Mental Health Discrimination in the Workplace: What Are My Rights?

Types of Workplace Discrimination

Workplace discrimination for mental health may be subtle and hard to detect. For example, it could be that you’re passed over for a promotion due to a past history of alcohol abuse that has no impact on your future performance. If you are qualified for the job and the only difference between you and another candidate is your mental health diagnosis, denying you a promotion could be considered discrimination.

Discrimination Based on Mental Health

Mental health discrimination may include actions like not being hired once you’ve mentioned that you take medication for depression, or after you’ve asked for a reasonable accommodation, such as time off to see a therapist once a week. To prevent discrimination based on mental health, it’s best not to disclose your mental health issue until after you receive a job offer. Yes, hiring discrimination is illegal, but it’s also tough to prove in court.

Once you’ve been hired, mental health discrimination on the job may look like:

• Being excluded from an out-of-town training session because of a travel phobia
• Being passed up for a promotion, perhaps fearing it will increase your anxiety
• Being terminated for using available sick time due to a medication side effect
• Being demoted because you’re caring for a mentally disabled family member

Harassment

Harassment is a kind of discrimination that’s more difficult to prove than, say, being fired for crying on the job or for leaving because you’re depressed and feeling too emotional. Harassment is physical or emotional abuse directed at you for being different.

Examples of harassment that rise to the level of mental health discrimination may include:

• Mocking you for anxiety behaviors like turning red, shaking, or crying
• Making mimicking gestures like stuttering, twitching, or flailing hands
• Name-calling using loaded words like: crazy, scary, demented, psycho, spastic⁶

Retaliation

Retaliation is a legal term defining the prohibited behavior of punishing you in some way for reporting a claim of discrimination. The EEOC protects workers from retaliation. Retaliation can be obvious, such as firing you after you’ve reported to your HR representative that you felt passed over for a promotion. It can also be more subtle.

Here are examples of retaliation, all of which are illegal:

• A manager excludes you from meetings because she’s angry you contacted HR
• Your supervisor writes you up for accusing him of verbal harassment
• After you report your concerns, your raise is withheld, pending “investigation”
• Your boss denies your PTO request, calling you a loony troublemaker
• Your manager moves your desk to a bad location as payback for complaining

Know Your Rights

In a perfect world, employees would be hired and paid solely based on their ability to do a job, regardless of any mental health diagnosis (past or present). Federal and state laws are written to afford employees that right. However, some employers don’t realize that they have a responsibility to support their employees with mental health issues.

Therefore, it’s crucial you understand laws that protect your employment rights so that you can advocate for yourself and your family members to prevent workplace discrimination.

The Americans with Disabilities Act

The Americans with Disabilities Act (ADA) is designed to protect workers with mental health disabilities as well as physical disabilities. Its goal is to level the playing field. By law, employers cannot discriminate against a worker based on a physical or mental health disability. Smaller employers (typically those with 15 or fewer employees) are often exempt. Yes, they should comply, but there are fewer enforcement options.

To make sure you are treated fairly in the workplace, in spite of mental health disorders like depression, anxiety, PTSD, and other psychiatric concerns, it’s best to review the job description. Can you do the job with reasonable accommodation? If the answer is yes, the ADA offers you protection, especially if you work in a larger firm.

Anti-discrimination under the ADA means that the employer cannot treat you differently than others in your job role in terms of the training you receive, pay rate, promotions, job transfers, or terminations. Any job-related impacts, such as employee discipline or a layoff, should be based on job performance and work behaviors, not your mental health diagnosis.

The Fair Labor Standards Act

The Fair Labor Standards Act (FLSA) is another legislative act that provides protections for those with mental health issues. The FLSA focuses on wage and hour, including overtime and equal pay. For example, except under specific conditions¹ in which a mental disability significantly impacts a person’s ability to perform the job, an employer can’t pay you less for doing the same job as a co-worker based solely on your mental health diagnosis.

Race and ethnicity adds an additional factor when it comes to mental health in the workplace.² For example, black workers, especially those with lower levels of education, suffer more ill effects than other workers, such as higher reported stress levels and lower household income. They may feel discrimination based on more than one FLSA anti-discrimination standard, i.e. race and disability.

