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Legal News
Employers Slowly Adapt To ADA Requirements
Psychiatric News
Volume 36 Number 2 page 19-43

In the decade since the Americans With Disabilities Act (ADA) was passed to help the disabled combat job discrimination and gain access to public services, its impact on the lives of those with psychiatric disabilities has been—much like the disorders themselves—largely hidden from view.

There has been no indicator of change as visible as wheelchair ramps or Braille elevator buttons, but there are signs that the 1990 legislation is beginning to do what its creators envisioned for those with hidden disabilities, such as obsessive-compulsive disorder and severe depression.

In the world of education, for example, "there’s no question it’s made a difference," said Karen Unger, a Portland, Ore.—based consultant and author of the Handbook on Supported Education. College students who exhibit signs of serious mental illness are not as a matter of course expelled or asked to withdraw, as was the case in years past. Instead, most schools make efforts to accommodate them, offering classes in the afternoon or providing longer testing periods, for example, to help students counter the side effects of medication.

Many of the universities that offer such assistance did so as the ADA’s legal obligations became clear. As the U.S. Department of Education’s Office of Civil Rights heard complaints, and court cases stemming from discrimination against those with psychiatric problems surfaced, educators took note. "It was a wake-up call," said Carol DeSouza, executive director of the Association on Higher Education and Disability.

One clear indicator of that was a teleconference on disabilities sponsored last spring by the University of Vermont. More than 200 colleges and universities participated, and many of them were struggling with the same questions about reasonable accommodations for those with psychiatric disabilities, DeSouza said.

"What is enough? What is too much? It’s complicated," she noted. Unlike accommodations for those with visual or auditory disabilities, those designed for students with psychiatric problems are not pro forma.

The same type of wheelchair ramp that works for a student in California will likely work for a student in Boston. But when it comes to psychiatric problems, each case is unique and must be handled on an individual basis. "There is nothing that can be transferred," DeSouza said.

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Perhaps it’s that need for individualized attention that makes employers a little slower to adapt to the ADA’s challenge. Employers have shown a reluctance to treat psychiatric disabilities with the same gravity as physical ones, experts told Psychiatric News. Until the U.S. Equal Employment Opportunity Commission (EEOC) released its guidelines on psychiatric disabilities in 1997, "the major focus has been on conspicuous disabilities," said Thomas O’Connor, director of PRS Disability Management in Falls Church, Va.

O’Connor advises employers seeking to accommodate employees with psychiatric disabilities. His company also provides job coaching to those who have psychiatric problems and are planning to return to work.

The accommodations that are often recommended by doctors or consultants, such as flexible work schedules to permit a patient to maintain close contact with his or her physician or a telecommuting arrangement to ease the anxiety of someone with a panic disorder, have been put to use, but many employers resist trying them.

"Employers are more willing to make physical accommodations," said Jennifer Mathis, a staff attorney for the Bazelon Center for Mental Health Law in Washington, D.C. Requests for flexible hours, frequent breaks, or time off sound to most employers like "a right rather than an accommodation," she said.

Those with psychiatric disabilities have a harder time than their counterparts with physical disabilities in another important respect. To gain an accommodation, employees with a psychiatric problem must reveal potentially stigmatizing details about their lives. They may fear that "once they disclose [a mental disability], they’ll forfeit their professional identity," O’Connor said.

To avoid that, Andrew Imparato, president and CEO of the American Association of People With Disabilities in Washington, D.C., recommends trying to build a reputation as a good worker before asking for an accommodation "so that it doesn’t color initial impressions," he said.

But that is not always possible. Some conditions require immediate accommodations. Imparato, who suffers from bipolar disorder, was very open with potential employers about his condition and was generally pleased with the reaction of the interviewers, save one.

Ironically, the trouble spot was an advocacy organization for the mentally ill. The group violated the ADA by calling references to ask about his workplace behavior before interviewing him, Imparato said. "That was the only bad experience I had," he said.

On a wider scale, Imparato sees signs of change. Since the EEOC issued guidance on psychiatric disabilities, calls to the Job Accommodation Network on the subject have doubled. Employees and employers have called the international hotline seeking information on reasonable accommodations. Imparato is now asked by seemingly conservative employers, such as the U.S. Department of Defense and the Bureau of Alcohol, Tobacco and Firearms, to make presentations about accommodating employees with psychiatric disabilities.

"The employers have woken up to the fact that there are ways [to do so] that are not costly or going to impact the bottom line," he said. He also attributes the heightened awareness and acceptance of psychiatric illness to the disclosures by television journalist Mike Wallace, former Clinton aide Robert Boorstin, and author and scientist Kay Redfield Jamison, Ph.D., who all revealed their personal experience with different forms of depression.

"There is an increased consciousness that people with mental illness are capable of succeeding in stressful jobs," he said.

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Not everyone shares Imparato’s enthusiasm about the post-ADA era. Thomas DeLeire, an assistant professor at the University of Chicago’s School of Public Policy Studies and a labor economist, said his research on the employment rates for the disabled suggest those rates have decreased since the passage the ADA.

DeLeire believes the reason is not the increasing availability of disability insurance—as some suggest—but the additional cost to employers to comply with the law and their perceived threat of litigation.

The success rate of employees who bring lawsuits based on the ADA is low, however. Surveys suggest only 4.3 percent of employees who bring such cases win them. But ADA proponents say that is because strong cases are settled before they make case law. "The best cases never get to litigation," said Mathis of the Bazelon Center.

Those advances aside, advocates still see need for improvement. That the EEOC reports the second highest number of ADA complaints in the category of discrimination against those with psychiatric disabilities suggests "there still seems to be a lot of problems," Mathis said.

In addition, many employers have misinterpreted two 1999 U.S. Supreme Court cases—Sutton v. United Airlines Inc. and Murphy v. United Parcel Service Inc.—and believe that they are not required to make accommodations for employees who are treated with medication, she said. People read the court decisions and incorrectly "presumed that in all cases medication controls the effects of a person’s disability. They failed to perceive the nuances," Mathis explained, and to consider cases in which medication does not remove a disability. In fact, the proper test of a disability is whether the person is unable to perform a major life function as result of the impairment. Medication side effects may exacerbate a disability instead of curing it, she said.

O’Connor of PRS Disability Management hopes employers will come to understand that their own unwillingness to address psychiatric problems only worsens the difficulty.

"They need to create policies that invite disclosure" and discourage stigmatization, he said. In an atmosphere that doesn’t support such revelations, employees won’t divulge their difficulties until their job is threatened or their job performance is seriously affected. At that point, supervisors are angry, and employees are too, he said.

The decisions in the two Supreme Court cases cited above can be found on the Web at www.findlaw.com by searching on the name or case number under the U.S. Supreme Court: Sutton v. United Air Lines Inc.: 97-1943; Murphy v. United Parcel Service Inc.: 97-1992. Both cases can also be found under the heading "1999."

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