Worker with Bipolar Disorder to Receive $91,000 in Disability Discrimination Case Settled by EEOC
Employer’s Motion to Dismiss Lawsuit Rejected by Court in Rare EEOC Litigation on Issue of Psychiatric Disability

DALLAS – The U.S. Equal Employment Opportunity Commission (EEOC) announced today (2003) the settlement of a disability discrimination lawsuit against Lincoln, Nebraska-based Voss Electric Company (Voss) for $91,250 on behalf of a former worker with bipolar disorder. Voss is a distributor of commercial lighting products, with 12 branches and 16 sales locations located throughout the central United States.

In its lawsuit, case number CIV-02-92-C in U.S. District Court for the Western District of Oklahoma in Oklahoma City, the EEOC charged Voss with violating the Americans with Disabilities Act of 1990 (ADA) by terminating a long-time employee of its Oklahoma City facility who needed in-patient care due to bipolar disorder, a psychiatric disability. Rather than allow the employee the additional time off recommended by his physicians, Voss fired him by taping a termination letter to the front door of his home, the EEOC said in the suit.

Voss had filed a motion requesting the Court to dismiss the EEOC’s lawsuit, but the Court ordered that the case be tried. On February 28, 2003, the Court, in a detailed 17-page opinion, ruled against Voss on all arguments raised against the EEOC, and held that the EEOC’s claims should be submitted to a jury for trial.

The Court ruled that the EEOC had submitted evidence that the former employee’s mental illness, at the time of his termination, severely impaired a number of his major life activities, including thinking, interacting with others, communicating with others, and the ability to take care of himself. Voss then argued that, at the time of his termination, the former employee was unable to perform the essential functions of his job.

The Court, however, ruled that a jury should determine whether the employee was entitled to a reasonable medical leave to enable him to recover sufficiently to return to his former position. After the Court’s ruling, the parties reached an agreement embodied in a Consent Decree approved and signed by the Court.

“For years I did a good job for this company, but soon after I became ill they discarded me as I was trying to get well, which just compounded my struggles,” the fired employee said. “I am thankful to the EEOC for standing up for me and obtaining a fair settlement.”

Robert A. Canino, Regional Attorney of the EEOC’s Dallas District Office, said, “We should credit the sound legal analysis by the Court in this case. This is a difficult area of law to enforce due to interpretational issues challenging the courts, but the EEOC will not shrink from the task of educating the public about the ADA through the pursuit of civil actions when necessary. Decisions like this one which allow a jury to apply the law to specific facts can give victims of disability discrimination confidence that their voice will be heard.”

The EEOC filed suit after exhausting its conciliation efforts to reach a voluntary pre-litigation settlement. The Consent Decree settling the suit provides monetary and prospective non-monetary relief, including training of all Voss employees, officers, managers, and supervisors on the requirements of the ADA, and the posting of a notice informing employees of their rights under federal law at all of its locations.

“Mentally disabled employees are protected under the ADA just as those who are physically disabled,” said Sidney B. Chesnin, lead trial counsel for the EEOC. “Disabled employees are entitled to consideration of a reasonable accommodation for their disability. By simply giving a worker a reasonable period of leave to adjust to a medical condition related to a disability, the employer can often pave the way for the return of a productive employee.”

In addition to enforcing Title I of the ADA, which prohibits employment discrimination against people with disabilities in the private sector and state and local governments, the EEOC enforces Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex (including sexual harassment or pregnancy) or national origin and protects employees who complain about such offenses from retaliation; the Age Discrimination in Employment Act of 1967, which protects workers age 40 and older from discrimination based on age; the Equal Pay Act of 1963, which prohibits gender-based wage discrimination; the Rehabilitation Act of 1973, which prohibits employment discrimination against people with disabilities in the federal sector; and sections of the Civil Rights Act of 1991. Further information about the Commission is available on the agency’s web site at www.eeoc.gov.

US Court ruling “Bipolar Disorder is physical disorder and not a mental illness” :

Implications for discrimination by insurers against mental health problem

(Article from Equilibrium website) http://www.bipolar-foundation.org/index.aspx?o=1354

This case revolves around the increasing and incontrovertible evidence from various areas of research that bipolar disorder is not ‘merely’ a ‘psychological disorder
It has reluctantly been accepted by individuals suffering from bipolar disorder (manic-depressive illness) and other mental health disorders that they face problems with regard to insurance of all types. Life insurance, personal income insurance and motor insurance are all affected by history of pre-existing ill health of any type but some policies specifically exclude cover for the de-novo development of ‘mental illness’ during the term of the policy, treating it differently from ‘physical disorders”, as well as imposing larger premiums or imposing other limitations on people with known mental health problems.

