Mental Disability Harassment

Mental health conditions affect all sectors of society. According to the Northeast ADA Center, Yang-Tan Institute at Cornell University, about 18% of workers in the United States report having a mental health condition in any given month. Thus, psychiatric diagnoses such as anxiety disorder and depression are common in the workforce. Given that stigma, prejudice, and discrimination against people with mental health conditions and other mental disabilities, through both subtle and overt mistreatment, are common in American society, the need to protect workers from discrimination and harassment in the workplace based on mental health conditions is great.  

Under California’s preeminent antidiscrimination and antiharassment law, the Fair Employment and Housing Act, California Government Code sections 12900 – 12996 (FEHA), it is an unlawful employment practice for an employer (or any other person) to discriminate or harass employees or applicants because of their medical condition, physical disability, or mental disability. California Government Code section 12940(j)(1). Under FEHA, the term “mental disability” includes “any mental or psychological disorder or condition, such as intellectual disability, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity” such as “physical, mental, and social activities and working.” California Government Code section 12926(j). Therefore, employees with commonplace mental health conditions, as well as other conditions and disorders that fall under the umbrella of FEHA’s definition of mental disability, are protected against discrimination and harassment at work motivated simply because of the condition. An employer cannot rely on stereotypes associated with your condition to determine that you cannot perform your job or that you pose a safety threat to others in the workplace.  

Additionally, employers are required to take "all reasonable steps to prevent harassment from occurring." California Government Code section 12940(j)(1).

Mental disability harassment occurs when a person in the workplace demonstrates a pattern of saying or doing something based on an employee’s mental disability (e.g. mental health) that the person knows or should have known was unwelcome.

Examples of mental disability harassment include,

• Distributing offensive material about people with mental disabilities to individuals in the workplace by emails and texts, etc.
• Revealing that an employee has a mental disability, including mental health issues, to persons in the workplace who do not need to know this information
• Name calling, including slurs and the recitation of stereotypes that people with mental disabilities are dangerous, unreliable, or incompetent
• Signaling out the person for jokes and teasing about mental disabilities
• Excluding the person from conversations and the social environment at work
• Bringing attention to visual images on the internet or elsewhere depicting people with mental disabilities in a negative light

Under FEHA and the federal Americans with Disabilities Act, United States Code, title 42, sections 12101-12213: To establish a claim of disability harassment, the plaintiff must generally show:

• He or she was an employee of the employer,
• He or she is disabled,
• He or she was subjected to unwelcome harassment,
• The harassment he or she complained of was based on his or her disability or disabilities,
• The harassment was sufficiently pervasive or severe to affect a term, condition, or privilege of employment and create an abusive work environment for the affected person, and
• The employer knew or should have known of the harassment and failed to take prompt, remedial action. See Flowers v. Southern Regional Physician Services, Inc. (5th Cir. 2001) 247 F.3d 229, 235-236, and
• He or she was harmed by the harassment.

Harassment is normally a separate cause of action from discrimination. However, harassment is actionable as "discrimination" if it is "so severe or pervasive as to alter the conditions of [the victim's] employment and create an abusive working environment." Clark County School District v. Breeden (2001) 532 U.S. 268, 270.

Employers are strictly liable for harassment by the harassed employee’s direct supervisor carried out in the scope of his or her duties. However, for coworkers, the employer is only liable if it knew or should have known of the ongoing harassment and then failed to take immediate corrective action. California Government Code section 12940(j)(1). “We conclude that an employer is strictly liable under the FEHA for sexual harassment by a supervisor.” State Department of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1034.

Under FEHA physical disabilities, mental disabilities, and mental conditions are defined broadly and include both actual disabilities and conditions, and situations where an employer perceives that an employee has a disability or condition. California Government Code section 12926.1(b).

To establish a claim, the mental disorder or condition must limit a major life activity. If a mental or psychological disorder or condition makes the achievement of the major life activity difficult, then it limits the major life activity. California Government Code section 12926.1(c).

Mental disorders or conditions include but are not limited to

• Intellectual or cognitive disabilities,
• Autism or Asperger's syndrome,
• organic brain syndrome,
• Tourette syndrome,
• emotional or mental illness,
• specific learning disabilities that require special education or related services, California Government Code section 12926(j)(2)
• clinical depression,
• Down syndrome,
• Schizophrenia,
• bipolar disorder, California Government Code section 12926.1(c)
• post-traumatic stress disorder,
• cerebral palsy,
• paranoia,
• Alzheimer's disease,
• depression and personality disorders,
• obsessive compulsive disorder,
• If an employer regards an employee or treats an employee as though they have a mental condition that makes achievement of a major life activity difficult, such is enough to constitute a mental disability. California Government Code section 12926(j)(4).

Mental disabilities do not include "sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs." California Government Code section 12926(j)(5).

It is unlawful for an employer to "fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee." California Government Code section 12940(m).

An employer "who knows of the disability of an employee has an affirmative duty to make known to the employee other suitable job opportunities with the employer and to determine whether the employee is interested in, and qualified for, those positions....if the employer offers similar assistance or benefit to other disabled or non-disabled employees or has a policy of offering such assistance or benefit to any other employees." Prilliman v. United Air Lines, Inc. (1997) 53 Cal. App. 4th 935, 950-951.

If you are experiencing harassment on the job due to a disability, or if you believe that your rights have otherwise been violated by your employer or ex-employer, call the experienced employment law attorneys at Kokozian Law Firm, APC or Contact Us via our online form.