The Americans with Disabilities Act turns 25 this year. This landmark federal law mandates, among other things, that employees and job applicants cannot be discriminated against because of a recognized disability and that disabled workers must be provided with reasonable accommodations in their places of employment.
In the late 1990s, when I first began researching potential legal protections for targets of workplace bullying, I hoped to discover that the ADA and its state equivalents were providing some relief for those whose work experiences had triggered or exacerbated mental conditions such as depression or various types of stress disorders. However, I soon found that mental health law expert Susan Stefan had examined the application of the ADA to abusive work environments and found that litigants were “losing their ADA cases because stress and abuse are seen as simply intrinsic to employment, as invisible and inseparable to conditions of employment as sexual harassment was twenty years ago.”
I included Stefan’s findings in my 2000 law article, “The Phenomenon of ‘Workplace Bullying’ and the Need for Status-Blind Hostile Work Environment Protection” (Georgetown Law Journal, 2000), the first law review article to comprehensively examine the legal and policy implications of workplace bullying under American employment law. That article planted the seeds for my drafting the anti-bullying Healthy Workplace Bill.
Since then, the ADA has undergone some changes, including a major package of amendments in 2008 and a set of disability law regulations issued by the Equal Employment Opportunity Commission. These developments were widely understood to strengthen protections for disabled workers.
However, the ADA and similar laws at the state level remain rather elusive legal tools for those whose mental disabilities are connected to workplace bullying. Simply put, although workplace bullying is among the most frequent forms of interpersonal abuse on the job, there has been no apparent groundswell of bullying-related disability discrimination claims. Although such claims may not be easy to bring successfully even under the recent changes to the ADA, I believe this approach remains underutilized by employment lawyers seeking to help bullied workers.
In any event, the limitations of disability discrimination protections further underscore the need for comprehensive workplace anti-bullying laws, and that’s yet another reason why I continue to advocate for passage of the Healthy Workplace Bill.
One separate but related public benefit is relevant here, and that is Social Security Disability. Although hard numbers are unavailable, more than a few severely bullied workers have obtained SSD benefits because they have been unable to return to work. Securing these benefits is not easy. It is not uncommon for initial applications to be rejected, necessitating an appeals process. However, many appeals are successful — perseverance definitely counts in this context — so rejected applicants should not take an initial denial of benefits as the last word on the matter.