by Art Gutman Ph.D., Professor, Florida Institute of Technology

In a ruling issued on May 3, 2010 by Judge Barry Ted Moskowitz of the Southern District of California, the Department of Homeland Security (DHS) was found to have violated the Rehabilitation Act of 1973 (Rehab-73) by asking overly broad questions relating to mental health issues that were deemed unrelated to essential job functions (Scott v. Napolitano [2010 U.S. Dist. LEXIS 42882].

The facts in this case were that James Scott was an existing employee at DHS and was diagnosed with “an adjustment disorder with mixed depression and anxiety”. He was placed first on long-term disability from July 2000 to February 2002. He then filed worker compensation claims in 2004 related to sinusitis stemming from wildfires and construction work at his office. He subsequently filed claims for work-related tendonitis. When cleared for work in 2005, DHS asked Scott six questions. Scott refused and was terminated. The questions were:

1. Have you ever been treated for a mental condition? (If yes, specify when, where, and give details)

2. Have you ever had any illness, injury, or other condition (including learning disability, attention deficit disorder, etc.) other than those already noted? (If yes, specify when, where and give details)

3. Have you consulted or been treated by clinics, physicians, healers, or other practitioners within the past years for other than minor illness? (If yes, give complete address of doctor, hospital, clinic, and details.)

4. Have you ever received, is there pending, or have you applied for pension or compensation for existing disability? (If yes, specify what kind, granted by whom, and what amount, when, why)

5. Have you or do you currently experience any of the following: psychiatric/psychological consult, episodes of depression, periods of nervousness? Please specify.

6. List all medication (prescription and non-prescription) you are currently taking with dosage and [f]requency, and reason below.

Judge Moskowitz ruled that these questions “were not narrowly tailored to address the Plaintiff's current ability to work”, addressing each of the questions. Accordingly

The first question, which asked if Plaintiff had ever been treated for a mental condition, was not limited in time and would include, for example, a childhood phobia or a long-resolved eating disorder. The second and third questions are even broader because they are not limited to mental conditions and would include, for example, a past episode of appendicitis or a bad bout of eczema. The fourth question is ambiguous and overbroad in that it does not define "disability" and does not distinguish between job-related and non-job-related "disabilities." The fifth question is not limited in time, does not address the severity of the "nervousness" or "depression," and extends to any type of psychiatric/ psychological consult, such as grief counseling. The sixth question, which asks about all types of drugs, including prescription and non-prescription, is intrusive and not tailored to determining whether an employee is using a drug that may affect his ability to [*28] do his job. In answering this question, a person would have to reveal whether they were taking any medication, including Advil, birth control, or Viagra. Given the scope of these questions, Defendant cannot satisfy its burden of establishing that the inquiries were "no broader or more intrusive than necessary" to accomplish its goal of ensuring that Plaintiff could still safely do his job.

A final point to note is that technically, the ADA does not apply to federal employees. However, ADA rules were grandfathered into Rehab-73 via the ADA statute in order to make the two statutes harmonious. Therefore, the ruling in this case applies to ADA cases, and the rulings in ADA cases apply to Rehab-73 cases.

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