McGeorge Law Review Volume 44 | Issue 4 Article 7 1-1-2013 The aC tch-22 of ADA Title I Remedies for Psychiatric Disabilities Andrew Hsieh Pacific cGeM orge School of Law Follow this and additional works at: https://scholarlycommons.pacific.edu/mlr Part of the Disability Law Commons, Labor and Employment Law Commons, and the Law and Psychology Commons Recommended Citation Andrew Hsieh, The Catch-22 of ADA Title I Remedies for Psychiatric Disabilities, 44 McGeorge L. Rev. 989 (2013). Available at: https://scholarlycommons.pacific.edu/mlr/vol44/iss4/7 This Comments is brought to you for free and open access by the Journals and Law Reviews at Scholarly Commons. It has been accepted for inclusion in McGeorge Law Review by an authorized editor of Scholarly Commons. For more information, please contact [email protected]. _06_HSIEH_FINAL.DOC (DO NOT DELETE) 1/31/2014 9:42 AM The Catch-22 of ADA Title I Remedies for Psychiatric Disabilities Andrew Hsieh* TABLE OF CONTENTS I. INTRODUCTION ............................................................................................ 990 II. THE ADA’S EMPLOYMENT PROVISIONS: AN OVERVIEW ............................ 995 A. The Statutory Framework ...................................................................... 995 B. The Direct Threat Exception ................................................................. 997 C. ADA Causes of Action and Remedies .................................................... 998 D. Administrative Procedure ...................................................................... 999 E. The ADA Amendments Act: Changing the Face of ADA Litigation .... 1000 III. ADA ENFORCEMENT AND PSYCHIATRIC DISABILITIES ............................. 1002 A. What Makes Psychiatric Disabilities Different? ................................. 1002 B. Problems with Discriminatory Intent .................................................. 1004 C. Equitable Relief and its Limitations .................................................... 1009 D. Psychiatric Disabilities as Barriers to Relief ...................................... 1011 IV. SHORTCOMINGS OF EXISTING ALTERNATIVE DISPUTE RESOLUTION MECHANISMS ............................................................................................. 1014 A. The EEOC and Alternative Dispute Resolution .................................. 1014 B. The Employer Perspective on Mediation ............................................ 1015 C. Possible Bias at the EEOC? ................................................................ 1017 V. PROTECTING EMPLOYEES’ STATUTORY RIGHTS USING TORT LAW AND OTHER MECHANISMS ................................................................................. 1018 A. The Need for Compensatory Damages ................................................ 1018 B. Can Statutory Solutions Work? ........................................................... 1022 C. Harnessing Characteristics of Psychiatric Disabilities in Tort and Other Remedies .......................................................................................... 1023 1. Intentional Infliction of Emotional Distress ................................. 1024 2. Negligent Infliction of Emotional Distress ................................... 1026 * J.D. 2013, University of the Pacific, McGeorge School of Law; B.S. 2004, California Institute of Technology. I would like to thank Lawrence Levine, Carrie Griffin Basas, Lewis Bossing, and Mark Weber for their invaluable comments and suggestions on earlier drafts; Michael Perlin, Brian Landsberg, and Elyn Saks, for their help in developing some of the ideas in this Comment; my editor Jo Michael for providing advice and assistance throughout the writing process; my friends and colleagues at McGeorge and in the National Association of Law Students With Disabilities for keeping me grounded; and especially Rebecca Sadun, without whose unwavering support over the last several years, this Comment would never have been possible. 989 _06_HSIEH_FINAL.DOC (DO NOT DELETE) 1/31/2014 9:42 AM 2013 / The Catch-22 of ADA Title I Remedies for Psychiatric Disabilities 3. Wrongful Discharge Against Public Policy .................................. 1030 4. Front Pay as a Remedy ................................................................. 1033 D. Toward the Goal of Encouraging Mediation ...................................... 1034 VI. CONCLUSION .............................................................................................. 