Fighting Mental Illness Discrimination in the Workplace in NJ
While suffering from a mental illness or disability can make it difficult to maintain a normal workplace experience, employees should not face discrimination or retaliation because of it. A mental illness can be difficult to manage, on top of the stressors and responsibilities of work. Although one in five adults in the US have some form of mental illness, they are still often stigmatized or misunderstood. Fortunately, federal and state laws make it unlawful for you to be discriminated against or harassed in the workplace because of your mental illness or disability.
With offices in Red Bank, NJ, and Marlton, NJ, McOmber McOmber & Luber, P.C. represents both employees and employers throughout the state in a wide range of employment discrimination matters, including mental illness discrimination in the workplace. Our attorneys will provide you with a clear and candid evaluation of any potential claims, as well as all legal options available to you.
Federal Protections for Mental Illnesses or Disabilities Under the ADA
The Americans with Disabilities Act (ADA) protects people with disabilities, including mental illnesses, from discrimination in the workplace. The ADA defines ‘disability’ as any physical or mental impairment that significantly limits a major life activity or a person’s ability to perform basic tasks.
Mental illnesses, impairments, and psychological disorders protected by the ADA include, but are not limited to:
- Anxiety disorders
- Bipolar disorder
- Obsessive-compulsive disorder (OCD)
- Post-traumatic stress disorder (PTSD)
- Personality disorders
- Intellectual disabilities
Who Applies for Mental Illness Protection Under ADA?
The ADA applies to all private employers, state and local governments, employment agencies and labor unions with 15 or more employees. It also applies to all employment matters, including job application procedures, hiring, firing, layoffs, compensation, and benefits.
Individuals covered by the ADA include:
- Those who have a diagnosed mental illness. Covered employees include those who are unable to fully perform certain tasks of the job due to a significant mental impairment. This can be proven with medical records that document the impairment.
- Previous impairment. A potential or current employer cannot discriminate against an employee who previously had a mental illness, whether or not that illness still affects their ability to work.
- The employer considers the employee to be disabled. Employers are prohibited from discriminating against a candidate due to a perceived disability or mental illness, regardless of whether the employee has or does not have a disability. This includes false impressions of a previous mental illness or employees with a mental illness that has not been reported.
Do I Have to Tell My Employer I Have a Mental Illness?
Under most circumstances, you can keep your mental illness private. According to the ADA, your employer is only allowed to ask questions about your mental health in four situations:
- If you are asking for reasonable accommodation (see below);
- After you receive a job offer but before you begin working, as long as every other new hire is asked the same questions;
- When there is objective evidence that you may not be able to do your job or pose a safety risk because of your condition; and
- If your employer is engaging in affirmative action for employees with disabilities, and you may choose whether or not to respond.
New Jersey State Protections Under NJLAD
The American with Disabilities Act is a federal law protecting disabled individuals, but state and local laws offer additional protection to employees with mental illnesses. The New Jersey Law Against Discrimination (NJLAD) makes it unlawful for an employer to discriminate against any individual based on a real or perceived mental illness or disability. The NJLAD applies to all private, state and local government employers in New Jersey, whereas the ADA applies only to employers with 15 or more employees.
The NJLAD offers a very broad definition of ‘disability’ and specifically covers “any mental, psychological or developmental disability that results from conditions that prevent the normal exercise of any bodily or mental function or which can be shown to exist through accepted clinical or laboratory diagnostic tests.”
Reasonable Accommodations for Mental Illnesses
If you have a mental illness or disability, you may need special accommodations to your schedule, routines, or tasks at work. Luckily, the ADA and NJLAD requires employers to make reasonable accommodations for qualified applicants and current employees suffering with certain mental illnesses. Reasonable accommodations may include modifications to either the functions of a job or to the environment in which employees work. Accommodation gives the individuals the tools to succeed, be competitive, and stay employed in a position for which they are qualified.
While employers are expected to provide reasonable accommodations, they are not expected to provide accommodations that could create an undue hardship. For the purposes of the ADA, accommodations could be considered an undue hardship if they create significant difficulty for a business, either logistically or financially. McOmber McOmber & Luber, P.C.’s experienced mental illness discrimination attorneys can determine if your accommodations are reasonable.
Unlawful Retaliation Following Mental Illness Discrimination in the Workplace Claims
Federal and state laws also prohibit retaliation based on a mental illness or disability. An employer or boss cannot become aware of your condition and attempt to push you out, make your employment miserable, or harass you – which is defined as retaliation. It is illegal for any employer to terminate, discipline, or otherwise retaliate against an employee who reports, complains, files a charge, or participates in an investigation regarding mental illness discrimination. This applies to both internal and external claims. If you complained about harassment and were fired, denied privileges, or demoted as a result, you may be able to file a separate retaliation charge.
What Should I Do If I Have Been the Victim of Mental Illness Workplace Discrimination in NJ?
If you feel your employer is discriminating or retaliating against you due to your mental illness or disability, an employment discrimination attorney at McOmber McOmber & Luber, P.C. is here to represent you in the matter. We will review the details of your case and help you determine if you should pursue action by filing a lawsuit under the NJLAD or federal law. We can also defend you if you are an employer facing a claim of mental illness workplace discrimination. Contact us today to discuss your case.