Discrimination claims based on mental health conditions are on the rise. The Equal Employment Opportunity Commission (“EEOC”) reported that it resolved approximately 5,000 charges relating to mental health conditions in 2016. Consequently, as part of its resource document series, on Dec. 12, 2016, the EEOC published “Depression, PTSD, and Other Mental Health Conditions in the Workplace” that explains, in question and answer format, the rights of employees with mental health conditions in the workplace.

The EEOC instructs employers on when they have an obligation not to discriminate against an individual on the basis of a mental health condition, an employer’s right to refuse to hire or retain an employee if the employee cannot perform the job‘s essential functions or if the employee poses a “direct threat” to safety, and privacy regarding mental health information. It also informs employees of their rights against discrimination and harassment based on their mental health conditions.

The EEOC reminds employers not to rely on “myths or stereotypes” about mental health conditions when making employment decisions and instructs employers to collect objective evidence of an employee’s ability to perform the essential functions of the job. In addition, the EEOC provides employers with guidance on an employee's right to keep mental health conditions private. Employers may not ask medical questions about mental health conditions, except for:

  • When an employee asks for a reasonable accommodation.
  • After the employer makes a job offer, but before employment begins, so long as all offerees entering the same job category are asked the same questions.
  • When the employer engages in affirmative action for people with disabilities, in which case the employee has the option to respond.
  • On the job, when there is objective evidence that the employee may be unable to do the job or that s/he poses a safety risk because of a mental health condition.

The EEOC also offers guidance on when a request for a reasonable accommodation is appropriate, with some added language that is not included in the regulations. The EEOC says that a condition may qualify as “substantially limiting” by, for example, "making activities more difficult, uncomfortable, or time-consuming to perform.” “Uncomfortable” is a new qualifier, and it is unclear how the EEOC or the courts will interpret this new language or how employees may use it in their reasonable accommodation requests.