In April of 2019, the Department of Labor (DOL) created resources to help employers comply with federal labor laws, including a mental health toolkit to give employers access to best-practices.³ As an advocate of mental health for yourself, coworkers, or family members, you may wish to download and share this information with your employer.

FLSA Subminimum Wage

The FLSA subminimum wage for people with disabilities makes it possible for the severely disabled, including those with significant mental-health behavioral or cognitive issues, to work.

Examples may include:

• Your teenager with severe autism
• Your 30-year old son with Down’s syndrome
• You, while recovering from a substance use disorder.
• Your spouse suffering from PTSD or a significant panic disorder
• Your co-worker unable to manage schizophrenia behaviors

However, to get away with paying disabled workers less (subminimum wage), the employer has to apply for and receive a certification. Don’t accept an offer from an employer to pay you, your family member or co-worker less than others based on a mental-health disability without proper paperwork.

Equal Opportunity Laws

The Equal Opportunity Employment Commission (EEOC) is the enforcement arm for fair workplace practices. It provides educational resources to better understand what equal opportunity means, and to report employment issues, like workplace discrimination or wrongful termination based on mental health.⁴

Like the ADA, the EEOC gives you the right to ask for reasonable accommodation to address your mental health concerns on the job. It requires your employer to comply so long as the reasonable accommodation doesn’t result in a business hardship.

For example, you may want to bring your emotional support dog to work at a restaurant. The restaurant owner would likely decline that request as a health code violation that would impact their ability to serve food. That’s considered a business hardship.

The real value of the EEOC to an employee with mental health concerns is that they provide a website where you can file a complaint of discrimination or unfair labor practices. Once you file a complaint of discrimination, the EEOC will investigate. Additionally, by filing an official complaint with the EEOC you’re further protected from retaliation by your employer, as your complaint is now documented.

Know Your Company Policy

Many companies have written policies to prevent and address workplace discrimination. These may be above and beyond what the employer is required to do by law. For example, your company may have an employee hotline you can call, or an EAP program you can use. In those cases, the company policy takes precedence and can give you confidence that the company will investigate and address all cases of harassment.

To understand the types of discrimination your company tries to avoid, read your employee handbook, review your firm’s anti-discrimination polices, or ask your supervisor or HR representative. Once a company makes a statement in writing to prevent and address harassment, they’re obligated by law to enforce it, regardless of how small the company is. In fact, most well-run firms provide a means to report discrimination concerns to a manager or human resources representative by phone, email, or through an online form.

The Reality of At Will Employment

Most companies add a statement to their employee handbook indicating that “employment is at will.” The At Will doctrine makes it possible for an employer to terminate an employee for any reason (as long as it’s non-discriminatory). It also lets workers quit a job without penalty at any time. All states but Montana allow employers to use the At Will employment clause as a reason for termination.⁵

The At Will doctrine gives the employer the right to terminate your employment for any reason—a violation of company policy, a bad attitude, personality conflict, being too tall—but they can’t terminate you for having a mental health issue, as that’s discrimination.

Proving Mental Health Discrimination at Work

Like all forms of discrimination in the workplace, you’ll need documentation should the EEOC investigate or you wish to file a claim in court. Yes, discrimination may have taken place, but without witnesses, video, audio, or proof in writing, you may have a hard time convincing your HR representative or a judge that harassment has occurred.

It’s best to document each incident of discrimination, and include the following information:

1. Any words that were said or actions taken.
2. The date and time that the incident occurred.
3. Who, if anyone, witnessed the behavior.
4. Any documentation provided, such as a written warning or term letter.

Your notes may not prevent further harassment and discrimination, but it will give you enough details and facts to bring to your manager’s or HR rep’s attention. Further, such documentation gives the EEOC and a judge (should your claim progress to court) written details to consider as they evaluate your discrimination claim.

What to Do If You’re Being Discriminated Against for Mental Health at Work

When anyone mistreats, disrespects, harasses, or mistreats you, its best practice to tell them to stop, so long as it’s safe to do so. Don’t assume the bad behavior will go away. How you address the issue (calmly vs. with aggression or violence) can greatly impact the outcome.

