U.S. Commission on Civil Rights

Sharing the Dream: Is the ADA Accommodating All?

Chapter 5

Psychiatric Disabilities and the ADA

Mental illness has touched many of our families and many of our friends. . . . Mental illness is a problem affecting all sectors of American society. It shows up in both the rural and urban areas. It affects men and women, teenagers and the elderly, every ethnic group and people in every tax bracket.[1]

TITLE I: EMPLOYMENT OF INDIVIDUALS WITH PSYCHIATRIC DISABILITIES

Title I of the Americans with Disabilities Act prohibits a private employer with 15 or more employees from discriminating against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. [2]

ADA s Title I principles prohibiting discrimination in the workplace were formulated for both physical and psychiatric disabilities; after the ADA passed, however, the statute as applied to physical disabilities received the most attention.[3] In fact, the physically disabled have made much progress in the workplace since the passage; . . . [E]xperts say that discrimination has decreased and that employers generally are willing to provide the special accommodations needed by employees with physical impairments. [4]

This initial focus on physical disabilities provided few answers to the ADA s implications for people with psychiatric disorders, and significantly less progress has been made by those with mental or intellectual disabilities. [5] The attention to psychiatric disabilities increased as alleged discrimination based on emotional or psychiatric impairments became the second largest source of ADA charges, after back problems, filed with the EEOC. The percentage of ADA charges filed with the EEOC for discrimination alleging emotional or psychiatric impairments, over the four-year period of 1992 to 1996, increased steadily from 8.7 percent to 15 percent.[6] In 1997, charges based on psychiatric disabilities increased to 15.5 percent, making psychiatric conditions the leading category of disability, with back conditions falling to second.[7] In 1998, charges based on psychiatric disabilities increased to 18.3 percent; in 1999, psychiatric disability charges decreased to 15.8 percent but were still the leading category of disability.[8]

This increase in charges reflects, in part, the prevalence of psychiatric disorders in our society. Data gathered by the National Institute of Mental Health and published in a 1994 U.S. Congress Office of Technology Assessment (OTA) report, Psychiatric Disabilities, Employment, and the Americans With Disabilities Act, indicate that more than one in five American adults experience some diagnosable mental disorder in a given year.[9] The data showed that approximately 9 percent of American adults have mood disorders (bipolar disorder, major depression, dysthmia), approximately 12 percent have anxiety disorders (phobic, panic, or obsessive-compulsive disorders), and approximately 1 percent have schizophrenia.[10]

The OTA report concluded that despite the prevalence of psychiatric disorders and the increase in charges, EEOC field offices were operating without direction when investigating charges of discrimination based on psychiatric disabilities. The report found that, despite EEOC's considerable technical assistance activity for the implementation of the ADA, little discussion of psychiatric disabilities has occurred. [11] The OTA's inquiry at EEOC field offices revealed that EEOC investigators consider themselves in need of more information on psychiatric disabilities. [12] Moreover, OTA found many EEOC field offices lack any information on psychiatric disabilities, [13] and surveys of business representatives and ADA and rehabilitation experts indicate that many employers and employees have no knowledge of the ADA or its coverage of people with psychiatric disabilities. [14] The report recommended that the EEOC provide more guidance to employers, employees, and its own field offices on job discrimination charges based on psychiatric disorders.[15]

Issuance of EEOC Psychiatric Guidance and the Reaction

In response to the OTA report and the lack of understanding by employers and employees about the ADA protections for individuals with psychiatric disabilities, the EEOC issued a publication titled EEOC Enforcement Guidance: The Americans with Disabilities Act and Psychiatric Disabilities, in March 1997.[16]

Consistent with the issuance of its other ADA enforcement guidance, the EEOC did not use formal notice and comment rulemaking to issue its Psychiatric Enforcement Guidance. The EEOC did not seek comments; rather, the input [that led to the drafting of the Psychiatric Enforcement Guidance] came in various ways, according to Peggy Mastroianni, EEOC associate legal counsel, and the guidelines were distilled from the entire spectrum of stakeholders. [17] At the Commission's ADA hearing, Ms. Mastroianni testified about the nature of the informal input:

We have an attorney-of-the-day function that gets about 9,000 phone calls a year in the office of legal counsel. We got numerous questions from all the stakeholders in psychiatric disabilities from the beginning, and we keep track of those questions and save them for possible policy guidance. Then, also, in our public speaking we had a lot of interaction with employers and individuals with disabilities on these issues. And then most important we received letters, a huge number of letters, particularly on conduct issues, from employers, from the very beginning.[18]

The Psychiatric Enforcement Guidance was designed to facilitate full enforcement of ADA on charges alleging employment discrimination based on psychiatric disability. [19] It was also intended to (1) respond to questions and concerns expressed by individuals with psychiatric disabilities regarding the ADA, and (2) answer questions posed by employers about how the principles of the ADA analysis apply in the context of psychiatric disabilities.[20] The EEOC had been flooded with questions about the [ADA], mostly from employers, [and the EEOC] wanted to show that the law applies to people with psychiatric disabilities in exactly the same way it applies to people with physical disabilities. [21] Ms. Mastroianni explained that there was also some feeling that you couldn't apply normal workplace rules to people with [mental] disabilities. We are saying that you can. [22]

The publication of the guidelines sparked a firestorm of controversy. [23] Within days of its release employment lawyers, clinicians in the psychiatric field, and the national media were engaging in a fierce debate over the Psychiatric Enforcement Guidance.[24]

Andrew Imparato, general counsel and director of policy for the National Council on Disability,[25] testified at the Commission's ADA hearing:

The guidance itself is common sense. It applies well-established ADA principles in the context of psychiatric disabilities. . . . I think the average employer, if they read the document, just read it, they are going to understand it, they are going to know how to apply it, and they are going to come away from the document knowing a lot more about how to accommodate people with psychiatric disabilities, what a psychiatric disability is, than they would without having read the document.[26]

The reaction from employers was mixed. Large employers with access to personnel and legal specialists appeared least concerned. Mary Jane England, president of the Washington Business Group on Health, which represents 175 large corporations, including Pepsico and Hewlett-Packard, welcomed the guidelines saying that they clarified employers obligations.[27] Ann Reesman, general counsel for the Equal Employment Advisory Council, a group of about 300 large employers, said the Psychiatric Enforcement Guidance was helpful, because it gave us insights into the EEOC's position on things and how to avoid running afoul of the agency.[28] The guidelines, she said, are cause for alarm only if you read all the press and not the guidelines themselves.[29] In fact, many of the companies Ms. Reesman serves have been subject to almost identical disability requirements under the 1973 Rehabilitation Act. [30]

Jonathan Mook, a lawyer counseling both large and small employers in their attempts to deal with compliance under the ADA, testified at the Commission's ADA hearing that the EEOC's guidelines represent at least a good initial step in the area of trying to clarify and provide guidance to employers on what obligations are under the statute, and how the statutory term[s] should be interpreted. [31] Mr. Mook noted, however, that based upon my conversation with employers, in dealing with this area, I think there are many aspects of that guidance that really fail to take into account the real-world problems that employers experience in dealing with individuals who have or claim to have psychiatric disabilities. [32]

James McDonald, a labor attorney whose firm represents a range of entities, including large and small employers, testified at the Commission's ADA hearing:

