Return-to-office policies are triggering discrimination battles

Dive Brief:

  • Companies hoping to boost collaboration, innovation and productivity by implementing return-to-office policies are facing complaints of discrimination by employees who request accommodation for mental health disabilities, The Wall Street Journal reported
  • Although confidentiality rules make getting a clear picture difficult, the U.S. Equal Employment Opportunity Commission has seen a 16% rise between 2021 and 2022 in charges against employers for discriminating against employees with anxiety, depression and post-traumatic stress syndrome, the Journal said.
  • And at the state level, data show mental health disorders have risen to be one of the top disability complaints filed with civil rights agencies. “Mental illness is at an all-time high, and Covid was a huge contributor,” Hannah Olson of disability-accommodation software company Disclo told the Journal. “The other piece is return-to-office.”

Dive Insight:

The Americans with Disabilities Act requires employers to engage with employees to determine a reasonable disability accommodation if they ask for one to help them do their job.

Compromise can be made difficult when it comes to mental health disabilities because of limits that confidentiality imposes on what the parties can talk about. And when it involves employees asking to remain remote, employers must contend with the impact allowing that has on employees who return to the office. 

“Allowing some employees to work remotely can stoke complaints about unequal treatment among the workforce,” the Journal said. 

“There’s a fine line between ‘I want it because it makes me happy,’ and ‘I want it because if I don’t get it I’ll be depressed or anxious,’” Patty Pryor, a Jackson Lewis attorney who represents employers, said in the report. 

After years of approving most accommodation requests, employers are pushing back; in the first half of this year, they approved just under 92% of requests — still high, but down from more than 96% in 2021, according to data tracked by Sedgwick, a disability claims manager.  

Companies that don’t appear to make an effort to accommodate a request can face an EEOC action. In September, the agency filed a complaint against a Georgia company after it fired a marketing manager who requested to work remotely three days a week to accommodate anxiety.

This situation — where an employee requests remote work as a mental health accommodation — is on the rise, Sarah DeCosse, an EEOC disability attorney, told the Journal. “There have been a lot of inquiries about this basic scenario,” she said. 

In some cases, employees will file with a state agency, where local laws can offer robust worker protections.  

Brittinay Lenhart, a project manager for a military contractor, filed a complaint with the Nevada Equal Rights Commission earlier this year when a new manager required her to come to the office for meetings after she had been allowed to work remotely to accommodate her anxiety and PTSD. 

“I had to go back on Valium to handle all this,” Lenhart told the Journal. “For my mental health I thought, I just need to quit.”

The company said it tried to find an accommodation for her. 

The case points to the challenges employers can face when they get these remote work requests. The work-from-home mandate that was imposed during Covid leaves them little room to require employees to come back to the office, Becca Lory Hector, a disability advocate and consultant, said in the report. 

“You can’t put [remote work] back in the bottle,” she said.