28 year-old Andreas Lubitz had a “deliberate desire to destroy the plane. He … refused to open the door of the cockpit to the pilot and deliberately began the descent of the plane.” Lubitz, according to the prosecutor who uttered those words, is the sole cause of the Lufthansa disaster that is dominating today’s news.
A mother of Lubitz’ schoolmate said today that Lubitz had told her daughter he had taken a break from his pilot training because he was suffering from depression. “Apparently he had a burnout, he was in depression,” the woman, whom the paper did not name. She said her daughter had seen him again just before Christmas and that he had appeared normal. She added he was a “lovely boy.” “He had a good family background,” she told the paper.
Did Lufthansa know that its young pilot had mental problems? If not, should it have known? And what can Lufthansa, or any employer, do when it suspects or knows an employee has mental problems?
This HR Law Insider edition discusses (1) evaluating job applicants thru personality tests and (2) how to handle job applicants and employees with depression and other major mental issues.
PERSONALITY TESTING OF JOB APPLICANTS IS WIDESPREAD AND COMMON — AND UNDER EEOC INVESTIGATION
According to a recent Wall Street Journal article, workers who apply online at RadioShack Corp. must say if they agree with the statement: “Over the course of the day, I can experience many mood changes.” Lowe’s Cos. asks job seekers if they “believe that others have good intentions.” A test at McDonald’s Corp. said: “If something very bad happens, it takes some time before I feel happy again.”
According to the Journal, “the use of online personality tests by employers has surged in the past decade as they try to streamline the hiring process, especially for customer-service jobs. Such tests are used to assess the personality, skills, cognitive abilities and other traits of 60% to 70% of prospective workers in the U.S., up from 30% to 40% about five years ago, estimates Josh Bersin, principal of consulting firm Bersin by Deloitte, a unit of auditor Deloitte LLP.”
However, the authors note that the Equal Employment Opportunity commission is investigating whether personality tests discriminate against people with disabilities. As part of the investigation, officials are trying to determine if the tests shut out people suffering from mental illnesses such as depression or bipolar disorder, even if they have the right skills for the job, according to EEOC documents.
EEOC officials won’t comment on the investigation, according to the Journal, who quotes Christopher Kuczynski, EEOC acting associate legal counsel on the topic: “if a person’s results are affected by the fact that they have an impairment and the results are used to exclude the person from a job, the employer needs to defend their use of the test even if the test was lawful and administered correctly,” says Christopher Kuczynski, EEOC acting associate legal counsel.
Businesses can continue to conduct widespread personality testing. However, companies should closely monitor any developments in the area of personality testing. Certain types of testing could be rendered illegal overnight by one court ruling.
IS IT LAWFUL TO TEST JOB APPLICANTS OR EMPLOYEES FOR DEPRESSION AND OTHER MAJOR MENTAL DISORDERS?
Major depressive disorder is the leading cause of disability among adults 15 to 44 years old, affecting nearly 7 percent of adults in the U.S. each year, according to the National Institute of Mental Health. Depression causes an estimated $23 billion in lost productivity in the U.S. each year.
The EEOC provides the following guidance for employers dealing with psychiatric disabilities, including depression:
May an employer ask questions on a job application about history of
treatment of mental illness, hospitalization, or the existence of mental
or emotional illness or psychiatric disability?
No. An employer may not ask questions that are likely to elicit
information about a disability before making an offer of employment.
Questions on a job application about psychiatric disability or mental or
emotional illness or about treatment are likely to elicit information
about a psychiatric disability and therefore are prohibited before an
offer of employment is made.
When may an employer lawfully ask an individual about a psychiatric
disability under the ADA?
An employer may ask for disability-related information, including
information about psychiatric disability, only in the following limited
Application Stage: Employers are prohibited from asking
disability-related questions before making an offer of employment. An
exception, however, is if an applicant asks for reasonable accommodation
for the hiring process. If the need for this accommodation is not
obvious, an employer may ask an applicant for reasonable documentation
about his/her disability. The employer may require the applicant to
provide documentation from an appropriate professional concerning his/her
disability and functional limitations. A variety of health professionals
may provide such documentation regarding psychiatric disabilities
including primary health care professionals, psychiatrists,
psychologists, psychiatric nurses, and licensed mental health
professionals such as licensed clinical social workers and licensed
An employer should make clear to the applicant why it is requesting such
information, i.e., to verify the existence of a disability and the need
for an accommodation. Furthermore, the employer may request only
information necessary to accomplish these limited purposes.
