FEDERAL LAWS AND STRESS RELATED ILLNESS
part 3 of 5

In the last thirty years a number of federal laws have been passed to protect against inequities in employment practices. In addition, Congress created the Equal Employment Opportunity Commission to enforce those laws. One of the first of these was the Equal Pay Act of 1963, which protects men and women who perform substantially equal work in the same establishment from sex based wage discrimination. Shortly after this, Title VII of the Civil Rights Act of 1964 prohibited employment discrimination based on race, color, religion, sex, or national origin. In 1967 the Age Discrimination in Employment Act was established to protect employees forty years of age or older against discriminatory employment practices. Section 501 of the Rehabilitation Act of 1973 prohibited federal sector discrimination against persons with disabilities. In 1980 the Equal Employment Opportunity Commission promulgated regulations, as part of Title VII of the Civil Rights Act of 1964 which prohibited sex discrimination against sexual harassment in the work place. The Americans with Disabilities Act (ADA) of 1990 expanded prohibition of discrimination based on disability to the private sector, and state and local governments. Most recently, the Family and Medical Leave Act of 1993 established a requirement that some workers be allowed up to twelve weeks of unpaid, job guaranteed leave for childbirth, adoption, their own serious illness or that of a close family member.

The psychological issues in which stress related illness may be relevant in these laws can be viewed under three broad categories: discrimination, harassment, and accommodation. Most discrimination claims do not have a primary psychological issue and are decided factually on the basis of whether or not discriminatory practices in violation of federal law occurred. However, the Americans with Disabilities Act specifically prohibits discrimination based on mental impairment which can be any mental or psychological disorder, such as mental retardation organic brain syndrome, emotional or mental illness, and specific learning disabilities. While mental retardation, brain disease and the more serious mental illnesses can be specifically documented and measured, the law also opens the door to a whole host of emotional conditions and stress related illnesses which, as in compensation stress claims, may be only subjective experiences. The law tries to restrict impairments to those which substantially limit one or more of the major life activities of an individual, but here too there is wide latitude in what can be included. Being substantially limited can mean either unable to perform or significantly restricted which in stress related illness is most often a subjective claim. Furthermore, simply having a record of such an impairment or being regarded (by the employer) as having such an impairment is sufficient to be regarded as disabled. Therefore, employees who may have had a past history of an emotional breakdown would qualify. Certainly such a history should not allow discrimination in hiring today if the applicant is otherwise qualified, but should it sanction special demands of the employer or privileged status in the work place? Similarly, should an employer's concern for emotional stability of an employee in the course of employment automatically establish that a mental impairment exists (because employee is being regarded as impaired) and require special treatment? The problem here is not that individuals with mental disorders do not deserve equal opportunities for employment, but that in stress related illness there is poor definition and little objectivity, so that more can fall into this Act than was ever originally intended by Congress.

Whether as an adjunct to discrimination claims based on mental impairment under the ADA or discrimination under any of the federal laws, a secondary psychological issue is that of emotional damages. The Civil Rights of 1991 amended Title VII permitting plaintiffs to sue under federal law for compensatory and punitive damages, not just for injunctive relief, back pay, and attorney fees. Now emotional distress that flows from the discrimination is also compensated. Again, the same difficulties that were encountered in workers compensation mental-mental claims are found here. Is the type of stress based on a single circumscribed incident that can be clearly identified or is it cumulative stress over a period of time in which the alleged discrimination occurred? Also, what of the emotional suffering that the individual claims to be experiencing; is it simply a subjective state of distress or an identifiable illness? Who can objectively distinguish that?

Although sexual harassment is not specifically included in Title VII of the Civil Rights Act of 1964, it flows by regulation of the Equal Employment Opportunity Commission from sex discrimination. It is defined as unwelcomed sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature, when linked to employment conditions, as part of a quid pro quo for employment decisions or when it creates an offensive, hostile work environment. Whether or not sexual harassment occurred is also a factual matter, but invariably psychological issues become embroiled. Both sexual and gender harassment are common problems in the work place for which remedies and prohibition are legitimately necessary. It is estimated by some that up to 60% of victims ignore sexual harassment, believing that if they complain it will only cause more harm. On the other hand, at least some claims of sexual harassment may be only in the eye of the beholder. Both psychological and social questions arise m trying to clarify what type of behavior is harmful or harmless. Also, what type of sensitivity does the employee have to such behavior. Some courts have applied a reasonable woman or reasonable person standard. Since the reasonable man standard in tort law has had its share of criticism for lack of definition, these new limitations may also be difficult to define. Finally, just as in all stress related illness, the harm claimed as the product of sexual harassment may consist of subjective complaints and symptoms which lack objectivity.

The principle issues of accommodation in the federal laws arise out of the Americans with Disabilities Act. The requirement of reasonable accommodations for a person with a physical disability is more easily interpreted than for those with mental disabilities. While in serious mental illnesses there may be functional limitations which cannot be accommodated, many individuals who are otherwise qualified can function well with minimum adjustments by an employer. The threshold question is whether there is an actual psychological disorder that creates impairment. As indicated above, other than for serious mental or emotional conditions, there is a wide range of distress states which could easily qualify. Second, even if a bonafide disorder exists, not all behaviors are directly attributable to the disorder. If an individual is voluntarily behaving in an inappropriate way, should the employer be responsible for accommodating that behavior? Distinguishing between what kind of behavior is voluntary or involuntary is also not an easy task and may in part be dependent on social norms. Third, the types of accommodations which an employer can provide are only as reasonable as the disability which the employee claims to have. In one survey, the most frequently provided accommodations were: flexible leave, time off for counseling, extra tolerance for unusual behavior, written instructions, and flexible work schedules. It is understandable how such accommodations are not so excessive if they allow a seriously mentally disabled individual to remain in the work force. But it is also easy to see how they can be a convenient luxury for someone simply experiencing distress.

Another area of accommodation is created by the Family and Medical Leave Act, a provision of which entitles some workers to unpaid leave for a serious (mental) health condition. It is further defined as requiring continuing treatment by a health care provider and a period of incapacity In a worker who has suffered a serious mental breakdown requiring hospitalization or otherwise cannot perform usual work functions, it is entirely appropriate that a period of recuperation be allowed when recovery and return to the work force is expected. However, in many stress related illnesses, continuing treatment by a mental health care provider is easily available and incapacity just as easily declared based on subjective symptoms. A number of American corporations have expressed concern that employees are abusing leave privileges and cite a rise in dubious absences since the law took effect. In some instances it has become a tool for a problem employee to avoid discharge for excessive absenteeism.

Therefore, we have seen an expansion of workers' compensation stress claims as less objective criteria for stress related illness are required. Where the remedy under workers' compensation law has been unsuccessful or inadequate, new federal legislation provides alternative remedies that are often more lucrative. It is predicted that where state legislatures or courts tighten workers' compensation stress claims, there will be an increase of claims under federal law such as the Americans with Disabilities Act, Sexual Harassment, and others. And yet, the subjective nature of many of the psychological factors surrounding those claims as well as the stress related illnesses that are their product, may lead to inappropriate use and frank abuse of well-intended laws.

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