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Oct. 20— Deciding whether and when to disclose mental illness in the workplace is a complex issue fraught with fear about potential employment discrimination and negative reactions of management and coworkers, legal professionals said Oct. 18 at an American Bar Association presentation.
According to the presenters, important considerations are the extent of one's psychiatric impairment, whether that impairment affects job performance and professional relationships, and whether an effective accommodation is available. Disclosure is essential where a mental illness may impact job performance or professional conduct and a reasonable accommodation can mitigate that risk.
The program was hosted by the ABA's Commission on Disability Rights in celebration of National Disability Employment Awareness Month. Commissioner Chai Feldblum (D) of the Equal Employment Opportunity Commission represented the federal government. Participants from the private sector included Lori Golden, Abilities Strategy Leader of Ernst & Young LLP, James T. R. Jones, professor at the University of Louisville Brandeis School of Law, Daniel Lukasik, trial attorney at Maxwell Murphy LLC, and Tochi Onyebuchi, a recent graduate of Columbia Law School serving as an investigator in the Parole Revocation Defense Unit at the Legal Aid Society of New York City.
Lewis Bossing, a senior staff attorney at the Judge David L. Bazelon Center for Mental Health Law, moderated the program.
Bossing asked the panelists to consider whether workers with mental illness should come out about it and when they should come out, as a practical and legal matter.
EEOC's Feldblum, who played a significant role in drafting and negotiating the Americans with Disabilities Act, came out with her anxiety disorder. She said that “it was really over time that I realized the importance of being clear about the spectrum of disability and that even if one didn't have a psychiatric illness, like bipolar disorder or schizophrenia which people think of potentially as disabilities, it was very important for us along the entire spectrum of psychiatric illnesses to come out.”
Federal disability law prohibits employers from requiring individuals to disclose a disability prior to making a conditional job offer, the commissioner said. Thus, when you apply for a job, there's no reason to come out about either a physical or mental disability.
However, it's critical to come out if a mental disability is stopping an employee from performing adequately in the workplace and an accommodation is available that will help the person continue to work, the commissioner said. “It's essential to come out as soon as the person knows that he or she needs that accommodation,” she said. Employees shouldn't wait until they are disciplined or fired before they seek an adjustment.
Golden of Ernst & Young agreed. “If there's a risk of performance impact, and there are accommodations that would help mitigate those risks, there's a strong reason to disclose to somebody in some fashion,” she said.
“I hope we get to a point in time when we have really gotten rid of the stigma of mental disability and people feel comfortable coming out about that the way they might feel comfortable coming out about a physical disability,” Feldblum said.
The “best way to counter stigma” is for leaders in organizations who have mental disabilities to come out, even if they don't need an accommodation, the commissioner added.
Golden also commented on the importance of leaders and role models telling their stories, stating, “Those who are in a position of authority, those who have reached a certain point in their career, can and should [do so].”
Professor Jones, who said he was fired from a law firm when it was discovered he had been hospitalized for a mental illness, said he usually says no when students ask if they should share their diagnosis.
Although he has “heard bad things” from people who came out in the private sector, Jones eventually came out publicly when he was a tenured law professor to attack the stigma “because it is so great.” The dean of the law school gave him a six-month medical leave with full pay and let him gradually work back up to a full-time schedule.
“If you want to come out, that's great. It does help attack the stigma. But you do need to know what you're doing before you do. Because once you open that door, it's open. Somebody once said you'll forever be the bipolar law professor, and I'm happy to be the person that acknowledges that,” he said.
Onyebuchi, who has bipolar II disorder and writes extensively about experiencing mental illness, said he never came out to an employer about his mental illness. Although his mental illness hasn't significantly impacted his academic or professional careers, he plans to come out in an effort to reduce stigma.
A person with mental illness should come out “because I feel like we're storming the beaches of Normandy. A bunch of us will be cut down but a lot of the people behind us will be able to make it up the hill,” he said.
But employees with mental illness who decide to come out need not necessarily share their particular diagnosis, the speakers observed.
“Stigma is connected to a diagnosis because people have perceptions” about certain conditions, Feldblum said.
To request an accommodation that would allow them to succeed in their position, employees with mental impairments can simply state that they have a psychiatric illness and describe the way it affects them and the modification they need, she said, referring to two EEOC fact sheets for people with mental disabilities and mental health providers.
Addressing the issue of behavioral risks, or risks that a mental illness may impact one's behavior in a way that will affect one's perception as a professional, Golden has counseled employees “not necessarily to name” their diagnosis but rather “to focus on framing.” In other words, a person may look at the potential impacts of that diagnosis on behavior and give colleagues a nonthreatening, supportive way of knowing what they might expect, how they might react to it and how they can be supportive if they exhibit certain behaviors, she said.
“Stigma comes from fear. If you give people a how, if you describe a situation and give them a way of reacting to it, that can help offset some behavioral risks,” Golden said.
Lukasik's disclosure of mental illness to senior law firm partners “did not go well.”
To those planning to come out, he suggested that one contemplate how an impairment will realistically affect one's ability to perform a job. He also said preparation is key—have a script and be prepared for how others might react.
“I think you have to have a team approach to prepare to write that script—consult with your therapist, consult with your psychiatrist,” Lukasik said. Ask them what are realistic things to expect regarding your level of impairment and what reactions to disclosure can be expected from co-workers and people in positions of power.
According to Lukasik, there's a “moral imperative” to deal with this issue in the legal profession. Legal communities so often sidestep the issue, even though they know it's a large problem.
Specifically, he urged law schools to have conversations about mental illness, noting many studies show 40 percent of law students by their second year suffer from a form of depression.
According to Golden, we need to create firm cultures that embrace flexibility. More flexible work models bode well for adjustments to people's needs, whether those needs are because of a disability, family or balancing outside interests.
“Workplaces are changing, and I think law firms need to change with them because the workforce is going to demand it,” she said.
Further, firms should focus on training leaders and educating colleagues to support colleagues. Golden said there's a growing movement among employers and organizations “to get smart around this” and to build cultures that are informed, more respectful, and more open in an effort to work toward becoming stigma free.To contact the reporter on this story: Katarina E. Klenner in Washington at email@example.com To contact the editor responsible for this story: Heather Bodell at firstname.lastname@example.org
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
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