Psychiatric Disabilities, Employment and

the Americans With Disabilities Act

March 1994

OTA-BP-BBS-124

NTIS order #PB94-156254

GPO stock #052-003-01366-5
Recommended Citation: U.S. Congress, Office of Technology Assessment, Psychiatric

Disabilities, Employment, and the Americans With Disabilities Act, OTA-BP-BBS-124

(Washington, DC: U.S. Government Printing Office, March 1994).
Foreword

F

ew activities are as central to our lives as working. For many of us, employment occupies a large portion of our waking hours and leads to

economic independence. Our jobs shape our sense of identity, self-esteem, and social connectedness. The Americans With Disabilities Act

(ADA) of 1990 makes it possible for people with disabilities to participate

more fully in this key component of modem society.

Employers and people with disabilities must translate this vision of the

ADA into a reality. Without question, psychiatric disabilities raise some of the

most challenging issues under the ADA’s employment provisions. Psychiatric

disabilities are not readily apparent. People identified as having one of these

conditions often are stigmatized in our society. Moreover, with their impact on

behavior and social interactions, psychiatric disabilities sometimes raise difficult issues for employers and coworkers.

Ongoing Congressional] interest in the ADA as well as mental health issues

led Senator Edward M. Kennedy (D-Massachusetts), Chairman of the Senate

Committee on Labor and Human Resources, to request, and several members

of the House Working Group on Mental Illness and Health Issues-Congressman Dave Hobson (R-Ohio), Congresswoman Marcy Kaptur (D-Ohio), Congressman Mike Kopetski (D-Oregon), Congressman Ron Machtley (R-Rhode

Island), and Congressman Jim McDermott (D-Washington)-to endorse the

request for this OTA background paper. In this background paper, OTA examines current knowledge about psychiatric disabilities and employment in

the context of the ADA’s requirements and reviews Federal activities directly

or indirectly aimed at supporting the ADA’s employment provisions.

Many individuals and institutions contributed their time and expertise to

this project. People with psychiatric disabilities as well as experts from government, industry, and academia participated in the preparation of this background paper, serving on a workshop panel and reviewing drafts of the chapters. OTA gratefully acknowledges their contributions and assistance. As with

all OTA analysis, however, responsibility for the content is OTA’s alone.

ROGER C. HERDMAN

Director

. . .

Ill
 -

Clyde J. Behney

Assistant Director, OTA

Health, Life Sciences &

Environment Division

Michael Gough

Program Manager

Biological and

Behavioral Sciences

ADMINISTRATIVE STAFF

Cecile Parker

Office Administrator

Linda Rayford-Journiette

PC Specialist

LAURA LEE HALL

Project Director

Jacqueline T. Keller

Research Analyst

Ami S. Jaeger

In-house Contractor

Preject Staff

CONTRACTORS

Bruce D. Emery

Cascade, MD

Kathleen A. Kirchner

Washington, DC

Laura L. Mancuso

Goleta, CA

Jane E. Stevens

Editor

Miami, FL

Kristina A. Tanasichuk

Washington, DC

Jene Lewis

Administrative Secretary
contents

1 Executive Summary 1

Defining Disability 4

Disclosing a Psychiatric Disability to an

Employer 8

Accommodating Qualified Employees With

Disabilities 9

The ADA’s Direct Threat Standard and Psychiatric

Disability 11

Health Insurance for People With Psychiatric

Disabilities 11

Relevant Federal Agencies’ Activities 12

Implications for Technical Assistance and

Research 13

2 The ADA and People With Disabilities:

An Overview 19

The ADA and Its Legal Antecedents 19

The Role of People With Disabilities 28

Summary and Conclusions 36

Chapter preferences 37

3 How the ADA and Research Define

Psychiatric Disabilities 41

The ADA’s Definition of Disability 44

Research Characterizations of Psychiatric

Disabilities 49

Summary and Conclusions 60

Chapter preferences 61

4 The ADA’s Tools for Effecting

Employment 65

Employment of People With Psychiatric Disabilities:

Requirements Under the ADA 65

Special Concerns Raised by the ADA 84

Summary and Conclusions 90

Chapter 4 References 91

v
5 Relevant Federal Agencies’

Activities 97

U.S. Equal Employment Opportunity

Commission 100

National Institute on Disability and Rehabilitation

Research 105

Center for Mental Health Services 106

National Institute of Mental Health 109

President’s Committee on the Employment of People

With Disabilities 113

Summary and Conclusions 114

Chapter 5 References 115

Appendix 5A: Survey of EEOC Field Offices About

Psychiatric Disabilities and the ADA 117

APPENDIXES

A Workshop Participants 119

B Acknowledgments 121

C List of Contractor Documents 124

D Acronyms and Glossary of Terms 125

vi
T

he Americans with Disabilities Act (ADA) is a watershed

in the history of disability rights. It outlaws discrimination against people with disabilities in nearly every domain of public life: employment, transportation, communication, recreational activities, and other accommodations (table

1-1 ). The ADA enjoyed bipartisan support during its legislative

sojourn, winning the President’s signature on July 26, 1990. Disability rights advocates celebrated passage of the ADA, hailing it

as the single most far-reaching legislation ever enacted against

discrimination on the basis of disability. Although the news media had largely ignored previous disability rights legislation, it

showered attention on the ADA’s passage and its early implementation. Executive branch agencies prepared requisite regulations. Businesses geared up for compliance and voiced concerns

about the lack of specific guidance, costs, and the risk of litigation

associated with this new law. And a new industry emerged, marketing ADA expertise and technical assistance.

At this early juncture in the law’s implementation, it is useful

to evaluate current efforts under the ADA in the area of psychiatric disabilities and employment, and to review data that may assist future implementation. This study by the Office of Technology Assessment (OTA) examines these issues, at the request of

Senator Edward M. Kennedy (D-Massachusetts), Chairman of

the Senate Committee on Labor and Human Resources, and several members of the House Working Group on Mental Illness and

Health Issues—Congressman Dave Hobson (R-Ohio), Congresswoman Marcy Kaptur (D-Ohio), Congressman Mike Kopetski

(D-Oregon), Congressman Ron Machtley (R-Rhode Island), and

Congressman Jim McDermott (D-Washington).

Executive

Summary 1

II
2 Psychiatric Disabilities, Employment, and the Americans With Disabilities Act

Brief Law’s enforcement Enforcement

description date jurisdiction

TITLE Provides that no covered

Employment entity shall discriminate

against a qualified individual

with a disability because of

the disability in regard to job

application procedures,

hiring, advancement,

employee compensation, job

training, and other privileges

of employment.

Provides that no qualified

individual with a disability

shall be excluded from

participation in or be denied

the benefits of the services,

programs, or activitives of

public entities, including

transportation facilities.

TITLE H

Public Services

TITLE III Provides that people with

Public Accommodations disabilities should have

access to existing private

businesses that serve the

public, so long as required

accommodations are ‘readily

achievable.” The list

includes hotels, restaurants,

theaters, laundromats,

museums, zoos, private

schools, and offices of

health-care providers.

Amends Title II of the

Communications Act of 1934

by adding a section

providing that the Federal

Communications

Commission shall ensure

that interstate and intrastate

telecommunications relay

services are available, to the

extent possible, to hearingimpaired and speechimpaired individuals.

TITLE IV

Telecommunications

Effective July 26,1992, for

employers with 25 or more

employees, and on July 26,

1994, for employers with15

or more employees.

Employers with fewer than

15 workers are not covered

by ADA

As of Aug. 26,1990, all new

public buses and light and

rapid rail vehicles ordered

are to be accessible; one

oar per train must be

accessible by July 26, 1995;

key commuter stations must

be retrofitted by July 26,

1993; all existing Amtrak

stations must be retrofitted

by July 26,2010.

Effective Jan. 26, 1992, for

businesses with more than

25 employers; on July 26,

1992, for businesses with

25 or fewer employees and

annual revenue of $1 million

or less; and on Jan. 26,

1993, for companies with 10

or fewer employees and

annual revenue not

exceeding $500,000.

By July 26,1993, covered

firms should have

telecommunications

services available 24 hours

a day.

U.S. Equal Employment

Opportunity Commission

Us. Department of

Transportation; U.S.

Department of Justice

U.S. Department of Justice

Federal Communications

Commission

SOURCE: CQ Researcher, The Disabilities Act(Washington, DC: Congressional Quarterly, Inc., 1991).
Chapter 1 Executive Summary 3

What does the ADA require, in terms of employment? Title I bars employers from discriminating against qualified individuals with disabilities.

No covered entity shall discriminate 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 (42 USC

121 12).

The ADA’s construction of discrimination prohibits, among other things, pre-job offer medical examinations or inquiries or the segregation of employees with disabilities. The most important

definition of discrimination is an employer’s refusal to make a reasonable accommodation. When

requested by a qualified applicant or employee

with a disability, an employer must provide a reasonable accommodation unless doing so would

impose an undue hardship.

In the first 15 months after the ADA went into

effect, 17,355 employment discrimination

charges were filed with the U.S. Equal Employment Opportunity Commission (EEOC); nearly

10 percent of these charges—1 ,710-related to

mental disorders (figure 1-1 ). That mental disorders accounted for the second largest block of

charges, as broken down by type of impairment,

hints at the importance of the issue of employment

to people with psychiatric disabilities. The numerous charges of discrimination that involve mental

disorders also signal that employers will not infrequently face issues around psychiatric disability

and the ADA.

This assessment has two major goals. The first

is to compare the ADA’s employment provisions

with what is known about mental disorder-based

or psychiatric disabilities.l The second goal is to

review Federal activities relevant to the ADA, emMental illness

9.9%

Back problems

18.90/o

Of 17,355 total ADA-related charges filed with the EEOC

between July 26, 1992 and October 31, 1993, the second

highest percentage—1, 710 charges—were related to mental

illness.

SOURCE U S Equal Employment Opportunity Commission, Dec 1,

1993.

ployment, and psychiatric disabilities. This chapter summarizes major findings of the subsequent

chapters and underscores areas of needed research, guidance, and technical assistance.

= Chapter 2 provides an overview of the

ADA’s requirements and the political and legal antecedents.

■ Chapter 3 begins with a discussion of the

ADA’s definition of disability and its potential impact on people with psychiatric disabilities. A description of psychiatric disabilities, their prevalence, common symptoms and treatment,

associated functional limitations, and their impact

on employment forms the chapter’s second section.

■ Chapter 4 considers many of the crucial requirements of Title I of the ADA, including dis1 The report focuses on mental disabilities, a broad rubric. However, some conditions are not discussed, including substance abuse disorders, developmental disabilities such as mental retardation, and other cognitive and neurological impairments. While these impairments and

resulting disabilities raise important questions under the ADA—some similar and some distinct from the conditions considered in this study—

they are beyond the scope of this report.
4 Psychiatric Disabilities, Employment, and the Americans With Disabilities Act

closure, qualification standards, reasonable accommodations, and the issue of direct threat. The

ADA’s potential impact on mental health benefits

is also discussed.

. Chapter 5 reviews Federal enforcement,

technical assistance, and research support related

to the ADA, psychiatric disabilities, and employment.

The ADA represents a significant advance in

the history of disability rights. The language of the

law, the regulations and guidelines offered by the

EEOC, experience with the Rehabilitation Act of

1973, the activities of employers and employees

implementing the ADA, and technical assistance

efforts all guide the ADA’s implementation.

Nonetheless, employers and people with psychiatric disabilities have concerns about the law

and its implementation. Employers fear the costs

of implementation and liability under the law and

want more specific guidance as to their responsibilities. People with psychiatric disabilities fear

that the language of the law and relevant guidelines often do not speak to their needs. Indeed,

OTA concludes that inadequate knowledge of

relationships between psychiatric disabilities and

employment coupled with few efforts to apply

available knowledge to the requirements of the

ADA are impediments to the law’s implementation. In the absence of further research and guidance, employers and people with psychiatric disabilities are handicapped in exercising their rights

and responsibilities under the law.

DEFINING DISABILITY

Drawing from the Rehabilitation Act, the ADA

offers a three-pronged definition of disability.

Disabled individuals are:

● those with a physical or mental impairment that

substantially limits one or more major life activities,

• those with a record of such an impairment, or

■ those who are regarded as having such an impairment.

The first prong of the definition asserts that a

disability reflects impairment and functional result. This definition limits the ADA’s protection to

those individuals with significant or non-trivial

impairments. The second and third prongs are

based on the widely held belief that disability is

the result of an impairment and the way others perceive an individual with an impairment. Since

mental disorders commonly provoke negative

reactions and attitudes—stigma—these two

prongs of the definition are especially important

to people with psychiatric disabilities. Part of the

ADA’s mandate is to make questions about psychiatric disabilities or mental health history things

of the past. Title I of the ADA prohibits employers

from asking about disabilities or using any information sources that disclose disability status,

including voluntary medical examinations,

educational records, prior employment records,

billing information from health insurance, and

psychological tests, prior to a job offer.

Although the law excludes several specific psychiatric diagnoses,2 the ADA explicitly includes

mental disorders under its protection: “(M)ental

impairment mean(s). . . (a)ny mental or psychological disorder, such as. . . emotional or mental

illness” (29 CFR 1630.2(h)(2)). While the EEOC

does not rely on a specific diagnostic framework

to identify such impairments, many experts contend that as a practical matter, a DSM-111-R (the

Diagnostic and Statistical Manual, 3d edition, revised) diagnosis will be necessary, if not sufficient, to meet the ADA definition. Beyond the

problems involved in diagnosis, mental disorders

present problems related to relapsing and remitting symptoms and impairing side-effects of

medications. EEOC staff, in review of an earlier

draft of this report, indicated to OTA that the upcoming compliance manual will state that episod2 Excluded disorders include transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting

from physical impairments, other sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use

disorders resulting from current illegal use of drugs.
Chapter 1 Executive Summary 5

ic disorders may be ADA disabilities and that

side-effects of medications may also be substantially limiting.

Having an impairment does not equal having a

disability. Under the ADA, disability is an impairment that “substantially limit(s) one or more of the

major life activities.” Of the major life activities

listed by the EEOC-caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working—working

is the only one that really applies to people with

psychiatric disabilities, according to some commentators on the ADA. Thus, people with psychiatric disabilities may find themselves in a

Catch-22 situation, having to prove that they are

substantially limited in working, and yet are qualified for the job-both requirements of the ADA.

Others, including the EEOC, note that the list of

major life activities provided by the EEOC was

not meant to be exhaustive and that mental disorders can limit many of the life activities listed. Importantly, assessment of functioning in mental

disorders is not an easy or validated technique

(box l-l). Additional guidance from the EEOC

and others on how mental disorders may limit now

specified and other major life activities would

help clarify this issue, as would research into functional assessment.

The above discussion begs the question: What

activities do mental disorders commonly limit? A

variety of sources point to three major areas of

functional limitations related to mental disorders

and especially relevant to work: problems in social functioning, difficulty concentrating long

enough to complete tasks, and problems coping

with day-to-day stress.

This OTA report unveiled substantial disagreement among mental health experts as to the relationship between mental disorders and employment outcome. Some say nearly no correlation

exists. Others point to data that show a significant

correlation between psychopathology, treatment

status, and work performance. Such disparate

conclusions point out that existing data are obviously incomplete. Studies have used different

measures of psychiatric symptomatology, work

performance, and vocational outcome. Furthermore, treatment status and individual ability are

almost always ignored, as are traditional labor

predictors, the type or amount of vocational services that an individual may have received, job

history, changes in demand for labor, and demoralization caused by stigma and discrimination.

Resolution of how impairment, functional limitation, and work disability relate to one another

awaits further research.

Nonetheless, some conclusions can be drawn

about people with mental disorders and work: Research data support a link between symptoms and

work performance. Furthermore, data indicate

that treatment may significantly improve work

functioning and outcome. Thus, even though

treatment may not be mandated by the ADA (see

later discussion), access to effective treatment will

be paramount for some individuals with mental

disorder-based disabilities to maintain employment.

The precise relationships among impairments,

functional limitations, and work are obscure and

complex. Diagnoses do not predict rehabilitation

and employment outcomes except in the broadest

terms, and there are wide variations in outcomes

within diagnostic groups. Moreover, research data

support the contention of many working in this

field that treatment itself can sometimes result in

other functional impairments. One thing that is

clear is that prior work performance remains the

best predictor of future work performance.

People with psychiatric disabilities are by no

means a homogeneous population. Distinct subgroups exist—ranging from people with the most

severe mental disorders and others with less severe conditions—whose members can probably

expect different things from the ADA.

