EEOC Wants to Curb Mental Health Discrimination

​The federal government is cracking down on companies that discriminate against workers because they have a mental health condition.

"Over the past decade or so, the EEOC [U.S. Equal Employment Opportunity Commission] has seen a significant increase in mental health-related ADA [Americans with Disabilities Act] charges, even as our total charge receipts across all statutes substantially decreased during that time period," said EEOC Commissioner Andrea Lucas.

Mental health conditions such as major depressive disorder, bipolar disorder and schizophrenia substantially limit brain function. Individuals with these disorders will, in nearly all cases, be determined to have an ADA disability, according to the EEOC. Other mental health conditions may also be considered disabilities.

In August, Sinclair Broadcast Group in Cockeysville, Md., agreed to pay $85,000 and provide other relief to settle a discrimination lawsuit filed by the EEOC for allegedly firing an employee upon learning she had schizoaffective disorder.

Since 2018, the agency has resolved a number of cases against organizations for discriminating against employees or applicants with mental health conditions, including severe depression, attention-deficit/hyperactivity disorder, drug addiction and other psychological disorders.

Lucas said addressing the nation's mental health crisis must be a priority for [employers] across the public and private sectors.

"When faced with an applicant or employee with a mental health disability, it's crucial that—just like for all disabilities—employers not respond based on stigmas or stereotypes, and instead engage in individualized decision-making," Lucas warned.

Fast Facts About Mental Health

Reports show that the COVID-19 pandemic wreaked havoc on employees' psychological well-being and businesses' bottom lines.

According to the World Health Organization:

• Globally, an estimated 12 billion working days are lost every year to depression and anxiety at a cost of US$1 trillion per year in lost productivity.
• Poor working environments—including discrimination and inequality, excessive workloads, low job control and job insecurity—can exacerbate mental health issues.
• People with severe mental health conditions, such as schizophrenia or post-traumatic stress disorder, are more likely to be excluded from employment; when in employment, they are more likely to experience inequality at work.
• Unemployment, job and financial insecurity, and recent job loss are risk factors for suicide attempts.

[SHRM Foundation: A Field Guide for Mental Health in Your Workplace: From Evaluation to Action]

New EEOC Plans Outline Additional Areas of Concentration

In September, the EEOC released its strategic enforcement plan (SEP). The document emphasizes the agency's greater concentration on discrimination against vulnerable populations, including employees with mental health disorders.

Other areas of focus for the agency are artificial intelligence, pregnancy and long COVID, as well as the prevention of workplace harassment based on race, nationality, religion, gender, medical conditions and other factors.

"Harassment, both in-person and online, remains a serious issue in our nation's workplaces," according to the SEP. "The EEOC will continue to focus on combatting systemic harassment in all forms and on all bases."

The EEOC also recently adopted its new strategic plan, outlining the agency's overarching goals over the next few years. The document has two key objectives for enhancing its ability to identify systemic bias:

• At least 90 percent of investigators and trial attorneys must participate in systemic training each year.
• Hire two staff members per district office who will be dedicated to addressing systemic discrimination.

"This is a signal to employers that the EEOC is likely to be more apt to pursue cases on systemic discrimination grounds," said Meredith Kirshenbaum, attorney at Goldberg Kohn in Chicago.

The plan also pledges to improve the commission's charge intake services and enhance its education and outreach efforts, but it does not specifically address the reported inconsistencies in the EEOC's intake process.

Chris DeGroff, an attorney at Seyfarth in Chicago, said the EEOC has historically struggled with charge backlogs, "and we don't see a clear methodology to address current or potential future charge logjams."

However, he implored companies to take these plans as "yet another warning to invest in state-of-the-art policies and training now, to stay out of the EEOC's crosshairs."

Employers Should Review Policies and Procedures

Companies should closely monitor their compliance with EEOC conciliation agreements, according to James Nasiri, an attorney at Seyfarth in Chicago.

He noted how the strategic plan vows to pursue "enhanced compliance monitoring," meaning that any employers that enter into conciliation agreements or consent decrees with the agency should pay special attention to their responsibilities under these agreements.

"This can be done through proactive steps such as setting calendar reminders a week before all deadlines, meeting to review compliance at least twice per year, or assigning a specific HR or legal department employee to be responsible for compliance," Nasiri said.

Gillian Murphy, a partner with Davis Wright Tremaine in Seattle, said employers should review all policies and practices that might give rise to a claim of systemic discrimination, such as:

• Background- and credit-check practices.
• Pre- and post-hire personality or behavioral tests.
• Inequitable leave polices.
• Unnecessary physical requirements.

"In addition," she added, "employers should consider reviewing their compensation practices—under the direction of outside counsel to preserve privilege—to determine whether disparities exist that adversely impact minorities."