MENTAL ADJUSTMENT

By ELIZABETH GLEICK

Irene Wozny, 40, is an attorney for the Maryland Department of Assessments and Taxation in Baltimore. She is fortunate enough to have found work she enjoys, but every so often she gets derailed by chronic major depression, a mental illness that can cause a loss of self-esteem, an inability to concentrate and a negative outlook on life. Wozny has been troubled by the disease for as long as she can remember. Last year she learned of an experimental program for depression run by the National Institute of Mental Health, but in order to participate, she needed to arrive at work an hour or two late every day for a month. She and her supervisor struck a deal: she would make up the lost time at the end of each day. "It's the first time I've had a boss who is understanding about this kind of thing," Wozny says.

The path to such enlightenment, though, is never easy--and most employers need some clear road markers along the way. Although the Americans with Disabilities Act of 1990 specifically prohibits any employer with 15 or more workers from discriminating against employees with mental or physical impairments, many managers have been quicker to install wheelchair ramps than to offer the kind of flexibility Wozny's boss did. That is why in March the Equal Employment Opportunity Commission issued guidelines to help employers navigate the fuzzy, sometimes unquantifiable arena of mental illness in the workplace. The guidelines, addressing recent case law, explain how employers should attempt to accommodate mental disabilities that don't directly compromise a worker's qualifications for the job.

Given that 1 in 10 Americans is likely to suffer from a diagnosable mental illness during the year, the stakes for employers are potentially enormous. Although the guidelines do not have any legal force under the law, refusing to follow them can be risky. The courts often look to the eeoc's analysis when ruling in discrimination lawsuits. So far, nearly 13% of all eeoc complaints under the disabilities law have involved mental illness, though some experts feel this number is leveling off. In a TIME/CNN poll last week, 62% said they believe employers should accommodate mental impairments.

But what worries employers, especially small-business owners without human-resources departments or staff attorneys, is that one worker's run-of-the-mill bad attitude may be another's debilitating schizophrenia. "This is fraught with undesirable pitfalls," says Don Livingston, a Washington lawyer who is former general counsel at the EEOC. "It calls on employers to make enigmatic distinctions between personality traits and personality disorders. Mental-health professionals often find this an impossible task, and now it's being put before factory supervisors." Henry Saveth, an attorney at Foster Higgins, which represents leading corporations in employment disputes, is concerned that traits such as chronic lateness or poor judgment may be linked to psychological impairment. Says Saveth: "Employers are going to face the issue: How much special treatment do they have to give to their poor performers?" This question, he says, "is going to lead to endless litigation."

That particular anxiety, though, may be overblown--and heightened by the scare tactics of some attorneys advertising expensive disabilities-law training seminars for business owners. The wave of publicity surrounding the guidelines may certainly give people new ideas about suing, and there will always be the occasional surprising decision. Two years ago, for instance, a severely depressed attorney who worked for the San Francisco utility Pacific Gas & Electric asked for shorter work weeks and a transfer to a more understanding supervisor. According to the employee's lawyer, he filed suit when the company refused, and talks broke down over the plaintiff's request for positive evaluations should the company rehire him. A court-appointed arbitrator ordered the utility to pay $1.1 million to the plaintiff. (Federal law limits awards to $50,000 for an employee in a company of 100 or fewer and $300,000 for a company of 500 or more, as well as money for back pay and legal fees.) "It was a wacky decision," says PG&E lawyer Kenneth Yang, yet he acknowledges that the law has not caused the company any "undue hardship."

"The hype around the guidelines reminds me of the hype when the law was passed," says Lia Shigemura, director of Affirmative Action, Equal Employment and Diversity at PG&E. "Companies feared that busloads of disabled people were going to beat down the walls seeking employment. It was not the case. What happened was that existing employees sought accommodations." And this a key point: there is already a lot of mental disability in the workplace. The ADA's goal is to remove the stigma of talking about it and coping with it. "Ideally, if you are an employer and you try to use this guidance for problem solving, you are going to avoid litigation most of the time," says Gary Phelan, the co-chairman of the disability-rights committee of the National Employment Lawyer's Association.

Unlike such capital-intensive alterations as installing ramps or lowering drinking fountains, accommodating the mentally ill in fact often requires little more than an attitude adjustment. The Sears, Roebuck 1996 Work Force report showed that the average cost to the company for such accommodation in 1993-95 was zero. Employees with a learning disability were permitted to work at a slower pace; those with mental illness were offered shorter shifts, lower-stress duties or flexible work hours. According to studies conducted by the Matrix Research Institute in Philadelphia, which specializes in mental-health disorders, the majority of accommodations cost less than $500 per affected worker--significantly less than it costs to replace a worker.

Thanks in great part to new medications, "substantially more of these people can get back into competitive employment--real jobs in integrated settings for regular wages--than we had expected," says Robert Drake, a psychiatrist at Dartmouth University, who has hired several seriously disabled people to work in his research laboratory. "The job seems to be a structuring activity that is actually quite helpful." Drake's chief interviewer had been hospitalized for manic depression more than 20 times before coming to work for him. Catherine Durette, who runs a cleaning business in Manchester, N.H., hires people referred to her by a local mental-health center--people whose ailments range from schizophrenia to obsessive-compulsive disorder. "They are all on meds," she says. "If I feel someone is having an off day or seems out of character, I call the center. It may not be anything. You and I have off days."

In general, though, "it is true that employers would prefer not to deal with mental illness--just like they would prefer not to deal with child care," says Laura Mancuso, whose firm, the Conflict Management Institute, helps mediate disabilities-law conflicts in the workplace. Kay Redfield Jamison, a professor of psychiatry at the Johns Hopkins medical school, who wrote An Unquiet Mind about her own manic-depression, notes, "One of the net effects of discrimination is that people go underground with these illnesses and do not get treated." That can end up costing their employers a lot more.

--Reported by Ann Blackman/Washington, William Dowell/New York and Margot Hornblower/Los Angeles

With reporting by ANN BLACKMAN/WASHINGTON, WILLIAM DOWELL/NEW YORK AND MARGOT HORNBLOWER/LOS ANGELES