People with the most severe mental disorders,

clearly covered by the ADA’s definition of disability, are unlikely to achieve competitive employment by virtue of the ADA alone. They will require a broad range of educational, psychosocial,

and vocational services to prepare them to find

and keep jobs; to make them “qualified people

with disabilities” as required by the ADA.
6 I Psychiatric Disabilities, Employment, and the Americans With Disabilities Act

Models of disability and data from research show that identifying a particular diagnosis or symptom is

insufficient to determine the severity of disability, required services, or work limitations, In order to qualify for

the ADA’s protections a person must bean individual with an impairment that “substantially limit(s) one or

more of the major life activities. ” EEOC investigators, employers, people with mental disorders, and mental

health care providers face the challenge of determining who with a mental disorder has a psychiatric disability under the law.

The Status of Functional Assessment

Questionnaires, interviewing techniques, and observational approaches have been developed to

assess disability, and disability assessment has become a standard part of vocational and psychosocial

rehabilitation services. The goals of assessment maybe very general, aimed at measuring social skills, the

ability to maneuver every-day requirements, and work performance; or very specific, aimed at specific disorders and functions. Recent analyses have documented shortcomings of these disability assessment

methods, Following a comprehensive review, one researcher concluded that no one instrument was wholly

adequate for assessing functional impairments. Recently this same scholar noted that:

[B]etter methods of assessment would improve both the interpretation of future evaluations and current clinical practice. Most evaluations use relatively idiosyncratic methods of measuring role functioning. What is needed is an easily administered, low-cost assessment tool that not only measures individuals’ impairments and role

functioning, but provides information that is directly relevant to treatment decisions,

Similarly, expert reviewers of social functioning measures concluded that modest reliability and the lack

of evaluation limit the usefulness of available assessment tools, Furthermore, they concluded, none is simple enough for routine clinical use. These conclusions are in the National Institute of Mental Health’s plan for

services research, which states that:

Although [disability]. . . assessment seems logical and straightforward enough, the truth is that the mental

health field is still without an adequate arsenal of instruments and techniques to fully accomplish the task. . . No

aspect of clinical services-or of research designed to improve such services-can prosper without the availability of meaningful and valid techniques for assessing the status of mentally ill patients, not only in purely clinical terms but also in terms of their everyday functioning in the real world and their strength on which rehabilitation

can build. Needed are. . ways to assess general health status and physical functioning, the quality of the

patient’s life, the nature of the family’s burden, and the patient’s rehabilitation potential and progress.

Disability Assessment at the Social Security Administration

The experience of the Social Security Administration (SSA) illuminates the pitfalls of implementing disability assessment. SSA administers two disability income maintenance programs: the Social Security Disability Insurance (SSDI) program and Supplemental Security Income (SSI) program. Eligibility for these programs hinges on the inability to work. The methods used by SSA to assess severe psychiatric disability in

the 1980s was said to be difficult to use, too subjective, out of date, and discriminatory, “The essential problem is that it is not possible to construct a set of medical and vocational standards that will distinguish

perfectly between those who are able to work and those who are not able to work.” The public outcry that

resulted from a disproportionate number of people with severe mental disorders being terminated from the

programs led Congress to order a revision of SSA’s psychiatric disability assessment methods. The new

method includes the consideration of diagnosis as well as limitations in four areas of functioning: activities of

daily living; social relations; cognitive functioning such as concentration, persistence, and pace; and decompensation or deterioration in work. Consideration of environmental interventions was also provided as

an option in the assessment.
Chapter 1 Executive Summary 7

SSA’s current disability determination is not without its critics: An American Psychiatric Association study

of the new guidelines indicates that additional changes may improve the disability determination; the use of

this assessment method by psychiatrists and other care providers also warrants improvement; some have

criticized the increasing number of people with psychiatric disabilities who now receive SSI or SSDI,

It should be noted that the SSA’s disability determination procedure is not appropriate for the ADA, The

elaborate hurdle that people with disabilities must vault to receive SSA program benefits would limit unduly

the ADA-guaranteed protections against discrimination. In addition, the definition of disability under the

ADA obviously is not limited to individuals who cannot work at all.

Functional Assessment and the ADA

The ADA defines disability in terms of impairment and functional limitations. In general, an applicant or

employee discloses the presence of a disability to an employer or covered entity, often providing very limited information. The employer may require confirmation of a disability that is not readily apparent, such as a

psychiatric disability. Also, the EEOC must make a determination as to whether an individual is considered

disabled under the ADA in the event that a charge of discrimination is filed. To date, in its computerized

charge data system, the EEOC simply lists the marginally informative term “mental illness” as the impairment relevant to psychiatric disability, 1 The EEOC will be implementing a new coding system for disabilities

in fiscal year 1994 and it will include a category for “emotional/psychiatric impairment, ” under which there

will be separate entries for anxiety disorder, depression, manic-depressive disorder, schizophrenia, and

other emotional/psychiatric condition where none of the above clearly apply. What doesn’t exist are guidelines for determining who with a mental disorder has an impairment that substantially limits a major life activi -

ty—is disabled under the ADA’s definition. Convening a group of experts and interested parties to help fashion guidance for EEOC investigators and others, concerning diagnoses and other assessment criteria relevant to the ADA and employment would be useful. Continued research and the development of functional

assessment tools also represent critical needs.

1 Mental retardation IS appropriately Iisted separately from mental Illness

SOURCES C Koyanagi and H Goldman, Inching Forward A Report on Progress Made in Federal Mental Health Policy in the 1980s

(National Mental Health Association, 1991 ), U.S. Department of Health and Human Services, Toward a National P/an for the Chronically Menfa//y /// (Public Health Service, Washington, DC, 1980), H A Pincus, C Kennedy, and S J Simmens, American Psychiatric

Association, Washington, DC, “Study of SSA Methods and Standards for Evaluating Dlsability Based on Mental Impairment, ” final

report to Social Security Administration (SSA-600-84-01 74), November 1987; H A Pincus, C Kennedy, S J Simmens, et al , “Determlnlng Dlsability Due to Mental Impairment, APA’s Evaluation of Social Security Administration Guidelines, ” American Journal of Psychiatry 1481037-1043, 1991, H.H Goldman, A.E, Skodol, and T R Lave, “Revising AxIs V for DSM-IV A Review of Measures of Social

Functlonlng, ’’American Journal of Psychiatry 1491148-1156, 1992, C J Wallace, ‘( Functional Assessment in Rehabilitatiion,” Schizophrenla Bulletin 12604-630, 1987

Some mental health experts and advocates have mental disorders, their employment characterissuggested that the ADA’s impact will be most tics, accommodation needs, or even who among

strongly felt by people with less severe mental dis- this group would be covered under the first prong

orders, who are already working in a competitive of the ADA’s definition of disability, which refers

setting. Diagnosable mental disorders and symp- to individuals with serious or nontrivial disabilitoms are common among working-age adults. ties. While courts have been expansive in defining

However, much less is known about the functional mental impairment per se under the Rehabilitation

limitations of the population with less severe Act, substantially limiting psychiatric impair-
 . _ .

8 I Psychiatric Disabilities, Employment and the Americans With Disabilities Act

Abraham Lincoln Virginia Woolf Lionel Aldridge Eugene O'Neill Beethoven

Gaetano Donizetti Robert Ochumann LEO Tolstoy Vaslou Nijinsky

John Keats Tennessee WilliamsVincentVan Gogh Isaac Newton Ernest Hemingway

Sylvia Plath Michelangelo WINSTON CHURCHILL Vivien Leigh

Emperor Norton I Jimmy Piersall Patty Duke Charles Dickens

PEOPLE WITH MENTAL ILLNESSES ENRICH OUR LIVES.

These people have experienced one of the major mental illness of Schizophrenia, Manic-Depression and/or Depression,

As indicated in this poster from the National Alliance for the Mentally Ill, mental health advocates emphasize the talent and

productivity of people with psychiatric disabilities.

ments have sometimes been defined more restrictively. Unless questions are answered concerning

these less severe conditions—Which ones are

covered? How can such determinations be

made?—the ADA is open to excessive subjectivity in claims of psychiatric disability.

DISCLOSING A PSYCHIATRIC DISABILITY

TO AN EMPLOYER

Before an employer provides an accommodation,

indeed before the ADA requires that one be provided, an applicant or employee must disclose his

or her need. The obvious gateway to disclosure is

employee awareness: A person with a disability

must know about the ADA’s protections before

tapping into them. However, a 1993 Harris poll

shows that less than 30 percent of people with any

disabilities had ever heard or read about the law.

Ignorance of the ADA’s provisions is only the

first hurdle to disclosure. A person with a psychiatric disability faces what may be a wrenching

decision about divulging his or her mental disorder to a current or would-be employer. Lack of

awareness that a mental disorder exists or unwillingness to label oneself disabled prevents such

self disclosure. Another obstacle to disclosure is

the fear that disclosing a condition invites the stigma attached to mental disorders. While attitudes

toward mental disorders may be improving, research data continue to show that ignorance and

negative attitudes are attached to these conditions.

By disclosing a psychiatric disability, an individual risks discrimination, teasing or harassment,

isolation, stigmatizing assumptions about his or

her ability, and the labeling of all behavior and

emotions as pathological. The most pernicious aspect of stigma maybe the way in which it undermines an individual’s self-esteem and social interactions.

Disclosure may gamer benefits for the individual with a disability, however. In addition to invoking the protection of the ADA, in the right circumstances, openly admitting a mental disorder

may enhance self-esteem, diminish shame, permit

supervisors and coworkers to offer support, and

even lengthen job tenure.

After making a decision to disclose a mental

disorder, a person also must consider what to disclose, to whom, and when. Legally, an employee

need disclose only enough information about his

or her disability-related work limitations to support the need for accommodation. There is no legal requirement to disclose prior to the need for an

accommodation. However, problems may arise if

disclosure occurs only when performance problems have been raised or acted upon by the employer. Little guidance is available to assist people

with psychiatric disabilities and their employers
Chapter 1 Executive Summary 9

during the disclosure process. With the passage of

time and the gaining of experience, the researchers, the EEOC, and other organizations may be

able to delineate the methods of disclosure that

work well, determine the factors that led to their

success, and disseminate this information to employers and people with psychiatric disabilities.

ACCOMMODATING QUALIFIED

EMPLOYEES WITH DISABILITIES

Title I of the ADA requires employers to provide

reasonable accommodations to qualified individuals with disabilities, unless these accommodations pose an undue hardship. As the linchpin of

the ADA’s antidiscrimination requirement, the

identification of effective accommodations for

people with psychiatric disabilities becomes critical. Because many people construe a disability as

a physical disability, such as being in a wheelchair, accommodations are often viewed in physical terms, such as building a ramp. Some changes

to the physical environment, such as a private office or secluded work space, may be useful to

those with psychiatric disabilities along with other measures, such as restructuring job tasks or

schedules. OTA found that several mental health

experts and consumer groups have compiled lists

of accommodations. In addition, at least one study

surveyed businesses as to the accommodations

provided to employees with disabilities under the

Rehabilitation Act (figure 1-2). Many of the identified accommodations address the functional

limitations commonly associated with psychiatric

disabilities: difficulties in concentrating, dealing

with stress, and in managing interpersonal interactions (e.g., table 1-2).

Lists of commonly desired or used accommodations, while informative, do not supplant the

need for case-by-case assessment. Work places

and jobs vary, as do people with psychiatric disabilities, who have a broad range of talents, abilities, and functional limitations. Furthermore,

more information and guidance are needed about

the cognitive, behavioral, and social requirements

of jobs. Also, questions about applicability, effectiveness, preference, cost, and impact on the work

Oriented coworkers/supervisors 47.4%

c

.o

=

3

E

E

8

v

(u

5

Reassigned tasks 22.8%

Transferred to 21.1% another job

E=-J’”8’0

a , ,

laE.-.4’0’0

Other accommodations 14%

0 10 20 30 40 50

Percent of accommodated employees with

psychiatric disabilities

Data from survey of employers, commissioned by the U.S.

Department of Labor indicated that the most frequent

accommodation provided to individuals with psychiatric

disabilities under the Rehabilitation Act was the orientation of

supervisors and coworkers,

SOURCE: Berkeley Planning Associates, A Study of Accommodations

Provided to Handicapped Employees by Federal Contractors, Vol 1

Study Findmgs (Washington, DC U S Department of Labor, 1982)

place of various accommodations are largely unaddressed.

Commonly suggested accommodations include those that address treatment needs, such as

leave for short-term hospitalization. The need for

occasional medical leave raises some difficult issues for employers. Based on experience under

the Rehabilitation Act, an employer’s duty of reasonable accommodation will almost certainly include the duty to tolerate additional, unpaid absences. However, regular and predictable

attendance is commonly viewed as a minimum

standard of performance. Differentiating between

additional absences as a reasonable accommodation and absences as a performance problem will

prove challenging to many employers.

While the EEOC does not require employers to

provide treatment to employees as a reasonable
10 I Psychiatric Disabilities, Employment, and the Americans With Disabilities Act

Flexibility

■ Providing self-paced workload and flexible hours

■ Allowing people to work at home, and providing necessary equipment

■ Providing more job-sharing opportunities

■ Modifying job responsibilities

• Providing supported employment opportunities

■ @@rig-job open and providing a liberal leave policy (e.g., granting up to 2 months of unpaid leave, if it does not cause

undue hardship on the employer)

■ Providing back-up coverage when the employee needs a special or extended leave

■ Providing the ability to move laterally, change jobs, or change supervisor within the same organization so that the person

can find a job that is a good fit

■ Providing time off for professional counseling

■ Allowing exchange of work duties

■ Providing conflict resolution mechanisms

Supervision

■ Providing written job instructions

■ Providing significant levels of structure, one-to-one supervision that deals with content and interpersonal skills

■ Providing easy access to supervisor

■ Providing guidelines for feedback on problem areas, and developing strategies to anticipate and deal with problems before

they arise

■ Arranging for an individual to work under a supportive and understanding supervisor

■ Providing individualized agreements

Emotional supports

■ Providing ongoing on-the-job peer counseling

■ Providing praise and positive reinforcement

■ Being tolerant of different behaviors

■ Making counseling/employee assistance programs avaliable for all employees

• Allowing telephone calls during work hours to friends or others for needed support

■ Providing substance-abuse recovery support group and one-to-one counseling

■ Providing support for people in the hospital (e.g., visits, cards, telephone calls)

■ Providing an advocate to advise and support the employee

■ identifying employees who are willing to help the employee with a psychiatric disability (mentors)

■ Providing on-site crisis intervention services

■ Providing a 24-hour hot-line for problems

■ Providing natural supports

Physical accommodations at the workplace

■ Modifying work area to minimize distractions

■ Modifying work area for Privacy

■ Providing an environment that is smoke-free, has reduced noise, natural light, easy access to the outside, and is wellventilated

■ Providing accommodations for any additional impairment (e.g., if employees with psychiatric disabilities have a visual or

mobility impairment, they may need such accommodations as large print for written materials, 3-wheel scooter, etc.)

Wages and benefits

Ž Providing adequate wages and benefits

■ Providing health insurance coverage that does not exclude preexisting conditions, including psychiatric disabilities, HIV,

cancer, etc.

■ Permitting sick leave for emotional well-being, in addition to physical well-being

■ Providing assistance with child care, transportation, care foraging parents, housing, etc.

■ Providing (specialized) training opportunities

Dealing with coworkers’ attitudes

■ Providing sensitivity training for coworkers

■ Facilitating open discussions with workers with and without disabilities, to articulate feellngs and to develop strategies to deal

with these issues

■ Developing a system of rewards for coworkers without disabilities, based on their acceptance and support for their coworkers

With disabilities

The items on this list do not necessarily reflect ‘reasonable accommodations’ as defined by the ADA.

SOURCE: Presidents Committee on Employment of People With Disabilities, 1993
Chapter 1 Executive Summary 11

accommodation, other complicated, controversial, and often unanswered questions concerning

treatment are sure to arise. Can employees be required to take medication to maintain their jobs?

Can employers monitor medications as a reasonable accommodation for employees? Full discussion of these issues—by mental health and legal

experts, employers, and people with psychiatric

disabilities—is clearly needed.