Instead of bringing clarity . . . the EEOC's guidance, unfortunately, just creates more uncertainty. It creates this uncertainty, for example, by suggesting that a condition need not be included in the American Psychiatric Association's current edition of the DSM in order to be a covered mental disability under the ADA, by providing that personality disorders may be covered disabilities, and by expanding the list of major life activities, to include such things as sleeping, concentrating, and getting along with other people.[33]

Small employers shared this concern. The National Federation of Independent Business issued a statement calling the new guidelines lengthy, confusing and dangerously vague, leaving small business wide open to the risk and cost of frivolous litigation. [34] Susan R. Meisinger, senior vice president of the Society for Human Resource Management, which represents personnel directors at companies of all sizes, said the Psychiatric Enforcement Guidance creates confusion for employers, especially small employers who don't have any special expertise in ADA provisions.[35]

The Psychiatric Enforcement Guidance, however, did not depart dramatically from existing ADA case law, according to Robert L. Dunston, a partner in a Washington, D.C., firm that represents management nationwide in ADA, EEOC, employment, and labor law matters. Mr. Dunston observed that most attorneys specializing in the ADA, whether for plaintiffs or management, tend to agree that much of the Psychiatric Enforcement Guidance is consistent with ADA case law and the Rehabilitation Act. Mr. Dunston believes the strong reaction to the Psychiatric Enforcement Guidance was based on employers realization of the breadth of the ADA and its potential implications in the workplace.[36] Employers are concerned not only about employees who abuse the system claiming stress-related disorders, but also with legitimate psychiatric claims, which are more difficult to accommodate than physical impairments because (1) the medical issues are not understood, and (2) the likely accommodations may require changes in policies and practices, not simply a one-time structural change or purchase of an auxiliary aid. [37]

Employers are also concerned that accommodating individuals with psychiatric disabilities is more difficult and costly than accommodating those with physical disabilities. According to Laura Mancuso, a consultant who has advised hundreds of employers on compliance with the ADA, these concerns are not justified. Ms. Mancuso noted that accommodations for workers with psychiatric disabilities are, in most cases, inexpensive or free. An employee with psychiatric problems may initially need more time from supervisors or coworkers, but research shows that the need tends to fade over time. [38]

Despite the initial controversy, the Psychiatric Enforcement Guidance is being relied on by courts and appears to be used by employers. There remains, however, difficulty in the application of the guidance.

Disputed Areas of ADA's Coverage of Psychiatric Disabilities

Disability Defined

The ADA defines psychiatric disability as a mental impairment that substantially limits one or more of the major life activities of [an] individual; a record of impairment; or being regarded as having such an impairment. [39] EEOC's regulations define mental impairment to include any mental or psychological disorder, such as . . . emotional or mental illness. [40] The examples of impairments in the Psychiatric Enforcement Guidance include major depression, bipolar disorder, anxiety disorders (which include panic disorder, obsessive compulsive disorder, and post-traumatic stress disorder), schizophrenia, and personality disorders. [41] The Psychiatric Enforcement Guidance further provides that the current edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) is relevant for identifying these disorders and notes that Congress expressly excluded several specific conditions from ADA's protections.[42]

EEOC s broad definition of what may constitute an impairment the DSM-IV lists more than 374 psychiatric disorders alarmed some employers and employment attorneys because, they contend, it muddies employers ability to correctly identify those individuals entitled to protections under the ADA. Labor attorney James McDonald testified that a listing in the DSM-IV should be required and is only a starting point for determining whether a condition is a mental impairment. ADA's legislative history and at least one court decision recognize that Congress intended that only mental disorders as defined in the [DSM-IV] may qualify as mental impairments potentially covered by the ADA. [43] Mr. McDonald would narrow the category of impairment because he believes that personality disorders, which are listed in the DSM-IV, should be excluded from ADA coverage. The Psychiatric Enforcement Guidance's inclusion of personality disorders as impairments, Mr. McDonald said,

provides a plethora of new opportunities for problem employees to disguise their misconduct as disease. Although a nasty or insubordinate employee might not qualify as disabled if his bad attitude is considered in isolation, if his attitude can be linked somehow to a personality disorder, he will be considered to have an impairment that may qualify for ADA coverage.[44]

This is problematic, according to Mr. McDonald, because personality disorders are characterized more by aberrant behavior that many employers would find objectionable than by disordered thought or mood.[45]

Employers attorney Jonathan Mook would narrow the ADA coverage for psychiatric disabilities further, testifying that there is no basis for the EEOC to expand disability beyond the DSM. In fact, he said, the definition of disability should be restricted to Axis I Clinical Disorders for purposes of the ADA analysis. [46]

The Psychiatric Enforcement Guidance, however, clearly limits the definition of impairment, providing that [n]ot all conditions listed in the DSM-IV . . . are disabilities, or even impairments, for purposes of the ADA. [47] In fact, identifying the mental impairment, whether or not it is in the DSM, is just the first step in determining whether an individual meets the requirements for disability under the statute. Under the ADA, the disability must also substantially limit one or more of the major life activities of the individual.[48] Peggy Mastroianni testified:

The point we make in the guidance is that DSM has all kinds of things in it that do not rise to the level of a disability. Therefore it may be useful, but it certainly isn't the end of the story. Not everything in DSM-IV is even an impairment.

So how do you determine what is a disability? You use the analysis that you use for physical conditions, and that is, do you have an impairment? DSM may be useful.[49]

There is another justification for the EEOC's broad and inclusive standard for the definition of psychiatric impairment. Laura Mancuso, a psychiatric rehabilitation counselor, consultant, and mediator to businesses, testified:

There is one thing that makes me nervous about proposing that the EEOC should say every mental impairment must be in the DSM or it is not to be covered. The DSM-IV is in some ways a political document. . . . As many of us know, there were times in history when homosexuality was considered a DSM diagnosis. This is the fourth edition; it will be revised in the future. . . . [We could] be in a position where the federal government and civil rights laws are dependent in some way on the deliberations of a group of psychiatrists who are responding [not only] to scientific knowledge, but also societal pressures and norms.[50]

Ms. Mancuso added, Our knowledge or understanding of mental disorders could change, and if the DSM were not scheduled to be revised for another 5 or 10 years it would not provide the protections envisioned by the ADA.[51] The EEOC has not chosen, and Congress did not choose to have a list [with the ADA], nor did it with the Rehabilitation Act ; therefore, the regulations properly leave latitude for changes in both societal attitudes and scientific assessments of what constitutes a psychiatric disability.[52]

The analysis of determining whether there is a disability does not stop at finding that an individual has a mental impairment. After establishing mental impairment, an individual must still prove that the mental impairment substantially limits a major life activity. Once an individual is determined to have a disability a mental impairment that substantially limits a major life activity that person still may not be protected under the ADA because Title I protects only those who are also qualified. [53] The EEOC's regulations provide that the determination of whether an individual is qualified should consist of a two-part inquiry.[54] First, the individual must satisfy the basic prerequisites for the position, such as possessing the appropriate educational background and employment experience.[55] Second, the individual must be able to perform the essential functions of the position held or desired, with or without reasonable accommodation. [56]

