Written Testimony of Markus Penzel EEOC Senior Trial Attorney Boston Area Office

Meeting of March 15, 2011 - Employment of People with Mental Disabilities

Chair Berrien, Commissioners Ishimaru, Barker, Feldman, Lipnic, and General Counsel Lopez, thank you for the opportunity to be here today.

Good afternoon. My name is Mark Penzel. I am an EEOC trial attorney from the Boston Area Office. In February 2002, EEOC filed a complaint in Maine against Land Air Express of New England, an air freight and delivery company. EEOC alleged that Land Air had violated the Americans with Disabilities Act by first, refusing to grant a leave of absence to long-time employee Donna Malone as a reasonable accommodation for her mental disability; and second, terminating her employment because of her disability. The case highlighted the difficulties faced by employees with mental disabilities and how the ADA has posed significant challenges for them in terms of coverage.

Donna Malone had worked for Land Air for almost seven years when she was fired on July 16, 1999, while on an excused absence and hospitalized due to her mental illnesses. Because of prolonged sexual and physical abuse as a child, Ms. Malone has carried near life-long diagnoses of post-traumatic stress disorder, depression, and eating disorders, including anorexia and bulimia. These mental illnesses have left her substantially limited in numerous major life activities, such as sleeping and eating and, periodically, caring for herself, thinking, and working. Before starting at Land Air in 1992, she had been hospitalized numerous times due to her condition. While at Land Air, she was hospitalized twice due to her condition in April and May of 1999. From July 11 to July 25, 1999, she was hospitalized again. On July 14, 1999, after having been assured that her job was secure, she was told, while still hospitalized, that she was terminated due to alleged "excessive leave." There was no evidence that granting additional leave to Ms. Malone would have caused Land Air undue hardship. In fact, Land Air never made any such claim.

The evidence developed by the Commission showed that Land Air's reason for her termination – "excessive leave" – was false and pretextual, not only because the termination violated the company's medical leave policy (which mirrored the FMLA), but also because there was direct evidence that she was terminated because of her disability. The manager who fired Ms. Malone admitted that he did so because of his "gut feeling," based on news stories about employees going "postal," that Ms. Malone was a danger to other employees. The manager never spoke to Ms. Malone's doctors or took the time to understand her illnesses before firing her.

The case never went to trial. After discovery and the Commission's opposition to the company's motion for summary judgment, Land Air agreed to a $360,000 settlement in April 2003. The Consent Decree enjoined Land Air from violating the ADA; required Land Air to distribute a policy on the accommodation of individuals with disabilities to all employees and include this policy in the company's employee handbook; and required Land Air to provide ADA training to its managers.

The case underscored the significant challenges that persons with mental disabilities face in the workplace – and the courts. Apart from the excellent result, what I remember most about this case was that we had to devote more than half of the brief opposing summary judgment to the threshold question of whether Ms. Malone was "legally" disabled, that is, whether she was even covered by the ADA. This should not have been a big issue. Ms. Malone clearly had a psychiatric disability that, when active, left her almost wholly unable to function. With proper medical care, she had always been able to get back on her feet fairly quickly and function as a productive employee for extended periods. All she needed was occasional time off from work to get that care. Donna Malone's own supervisor and doctors, who knew her best, felt she could continue working if just given some time to heal. They were, however, ignored by managers who did not understand the nature of Ms. Malone's condition and decided to fire her based on groundless assumptions and stereotypes. That is no way to make employment decisions which affect people's lives.

Unlike a race or sex discrimination case, where proving that a person is a member of a protected group under Title VII is simple and uncontested, the hardest part of the case was proving that Donna Malone was disabled under the ADA. Only then could the court reach the core question of whether she was entitled to leave as a reasonable accommodation. It was easy to show that she had an impairment. The hard work was overcoming the stringent standards imposed by the courts for showing that her impairment limited "major life activities," and that it did so "substantially."

When Ms. Malone suffered a relapse of depression from her PTSD, she was essentially unable to function. Under the ADA at the time, however, many courts had said that short, episodic impairments did not constitute a substantial limitation. On her best nights, Ms. Malone only slept three to four hours, which were often interrupted by nightmares. Some courts had held, however, that sleeping was not even a major life activity.

I trust that the passage of the Americans with Disabilities Act Amendments Act will make that part of my next ADA case easier. The ADAAA provides that "[t]he definition of disability … shall be construed in favor of broad coverage …" and that "the question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis." Particularly helpful to people with psychiatric disabilities is the ADAAA's statement that "An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active."

The new law's change to the "regarded as" prong of the definition of disability would have also simplified Ms. Malone's case. Ms. Malone's manager's stereotyped fears that someone hospitalized because of PTSD might "go postal," i.e., shoot up the workplace, is as close to direct evidence of disability bias as one is likely to find: he thought that she was violent and crazy. Yet, under the original ADA, one still needed to prove what was inside an employer's head (by showing that the employer believed a person was substantially limited in a major life activity). The ADAAA eliminates this issue. Now "[a]n individual meets the requirement of 'being regarded as having such an impairment if the individual establishes that he or she has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity."

These changes in the law should enable us to more quickly get to the core issue of discrimination and not get hung up on coverage for people with clear impairments. In addition, I hope that the Commission's new regulations to implement the law will bring further clarity and simplify the determination of whether someone has a disability. As a result of these changes, people with mental disabilities, as well as other disabilities, will be able to benefit fully from the hard-won rights that Congress gave them.

For a fuller understanding of the impact of discrimination against those with mental disabilities, I would like to introduce to you Donna Malone. We are honored to be here with Ms. Malone, who will talk about her experience and the impact of the discrimination she suffered.