Accommodating aberrant or unusual behavior,

which is sometimes associated with mental disorders, also raises some difficult issues for employers. Most lists of accommodations prepared by advocates and mental health experts recognize that

increased tolerance of unusual behavior is desirable. It is noteworthy that the EEOC’s guidance on

undue hardship goes beyond dollars: “Undue

hardship” refers to any accommodation that

would be unduly costly, extensive, substantial, or

disruptive . . .“ However, the EEOC provides no

specific guidance on disruptive behavior. Case

law under the Rehabilitation Act generally limits

the employer’s responsibility to accommodate

disruptive behavior. While work place training

may sensitize supervisors and coworkers to some

of these issues, and decrease the stigma against

mental disorder, EEOC staff, in comments on an

earlier draft of this report, indicated to OTA that

it is undecided as to whether coworker training

could be a reasonable accommodation. Furthermore, effective work place training, whether required or voluntarily instituted by the employer,

is likely to require more than the distribution of

pamphlets; a clear work place policy and thoughtful and evaluated educational activities will be vital.

THE ADA’S DIRECT THREAT STANDARD

AND PSYCHIATRIC DISABILITY

Under the ADA, employers may include as aqualification standard “a requirement that an individual shall not pose a direct threat in the work place.”

The EEOC regulations and guidelines procedurally narrowed the definition of direct threat to include only significant risk of substantial and imminent harm, individually and expertly assessed,

which cannot bee] eliminated or reduced by reasonable accommodation.

Clearly, employers and coworkers have legitimate concerns about their safety at the workplace.

Still, the ADA’s reference to direct threat touches

a raw nerve among people with psychiatric disabilities, their families, and other advocates. If

any one stereotype of mental illness is most prevalent and damaging, it is that of the homicidal maniac. To counter this stereotype, anti-stigma campaigns typically assert that people with mental

disorders are no more violent than the average person. However, a variety of data show a link, albeit

a modest one, between mental disorders and violent behavior. In particular, data suggest that a

small subset of mental disorders—psychotic disorders, indeed specific aspects of psychosis, when

a person feels personally threatened or the intrusion of thoughts that can override self-control—

are linked to violence. Many studies show, however, that substance abuse and a history of violent

behavior are more tightly correlated to violence in

people whether or not there is evidence of psychiatric disability.

On the basis of relevant case law and concerns

about employer liability, the EEOC broadened the

direct threat provision to include not only a threat

to others, but also to one’s self. For example, an

employee with narcolepsy could be at risk of

harming him or herself if he or she fell asleep

while operating apiece of heavy machinery. Many

disability rights advocates decried this interpretation, however, claiming that it went well beyond

the law’s language and intent. Neither the ADA

nor the U.S. Department of Justice Title II regulations mention direct threat to self. Experts and advocates on both sides concede that the issue likely

will be decided by the courts.

HEALTH INSURANCE FOR PEOPLE WITH

PSYCHIATRIC DISABILITIES

The ADA prohibits discrimination against a qualified individual with a disability in regard to the

privileges of employment. Among the most valued privileges of employment is health insurance.

Health insurance is also among the most impor-
12 Psychiatric Disabilities, Employment, and the Americans With Disabilities Act

tant issues for people with psychiatric disabilities,

as limits are commonly placed on mental health

benefits. Employer concerns, however, center

around cost. The language of the law, its legislative history, and related regulations and guidelines

indicate that the writers of the ADA did not intend

a complete revision of insurance industry policy

and practice. Thus, while the EEOC regulations

that implement the ADA ensure that employees

with psychiatric disabilities will not be discriminated against if a health plan is offered; it does not

mandate access to mental health benefits.

A key question considered by the EEOC in determining the ADA’s influence on mental health

benefits is: Is disparate treatment of mental disorders by insurance a disability-based disparate

treatment? While excluding treatment for a particular mental disorder, such as schizophrenia,

would likely lead to an affirmative response to this

question, the EEOC’s recent guidance, citing case

law under section 504 of the Rehabilitation Act,

answers a resounding “no” for mental health benefits in general.

[A] feature of some employer provided health

insurance plans is a distinction between the

benefits provided for the treatment of physical

conditions on the one hand, and the benefits provided for the treatment of “mental/nervous”

conditions on the other Typically, a lower level

of benefits is provided for the treatment of mental/nervous conditions than is provided for the

treatment of physical conditions. . . Such broad

distinctions, which apply to the treatment of a

multitude of dissimilar conditions and which

constrain individuals both with and without disabilities, are not distinctions based on disability.

Consequently, although such distinctions may

have a greater impact on certain individuals

with disabilities, they do not intentionally discriminate on the basis of disability and do not

violate the ADA.

RELEVANT FEDERAL AGENCIES’

ACTIVITIES

The ADA requires a variety of Federal activities,

including the preparation of implementing regulations and guidelines; the enforcement of the law;

the rendering of assistance to those with rights and

responsibilities under the law; and the coordination of enforcement and technical assistance

among different agencies. Beyond the mandates

specified by the ADA itself, the U.S. Congress has

required Federal research and service agencies to

provide technical assistance and conform services

with the ADA’s mission. Furthermore, the Federal

Government is a principal supporter of disabilityrelated research. OTA surveyed the current efforts

of various Federal agencies: the EEOC; the National Institute on Disability and Rehabilitation

Research (NIDRR); the Center for Mental Health

Services (CMHS); the National Institute of Mental Health (NIMH); and the President’s Committee for the Employment of People with Disabilities (President’s Committee).

Established by law in 1964, the EEOC enforces

Title I of the ADA, as well as Title VII of the Civil

Rights Act, the Age Discrimination in Employment Act, section 501 of the Rehabilitation Act,

and the equal pay provisions of the Fair Labor

Standards Act. Although the EEOC issued ADA

regulations as required by the law and provided

extensive technical assistance, the regulations,

guidance, and technical assistance promulgated

by the EEOC provide minimal guidance on many

issues specifically relevant to psychiatric disabilities. In fact, OTA’s survey of EEOC field offices,

where charges of discrimination are received and

investigated, found that most personnel lacked

any specific training on psychiatric disabilities

and employment; indeed they wanted such information. The EEOC traditionally does not focus

on any one type of disability. But given the complexity of psychiatric disabilities, the issues

sometimes raised in the work place, ignorance of

these conditions among the general public, and

the relatively high percentage of charges

associated with this category of impairment, it appears that specific focus on psychiatric disabilities

would be quite useful: People with psychiatric

disabilities and employers would better understand their rights and responsibilities under the

law. Constraints on resources, especially on

trained personnel, however, limit the capacity of
Chapter 1 Executive Summary 13

the EEOC to increase guidance and technical assistance for psychiatric disabilities (figure 1-3).

Technical assistance by other Federal agencies—NIDRR, CMHS, the President’s Committee, and NIMH—includes distributing brochures,

posters, and manuals; sponsoring conferences and

training; setting up toll-free help lines and computer bulletin boards; and making public and video presentations. The targets for these efforts are

businesses and people with psychiatric disabilities. Although the EEOC’s technical assistance efforts have not focused on psychiatric disabilities,

the other agencies’ efforts have. However, by

most estimations, the impact of this technical assistance and education seems inadequate, since

data from various surveys reveal considerable ignorance about the ADA and psychiatric disabilities.

OTA’s analysis found the Federal Govern

ment psychiatric disability research enterprise to

be sparse and splintered. The principal supporters

of research relevant to psychiatric disabilities and

employment include NIDRR, CMHS, and

NIMH, who together spend approximately 1.3

percent of their total annual budgets on this topic,

less than $15 million (table 1-3). As with disability research in general, psychiatric disability is not

a priority with any Federal agency, and mechanisms for interagency communication and cooperation lie moribund (box 1-2).

IMPLICATIONS FOR TECHNICAL

ASSISTANCE AND RESEARCH

Despite increasing attention on the part of Federal

agencies, OTA’s analysis indicates that the current

level of guidance, technical assistance, and research activities are unlikely to optimally assist

employers and people with psychiatric disabilities

in implementing the ADA. The need for gathering

and distributing information reflects several factors: Psychiatric disabilities are still poorly understood and greatly stigmatized in our society.

These conditions can be complex; they can be difficult to assess in an objective fashion, and, with

their impact on behavior and social interactions,

250,00 0

3

’ 5

0 0

3,000

200,000- Full time staff

L

-2,500

Funding (in thousands of dollars)

-

2,000

100,000 1,50 0

198182 83 84 85 86 87 88 89 90 91* 92*

Although total funding to the U.S. Equal Employment

Opportunity Commission experienced a real, average annual

rate of increase of 8.3°/0 since 1981, full time staff positions

declined by approximately 17%.

● includes supplemental for ADA.

SOURCE U S Equal Employment Opportunity Commission, 1993

ers. Limited Federal resources and the low priority

historically assigned to the topic of employment

and mental disorders also have constrained research and technical assistance efforts. From the

information drawn together in this report, OTA

suggests a technical assistance and research

agenda.

People with psychiatric disabilities and employers are the ultimate targets of guidance, technical assistance, and education. How can these audiences be reached? Organizations already

providing technical assistance to businesses and

people with disabilities—including the EEOC,

NIDRR (box 1-3), and the National Council on

Disabilities---can better incorporate information

on psychiatric disabilities. OTA’s research highlights several other specific targets:

Ž Mental health advocacy organizations: All

mental health advocacy organizations, assert the

importance of employment or meaningful activity

they sometimes raise difficult issues for employ- for people with psychiatric disabilities. Expand-
.

14 I Psychiatric Disabilities, Employment, and the Americans With Disabilities Act

Total funds specifically

related to psychiatric

Funding disability and Percent of

institute Principal mission mechanisms employment (in millions) total budget

National Institute Supports research and Supports training and $3.5a

5.6 percent

on Disability and technical assistance for research centers;

Rehabilitation all disabilities field-initiated research

Research projects; and a

technical assistance

resource center

Center for Mental Administers block grants Supports training and $1.5a 0.36 percent

Health Services to States for mental research center;

health services and demonstration

supports research projects; consumer

self-help centers

National institute Supports mental Funds investigator- $9.3

b

1.5 percent

of Mental Health disorders research initiated studies and

research centers

a Fiscal year 1993.

b

Fiscal year 1992.

SOURCE: Office of Technology Assessment, 1994.

ing on current ties with consumer groups, the

Community Support Program funded by the

CMHS, the two Rehabilitation Research and

Training Centers supported jointly by NIDRR and

the CMHS, the two national consumer self-help

centers funded by the CMHS, and the DEPRESSION Awareness, Recognition, and Treatment

(D/ART) program funded by NIMH could provide information on the ADA in the form of materials and training sessions.

• Employee assistance programs (EAPs) and

other human resources professionals; Many midand large-sized companies have EAPs and/or other human resource offices, whose responsibilities

include health education, the provision of or referral for counseling services, disability management, and ADA implementation. These managers

and service providers clearly need and are prime

targets for information on psychiatric disabilities.

NIDRR, with its grant to the Washington Business

Group on Health, and NIMH’s D/ART program

have already begun targeting these groups. Continued and expanded efforts could build on this

foundation.

■ Private– and state -affiliated care providers;

Mental health care providers and advocates, in the

private sector and State mental health and protection and advocacy agencies interact with individuals with psychiatric disabilities and they are a potentially useful conduit for information about the

ADA. OTA’s research reveals a considerable lack

of knowledge about the ADA among these care

providers and advocates. Federal mental health

agencies could develop professional training materials and disseminate them at national and regional meetings sponsored by the Federal Government and professional societies. Also,

materials and information could be disseminated

in cooperation with State mental health and

protection and advocacy agencies through the

granting mechanism of the CMHS.

OTA identified another critical target requiring

information on psychiatric disabilities: the EEOC

field offices. Many lack any information on psychiatric disabilities. Federal mental health agencies, especially the CMHS, could assist the EEOC

by providing baseline information and by linking

field offices with resources in State and communi-
Chapter 1 Executive Summary 15

Effecting communication among agencies that share responsibilities and interests is a common bureaucratic dilemma. Several Federal agencies, as described in this chapter and report, have authority over research, technical assistance, program administration, and policy enforcement relevant to psychiatric disability and employment. Despite jurisdictional overlap, each agency has a unique culture and functional

role. Many observers believe that this heterogeneity is healthy, permitting distinct and potentially useful approaches to flourish. However, redundant or conflicting Federal policies and activities may also flourish in

the absence of meaningful communication. While individuals in different agencies informally interact, formal mechanisms of interagency communication lie moribund.

Public Law 102-321 created a new Center for Mental Health Services (CMHS) within the Substance

Abuse and Mental Health Services Administration (SAMHSA) of the Public Health Service, Department of

Health and Human Services (DHHS), thus separating this mental health service agency from the principal

mental health research agency—the National Institute of Mental Health (NIMH). That law requires cooperation and consultation between the CMHS and the NIMH in a variety of areas. Such communication clearly

could help the CMHS move forward with demonstration projects, technical assistance, and services solidly

based on research supported by NIMH. Also, NIMH’s research expertise could assist in program evaluation

at the CMHS Conversely, the CMHS could assist NIMH in promoting research relevant to current practices,

policy needs, and real world demands. While NIMH and CMHS indicate that they are working together on a

report to the U.S. Congress on effective methods of providing mental health services to individuals in

correctional facilities, to date, no general mechanism has been elaborated to animate the congressional

mandate for Information exchange between the CMHS and NIMH.

The U.S. Congress established the Interagency Committee on Disability Research to promote communication and funding coordination among the committee’s 27 member agencies, which include. the National Institutes of Health (including NIMH), SAMHSA (including CMHS), the National Science Foundation, and

offices in the U.S. Departments of Health and Human Services, Education, Labor, and Veterans Affairs, and

the National Aeronautics and Space Administration. In existence since 1981, the committee has not met at

all during the last year and has never focused directly on psychiatric disability.

(continued)

ty mental health centers and advocacy groups. ● accommodating difficult or threatening behavThese local resources could then provide seminars

for the field offices in their communities, and perhaps more importantly, form a network of local

experts to which EEOC investigators could turn

when specific cases arise.

Several topics identified by this OTA report require further guidance from the EEOC as well as

experts, representatives of businesses, and people

with psychiatric disabilities:

• the impact of and mechanisms for disclosing a

psychiatric disability;

• the identification of behavioral and social requirements on the job;

ior; and

● issues surrounding access to and potential requirement of psychotropic medication or other

treatment.

Workshops focused on such topics would be a

useful first step. A fair and full exploration of

these specific topics would include the perspective and expertise of legal experts and the EEOC,

experts in psychiatric disabilities, people with

psychiatric disabilities, and employers. The workshop discussions could inform ongoing technical

assistance activities as well as official EEOC

guidance and research.
 . .

16 I Psychiatric Disabilities, Employment, and the Americans With Disabilities Act

In April of 1993, the CMHS replaced the NIMH as a cosigner with the Rehabilitation Services Administration (RSA) and NIDRR on a renewed Memorandum of Understanding (MOU). In effect since 1979, the MOU

sets out guidelines for interagency collaboration on service delivery, staff training, and evaluation activities

related to the rehabilitation and employment of people with psychiatric disabilities, Representatives from

each agency serve as members of a liaison group responsible for informing each other about their agency’s

activities, exploring possible cooperative efforts, recommending cooperative activities to the chief executives of their agency, and developing and implementing a work plan to carry out approved cooperative activities. The MOU specifically mentions as one of its goals the “provision of technical assistance on implementing the Americans with Disabilities Act for persons with psychiatric disabilities, ” Also, it helps coordinate the cofunding by CMHS and NIDRR of the National Rehabilitation and Research Centers at Boston

University and Thresholds Institute in Chicago, Illinois. While proponents contend that the MOU can and has

been an important catalyst for interagency cooperation, several experts and advocates commented to OTA

about its current ineffectiveness, And no efforts have focused on the ADA to date,

The National Task Force on Rehabilitation and Employment for People with Psychiatric Disabilities

(NTREPPD) has tried to promote collaboration among RSA, NIDRR, NIMH, CMHS, and the Social Security

Administration. NTREPPD is composed of representatives of professional organizations, service providers,

consumers, family members, research and training organizations, advocacy groups, Federal, State, and

local government agencies, and others, Its central function is to advise the RSA and NIDRR on policy and

research priorities related to rehabilitation and employment issues for people with psychiatric disabilities,

The group originated as the RSA Task Force on Vocational Rehabilitation for Persons with Long-Term Mental Illness. In 1991, it became an independent entity and was chartered as NTREPPD. The members of

NTREPPD had been meeting quarterly in Washington, DC to share information and develop recommendations about legislation and regulations, research priorities, training and service delivery issues; many observers considered the group vital. More recently, however, many members have desisted meeting attendance, complaining about NTREPPD’s voluntary nature and its limited impact on policies,

SOURCE, Office of Technology Assessment, 1994

Finally, this OTA report identifies many research questions (table 1-4). These questions require different types of research approaches, including:

■ descriptive research, aimed at ascertaining current issues and practices (e.g., typical approaches to disclosure; the prevalence of violence and mental disorders in the work place);

■ evaluation studies, which would assess the effectiveness and costs of interventions or procedures (e.g., the impact of coworker education

or disclosure; the net costs of accommodating

psychiatric disabilities; the effectiveness of

stress reduction techniques in accommodating

people with psychiatric disabilities); and

• hypothesis-driven research aimed at clarifying

such issues as the confluence of factors involved in the path from impairment to work

disability, and validity of functional assessment techniques.

