Postpartum depression can cause problems for employees — and painful lawsuits against employers.
In 2008, Congress passed amendments to the Americans with Disabilities Act — the ADA Amendments Act, or ADAA — greatly expanding what impairments are covered as disabilities under the statute. The ADA has always covered both mental and physical disabilities that interfered with a major life activity.
Prior to 2009, however, the U.S. Supreme Court took a very restrictive view of what facts constituted interference with a major life activity, in particular finding that impairments that were episodic or of short duration did not qualify for coverage under the Americans with Disabilities Act. In enacting the amendments, Congress explicitly rejected the approach. Now, under the newly amended ADA, courts are instructed to give the definition of disability a broad interpretation, which means that many conditions — even ones of short duration — enjoy protection under the ADA.
There have been numerous decisions since passage of the amendments in which courts have found that postpartum depression can be a disability under the amended ADA.
One recent example is Seema Nayak, M.D. v. St. Vincent Hospital and Health Care Center. In Nayak, the plaintiff was a medical doctor employed by St. Vincent as a resident in the OB/GYN program. Following a difficult multiple pregnancy in which one of her twins died, Nayak returned to her residency program where she, according her supervisors, experienced numerous performance problems. The program director, in raising this concerns with Nayak, said that others on her team were concerned because she “appeared distracted, sad and tearful.” When the director later declined to renew Nayak’s contract, he notified the American Board of Obstetrics and Gynecology that, “Due to a medically complicated pregnancy and significant concerns regarding her academic progress, our program decided not to extend her contract beyond this academic year.”
Nayak sued the hospital on numerous grounds, including that it had discriminated against her because, among other things, it regarded her as depressed and therefore having a disability. (Nayak had in fact been diagnosed with postpartum depression but did not tell her supervisors, claiming that she was afraid to do so.)
When St. Vincent later filed a motion asking the court to kick out Nayak’s disability claim, the court declined finding that the statements about her mood and the hospital’s admission that it fired her because of “a medically complicated pregnancy” were sufficient to support this claim. The court further found the fact that, according to the hospital, Nayak had performance problems before her pregnancy was not sufficient for the hospital to establish that it fired her for performance reasons.
However, it is important for employers and employees to note that a diagnosis of depression — postpartum or otherwise — does not insulate an employee from lawful termination. The case Eisner v. New York City Law Department, et al. provides employers an example of both the potential liabilities under the Americans with Disabilities Act as well as an example of how to successfully handle a termination under the statute.
In this case, plaintiff Susan Eisner, who worked as an attorney for the city in its appellate division, filed an EEOC charge in 2009 when she received a negative performance review after being diagnosed with “major depression, severe, single episode … induced postpartum following the birth of a child.” Eisner claimed that her supervisor at the time had said that Eisner was “not high-functioning” and that “no magic pill can fix you.” The city settled the case with Eisner, who remained in the appeals division.
Citing performance reasons, the city terminated Eisner in 2013. Eisner sued claiming discrimination based on disability and retaliation. In denying all of Eisner’s claims, the court found that she had to prove that her disability was the “but for” cause of her termination.
The Supreme Court in two cases Gross v. FBL Financial Services Inc. and University of Texas Southwestern Medical Center v. Nassar found that the appropriate standard of proof under the Age Discrimination in Employment Act and Title VII of the Civil Rights Act is the “but for” standard rather than the arguably lower “motivating factor” test. The Supreme Court, however, has not opined on the proper standard of proof under the Americans with Disabilities Act. The court in Eisner reasoned that the language in the act is sufficiently similar to both the ADEA and Title VII to warrant applying the same standard. (Eisner has appealed the court’s ruling.)
Though, given the court’s analysis of her Americans with Disabilities Act claim, it appears the court would have dismissed her claim regardless. As the court noted, “Eisner has failed to adduce any facts that would give rise to an inference of disability discrimination. She contends that ‘every single adverse action against [her] flows from her initial disclosure of her disability.’ Such a temporal argument is unavailing.” The court noted that her initial request for accommodation occurred in 2009, some four years earlier.
The lesson of these two cases is that postpartum depression can be covered by the Americans with Disabilities Act, so employers need to be prepared to provide reasonable accommodations when requested. However, just because an employee suffers from postpartum depression does not mean she is immune from lawful termination. Still, in those situations an employer needs to proceed with extreme caution and strong evidence that the disability was not the factor driving the termination decision.
Tom Spiggle is author of “You’re Pregnant? You’re Fired: Protecting Mothers, Fathers, and Other Caregivers in the Workplace.” He is founder of the Spiggle Law Firm with offices in Arlington, Virginia, and Nashville, Tennessee. To comment, email editors@workforce.com.