Accommodating Psychiatric Disabilities

The ADA provides that no covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual with regard . . . to privileges of employment. [57] One way an entity violates these requirements of the ADA is by not making reasonable accommodations to a qualified individual with a mental disability.[58] The Psychiatric Enforcement Guidance states when an individual decides to request accommodation, the individual or his/her representative must let the employer know that he or she needs an adjustment or change at work for a reason related to a medical condition. To request accommodation, an individual may use plain English and need not mention the ADA or use the phrase reasonable accommodation. [59]

The Psychiatric Enforcement Guidance gives an example of an accommodation request, when an employee asks for time off because he is depressed and stressed, the employee:

has communicated a request for a change at work (time off) for a reason related to a medical condition (being depressed and stressed may be plain English for a medical condition). This statement is sufficient to put the employer on notice that the employee is requesting a reasonable accommodation. However, if the employee's need for accommodation is not obvious, the employer may ask for reasonable documentation concerning the employee's disability and functional limitations.[60]

Employer advocates complained the ambiguity of the phrase depressed and stressed places an unrealistic burden on the employer and should not be enough to trigger protections under the ADA. Jonathan Mook, a lawyer counseling employers in ADA compliance, testified that employees should be required, at minimum, to communicate to the employer that they have some type of a medical, psychiatric, or mental condition that requires an accommodation or some type of change at work. Mr. Mook testified:

I think unless you have an employee coming to the employer saying, I have been diagnosed with a certain type of mental disorder, and I need this type of specific change within the workplace, employers are going to be, really, at the peril of lawsuits left and right, not knowing whether they are on notice to have a legal obligation, or no legal obligation.[61]

Mr. Mook added that the system is unworkable unless you put the obligation on an employee to come to the employer and tell that employer that the employee has been diagnosed with an identifiable mental disorder under some recognized standard. [62]

Ms. Mancuso agreed that an employee's request should not be vague. If I am giving advice to people with disabilities who want accommodations I advise them to put their request in writing, to say clearly that they are involving the ADA, or they are stating that they have a disability, and they want a reasonable accommodation. [63] Ms. Mancuso added that requiring the employee to say, I'm making this request due to a disability is not a burdensome requirement to the employee as long as it is a very simple you are not creating lots of hurdles between the person and their rights. But I think some simple language, like you need to either use the word disability, or reference the ADA, I think that is pretty common sense. [64]

Mr. Imparato strongly disagreed and testified that there are a lot of people that have no clue what the ADA is, what language to use. [65] Rather, the issue should be, what did the employer know, and did they know enough to know that they might be in an ADA environment. [66] In his opinion, because the employer is in a better position to know what is required under the ADA, the burden to inquire about whether an accommodation is necessary should be on the employer once an individual has expressed the need for an accommodation.[67] There is nothing in the statute or case law that would lead anybody to conclude that you need to use magic language in order to assert your rights under this statute. [68]

The courts, relying on the Psychiatric Enforcement Guidance, have held that no magic words are required and an individual may use plain English to trigger the process to determine whether there is a reasonable accommodation under the ADA.[69]

Providing an Accommodation

The EEOC s interpretive guidelines state, Once a qualified individual with a disability has requested provision of a reasonable accommodation, the employer must make a reasonable effort to determine the appropriate accommodation. [70] The EEOC regulations provide that reasonable accommodation means [m]odifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential function of that position. [71] Reasonable accommodation may include job restructuring, acquisition or modification of equipment or devices, reassignment to a vacant position, appropriate adjustment or modification of examinations, training materials or policies, or other similar accommodation.[72]

The Psychiatric Enforcement Guidance provides that accommodations may involve changes to workplace policies, procedures, or practices. [73] The Psychiatric Enforcement Guidance specifically provides that accommodations may include giving individuals with a psychiatric disability time off from work or a modified work schedule, physical changes to the workplace or equipment, modifications to a workplace policy, adjustments to supervisory methods, providing a job coach, and job reassignment.[74]

The regulations provide: To determine the appropriate reasonable accommodation it may be necessary for the [employer] to initiate an informal, interactive process with the [employee] with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations. [75]

The Psychiatric Enforcement Guidance elaborates on the regulations, explaining reasonable accommodations for individuals with disabilities [are] determined on a case-by-case basis because workplaces and jobs vary, as do people with disabilities. [76]

The Circuit Courts of Appeals have considered the regulations, the interpretive guidelines, and the Psychiatric Enforcement Guidance and have split in their opinions on the parties burdens in the interactive process. The Ninth Circuit held that an employee's first request for accommodation does not trigger an employer's duty to initiate an interactive process. Instead, the court found that the regulations state only that an interactive process may be necessary. The court determined that the EEOC used permissive language, which serves as a warning to employers that a failure to engage in an interactive process might expose them to liability for failing to make reasonable accommodation. The Ninth Circuit ruled an employer will be liable for discrimination if a reasonable accommodation was available, but the employer did not act upon it; however, the ADA and its regulations do not . . . create independent liability for the employer for failing to engage in ritualized discussions with the employee to find a reasonable accommodation. [77]

Other circuits, however, have concluded that both parties have a duty to act in good faith and assist in the search for appropriate reasonable accommodations.[78] The Third Circuit held that [o]nce an employer knows of the disability and the employee's desire for accommodations, it makes sense to place the burden on the employer to request additional information. [79] The Eighth Circuit held:

Although the employee at all times retains the burden of persuading the trier of fact that he or she has been the victim of illegal disability discrimination, once the plaintiff makes a facial showing that reasonable accommodation is possible, the burden of production shifts to the employer to show that it is unable to accommodate the employee.[80]

While the Psychiatric Enforcement Guidance is consistent with EEOC's regulations, a number of the reasonable accommodations discussed have been strongly criticized by attorneys for employers. Jonathan Mook finds the EEOC's inclusion of a temporary job coach as a possible reasonable accommodation problematic. In his view, this accommodation appeared out of nowhere.[81] The employer may make an adjustment in the workplace but the employer shouldn t need to have to hire somebody from the outside to come in and help an employee make that adjustment. [82] In fact, prior to the Psychiatric Enforcement Guidance, the EEOC in its interpretive guidance discussed this very issue, providing that examples of supported employment include . . . hiring an outside professional ( job coach ) to assist in job training. [83]

There are also disagreements about the Psychiatric Enforcement Guidance's job reassignment provision. The Psychiatric Enforcement Guidance, similar to EEOC s regulations, provides that:

reassignment must be considered as a reasonable accommodation when accommodation in the present job would cause undue hardship or would not be possible. Reassignment may be considered if there are circumstances under which both the employer and employee voluntarily agree that it is preferable to accommodation in the present position.