Clearly, this research agenda falls under the jurisdiction of NIDRR, NIMH, and CMHS. Workable

communication among agencies is required to

avoid overlap, to assist in collaboration, and to ensure that new information flows among the research agencies as well as to those enforcing the

law and providing technical assistance.
Chapter 1 Executive Summary 17

The National Institute on Disability and Rehabilitation Research (NIDRR) has funded 10 regional Disability and Business Technical Assistance Centers—DBTACs—since 1992. The 10 DBTACS represent one of

the Federal Government’s principle sources of ADA technical assistance. They aim at providing employers,

people with disabilities, and others with responsibilities under the ADA with information, training, technical

assistance, and referrals to local sources of ADA information and expertise. These centers currently are

funded with 5-year grants, but NIDRR’s aim is to develop a system whereby the regional centers eventually

Will be regarded as State and local resources and affiliated with State and local governments. For this reason, the DBTACs are encouraged to establish relationships with State and local agencies throughout their

regions.

To help identify needs and coordinate activities, the DBTACs have organized regional, State, and local

advisory committees made up of representatives from small and large businesses, State and local service

providers, citizens with all types of disabilities and their family members, and disability support and advocacy groups. To reach as many people with an interest in the ADA as possible, the DBTACs are developing

mailing lists of people with disabilities, employers, personnel and recruitment agencies, business groups

such as chambers of commerce, small business associations, better business bureaus, minority business

associations, and others; State and local government agencies; disability advocacy groups; and service

providers. The mailing lists are used for direct-mail campaigns to draw attention to the provisions of the ADA

and the DBTACs resources, and to generate information for data bases and reference guides on local

sources of ADA information and expertise. Each of the DBTACs provides a toll-free technical assistance hot

Iine for information and referrals. Also, the DBTACs provide training sessions, including regional conferences, and State and local workshops, and presentations.

Several DBTACs have focused to some extent on psychiatric disabilities. Their advisory committees and

mailing lists include individuals with psychiatric disabilities and advocacy/consumer groups representing

this constituency. One DBTAC in Washington State helped to craft language for the 1993 State Civil Rights

Act barring discrimination in employment for people with mental disabilities, and helped to develop training

about workplace accommodations for people with psychiatric disabilities. Another DBTAC is working cooperatively with IBM to develop a self-paced software program about Title I of the ADA with situational examples that will include accommodating people with psychiatric disabilities in the work place. The Northeast

DBTAC in Trenton, New Jersey is developing a televised panel discussion, “Making the ADA Work: Reasonably Accommodating People with Mental Illness, ” which features a successful employee with a psychiatric

illness, an employment specialist, and an employer. The Southwest DBTAC is working with the Texas Rehabilitation Commission to develop a model training program on the ADA and people with psychiatric disabilities.

Technical assistance hot-line requests concerning psychiatric disabilities generally form only a small

percentage of total requests, however. This suggests that employers and the general public do not yet see

the ADA as being related to psychiatric disabilities or they do not see the DBTACs as providing such information. The majority of those requests for information are from individuals with psychiatric disabilities or

their employers, followed by mental health agencies, therapists, and rehabilitation counselors. People with

psychiatric disabilities typically ask how to approach employers about an accommodation, whether it is

necessary to document psychiatric disability, how such documentation is used, and the procedure for deciding an appropriate and reasonable accommodation. Employers usually ask whether they can request

documentation of a psychiatric disability, what types of accommodation are appropriate, and how to determine the existence of a direct threat.

SOURCE Off Ice of Technology Assessment, 1994
18 I Psychiatric Disabilities, Employment, and the Americans With Disabilities Act

What are the usual positive and negative consequences of disclosing a psychiatric disability for an individual with a

psychiatric disability? For the supervisor and employer? Coworkers?

What types of Information concerning a psychiatric disability are relevant and/or useful to employers?

How does timing of disclosure influence the Individual with a psychiatric disability, the employer, and the work place?

How do gaps in employment history, a criminal or arrest record affect the employment of people with psychiatric

disabilities?

How can current job analysis methodology better assess cognitive, behavioral, and social factors?

which functional assessment approaches reliably predict work performance and are useful under the ADA?

How frequently do emotional outbursts, insubordination, threats, and other erratic behavior arise at the work place in

relation to psychiatric disability? How can managers and coworkers best deal with such behaviors when they occur?

How effective in permitting work and improving work performance are the accommodations commonly listed as useful to

people with psychiatric disabilities?

What are the specific and net costs-lncluding possible redistribution of workload and changes in benefit uses-of these

accommodations to employers?

What Is the Impact of providing an accommodation to an employee with a psychiatric disability on that employee?

Coworkers? Supervisors?

What impact does coworker training on psychiatric disabilities have on individuals with these conditions and ADA

implementation in the workplace?

What kinds of information would assist supervisors in providing effective accommodations for employees with psychiatric

disabilities?

What can be learned about accommodating people with psychiatric disabilities from businesses that makeaccommodations

for all of their workers?

How does psychiatric disability relate to violence in the work place?

How can the threat of violence in the workplace, as it may relate to psychiatric disabilities, be predicted? Abated or

diminished?

SOURCE: Office of Technology Assessment 1994.
The ADA

and

People With

Disabilities:

An Overview 2

T

he Americans with Disabilities Act (ADA) is a watershed

in the history of disability rights. It outlaws discrimination against people with disabilities in nearly every domain of public life: employment, transportation, communication, recreational activities, and other services (table 2-1 ).

The Act’s extension of employment provisions to many people

with psychiatric disabilities has captured the attention of mental

health advocates (24,32,33,35,42,44,47). Jobs are of particular

concern to many people with mental disorders: For most people

with severe mental disorders employment remains an elusive

goal (see ch. 3). Many employees attempt to keep their current or

past mental health problems a secret, for fear of stigma and discrimination. Reflecting the misperceptions, fears, and lack of information about mental disorders as well as the difficult issues

sometimes raised by these conditions—subjectivity of claims,

impact on behavior, and social interactions at work—some employers have expressed concerns about the ADA’s provisions for y,,..\#@’q”

employing people with psychiatric disabilities (27). @

This chapter provides an overview of the ADA and some of the , ,.

,& ..:&

factors that led to its passage. First, it summarizes the ADA’s pro- -y&..

//4 visions, highlighting issues of employment. Second, legal ante- 6

d

“**> @

cedents of the ADA are discussed, illuminating important fore- *#@’&&w’+ /

bears of the law and their impact on people with psychiatric /####%!%!fl&&

disabilities. Third, the chapter describes how people with disabil- ,*4Aww”*&*d

&@

ities have influenced disability policy.

, *.#@”#&

%,, THE ADA AND ITS LEGAL ANTECEDENTS . . .

This OTA background paper has proclaimed the ADA “a watershed in the history of disability rights” and “the most far-reachI 19
20 I Psychiatric Disabilities, Employment, and the Americans With Disabilities Act

Brief Law’s enforcement Enforcement

description date jurisdiction

TITLE I Provides that no covered U.S. Equal Employment

Employment entity shall discriminate

against a qualified individual

with a disability because of

the disability in regard to job

application procedures,

hiring, advancement,

employee compensation, job

training, and other privileges

of employment.

TITLE II

Public Services

Provides that no qualified

individual with a disability

shall be excluded from

participation in or be denied

the benefits of the services,

programs, or activities of

public entities, including

transportation facilities.

TlTLE Ill Provides that people with

Public Accommodations disabilities should have

access to existing private

businesses that serve the

public, so long as required

accommodations are “readily

achievable.” The list

includes hotels, restaurants,

theaters, laundromats,

museums, zoos, private

schools, and offices Of

health-care providers.

TITLE IV

Telecommunications

Amends Title II of the

Communications Act of 1934

by adding a section

providing that the Federal

Communications

Commisson shall ensure

that interstate and intrastate

telecommunications relay

services are available, to the

extent possible, to hearingimpaired and speechimpaired individuals.

Effective July 26,1992, for

employers with 25 or more

employees, and on July 26,

1994, for employers with 15

or more employees.

Employers with fewer than

15 workers are not covered

by ADA.

As of Aug. 26, 1990, all new

public buses and light and

rapid rail vehicles ordered

are to be accessible; one

car per train must be

accessible by July 26, 1995;

key commuter stations must

be retrofitted by July 26,

1993; all existing Amtrak

stations must be retrofitted

by July 26,2010.

Effective Jan. 26, 1992, for

businesses with more than

25 employers; on July 26,

1992, for businesses with

25 or fewer employees and

annual revenue of $1 million

or less; and on Jan. 26,

1993, for companies with 10

or fewer employees and

annual revenue not

exceeding $500,000.

By July 26, 1993, covered

firms should have

telecommunications

services available 24 hours

a day.

Opportunity Commission

U.S. Department of

Transportation; U.S.

Department of Justice

U.S. Department of Justice

Federal Communications

Commission

SOURCE: CQ Researcher, The Disabilities Act(Wa shington, DC: Congressional Quarterly, Inc., 1991).
Chapter 2 The ADA and People With Disabilities: An Overview 21

ing legislation ever enacted against discrimination of people with disabilities.” But what exactly

is the ADA? What are its specific provisions? Its

history? Philosophical roots? This section considers the law and its forerunners. While not exhaustively detailing disability legislation—many other texts do so (e.g., 57)---the section will highlight

information that specifically relates to people with

psychiatric disabilities.

I Overview of the ADA

The ADA intends sweeping and active antidiscrimination efforts and outcomes. Noting the high

and increasing prevalence of disabilities, the lamentable socioeconomic straits of people with

these conditions, and the exorbitant costs to society of disabilities, the law sets out:

1. to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities;

2. to provide clear, strong, consistent enforceable standards addressing discrimination

against individuals with disabilities;

3. to ensure that the Federal Government

plays a central role in enforcing the standards

established in this Act on behalf of individuals

with disabilities; and

4. to invoke the sweep of congressional authority. . . in order to address the major areas of

discrimination faced day-to-day by people with

disabilities (42 U.S,C, 12101(b)).

Drawing from the Rehabilitation Act of 1973,

the ADA offers a three-pronged definition of disability:

with respect to an individual,

(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment (42 U.S.C. 12102(2)).

While the definition of disability is discussed

in detail in the following chapter, a few observations warrant mention here. Although specific

conditions are explicitly excluded by the law, including current illegal drug use (box 2-1 ), the definition is not simply a laundry list of disorders and

conditions. Rather, the definition acknowledges

the necessity of considering both impairment

(e.g., symptoms of a mental disorder; see ch. 3)

and functional sequelae. Furthermore, by defining

disability in this way, flexibility is maintained,

permitting the coverage of disabling conditions

that are yet to appear (e.g., a new infectious disease).

The second and third prongs of the definition

extend the protection of the law to those who have

a history of a substantially limiting impairment or

disability, or simply are regarded as such. This

language recognizes the discriminatory use of

such history or perceptions regardless of an individual’s abilities. Because negative attitudes are

attached to mental disorders, these prongs of the

definition are especially important to them.

Title I of the ADA focuses on employment. It

forbids discrimination against qualified people

with disabilities in every employment decision,

including hiring, advancement, or discharge by

employers with 25 or more employees. In July

1994, Title I extends to employers who have 15 or

more employees. Key definitions of this section

include:

• Qualified Individual With a Disability. An employer is not required to hire, promote, or retain

any individual with a disability. Rather, the

protection of the ADA is afforded to people

with disabilities who are qualified for the job.

Being qualified for a job often entails relevant

training and work experience, factors that may

prove problematic for people with psychiatric

disabilities that emerged during their education

or that disrupted work tenure (see ch. 3). The

law defines “qualified individual with a disability” as “an individual with a disability who,

with or without reasonable accommodation,

can perform the essential functions of the employment position that such person holds or desires.” Embedded in this definition are two key

terms: 1 ) ‘*essential functions of the employ-
22 I Psychiatric Disabilities, Employment, and the Americans With Disabilities Act

The ADA extends its reach to people with many different types of disabilities. While people with alcoholism and a history of illegal drug use maybe protected by the ADA, the act evidences congressional concern

about current illegal drug use. Nearly 25 percent of Title I is devoted to the topic of drugs and alcohol, with

the final Title of the act reinforcing much of the discussion. To quote the law itself (42 U. SC. 121 14):

[T]he term “qualified individual with a disability” shall not include any employee or applicant who is currently

engaging in the illegal use of drugs, when the covered entity acts on the basis of such use...

[furthermore] A covered entity.

(1) may prohibit the illegal use of drugs and the use of alcohol at the workplace by all employees;

(2) may require that employees shall not be under the influence of alcohol or be engaging in the illegal use of

drugs at the workplace,

(3) may require that employees behave in conformance with the requirements established under the DrugFree Workplace Act of 1988,

(4) may hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior that such entity holds other employees, even if

any unsatisfactory performance or behavior is related to the drug use or alcoholism of such employee; and

(5) may, with respect to Federal regulations regarding alcohol and the illegal use of drugs, require that employees comply with (various) standards established in such regulations of the Department of De fense,.. . Nuclear Regulatory Commission,.. . (and the) Department of Transportation..

Nothing in this title shall be construed to encourage, prohibit, or authorize the conducting of drug testing for

the illegal use of drugs by job applicants or employees or making employment decisions based on such test

results.

Thus, Title I of the ADA protects people substantially limited by alcoholism to the same extent that it protects

persons with other disabilities Additionally, a person who illegally used drugs in the past may be an individual with a disability under the law. However, regardless of performance, current illegal drug users find no

haven in the ADA’s protections; they are neither “qualified” nor “disabled” under the law. And use of alcohol

or other drugs on the job can be restricted by employers.

The ADA’s extensive discussion of substance abuse and the exclusion of current illegal drug users reflects the difficulty of rectifying distinct conceptualizations of drug abuse in making public policy. This difficulty in deciding whether drug abuse is a criminal justice problem, a medical or public health problem, or

social issue is nothing new. For example, although the original Rehabilitation Act regulations defined illegal

drug abuse as a protected disability, the issue met with considerable controversy. The 1978 Amendments to

the Rehabilitation Act qualified the original regulations, protecting current drug and alcohol users only in the

absence of poor work performance or threat to the property or safety of others. (The Rehabilitation Act

Amendments of 1992 adopted the ADA’s approach to coverage of current illegal users of drugs.)

The ADA reveals Congress’ hope that employers will give drug abusers opportunities for rehabilitation.

The law seeks to prevent the punishment of those who sought treatment in the pastor are continuing to receive treatment, and no longer use drugs. The ADA states that it should not be construed:

to exclude as a qualified individual with a disability an individual who: 1) has success fully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been

rehabilitated successfully and is no longer engaging in such use, 2) is participating in a supervised rehabilitation

program and is no Ionger engaging in such use, or 3) is erroneously regarded as engaging in such use, but is not.
Chapter 2 The ADA and People With Disabilities: An Overview 23

Unfortunately, this language raises questions even as it attempts to answer them. For example, how long

must an iindividual not take a drug to be considered successfully rehabilitated?

OTA has found no discussion of the impact of the ADA’s substance abuse provisions on people with psychiatric disabilities Data clearly have demonstrated that people with mental disorders often abuse alcohol

and drugs For example, information from a national survey indicated that nearly one-third of those with a

diagnosable mental disorder will abuse alcohol or illegal drugs at some time in their lives, More severe diagnoses are associated with higher comorbidity Nearly half of those with schizophrenia will abuse or be dependent on alcohol or other drugs, and over 60 percent of people with manic depression will abuse or become dependent on alcohol, other drugs, or both

The fact that the ADA protects people with mental disorders but excludes those currently abusing illegal

drugs also may raise difficulties Analysts with the EEOC hold that distinctions between psychiatric disabilities and substance abuse can be dealt with in a fairly clean fashion

If an individual IS an alcoholic, then she could be protected under the ADA both for the psychiatric disability

and the alcoholism If the individual IS a current illegal user of drugs, then she could be covered by the ADA for the

psychiatric disability but not for the current Illegal drug use.. In other words, if an employer refused a reasonable

accommodation for the psychiatric disability, the individual has grounds to file an ADA charge.

