Employment Law Update: Court holds that asking an employee about mental health treatment is not sufficient to show the employer perceived the individual as disabled.

The Americans with Disabilities Act (“ADA”) protects individuals from discrimination because of a qualifying disability. However, the law also prohibits employers from discriminating against an employee because they regard that employee as having a disability. In 2008, the ADA was amended. The amendments made a number of significant revisions to the Americans with Disabilities Act which, in effect, broaden the scope of protection under the Act. One of the most significant aspects of the new regulations is the expansion of the definition of disability under the Act. Under the new expanded definition, individuals will have less difficulty proving that they are disabled under the Act. The amendments also increase the Act’s applicability to “regarded as” claims; however, the law does not require an employer to reasonably accommodate individuals who are regarded as being disabled.

The Federal District Court for the District of Columbia recently addressed the issue of an employee claiming that she was treated adversely because the employer regarded her as being disabled. In that case, the individual worked for the city’s housing authority. The individual had a history of confrontational and inappropriate behavior. For example, in 2010 she was arrested and charged with assault and possession of a weapon when she threw a cup of antifreeze at a co-worker during an altercation. Throughout the following year, the employee’s supervisor observed the employee in various states of distress while at work. She was also involved a number of different incidents where co-workers complained about her threatening them. Finally, in August 2011, the individual was suspended for stalking and harassing a co-worker in the company parking lot. Later that month, a human resources representative met with the employee to discuss her ongoing disciplinary infractions. During the conversation, the human resources representative asked the employee whether she had seen a mental health professional recently, because a medical condition might possibly be triggering her actions. The employee eventually filed suit and alleged, among other things, that the employer discriminated against her because it regarded her as being disabled. The employee brought the case under the Rehabilitation Act; however the Rehabilitation Act incorporates by reference the ADA and its standards concerning regarded as claims.

In her lawsuit, the employee pointed to her conversation with the HR representative as evidence that the employer regarded her as being disabled. The federal court, relying on pre-amendment case law, ruled that the statements by the HR representative were insufficient to establish that the employer regarded the individual as being disabled. The court said an employer’s suggestion or requirement that an employee seek a mental health evaluation isn’t enough to show that the worker was regarded as disabled. Prior to the amendments, several circuits were in agreement that an employer’s request or even requirement that an employee seek a mental or physical health evaluation would not alone support an inference that the employee was regarded as disabled. For example, the Eighth Circuit explained that a request for an evaluation is not the same as treating the employee as though she were substantially impaired. Significantly, the DC District Court held that because no circuit had reaffirmed the position concerning “regarded as” cases, pre-Amendments case law remains persuasive. Therefore, relying on the Eighth Circuit opinion, the judge opined that employers need to be able to use reasonable means to ascertain the cause of troubling behavior without exposing themselves to legal claims.

While it is not advisable to inquire of employees with no known disability whether they have sought mental health treatment, this holding of the DC District Court is interesting in its interpretation of such a question. Human Resource representatives, managers, and supervisors should be trained to recognize the possible legal implications of their questions and comments when dealing with an employee who may need a mental health assessment in order to perform his or her job.

Terri Imbarlina Patak