Spring 1998, Vol. 7, No. 1

Comments on EEOC Guidelines

Below are the comments of the Academy of Organizational and Occupational Psychiatry on proposed EEOC Guidelines on the ADA and Psychiatric Disability.

The committee of the Academy which compiled these comments included:
Jeffrey P. Kahn, M.D. (chair), Brian Grant, M.D., Marie-Claude Rigaud, M.D.,M.P.H., Ronald Schouten, M.D., J.D., Marcia Scott, M.D., Thomas Valk, M.D, MPH.

AOOP members universally applaud the goal of easing workplace barriers for the mentally ill. However, many major concerns were raised about these Guidelines. This is a summary of some of those concerns as noted by one or more members of an ad hoc AOOP committee.

Diagnosis and Professional Credentials

The criteria by which to judge whether an employee has offered "insufficient information to substantiate that s/he has an ADA disability" in section 22, page 23, should include several important points. First, the qualifications of the professional making a diagnosis of a mental impairment which may be a disability should be a consideration. Many DSM-IV diagnoses require that organic causes for an apparent mental disorder be ruled out. This requirement necessitates evaluation by a psychiatrist or other qualified physician. Second, given the courts' use of the DSM-IV as an important reference, DSM-IV diagnostic criteria should be the basis for any determination of a mental impairment. In the absence of accurate diagnosis, it would be difficult even to begin the task of determining effects on job function or reasonable accommodation. Finally, it is often the case that treating clinicians' reports are biased in favor of their patient, thus warranting an employer requested evaluation.

The use of the term "stress" in paragraph 2 in the Impairment section is a poor choice. It is neither a "trait" nor a "behavior" and, in fact, is not a diagnosis or even a specific set of symptoms. Thus, especially given the Guideline's reference to DSM-IV as an important basis of establishing a mental impairment, it is best deleted.

Fitness for Duty Evaluations

Several statements within the guidelines may cause unworkable limitations upon Fitness for Duty (FFD) Evaluations. FFD Evaluations have long been a way for an employer to seek professional opinion regarding possible psychiatric (and other medical) problems. These evaluations are often performed by professionals chosen by the employer. Properly used, they can be helpful to both employee and employer, without undue employer intrusion into confidentiality. They can have clinical advantages for employees through diagnostic reevaluation and treatment assessment. In addition, an employee's treating clinician is not put into the position of breaching confidentiality, or of becoming a patient advocate rather than helpful therapist and diagnostician. Treating clinicians' reports are typically biased in favor of patient request, and do not include those things that the clinician has failed to recognize.

It appears that FFD evaluations are allowed in the circumstances outlined on page 15 of the Guidelines, i.e., in the post-offer, pre-employment and employment stages. However, example D on page 17 moves toward restricting inquiry into the patient's "entire psychiatric history." Almost always, a person's prior psychiatric history is essential in making or verifying a diagnosis or determining if a disorder rises to the point of disability. Not having access to such history would also hamper the clarification of precipitating life stresses and treatment effectiveness and could undermine the determination of what kinds of reasonable accommodation might be helpful. A proper psychiatric evaluation must include past and present psychiatric symptoms and treatment, as well as details of personal and family history. No cardiologist would offer reasonable accommodation suggestions for an unassessed complaint of "chest pain." Finally, these guidelines may overlook conflicts with other legal issues such as negligent retention and hiring, and licensing requirements, where employers have legal obligations to make detailed inquiries. Paragraph 22 on p. 23 also appears to add an additional constraint upon FFD evaluations, that is an employer may require an examination by a professional of its choice "if the employee initially provides insufficient information to substantiate" a covered disability and need for reasonable accommodation. Although necessary additional criteria for judging the sufficiency of information has already been addressed, it is felt that FFD evaluations should not be so restricted.

Mainstreaming and Stigma

Reasonable accommodation for the mentally ill is sorely needed in the American workplace. Care must be taken, though, that such efforts do more good than harm. Even appropriate accommodation of a psychiatric illness can lead to stigma, co-worker envy, social isolation, and exacerbation of emotional distress. This would be especially true if co-workers were truly unaware of the reason for the accommodation. More striking is the thought of providing a private, and socially isolated, workspace for a depressed worker with reduced concentration! Some accommodated employees might also feel substantially less accomplished as a result. Patients in treatment generally seek to fulfill their career potential through their own abilities, and feel better when they are succeeding.