Reassignment should be made to an equivalent position that is vacant or will become vacant within a reasonable amount of time. If an equivalent position is not available, the employer must look for a vacant position at a lower level for which the employee is qualified. Reassignment is not required if a vacant position at a lower level is also unavailable.[84]

Mr. McDonald countered that reassignment is not always that simple. He testified, What we have seen across the country in litigation are situations where, to grossly oversimplify, my boss has made me crazy, and therefore I need a new boss as a reasonable accommodation, or my boss has made me mentally ill, or my boss has given me a stress reaction, authority figure stress reaction. [85] He added, Even though the current boss may be rude and unpleasant and a difficult person to work with, that is just kind of the nature of the workplace. You cannot turn that into a mental disability claim. [86] In a subsequent publication, the EEOC clarified that an employer does not have to provide an employee with a new supervisor as a reasonable accommodation. [87]

Another difficult area of reasonable accommodation is when an employee is requesting relief from performance obligations. Some employees, Mr. McDonald testified,

want to have different standards of performance applied to them . . . they want to somehow be given a dispensation from different kinds of quality or quantity work standards. And that is the tough issue, because you are not dealing with how could we modify the workplace, or how could we even modify the work schedule, or we could let this person work at home, or we could give them a Dictaphone, or a computer, whatever would physically make it easier.[88]

Mr. McDonald said it is the intangibles that they want changed that produce a very difficult situation for the employer. [89]

After the Commission's ADA hearing, one Circuit Court of Appeals held that while EEOC's regulations require reasonable accommodations, the Psychiatric Enforcement Guidance specifically provides that a reasonable accommodation does not require lowering standards or removing essential functions of the job. [90]

Conduct, Misconduct, and Discipline

The Psychiatric Enforcement Guidance provides that maintaining satisfactory conduct and performance typically is not a problem for individuals with psychiatric disabilities, but that circumstances may arise when employers need to discipline individuals with such disabilities for misconduct. [91]

An employer may discipline an individual with a disability for violating a workplace conduct standard even if the misconduct resulted from a disability if the workplace conduct standard is job-related for the position in question and is consistent with business necessity. [92]

The Psychiatric Enforcement Guidance specifically provides that nothing in the ADA prevents an employer from maintaining a workplace free of violence or threats of violence, or from disciplining an employee who steals or destroys property. [93] In essence, if the employer would impose the same discipline on an employee without a disability, it may discipline an employee with a disability for engaging in such misconduct. If, however, the conduct standard is not job related and consistent with business necessity, imposing discipline under them could violate the ADA. [94] Mr. McDonald characterized the requirement as imposing a dramatic new burden on employers.[95]

Critics, including Mr. McDonald, point to the example in the Psychiatric Enforcement Guidance of a disheveled and rude warehouse worker with an unspecified mental disability as an illustration that EEOC operates in a vacuum without adequate consideration of the realities of the workplace. In the example, an employee with a psychiatric disability works in a warehouse loading boxes for shipment. The employee does not come into regular contact with other employees and has no customer contact. The employee begins coming to work appearing increasingly disheveled. His clothes are ill-fitting and often have tears in them. [96] The employee also becomes increasingly anti-social. Coworkers complain that the employee is abrupt and rude. His work, however, has not suffered. [97] The Psychiatric Enforcement Guidance provides that because the warehouse worker had no customer contact and irregular coworker contact, the company s requirement in its handbook that employees have a neat appearance and be courteous to each other was neither job related for that position nor consistent with business necessity.[98] Thus, rigid application of these rules to this employee would violate the ADA, according to the EEOC.[99]

Mr. McDonald termed this a bizarre interpretation of the ADA that runs counter to common sense as well as virtually every reported court decision on the subject. [100] He testified that it is troublesome that employers may have to accommodate misconduct on the part of mentally disabled employees if that misconduct can be linked with disability.[101] Mr. McDonald added, It is a horrible example, and a horrible principle. I think one of the things that the EEOC is trying to do here, and I think this is just flat wrong . . . is to say that employers should have to accommodate misconduct. [102]

Mr. Imparato agreed that the Psychiatric Enforcement Guidance example is bad, but the principle is a good principle, which is, if you are going to apply a conduct standard, a conduct rule, don't apply every rule in your employee manual equally, employ a rule that is job related and consistent with business necessity, if it is going to be used to discipline someone. [103]

Mr. Imparato testified that a good example is a manual that says, everybody has to be at their desk at 9 o clock, but you have some employees for whom that is not as important. . . . It doesn't make sense to apply that rule across the board, if the employee has a legitimate disability-related reason not to be able to be at their desk at 9 o clock. [104]

During the public session at the Commission's ADA hearing, EEOC Attorney Peggy Mastroianni defended the warehouse example. Ms. Mastroianni testified that while the warehouse worker's social skills are less than they ought to be, he is not threatening anyone. [105] Ms. Mastroianni then asked:

The question about this warehouse worker is this: since he is essentially working alone, what would you rather have him do? Would you rather have him stay home and collect benefits, or is it okay for him to be in your fairly isolated workplace, make money, pay his taxes, and even though he is not the most socially acceptable person in the world doing his job?[106]

Thus, unless the employee is violating conduct standards or is a direct threat, under the Psychiatric Enforcement Guidance he should be allowed to continue his employment.

The majority of the federal circuit courts, consistent with the Psychiatric Enforcement Guidance, have held that an employer may hold a disabled employee to the same standards of conduct to which it would hold a nondisabled employee. In rejecting arguments that misconduct caused by disability is protected, the courts have reasoned that Congress, in enacting the ADA, intended to prohibit unfair stereotypes about people with disabilities but not to shield them from the consequences of misconduct.[107]

Direct Threat and the Individual with a Psychiatric Disability

The ADA allows an employer to lawfully exclude individuals from employment, for safety reasons, if the employer can show that employment of the individual would pose a direct threat to the health or safety of other individuals in the workplace. [108] The EEOC regulations provide that direct threat means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. [109] The regulations require that the determination that an individual poses a direct threat shall be based on an individualized assessment of the individual s present ability to safely perform the essential functions of the job. [110] Factors to be considered in determining whether an individual poses a direct threat include the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm.[111] 

The Psychiatric Enforcement Guidance relies on both legislative history and the EEOC interpretive guidance to expand upon these regulations by requiring that the employer must identify the specific behavior on the part of the individual that would pose a direct threat. An individual does not pose a direct threat simply by virtue of having a history of psychiatric disability or being treated for a psychiatric disability. [112] Where an individual has a history of violence or threats of violence, identification of the specific behavior that would pose a direct threat must include an assessment of the likelihood and imminence of future violence. [113]

Some employer advocates think this is an unreasonable and unworkable standard. Mr. Mook testified that while the Psychiatric Enforcement Guidance examples for direct threat provide some help to employers, there is a gray area which is not directly addressed in the guidance, about whether an employer can ask an individual to go on leave and before [coming back] to have a psychiatric evaluation [to determine if he or she is] going to be a threat to the other persons in the workplace. [114] Mr. Mook testified:

The standard should be one where the employer has some objective evidence of behavior by an employee that is causing concern among other employees and is raising concerns with other employees. And that should be sufficient for an employer, then, in that employer's discretion, to take some type of action, such as putting an employee on leave, and before that employee would come back to work, to have that employee have an evaluation pertaining to whether that employee could be a threat to the other employees.[115]

Nevertheless, courts have generally upheld the termination of employees when their behavior is determined to be threatening. In 1997, the Court of Appeals for the Seventh Circuit held:

[I]t is true that an employer has a statutory duty to make a reasonable accommodation to an employee's disability, that is, an adjustment in working conditions to enable the employee to overcome his disability . . . we cannot believe that this duty runs in favor of employees who commit or threaten to commit violent acts.[116]

