Because discrimination may cause or worsen post-traumatic stress disorder in affected workers, agencies must take prompt and appropriate corrective action to minimize potential damages. Agencies must also be mindful of their duty to provide reasonable accommodation, as PTSD commonly arises in EEO claims alleging denial or failure to provide a reasonable accommodation.
Less commonly, employees raise PTSD as a defense for misconduct, but agencies do not have to excuse misconduct because a person has a disability, although the condition may be a mitigating factor.
Here are some recent cases showing how PTSD may affect the outcome of a case:
Damages
When discrimination or harassment causes the complainant’s PTSD, the damages will depend on how quickly the agency rectified the relevant conduct and how long the complainant suffered. Even with a finding of discrimination, agencies can minimize potential damages by showing that a complainant’s PTSD was a preexisting condition, but this argument will likely have less weight if the discrimination aggravates the PTSD.
Reasonable accommodation for PTSD
Generally, agencies must provide a reasonable accommodation for an employee’s PTSD unless doing so poses an undue hardship. The duty to provide reasonable accommodation is not just so that the employee can perform the essential functions of the job, but also to allow the employee to enjoy equal benefits and privileges of employment.
* In Clark v. School Dist. Five of Lexington and Richland Counties, 117 LRP 11570 (D. S.C. 2017), a teacher with post-traumatic stress disorder and panic disorder requested to bring her dog to school as a reasonable accommodation because she trained the chihuahua to place “deep pressure” on her chest to avert panic attacks. The employer denied the request because the dog did not qualify as a “service dog” and students might be fearful or allergic. The employer proposed instead that she use a weighted vest to alleviate the PTSD-related panic attacks, but her psychiatrist said a weighted vest would not be effective and strongly recommended the service dog. The teacher continued to work as she could perform her duties, but asserted she was in extreme jeopardy without her dog, especially when monitoring students in large crowds. The court denied the employer’s motion for summary judgement, allowing the case to move forward to determine whether the employer denial of her request violated her right to reasonable accommodation to enjoy equal benefits and privileges of employment.
* However, the agency must know about the PTSD to be liable for failure to accommodate, especially when the symptoms do not make the condition obvious, as seen in Trey M. v. Department of Transportation, Federal Aviation Administration, 116 LRP 43959 (EEOC OFO 2016). In this case, the employee alleged denial of reasonable accommodation when the agency reduced his full-time telework to two days a week. The EEOC found that the agency did not subject him to discrimination because the employee did not establish that he was an individual with a disability entitled to a reasonable accommodation. Noting that his PTSD was not obvious, the EEOC explained that he did not provide sufficient medical documentation supporting his full-time telework request or specific answers to questions about his impairment. The EEOC found the agency first accommodated the employee due to realignment within the office, not because of his disability, but reduced the telework to two days per week when the supervisor saw that the employee was unable to perform his duties while on full-time telework.
Even though employees may raise PTSD as a defense for misconduct charges, the claims must be credible and consistent to be successful, as seen in Jason G. Peters v. Department of the Interior, 117 LRP 785 (MSPB 2017). This case involved the removal of an employee for lack of candor and conduct unbecoming for not being truthful about his whereabouts during an investigation into a wildfire causing $11 million in damage. The employee claimed that he could not remember the details at the time because he was suffering from PTSD and alleged disability discrimination.
However, the Merit Systems Protection Board upheld the AJ’s determination that the agency’s charges and removal penalty were proper, especially considering the inconsistencies in his story. The AJ found the employee provided a significantly detailed official report concerning his activities on the date the wildfire ignited indicating “he had excellent recall of the events of that day.” However, while claiming he could not recall his whereabouts during the misconduct investigation, the employee told the Office of Professional Responsibility a different story, saying that he did not mention his drive into the burn area because he did not deem that information relevant, not that he could not recall it.
As seen from these cases, even though PTSD may arise in a variety of forums, the agency’s best defense is to proactively ensure managers know how to respond appropriately to harassment and prevent further incidents, engage in the interactive process to provide reasonable accommodations for PTSD when possible, and establish a solid foundation when pursuing misconduct.
