Mental Impairments: Disabilities And Accommodation

(This article was prepared for a January 22, 2004 Disability Law Seminar for the Labor and Employment Section of the Connecticut Bar Association. It was prepared for attorneys who have some background in the law, but the article should be informative for a lawyer or non-lawyer with some knowledge of this area)

I. Introduction The issues regarding the Americans with Disabilities Act, 42 U.S.C. § 12101, 12102, 12111-12117, 12201-12213, (the "ADA") that employer and employee counsel confront daily are heightened in the case of mental impairments. Since mental impairments may have no observable symptoms, issues of proving the existence of the impairment and assessing the degree of impairment resulting from the disability can be more difficult than with many physical impairments. Issues of accommodation are difficult as well. Some of the accommodations most useful to employees with mental impairments, such as irregular and unscheduled absences or a change in supervisors, are either unavailable or difficult to obtain under the ADA. These materials are intended to provide guidance on the issues of what makes a mental impairment a disability under the ADA, and what courts have said about what the ADA requires employers to do in accommodating these disabilities. These materials discuss cases regarding mental impairments as disabilities under the ADA and the Connecticut Fair Employment Practices Act, Conn. Gen. Stat. § 46a-51 et seq. ("CFEPA"), and case law regarding reasonable accommodations that employees with mental impairments commonly need. At the end of the materials are references to some Internet resources for accommodation of mental impairments. These materials assume basic familiarity with the ADA and the Rehabilitation Act. II. Mental Impairments as Disabilities Under the ADA and CFEPA Definitions of disability differ between the ADA and state anti-discrimination statutes such as the Connecticut Fair Employment Practices Act. State law, including Connecticut and New York, have broader definitions of disability than the ADA. CFEPA is discussed in the penultimate section of these materials.

A. Mental Impairments As Disabilities Under the ADA Mental impairments under the ADA include "any mental or psychological disorder, such as . . . emotional or mental illness." 29 C.F.R. § 1630.2(h)(2). The ADA excludes from the definition of mental impairments certain sexual behavior disorders, compulsive gambling, kleptomania, pyromania and "psychoactive substance use disorders resulting from current illegal use of drugs." 42 U.S.C. § 12211(b); 29 C.F.R. § 1630.3(d). Of course, any mental illness is only a disability under the ADA if it substantially limits a major life function. The following are cases addressing whether specific mental impairments are disabilities under the ADA. Determinations of whether a specific impairment is sufficient to constitute a disability under the ADA is fact-specific, so the fact that one case finds a particular impairment to be covered by the ADA does not mean that all such impairments are disabilities. Albertson's, Inc. v. Kirkingburg, 144 L. Ed. 2d 518, 527 U.S. 555, 119 S. Ct. 2162, 2169 (1999). The relevant issue is the extent of the impairment rather than actual diagnosis. Unless otherwise noted, all the cases generally involved decisions on summary judgment or appeals of summary judgment decisions.