1034 I. INTRODUCTION John has Asperger’s Syndrome.1 None of his coworkers were aware of it, even though a few may have suspected it; what others around him saw was a model employee, a highly competent, highly motivated worker who kept calm under the most trying of circumstances.2 He sometimes seemed withdrawn and often found excuses to avoid office parties, but, by and large, his coworkers assumed that he was simply a workaholic.3 But in December 2012, everything changed for John. On December 14, a lone gunman named Adam Lanza killed twenty-six people at an elementary school in Connecticut before turning his gun on himself.4 Within hours, as more information on Lanza was uncovered, several press reports focused on speculation that he might have Asperger’s Syndrome.5 A guest on CNN’s Piers 1. Asperger’s Syndrome is an autistic spectrum disorder characterized by “severe and sustained impairment in social interaction . and the development of restricted, repetitive patterns of behavior, interests, and activities . .” AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 80 (4th ed., text rev. 2000) [hereinafter DSM-IV-TR]. It differs from the diagnosis of autism primarily in that it does not feature a delay in early childhood development of language and cognitive skills. Id. Because the distinction between Asperger’s Syndrome and autism is unclear and has no practical value to clinicians, the DSM-V will merge Asperger’s Syndrome and autism into a single diagnosis called “autism spectrum disorder.” Jon Hamilton, Asperger’s Officially Placed Inside Autism Spectrum, NPR (Feb. 10, 2010), http://www.npr.org/ templates/story/story.php?storyId=123527833 (on file with the McGeorge Law Review). 2. Although John is fictitious, this is a fairly common profile of people with psychiatric disabilities: many go to great lengths to keep peers from becoming aware of their diagnoses. See Susan G. Goldberg et al., The Disclosure Conundrum: How People with Psychiatric Disabilities Navigate Employment, 11 PSYCHOL. PUB. POL’Y & L. 463, 479 (2005) (describing challenges to which people with psychiatric disabilities are willing to face to avoid disclosing their disabilities). People with Asperger’s Syndrome are often able to mask the effects of the disorder: “for example, the individual may learn to apply explicit verbal rules or routines in certain stressful situations. [A]s adults, many individuals are capable of gainful employment and personal self- sufficiency.” DSM-IV-TR, supra note 1, at 82. 3. This, too, is fairly common for people with psychiatric disabilities: one recent study of high- functioning people with schizophrenia found that working is a common coping mechanism. Elyn Saks, Successful and Schizophrenic, N.Y. TIMES (Jan. 25, 2013), http://www.nytimes.com/2013/01/27/opinion/ sunday/schizophrenic-not-stupid.html (on file with the McGeorge Law Review). One respondent in a study “works on the weekends too because of ‘the distraction factor.’ In other words, by engaging in work, the crazy stuff often recedes to the sidelines.” Id. 4. Tracy Connor & Pete Williams, Newtown Gunman Forced His Way into School, Police Say, NBC NEWS (Dec. 15, 2012), http://usnews.nbcnews.com/_news/2012/12/15/15926718-newtown-gunman-forced-his- way-into-school-police-say (on file with the McGeorge Law Review). 5.E.g., David M. Halbfinger, A Gunman, Recalled as Intelligent and Shy, Who Left Few Footprints in Life, N.Y. TIMES (Dec. 14, 2012), http://www.nytimes.com/2012/12/15/nyregion/adam-lanza-an-enigma-who- is-now-identified-as-a-mass-killer.html (reporting that several of Lanza’s high-school classmates “had been 990 _06_HSIEH_FINAL.DOC (DO NOT DELETE) 1/31/2014 9:42 AM McGeorge Law Review / Vol.44 Morgan Tonight suggested that people with autism spectrum disorders6 might be more prone to violence because they lacked a “capacity for empathy.”7 Even family members of people with autism spectrum disorders expressed fear that their children might become mass murderers.8 Although mental health professionals and advocates for people with autism spectrum disorders quickly pushed back against negative media portrayals of Asperger’s Syndrome,9 the damage had been done where John was concerned. Later that week, one of John’s coworkers, who had viewed Piers Morgan Tonight after the Connecticut mass shooting, began to suspect that John might have an autism spectrum disorder and told a supervisor that John might fit Adam Lanza’s profile. John was fired the next day and was told that he was being removed from the workplace because he was a danger to himself and everyone around him. John was well-informed enough to file a charge of disability discrimination with the Equal Employment Opportunities Commission (EEOC). The EEOC investigated his charge and found that there were indeed facts suggesting that he had been fired, at least in part, because of his mental illness. His employer refused to negotiate a settlement, however, and lacking the resources to file a lawsuit, the EEOC instead issued John a right-to-sue notice. John retained