Matthew Radler · July 2012
80 GEO. WASH. L. REV. 1546 (2012)
When the Equal Employment Opportunity Commission (“EEOC”) issued its 2011 regulations implementing reforms to the Americans with Disabilities Act (“ADA”), the agency set the stage for a new litigation dilemma. Under the new regulations, employees diagnosed with post-traumatic stress disorder (“PTSD”) are deemed afflicted with a physical ailment. Thus, employers will no longer waste time attempting to defeat discrimination suits based on lack of coverage under the definition of “disabled.” Rather, because the disorder’s symptoms directly implicate workplace conduct standards involving mood, punctuality, and reactions to stress, employers will assert that afflicted employees’ symptomatic behaviors are a proper basis for dismissal under “business necessity” defenses.
Without further action by the EEOC to alter the defense standards available to employers, its interpretation of the term “disability” is subject to unpredictable judicial review under administrative law doctrine because more than one agency has been granted interpretive power. Were it to offer a distinct interpretation of “business necessity” defenses, however, such an interpretation would likely command substantial deference because the EEOC is the sole entity with rulemaking power over regulations governing ADA litigation. By creating a presumption that “business necessity” arguments are unavailable when an employee seeks treatment for PTSD, unless an employee’s conduct substantially interferes with a company’s internal operations, the EEOC can prevent the erosion of statutory protections for employees with the disorder. A disease cannot be separated from its symptoms, and unless the regulations reflect that reality the expansion of coverage to PTSD patients will prove a hollow victory.
