Can EAP referral be an act of discrimination?
August 1, 1999 3 minutes read
Can EAP referral be an act of discrimination?
Probably not, but court case raises red flag
It probably would have been unimaginable — were we not part of such a litigious society — but in light of a recent court case, wellness professionals must at least address the possibility that an employee assistance program (EAP) referral could trigger a discrimination lawsuit.
Which is not all bad, since EAP referrals have traditionally been considered one of the more challenging responsibilities for any professional involved in health care. The recent case, which involved Lucky Stores Inc., "should serve as a cautionary tale for employers and EAP professionals — that is, a warning to take care about the basis on which they make EAP referrals and the method they use for making such referrals," says Greg DeLapp, CEAP, president of the Employee Assistance Professionals Association, Arlington, VA.
Bringing in the ADA
The recent finding occurred in an Americans with Disabilities Act (ADA) employment discrimination case, Holihan v. Lucky Stores Inc., in which a federal appeals court held that a supermarket employee could use the fact that an employer had strongly recommended him to seek counseling through the company’s EAP to try to prove that the employer regarded him as having a disabling mental condition. This form of discrimination would not be legal under the ADA.
"This is the first case in which an aggrieved employee has tried to use an employer’s referral to an EAP against him in court," says DeLapp. To the extent that the employer found itself in court because of that referral, "its risk could have been substantially reduced had it been careful to make its EAP referrals not on the basis of a conclusion that the employee needed counseling,’ but solely on the basis that the employee was having a workplace productivity problem," he notes.
The employee, who had demonstrated aberrational behavior on the job, was ultimately fired. The court did not rule that the employee had proven his discrimination case, or even that the referral alone could have demonstrated that the employer perceived him as disabled, but that the evidence he had produced, including the evidence of the referral to the EAP, was sufficient that a jury could be permitted to decide whether the employer in fact regarded him as disabled.
While this case does not represent a change in the law, says DeLapp, it does reaffirm that if an employer regards an employee as disabled this can be used against the employer in an ADA action. This can include firing an employee, sending an employee to a doctor, or, if it is done in a way that indicates that the employer believes the employee to have a mental or emotional condition, referring the employee to something like an EAP.
How can the risk be reduced? "Take steps to ensure supervisory referrals are made, and are understood to be made, on the basis of workplace productivity problems and not on the basis of some conclusion about the cause of those problems," DeLapp advises.
This ruling, he concludes, gives employers an opportunity to get their houses in order. "It is recommended that companies review all EAP materials, policies, and supervisor training on the proper circumstances and procedures for making an EAP referral."
[For more information, contact: EAP Association Inc., 2101 Wilson Boulevard, Suite 500, Arlington, VA. Telephone: (703) 522-6272. Fax: (703) 522-4585. Web site: www.eap-association.com.]
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