A court ruling on this issue in the US which is of considerable significance in this area has not been picked up at all by the popular media or the professional literature either within or outside of the US. Although not of direct legal impact outside of the US, we believe this case raises important issues about the way both employers and insurers deal with claims arising from the development of mental health problems. It also raises more general issues regarding differential stigma of ‘mental’ versus ‘physical’ ill health. This case revolves around the increasing and incontrovertible evidence from various areas of research that bipolar disorder is not ‘merely’ a ‘psychological disorder’.

The Case: Fitts v. Fannie Mae[1]
The ruling by the United States District Court for the District of Columbia involves an employee of a major mortgage company who developed bipolar disorder and whose employee disability insurance provider stopped paying disability benefits after 24 months on the grounds of bipolar disorder being a ‘mental illness’. The policy provided cover until the age of 65 for physical disability. Ms. Fitts had worked for the company for 13 years before she was first diagnosed with bipolar disorder in 1995. The employee- Ms. Jane Fitts, successfully brought a case against both the employer and the insurer arguing that bipolar disorder did not clearly fall in the category “mental, emotional or nervous diseases or disorders of any type”. The court awarded “prejudgment interest on all sums due her and the costs of this action “.

Three pieces of evidence were presented to back this argument, and two expert witnesses, including Miss. Fitts’ own psychiatrist, provided evidence:
1. Ms. Fitts’ father and brother showed symptoms of the disorder and so a hereditary predisposition coupled with having the disorder showed the genetic nature of the disorder, which must therefore have a physical basis.
2. Brain scans of Ms. Fitts showed excessive age-controlled atrophy of the left parietal lobe and abnormal wave activity on the left side of the brain.
3. Ms. Fitts suffered from physical symptoms such as headaches, chest pains, and insomnia that were ascribed to bipolar disorder.

Prof. Frederick T. Goodwin from the George Washington School of Medicine stated: “bipolar disorder is a physical illness because it is a neurobiological disorder that affects the physical and chemical structure of the brain”. He supported the claims listed above, also making the point that susceptibility to pharmacological therapy suggest a physical cause. Ms.Fitts’ psychiatrist maintained that while the clinical features of the disorder are mainly behavioural and emotional, they are due to physical changes in the brain.

Ms.Fitts’ psychiatrist maintained that while the clinical features of the disorder are mainly behavioural and emotional, they are due to physical changes in the brain.
The defence team argued that bipolar disorder clearly falls within the “mental illness” category because previous judgments had ruled it to be such on the manifestation of the symptoms and because it appears in DSM-IV.
This case was an appeal on a previous judgement against Ms. Fitts’s claim. The first filing of the suit focussed on violation of the Americans with Disabilities Act (ADA) and the District of Columbia Human Rights Act (DCHRA), and breached certain contractual and common law duties. This court dismissed all of Ms. Fitts’ claims except her Employment Retirement Income Security Act (ERISA) claim. ERISA requires all policies to be written in unambiguous language and given that bipolar disorder did not clearly fall within the definition of mental illness in the insurance policy, the court was bound by the doctrine of contra preferentem, which has been applied as federal common law to ERISA. The doctrine states that in ambiguous definitions the ruling should be against the drafter of the contract.

Other cases
Another case ongoing in North America illustrates the unfortunate consequences of stigmatisation of bipolar disorder leading to an understandable reluctance by those affected to openly disclose to employers a history of pre-existing mental illness. The Canadian insurers of the television series The Dead Zone filed a suit against star Anthony Michael Hall to recoup more than $612,000 for failure to disclose he suffered from bipolar disorder, AP reports. The suit claimed production of the series, shot in Vancouver, was halted from May to August 2001 when Hall was treated for “bipolar affective disorder depression with psychotic features” for which the production company submitted a claim and received money. The case is waiting to be heard at The Supreme Court of British Columbia. (Source: Vancouver Sun)

In a case in New York, which does not have parity legislation, a court ruled that a disability insurance policy is not discriminatory because it provided only 24 months of cover for disability due to unipolar depression, rather than cover to the age of 65 years as it would have done for disability due to physical injury. The appellant, a Charlene Polon, continued to suffer with unipolar depression and has not been able to claim disability allowance under her policy from 1996. The case was made under the Insurance Law, and the court ruled that the law only protected from discrimination “with regard to her eligibility for and access to insurance” and not within the terms of the policy[2]. This case demonstrates that many instances of discrimination continue to occur and that even the covering statutes are unclear

For the rest of the article, follow this link:http://www.bipolar-foundation.org/index.aspx?o=1354