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The U.S. Equal Employment Opportunity Commission (EEOC) issued guidance Dec. 12 reminding employers that job applicants are protected from employment discrimination and harassment based on depression, post-traumatic stress disorder, schizophrenia and other mental health conditions and may keep their condition private in most cases before an employment offer is made.
"Many people with common mental health conditions have important protections under the Americans with Disabilities Act [ADA]," said EEOC Chair Jenny R. Yang. The ADA applies to employers with 15 or more employees.
Employers and job applicants should know that mental health conditions are no different than physical health conditions under the law, Yang said. "In our recent outreach to veterans who have returned home with service-connected disabilities, we have seen the need to raise awareness about these issues."
EEOC data indicate that charges of discrimination based on mental health conditions are on the rise. During fiscal year 2016, preliminary figures show that the agency resolved almost 5,000 charges of discrimination based on mental health conditions, obtaining approximately $20 million for individuals who were unlawfully denied employment and reasonable accommodations.
[SHRM members-only toolkit: Employing People with Psychiatric Disabilities]
The EEOC guidance document reiterates that it is illegal for an employer to pass over a job applicant simply because he or she has a mental health condition. Employers do not have to hire people for jobs they can't perform, but "an employer cannot rely on myths or stereotypes about mental health conditions" when deciding whether an applicant can perform the job or not, the agency said.
Generally, employers cannot ask applicants if they have any mental health conditions before making a job offer. The EEOC states that "before a job offer has been made, you can't ask questions about an applicant's disability or questions that are likely to reveal whether an applicant has a disability. This is true even if the disability is obvious. You can ask the applicant to describe or demonstrate how she would perform specific job tasks, but you can't ask about her disability."
Questions to avoid include:
However, an employer is allowed to ask medical questions of job applicants in these three situations:
If job candidates do talk about their condition for any reason, they are protected from discrimination and the information must be kept confidential from co-workers if they are hired.
"The ADA requires that employee medical information be kept separate from general personnel files in a confidential medical file, available only under limited conditions to supervisors, managers, first aid and safety personnel, and government officials investigating compliance with the ADA," said Jon Hyman, a partner in the labor and employment group of Meyers, Roman, Friedberg & Lewis, based in Cleveland.
If an employer rejects an applicant after a post-offer disability-related question or medical examination and the applicant files a complaint with the EEOC alleging discrimination, agency investigators will closely scrutinize whether the rejection was based on the results of that question or examination. If a question or examination screens out an individual because of a disability, the employer must demonstrate that the reason for the rejection is job-related and consistent with business necessity.
Recruiters and hiring managers must have objective evidence that someone can't perform the duties of the job or that he or she would create a significant safety risk—even with a reasonable accommodation—before rejecting the individual for a position. "The ADA does not protect employees who pose a direct threat—a significant risk of substantial harm—to the health or safety of the individual or to the safety of others, if that risk cannot be eliminated or reduced below the level of a direct threat by reasonable accommodation," Hyman explained.
He added that for employers to be in compliance with the ADA, they must establish, through "objective, medically-supportable methods," that a significant risk of substantial harm could occur in the workplace.
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