Gwen the high comorbidity between mental disorders and substance abuse, employer actions—permitted by the ADA—to restrict the use of alcohol or drugs may disparately affect people with psychiatric

disabilities Many people with psychiatric disabilities may refrain from seeking the protection of the ADA for

fear of revealing a drug abuse problem. Another concern emerges from drug testing in the workplace. Tests

for Illegal drugs can register a false positive when an individual is taking some medications for mental disorders (as well as other conditions, such as epilepsy), At best, applicants or employees will be put in the position of disclosing their disability, perhaps against their desire,

SOURCES P R Mastroianni, Assistant Legal Counsel, U S Equal Employment Opportunity Commission, Washington, DC, personal

commumcation, Oct. 14, 1993, R K Scotch, from Good Will to Civil Rights Transforming Federal Disability Policy (Philadelphia, PA

Temple Unversity Press, 1984), R J Henderson, Jr , “Addiction As A Disability The Protection of Alcoholics and Drug Addicts Under

the Americans with Drs.abllltles Act of 1990” VarrderbJt Law Review44 713-740, 1991, N L Jones, “TheAlcohol and Drug Prowslons

of the ADA Implications for Employers and Employ ees, ” Consu/tmg PsychO/C)gy Journa/ Practice and Reseamh 4537-45, 1993,

L K Haggard, “Reasonable Accommodation of Indwldualswith Mental Dlsabllltles and Psychoactive Substance Use Disorders Under Title I of the Americans with Dsabllmes Act, ” Jouma/o/(Manand Contemporary Law 43:343-390, 1993; W,F Banta, and F Tennant, Jr, Complete Handbook for Combatmg Substance Abuse m the Workplace, Medical Facts, Legal Issues, and Practical Solutlons, 1989, U S Congress, Offlceof Technology Assessment, TheBlo/ogyofMenta/Disorders, OTA-BA-538 (Washington, DC U S

Government Prmtlng Off Ice, September 1992)

■

ment position,” and 2) “reasonable accommodation.”

Essential Functions of the Employment Position. The term “essential functions” can be taken at its face value: essential functions of a job

are those functions that are not marginal. Em- ■

ployers are vested with considerable, though

not unassailable, power by the ADA in determining essential functions of the job. The Act

itself says “consideration shall be given to the

employer’s judgment as to what functions of a

job are essential, and if an employer has prepared a written description before advertising

or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.”

Reasonable Accommodation. Providing a reasonable accommodation is the action required

of employers by Title I of the ADA. Appropriate accommodation must be determined on an

individual basis. However, the law lists some

specific possibilities, including job restructur-
24 I Psychiatric Disabilities, Employment, and the Americans With Disabilities Act

ing, part-time or modified work schedules, or

reassignment to a vacant position, all of which

may prove useful to people with psychiatric

disabilities. The ADA indicates that a reasonable accommodation is required unless it poses

an “undue hardship” on the employer. Undue

hardship “means an action requiring significant

difficulty or expense.” Factors, specified by the

law, that may make an accommodation an undue hardship include “the nature and cost of the

accommodation. . . the overall financial resources of the facility. . . [and] the number of

persons employed at such facility. . .“ (42

U.S.C. 121 11(10)). Undue hardship is not limited to financial difficulty, however, a point especially relevant to psychiatric disabilities; it

also refers to any accommodation that would be

“unduly. . . extensive, substantial, or disruptive, or that would fundamentally alter the nature or operation of the business.”

What constitutes employment discrimination

under the ADA? Section 102 of Title I enumerates

a variety of practices forbidden by the law—a level of specificity that is uncommon in civil rights

law (15). The ADA deems “not making reasonable accommodations to the known physical or

mental limitations of an otherwise qualified individual with a disability [42 U.S.C. 121 12(b))” unless the employer can prove the accommodation

is an undue hardship. Note that the employer’s obligation is to “known” limitations, a critical issue

for such “hidden” conditions as psychiatric disabilities. Other expressly prohibited actions include discriminatory:

●

■

•

limitation, segregation, or classification of job

applicants or employees on the basis of disability;

contractual arrangements, such as with an organization that provides training or facilities for

a meeting; and

use of employment tests or other qualification

standards that “screen out” a person with a disability, unless the standard is “job-related and

consistent with business necessity.”

Another common employment practice that is

expressly forbidden by the ADA relates to medical examinations and inquiries. Employers can no

longer inquire about the medical or disability status of a job applicant. This provision makes illegal

such job application questions as: “Have you had

a nervous breakdown?” Employers may require,

however, medical exams and inquiries after a

conditional job offer is made, provided such exams and inquiries are required of all applicants in

the job category, and the information is kept confidential. A job offer may be rescinded only if the

exclusionary criteria are job-related, consistent

with business necessity and reveal that an applicant could not perform an essential function of the

job or could not do the job without posing a direct

threat to health or safety, even with a reasonable

accommodation. In regards to current employees,

employers can only require medical examinations

or make medical inquiries if they are “job-related

and consistent with business necessity.”

One qualification standard specifically permitted by the ADA is “the requirement that an individual shall not pose a direct threat to the health

or safety of other individuals in the workplace”

(42 U.S.C. 121 13(b)). This standard requires individualized and nonspeculative determinations of

direct threat, not generalizations based on stereotypes or myths. Also, the law requires reasonable

accommodation that may eliminate or sufficiently

reduce a direct threat. Chapter 4 discusses in further detail the direct-threat standard, the regulations and technical guidance proffered by the Federal Government, as well as information on the

relationship between mental disorders and violence.

The ADA’s potential impact on employer-provided health insurance fuels much speculation, especially in the mental health field, where benefits

are generally more limited (see ch. 4). Title I forbids contractual relationships, including those

with “an organization providing fringe benefits to

an employee” (42 U.S.C. 121 12(b))—that result

indiscrimination against employees with disabili-
Chapter 2 The ADA and People With Disabilities: An Overview 25

ties; this provision applies to health benefits ( 15).

In fact, the ADA and its legislative history directly

assail discriminatory practices in the area of health

care benefits. However, the Act permits “benefit

plan(s) that are based on underwriting risks, classifying risks, or administering such risks. . .“ (42

U.S.C. 12201 (c)) in accordance with State law

(where insured plans are involved), so long as the

practice “shall not be used as a subterfuge to evade

the purposes of Title L“ (See ch. 4 for further discussion of mental health benefits and the ADA.)

In addition to preparing regulations and providing technical guidance, the U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing Title I (see table 2-1).

Administrative and judicial remedies are identical

to those provided for under Title VII of the Civil

Rights Act of 1964, as expanded in 1991 (P.L.

102- 166). After commencing the EEOC’s administrative process, an individual may file a private

law suit. Upon proving “a discriminatory practice

intentionally engaged in with malice or with reckless indifference to the rights of the aggrieved individual,” the accusing party may also recover punitive damages. The Civil Rights Act of 1991

limits the maximal compensatory and punitive

damages of $50,000 to $300,000. An employer

may avoid damages in an ADA reasonable accommodation case if it can show good faith efforts to

accommodate the applicant or employee. Chapter

5 provides a detailed discussion of the EEOC’s

role in implementing and enforcing Title I of the

ADA.

Titles II, III, and IV of the ADA prohibit discrimination in public services (e.g., State-run

services or programs, public transportation by

commuter rail), privately owned public accommodations (e.g., hotels, theaters, restaurants,

etc.), and telecommunications, respective] y.

These titles leave almost no aspect of public life

untouched by the ADA. The ADA charges the

U.S. Departments of Justice and Transportation

with the enforcement of Title II. The U.S. Department of Justice (DOJ) also has enforcement jurisdiction for Title III. Telecommunications, as covered by Title IV, is in the purview of the Federal

Communications Commission. Title II of the

ADA also bans employment discrimination on the

basis of disability by State and local governments;

regulatory and enforcement jurisdiction for this

provision lies with the DOJ. ]

Several Federal authorities are responsible for

the sometimes overlapping provisions of the

ADA and the Rehabilitation Act. In order to avoid

duplication of effort or conflicting standards, the

ADA requires executive branch agencies to coordinate their activities. Specifically, the law

charges the EEOC, DOJ, and Office of Federal

Contract Compliance Programs (in the Department of Labor)* to “establish such coordinating

mechanisms. . . in regulations implementing this

title and Rehabilitation Act of 1973 not later than

18 months after the date of enactment of this Act”

(42 U.S.C. 121 17(b)). Similarly, DOJ, EEOC, and

other agencies must coordinate technical assistance efforts. In addition, the Rehabilitation Act

was amended in 1992 to provide that the standards

of Title I of the ADA shall apply to complaints of

nonaffirmative action employment discrimination under the Rehabilitation Act. Acknowledging the importance of technical assistance to the

ADA’s success, Title V of the law (which includes

“miscellaneous” provisions) also requires EEOC

to provide technical assistance manuals and other

support for implementation. Chapter 5 discusses

technical assistance efforts and resources relevant

to employment and psychiatric disabilities.

I When a State (Jr local government employer meets the jurisdictional requirements of Ti[le I regarding number of employees, the EEOC

also has enforcement authority.

z The office of Federal C(mtract Compliance Programs (m OFCCP administers secti(m 503 of the Rehabilitation Act.
—. — —

26 I Psychiatric Disabilities, Employment, and the Americans With Disabilities Act

Federal Policy Antecedents

Federal disability policy3 did not begin with the

ADA. Many other policies and programs affect

people with disabilities. Nor is the ADA the first

law to offer protection to people with psychiatric

disabilities. In fact, most disability efforts explicitly include this population. A review of the Federal building blocks of the ADA (as well as some

disability programs in chapter 3) clarifies the legal

precedents for this law and shows how people

with psychiatric disabilities have fared under

them. The analysis leads to the conclusion that

psychiatric disabilities do not always have an easy

fit with Federal disability policies that cover them.

Legislation attempting to chip away at discrimination against people with disabilities began with

the Architectural Barriers Act of 1968 (46,57)

(table 2-2). Title V of the Rehabilitation Act of

1973 formed the most important legal antecedent

to the ADA. Sections 501 and 503 of the 1973 Act

require affirmative action in the hiring and advancement of people with disabilities by the Federal Government and any of its contractors (and,

under section 503, subcontractors) receiving over

$10,000. These sections forbid Federal executive

agencies and Federal contractors and subcontractors from job discrimination against people with

disabilities. Section 504 prohibits discrimination

or exclusion because of disability in all programs

or services offered by recipients of Federal funds

and by executive agencies.

The Rehabilitation Act, however, was implemented slowly. Its regulations were finalized only

after several years and a court challenge (49).

Many commentators conclude that the impact of

the law on people with disabilities was not overwhelming. Studies that evaluated the level of employment of people with disabilities, the frequency of accommodations, and other measures, lead

to the often cited conclusion that while the Act

“has unlocked the door for handicapped persons

to enter the mainstream of society, it has failed in

its goal of opening the door wide” (51). Analysis

argues that sections 503 and 504 have had even

less effect on people with psychiatric disabilities,

in terms of favorable employment outcomes and

decisions stemming from complaints (2,5,36).

The existing research and analyses implicate

several factors in the modest effect of the Rehabilitation Act, including: attitudinal barriers toward

people with disabilities; less than vigorous enforcement; the relative obscurity of the law(51 );

its complexity and limited scope; and the lack of

dedicated, Federal leadership (4). Nevertheless,

legislative support for the ADA stemmed from its

similarity to the Rehabilitation Act. The ADA was

seen as an extension of the Rehabilitation Act to

the private sector.4

What lessons emerge for ADA enforcement

and implementation? Attitudes, especially toward

people with psychiatric disabilities, are a formidable barrier (see next section). The law itself, as

well as the nature of disability+ specially psychiatric disabilities—are complicated and obscure to many. And enforcement activities, at least

of Title I by the EEOC, are limited by budgetary

constraints (see ch. 5). Finally, ongoing evaluation of the ADA’s impact stands as a critical tool

in adapting and improving enforcement and implementation efforts. Without attention to these is3 States have a]u) enacted a v~ety of ~)]icies that affect people with disabilities, including antidiscrimination and workers’ compensation

laws. The limited scope of this report precludes a review of these policies. Such evaluation would, however, assist the continued implementation

of the ADA, by illustrating successes and problems at the State level and distinguishing potential conflicts between laws at the State and Federal

levels (45).

4 ~ile the language and exwrience with me Rehabili~tion Act of 1973 forma template for the ADA, important distinctions exist ( 17,22).

Most obviously, and as noted in the text, the Rehabilitation Act has a narrower scope, applying only to the Federal Government and those receiving Federal funds. Also, the Rehabilitation Act unambiguously requires affmnative action, not just the reasonable accommodations prescribed

by Title I of the ADA. Also, the Rehabilitation Act was broader in its protection of current drug and alcohol users; the Rehabilitation Act Amendments of 1992 (P.L. 102-569) apply the substantive standards of Title I of the ADA to sections 501, 503, and 504 for nonafflrmative action

employment discrimination cases.
Chapter 2 The ADA and People With Disabilities: An Overview 27

Law Principle action

The Architectural Barriers ”Act of 1968

Urban Mass Transportion Act of 1970

Rehabilitation Act of 1973

● sections 501 and 503

The Education of All Handicapped Children Act

of 1975

The Developmental Disabilities Assistance and

Bill of Rights Act, 1975

Civil Rights of Institutionalized Persons Act,

1960

Voting Accessibility for the Elderly and

Handicapped Act of 1984

Air Carriers Access Act of 1986

Fair Housing Act Amendments of 1986

Civil Rights Restoration Act of 1988

Civil Rights Restoration Act of 1988

Mandated that ail buildings constructed, altered, or financed by the

Federal Government after 1969 be accessible and usable by persons

with physical disabilities.

Required all public transportation services to be accessible to people

with disabilities in order to qualify for Federal funding.

Required affirmative action on plans for the hiring and advancement of

persons with disabilities In the Federal Government and any

contractors receiving Federal contracts over $10,000 and covered

employment discrimination.

Prohibited discrimination against otherwise qualified persons with

disabilities in any program or activity receiving Federal funds, or any

program or activity of the Executive Branch agencies and the Postal

Service.

Now called the Individuals With Disabilities Education Act, this law

mandated a free, appropriate public education for all children with

disabilities.

Included a small, Federal grant program administered by State

Developmental Disabilities Councils and is intended to coordinate and

fund services for persons with developmental or severe long-term

disabilities.

The Bill of Rights declared that persons with developmental

disabilities have a right to appropriate treatment, services, and

rehabilitation that maximize the developmental potential of the person

and take place in a setting least restrictive to personal liberty.

The Act also established in every State a system of protection and

advocacy organizations that are independent of any service providing

organization.

Authorized the U.S. Department of Justice to sue States for alleged

violations of the rights of institutionalized persons, including persons

in mental hospitials.

Required that registration and polling places for Federal elections be

accessible to persons with disabilities.

Overturned a Supreme Court decision which held that air carriers

operating at federally funded airports were not subject to section 504.

The Act prohibits discrimination against persons with disabilities by all

air carriers and provides for enforcement under the U.S. Department

of Transportation.

Added persons with disabilities as a group protected from

discrimination in housing. First antidiscrimination mandate for

persons with disabilities extended into private sector.

Amended section 504 of Rehabilitation Act, as well as other civil rights

statutes. Overturned Supreme Court’s Grove City College v. Bell

decision defining coverage of section 504 as broad rather than narrow

when Federal funds were involved.

The Humphrey-Harkin provision amended the Rehabilitation Act’s

definition of an individual with a disability and clarified that an

individual with a contagious disease or infection who poses a direct

threat to the health or safety of others was not covered by section

504.

SOURCE: Adapted from J. West, The Social and Policy Context of the Act,” The Amevfcans IMfh D&hMf/es Ad: Fnxn Poky to

Practice, J. West (ad.) (New York, NY: Milbank Memorial Fund, 1991).
28 I Psychiatric Disabilities, Employment, and the Americans With Disabilities Act

sues, the ADA’s ultimate effect, like the Rehabilitation Act’s, may be limited.

