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Is it legal for an employer to not hire someone based on a history of depression? What about firing someone who is undergoing treatment?

Monday October 17, 2011
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Question:

Dear Nancy,

Is it legal not to reveal depression history during an interview and pre-employment screening? Can employers legally terminate an employee who is receiving treatment for depression? Is it legal to not hire someone because of a history of depression?

Valerie



Nancy Brent replies:

Dear Valerie,

Your questions raise an issue under Title I of the Americans With Disabilities Act, a federal law that prohibits most employers from discriminating against qualified individuals with disabilities in hiring, firing and other terms of employment. The ADA also prohibits an employer from asking an applicant if he or she has a disability. The employer can ask if the applicant can perform the essential functions of the job. So, whether you are depressed, have epilepsy or have an eating disorder, if you are qualified for the position and can perform the functions of the job, that is all the employer needs to know.

A pre-employment health screening (which should be done of all employees) is done to ensure an applicant is “healthy.” If the health screening reveals a disability (e.g., medication for depression), there still cannot be any discrimination on that basis alone. A prescreened applicant who has been offered a job can ask for an accommodation if need be (e.g., leave early to see a therapist on a weekly basis), but unless the disability makes the person “unqualified” — unable to perform the specific job functions — the hiring should be a “go.”

The ADA also would prohibit an employer from terminating or not hiring a person solely on the basis of his or her depression or depression history. If, however, a prospective employee is not qualified for the position, or the depression interfers with an employee meeting the job’s obligations, then a no-hire or a termination would be possible.

You might want to read more about the ADA and its protections. There is a wealth of information available online, and one resource is the Equal Employment Opportunity Commission's website (www.eeoc.gov/facts/fs-ada.html). The ADA also has been the subject of previous responses in this column, so you also might want to check that information.

If you believe you are, or have been, discriminated against on the basis of your depression or depression history, you should consult with a nurse attorney or attorney in your state who works with employees in order to get specific information about the ADA and how it applies in your situation.

Regards,
Nancy




Nancy J. Brent, RN, MS, JD, is an attorney in private practice in Wilmette, Ill. This information is for educational purposes only and is not intended as legal or any other advice. The reader is encouraged to seek the advice of an attorney or other professional when an opinion is needed.