There is also the frightening possibility that these guidelines could lead to an increase in illegal discrimination against the mentally ill, or even those perceived to be so. Mechanisms are not hard to imagine, especially with the recently increased availability of confidential medical information. For fear of legal actions, employers might fail to hire someone who merely appears sad or eccentric on interview, "manage out" employees who use mental health care, or include those with emotional problems in the next round of layoffs.

Potential for Abuse

These guidelines pose an enormous potential for abuse. Those who seek reasonable accommodation may not be those who most need it. Rather, they may well be individuals with relatively minor emotional problems who feel antipathy towards their boss or employer. Such a prediction is supported by recent experience with the ADA generally, psychiatric disability claimants, and the California Workers' Compensation "Stress" claims. These EEOC guidelines do not offer even procedural protections against such problems, such as requirements for accurate independent professional diagnosis. Instead, "credible" reports of unverifiable "stress," "insomnia" or "reduced concentration" are deemed sufficient for accommodation. It is noteworthy that even among patients who truly believe they have insomnia, sleep lab studies have reported that many actual sleep well. What if a "credible" self-report of a "heart attack" were deemed sufficient to require accommodation?

Clinical Reality

Perhaps most importantly, these guidelines seem to be unaware of the clinical realities of mental illness. Most mental Illness among the employed is readily treatable anxiety or depressive disorders, yet a great many people do not find their way to effective treatment. Worse still, what could be more stigmatizing than to require that anyone once depressed might always have to be accommodated as if they were still depressed? Does an individual who suffered a major depression 10 years ago and who is no longer on medication still have an ADA disability? It is estimated that more than 20% of Americans will have a significant Major Depression in their lifetimes. Many other Americans will have some sort of DSM-IV diagnosable condition at some point, and most will sometimes feel "depressed" or "stressed." Yet, few of these people will need formal or extended accommodation in the workplace. There should be a "sunset" clause with regards to mental illness derived disabilities in these guidelines. This situation is further compounded by the fact that the effects of medications can not be considered in determining if an impairment causes substantial limitation (pages 6-7). Adequate treatment with medications can cause complete cessation of symptoms. Are such persons forever disabled under the ADA?

The guidelines provide a disincentive to offer quality mental health services, or to effect managerial referral for help. For example, helpful management recognition of an employee's problem could then be used against the company in legal actions. How does a supervisor refer a troubled employee to an Employee Assistance Program without incurring risk of perceiving that employee as having a disability?

Personality disorders are especially problematic. Everyone has a personality style, and knowing where to draw the line between a disorder and "common personality traits" is very difficult even for professionals using DSM-IV criteria. This provision creates one of the most significant areas for potential abuse since it is likely that individuals with personality disorders most antithetical to a good working environment would claim special dispensation under the ADA. Additionally, effective accommodation for many personality disorders is especially difficult to conceptualize. Finally, effective treatment for personality disorders involves setting limits on allowable behavior, and exploring the interpersonal limitations caused by maladaptive behavior. Accommodated employees could suffer the loss of essential workplace feedback if ordinary rules were modified for them, and would likely increase their maladaptive behaviors. For these reasons, the application of the ADA to include personality disorders is likely to cause many more difficulties than benefits to employee or employer and should be dropped.

Summary

Although the AOOP applauds the goal of reducing barriers to the mentally ill, the EEOC Guidelines has a number of serious flaws. The credentials and diagnostic criteria used to establish diagnoses of mental impairments need to be more clearly specified and apparent restrictions upon the scope and depth of Fitness for Duty Evaluations should be dropped. Extending the ADA to cover personality disorders raises a host of significant problems and should also be rescinded as more problematic than of benefit to employees or employers. The Guidelines create significant potential for abuse and create disincentives for obtaining mental health services in the workplace. Finally, the potential exists within the operation of these Guidelines, to increase the stigma of and covert discrimination against the mentally ill.

AOOP thanks the EEOC for consideration of this submission.

 
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