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Handling PTSD with Care

Recent case decisions show that employers must be prepared to handle a variety of issues related to post-traumatic stress disorder, especially if they want to avoid hefty damages.

Monday, August 28, 2017
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Because discrimination may cause or worsen post-traumatic stress disorder in affected workers, agencies must take prompt and appropriate corrective action to minimize potential damages. Agencies must also be mindful of their duty to provide reasonable accommodation, as PTSD commonly arises in EEO claims alleging denial or failure to provide a reasonable accommodation.

Less commonly, employees raise PTSD as a defense for misconduct, but agencies do not have to excuse misconduct because a person has a disability, although the condition may be a mitigating factor.

Here are some recent cases showing how PTSD may affect the outcome of a case:

Damages

When discrimination or harassment causes the complainant's PTSD, the damages will depend on how quickly the agency rectified the relevant conduct and how long the complainant suffered. Even with a finding of discrimination, agencies can minimize potential damages by showing that a complainant's PTSD was a preexisting condition, but this argument will likely have less weight if the discrimination aggravates the PTSD.

* In Demarcus I. v. Department of Defense, Defense Logistics Agency, 117 LRP 19304 (EEOC OFO 2017), the Equal Employment Opportunity Commission found the agency discriminated against the complainant by harassing him based on his disability (confined to a wheelchair) and awarded him $100,000 in nonpecuniary damages, past medical expenses, five years of future medical expenses, restoration of leave, and $5,500 in attorney's fees. The harassment caused him to suffer "extreme emotional turmoil" in the workplace for more than four years, marital and familial strain, severe anxiety and stress, extreme humiliation and embarrassment, feelings of dread and isolation, insomnia, and other PTSD symptoms necessitating weekly therapy sessions and medication. The EEOC also found the evidence established a nexus between the discriminatory conduct and the medical bills that showed the complainant suffered from ongoing psychological harm and required treatment.
* In Alene S. v. U.S. Postal Service, 116 LRP 15307 (EEOC OFO 2016), the EEOC explained that its $200,000 award recognized the complainant's preexisting PTSD, but justified the large award because the hostile work environment and harassment seriously aggravated the symptoms, caused severe additional psychological harm, and prevented her from returning to the post office to work. Even though management was aware of her medical need to not be exposed to a threatening or hostile environment, her supervisor yelled and berated her, issued a letter of warning, and violated the terms of a prior settlement agreement outlining her medical restrictions.

Reasonable accommodation for PTSD

Generally, agencies must provide a reasonable accommodation for an employee's PTSD unless doing so poses an undue hardship. The duty to provide reasonable accommodation is not just so that the employee can perform the essential functions of the job, but also to allow the employee to enjoy equal benefits and privileges of employment.

* In Clark v. School Dist. Five of Lexington and Richland Counties, 117 LRP 11570 (D. S.C. 2017), a teacher with post-traumatic stress disorder and panic disorder requested to bring her dog to school as a reasonable accommodation because she trained the chihuahua to place "deep pressure" on her chest to avert panic attacks. The employer denied the request because the dog did not qualify as a "service dog" and students might be fearful or allergic. The employer proposed instead that she use a weighted vest to alleviate the PTSD-related panic attacks, but her psychiatrist said a weighted vest would not be effective and strongly recommended the service dog. The teacher continued to work as she could perform her duties, but asserted she was in extreme jeopardy without her dog, especially when monitoring students in large crowds. The court denied the employer's motion for summary judgement, allowing the case to move forward to determine whether the employer denial of her request violated her right to reasonable accommodation to enjoy equal benefits and privileges of employment.
* However, the agency must know about the PTSD to be liable for failure to accommodate, especially when the symptoms do not make the condition obvious, as seen in Trey M. v. Department of Transportation, Federal Aviation Administration, 116 LRP 43959 (EEOC OFO 2016). In this case, the employee alleged denial of reasonable accommodation when the agency reduced his full-time telework to two days a week. The EEOC found that the agency did not subject him to discrimination because the employee did not establish that he was an individual with a disability entitled to a reasonable accommodation. Noting that his PTSD was not obvious, the EEOC explained that he did not provide sufficient medical documentation supporting his full-time telework request or specific answers to questions about his impairment. The EEOC found the agency first accommodated the employee due to realignment within the office, not because of his disability, but reduced the telework to two days per week when the supervisor saw that the employee was unable to perform his duties while on full-time telework.

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PTSD as a defense for misconduct

Even though employees may raise PTSD as a defense for misconduct charges, the claims must be credible and consistent to be successful, as seen in Jason G. Peters v. Department of the Interior, 117 LRP 785 (MSPB 2017). This case involved the removal of an employee for lack of candor and conduct unbecoming for not being truthful about his whereabouts during an investigation into a wildfire causing $11 million in damage. The employee claimed that he could not remember the details at the time because he was suffering from PTSD and alleged disability discrimination.

However, the Merit Systems Protection Board upheld the AJ's determination that the agency's charges and removal penalty were proper, especially considering the inconsistencies in his story. The AJ found the employee provided a significantly detailed official report concerning his activities on the date the wildfire ignited indicating "he had excellent recall of the events of that day." However, while claiming he could not recall his whereabouts during the misconduct investigation, the employee told the Office of Professional Responsibility a different story, saying that he did not mention his drive into the burn area because he did not deem that information relevant, not that he could not recall it.

As seen from these cases, even though PTSD may arise in a variety of forums, the agency's best defense is to proactively ensure managers know how to respond appropriately to harassment and prevent further incidents, engage in the interactive process to provide reasonable accommodations for PTSD when possible, and establish a solid foundation when pursuing misconduct.

Anjali Patel is cyberFEDS®' legal editor in Washington. Send questions or comments about this story to hreletters@lrp.com.

 

 

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