Rachel A. Stanley*
Southeast Center on the Americans with Disabilities Act (Southeast ADA Center)
In the United States having a disability comes, not only with greater than average health difficulties, but with the stigma of having a disability. For the general public, a disability with visible physical or developmental manifestations is much easier to comprehend than a disability with psychological manifestations. Nonetheless, it is estimated that just over 26 percent of people in the United States experience a diagnosable mental disorder in a given year.1 The percentage, when applied to the 2004 census report, indicates nearly 58 million people are affected.2 Mood disorders, such as major depressive disorder and bipolar disorder, affect 9.5 percent, or nearly 21 million, people in a given year.3 The leading cause of disability in the United States for people between the ages of 15 and 44 is major depressive disorder, affecting 6.7 percent (est. 14.8 million) of the population.4 Bipolar disorder affects about 5.7 million adults in the United States (2.6 percent).5 Additionally, post-traumatic stress disorder (“PTSD”), an anxiety disorder, affects 7.7 million adults age 18 and over (3.5 percent), including many military veterans.6 These three disabilities, depression, bipolar disorder, and PTSD, will be the focus of the discussion here.
Timely to this discussion is the issue of PTSD among armed forces veterans returning from service in Iraq. The issue of PTSD among returning veterans is especially important in the Southeast region due to the large military population located there. There were nearly 1 million military personnel serving in the Fourth, Fifth, Sixth, and Eleventh Circuits in the 2004 fiscal year.7 Despite the stigma of mental illness, research indicates that more than one in three military members returning from service in Iraq seeks mental health services.8 This research also indicates that servicepersons returning from Iraq require greater mental health services than those returning from other places abroad, including Afghanistan.9 Because of the incidence of PTSD in returning military personnel, the Army and the National Guard in some states have begun implementing preventative mental heath measures through local Veterans Affairs (“VA”) Hospitals to assist reintegration into civilian life and employment.10 These preventative measures are meant to prevent full-blown PTSD in the future.11
When it enacted the Americans with Disabilities Act (“ADA”) in 1990, Congress found that discrimination against people with disabilities persisted in such “critical areas as employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, heath services, voting, and access to public services.”12 Keeping these discriminatory practices in mind, Title I of the ADA reads: “No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”13 An individual is disabled under the ADA if she demonstrates: (A) she has a physical or mental impairment that substantially limits one or more of her major life activities; (B) she has a record of such impairment; or (C) she is regarded as having such impairment.14
In her article “Winning and Losing under the Americans with Disabilities Act” disability law scholar Professor Ruth Colker analyzes appellate employment discrimination decisions in ADA cases.15 Colker, in part, examines the likelihood of plaintiff-favored decisions based on the Circuit in which the case was decided (e.g., the First and Ninth circuits are more plaintiff-friendly than the Fourth and the Sixth).16 In line with Colker’s assertions, as this brief will discuss, plaintiffs with mental disabilities, specifically PTSD, depression, and bipolar disorder, generally have not fared as well in Title I ADA claims in the Fourth and Sixth Circuits as they have in the Fifth and Eleventh Circuits.
The Fourth Circuit, in particular, has been very tough on ADA claims. As the circuit with the lowest rate of predicted pro-plaintiff outcomes in Colker’s study, the Fourth Circuit likely will find for plaintiffs in only 0.3 percent of appellate cases.17 In Rohan v. Networks Presentation, LLC, for example, the Fourth Circuit affirmed the district court’s summary judgment for the employer.18 In that case the plaintiff, an actress and singer, had been diagnosed with depression and PTSD and claimed that her discharge was discriminatory due to her disabilities. 19 The Court found that the employee was not substantially limited in the major life activity of interacting with others, and that the employee was not regarded as disabled.20
The Sixth Circuit, in Colker’s study, is predicted to be pro-plaintiff in only 2.8 percent of appellate opinions.21 Though ADA plaintiffs largely do not succeed in Sixth Circuit cases, arguably the court views plaintiffs with mental health conditions with less stigma that other circuits because the court is more open to accepting diagnosis of a mental condition as proof of a disability. For instance, in Tubbs v. Formica Corp. the plaintiff had been diagnosed with bipolar disorder and claimed that her employer failed to propose a reasonable accommodation and reinstate her after a leave in conjunction with her disability.22 The court found that the employee was disabled, though she failed to propose a reasonable accommodation, and failed to follow a medication regimen that would allow her to return to work.23
Similarly, in Joostberns v. United Postal Service, Inc., the plaintiff informed his employer that he had been diagnosed with depression and claimed that he was subsequently discriminatorily discharged due to his disability.24 The Sixth Circuit agreed that the employee was a qualified individual under the ADA, however found that there was no genuine issue of material fact that he was discriminatorily discharged because of his disability.25 In Tubbs and Joostberns, the plaintiffs were diagnosed with recognized mental conditions, and, in line with the definition of “disability” under the ADA, the Sixth Circuit accepted these diagnoses as proof of a disability.
