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Barbara Lawless is tired of hearing from stressed-out workers. She’d rather get a call from someone with bipolar disorder. “The reason I like bipolar is they work really hard and then they crash,” said Lawless, who routinely settles claims for employees who say they were discriminated against because of mental disabilities. “I think it’s so unfair that the employer gets the benefit of their work and then just drops them,” said the partner at the San Francisco plaintiff firm Lawless & Lawless. By contrast, she finds, stress is too common and too subtle to sway a jury. Employment lawyers didn’t always speak the language of mental disability litigation. Such claims used to be rare. “You could count them on your hand 10 years ago,” said defense attorney Stephen Hirschfeld, a partner with Curiale Dellaverson Hirschfeld & Kraemer. Since then, mental disability claims have grown into a practice area of their own. Now, Hirschfeld said, “I’m sure we get a couple a week.” San Francisco plaintiff lawyer Kathleen McCormac, who saw just one mental disability case between 1992 and 2000, said she’s handled at least 10 cases since then. And potential clients keep coming. “We talk to probably 10 people a month,” said the McCormac & Associates founder. There’s no consensus on why the caseload has grown. Lawyers point to everything from employees’ increasing awareness of their legal rights to the publication of a new psychiatric diagnostic manual to greater workplace stress, triggering more serious mental illness. What is clear is that the success of the cases has encouraged more. “There are more lawyers doing it now because [mental disability suits] are seen as lower risk. They’re now mainstream,” said San Francisco plaintiff attorney Todd Schneider, who brings five or six such cases each year. FRONTIER DAYS The door for mental illness employment suits opened in the early 1990s, with two federal laws that required employers to grant at-work accommodations and medical leave to disabled workers. But there was little initial activity on the mental-disability front. “When the Americans with Disabilities Act was passed [in 1990], people had the mindset that being disabled was being blind or deaf,” said Jerrold Schaefer, a partner with the defense firm Hanson, Bridgett, Marcus, Vlahos & Rudy. Early on, he said, labeling back problems and soft-tissue injuries as disabilities was seen as pushing the envelope. But by the mid-1990s, plaintiff lawyers began to act on what they say is an epidemic of discrimination against the mentally ill. “What we’re seeing now is what the plaintiff lawyers have been saying all along: That a mental disability is the same as a physical disability,” said Schneider, a Schneider & Wallace partner. But William Tamayo, the regional attorney for the U.S. Equal Employment Opportunity Commission, said the Ninth Circuit U.S. Court of Appeal’s “very narrow reading” of disability makes it hard for California attorneys to succeed in bringing mental illness discrimination claims in federal court. For that reason, California plaintiff attorneys prefer to file mental illness claims under the broader state fair employment and medical leave statutes. “The smart money is in state court,” said Lawless. The statutes provide for attorneys fees, which can create an added incentive for employers to settle. “You can end up with $50,000 in back pay and $100,000 in attorney fees. That’s why you’re going to settle it,” said Hirschfeld. Margaret Hart Edwards, a partner with Littler Mendelson in San Francisco, said that potential legal costs — and jury bias toward employees — prompt “a lot of cases to settle that would otherwise go to trial.” Costs for both sides increase, lawyers said, when mental illness employment suits span several different statutes. That’s relatively common when a claim begins in the workers’ comp system and gets complicated with separate sick-leave and discrimination claims. San Francisco-based Stephen Murphy said he routinely collects six-figure settlements in his specialty, representing workers who have been denied sick leave or fired after requesting it. Since it’s rare for punitive damages to factor into mental disability claims, most awards are based on lost wages and pain and suffering. “It’s always in the six figures,” said Lawless. “You’ve got to go to trial if you want seven figures.” WHAT WorkS In fact, few mental disability claims ever make it to trial. But to win a good settlement, plaintiff attorneys have grown adept at identifying the kinds of mentally ill clients who would sway a jury. “There’s more case law now, and it’s easier to figure out in advance what juries and courts are sympathetic to,” said Schneider, noting that such knowledge has increased the value of the cases. Plaintiff lawyers must strike a careful balance to show that a client is disabled enough to require accommodations, but not so disabled as to be unable to work. It’s easier when workers have long track records of successful employment, marked by short periods of debilitating illness diagnosed by a doctor. Murphy, for instance, recently filed on behalf of a client whose employer accommodated his agoraphobia for about 15 years by letting him work exclusively on the telephone. But a 2002 nervous breakdown and subsequent sick leave led to a series of events that culminated in an extended unpaid leave. And David deRubertis, a Woodland Hills attorney who specializes in mental illness disability claims, last month sued on behalf of a grocery checker who worked for more than 10 years before developing anxiety and panic disorders in response to witnessing her husband’s attempted suicide. She says the grocery discriminated against her by refusing to grant a work schedule that would allow her to take medication at the same time each day. Plaintiff attorneys have learned to avoid so-called “soft” claims, which defenders find easier to beat. Mild depression is such a claim, said Brian Ashe, a defense lawyer with Seyfarth Shaw. “It’s one of those soft injuries that you can’t see and you can’t verify. You have to take someone’s word for it,” he said. If an employer was unaware of a disability, he pointed out, a worker cannot claim discrimination. Plaintiff attorneys say it helps if the illness is visible to jurors. Last May, for example, a Yolo County jury awarded $19 million to a worker who said her employer fired her after 25 years because she developed an anxiety disorder that caused her to miss days unexpectedly. The disorder also led her to scratch her arms until they were bloody. “What was to our advantage was that the condition was so obvious,” said Gold River solo Christopher Whelan, who represented the plaintiff along with deRubertis. “Here, [the jury] saw my poor client’s mutilated arms, so there was clearly something wrong.” The jury award climbed so high because it was one of the rare mental illness discrimination cases to involve punitive damages. The verdict is now on appeal. In the coming years, lawyers from both sides expect new disabilities to emerge in employment disputes. Already, defense attorney Schaefer has seen a change: “They’re more often focused on more esoteric problems than before.” Defense attorneys complain that workers and their doctors are going too far. “We’re starting to get now in the last couple years psychiatrists who are writing letters saying ‘My patient has a personality disorder. � My recommendation is to have a different supervisor,’” said Hirschfeld. “That’s absurd. We’re seeing a lot of shrinks pushing the envelope on this.” But plaintiff attorneys insist that, even among well-meaning employers, discrimination remains widespread. “It’s the one kind of disability that [employers] are the most nervous about, and in some cases the most sensitive about,” said Kathryn Dickson, a partner with Oakland-based Dickson-Ross. “Everybody discriminates against people with mental illness,” said Lawless. “It’s terrible to say, but it’s true.”

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