Mediating Psychiatric Disability Accommodations for Workers in Violent Times

Abstract

Most workers in the United States are unhappy. Manifestations of that dissatisfaction can result in many workplace dilemmas when confronted with the situation of an employee dealing with mental illness. Fears of violence in our society have become prevalent with the increasing ferocity of high-profile and mass attacks in and out of the workplace. In believing mental illness contributes to some of these incidents, employers and co-workers have become extremely sensitive when a co-worker with a psychiatric disability has exhibited harassing or threatening behavior.

The Americans with Disabilities Act (ADA) was amended by the ADA Amendments Act of 2008 (ADAAA), which became effective in 2009. That amendment intended to change the legal landscape when analyzing disability discrimination claims regulated by the ADA. The analysis after the ADAAA has shifted from the question of whether an individual meets the statutory definition of being disabled to the question of whether a reasonable accommodation exists that allows a disabled employee to perform the essential functions of the job. Although the ADAAA became effective in 2009, many of its implications are starting to become a reality a decade later.

A pressing question created by the ADAAA relates to the increased need to determine the nature of a reasonable accommodation for employees, including those with psychiatric disabilities. Employers must now face the reality that the ADAAA could compel them to explore reasonable accommodations more regularly for employees coping with mental illness. When the possibility of violent or harassing behavior ensues, employers and co-workers could rely on stigma and stereotyping out of expediency rather than acting on sound medical judgment required by the ADA in assessing an accommodation for an employee’s psychiatric disability. This Article proposes the use of mediation as a more significant tool in resolving the balance of concerns presented in these situations. By employing experienced mediators with skills in understanding workplace dispute resolution as well as mental health issues, employers and employees can identify a reasonable accommodation in a fair manner that works for all the interested parties.