1. Cases Finding Specific Impairments to be a Disability

a) Stress - Anxiety Disorders Is a Disability: McAlindin v. County of San Diego, 192 F.3d 1226, 1230 (U.S. App. , 1999) (anxiety disorders, including panic disorders and somatoform disorders, claimed impairment of major life functions of sleeping, engaging in sexual relations, and interacting with others); McAlindin v. County of San Diego, 192 F.3d 1226, 1234 (9th Cir., 1999)(anxiety and panic disorder that substantially interfered with major life functions of sexual relations, sleeping, and interacting with others was disability). Not A Disability: Zirpel v. Toshiba America Information Sys., 111 F.3d 80, 81 (8th Cir. 1997) ("Although Zirpel's ability to breathe and speak is hampered during an actual panic attack, Zirpel admits her panic disorder does not usually limit her activities. Zirpel's psychologist said that with treatment, panic disorder is 'very manageable, causing infrequent, mild attacks."); Reeves v. Johnson Controls World Servs., 140 F.3d 144, 153, 156 (2nd Cir. , 1998) (Agoraphobia and panic disorder not an impairment of a major life function when just restricted driving on bridges, in tunnels and in high traffic, but did constitute a disability under the New York Human Rights Law). b) Depression Is A Disability: Schopmeyer v. Plainfield Juvenile Corr. Facility, 2002 U.S. Dist. LEXIS 19209 (U.S. Dist. , 2002) (Rehab Act: depression resulting in impairment of his ability to sleep, read, concentrate, and interact with others); Criado v. IBM Corp., 145 F.3d 437, 442 (1st Cir. 1998) (depression a disability: "[s]he had been seeing her physician for seven years and had often had periods of depression, though the particular episode is the only one that required absence from work. Furthermore, she had been diagnosed with Attention Deficit Disorder (ADD), a permanent disability, and her physician testified that the ADD compounded her depression and anxiety disorders.") Is Not a Disability: Pack v. Kmart Corp., 166 F.3d 1300, 1306 (U.S. App. , 1999) (while sleep, but not concentration, is a major life activity, evidence showed that sleep problems were controlled with medication); Polderman v. Northwest Airlines, Inc., 40 F. Supp. 2d 456, 463 (U.S. Dist. , 1999) (plaintiff's own claims that mild chronic depression that made it difficult to work were not sufficient to establish a substantial limitation when the plaintiff presented no supporting medical evidence). c) Obsessive Compulsive Disorder ("OCD") Is A Disability: Humphrey v. Memorial Hosps. Ass'n, 239 F.3d 1128, 1134 (U.S. App. , 2001) (OCD impaired major life function of caring for oneself, in that plaintiff, for example, could take up to three hours to wash her hair); Breen v. DOT, 282 F.3d 839, 843 (D.C. Cir., 2002) (Rehab Act: assuming obsessive compulsive disorder is a disability); Amir v. St. Louis Univ. 184 F.3d 1017, 1027 (8th Cir. , 1999) (obsessive compulsive disorder disability where it affects plaintiff's ability to eat and drink without vomiting and his ability to concentrate ) Is Not a Disability: Evans v. Magna Group, Inc., 1999 U.S. App. LEXIS 13316 (U.S. App. , 1999) (summary judgment for defendant, not surprising since the plaintiff admitted that her condition was a "fairly harmless disorder" and that "her condition did not in anyway prevent her from performing her job"); Olson v. General Electric Astrospace, 101 F.3d 947 (3rd. Cir. 1996) (while not depression not sufficiently impairing to be disabled under the ADA when plaintiff did not demonstrate how the illness affected his life: "plaintiff has indicated that he works, goes to school full time and regularly engages in recreational activities. The court therefore concludes that plaintiff has not made a prima facie showing that he is disabled."). d) Bi-Polar Disorder Is a Disability: Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 307 (U.S. App. , 1999) (affecting major life function of thinking: this case and Bultemeyer case following also have a useful discussion of notice of disability to the employer); Bultemeyer v. Fort Wayne Community Sch., 100 F.3d 1281, 1281-1282 (U.S. App. , 1996) (parties did not dispute that plaintiff's bipolar disorder, anxiety attacks and paranoid schizophrenia constituted a disability). Is Not a Disability: Glowacki v. Buffalo Gen. Hosp., 2 F. Supp. 2d 346, 351 (U.S. Dist. , 1998) ("Nowhere in the record does plaintiff claim that any of her major life activities are limited.") e) Attention Deficit Disorder Not a Disability: Davidson v. Midelfort Clinic, 133 F.3d 499, 507 (7th Cir. 1998) (ADD which made plaintiff slow in dictating was not sufficiently limiting in the major life activities of working, speaking or learning)

