Lawfully Handling Employee Mental Health Issues

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By Kathleen J. Jennings (kjj@wimlaw.com)

Thanks to the effects of a worldwide pandemic and revelations by high profile athletes, the issue of mental health is being openly discussed. Such discussions may even happen in your workplace. So how do you deal with employees who reveal that they are struggling with mental health issues, either their own or those of a close family member?

As a starting point, employers that are covered by the Americans WIth Disabilities Act (ADA) cannot discriminate against employees who suffer from mental health conditions that would be considered “disabilities.” Morever, the ADA prohibits employment discrimination against a person, whether or not he or she has a disability, because of his or her known relationship or association with a person with a known disability.

The ADA also protects employees from harassment on the basis of their mental health disabilities. Additionally, the ADA imposes a duty on covered employers to determine whether they can provide reasonable accommodations to disabled employees. An employer is not required to provide an accommodation that would impose an undue hardship.

These are complicated issues, and the EEOC has provided detailed (albeit not up to date–it was issued in 1997) Enforcement Guidance on the Americans With Disabilities Act and Psychiatric Disabilities. More recently, in 2016, the EEOC issued a technical assistance document targeted toward employees entitled “Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights.” This is something your employees may review if they feel like they are not being treated lawfully, so it is worth the time for employers to review it as well.

Every situation is different, so an employer should deal with employees with mental health disabilities on a case by case basis and with the assistance of qualified counsel. However, the following are some general guidelines:

  • If an employee reveals that he or she has been diagnosed with a mental illness, that information must be kept confidential.
  • There are very limited circumstances under which an employer can ask an employee if he or she is mentally ill. Before making such an inquiry, consult with counsel.
  • It is inappropriate for anyone to refer to another employee as “crazy,” “nutcase,” “cuckoo for coco puffs,” “insane,” or other types of derogatory words and phrases. If the use of such terms is considered to be severe or pervasive, the employer could be liable for harassment. Your harassment prevention training should cover this issue.
  • Some examples of possible accommodations for employees with mental health disabilities include altered break and work schedules (e.g., scheduling work around therapy appointments), quiet office space or devices that create a quiet work environment, changes in supervisory methods (e.g., written instructions from a supervisor who usually does not provide them), specific shift assignments, and permission to work from home.
  • The Family and Medical Leave Act may come into play, if the employer and employee are covered by it.

Most of all, a little compassion goes a long way.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2021 Kathleen Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Do You Know What Your Managers Are Doing on Social Media?

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With so many people working and playing at home, it is no wonder that many of them are utilizing some form of social media to keep in touch with others. That includes your managers.

Why should you care about what your managers are doing on social media? Because what they say and do can reflect upon your company. And because to a plaintiff’s lawyer, your manager’s social media posts or activity can be considered evidence. To be used against your company.

Which means that your managers need to understand that whatever they post, share, or follow can be reflection on them and the company they work for, especially if their profile includes the name of their employer. That post that a manager “shares” that expresses disdain for the Black Lives Matter movement? Do you want to see that as evidence in a lawsuit for race discrimination filed by one of your employees? Or that video denouncing gay marriage? That may also show up as evidence in a discrimination lawsuit. Even if they do not become evidence, they may cause some people to stop doing business with your company.

Even more dangerous are the posts where a manager threatens or harasses an employee online. Your policy against harassment should make it clear that emails, texts, and social media posts that harass another employee (or third party) are prohibited. And it is usually not a good idea for managers and supervisors to be “friends” with their subordinate employees.

The manager’s position and industry also matter. It just doesn’t look good for a male teacher to be “following” hundreds of very young women on TikTok. Or for a safety coordinator to follow pages dedicated to the love of illegal drugs. Optics, people.

So what is an employer to do? The first step is to have a comprehensive written Social Media Policy. You should revisit and modify that policy as social media evolves. The policy should provide guidelines for social media use, both professionally and personally. A competent employment lawyer can draft a policy that will fits the needs of your organization.

In addition, the company should regularly communicate to its supervisors and managers that they should not post, share, or do anything on social media that would violate any company policies, such as:

  • the policy against harassment,
  • the company’s ethics policy,
  • the policy against violence, or
  • the EEO policy.

And that there will be consequences if they violate this policy.

Finally, it is also a good idea to have a computer and internet policy that spells out the types of sites employees can and cannot visit, and that advises all employees that they have no expectation of privacy in any company owned computers or internet use. Even when such a policy is in place, I am always amazed at how many employees download porn on their company owned computers. Which just makes my job as defense counsel more difficult.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Kathleen J. Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Who is the Equal Opportunity Harasser and Why Do We Care?

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Who is the Equal Opportunity Harasser? It is the person who asks both men and women questions about their favorite sexual positions. The person who tells jokes that offend pretty much every ethnic group. The manager that screams at everyone and takes special delight in making employees cry. Basically, this is a person who is a complete jerk and a bully.

Why do we care?  From a legal standpoint, the “equal opportunity harasser” is a defense raised by employers to charges and lawsuits alleging harassment.  The gist of the defense is that because the equal opportunity harasser offends everyone, a plaintiff cannot prove that he or she harassed a particular individual because of sex, or race, or some other characteristic protected by Title VII.  Some federal courts have utilized this defense to absolve employers from liability for harassment in the workplace.  See, e.g., EEOC v. Harbert-Yeargin, Inc., 266 F.3d 498, 508 (6th Cir. 2001) (explaining in a sex harassment case that “‘Title VII does not cover the ‘equal opportunity . . . harasser'” “because such person is not discriminating on the basis of sex.'” (internal citation omitted)). 

Now, many attorneys and scholars are questioning the continued validity of the equal opportunity harasser defense after some language contained in the U.S. Supreme Court’s ruling in Bostock v. Clayton County (the recent LBGTQ rights case) seems to cast doubt on it. Specifically, Justice Neil Gorsuch wrote:

The consequences of the law’s focus on individuals rather than groups are anything but academic. Suppose an employer fires a woman for refusing his sexual advances. It’s no defense for the employer to note that, while he treated that individual woman worse than he would have treated a man, he gives preferential treatment to female employees overall. The employer is liable for treating this woman worse in part because of her sex. Nor is it a defense for an employer to say it discriminates against both men and women because of sex. This statute works to protect individuals of both sexes from discrimination, and does so equally. So an employer who fires a woman, Hannah, because she is insufficiently feminine and also fires a man, Bob, for being insufficiently masculine may treat men and women as groups more or less equally. But in both cases the employer fires an individual in part because of sex. Instead of avoiding Title VII exposure, this employer doubles it. 

In other words, as my Mother always said, “two wrongs don’t make a right.”

Some attorneys and legal scholars are skeptical that the equal opportunity harasser defense has been completely eviscerated by the Supreme Court.  They argue that Title VII does not prohibit indiscriminate bullying in the workplace. 

We’ll need to wait and see how the lower courts interpret Justice Gorsuch’s language.

In the meantime, even if the equal opportunity harasser defense lives on, that does not necessarily mean that employers should tolerate the equal opportunity harasser.  Do you really want to have a workplace where folks dread coming to work every day because they expect to be yelled at or belittled? Where employee morale is low and employee turnover is high?  Is the equal opportunity harasser worth those costs?

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Kathleen J. Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.