The Fair Housing Act (FHA) Amendments of

1988 form another legislative building block for

the ADA. The original FHA, passed in 1968, prohibits discrimination in public and private real estate transactions based on race, color, religion,

sex, or national origin. After an abortive attempt

in 1980, the U.S. Congress successfully extended

FHA’s coverage to people with disabilities in 1988

(46). This signaled the first time that an antidiscrimination mandate for people with disabilities was

extended into the private sector, an important precedent for the ADA. Indeed, many of the features

that appear in the ADA come directly from FHA.

Mental health advocates lauded the FHA

amendments, mindful that many people with psychiatric disabilities desperately need housing and

suffer considerable discrimination in this arena.

However, problems soon arose (52). One resulted

from the subsequent influx of young people with

psychiatric disabilities into public housing for the

elderly that prompted an outcry from public housing agencies (PHAs). Many of the PHAs urged

lawmakers to exclude people with mental disabilities from public housing projects for the elderly.

In response to their protests, Congress requested

that the U.S. Department of Housing and Urban

Development (HUD) reexamine the policies that

require housing older people and people with

mental disabilities together in public housing

projects. Although HUD rejected suggestions to

exclude people with mental disabilities from

the housing projects, subsequent legislation

(P.L. 102-550) did authorize separate housing, a

reminder that legislative gains are not immutable.

To the knowledge of OTA, people with psychiatric disabilities face no current effort to exclude

them from the ADA’s protection. However, given

the stigma and misunderstanding attached to psychiatric disorders and the complex issues they

sometimes raise, a backlash is always possible.

Efforts aimed at informing people about ADA implementation may be the best means to forestall

exclusion of people with psychiatric disabilities.

THE ROLE OF PEOPLE WITH

DISABILITIES

The ADA is the culmination of more than two decades of effort to transform Federal disability

policy from one fostering dependence and segregation, to one encouraging independence and integration (49,50,57). While not always the initial

agents of public policy changes, people with disabilities, abroad coalition of groups, forced policy

reforms by their advocacy, sustained attention,

and forceful leadership. They can rightly call the

ADA their victory. Without a doubt, people with

disabilities will continue to play a pivotal role in

the ADA’s implementation as well as in disability

policy in general.

The disability rights movement generally comprises people with physical disabilities. People

with mental disabilities, and especially psychiatric disorders, normally stand apart from the larger

disability rights community.5 Given the disability

rights movement’s profound impact on public

policy, the question emerges: What role do people

with psychiatric disabilities play in policies, such

as the ADA, that affect them? After summarizing

the development and role of the disability rights

movement, this section considers the alliances of

people with psychiatric disabilities and their potential role in implementing the ADA.

The Disability Rights Movement

The disability rights movement evolved slowly

over the twentieth century (12,49,50,57). While

some groups organized around a shared occupation-related illness (e.g., miners with black lung

disease), specific disability (e.g., the National

Federation of the Blind), or other common ties

(e.g., war veteran status), the social isolation of in5 ~1~ ~)fcour~e, is not always the case, and maybe changing. Forexample, commentators have noted the importance of the disability rights

movemen’t representatives standing with advocates for people with mental disorders to ensure their inclusion in the ADA (47) and maj)r Federal

financing programs (24).
Chapter 2 The ADA and People With Disabilities: An Overview 29

dividuals with disabilities and their low socioeconomic status essentially barred them from organizing.

Social changes that began the 1960s inspired

the vigorous growth of the disability rights movement. The disability rights movement embraced

the values of equal opportunity and social integration advocated by people of color and women, and

appropriated the political activism of the civil

rights, womens, and consumer movements. The

concepts of self-determination and freedom of

choice also nurtured the concept of independent

living (57). This model of coping with disability,

in contrast to the medical dependence model, provided a framework for living with long-term disabilities. It emphasized the role of individuals

with a disability in making decisions.

Changes in the populations of peoples with disabilities in America also helped foster the nascent

disability rights movement. Many adolescents

and young adults joined the ranks of people with

disabilities after the epidemic of polio in the early

1950s and the Vietnam war in the 1960s and 1970s

(49). More recently, an aging population (26) and

the relative increase in chronic medical illness

have added to the number of people with disabilities. Medical and technological advances lengthened life span and resulted in the survival of

people with previously fatal diseases or congenital conditions. People with disabilities were no

longer being instilled with a life-long experience

of dependency and segregation. Thus discrimination, as opposed to physical impairment or personal attitude, assumed more importance in the

lives of individuals with disabilities.

A leader of the disability rights movement, Patricia Wright, has noted that “(a)]] disabled people

share one common experience-discrimination”

( 12). The recognition of discrimination as a key

problem for people with disabilities had an important result: Individuals with disabilities gained a

common identity (18) which fostered their work

together in the public policy arena, Advocates

documented discrimination and developed an arsenal of information that fueled their advocacy efforts (1 8,41). The publicizing of problems that

people with disabilities face in society as a result

of myths, stereotypes, and exclusionary practices

was a driving force behind the ADA and is reflected in the language of the law itself:

• The Congress finds that. . . individuals with disabilities. . . have been faced with restrictions and limitations, subjected to a history of purposeful unequal

treatment, and relegated to a position of political powerlessness in our society, based on characteristics that

are beyond the control of such individuals and resulting from stereotypic assumptions not truly indicative

of the ability of such individuals to participate in, and

contribute to, society. . . (42 U.S. C. 12101(a)).

Disability language also changed, moving

away from “patronizing and stigmatizing descriptors to empowering and respectful terminology”

(57). While differences exist in the disability community over appropriate language and its relative

importance, in general “people first” language

prevails: the phrase “people with disabilities” is

used as opposed to “disabled people.” The term

“handicap” is generally rejected because of its

negative connotations; it does not reflect how the

environment contributes to producing disabilities.

Clearly, people with disabilities have made significant strides in the last 30 years. While still disproportionately poor and unemployed (21), they

have formed a strong coalition, effectively and

passionately advocating changes in public policy.

They are increasingly at the helm of disability organizations, other interest groups, and Federal

disability programs. The disability rights movement continues pressing for policy reform-in

health insurance, home health care, and personal

assistants—and ADA implementation (37,38).

People With Psychiatric Disabilities and

Their Family Members

The growing coalitions of people with psychiatric

disabilities and their family members share some

features with the broader disability rights movement, including social influences, an evolving

sense of shared identity, and increasing involvement in public policy. People disabled by mental

disorders often suffer lower socioeconomic status

and unemployment. Medical advances contributed to social and public policy trends, such as
30 I Psychiatric Disabilities,

deinstitutionalization (23).

Employment and the Americans With Disabilities Act

The civil rights and

consumer movements of the 1960s and 1970s motivated some individuals with psychiatric disabilities as they did the disability rights movement in

general. Beginning in the early 1970s, small

groups of former patients railed against institutionalization and mental hospital abuses, as well

as the perceptions of mental illness held by mental

health professionals and the public (6,7). These

former patients and other advocates fought for and

often won policy changes concerning involuntary

commitment standards, patient civil rights, independent and community living, and treatment

issues.

Changes in language were also a part of the

movement of people with psychiatric disabilities.

While all of the movement’s members agree on

the importance of destigmatizing, “people first”

language, preferred designations for people with

psychiatric disabilities include clients, consumers, ex-patients, patients, and psychiatric survivors (11 ). In this OTA report, people-first language will be used. Unless referring to a particular

body of research in which there is a distinct and

more specific designation (e.g., people with a particular diagnosis), the report will refer to people

with mental disorders or psychiatric or mental

disorder-based disabilities.6

,

7

Coalitions of people with psychiatric disabilities and their families, primary and secondary

consumers,

8

are neither singular nor unified.

Rather, various groups of people with psychiatric

disabilities and mental health problems and their

family members have joined together on the basis

of need, treatment experience, types of disorders,

and ideology (13,55). It is important to note that

while some leaders in the various groups have eloquently described the evolution and beliefs

associated with their respective coalitions, little

empirically based information (e.g., from surveys, ethnographic studies, etc.) documents these

movements, or the experiences and beliefs of

people involved in them (1 3,20,55).

Nevertheless, hundreds, perhaps thousands of

local consumer groups have formed across the nation (13,55). At the national level, several groups

figure prominently, including (in alphabetical order): Anxiety Disorders Association of America;

National Association of Psychiatric Survivors;

National Depressive and Manic-Depressive

Association; and the National Mental Health Consumers’ Association (20). An organization of

family members as well as some primary consumers—the National Alliance for the Mentally Ill—

also has a strong national voice. A brief description of each organization is provided below (and

see table 2-3):

● Anxiety Disorders Association of America

(ADAA): Between 2,000 and 4,000 professionals, consumers, and other interested parties

form the membership of the ADAA (1,20).

Founded in 1980, the ADAA has an annual

budget of more than $500,000 derived from

membership fees, as well as individual and corporate contributions. Activities of the ADAA

include: self-help/support groups, lobbying

and public education efforts, and professional

training seminars. When asked to describe its

driving philosophy, the ADAA responded that

“anxiety disorders are to be viewed on a par

with physical illnesses which are currently

b me rew~ fmuses on men~l disabilities, a broad rubric. However, some conditions are ~ discussed, including substance abuse disorders, developmental disabilities such as mental retardation, and other cognitive and neurological impairments. While these impairments and

resulting disabilities raise important questions under the ADA—some similar and some distinct from the conditions considered in this study—

they are beyond the scope of this report.

7 me tem psychiatric (Jisabi]ities, as Oppsed to menta] clkab]itks, k used because it is genera]ly understood to refer to a namower set of

disabilities—those associated with mental disorders or mental heahh problems—that are the sub~t of this report. Also, the term psychiatric

disabilities is commonly used in the rehabilitation community (32,40). Use of the term “psychiatric” is not intended to endorse a particular

profession’s role in treating or providing services for these conditions.

8 ~maw consumers refers to individuals with psychiatric disabilities themselves; secondary consumers indicate family members or others

who care for people with disabilities.
Year Total number Total budget

Organization name founded of members Composition of membership (1992) Source of funds

Anxiety Disorders Association 1980 2,0004,000 People with anxiety disorders, their $500,000+ Membership fees, individual

of America (ADAA) families, and professionals. and Corprate contributions.

National Association of 1985 2,000 Current and former psychiatric $20,000 Membership dues and

Psychiatric Survivors (NAPS) patients, their families, friends, and contributions.

others.

National Depressive and Manic 197a 30,000+ People with depressive and manic- $780,000 Membership fees, private

Depressive Association depressive disorders and their and public grants, fund-

(NDMDA) families and friends. raisers.

National Mental Health 1985 1,000 Current and former consumers of $2,000 Membership dues.

Consumers’ Association mental health care services,

(NMHCA) professionals, and others.

National Alliance for the 1979 140,000+ Principally parents and other family $2,000,000+ Membership fees, individual

Mentally Ill (NAMI) members of people with severe and corporate contributions.

mental disorders.

SOURCE: Office of Technology Assessment, 1994.

i?

u

5
32 I Psychiatric Disabilities, Employment, and the Americans With Disabilities Act

most responsive to both medication and cognitive/behavioral therapy. No preference is expressed for either medication or therapy” (l).

■ National Association of Psychiatric Survivors (NAPS): NAPS, which began as the National Alliance of Mental Patients in 1985,

emerged as a national coalition of local groups

(7,8,20). Individuals angry at their treatment by

the mental health care system, including many

of whom have experienced involuntary treatment and hospitalization, constitute the 2,000

active members of NAPS. The group shares

some goals with other primary consumer organizations, such as the promotion of mutual support and self-help (see later discussion). But

NAPS principles and tactics make it the most

radical of consumer organizations. Members

categorically oppose involuntary or forced

treatment as well as the medical model of mental illness and treatment. They frequently adopt

a confrontational approach in policy discussions and public forums.

● National Depressive and Manic-Depressive

Association (NDMDA): The NDMDA,

formed in 1978, identifies as its primary objectives self-help and support for people with serious mood disorders and their families, and

education (20). With more than 30,000 members and an annual budget approaching

$800,000, NDMDA sponsors more than 200

local groups; forums and lectures for professionals, a semiannual national conference, several regional conferences, and publishes a quarterly newsletter, books, and other material.

NDMDA views major depression and manicdepression as biological illnesses that can be

treated with medication and therapy (39).

■ National Mental Health Consumers’

Association (NMHCA): Most of the estimated

1,000 members of the NMHCA have serious

psychiatric conditions, with many having experienced hospitalizations, involuntary treatment, and reliance on the public sector

(7,10,28). Formed in 1985 as a network of local

consumer groups, NMHCA engages in a variety of advocacy, technical assistance, and selfhelp activities. While sharing a strong commitment to civil rights for people with mental

disorders, self-representation, and self-help,

the organization is less doctrinaire about the issue of forced treatment, and has worked for access to appropriate treatment, including medical interventions.

• National Alliance for the Mentally Ill

(NAMI): NAMI was founded in 1979, as a national alliance of parents and family members

of people with severe mental disorders. Most of

the approximately 140,000 members are secondary consumers, with the “typical member

(being). . . a mother in her sixties with a son in

his twenties who has schizophrenia” (19). Increasingly, primary consumers are active although not dominant in NAMI. They are members of the Client Council and Board of

Directors at the national level and leaders of

some local groups. NAMI is the most influential of national mental health consumer groups,

as reflected in its annual budget of more than

$2 million, large membership, and influence

on public policy (20). The organization focuses

on individuals with the most severe mental disorders and strongly advocates biomedical research and treatment.

Differences among these groups are real, and

sometimes acrimonious. However, as they coalesce around shared goals, they also have much

in common, including the experience and repudiation of stigma and discrimination, their insistence on the importance of empowerment and advocacy, and, notable for this report, the

availability of jobs or meaningful activity (7).

While stigma and discrimination affect the

lives of all people with disabilities, people with

psychiatric disabilities suffer some of the harshest

and cruelest attitudes (box 2-2). Although attitudes toward mental disorders may be improving

(9), a recent national survey of public attitudes toward people with disabilities shows that, from the

public’s perspective, mental illness is the most

disturbing of all disabling conditions (41) (figure

2-1 ). This is not surprising given the exceedingly

negative images of people with mental disorders—as incompetent, ineffectual, or violent—
Chapter 2 The ADA and People With Disabilities: An Overview 33

The public perception of an individual’s stability, competence, and stamina is perhaps most important in

the political arena Indeed, the slightest hint of mental health problems can be the political kiss of death

Recent history shows that the stigma associated with mental illness is a formidable weapon when used to

cast doubts on a candidate’s fitness for political office. Although it was acknowledged among his peers that

President Lincoln was plagued by “melancholy” throughout his life and his presidency, it wasn’t until 1964

that a “mental Illness” was first raised as a campaign issue. Since that attack on Republican presidential

candidate Barry Goldwater’s mental health, several other national candidates have had their mental stability attacked A closer look at some of these political races corroborates the stigma of mental illness while

hinting at an evolution in public attitudes

The Political Kiss of Death

In October 1964, in an effort to discredit presidential nominee Barry Goldwater, the publisher of the now

defunct “Fact” magazine published the results of a survey he had commissioned in which more than 1,189

of the 2,417 psychiatrists answered “no” to the question, “IS Barry Goldwater psychologically fit to be President of the United States?” The American Psychiatric Association (APA) and the American Medical

Association assailed the survey as “yellow journalism , ” with the APA noting that

By attaching the stigma of extreme political partisanship to the psychiatric profession as a whole in the

heated climate of the current political campaign, Fact has in effect administered a low blow to all who would advance the treatment and care of the mentally ill of America.

Subsequently, the APA adopted what it called ‘{the Goldwater Rule” which forbids doctors from offering a

psychiatric opinion on a public figure unless the psychiatrist has personally treated the off icial and has authorization to break patient-doctor confidentiality. Although it is difficult to know with any certainty the effect

of any one factor on a political campaign, it appears that the incident contributed to Mr. Goldwater’s defeat

in the presidential election He did, however, successfully sue the magazine’s publisher, becoming one of

the few public figures to win such a libel suit

Several days after Democratic presidential candidate George McGovern selected Senator Thomas Eagleton as his running mate, the national press revealed that Mr. Eagleton had withheld the fact that he had

been hospitalized on three occasions for “nervous exhaustion and fatigue” and that he had undergone

electroconvulsive therapy for depression on two of the three occasions In this instance, the information was

true Mr. Eagleton had withheld the information from Mr. McGovern and his staff when asked if he had “any

skeletons in the closet “

Perhaps Mr. Eagleton did not regard his medical history of depression as a “skeleton “ It became clear,

however, that the press and much of the public did. While some people praised Mr. Eagleton for his candor,

most people criticized his judgment for failing to make the facts known before his nomination Moreover,

while some people found it reassuring that Mr. Eagleton recognized the need and sought treatment for depression and expressed confidence in his ability to be Vice President, others viewed him an unfit candidate

for the office and urged him to withdraw from the race. After a painful and public debate, Mr. Eagleton was

dropped from the ticket.

