Employing Big Eaters, High Rollers and Voyeurs Unusual Mental Disability Claims on the Horizon?

Sarah, the company receptionist, is often away from the front desk during her work hours. Her supervisor, Jane, begins looking through Sarah’s time clock records and notices Sarah also has been taking extra long lunches without authorization. Jane concludes that Sarah should be fired for failure to comply with the company’s work schedule.

The day before human resources pulls her in to terminate her employment, Sarah provides Jane with a note from her psychiatrist stating she has been diagnosed with “binge eating disorder.”

Can the company legally fire Sarah as planned? What if Sarah never notified the company of her “binge eating disorder” before the company terminated her employment? What if her supervisor suspected Sarah had an eating disorder but Sarah never said anything along these lines? Could her supervisor have raised the issue?

Instead of the above facts, what if Sarah says she has a “gambling addiction” which is why she’s often late to work Monday mornings after her Vegas benders? Or she says she has a “hypersexual disorder” and is compelled to view computer porn at her desk?

Believe it or not, the American Psychiatric Association’s draft edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-V), scheduled to be completed in 2013, currently proposes adding all three of these “excesses” to their already long list of psychiatric disorders.

New disorders broadening the classification of mentally disabled people could later pose a problem for unwary employers. However, inclusion of supposed disorders in the DSM listing does not automatically make them legitimate disorders under the Americans with Disabilities Act or its state counterparts. This is because the term “disorder” is defined differently in each of these contexts.

If you have any questions, please contact me or any of our other employment law attorneys. Best, Cindy Bamforth.