On July 28, 2021, the New York Times investigated the practice by employers of encouraging employees who report workplace discrimination or harassment to use employer-sponsored mental health treatment. The article is titled “‘You’re the Problem’: When They Spoke Up About Misconduct, They Were Offered Mental Health Services.” Ramit Mizrahi was interviewed by the article’s authors, Alisha Haridasani Gupta and Ruchika Tulshyan, and is quoted several times in the article.
On the surface, the practice of offering employees employer-sponsored mental health sessions might seem to be helpful to employees. But it can sometimes cause more harm than good.
First, employers have an obligation to take all reasonable steps necessary to prevent unlawful workplace discrimination and harassment. This means that when an employer receives a complaint of discrimination or harassment, it should conduct a prompt and thorough investigation and take corrective action as necessary. If an employer pushes an employee to take leave or seek therapy instead of investigating and taking corrective action, then it may not be fulfilling its legal obligations.
Second, when employees sue their employer for workplace discrimination or harassment and they allege emotional harm, some or all of their mental health records from that time period may become discoverable in litigation. Mental health records often reference sensitive information in a person’s life (for example, references to past abuse, family history information, third-party information, sexual history, addiction issues, etc.). If the employer is encouraging employees who complain about discrimination or harassment to seek mental health treatment so that it can later access those records and discover that information in the event of litigation, this can be potentially harmful to employees.
“If a potential client called me and said: ‘I’m being harassed at work, I feel really stressed and anxious. Do you think I should use my company’s E.A.P.?’” Ms. Mizrahi said, “I would advise them against it.”