Sixteen years after Mr. Eagleton was forced to withdraw, rumors of mental illness were used against Michael Dukakis’ bid for the presidency During the 1988 presidential campaign, supporters of Lyndon LaRouche circulated the rumor that Michael Dukakis had been treated by a psychiatrist for depression lnitialIy, Mr. Dukakis dismissed the allegations with an assertion that there was no evidence to support the rumor

and he refused to release his personal medical records. But then, President Reagan brought national attention to the rumor when he joked at a press conference that,”1 am not going to pick on an invalid, ” when asked

(continued)
34 I Psychiatric Disabilities, Employment, and the Americans With Disabilities Act

his opinion about Mr. Dukakis’ refusal to release his medical records. Eventually, Mr. Dukakis’ personal physician issued a statement assuring the public that the presidential candidate was in excellent health and

had had no psychological symptoms, complaints, or treatment. While the ultimate outcome of the presidential race may not have hinged on this issue, it nonetheless underscores the potency of such allegations.

A New Age?

More recent experience suggests that voters’ attitudes about mental illness may be changing. In 1990,

former United States Senator Lawton Chiles had to deal with the mental health issue during his gubernatorial campaign in Florida. Mr. Chiles acknowledged that he was taking the widely prescribed drug Prozac for

treatment of depression, which he had suffered since leaving the U.S. Senate, complaining of “burnout.”

During the gubernatorial primary campaign, his opponent’s running mate suggested that Mr. Chiles could

be suicidal. His allegation was based on newspaper accounts that the makers of Prozac were being sued

because the drug induced suicidal tendencies.

Mr. Chiles was obliged to release medical records that said he did not contemplate suicide during his

bouts with depression. The voters did not seem to consider Mr. Chiles’ taking of Prozac to be a significant

issue. Mr. Chiles said he thought the health issue was much more of a concern to the press and politicians

than to average people. “1 didn’t realize how many people knew something about depression, had somebody in their family with it or whatever,” he said. “People are always coming up to me, just kinda squeezing

my arm and saying something. ” Mr. Chiles won the election.

Most recently, in 1992, Congresswoman Nydia Velazquez, former U.S. Secretary of the Department of

Puerto Rican Community Affairs, won her bid to represent New York City’s 12th Congressional District despite reports that she had attempted suicide in 1991. After hospital records revealing a bout with depression, pills, alcohol, and attempted suicide were anonymously leaked to news organizations, Ms. Velazquez

held a news conference to assure voters that she had been receiving professional counseling that gave her

“a whole new outlook on life. ” Apparently voters were convinced; she won the election with 77 percent of the

votes.

The experience of candidates for public office reflects what people in all walks of life know: Mental disorders trigger stigmatizing perceptions of incompetence, personal turpitude and weakness, endangering job

prospects. Thus, even with the suggestion of diminishing negative attitudes, people with psychiatric disabilities clearly need protection from discrimination offered by the ADA.

SOURCES “Risks of Prying Into Mental Health Problems,” CC) Researcher 2:346, 1992; J. Fuller, “Editorials Are Mixed on Eagleton, ”

Washington Post, JuIY28, 1972, p. A13; J. LeMoyne, “Polls Show Chiles Leading in Florida,” New York Times, Sept. 2,1990, p. A24,

“IS Barry Goldwater Psychologically Flt to be President of the United States?” advertisement in New York Times, Sept. 12, 1964,

p. L26; “Doctors Deplore Goldwater Poll,” New York Times, Oct. 2, 1964; New York Times, “The 1992 Election: New York Stat*U.S.

House Races: Green and Downey Lose as New York State Delegation Changes Dramatically,” New York Times, Nov. 4, 1992, p.B11;

C. Sandburg, Abraham Lincoln: The Prairie Years and The War Years (New York, NY: Harcourt, Brace, 1954); R. Toner, “FloridaGovernor Warily Fights Chiles Mystique, ” New York Times, Sept. 14, 1990, p, A14; “Ex-Senator Chiles Issues Health Data, ” Washington

Post, Aug. 22, 1990, p A3; “Atter Suicide Try, Candidate is ‘Truly’ Living, ” Washington Post, Oct. 9, 1992.

routinely projected by the news and entertainment mentation of the ADA. Fear, ignorance, and

media, the public primary source of information misperceptions about psychiatric disability unabout mental illness (16,28,31,48,53) (see ch. 4 doubtedly contribute to employment discriminafor discussion of mental disorders and violence). tion (40,56). Furthermore, the education of emThe negative attitudes attached to mental disor- ployers and coworkers about mental disorders as

ders have profound implications for the imple- well as employee willingness to disclose a psy -
Chapter 2 The ADA and People With Disabilities: An Overview 35

chiatric disability will be critical (see ch. 4). Stigma and discrimination also inspire the adoption of

a principle that seems to be universally held by

consumer groups: empowerment.

Before defining empowerment, it is important

to explicate one of the most insidious results of

stigma and discrimination. People with psychiatric disabilities often internalize the attitudes and

practices of people who victimize them

(7,28,40,43,56). Research findings support the

observation that stigma and discrimination attached to mental illness undermine an individual’s

self-esteem and social interactions (31,56). For

example, one study (30) correlated the expectation of rejection with demoralization and unemployment among people with mental disorders.

To counter these crippling effects, many people

with psychiatric disabilities and their family

members hold empowerment as a fundamental

goal (5,34,55). While the term may suffer from

overuse and some ambiguity (34), empowerment

connotes a sense of personal and social potency.

“Empowerment means acquiring the ability to

make decisions that affect an individual’s life”

(55). Government officials at the Federal and

State level increasingly endorse the principle of

empowerment and have legislated consumer involvement in policy making and the delivery of

mental health care (55). For example, the statement from the Federal consensus conference on

“Strategies to Secure and Maintain Employment

for Persons with Long-Term Mental Illness”

prominently highlights consumer involvement

(40): “It is important to promote the active participation of people with psychiatric disabilities at all

levels of research development, implementation,

and evaluation.” Similarly, the National Association of State Mental Health Program Directors asserts in a position paper that “former mental patients/mental health consumers have a unique

contribution to make to the improvement of the

quality of mental health services in many arenas

of the service delivery system. . . Their contribuBlind 47%

Deaf 39%

I

In a wheelchair 59%

1

I Mentally retarded 33%

I Mentally ill 19%

1

1 I I I I I I

0% 10?40 20% 30% 40% 50% 60% 70%

Very comfortable

A survey conducted by Louis Harris and Associates, Inc., for

the National Organization on Disability indicated that of all the

disabilities asked about, people felt least comfortable with

people with mental illness,

SOURCE Adapted from National Organization on Disability, “Public Attitudes Toward People With Disabilities,” survey conducted by Louis

Harris and Associates, Inc , 1991

tion should be valued and sought in areas of program development, policy formation, program

evaluation, quality assurance, system designs,

education of mental health service providers, and

the provision of direct services” (43). Federal

legislation also has required the involvement of

people with psychiatric disabilities and their family members in mental health services and policy.

The Mental Health Planning Act (P.L. 99-660)

and the Protection and Advocacy for Mentally Ill

Individuals Act (P.L. 99-319) require the formal

involvement of consumers on State advisory bodies. A more recent development is the establishment of the Consumer/Survivor Mental Health

Research Policy Work Group by the Center for

Mental Health Services9 (CMHS). The group,

which includes several people with psychiatric

9 me center for Mental Health Services is part of a newly organized Federal agency, Substance Abuse and Mental Health Semices Administration (SAMHSA), in the U.S. Department of Health and Human Services (P. L. 102-321). See chapter 5 for complete description.
36 I Psychiatric Disabilities, Employment, and the Americans With Disabilities Act

disabilities, identifies roles for consumers in mental health policy and research (3).

The Community Support Program (CSP) in

CMHS is among the most prominent governmental supports for groups of people with psychiatric

disabilities and their families (8; see ch. 5). Since

its inception in 1977 as the first national program

to promote consumer involvement in mental

health care, CSP has funded several national conferences, two national technical assistance centers, a self-help clearinghouse, a national monthly

teleconference, and various model programs for

self-help and consumer service involvement (see

ch. 5). In fiscal year 1993, CSP provided $4.4 million (about 35 percent of the CSP budget) in grants

to31 States to support family and consumer initiatives. In addition, the CSP funds research into the

consumer movement (55).10

Two activities commonly performed by consumer groups could effect better ADA implementation. First, these groups may offer technical

assistance to businesses. Because people with

psychiatric disabilities and their family members

have a long involvement in rehabilitation, job

clubs, and consumer-run businesses, they have

first-hand knowledge of the issues that arise in

employment (55). For example, Fountain House,

founded in 1957 in New York, pioneered “club

houses,” an approach to psychosocial rehabilitation that provides for transitional employment

services. The club houses place individuals in

temporary jobs with on-site support and training.

Second, many groups have considerable experience educating outside groups about mental disorders, a service that many employers may find

helpful. Thus, many consumer organizations can

help employers devise accommodations and sensitize them to the issues associated with psychiatric disabilities. As mentioned, the CSP supports

two consumer-run national technical assistance

centers—Project Share in Philadelphia, Pennsylvania, and the National Empowerment Center in

Lawrence, Massachusetts—as well as the National Mental Health Consumer Self-Help Clearinghouse. These centers can assist employees and

employers in finding local groups and employment/ADA related information.

Consumer self-help groups form another potential resource during ADA implementation.

Such groups, in operation since the late 1970s, offer empowerment, inspiration, education, and

support (7,8, 14,34,55). Self-help group functions

range from support services to advocacy (25,55).

Recently published data detail the nature of these

services and provide evidence that many people

with psychiatric disabilities and their family

members utilize them (55). While empirical proof

of performance is yet to come, new and ongoing

studies suggest that self-help groups can provide

effective services (25,55). Given their apparent

wide use and the support that they provide, selfhelp groups may be useful in helping people with

psychiatric disabilities address ADA employment

issues.

The above discussion asserts that consumer

groups may advance ADA implementation by

serving as a source of information and support to

employers and employees. Three caveats warrant

notice, however: First, in general, employers have

not tapped into the experience and expertise of

people with disabilities; people with psychiatric

disabilities and their family members may be even

more underutilized. Second, characterization and

evaluation of consumer-provided services to identify the groups that are most effective are at a very

early stage (25,29,34,55). Third, to be effective

agents of information and support for the ADA,

people with psychiatric disabilities and their family members need to understand the law.

SUMMARY AND CONCLUSIONS

This chapter summarizes the ADA’s provisions,

highlighting issues of employment. While not an

10 According t{) ~ inf{)mal ~uwey by the U.S. ~paflment of Health and Human Sewices Inspector General, while CSP is rightly credited

with fostering the mental health consumer movement, it “has become overidentified with. . . certain consumers over others.” (54).
Chapter 2 The ADA and People With Disabilities: An Overview 37

in-depth analysis of the ADA’s legislative history

or requirements, the overview points out the importance of this legislative mandate for people

with psychiatric disabilities. The overview also

points out some potential problems. Chapters 3 and 4 consider these areas in greater detail.

The ADA stems from a 25-year history of antidiscrimination laws. Review of the policy antecedents of the ADA in this chapter and in the next

led OTA to the conclusion that psychiatric disabilities do not always have an easy fit with Federal

disability policies. This reflects the stigma attached to mental disorders and the complexity of

psychiatric disability. This history has important

implications for the ADA: Federal leadership,

public education about the law’s goals, and understanding of psychiatric disabilities will be critical

for fair and effective implementation.

This chapter also outlines the history of people

with disabilities in making public policy. Individuals with physical disabilities organized over the

last three decades; they worked to invest disability

policy with values of self-determination, equal

opportunity, and full participation in society.

United against discrimination, the disability

rights movement passionately worked to win the

ADA’s passage. In addition, people with physical

disabilities have achieved important policy goals,

political clout, and leadership.

Although not yet at the same level of leadership

and political influence as those with physical disabilities, people with psychiatric disabilities and

their families have founded several national organizations and have gained a voice in public policy

over the last 10 to 20 years. While often divided

over priorities and ideologies, these groups express common concerns over the need for employment and the problems of discrimination. Their

experience with employment, technical assistance, support groups, and public education has

the potential to inform and promote ADA implementation.

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38. National Council on Disability, ADA WatchYear One: A Report to the President and the

Congress on Progress in Implementing the

Americans With Disabilities Act (Washington, DC: Apr. 5, 1993).

39. National Depressive and Manic-Depressive

Association (NDMDA), Chicago, IL, personal communication, June 1993.

40. National Institute on Disability and Rehabilitation Research, “Strategies To Secure and

Maintain Employment for Persons With

Long-Term Mental Illness,” Consensus Validation Conference, Washington, DC, September 1992.

41. National Organization on Disability, “Public

Attitude Toward People With Disabilities,”

survey conducted by Louis Harris and

Associates, Inc. (Washington, DC: 1991).

42. O’Keeffe, J., “Disability, Discrimination and

the Americans With Disabilities Act,” Consulting Psychology Journal: Practice and Research 45:3-9, 1993.

43. Parrish, J., “The Long Journey Home: Accomplishing the Mission of the Community

Support Movement,” Psychosocial Rehabilitation Journal 12: 107-124, 1989.

44. Parry, J. W., “Mental Disabilities Under the

ADA: A Difficult Path to Follow,” Mental

and Physical Disability Law Reporter

17: 100-112, 1993.

45. Percy, S., Disability Rights Mandates: Federal and State Compliance With Employment

Protections and Architectural Barrier Removal (Washington, DC: Advisory Commission on Intergovernmental Relations, 1989).

46. Rubenstein, L. S., “Mental Disorder and the

ADA,” Implementing the Americans With

Disabilities Act: Rights and Responsibilities

ofAll Americans, L.O. Gestin and H.A. Beyer

(eds.) (Baltimore, MD: Paul H. Brookes Publishing Co., 1993).

47. Scallet, L.J., and Rohrer, C. F., Analysis:

Americans With Disabilities Act and Mental

Health (Washington, DC: Mental Health

Policy Resource Center, 1990).

48. Scheff, T.J., Being Mentally Ill: A Sociological Theory, 2nd ed. (Chicago, IL: Aldine,

1984).

49. Scotch, R. K,, From Good Will to CivilRights:

Transforming Federal Disability Policy

(Philadelphia, PA: Temple University Press,

1984).

50. Shapiro, J. P., No Pity (New York, NY: Random House Inc., 1993).

51. Tucker, B. P., “Section 504 of the Rehabilitation Act after Ten Years of Enforcement: The

Past and the Future,” University of Illinois

Law Review 4:845-921, 1989.

52. U.S. Congress, Government Accounting Office, Report to the Chairman, Subcommittee

on Housing and Urban Affairs, Committee on

Banking, Housing, and Urban Affairs, U.S.

Senate, Public Housing: Housing Persons

With Mental Disabilities With the Elderly,

GAO/RCED-92-81 (Washington, DC: August 1992).

53. U.S. Congress, OffIce of Technology Assessment, The Biology of Mental Disorders, OTABA-538 (Washington, DC: Government

Printing OffIce, September 1992).

54. U.S. Department of Health and Human Services, Office of the Inspector General, Revitalizing the Community Support Program

(Washington, DC: June 1993).
 —-

40 I Psychiatric Disabilities, Employment, and the Americans With Disabilities Act

55. Van Tosh, L., “Consumer/Survivor-Operated 57. West, J. (cd.), The Americans With DisabiliSelf-Help Programs,” in preparation. ties Act: From Policy to Practice (New York,

56. Wahl, O. F., and Harman, C. R., “Family NY: Milbank Memorial Fund, 1991).

Views of Stigma,” Schizophrenia Bulletin

15: 131-139, 1989.
How the

ADA and Research

Define Psychiatric

Disabilities 3

hat is a disability? Being in a wheelchair? Not being

able to see or hear? At first blush, the term may seem

self-evident, conjuring up familiar images. But, in fact,

disability is complex and much misunderstood. Various

models and definitions of disability can be confusing (box 3-1).

Stigmatizing stereotypes and misperceptions attached to disability further obscure its meaning. Finally, a disability is not simply

what a person has, but reflects an individual’s functional limitations and abilities, as well as the supports and demands of the environment in which that person lives and works.