Consider a simple statement like this:

“Your behavior needs to stop. Workplace harassment is against the law.”

It’s also possible that a person may not realize their behavior constitutes discrimination. Once you’ve asked them to stop, you’ve put them on notice. If they continue, you have a right to escalate your concern to your manager, HR, or the EEOC.

Clarify What’s Happening

Protect yourself first and foremost by being specific about the exact discriminatory behavior that you see happening:

• Were you excluded from a work event because the event planner believed it would trigger you?
• Were you denied an opportunity to attend a training course that your peers signed up for because they thought you had a phobia against flying?
• Were you told you didn’t get a job promotion because of your mental health issue, or that of a family member?

Before you talk to your manager, a business executive, or a member of the HR team, gather and document your facts. You’ll need specifics in order to formalize a complaint of discrimination, whether you do that in person by talking with HR, or merely drop a note in the company suggestion box.

Talk to Someone

Schedule time to discuss your concerns with your manager or a member of the HR team. Share what you’ve observed and documented, state why you feel that behavior represents illegal discrimination under the ADA or other labor laws, and suggest how you would like it resolved. There’s a good chance the person you’re talking to is unaware of the issue, and once they’re informed, they may be willing to do something about it.

Another option is to discuss the situation with your Employee Assistance Program (EAP) provider, if your company offers an EAP program, or with your therapist. They may be able to shed light on the best option for you as they know your history, and you can share, in confidence, the situation you are experiencing at work.

Keep in mind, sharing your concern of discrimination puts you in the spotlight in the sense that your employer may see you as a business risk. Before you address your request for changes, ensure you’re doing a good job, abiding by company policy, and fulfilling your employment responsibilities. That way the focus of your meeting is on what the company needs to change, not your work performance.

Balance the Risk

What may feel like workplace discrimination can often be traced back to the job duties and the job description. For example, let’s say that a job promotion requires you to stay calm under pressure. If you’ve had a history of verbal outbursts, they may rightly determine that you aren’t able to do the job duties as described.

Accusing a firm, a manager, or a co-worker of discrimination may backfire if the person who you feel discriminated against you had a valid reason to make the decision they made. This happens often in hiring. A candidate may think they’ve been discriminated against when another applicant actually had more or better experience, a higher degree, or better references.

It’s best to ensure you have a clean-cut example of discrimination and a request for what needs to be changed, including a reasonable accommodation, before you put yourself out there.

Ask for Reasonable Accommodation

Under the ADA and EEOC, you have a right to ask for reasonable accommodation to make it possible to do your job professionally. Just as a person in a wheelchair has a right to ask for a ramp, or a visually impaired person has a right to ask for a larger monitor, you can ask for a reasonable accommodation to support your mental health needs once you have been offered a job that you’re qualified to do according to what’s posted in the job description.

Examples of reasonable accommodations for mental health issues include:

• Work environment: A bookkeeper could ask for a workspace farther from the entry door if their ADHD disability makes it difficult to concentrate.
• Flexible work hours: A programmer subject to anxiety attacks could ask to work non-traditional hours as long as they’re able to attend meetings.
• Customized employment: A worker in manufacturing may get overwhelmed looking at a long list of tasks. They may ask their manager to assign one task at a time. Consider other customized employment examples.
• Remote work: An employee caring for a mentally-challenged child may ask to work from home to help a caregiver on days when the child’s behavior is over-the-top.
• Personal assistance: A gifted scientist or physician may be able to ask for a part-time notetaker if they have trouble with short term memory.
• Longer lunch break: An individual suffering from severe depression may need to take a longer lunch hour twice a week for therapy and med checks.
• Mental health day: An individual subject to psychotic episodes may need advanced approval to take paid or unpaid time off when they are in crisis.
• Job transfer: An employee recovering from addiction may request a transfer so they don’t have to attend trade shows where they’ll be tempted to drink.

Whether or not your reasonable accommodation request is granted depends on the ability of your company to provide the accommodation without undue business hardship. Firms with 50 or more employees are required to provide reasonable accommodations.

Regardless, you can’t be discriminated against for asking. If you are a victim of retaliation or discrimination after requesting a reasonable accommodation, you can file an EEOC claim online.