III. Accommodating Mental Impairments An employer must provide a reasonable accommodation to a mental limitation of a otherwise qualified employee so long as the employer knows about the disability unless the employer can show undue hardship. 42 U.S.C. § 12111(9), 12112(b)((5)(A); 29 C.F.R. § 1630.2(o). Discussed below are cases concerning accommodations commonly requested by employee with psychiatric disorders. Some non-psychiatric cases that have good discussions of accommodations relevant to psychiatric disabilities are discussed. Courts show a varying willingness to look behind a job title and a job description in determining what are essential job functions and what a reasonable accommodation might be. Any request for accommodation has to be tailored to a particular job and to a particular person. As Judge Calebrase stated in the case of Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 140 (2nd Cir, 1995) in deciding that a teacher's aide could be a reasonable accommodation: [I]s classroom management -- the ability to maintain appropriate behavior among the students -- an essential function of a tenured library teacher's job? We might intuitively think so. But Section 504 (of the Rehabilitation Act) does not permit us to rely on intuition -- indeed, unthinking reliance on intuition about the methods by which jobs are to be performed and how an individual's disabilities relate to those methods is among the barriers that the Rehabilitation Act was designed to overcome. Generally, plaintiffs who are successful in arguing for a reasonable accommodation have either or both of the following. Successful plaintiffs frequently established that the failure to accommodate is in fact discriminatory in that non-disabled employees are allowed to do what the plaintiff has proposed as a reasonable accommodation. See Schopmeyer and Humphrey below. Further, plaintiffs are generally more successful when making factually detailed arguments that specifically tie the particular needs of a job with the particular disabilities of the plaintiff rather than relying on per se rules. Compare Stone v. City of Mt. Vernon, 118 F.3d 92, 99 (2nd Cir. 1997) in which the plaintiff made a factual showing that occupants of the job he requested were never required to fight fires, versus the plaintiff in Terrell v. USAir, 132 F.3d 621, 625 (11th Cir. 1998) who argued that part-time work was a per se reasonable accommodation because it was listed in the statute as a reasonable accommodation.

1. Transfer One issue with transfer to a vacant position as a reasonable accommodation is whether the employee seeking the transfer has some presumptive right to the job if qualified, or if the employee must complete with all other applications. See Davoll v. Webb, 194 F.3d 1116 (10th Cir. 1999) ("'the reassignment . . . obligation means something more than merely allowing the disabled person to compete equally with the rest of the world for a vacant position,'" quoting Smith v. Midland Brake Inc., 180 F.3d 11544, 1165 (19th Cir. 1999) versus Mays v. Principi, 301 F.3d 866, 872 (7th Cir. 2002) (employer can choose more qualified candidates for a job that the employee had requested as a reasonable accommodation).

a) Found Reasonable Stone v. City of Mt. Vernon, 118 F.3d 92, 99 (2nd Cir. 1997) (transfer of a disabled firefighter to a desk job was a reasonable accommodation when the department could not show that desk workers were ever called on to fight a fire); McAlindin v. County of San Diego, 192 F.3d 1226, 1230 (U.S. App. , 1999) (requiring employer to apply transfer policies flexibly to plaintiff with stress - anxiety disorders); Schopmeyer v. Plainfield Juvenile Corr. Facility, 2002 U.S. Dist. LEXIS 19209 (U.S. Dist. , 2002) (Rehab Act, question of fact whether employer's reasons for refusal to transfer were pretextual); Bultemeyer v. Fort Wayne Community Sch., 100 F.3d 1281, 1281-1282 (U.S. App. , 1996) (assigning plaintiff to the school he had worked at prior to taking leave of absence, which was less stressful than the school the employer wanted to send him to, was a reasonable accommodation); Mustafa v. Clark County Sch. Dist., 157 F.3d 1169, 1175 (9th Cir., 1998) (transfer to a non-classroom position reasonable accommodation: "The district does employ teachers in non-classroom positions, positions that are not simply 'make work' jobs but rather appear to exist in order to facilitate the needs of students and the district. The district cannot overlook the existence of these positions when it claims that it is essential that its teachers work in a classroom setting."); McAlindin v. County of San Diego, 192 F.3d 1226, 1234 (9th Cir., 1999) (when transfer list ad hoc and unranked, request for transfer assistance and priority as an accommodation are reasonable); Smith v. Midland Brake, Inc., 180 F.3d 1154, 1161 (10th Cir., 1999) (transfer to vacant job reasonable accommodation: "[a]lthough a 'qualified individual with a disability' has to be someone who can perform the essential functions of a job, that inquiry is not limited to the employee's existing job. Rather, the plain language of the statute includes an employee who has the ability to do other jobs within the company that such disabled employee 'desires.'") b) Found Not Reasonable Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 307, 317 (U.S. App. , 1999) (while plaintiff's requested accommodation of transfer was not feasible, request for accommodation obligated employer to engage in interactive process); Kennedy v. Dresser Rand Co., 193 F.3d 120, (2nd Cir. 1999) (while no per se rule that transfer to an other supervisor is not a reasonable accommodation, there is a presumption that such an accommodation is unreasonable. Request was unreasonable in this case, even though the plaintiff claimed that her depression was caused by the supervisor's (non-sexual) harassment); Gaul v. Lucent Techs., 134 F.3d 576, 581 (U.S. App. , 1998) (transfer away from co-workers who caused plaintiff stress was not reasonable); Wernick v. Federal Reserve Bank of New York, 91 F.3d 379, 384 (2d Cir. 1996) (change in supervisors unreasonable); Kennedy v. Dresser Rand Co., 193 F.3d 120, 122-23 (2d Cir. 1999) (change in supervisors unreasonable).