The court held that no ADA issue exists when an employee is fired due to unacceptable behavior, even if the behavior was precipitated by a psychiatric disability, because threatening other employees disqualifies one. [117] Recognizing the potential liability to employers if they are forced to accommodate employees who subsequently cause harm to others, the court held that the Act does not require an employer to retain a potentially violent employee. Such a requirement would place the employer on a razor's edge in jeopardy of violating the Act if it fired such an employee, yet in jeopardy of being deemed negligent if it retained him and he hurt someone. [118]         

IMPACT OF THE CRITICISMS OF THE PSYCHIATRIC guidance

As discussed, issuance of the Psychiatric Enforcement Guidance sparked a national media frenzy, highlighted by editorials painting nightmare scenarios of manipulative substandard employees with headlines such as Employers are Terrified. The Richmond Times printed a cartoon of a Friday-the-13th-type character, complete with hockey mask and raised ax, as an example of an applicant protected by the ADA.[119] Many advocates see this sustained attack in the media and the proposals to roll back protections as precursor[s] to attacks on the Act's protection for people with psychiatric impairments. [120]

Indeed, the most outspoken opponents of the ADA's protections for individuals with psychiatric disabilities suggested the elimination of the ADA psychiatric coverage. At the Commission's ADA hearing, one panelist said:

One possibility would be simply to rewrite the definition of disability so that it excludes mental disabilities. Many of the horror stories that we ve heard and I don't think by calling them horror stories, I don't mean to indicate that they aren t true. I think that there are a lot of true horror stories, and I think a disproportionate number of them involve the application of the ADA to individuals with mental disabilities.

[Excluding coverage for mental disabilities] would be a quick and relatively clean way, I think, to solve a lot of the problems that the ADA has presented.[121]

Employment lawyers suggest an alternate solution less dramatic than the elimination of ADA mental disability coverage, proposing the EEOC hold formal notice and comment rulemaking. Mr. McDonald said:

[I]t would be very helpful for there to be a notice and comment and rulemaking procedure over some regulations for the application of the ADA to mental disabilities, to replace this guidance, where the input of employers, the mental health community, advocates for the mentally disabled, can all have their say, and the EEOC, or whoever is going to develop this guidance, responsibly, with due regard to the practical application of all of this, as opposed to letting this be developed through litigation, where people are suing for money, in an adversarial process.

Judges don't understand it, employers don't understand it, most lawyers don t understand. But to try to develop the law in an adversarial proceeding, when you have very little in the way of hard standards is very dangerous and problematic.[122]

Mr. Mook added that a notice and comment rulemaking effort, which seek[s] public comment, both from employers and from other interested groups, would provide clarity to this very difficult area of the law. [123]

The EEOC, however, issues all of its Enforcement Guidance without notice and comment rulemaking. The EEOC issues subregulatory guidance which requires no formal notice and comment because it allows the Agency to move in a more timely and efficient manner to address important developing issues. [124] The courts, moreover, are now relying on the Psychiatric Guidance and holding that EEOC's interpretation of the ADA is entitled to deference.[125]

Despite the initial concerns of employers that the Psychiatric Enforcement Guidance is overbroad, courts have nevertheless sided with employers in the vast majority of cases where workers claimed discrimination based on mental disability. The reasons employers succeed in a significant percentage of mental disability cases are similar to the reasons employers prevail in a high proportion of all Title I ADA cases.[126] In Title I cases, procedural and technical requirements contained in the ADA, as interpreted by the courts, create difficult obstacles for plaintiffs to overcome. [127]

To date, much of the litigation regarding psychiatric disability claims involves the threshold question of whether a person has a disability.[128] The plaintiff has to prove that he or she has a mental impairment and that this mental impairment substantially limits one or more major life activities. These three aspects of the definition of disability have proven to be significant hurdles.

Title II: Public Entities and Individuals with Mental Disabilities

People with psychiatric disabilities are the only Americans who can be denied their freedom, who can be institutionalized or incarcerated without being convicted of a crime, with minimal respect for their due process rights.[129]

Title II provides that no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or shall be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by such entity. [130] The ADA defines a public entity as any State or local government [and] any department, agency, special purpose district, or other instrumentality of a State or States or local government. [131] It defines a qualified individual with disability as a person with a disability who, with or without reasonable modifications . . . meets the essential eligibility requirements for the receipt of services or the participation in programs . . . provided by a public entity. [132]

Department of Justice (DOJ) regulations implementing the provisions of Title II provide that public entities, including federal, state, and local agencies, are required to operate each service, program or activity so that the service, program or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities. [133] The regulations also stress the integration of individuals with mental disabilities both individuals with psychiatric disabilities and the mentally retarded into society. The regulations further require public entities to administer services, programs, and activities in the most integrated settings appropriate to the needs of qualified individuals with disabilities. [134]

During the Commission's ADA hearing, the panelists discussed Title II with respect to the issue of integration and availability of community services.

MOST INTEGRATED SETTINGS REQUIREMENT

Many thousands of families in the United States provide care for sons and daughters with mental retardation. Many of them depend on community supports and services to assist them in meeting the needs of their family member. Tragically, however, in most states, when these families seek services and supports, they come face to face with lengthy and sometimes unending waiting lists.[135]

Congress in the ADA explicitly identified unjust segregation of persons with disabilities as a form of discrimination.[136] DOJ regulations provide that integration is fundamental to the purposes of the ADA because provision of segregated accommodations and services relegates persons with disabilities to second-class status. [137]

The DOJ s mandate to public entities to integrate may have had the unforeseen result of creating longer waiting lists for those seeking to be integrated in community-based settings. Although public entities are now required to integrate, these entities do not always get the resources they need to provide these services.

Sharon Davis of The Arc, a national organization on mental retardation,[138] released a study in November 1997 documenting the time individuals with mental disabilities wait to receive community services.[139] She observed that 52,072 were waiting for residential services, 64,962 needed day/vocational services, and another 35,852 were waiting for both. Dr. Davis also said there were 5,376 people in state institutions waiting for community placement.[140] Dr. Davis also found that states choose not to maintain waiting lists for a variety of reasons, including fear of litigation, a desire not to bring public attention to the problem, fear that the waiting lists will grow as more individuals find out about or discover services, and an inability to collect and synthesize the data from the local programs across the state.[141]

Despite these numbers, there is strong support to continue to pursue the mandate to integrate individuals with mental disabilities. A. Kathryn Powers, director of the Rhode Island Department of Mental Health, testified at the Commission s ADA hearing about the movement from institutions to community-based programs for those with mental disabilities:

The principle that services should be provided in most integrated public settings is supported by the values, and by the professionalism of those who administer our public health system, and certainly by consumers. In my own state of Rhode Island, we have been able to close our only state psychiatric hospital, and have entered what I call the era of community membership that focuses all services and supports toward people with mental illness building toward recovery.[142]

While there is great support for integrated settings in the advocacy community, integration is not without its critics. Opponents of the de-institutionalization movement often contend that community placement poses safety concerns. E. Fuller Torrey, president of the board at the Torrey House, disputed this contention. He testified that discrimination against individuals with psychiatric illness is being driven almost completely by the perception by the general population that they are more dangerous than the general population. [143] Dr. Torrey stated the media often highlight criminally violent behavior committed by individuals with mental disabilities, even though most of these individuals are not being properly treated. He believes that violent acts by individuals who are not being treated make it easier for states to reject community-based placement for individuals with mental disabilities and to discriminate against them in general.[144]

Opponents also raise cost as an integration issue. Panelists at the Commission's ADA hearing addressed this contention. Joseph Rogers, executive director of the Mental Health Association and a person who has been institutionalized and has a mental disability, noted that high quality community-based care could be more expensive for individuals with multiple disabilities:

The Torrey House is a model of that kind of program, where you take people who have those kind of severe disabilities, usually multiple problems, not just mental illness, but other things added in there. . . . The problem is it costs money, and a lot of states don't want to spend that kind of money. They do want, in some cases, just to dump them in a boarding home and walk away from that kind of model.[145]

Ira Burnim, legal director of the Judge David Bazelon Center for Mental Health Law, testified that despite these contentions, institutionalization of an individual is, in fact, more expensive than community-based placement.[146]

Olmstead s Integration Mandate

The Supreme Court, in Olmstead v. L.C.,[147] had the opportunity to consider whether the ADA mandated the integration of individuals with mental disabilities; the Court, while recognizing the need to consider integrated settings, did not mandate them.

