Back to the Jul-Aug 2021 issue

How to Avoid Mental Health Discrimination in Your Workplace

By Laura Kushner

Mental illness is more common than you might think, and your city probably has employees who are affected by it.

The National Institute of Mental Health reports that nearly one in five U.S. adults lives with a mental illness. Those rates have increased during the COVID-19 pandemic.

The Centers for Disease Control and Prevention reported in June 2020 that about 40% of U.S. adults were struggling with mental health symptoms and/or substance abuse. The American Psychological Association reported similar findings in March 2021.

With percentages this high, it’s likely some of your city staff are experiencing symptoms of mental illness like anxiety, depression, substance abuse, or suicidal thoughts. Here are answers to a few common employment-related questions.

How can we help employees and deal with related performance issues without stepping over any legal lines?

Mental illnesses are covered by the Americans with Disabilities Act and the Minnesota Human Rights Act, just like physical illnesses. The city must be careful not to overstep its boundaries when it comes to obtaining information about an employee’s mental (or physical) health. Be cautious about treating them as if they have a mental impairment, with or without information that they really do have one. The city also has a legal obligation to make reasonable accommodations for mental illnesses.

What actions are discriminatory?

Some discriminatory actions are obvious. For example, according to the Equal Employment Opportunity Commission (EEOC), you cannot fire someone because they have a mental health condition. Neither can you reject them for a job or promotion, or force them to take leave from a job.

Promote a work environment that recognizes mental illness as being similar to physical illness.The EEOC acknowledges that employers do not have to hire or keep people in jobs if they can’t perform them or they pose a “direct threat” to safety. But it also cautions that “an employer cannot rely on myths or stereotypes about [an employee’s] mental health condition when deciding whether [they] can perform a job or whether [they] pose a safety risk.”

Other potentially discriminatory actions are less obvious. For example, you have an employee who often comes in late on Mondays, and you suspect they have a substance abuse problem. Can you ask them to seek treatment for substance abuse? Probably not. You can deal with the performance issue of arriving late for work, but you should not ask the employee about substance abuse.

In most situations, employees have the right to keep their medical conditions private, but you can ask open-ended questions that encourage an employee to voluntarily disclose a medical condition and/or need for an accommodation. You will want to work carefully with your city attorney to understand what is permissible.

You also need to protect employees against harassment, such as name-calling, related to a mental health condition.

Finally, retaliation against employees who report discriminatory behavior is also prohibited. For example, if you deny someone a promotion after they report discrimination, that could be suspected retaliation.

How can we promote a mentally healthy work environment?

In addition to avoiding legal issues, it’s in your city’s best interest to promote a work environment that recognizes mental illness as being similar to physical illness.

The benefits of an accepting work environment can ease the anxiety for those experiencing mental illness, increase their willingness to seek help, and possibly prevent the most serious forms of mental illness in the long run.

There are many websites devoted to creating a mentally healthy workplace, including the League’s PTSD and Mental Health Toolkit, available at www.lmc.org/mhtoolkit. The guidance is consistent in recommending these steps:

  • Raise the topic of mental health and normalize conversations about it with employees. It’s particularly helpful to have leaders talk about their own mental health struggles.
  • Talk to your managers and supervisors about how to have a conversation with an employee who says they are experiencing mental health symptoms.
  • Be as flexible as you can with accommodating employees who are experiencing stressors like caring for sick or aging parents, going through a divorce, or supervising the distance learning of their children. If you can lower work stress, it may help reduce mental health symptoms.
  • Find out if your employee group health plan includes mental health services, and make it easy for employees to find these resources.

Laura Kushner is human resources director with the League of Minnesota Cities. Contact: lkushner@lmc.org or (651) 281-1203.