2. Work From Home:

a) Reasonable Humphrey v. Memorial Hosps. Ass'n, 239 F.3d 1128, 1134 (U.S. App., 2001) (when other medical transcriptionists were allowed to work from home, couldn't deny working from home to plaintiff on basis of absences that resulted from the disability); Langon v. Department of Health and Human Services, 959 F.2d 1053, 1060(D.C. Cir. 1992) (Rehab Act). b) Unreasonable Heaser v. Toro Co., 247 F.3d 826, 832 (8th Cir, 2001) (plaintiff did not meet burden of showing that computer system could be operated remotely); Smith v. Ameritech, 129 F.3d 857 (6th Cir. 1997) (work at home is a reasonable accommodation only in exceptional circumstances); Tydall v. National Educ. Ctrs, Inc., 31 F.3d 209, 213 (4th Cir. 1991) ("except in the unusual case where an employee can perform all work-related duties at home, an employee who does not come to work cannot perform any of his job functions, essential or otherwise").

3. Leave Time Leaves for a defined time period are generally found to be reasonable accommodations, while open-ended leaves are not. Even if the plaintiff is not sure of when he or she will recover, some anticipated return date should be specified. Any leave request that complied with the FMLA should presumptively be a reasonable accommodation. See, Haschmann v. Time Warner Entertainment Co., L.P., 151 F.3d 591, 602 (7th Cir., 1998).

a) Reasonable Rascon v. US West Communications, Inc., 143 F.3d 1324, 1333-34 (10th Cir. 1998) and Hudson v. MCI Telecommunications Corp., 87 F.3d 1167, 1169 (10th Cir. 1996) ("An allowance of time for medical care or treatment may constitute a reasonable accommodation."); Haschmann v. Time Warner Entertainment Co., L.P., 151 F.3d 591, 602 (7th Cir., 1998) (Lupus, after trial: "This record does not support Time Warner's assertion that it would suffer an undue hardship if it granted Ms. Haschmann's proposal of a 2-4 week medical leave. There was evidence that the job had been vacant for many months before Ms. Haschmann was hired, that the company took almost six months to fill her position after her discharge, and that subordinates handled the job in the interim.") b) Unreasonable Cisneros v. Wilson, 226 F.3d 1113, 1129 (10th Cir., 2000) ("request for indefinite leave cannot constitute 'reasonable' accommodation - such a leave request does not allow the employee to perform the essential functions of the job in the near future.") Wood v. Green, 323 F.3d 1309, 1314 (11th Cir., 2003) ("an accommodation is unreasonable if it does not allow someone to perform his or her job duties in the present or in the immediate future.")

