipline process. This article examines why these issues are so difficult to identify, and potential pitfalls that routinely arise for an employer when dealing with an employee's mental health issues.

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