In Olmstead, the Supreme Court upheld an Eleventh Circuit decision that segregation of individuals with mental disabilities might constitute discrimination based on disability.[148] Olmstead held that states have an obligation under the ADA to provide community placement for individuals when three conditions are met: (1) the state's treatment professionals determine that such a placement is appropriate; (2) the affected individual does not oppose the placement; and (3) the state can reasonably accommodate the placement without creating a fundamental alteration to its program, given the state s available resources and the needs of other individuals with mental disabilities.[149]

The holding in Olmstead does not require community-based services in lieu of institutionalization; however, it does require states to do more thorough analyses of individuals before refusing to provide treatment in community-based settings. Indeed, patients rights groups, in light of the Supreme Court's interpretation of Title II of the ADA in Olmstead, have pressed state and local government agencies to re-examine and try to improve the services they provide to individuals with mental disabilities.[150] The Clinton administration has also suggested that states re-evaluate the services provided to hundreds of thousands of people in nursing homes and mental institutions.[151] Similarly, Donna E. Shalala, the Secretary of Health and Human Services, issued a letter to the governors of every state and the state Medicaid directors, addressing the implications of Olmstead, stating [n]o person should have to live in a nursing home or other institution if he or she can live in his or her community. . . . Unnecessary institutionalization of individuals with disabilities is discrimination under the Americans With Disabilities Act. [152]

In response, state administrators are trying to move toward community-based placement. In Iowa, Cathy Anderson, the chief deputy director of policy for the Department of Human Services, stated, We have a lot of plans in place. Our goal is to be continually improving the options and the quality of options to people. [153] Similarly, Judith Anne Conlin, executive director of the Iowa Department of Elder Affairs, suggested that community-based planning just make[s] sense, whether it is mandated or not. [154]

Pennsylvania has also moved thousands of residents from state hospitals and institutions for the retarded into community-based settings pursuant to a five-year plan that the governor's administration is now enforcing.[155] This was the result of a federal court's determination that the Pennsylvania Department of Public Welfare discriminated against individuals confined to a Haverford institution when community-based placement in integrated settings was more appropriate.[156]

Although some state and local agencies are moving toward integrated settings, some legal scholars insist that the majority's decision in Olmstead allowed the states enough discretion to evade community-based placement. One scholar explained:

Among the elements necessary for a finding of discrimination, the Court included the recommendation from a patient's state psychiatrists that integrated, community-based treatment is appropriate for the patient. Unfortunately, the Court's deference to the professional judgment of state psychiatrists may have an unwelcome result. State institutional administrators seeking to avoid compliance with the ADA for financial reasons have opportunities to create institutional cultures in which mental health professionals despite standards of professional ethics are encouraged to withhold recommendations for community treatment. In order to achieve Congress s objective of segregating and isolating fewer mentally disabled patients in institutions, the Court should have permitted patients to contest, in a truly adversarial process, the judgment of state psychiatrists who fail to recommend community treatment.[157]

Another source asserted:

[I]t is highly significant that in the first part of its ruling, the Court made the powerful statement that the unjustified segregation of individuals with mental disabilities in institutions constitutes discrimination under the ADA. At the same time, however, it is disappointing that in the second part of its ruling, the Court conditioned the right of individuals with mental disabilities to live in the most integrated setting appropriate in a broader interpretation of the reasonable-modifications regulation.[158]

There is a concern that Olmstead allows public entities a fair amount of latitude in determining who is de-institutionalized. In Rodriguez v. City of New York,[159] a class action was brought against New York City for failing to provide safety monitor services along with other personal care services to Medicaid recipients who had mental disabilities and who needed assistance with daily living tasks.[160] The court held that the city's failure to provide the services was not discriminatory because the city did not provide this type of assistance to people with physical disabilities.[161] The court also held Olmstead did not stand for the proposition that states must provide individuals with disabilities with the opportunity to remain out of institutions.[162]

Similarly, while acknowledging Olmstead, state courts have not always required a move to community settings. In re Bear[163] found that state law indicated a preference for the least restrictive alternative, not a mandate.[164] The Pennsylvania Law Weekly noted that the In re Bear court relied on Olmstead in making its decision not to transfer a profoundly mentally retarded individual from a residential care institution at the Selinsgrove State Center in Snyder County to a community-based program.[165] According to the Pennsylvania Law Weekly, the court found that the most appropriate placement for Steven Bear was where he had lived for 44 of his 47 years. In short, the court rejected the argument put forward by several health care specialists specifically, that an individual like Mr. Bear could be, or perhaps even should be, provided with enough community services to lead a more independent life.[166]

In short, Olmstead paved the way for more de-institutionalization and has refocused the debate. State and local municipalities are now more eager to maintain that they wish to provide community-based placements and services to individuals with mental disabilities. It remains to be seen whether states will take action to further these integration goals. If not, the waiting lists for individuals needing these services will be even longer in 10 years.

The Future under Olmstead

Despite the Supreme Court's holding in Olmstead, those defending the rights of individuals with mental disabilities believe they are still debating the same issues. Some legal scholars believe that Olmstead left the states with broad discretion. First, the state, through its employees, may determine whether an integrated setting is the most appropriate environment for a particular individual. Second, the state may still argue that placement of a particular individual or individuals would fundamentally alter its existing program. Third, and most importantly, financial constraints are an important concern because the amount of funding that states actually provide is still under their control. In short, individuals with mental disabilities, or those representing such individuals, still need the approval of the state's treatment professionals, and they must argue their cases to state agencies, which may be unwilling to allow community placement because of the cost of the program, the fear of increased use of such programs, and/or the fear of liability.

To avoid the costs associated with providing such expensive integrated settings, states will argue, in light of Olmstead, that placement of certain individuals, particularly those with multiple health problems such as mental illness and Alzheimer's disease, would fundamentally alter their existing programs. Instead of maintaining that there are not enough places available for such individuals, states might argue that they have to create entirely new programs to accommodate these individuals and that this is an unreasonable request. As the debate over Olmstead s true mandate is waged, the ultimate question is whether state governments and local municipalities, perhaps with some assistance from the federal government, are willing to allocate the money and resources necessary to pay for the types of services needed by individuals with mental disabilities.