4. Alternative Work Hours - Part Time:

a) Is Reasonable: Breen v. DOT, 282 F.3d 839, 843 (D.C. Cir., 2002) (extra hour of work a day to allow uninterrupted time to do filing and allow one day off every two weeks was a reasonable accommodation of plaintiff's obsessive compulsive disorder when no daily deadlines); Ralph v. Lucent Technologies, Inc., 135 F.3d 166, 172 (1st Cir. 1998) (four week interim part-time assignment was a reasonable accommodation, even though the employer had already afforded a wide variety of accommodations previously). b) Not Reasonable Treanor v. MCI Telecomms. Corp., 200 F.3d 570, 575 (8th Cir., 2000) ("the ADA does not require an employer to create a new part-time position where none previously existed;" court did not explore whether current full-time position could have been done on a part-time basis); Lamb v. Qualex 2002 U.S. App. LEXIS 5982 (4th Cir. January 24, 2000) (when essential function of job included monthly sales calls and need to respond to emergency service calls at one-hour photo locations, part-time work not a reasonable accommodation); Earl v. Mervyns, Inc., 207 F.3d 1361, 1367 (11th Cir., 2000) (request for flexible start time not reasonable: "[a] request to arrive at work at any time, without reprimand, would in essence require Appellee to change the essential functions of Appellant's job, and thus is not a request for a reasonable accommodation. Appellee was therefore under no duty to engage in an "interactive process" or to show undue hardship."); Terrell v. USAir, 132 F.3d 621, 625 (11th Cir. 1998) (no duty to create a part-time reservation agent position were no such positions existed; the concurrence stated that if the plaintiff had shown factually that allowing part-time work would not be an undue hardship, the request might have been reasonable).

5. Irregular Leave: "Work When Able" No court that the author is aware of has held that irregular unplanned leave is a reasonable accommodation. An employee who can only work intermittently might be better served by applying for short-term disability benefits while the employee still has a job rather than missing work regularly and getting fired. Carr v. Reno, 23 F.3d 525, 529 (D.C. Cir., 1994) (attendance so intermittent that no way she could perform essential functions of a coding clerk position); EEOC v. Yellow Freight Sys., 253 F.3d 943, 949 (7th Cir. , 2001) ("let us be clear that our court, and every circuit that has addressed this issue, has held that in most instances the ADA does not protect persons who have erratic, unexplained absences, even when those absences are a result of a disability. The fact is that in most cases, attendance at the job site is a basic requirement of most jobs").

6. Additional Training - Job Coach The EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities (Question 27) and 29 C.F.R. pt. 1630 app. § 1630.9 states that providing a temporary job coach to assist in training is a reasonable accommodation. The purpose of the job coach, however, must be to train the employee to do the job on his or her own. See EEOC v. Dollar General Corp below.

a) Is Reasonable Kennelly v. Pennsylvania Turnpike Comm'n, 208 F. Supp. 2d 504, 514 (D.C. E.P., 2002) (also holding that question of fact whether failure to provide training cause the psychological trauma that now totally disabled the plaintiff); Vollmert v. Wisc. Dept of Transportation, 197 F.3d 293, 298 (7th Cir. 1999)(question of fact whether employee could have learned to use a mouse and navigate Windows if she had been given training tailored to her dyslexia); EEOC v. Dollar Gen. Corp., 252 F. Supp. 2d 277, 292 (M.D.N.C. , 2003) (a genuine issue of material fact exists and it is for the fact finder to determine whether or not she might ever have been able to perform her job without a job coach). b) Not Reasonable Gilbert v. Frank, 949 F.2d 637 (CA 2 1991), (unreasonable to have two people performing the same tasks normally performed by one.); EEOC v. Hertz Corp., 1998 U.S. Dist. LEXIS 58 (E.D. Mich, 1998) ("[i]f a temporary job coach providing job training to a qualified individual may be a reasonable accommodation, the clear implication is that a full-time job coach providing more than training to unqualified individuals is not.") Ricks v. Xerox Corp., 877 F. Supp. 1468 (D.Kan. 1995), (request for a full-time "helper" to assist in the performance of the essential functions of his job was unreasonable as a matter of law); Williams v. United Ins. Co. of America, 253 F.3d 280, 282 - 283 (7th Cir. 2001) (employer does not have to provide training not available to non-disabled employees, so employer did not have to provide training that would have allowed plaintiff to qualify for a job she could physically perform: "the duty of reasonable accommodation may require an employer to reconfigure the workplace . . . but it does not require the employer to reconfigure the disabled worker.").

