Disclosing Bipolar Disorder Key to Discrimination Claims

Workers with bipolar disorders can be as productive and successful as any other worker.

However, employers and their workers with bipolar disorder should be aware that disclosure of a disability allows an employer to provide reasonable accommodation under the requirements of the Americans with Disabilities Act (ADA).

The two situations below – one in which an employee disclosed a bipolar disorder and one in which the employee did not – underscore the importance of disclosing a disability.

Example 1: When Playing the Bipolar Card Failed Because of Lack of Disclosure

Ryan Foley was a financial advisor at Morgan Stanley in Florida (Ryan Foley v. Morgan Stanley L13-11413). Foley, who suffered from bipolar disorder, believed the company was spying on him, so he swapped his work computer’s central processing unit and hard drive with those of a coworker’s computer.

When the company realized the work computer was gone, they reviewed security tapes and saw Foley leaving with the equipment. Foley was questioned about the computer’s whereabouts, but he maintained that he didn’t know where it was. Once he “remembered” where he took the computer, he returned it to Morgan Stanley and was fired that same day.

Foley claimed that he was in the midst of a “psychotic episode” brought on by his bipolar disorder and maintained that he was fired due to this disability. A judge ruled that Foley wasn’t entitled to protection under the ADA because he never disclosed his bipolar disorder to Morgan Stanley. That lack of disclosure was the difference between a disabled employee requiring accommodation under the ADA and an employee who simply violated Morgan Stanley’s policies on protecting crucial company data – policies he knew about and signed off on in his employee handbook.

The ruling cited case law and the Equal Employment Opportunity Commission’s (EEOC) own resources, such as The Americans with Disabilities Act: A Primer for Small Business, which states:

“[An employer does] not have to tolerate violence, threats of violence, theft, or destruction of property, even if the employee claims that a disability caused the misconduct.”

The judge therefore ruled that Foley’s termination was justified.

Example 2: Disclosing Bipolar Disorder Sets Stage for Discrimination Case

Sean Reilly, who also suffered from bipolar disorder, was hired as an assistant manager at The Cash Store in Washington (Equal Employment Opportunity Commission v. Cottonwood Financial Ltd., case number 2:09-cv-05073). He disclosed his bipolar condition and later was promoted to store manager only a few months after being hired.

Like Foley, Reilly said he experienced a manic episode causing extreme paranoia. Reilly asked for time off from work as his psychiatrist adjusted his prescribed medications. His request was denied, and he continued to work. But he used an expletive on some paperwork, and that caused his manager to write him up for obscenity as part of an employee performance improvement plan. Higher-level managers weighed in, however, and instructed Reilly’s supervisor to terminate his employment.

U.S. District Judge Edward F. Shea ruled that Cottonwood violated the ADA when it wrongfully terminated Reilly and that the company failed to make reasonable accommodation for Reilly’s bipolar disorder. The employer must also train managers and human resource staff about anti-discrimination and anti-retaliation laws.

“The court sent an important message today that employers can’t substitute fiction for facts when making employment decisions about disabled workers. Employers acting on outdated myths and fears about disabilities need to know that the EEOC will not shy away from taking ADA cases to trial to bring them into the 21st century.”

–William Tamayo, EEOC’s regional attorney in San Francisco

When Does an Employee Need to Disclose a Disability?

There is no right time to disclose a disability – every situation is different. Employees only need to disclose a disability if they need reasonable, work-related accommodation. The U.S. Department of Labor (DOL) suggests that employees make the decision to discuss their disability when it works for them – whether that is during the interview process, after a job has been offered, or not at all. Disclosure of a disability is protected by the EEOC.

What is Bipolar Disorder?

The National Institute of Mental Health (NIMH) defines bipolar disorder (or manic-depressive illness) as:

“a brain disorder that causes unusual shifts in mood, energy, activity levels, and the ability to carry out day-to-day tasks. Symptoms of bipolar disorder are severe. They are different from the normal ups and downs that everyone goes through from time to time. Bipolar disorder symptoms can result in damaged relationships, poor job or school performance, and even suicide. But bipolar disorder can be treated, and people with this illness can lead full and productive lives.”

What is the ADA?

The ADA became law in 1990. The ADA is a civil rights law that prohibits discrimination against individuals with disabilities in all areas of public life, including employment, transportation, public accommodation, communications, and governmental activities. The ADA is enforced by the:

• DOL
• EEOC
• Department of Transportation (DOT)
• Federal Communications Commission (FCC)
• Department of Justice (DOJ)

This Employment Law News blog is intended for market awareness only, it is not to be used for legal advice or counsel.