Example A: An applicant for a secretarial job asks to take a
typing test in a quiet location rather than in a busy reception area
“because of a medical condition.” The employer may make
disability-related inquiries at this point because the applicant’s need
for reasonable accommodation under the ADA is not obvious based on the
statement that an accommodation is needed “because of a medical
condition.” Specifically, the employer may ask the applicant to provide
documentation showing that she has an impairment that substantially limits
a major life activity and that she needs to take the typing test in a
quiet location because of disability-related functional limitations.
Although an employer may not ask an applicant if s/he will need reasonable
accommodation for the job, there is an exception if the employer could
reasonably believe, before making a job offer, that the applicant will
need accommodation to perform the functions of the job. For an individual
with a non-visible disability, this may occur if the individual
voluntarily discloses his/her disability or if s/he voluntarily tells the
employer that s/he needs reasonable accommodation to perform the job. The employer may then ask certain limited questions, specifically:
- whether the applicant needs reasonable accommodation; and
- what type of reasonable accommodation would be needed to
perform the functions of the job.
Post-offer of employment: After an employer extends an offer of employment, the employer may require a medical examination (including a psychiatric examination) or ask questions related to disability (including questions about psychiatric disability) if the employer subjects all entering employees in the same job category to the same inquiries or examinations regardless of disability. The inquiries and examinations do not need to be related to the job.
During employment: During employment, employers may test when a disability-related inquiry or medical examination of an employee is “job-related and consistent with business necessity.” This requirement may be met when an employer has a reasonable belief, based on objective evidence, that: (1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition. Thus, for example, inquiries or medical examinations are permitted if they follow-up on a request for reasonable accommodation when the need for accommodation is not obvious, or if they address reasonable concerns about whether an individual is fit to perform essential functions of his/her position. In addition, inquiries or examinations are permitted if they are required by another Federal law or regulation. In these situations, the inquiries or examinations must not exceed the scope of the specific medical condition and its effect on the employee’s ability, with
or without reasonable accommodation, to perform essential job functions or
to work without posing a direct threat.
Example B: A delivery person does not learn the route he is
required to take when he makes deliveries in a particular neighborhood.
He often does not deliver items at all or delivers them to the wrong
address. He is not adequately performing his essential function of making
deliveries. There is no indication, however, that his failure to learn
his route is related in any way to a medical condition. Because the
employer does not have a reasonable belief, based on objective evidence,
that this individual’s ability to perform his essential job function is
impaired by a medical condition, a medical examination (including a
psychiatric examination) or disability-related inquiries would not be
job-related and consistent with business necessity.
Example C: A limousine service knows that one of its best
drivers has bipolar disorder and had a manic episode last year, which
started when he was driving a group of diplomats to around-the-clock
meetings. During the manic episode, the chauffeur engaged in behavior
that posed a direct threat to himself and others (he repeatedly drove a
company limousine in a reckless manner). After a short leave of absence,
he returned to work and to his usual high level of performance. The
limousine service now wants to assign him to drive several business
executives who may begin around-the-clock labor negotiations during the
next several weeks. The employer is concerned, however, that this will
trigger another manic episode and that, as a result, the employee will
drive recklessly and pose a significant risk of substantial harm to
himself and others. There is no indication that the employee’s condition
has changed in the last year, or that his manic episode last year was not
precipitated by the assignment to drive to around-the-clock meetings. The
employer may make disability-related inquiries, or require a medical
examination, because it has a reasonable belief, based on objective
evidence, that the employee will pose a direct threat to himself or others
due to a medical condition.
Example D: An employee with depression seeks to return to
work after a leave of absence during which she was hospitalized and her
medication was adjusted. Her employer may request a fitness-for-duty
examination because it has a reasonable belief, based on the employee’s
hospitalization and medication adjustment, that her ability to perform
essential job functions may continue to be impaired by a medical
condition. This examination, however, must be limited to the effect of
her depression on her ability, with or without reasonable accommodation,
to perform essential job functions. Inquiries about her entire
psychiatric history or about the details of her therapy sessions would,
for example, exceed this limited scope.
Who was Andreas Lubitz? The coming hours and days will reveal many truths. These truths will, in turn, lead to much finger pointing and two critical questions: (1) how could this disaster have been avoided and (2) how can future such disasters be avoided?
Most every business will encounter employees with mental disorders. Psychiatric problems are — sadly and sometimes tragically — all too frequent. It is hoped that this article will assist employers in navigating the oftentimes very rough seas associated with mental health problems.