7. Restructuring Job Functions Job restructuring is a difficult basis for bringing a failure to accommodate claim, even though it is one of the statutorily-defined methods of reasonable accommodation. 42 U.S.C. § 12111(9)(b); 29 C.F.R. § 1630.2(o)(2)(ii). The problem is that courts have held that no essential functions of the job have to be transferred, no matter how reasonable it would be to have someone else do the function. For instance, even though the employer had created a special assignment that did not requiring making the deliveries the plaintiff was unable to do, the court stated that the employer could not be required to continue the special assignment as a reasonable accommodation because delivery was an essential function of the job. Basith v. Cook County, 241 F.3d 919, 930 (7th Cir., 2001) ("The fact that restructuring is feasible, in itself, is not persuasive evidence one way or the other that a function is essential to a job.")

a) Is Reasonable Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 140 (2nd Cir, 1995) (Rehab Act: Question of fact whether providing a teacher's aide to assist with discipline for times that a school librarian taught classes is a reasonable accommodation); Tuck v. HCA Health Services of Tenn, Inc., 7 F.3d 465, 473 (6th Cir. 1993) (Rehab Act: eliminating requirement of lifting patients was a reasonable accommodation for a nurse; the dissent, stating that inability to do heavy lifting, even if this could be accommodated by having others easily do it, was not a reasonable accommodation is probably more accurately reflects current law). b) Is Not Reasonable EEOC v. Amego, Inc., 110 F.3d 135, 148-149 (1st Cir., 1997) (not reasonable to accommodate staff member's inability to administer drugs: "[d]eploying another Behavior Therapist to Guglielmi's location and shift or changing Guglielmi's clients' programming to ensure that they were on site, near other staff members, whenever they needed to take medication would have an equally disruptive effect on Amego's clients and staff as well as interfere with Amego's funding requirements); Lucas v. W. W. Grainger, Inc., 257 F.3d 1249, 1260 (11th Cir., 2001) (restructuring that would have eliminated job functions was not reasonable: "[t]he difference between the accommodation that is required and the transformation that is not is the difference between saddling a camel and removing its hump."); Holbrook v. City of Alpharetta, 112 F.3d 1522, 1528 (11th Cir, 1997) (even though department had accommodated plaintiff's inability to investigate certain types of cases in the past, and these types of cases arose rarely, unreasonable to restructure job to reallocate responsibility for these types of cases.); Laurin v. Providence Hospital, 150 F.3d 52, 59 (1st Cir. 1998), (rotating shifts essential function of nursing job, so job could not be restructured to eliminate requirement).

B. Mental Impairments as Disabilities Under CFEPA

1. Definition of "Mental Disorder." Mental impairments are much more likely to be considered disabilities under CFEPA than the ADA. While the ADA requires that the mental condition impair a major life function, all CFEPA appears to require is the existence of a DSM-IV diagnosis, as is discussed further below. CFEPA prohibits discrimination on the basis of an employee's "present or past history of mental disorder." Conn. Gen. Stat. § 46a-60(a)(1). While some specific mental impairments, such as mental retardation and learning disability are defined, the statute does not define mental disorder. One Connecticut Superior Court, and several CHRO hearing officers, has held that an employee has a mental disorder so long as the employee is diagnosed with a condition contained in DSM-IV. Conway v. City of Hartford, 1997 Conn. Super. LEXIS 282 (Conn. Super., 1997) (gender dysphoria is a diagnosis in DSM-IV, so a transgendered employee is disabled under CFEPA); Saksena v. State of Connecticut, CHRO No. 9940089 (August 9, 2001) available on CHRO website.

