By Kohout, Frankie; Arnold, David W.
Security Management , Vol. 41, No. 11
Over several weeks a warehouse worker with a psychiatric disability has been coming to work with a disheveled appearance and has become increasingly antisocial even though his work has not suffered. Other employees have complained about his appearance and his rude behavior. Company policy states that employees should be courteous to each other and that a neat appearance is a must.
As the company tries to discipline the worker, he explains that his disability is the cause of his attitude and appearance. Since the employee has no contact with customers and contact with other employees is rare, the dress code and courteousness policies are not job-related for his position and are not a business necessity. Therefore, if the company rigidly applies its rules and disciplines the worker for his behavior and violation of the dress code, it will be violating the ADA.
This hypothetical situation is one of many outlined in the Equal Employment Opportunity Commission's (EEOC) latest guidelines, The Americans with Disabilities Act and Psychiatric Disabilities, which address the application of the employment provisions of the Americans with Disabilities Act (ADA) to persons with psychiatric disabilities. The document attempts to provide answers to the most common questions that employers have about employing individuals with psychiatric disabilities. The guidelines address these issues through hypothetical situations that are likely to occur in the workplace.
EEOC statistics show that between July 26, 1992, and September 30, 1996, psychiatric and mental disabilities accounted for approximately 13 percent of all ADA claims. The EEOC has previously offered general guidance regarding the ADA and its coverage of psychiatric disabilities but has not provided detailed examples.
Although the guidelines are generally consistent with past expectations under the ADA, at least one issue breaks significant new ground in the opinion of the authors. The guidelines state that the EEOC will investigate an employer for not hiring an individual who does not possess a professional license even when it is legally required for that position, but only if the individual claims that the licensing process discriminates against persons with psychiatric disabilities.
Specifically, the guidelines provide for the EEOC to investigate whether the professional license is required by law for the position at issue, and whether the employer in fact did not hire the individual because he or she lacked the license. The EEOC would also coordinate with the Department of Justice in investigating the state licensing requirements. In such a situation, an employer attempting to follow state licensing laws could apparently violate the ADA, or at least fall prey to an investigation. However, Carol Miaskoff, assistant legal counsel for coordination of the EEOC's ADA division, notes that while such a situation may arise, it has not occurred often and EEOC officials do not expect incidents to increase. …