Whether individuals are in institutions or in community-based group homes is an important issue; equally important is whether these individuals are getting the services and programs necessary to assist them in leading full and productive lives. Abuse can also be found in community-based group homes.

In Washington, D.C., for example, a series of Washington Post articles uncovered various cases of neglect and abuse in the city s group homes.[167] These articles highlight the difficulty of getting needed community services to de-institutionalized individuals with mental disabilities through the city s bureaucracies. One article reported:

The District's taxpayer-funded programs for the retarded are among the most expensive in the country, with an average cost per patient of more than $100,000 a year. The Washington Post found that, with minimal oversight by city agencies and the D.C. Council, the care of the retarded and millions of dollars in public funds had been entrusted to a convicted nightclub owner and several companies with long histories of abusing or neglecting their wards. Documented abuse went unpunished: From 1990 to 1999, the city failed to issue a single fine against a company found to have mistreated a mentally retarded person. And 50 deaths in the last three years went unexamined by city officials.[168]

In a Florida case, a jury found in favor of a profoundly mentally retarded child who had been abused in Florida group homes.[169] The Florida Department of Health and Rehabilitative Services had placed Kimberly Godwin in a group home at the age of 10.[170] When the agency found that Ms. Godwin was being abused, it moved her to the Schenck Group Home in Fort Pierce, Florida. Despite signs of physical abuse at this institution as well, state caseworkers failed to follow-up on the allegations of mistreatment.[171] In December 1991, it was discovered that Ms. Godwin was pregnant. When the pregnancy was detected, she was again moved to another home but received no prenatal care for two months.[172] When Ms. Godwin was 20 weeks pregnant, her parents were informed, and she was hospitalized. She obtained an abortion, and then she returned to her parents house. Based on these facts, the jury awarded Ms. Godwin $8 million.[173]

On January 20, 2000, the National Council on Disability issued a report to President Clinton regarding the treatment and rights of individuals with disabilities titled From Privileges to Rights: People Labeled with Psychiatric Disabilities Speak for Themselves.[174] In its report, the NCD maintained that the rights of individuals with psychiatric disabilities are routinely violated and that they are treated as less than full citizens or even human beings.[175] The NCD based its report on the comments of various individuals with psychiatric disabilities who testified at a hearing it held in Albany, New York, in November 1998.[176] Moreover, the NCD called on the President and Congress to address the problems that have made the treatment of persons with mental disabilities a national emergency and a national disgrace. [177] The agency outlined several core recommendations that it believes should be considered to help resolve the mistreatment of these persons, including a movement toward voluntary treatment, the involvement of individuals with mental disabilities in the design of these services, a ban on aversive treatment and the development of cultural alternatives, an increase in the types of services offered, the modification of SSI and SSDI to support integration, and the introduction of a system that allows existing agencies to coordinate their actions and work together.[178] 

INDIVIDUALS WITH MENTAL DISABILITIES AND LAW ENFORCEMENT

There are approximately ten million Americans who experience some emotional or mental disturbance serious enough to require treatment. As a law enforcement officer, you will certainly encounter mentally ill individuals in the course of your work.[179]

Today, the delivery of law enforcement services and programs to individuals with mental disabilities is an emerging issue under Title II of the ADA and there is little case law in this area to date.[180] Most of the material on the subject is privately published information from disability rights organizations and law enforcement research institutes.[181] Nevertheless, it is an important area because nearly every aspect of law enforcement is subject to Title II of the ADA and has the potential to result in significant state and local liability. The Department of Justice's primary technical assistance document, which is distributed to local law enforcement entities, states the ADA affects virtually everything that officers and deputies do in the delivery of law enforcement services to individuals with disabilities. This includes receiving citizen complaints; interrogating witnesses; arresting, booking, and holding suspects; operating telephone (911) emergency centers; providing emergency medical services; enforcing laws; and other miscellaneous duties.[182]

The services and programs provided to individuals with mental disabilities have become important because the probability of an individual with a disability becoming involved with law enforcement as a victim, witness, or suspect will increase dramatically as the trend continues toward full integration and participation in our society for individuals with mental disabilities.[183]

Law Enforcement and Individuals with Psychiatric Disabilities

The ADA requires that police officers ensure effective communication with individuals who are deaf or hearing impaired. The obligation to have interpreters and other communication devices does not apply if it creates an undue burden, which is determined by considering all of the resources available to a police or sheriff s department.[184] Even if there is an undue burden, the department must seek alternatives that ensure effective communication to the maximum extent feasible.[185] This obligation also includes effective interaction with individuals with psychiatric disabilities.

Police officers are often the first to respond to calls involving mental illness. To assess whether they are encountering an individual with mental illness they may gather information from bystanders, family members, or observations of the individual at the scene. The symptoms of mental illness include, but are not limited to, a history of mental illness or possession of prescription medication for it; bizarre appearance, movements, or behavior; unresponsiveness or lack of emotion; agitation without clear reason; exaggerated self-confidence; delusional grandiose ideas; hallucination; or perception unrelated to reality.[186] The ability to recognize possible symptoms of mental illness and respond in the appropriate manner could be crucial to effective enforcement of a situation.

At the Commission's ADA hearing, Jim Ramnaraine, a senior human resources representative from the Hennepin County (Minnesota) Police Department, spoke about the difficulty of recognizing individuals with mental disabilities and responding appropriately:

The American Medical Association released a report that said that the doctors working as general practitioners are more likely not to diagnose someone who has a mental illness under DSM-IV than to identify that person [with] a bipolar disorder or depression. So if you look at that premise, the people who are working as professional doctors in the field can't identify somebody who has a mental illness. I think it's really challenging to expect that police officers can do that based on an encounter.[187]

Mr. Ramnaraine noted that his department developed a police videotape, which is one of the first comprehensive videotape training programs in the nation. The videotape includes information on approaching individuals with mental illness.[188] The Police Executive Research Forum (PERF) also published a document that advises police on how to respond when interacting with victims, suspects, or other persons seeking supportive services who have mental disabilities.[189]

According to the PERF, police officers should not move suddenly, give orders rapidly, shout, crowd the person, express anger or irritation, and/or use inflammatory language, including some of the more common derogatory terms like psycho or loony. [190] PERF also suggests that officers should stay calm and not overreact; speak simply and briefly; move slowly; remove distractions and upsetting influences from the scene; announce their actions before initiating them; and be aware that their police uniform, gun, handcuffs, and nightstick may frighten the person.[191]

Law Enforcement and Individuals with Mental Retardation

A publication titled A Police Officer's Guide addresses the differences between mental retardation and mental illness, explaining that they are distinct and should not be treated alike by officers.[192] Most people with mental retardation live independently in the community and may not appear to have a significant disability.[193] Moreover, mental retardation may be more difficult to detect because most individuals with mental retardation have mild retardation and may try to hide their disability in order to be liked or accepted, especially by authority figures. Law enforcement officers, with little or no training in recognizing persons who are mentally retarded, often mistake them as drunk, on drugs, or mentally ill.[194]

Advocacy groups for the mentally retarded recommend that officers make an arrest only if a crime has occurred.[195] When an arrest occurs, it is important to ensure that individuals with mental retardation understand their Miranda rights because they often answer affirmatively when asked if they understand their rights, even when they do not. The Arc has developed an extensive training program for law enforcement on effectively dealing with individuals with mental retardation.[196] The Arc recommends that officers use simple words to modify the Miranda warning and ask the person to repeat each phrase of the warning using his or her own words to check for genuine understanding rather than simple parroting of the words.[197] Although not required, The Arc also recommends videotaping the interview.[198]

In sum, police officers should always consider the possibility that a disability is involved when faced with impaired responsiveness or behavior that doesn't make sense. . . . [199] Taking people into custody solely because of behavior caused by their disability may deprive them of their rights and violate of the ADA.[200]

Title III: Public Accommodations and Psychiatric Disabilities 

Title III of the ADA was not the subject of testimony at the Commission's ADA hearing; however, this report would be incomplete without briefly highlighting some of the more significant issues affecting individuals with psychiatric disabilities under Title III.

