Newletter Masthead
September 2001 · Vol. 26, No. 3, pp. 7-8

ADA and trauma related conditions

Stuart B. Kleinman MD and Susan B. Egan JD

Committee on Trauma and Stress

Trauma related conditions are increasingly being used to invoke the Americans With Disabilities Act (ADA). The ADA prohibits discrimination against qualified individuals with a disability. It defines a "disability" as a physical or mental impairment that substantially limits one or more major life activities. [42 USC Section 12102(2).]

The EEOC Guidance on Psychiatric Disabilities, 8 FEP Manual (BNA) 405:7462(1997) identifies Post Traumatic Stress Disorder (PTSD) as an emotional or mental illness or impairment. Also included on this list are conditions which often accompany PTSD, including Major Depression and (other) anxiety disorders. According to the Guidance, traits or behavioral patterns, such as stress responses, irritability and poor judgment are not regarded as mental impairments in and of themselves and not covered by the ADA unless they are linked to mental impairments. Employers complain that this ambiguous criterion places an onerous burden on them to determine whether an individual is exhibiting a personality trait or a symptom of a mental disorder. Mental Disabilities and Employers' Obligations under the Americans with Disabilities Act, 3 ACCA Docket 18,24 (May/June 1999).

According to EEOC regulations, to "substantially limited" means: "i)Unable to perform a major life activity that the average person in the general population can perform; or ii) Significantly restricted as to the condition, manner, or duration under which an individual can perform a particular life activity as compared to the condition, manner or duration under which the average person in the general population can perform the same major life activity."[29 C.F.R. Section 1630.2(j)(l)(i)(ii)]

The EEOC Guidelines, [29 C.F.R. Section 1630.2(I)], identify the following as major life activities: a) caring for oneself, b) performing manual tasks, c) walking, d) seeing, e) hearing, f) speaking, g) breathing, h) learning, and h) working.

To be substantially limited in the major life activity of working, a person has to be "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities." [29 C.F.R. Section 1630.2(j)(3)(i)] Being unable to perform a particular job for a particular manager is not sufficient. Rather, an individual must in general be substantially unable to work. See, for example, Hetreed v. Allstate Ins. Co. , 1999 WL 311728 (N.D. Illinois 1999), where the diagnoses of PTSD and major depression were not a disability because there was no evidence that the disorders substantially limited the plaintiff's ability to work. In another example, Hoeller v. Eaton Corp. , 149 F.3d 621, 625 (7th Cir. 1998) a diagnosed Bipolar Affective Disorder was not considered a disability because there was no substantial limitation on employment generally.

Mustafa v. Clark County School District , 157 F.3d 1169 (9th Cir. 1998) illustrates a court's analysis of the applicability of the ADA to a common combination of anxiety and depressive disorders. The appellate court in this matter reversed and remanded the lower court's decision for the purpose of determining whether a teacher diagnosed with PTSD, depression and panic attacks was "in general" substantially unable to work. After a disability leave, Mr. Mustafa's employer asked him to see a physician it chose. Though his psychiatrist and psychologist released him to return to work only for non-classroom duties, the psychiatrist retained by his employer concluded that he could return to classroom work as well. Over Mr. Mustafa's objections, his employer directed him to return to the classroom or be fired. When he did so, he suffered further physical and mental difficulties, and required another leave after only two months. Mr. Mustafa sued under the ADA claiming that his employer failed to accommodate his mental disabilities. His employer claimed that Mr. Mustafa did not have an ADA disability because he was restricted from the job of classroom teacher only, and not from a class or broad range of jobs.

The appellate court agreed with Mr. Mustafa. It found that since the evidence showed that teaching caused him to experience physical and mental difficulties, he was arguably disqualified by his disability from all teaching positions in the Clark County area. The court was unwilling to enter judgment against Mr. Mustafa on his ADA claim until he had an opportunity to demonstrate at trial that as a practical matter, his disability foreclosed him most jobs available to others with his background and training.

Another example is found in Criado v. IBM Corporation , 145 F.3d 437, 441-43 (1st Cir. 1998). In this case, proof that the plaintiff was unable to perform some of the functions of her job, that sleep disturbance was affecting her ability to report to work on time, that she was experiencing difficulty relating to others and that overall she was unable to perform her job as well as she had in the past was sufficient to establish that she was substantially limited in performing the major life activity of working due to anxiety disorder and depression.

To assist the court, the forensic examiner must specify how an examinee's impairments affect his/her ability to perform employment tasks. For instance, in Hamilton v. Southwestern Bell Telephone Co. 136 F.3d 1047 (5th Cir. 1998) Mr. Hamilton had been employed by Southwestern Bell for twenty years. Four months before he was fired, he rescued a drowning woman. For a time following the rescue, he experienced a wide variety of psychological symptoms, including extreme fatigue, crying when faced with stress, irritability, suicidal thoughts, impaired concentration and inability to deal with customer relations issues. Both his EAP counselor and treating psychiatrist diagnosed him with PTSD. However, he was fired when he verbally abused and struck a co-worker on the job, and expressed reluctance about participating at work in activities which exposed him to undue stress. He claimed that his employer fired him because of his disability and he sued under the ADA. At trial, he testified to various symptoms, but maintained that, notwithstanding his disability, these symptoms had dissipated and that his performance level until he was fired was "ahead of his peers." The court noted that though the plaintiff claimed stress exacerbated his PTSD symptoms and made him unable to deal with customer relations, he ran his own software distribution business for almost a year after his termination. Though the psychiatrist with whom he consulted diagnosed his condition as PTSD, she failed, the court particularly noted, "to identify specific activities within his work environment that would be substantially limited by PTSD." The court concluded that any work impairment he suffered was temporary and that there was no proof that he was impaired in performing any major life activity, including work. (See also Rogers v. International Marine Terminals , 87 F.3d 755, 759 [5th Cir. 1996]).

In addressing potential ADA excluding factors, the court may ask the forensic examiner to opine regarding the duration of a mental illness. He/she may also be asked to testify, as the court in Hamilton suggests, to the specific activities within the examinee's work environment that are substantially limited by PTSD, and to whether the disability is or could be fully corrected. In Sutton v. United Airlines , 527 U.S. 471(1999) the Supreme Court held that the determination of whether a disability is cognizable under the ADA must take into account any corrective measures undertaken by the disabled person. As a result, people with mental disorders that are substantially fully resolved or compensated by psychiatric treatment likely are not covered by the ADA.