In September, the Equal Employment Opportunity Commission (EEOC) released their Strategic Enforcement Plan (SEP) for fiscal years 2024-2028, outlining their enforcement goals and focus for the new year and beyond. As part of the SEP, the EEOC announced an increased focus on protecting specific categories of workers, including those with mental health related disabilities.

Why Does it Matter?

In 2019, disability-related discrimination overtook race-related discrimination as the most commonly filed type of EEOC discrimination charge. Since then, the relative percentage of disability-related discrimination charges has continued to grow, marking a need for increased EEOC focus on disability discrimination issues. Additionally, the COVID-19 pandemic highlighted a huge shift in mental health trends: In March 2022, the World Health Organization (WHO) reported a 25% increase in global prevalence of depression and anxiety. As prevalence has increased, societal awareness of mental health related disabilities has also increased, especially for young adults who have recently entered or are getting ready to enter the workforce.

How Does This Affect Employers?

While the EEOC has not yet announced any specific steps it will take to combat mental health related disability discrimination, employers should take note of the increased focus. Mental health related disabilities include, but are not limited to, posttraumatic stress disorder (PTSD), depression, anxiety, attention deficit/hyperactivity disorder (ADHD), drug addiction, schizophrenia, and schizoaffective disorders. These disabilities may be harder for employers to identify than physical disabilities, and may require more creativity during the interactive process to determine appropriate reasonable accommodations.

Additionally, employers should take care to fully engage in the interactive process with employees. In August 2023, a Maryland company entered into an $85,000 settlement with the EEOC after firing an employee upon discovering she had schizoaffective disorder. Each employee should be individually considered for a reasonable accommodation. Additionally, the EEOC has stressed that mental health related disabilities should not be discounted because of mitigation measures, such as therapy or medication. Employers are also prohibited from asking about disabilities (including mental health related disabilities) during the job application process, prior to a conditional offer, and absent a voluntary disclosure. To prepare for any changes in the EEOC’s enforcement on mental health related disability protections, employers should review their EEO and reasonable accommodation policies to identify areas of improvement.

If you have questions or concerns about your EEO policies or procedures, please do not hesitate to reach out to any member of  Gardner Skelton’s employment team.