Failing to accommodate depressed workers can be costly.

Employers who fail to reasonably accommodate the needs of depressed employees may face severe financial penalties under the Americans with Disabilities Act (ADA).

A California-based company recently found this out the hard way when it decided to fire rather than agree to change the work schedule and supervision of an in-house lawyer who had been diagnosed as suffering from depression. An arbitrator awarded substantial damages to the lawyer for the company's failure to comply with the ADA's requirement to make "reasonable accommodations" for certain mental illnesses, including depression. (See Amy Stevens, Boss's Brain Teaser: Accommodating Depressed Workers Wall St. J., Sept. 11, 1995, at B1.) (The names of the parties and the case cite are subject to a confidentiality agreement.)

The lawyer had worked for the company for about three years when he was placed under a "very demanding" supervisor who increased the lawyer's workload, according to Sidney Wolinsky of Oakland, California, one of two attorneys who represented the plaintiff. After working more than 60 hours a week for several weeks, the lawyer suffered a breakdown and took a leave of absence for two months. When he returned, he asked the company to accommodate his depression by giving him a more supportive boss, a half-day off every time he worked two consecutive 45-hour weeks, and "some protection" from retaliation in future performance reviews, Wolinsky said.

After months of failed negotiations, the lawyer sued his employer, alleging that it had failed to accommodate his mental disability as required by the Americans with Disabilities Act. The arbitrator agreed, finding that the lawyer's proposals had "merited a fair try."

Similar rulings are likely to become more common as ADA claims brought by employees with mental disabilities reach the trial level, according to Gary Phelan, an employment law attorney in New Haven, Connecticut. He noted that the act--which was passed in 1990--is fairly new, and many claims filed under it are still in the pre-trial phase. Also, employees may be more willing to assert mental disability claims as the social stigma that has been associated with mental illnesses like depression is lessened by increasing public awareness of them, Phelan said.

Phelan pointed out, however, that depression does not automatically qualify as a disability under the ADA. To qualify, a mental illness must "substantially limit a major life activity." Phelan noted that employers have little guidance in determining when an employee's mental illness meets this criterion. "There are no guidelines other than case law and no clear demarcation of what is or is not a disability. You have to look at how it affects the individual," he said.

Nevertheless, the California decision sends a dear message to employers that "requests for reasonable accommodation by people with mental disabilities have to be treated with the utmost seriousness," said Wolinsky. Likening these requests to allegations of sexual harassment or racial discrimination in the workplace, Wolinsky said that employers who ignore them may find that the "consequences are very substantial."

Ironically, employers are less likely to accommodate a worker who has a psychological disability than one who has a physical disability, although it is often cheaper to do so, Phelan said. Employers may be more hostile to the idea of accommodating mental illness because of a lack of understanding of it, he said.

But "the fact is that mental disabilities are not as difficult to accommodate. Usually what accommodation involves is flexibility. It's more likely to involve an open mind than an open pocketbook or wallet," Phelan said.

Wolinsky agreed, noting that the defendant in the California case had made accommodations for another lawyer who had a physical disability. "I don,t know what it cost, but probably thousands of dollars," Wolinsky said. "Accommodation of [my client] would not have cost a nickel."

The arbitrator's decision in the case is final. Both parties agreed to forgo any appeals.