The Fifth Circuit, on the other hand, arguably requires much more proof of mental illness. It seems that this court has been unwilling to take evidence of a diagnosis as proof of a disability. Once a plaintiff has provided a threshold of proof of the mental disability and its severity, however, the court seems more willing to decide in favor of the plaintiff. In Colker’s study, the predicted probability of a pro-plaintiff outcome in the Fifth Circuit is 1.7 percent—lower than all but the Fourth Circuit.26 In Winters v. Pasadena Independent School District the plaintiff took medical leave from her job in order to receive in-patient treatment for depression and claimed that her employer failed to rehire her because of her depression.27 Though the employee had been diagnosed with, and required medication for, depression the court found that she was not disabled under the ADA.28
Similarly, in Curl v. United Supermarkets, Ltd. the plaintiff-employee had been diagnosed with bipolar disorder, and claimed that he had been discriminatorily discharged because his disability substantially limited major life activities including “sleeping, concentrating, interacting with crowds of people, [and] thinking.”29 Though a doctor had diagnosed with bipolar disorder, the Fifth Circuit determined that common “textbook” symptoms of bipolar disorder are not sufficient evidence of substantial limitation absent Curl’s personal demonstration of these limitations. Thus, the court found that he was not disabled within the meaning of the ADA.30
In contrast to Winters and Curl, in Tullos v. City of Nassau Bay the Fifth Circuit affirmed a jury verdict from the district court in favor of the employee.31 The plaintiff had been diagnosed with PTSD, depression, impulse control disorder, and rage disorder, and alleged that he had been discriminatorily discharged because he was regarded as being disabled.32 The court found that, based on the employer’s extensive documentation, the employee “was a qualified individual, that [the employer] regarded him as disabled, and that the perceived disability was a motivating factor” in his termination.33
The Fifth Circuit cases suggest that multiple diagnoses of mental illnesses, combined with exceptional circumstances, such as the employer’s extensive documentation of the employee’s disability and negative on-the-job treatment of the employee, as in Tullos, may provide a necessary threshold for a successful pro-plaintiff fact pattern.
Of the four circuits examined here, the Eleventh Circuit is considered the most pro-plaintiff. Colker predicts that 5.1 percent of ADA claims in the Eleventh Circuit will be decided in favor of the plaintiff.34 For example, In Farley v. Nationwide Mutual Insurance Co. the plaintiff had been diagnosed with depression and PTSD and claimed that he had been discriminatorily discharged based on these disabilities.35 Because the employee continuously endured disability-related jokes and because the jury found that the employee was discharged due to his disability, the Eleventh Circuit affirmed the jury’s verdict in favor of the employee.36
The two successful cases here, Tullos and Farley, were both appeals by the employer after a jury verdict in the district court found for the employee on the ADA claims and awarded extensive damages.37 In the other cases presented, the district courts uniformly granted the employers’ motions for summary judgment. In Tullos, the employee was awarded $200,000 in damages, and in Farley, the plaintiff was awarded nearly $600,000.38 This similarity suggests that if the plaintiff-employee is successful at the district court level with a jury, his chances of being affirmed on appeal might be greater.
By way of comparison, Colker provides the predicted pro-plaintiff outcomes in all U.S. Circuit Courts.39 Colker suggests a plaintiff’s ADA claim is most likely to succeed in the D.C. Circuit where the predicted success rate is 15.7 percent.40 The Second and Third Circuits are tied with the second most probable success rate (10.7 percent).41 Next are the First Circuit at 6.8 percent and the Eleventh Circuit at 5.1 percent.42 The rest of the circuits all fall under the 5 percent mark: Ninth Circuit (4.7 percent), Seventh Circuit (3.9 percent), Sixth Circuit (2.8 percent), Eighth Circuit (2.2 percent), Tenth Circuit (2 percent). The Fifth and Fourth Circuits trail behind all the other circuits at 1.7 percent and 0.3 percent, respectively.43
In sum, the Fourth and Fifth Circuits generally deliver the least favorable opinions in ADA Title I cases. In cases involving plaintiffs with multiple severe diagnosed mental health conditions and well-documented evidence of the employer’s knowledge of the diagnoses, the Fifth Circuit may be more likely to find for the plaintiff. The Sixth Circuit, though tough on ADA claims generally, reaches the merits of the employee’s claim more regularly by accepting as proof of a disability a doctor’s diagnosis. The Eleventh Circuit is the highest predicted pro-plaintiff circuit in the Southeast DBTAC region, has accepted an employee’s diagnosis as proof of disability, and reached the merits in turn.
Reintegration into civilian life and employment is a challenge for returning military veterans, which is exacerbated by stigma and discrimination toward those with mental health difficulties. Some preventative measures are being taken by certain branches of the military. In addition, the National Military Family Association (“NMFA”), a non-profit organization focused on implementing policies to improve the lives of servicepersons’ family members, began requesting increased funding for mental health services for military personnel returning from overseas combat.44 In a statement on December 8, 2005, Joyce Wessel Raezer, NMFA’s Director of Government Relations, focused on the effects of PTSD on returning service members’ families.45 She called for more research on how deployment affects families, more attention to returning military personnel, and mandatory screening for possible mental health conditions upon return.46 Perhaps more information and early detection in military families can reduce the stigma and discrimination returning servicepersons fear, further educate the general population about the disabling manifestations of mental illness, and inform employers and employees of their rights and responsibilities under the ADA.
* Ms. Stanley is a 2007 J.D. candidate at Syracuse University (SU), working under the direction of William N. Myhill, M.Ed., J.D., Senior Research Associate at the Burton Blatt Institute (BBI) and Adjunct Professor of Law at SU; 900 S. Crouse Ave., Crouse-Hinds Hall, Suite 300, Syracuse, New York 13244. For additional information on related law and policy issues, see bbi.syr.edu.