Title III prohibits discrimination on the basis of disability by private entities operating public accommodations. Title III of the ADA provides:

No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.[201]

Public accommodations cover a wide array of private entities whose operations affect commerce ranging from lodging to places of public entertainment to service establishments to transportation services.[202] Courts are divided over whether public accommodation applies only to actual physical structures or whether it reaches beyond mere access to the physical structures.[203]

A person alleging discrimination under Title III must show (1) that he or she is disabled within the meaning of the ADA; (2) that the defendant is a private entity that owns, leases, or operates a place of public accommodation; (3) that the defendant took adverse action against the plaintiff that was based upon the plaintiff's disability; and (4) that the defendant failed to make reasonable modifications that would accommodate the plaintiff's disability without fundamentally altering the nature of the public accommodation.[204]

Most cases brought under Title III have focused on physical disabilities, rather than mental or psychiatric impairments, and there are few reported cases of businesses being challenged for operating a public accommodation and failing to accommodate a person with a mental or psychiatric disability.[205] In Roberts v. KinderCare Learning Centers,[206] the Eighth Circuit Court of Appeals considered a case alleging that a day care center did not accommodate a mentally disabled child after it failed to provide one-on-one care when the child's personal care assistant was unavailable. The court found that the child was disabled within the meaning of the ADA and that KinderCare was a public accommodation. The court rejected the requested accommodation, however, finding that to require KinderCare to provide one-on-one care for the child would be an undue burden and thus was not reasonable within the meaning of the ADA. [207]

In Amir v. St. Louis University,[208] the Eighth Circuit revisited the issue of Title III and mental disability and again denied the individual's claim. In this case, a graduate student (Amir) was expelled from the university's medical school. Amir alleged that the university discriminated against him based upon his mental disability in violation of Title III of the ADA. The Eighth Circuit accepted the district court's finding that Amir suffered from a disability because his obsessive compulsive disorder . . . affects his ability to eat and drink without vomiting, his ability to concentrate and learn, and his ability to get along with others. [209] The court also found that the university was a public accommodation under the ADA. The court then held that Amir did not provide sufficient evidence from which a reasonable jury could conclude that [the university s] adverse decisions were based upon his disability. [210] The court also concluded that none of the three accommodations suggested by Amir which included completing his psychiatry clerkship at another institution, a passing grade in psychiatry, and reassignment to another professor amounted to a reasonable accommodation under the ADA.[211]

Title III and Insurance

The issue of insurance and psychiatric disabilities has been the focus of several ADA discrimination cases. One of the questions facing courts is whether the ADA applies to insurance policies that make benefit distinctions between physical disabilities and mental disabilities. The federal courts are divided on the scope of the ADA's application.[212]

Individuals have filed lawsuits alleging that insurance coverage differentiating between individuals with physical disabilities and those with psychiatric disabilities violates the ADA. When an individual with a psychiatric disability alleges discrimination based on an employer-sponsored long-term disability plan, he or she may file suit against the employer, the private insurance provider, or both. A lawsuit filed against the employer is usually brought under Title I of the ADA; a suit against the insurer generally invokes Title III protections.[213] The lawsuits filed generally allege that the ADA is violated when long-term disability benefits are limited for mental disabilities and not limited for physical disabilities.[214]

There is a split in the federal courts for cases determining the applicability of Title III to insurance coverage decisions. In Weyer v. Twentieth Century Fox Film Corp.,[215] the United States Court of Appeals for the Ninth Circuit held that a group disability insurance policy that provided more benefits for physical disabilities than mental disabilities did not violate the ADA.[216] The court agreed with the insurance company's claim that it did not meet the definition of a public accommodation because the ADA statute implies a physical place. The court held that while the insurance office was in fact a physical place, this case is not about such matters as ramps and elevators so that disabled people can get to the office. The dispute in this case, over terms of a contract that the insurer markets through an employer, is not what Congress addressed in the public accommodations provisions. [217] Because the plaintiff did not claim to be unable to gain physical access to the insurance office or the goods and services located within it, she had no viable claim under Title III.[218]

Similarly, the Sixth Circuit, in Parker v. Metropolitan Life Insurance,[219] held that although an insurance office is a public accommodation, the plaintiff did not seek the goods and services of an insurance office; rather, she accessed a benefit plan provided by her private employer and issued by MetLife. [220] The court concluded that a benefit plan offered by an employer is not a good offered by a place of public accommodation and determined that it is evident, under the ADA statute, that a public accommodation is a physical place.[221]

Conversely, the First Circuit, in Carparts Distribution Center, Inc. v. Automotive Wholesaler s Association,[222] held that establishments of public accommodation are not limited to actual physical structures. The court examined the language of the ADA, which included the definition of public accommodation, and reasoned that the plain meaning did not require the conclusion that public accommodation was limited to physical structures.[223] The court held that by including travel service among the list of services considered as public accommodations, Congress clearly contemplated that service establishments include providers of services that do not require a person to physically enter an actual physical structure. Because many travel services conduct business by telephone or correspondence without requiring their customers to enter an office to obtain their services, the First Circuit concluded that it would be irrational to conclude that persons who enter an office to purchase services are protected by the ADA, but persons who purchase the same services over the telephone or by mail are not. Congress could not have intended such an absurd result. [224]

Title III and Professional Licensing

An emerging body of case law also addresses ADA challenges to mental health inquiries in the context of applications for membership in state medical and bar associations.[225] Mental health inquiries have been and continue to be routinely requested for applications in state bars and medical boards. Licensing boards believe that questions about mental health history have the legitimate purpose of protecting the public and the profession.[226]

In response, some mental health advocates argue that professional licensing boards inquiries into an applicant's mental health history must be eliminated because they violate the ADA's broad prohibition against discrimination.[227] Other advocates argue that mental health questions are permissible if they are limited to recent or severe instances of mental illness.[228] Still others urge that only questions pertaining to certain conduct be permitted.[229]

The courts have varied in their responses to these challenges, but the majority have held that broad questions about an individual's mental health violate the ADA leaving open the possibility that narrowly tailored questions will not be prohibited.[230] The interaction between the ADA and psychiatric disabilities is constantly evolving, and there are still many unanswered questions that likely will be resolved by the courts. For individuals with psychiatric disabilities, there have been meaningful strides in the past 10 years, but there is still much to be accomplished.

For too long, mental health has been put in parenthesis; we did not want to talk about it, and we did not take it seriously as a country. The stigma of mental illness has kept many in need from seeking help, and it has prevented policymakers from providing it.[231]