Employers don’t be shocked – the “Takeaway” comes first today.

Takeaway: No matter what you think is or is not a disability, you place your company at risk if you don’t take seriously an applicant or employee who claims to suffer a disability, and fail to “interact” with that person to determine a reasonable accommodation.

Claustrophobia As A Disability

A Texas hair salon found out the hard way and now must pay $60,000 to settle an EEOC suit filed under the Americans With Disabilities Act (“ADA”).

Claustrophobia is what a hair stylist claimed she suffered from, and told a salon that she could not work at a salon station “if it was in a confined space located between others,” or she would suffer anxiety attacks. (Full disclosure: I suffer from a touch of this myself, so I shuddered when this person described how she felt when in a confined space).

Online, Mike Paddock writes in “Claustrophobia: Causes, Symptoms and Treatments,” that:

“Claustrophobia is an anxiety disorder in which the sufferer has an irrational fear of having no escape or being closed-in. It frequently results in a panic attack and can be triggered by certain stimuli or situations, such as being in a crowded elevator, a small room without any windows, or being in an airplane. Some patients with claustrophobia find their anxiety levels rise when they wear tight-necked clothing.”

In the new EEOC case, our hair stylist was initially given a more open station, but later the company placed her between other stylists. She asked a number of times to return to a more open station, but the company refused her requests. She claims that she thereafter suffered a physical reaction that required hospital emergency room treatment. The company ultimately fired her.

The EEOC Regional Attorney said that “Claustrophobia is a serious matter. When we discovered management refused to give this employee some space, our investigation closed in on what amounted to intolerance by management.”

It was not always thus.

In 2008 a magazine article noted that:

“Not every mental or physical condition is a disability under the ADA. That’s because the ADA requires more than the diagnosis of a medical or psychiatric problem. To qualify as a disability, the condition must impair a major life function like walking, breathing, taking care of oneself or working.

Consider claustrophobia. Though the condition, which involves the inability to remain in a confined space such as an elevator, may be a legitimate psychiatric condition, it does not necessarily prevent those who suffer from it from living a relatively normal life.”

But things change.

In 2011 I posted on my blog at my former firm that in a prior post I “noted that courts have recently held that … claustrophobia [is a disability] under the expanded definition of disability” under the ADA. Note also that the ADA amendments likewise expanded the definition of disability to the extent that numerous conditions have been defined as disabilities.

For an excellent discussion of mental illness as a disability which employers must accommodate, read my partner Amy Epstein Gluck’s post on this blog on August 15th, in which she noted, among many other things:

“Because many mental health impairments are not obvious or even noticeable, employers may be unaware of which accommodations may be effective, or hesitant to provide accommodations for an employee who may seem erratic or high-strung, or has trouble concentrating. But employers should sit down and talk to an employee they suspect of a disability. These folks may be reticent to start the conversation due to the perceived stigma of having a “disability.” No need to say “Hey, are you suffering from a mental illness?” No, that can land you in different kinds of trouble.

However, if you see that an employee is struggling, you can say “I see you are having trouble [concentrating], [communicating], [socially interacting]…etc. Is there any accommodation we can provide to help you?”

This often opens the door to employees who may want help but fear the consequences of telling their employer they have some form of mental impairment.”

Takeaway: Conditions which some employers deem trivial, minor, or think can simply be “shaken off” or are “made up” or imagined, may indeed be real disabilities and recognized as such by medical professionals and governmental agencies.

Don’t try to be Freud, Inspector Javert, or a wise guy: if a person claims to suffer a disability, whether or not you think its real is truly of no moment. You must engage in an interactive discussion with the employee to seek an accommodation that works for all.

And if you have questions – or doubts – this is no time for making light of the situation: seek out someone with knowledge of the employment laws and/or disabilities.