2. Conditions as Mental Disorders Under Connecticut Statutory Law

a) Under CFEPA Gender Dysphoria: Conway v. City of Hartford, 1997 Conn. Super. LEXIS 282 (Conn. Super., 1997) (gender dysphoria is a diagnosis in DSM-IV, so transgendered employee is disabled under CFEPA) Depression: Conte v. New Haven Bd. of Educ., 2003 Conn. Super. LEXIS 1454 (Conn. Super. , 2003) (DSM-IV diagnosis equals "mental disability" as defined by General Statutes § 46a-51(20); Saksena v. State of Connecticut, CHRO No. 9940089 (August 9, 2001) (diagnosis of severe single episode major depression with general anxiety disorder was a mental disorder. Note: the employee claimed that his condition made it difficult to work and relate to a supervisor. It is unlikely that this degree of impairment of the employee would have been sufficient for the depression to constitute a disability under the ADA). b) Under Conn. Gen. Stat. § 17a-549 Individuals claiming employment discrimination on the basis of mental impairments have an alternative to CFEPA. Conn. Gen. Stat. § 17a-549 provides that "No person shall be denied employment . . . or any other civil or legal right, solely because of a present or past history of mental disorder." These rights are independent of CFEPA, and can be pursued without filing with an administrative agency. Doe v. Odili Tech., 1999 Conn. Super. LEXIS 3120 (Conn. Super., 1999); Bergeson v. Day Kimball Hospital, Superior Court, judicial district of Windham at Putnam, Docket No. 034516 (October 17, 1988) (Noren, J.), not on LEXIS. Individual liability under this statute may exist even after the Perodeau v. City of Hartford case, which found that individual supervisor liability did not exist under CFEPA.

3. Accommodations under CFEPA of Mental Disorders CFEPA contains no explicit obligation that an employer accommodate disabilities, but the CHRO has consistently found such an obligation. Michael Harrington and Joshua Hawks-Ladd address this issue elsewhere in these materials. My materials will assume an obligation to accommodate under CFEPA. While the issue of accommodation of mental disorders has been rarely addressed by Connecticut courts or the CHRO, the CHRO in Saksena v. State of Connecticut, CHRO No. 9940089 (August 9, 2001) held that allowing the employee to work from home was a reasonable accommodation for a revenue examiner.

Resources on Accommodating Mental Disabilities Below are some resources regarding accommodating mental disabilities. None of these resources are much assistance to attorneys negotiating reasonable accommodations regarding a specific employee, however. It is difficult to generalize about accommodations for any particular position or relating to any particular disorder. What accommodations are reasonable depend crucially on the nature of a job: a flexible start time would be unreasonable for a sales clerk who opens a store and works alone, while it would be reasonable for a professional who does not work with morning deadlines. These resources can provide some guidance in starting to determine what reasonable accommodation might be in a specific case. Job Accommodation Network: is a service of the Office of Disability Employment Policy of the U.S. Department of Labor to provide advice to employees and employers regarding accommodating disabilities. The person to speak with specifically is Kendra M. Duckworth, who can be reached at 800-526-7234. Its home page is at www.jan.wvu.edu, and has a generalized articles on accommodating psychiatric disabilities (located at www.jan.wvu.edu/media/Psychiatric.html), and dealing specifically with Post Traumatic Stress Disorder, Bipolar Disorder. The publications have long lists of potential accommodations Boston University's Center for Psychiatric Rehabilitation: Reasonable Accommodations for People with Psychiatric Disabilities: An On-line Resource for Employers and Educators, located at http://www.bu.edu/drrk/research-syntheses/psychiatric-disabilities/job-accommodations/ . This site is most suited for employer and employee clients to give them an introduction to the issues presented in accommodating psychiatric disabilities. EEOC Publications: Work at Home as a Reasonable Accommodation www.eeoc.gov/facts/telework.html EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities www.eeoc.gov/policy/docs/psych.html.