Depression as a “Disability” Under the Anti-Discrimination Laws

The sudden and tragic suicide of Robin Williams has reinvigorated a national discussion about depression and related conditions. What you may not know is that depression sufferers have legal protections in the workplace, specifically if they are treated unfairly because of their medical condition.

Various laws – including the Americans with Disabilities Act of 1990 (ADA), the New York State Human Rights Law (NYSHRL), and the New York City Human Rights Law (NYCHRL) – offer protections to those who suffer from disabilities in general and depression in particular.

In order to establish a prima facie case of discrimination under the ADA, a plaintiff must show four things, namely, that:

  1. the employer is subject to the ADA;
  2. the employee suffers from a disability within the meaning of the ADA;
  3. the employee was otherwise qualified to perform the essential functions of their job, with or without reasonable accommodation; and
  4. the employee suffered an adverse employment action because of his/her disability.

Is Depression a “Disability” Within the Meaning of the Anti-Discrimination Laws?

Not all medical conditions constitute “disabilities” that accord protected status. In order to determine whether a medical condition is a “disability”, we must turn to the language of the relevant statute(s).

The ADA defines a “disability” as:

(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment. 42 U.S.C. § 12102 (emphasis added).

Federal regulations, in turn, provide that a “mental impairment” includes “[a]ny mental or psychological disorder, such as an intellectual disability [], organic brain syndrome, emotional or mental illness, and specific learning disabilities.” 29 C.F.R. § 1630.2(h)(2).

Courts have held that “depression may qualify as a disability for purposes of the ADA, provided that the condition is not a ‘temporary psychological impairment,’ and the condition substantially limits a major life activity.” See MacEntee v. IBM, 783 F.Supp.2d 434 (SDNY 2011).

The NYSHRL and NYCHRL provide broader definitions of “disability” than the ADA. Therefore, if a medical condition (such as depression) qualifies as a disability under the ADA, it likely qualifies as a disability under the NYSHRL and NYCHRL.

Adverse Action Due to Disability

As with other types of discrimination claims, a plaintiff must also show that they suffered an “adverse employment action” as a result of their disability.

For example, in McCowan v. HSBC Bank USA, N.A., 689 F.Supp.2d 390 (EDNY 2010), the court held that plaintiff presented sufficient evidence to survive summary judgment on her depression-related disability discrimination claim. The court pointed to evidence that, for example, her superiors “regarded plaintiff as incapable of performing her job properly because of her depression” and that “plaintiff was subjected to adverse employment actions due to defendant’s employees’ beliefs about her abilities resulting from her depression.”

Qualified to Perform Essential Functions

A plaintiff must also prove that they were qualified to perform the essential functions of their job, with or without a reasonable accommodation. What constitutes an “essential function” and what constitutes a “reasonable accommodation” will vary from job to job and case to case.

Courts have found that “chronic abseenteeism” – even when attendance problems are caused by an employee’s disability – renders an employee not “qualified” because they are unable to perform the “essential functions” of their job.

For example, in Dorgan v. Suffolk County Community College, 12-cv-0330 (EDNY Aug. 4, 2014), the Eastern District of New York dismissed plaintiff’s claim of disability discrimination under the Americans with Disabilities Act. Plaintiff suffered from bipolar disorder, which is characterized by severe depression and anxiety. Plaintiff argued that the “recurring nature of her depression and anxiety, even while taking medication, limited her ability to be present at work and to be on time for work”, and there was “no question that plaintiff’s … bipolar disorder required her to be hospitalized and left her unable to work.” The court held that plaintiff failed to prove that she was qualified to perform the essential functions of her job, with or without a reasonable accommodation. Specifically, “plaintiff was offered numerous reasonable accommodations, which ultimately resulted in her start time being delayed by two (2) hours.” Yet, despite receiving such accommodations, plaintiff had not worked for several years.

Failure to Accommodate Disability

The ADA, the NYSHRL, and the NYCHRL also require employers to reasonably accommodate employees’ disabilities. Discriminatory practices thus also include the failure to provide such accommodations.

In order to plausibly allege a “failure to accommodate” claim under the ADA, for example, a plaintiff must allege facts showing that:

  1. the employer is subject to the ADA,
  2. plaintiff is disabled within the meaning of the ADA,
  3. plaintiff could perform the essential functions of the job with or without reasonable accommodation, and
  4. the employer had notice of the disability and failed to provide such accommodation. Hong Yin v N. Shore LIJ Health Sys., 12-CV-1499, 2014 WL 2027305 (EDNY May 19, 2014).

With respect to depression, one court has observed that “unlike disabilities that are visible to an employer, the presence, duration and ever-varying severity of depression cannot be adequately perceived or accommodated unless an employee informs in some manner her employer of her limitations as a result of such a disability.” MacEntee v. IBM, 783 F. Supp. 2d 434 (SDNY 2011).

In one case, Romanello v. Intesa Sanpaolo S.p.A., the New York Court of Appeals held that plaintiff – who suffered from various disorders, including major depression – stated a “failure to accommodate” claim under the NYCHRL (but not the NYSHRL). Plaintiff told his employer that due to his illnesses he would be out of work for an indeterminate period of time. The defendant failed to meet its burden under the City Human Rights Law to show (at the pleading stage) that plaintiff “could not, with reasonable accommodation, satisfy the essential requisites of the job.”

In addition, requesting an accommodation is behavior protected from an employer’s retaliation. See Goonan v. Federal Reserve Bank of New York, 12-cv-3859 (SDNY July 22, 2014).

You Have Rights

In sum, if you suffer from depression and believe you have been treated unfairly at work because of it, you have legal rights, and may be able to hold your employer accountable.

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