Behavioral health/workers’ comp/disability management
Employee wins groundbreaking claim for mental disability
Jury awards more than $225,000
A federal jury in New Jersey awarded more than $225,000 earlier this year to a man who was ridiculed at work because of his neurological impairments. The jury in the case, Lanni v. NJDEP (New Jersey Department of Environmental Protection), 96-3116 (AET), found violations of both the Americans with Disabilities Act (ADA) and New Jersey’s Law Against Discrimination.
"Although the ADA does not specifically prohibit workplace harassment of the disabled, federal law does not explicitly ban sexual harassment, either. Courts, however, have readily decided that severe and pervasive sexual harassment is a form of sex discrimination. In a similar fashion, employers are likely to be held responsible for harassment directed at a worker because of a disability," says K. Tia Burke, JD, an employment law attorney with Christie, Parabue, Mortensen and Young in Philadelphia.
It’s true that discrimination laws don’t prevent harassment. "However, case law is central in the disability context, and this type of harassment certainly could be actionable if it meets the standard of severe and pervasive harassment," notes Carol Miaskoff, JD, assistant legal counsel for coordination in the Office of Legal Counsel for the Equal Employ ment Opportunity Commission in Washington, DC. "One incident is not enough. However, an established pattern of harassment is likely to be actionable."
Every case manager working in the mental disability arena should know this case law, says Mark Raderstorf, CCM, CRC, LP, LFMT, president of Behavioral Management in Minneapolis. "Case managers can bring cases like this to the attention of employers in order to educate them about the importance of treating employees with mental disabilities in a fair and humane way."
Burke agrees, with one caveat: "Case managers must never share confidential employee information with supervisors or co-workers without the employee’s permission," she says. "Written documentation is the best way to demonstrate you have an employee’s permission to share personal information with others. It should be clear both whether you have permission to disseminate information and to whom you have permission to disseminate that information."
Lanni v. NJDEP
Phillip Lanni of Trenton, NJ, alleged that he was constantly ridiculed for his neurological impairments, which include dyslexia, during his five-year tenure as a radio dispatcher for the state Department of Environmental Protection’s division of fish, game, and wildlife. Lanni claimed he was the target of jokes about his dyslexia and was ridiculed because of spelling errors, a common characteristic of his disability. On the job, Lanni also mixed up words, spoke slowly, winced his eyes when he spoke, and sometimes asked for words to be repeated.
He alleged supervisors called him "moron" and "stupid." When he complained of the harassment, Lanni claimed he was told to "get used to the locker room atmosphere." This led him to take a leave of absence from an environment he considered hostile. He filed claim in 1996. At that time, his supervisors were "appropriately disciplined with mandatory counseling for their behavior," according to a spokesperson for the New Jersey Attorney General’s office. The jury found the state and two supervisors liable. It awarded Lanni $70,930 in back pay and $156,100 in non-economic damages. The jury did not award punitive damages.
"It’s very difficult to explain to a judge and jury what it means to have neurological impairments. In addition to his learning disabilities, Lanni suffered from other neurological impairments, including an awkward gait, caused by an injury he suffered as a child and complications his mother experienced during her pregnancy," says Lanni’s attorney, Linda Wong, JD, a partner with Wong, Tsai, & Fleming in Edison, NJ. "His co-workers stereotyped him as stupid and emotionally unstable, and that’s where the problems started to come in."
"The standard for an actionable harassment case is severe and pervasive’ behavior. There are no black and white rules here," notes Miaskoff. "However, analytically, the standard means that behavior is actionable as soon as it changes the terms or conditions of employment for an individual. In other words, when this individual comes to work, they have a job that has different terms and conditions than someone else in the workplace with the same job."
"People can relate to blindness," Wong says. "They can relate to someone being in a wheel chair. However, when it comes to neurological impairments, we have to begin the case by proving to the jury and judge that the mentally handicapped deserve protection under the law."
"This case demonstrates the value a case manager can bring to an employer or policy holder," says Raderstorf. "If appropriate steps had been taken to educate staff about the nature of Lanni’s disabilities, the pattern of harassment may have ended before a claim was filed."
Help workers understand
Lanni did make personal attempts to educate his co-workers about his disability, notes Wong. "He placed articles about dyslexia in his co-workers mail boxes, but they were not taken seriously."
Raderstorf currently has a client with a mild to moderate brain injury. "He walks fine. He talks fine. However, he does have cognitive problems, and his co-workers are making fun of him," he says. "Case managers who have clients with hidden disabilities must help employers, supervisors, and co-workers understand that the employ ee is not lazy, insubordinate, or lacking in motivation. There is a false perception that individuals with neurological impairments or psychiatric disabilities are normal’ but just not willing to do their jobs."
The client’s supervisor has sent memos reviewing the client’s job performance in a very "condescending manner which could almost be considered harassing." Raderstorf has set up several meetings with his client’s supervisor to help him find more appropriate ways to comment on the client’s work performance.
"For the employee with cognitive impairments, learning disabilities, or other mental disorders, supervisor feedback must be done in an educational way. The supervisor is obviously frustrated by my client’s job performance. I’m trying to help him find more appropriate ways to express his concerns," he says.
Provide sensitivity training
Raderstorf suggests supervisors share this advice with case managers:
• Tone down your feedback to employees with mental disabilities.
• Always use an instructional rather than an accusatory tone.
• Never demean the employee verbally or in written job performance evaluations.
Wong says case managers also should encourage employers to provide sensitivity training about mental and physical disabilities in the workplace. "Our office provides sensitivity training on sexual harassment. I think it’s appropriate to talk about discrimination against disabilities, as well."
In addition, employers should have a clearly established complaint mechanism, she says. "Supervisors should understand the complaint mechanism and know the employer’s discrimination policies. Unfortunately, in the Lanni case, supervisors participated in the discriminatory actions."
Raderstorf plans to bring an article about the Lanni case to his next meeting with his client’s supervisor. "I hope it will help finally make it clear to him this is a potential problem."
[Editor’s note: For other case law relating to discrimination against the mentally disabled, see Levinson v. Prentice Hall Inc., 88-5637 (3rd Circuit 1989) and Lehman v. Toys R Us, 132 NJ 589 (1993). For more on the ADA and mental disability, see Case Management Advisor, February 1999, pp. 29-31.]