Defining the disabilities that result from mental disorders may

be even more difficult. Dubbed “invisible,” psychiatric disabilities often are not obvious. Mental disorders engender such difficulties as problems in concentration or social interactions, which

are usually not readily apparent. And public perceptions are even

more fallacious and cruel: People with psychiatric disabilities

often are considered dangerous, morally corrupt, inept, weak, or

even fakes.

Clearly, the first order of business with the Americans With

Disabilities Act (ADA) is the task of ensuring that all people who

are affected by the law understand its definition of disability. Furthermore, implementing the ADA requires a nexus between the

legal definitions and regulations and the true nature of these

conditions. This chapter describes the ADA’s definition of disability, along with relevant regulations and guidelines from the

U.S. Equal Employment Opportunity Commission (EEOC), and

how research characterizes these conditions.

 41
 . 

42 I Psychiatric Disabilities, Employment, and the Americans With Disabilities Act

The endeavor to define disability in the ADA is not unprecedented. As noted in chapter 2, the ADA’s

specifications stem from a series of disability laws, regulations, and court decisions. Definitions of disability

have evolved over the course of the 20th century, reflecting program, policy, and research needs. This box

describes various models and definitions of disability as well as inconsistencies that flag the potential for

conflict among disability programs and policies.

A recent study by the Institute of Medicine (IOM) described two major models for defining disability: the

functional limitation model, developed by Nagi, and the World Health Organization (WHO) model. Both acknowledge three critical factors in disability: underlying impairment, functional result, and environmental

influences. But they differ in their terminology and application.

The functional limitation model includes four stages on the path toward disability: pathology, impairment,

functional limitation, and disability (figure 3-1 ). The concept of pathology refers to an abnormal change in a

normal bodily process or structure that results from such factors as infection, trauma, or developmental process. Impairment reflects functional restrictions at the organ level, stemming from either pathologies or other mental, emotional, physiological, or anatomical losses or abnormalities. For example, symptoms such as

hallucinations in schizophrenia represent an impairment in this framework. Restrictions on an individual’s

actions or activities—such as lifting a heavy weight or carrying on a coherent conversation—form functional

/imitations. Disability refers to impaired performance of a socially defined role, reflecting an impairment or

functional limitation and environmental supports and demands. This model notes that a variety of factors,

such as treatment, financial resources, or personal expectations, can impinge on any stage. The model also

asserts that disability is not the inevitable result of a pathological condition, impairment, or even functional

limitation.

The WHO model for defining disability—WHO’s 1980 International Classification of Impairments, Disabilities, and Handicaps (lCIDH)—is a taxonomy or classification system. Currently under revision, it is the

most widely used system for classification in the world. Like the functional limitation model, the WHO model

builds on four concepts: disease, impairment, disability, and handicap. The concept of disease stems directly from the medical model, referring to pathology in an individual. Impairment is any loss or abnormality

of physiological, psychological, or anatomical structure or function. Disability results from impairment, referring to the inability or restricted ability to perform activities considered within the range normal for humans, Finally, a person is said to have a handicap when an impairment or disability limits or prevents role

performance for that individual in society. Note that IOM’s concept of disability is equivalent to handicap in

WHO’s model. Some, including the IOM, have criticized the ICIDH because of internal inconsistencies and

the use of the term handicap, which generally is rejected as stigmatizing in the United States.

Public health entities are not the only ones to define disability In fact, the first definitions of disability

came from rehabilitation, compensation, and insurance programs. Three programs, with differing definitions of disability, may be particularly relevant to the ADA’s implementation:

Social Security Disability Programs: The U.S. Social Security Administration (SSA) operates two disability income maintenance programs. The Social Security Disability Insurance (SSDI) program is an

insurance program for those who have become disabled. The Supplemental Security Income (SSI) program is a social welfare program for people who are blind, aged, or disabled. In both SSDI and SSI,

people with psychiatric disabilities form the largest portion of beneficiaries. In 1991,24 percent of SSDI

beneficiaries received financial support on the basis of mental disorders. In that same year, 27.4 percent

of SSI beneficiaries with disabilities received financial support on the basis of mental disorders. Eligibility

for these income-support programs hinges on the strictest of all definitions of vocational disability. As

detailed in the Federal Social Security Act, disability is “the inability to engage in any substantial gainful
Chapter 3 How the ADA and Research Define Psychiatric Disabilities 43

activity by reason of any medically determinable physical or mental impairment(s) which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less

than 12 months. “Guided by the statutory language, SSA developed an administrative procedure to determine disability status, based on medical and nonmedical evidence,

Vocational Rehabilitation The Rehabilitation Services Administration (RSA) administers vocational

rehabilitation (VR) services, including employment potential assessment, vocational training, job placement, and followup support, under a Federal-State program. The Rehabilitation Act originally authorized

the VR program in 1920 to help injured workers return to their jobs. Since 1975, amendments to the Rehabilitation Act gives priority of services to people with severe disabilities—’’ persons who need multiple

services over an extended period of time’’—but who had demonstrable employment potential. The 1992

reauthorization reconciles the language and ideals of the VR program with those of the ADA. The law also

specifies that people with the most severe disabilities should be served, asserting that any individual is

employable given the proper support services and technology. Today, people with psychiatric disabilities are the second-largest group of applicants for VR services-17 percent of the client population

served. However, experts and advocates claim that these individuals are underserved by this program

and that vocational services remain a major need for this population. Data from the RSA indicate that

people with psychiatric disabilities have the lowest rate of successful rehabilitation under this program.

Workers’ Compensation Lost wages or earning capacity due to an employment-related injury or illness provides evidence of disability in workers’ compensation programs. While varying somewhat

among jurisdictions, eligibility determinations generally rest on medical documentation and resulting inability to work Rather than relying on an either/or proposition- disabled or not—information on the relative degree of disability (Is the disability temporary or permanent ? partial or complete?) is sought. Benefits in workers’ compensation may cover medical care, wage replacement and compensation, and rehabilitation services. In the last 10 years, as wages and medical costs have increased, workers’ compensation costs have risen significantly. The changing nature of work and evolving definitions of work-related disorders also have spawned new categories of disabilities, Stress-related disorders represent

one example In California, they account for a 700 percent increase in claims between 1979 and 1988.

Much debate surrounds the issue of fraudulent claims, the subjectivity of claims, as well as the difficulty

such disorders present in separating job-related causes from aggravating personal factors.

As this review of the programs and academic models reveals, all consider impairment and its functional

results as key concepts of disability but their definitions differ, Impairments can mean any impairment, or

only those that result from injury on the job. Functional results can mean the inability to work over a long

period of time, or refer to a temporary hiatus. Such distinctions are unavoidable with different program

goals, and the ADA adds yet another set of definitions.

Confusion, conflict, and inefficiency evolve from this “tower of disability Babel, ” however While a common nomenclature may not be possible, given the different policy and program goals, guidance on the jurisdictional overlaps would greatly assist employers, care providers, and those who enforce disability policy.

For example, some experts claim that compliance with the ADA in providing an accommodation for an injured worker can save employers money in workers’ compensation, by putting the employee back to work. On

the other hand, injured workers with no desire to return to work may use the ADA to increase workers’ compensation settlements. Or, employers trying to limit the spiraling costs of workers’ compensation, may medically screen

out workers who may pose an increased risk of benefit utilization; this practice is forbidden by the ADA. The

interplay of these different policies and programs warrants attention, both monitoring and guidance.

(continued)
44 I Psychiatric Disabilities, Employment, and the Americans With Disabilities Act

So does determining disability. Many different experts—medical, psychological and rehabilitative—

have considerable skill in this area. However, experience has shown that clinicians usually equate disability

with a medical diagnosis, a determination that is not necessarily applicable under ADA. The development

and dissemination of disability assessment methodologies that apply to different policies and programs

may assist clinicians. It would also be helpful if academic models and classification systems better reflected program and policy language to provide a cross-walk between research and public policies, and if

disability research reflected the policy definitions in use.

It is also notable that psychiatric disability has not always had an easy fit with disability models and programs. In each program discussed in this section—Workers’ Compensation, SSDI and SSI, and VR—psy -

chiatric disabilities have led, at one time or another, to controversy, fraudulent claims and abuse ,and/or

people being undeserved. The debate surrounding workers’ compensation and stress-related conditions

was mentioned above. SSI and especially SSDI still pose work disincentives for people with psychiatric disabilities, although there have been some recent improvements. Also, experiences with SSI and SSDI in the

early 1980s, and continuing in the VR program, show significant gaps in the service provided people with

psychiatric disabilities. Not only are people with psychiatric disabilities among the largest constituencies in

these programs, they are also among the most vulnerable because of stigma, the nature of their impairments, and service and support needs. These conditions also raise complex questions because of their

behavioral manifestations and subjectivity of claims. This suggests that effective implementation of the ADA

will hinge on accurate information on psychiatric disabilities and consideration of the special issues raised

by this population. Advance attention to problems that occurred in other programs could prevent them in the

ADA,

SOURCES. H. Andrews, J. Barker, J. Plttman et al., “National Trends m Vocational Rehabhtatlon: A Comparison of Indwlduals With

Physical Disabilities and Individuals With Psychiatric Disabillttes, ” Jouma/ of Fiehabi/itation January-March 7-16, 1992, Cahforma

Workers’ Compensation Institute, Menfa/Stress C/aimsin Ca/ifomia kVorkers’Compensation-/ncicfence (San Francisco, CA California Workers’ Compensation Institute, 1990); Institute of Medicine, Disability in America” Toward A Nafiona/ Agenda for Prevention,

AM, Popeand A R Tarlov (eds ) (Washington, DC: National Academy Press, 1991 ); C Kennedy, and EM Gruenberg, “ALexlcoiogy

for the Consequences of Mental Disorders,” Psychiatric Disability: Clinical, Lega/andAdminMrative Dimensions, A T Myerson and

T Fine (eds ) (Washington, DC: American Psychiatric Press, 1987), C Kennedy and R.W Manderscheid, “SSDI and SS1 Disabhty

Beneficiaries With Mental Disorders,” Menta/Hea/th, UnifedStafes, 7992, R.W Manderscheld and M A. Sonnenschem (eds ), DHHS

Pub No, (SMA) 92-1942 (Washington, DC. Superintendent of Documents, Government Prmtmg Off Ice, 1992), J G Kllgour, “Workers’

Compensation Problems and Solutions. The Cahfornia Experience, ” Labor Law Journal February :84-96, 1992, J C McElvee;, Jr,

“RecentTrends inWorkers’Compensation, ’’Employee Relations LawJouma/18 255-271,1992, M D Tashllan, B J Hayward, S Stoddard et al , Best Practice Study of Vocationa/RehabilitationServ/cesto Severely Mentally Ill Persons, Volume I Study Fmdmgs (Washington, DC: Policy Study Associates, 1989); World Health Organization, International C/assff/cat/on of /impairments, D/sabi/ities, and

Handicaps (Geneva, Switzerland, World Health Orgamzatlon, 1980)

THE ADA’S DEFINITION OF DISABILITY impairment, or those perceived as having such an

Chapter 2 of this report introduces the ADA’s impairment. Regulations and interpretive guidethree-pronged definition of disability: individuals lines from the EEOC1 expound on this approach

with a current impairment that substantially limits to disability, and draw from the ADA’s legislative

a major life activity, those with a history of such

1 The EEOC published regulations and interpretive guidelines for Title I of the ADA on July 26, 1991. The guidelines reflect the EEOC’s

interpretation of the ADA; it will serve as the EEOC’s guide when resolving charges of employment discrimination.
Chapter 3 How the ADA and Research Define Psychiatric Disabilities 45

Risk factors

(’nBiology

The disabling process

?

Events (e.g., falls, infections)

J

6?) 62!) 6?) m—’E!E3+Er-@El

This model of disability endorsed by the Institute of Medicine in 1991, includes a progression from

pathology and impairment to functional limitation and ultimately disability a state in which socially

defined role performance is hampered. A variety of risk factors may affect various stages in the

process.

SOURCE Adapted from lnstituteof Medicine, Disabil@mAmenca Towarda NationalAgendaforPrevention (Washington, DC. National Academy Press, 1991 ).

history and regulations, and case law from section does not equate mental impairments with a partic504 of the Rehabilitation Act. ular diagnostic framework (e.g., the Diagnostic

After repeating the ADA’s disability definition, and Statistical Manual, third edition, revised--or

the EEOC expands on the first prong to include DSM-III-R) (2).2 However, many experts contend

explicitly mental disorders: “Physical or mental that as a practical matter, a DSM-III-R diagnosis

impairment mean(s). . . [a]ny mental or psycho- will be necessary if not sufficient to cross the imlogical disorder, such as. . . emotional or mental pairment threshold in the first prong of the ADA

illness. . . (56 FR 35735 ).” Note that the EEOC

2 me DSM.111.R, published by the AmefiC~ psychiatric Association, is the most widely used mental health diagnostic manual in the world

(2). The classification of mental disorders in the DSM-111-R is mostly based on symptoms, such as expressed mood or thought processes or on

observed behaviors. in most cases, a DSM-diagnosable disorder is required for third-party reimbursement of treatment costs.
. —— — .

46 I Psychiatric Disabilities, Employment, and the Americans With Disabilities Act

definition (12).3 The EEOC further delimits the

notion of impairment and specifies that an impairment exists even when the condition is completely

controlled by medications or other devices (56 FR

35741). Distinguishing between “impairments

and physical, psychological, environmental, cultural and economic characteristics that are not impairments” is, however, considered paramount.

For example, normal traits, such as poor judgment

or a quick temper, are deemed distinct from impairments (56 FR 35741).

ADA and EEOC regulations do not explicitly

protect people genetically predisposed to a disease under this prong of the definition. Indeed, the

EEOC’s guidelines explicitly exclude “predisposition to illness or disease” in defining impairment.4 Because some mental disorders have a genetic component and genetic tests for

predisposition may become possible, this distinction could have future ramifications for people

with psychiatric disabilities (19,46). Given concerns about employment and insurance discrimination against people with genetic diseases, some

experts and advocates have urged the EEOC to delineate such coverage (51 ). However, others concerned about simplistic and discriminatory perceptions of genetic predisposition to illness

maintain that it is critical to distinguish between

such predisposition and the illness itself (10,37).

Two recent analyses note that courts rarely disputed whether an individual had a mental impairment under the Rehabilitation Act (19,40). According to Haggard, “the impairments to qualify

for protection under the Rehabilitation Act [have

included]: paranoid schizophrenia, manic-depression, depression, post-traumatic stress disorder,

borderline personality disorder, schizoid personality disorder, passive aggressive personality disorder, kleptomania, apraxia, transsexual disorder,

and mental retardation” (19). The ADA excludes

some of these and other disorders—specifically,

transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not

resulting from physical impairments, other sexual

behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use

disorders resulting from current illegal use of

drugs—as noted in chapter 2. While these restrictions are decried as stigmatizing (40), or at least

detrimental to treatment (23), they reflect the contentious issues surrounding substance abuse and

various DSM-III-R diagnoses (46).

Simply having an impairment—any impairment-does not equal having a disability under

the first prong of the definition. The ADA further

circumscribes the concept of disability by adding

that the impairment must “substantially limit one

or more of the major life activities (42 USC

12102 .3(2)(A)).” The EEOC’s spelling out of

“substantially limits” and “major life activities”

upholds the basic principle that a disability reflects impairment and functional result, although

the interpretation of those terms will be difficult.

In line with the spirit of the law and the opinion of

many advocates, the EEOC’s interpretation also

asserts that the ADA’s protection is for those with

“significant” or nontrivial impairments. The

EEOC’s regulations state:

The term substantially limits means:

(i) Unable to perform a major life activity

that the average person in the general population can perform; or

(ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner or

duration under which the average person in the

3 Not al] conditions identified by some as psycho] ogica] disorders are identifiable under the DSM-111-R, such as conditions in the occupational health arena and commonly investigated under the general rubric of “job stress.” Some data suggest that these conditions, such as mood or

anxiety disturbances, may limit functioning. However, staff at the EEOC has indicated to OTA that they “do not now, and do not currently plan to

categorize ‘stress’ as a category of disability” (48).

4 However, some interpret the ADA as providing protection for those predisposed to illness under the third prong of the definition (36).
Chapter 3 How the ADA and Research Define Psychiatric Disabilities 47

general population can perform that same major life activity. . .

The following factors should be considered in

determining whether an individual is substantially limited in a major life activity:

(i) The nature and severity of the impairment;

(ii) The duration or expected duration of the

impairment; and

(iii) The permanent or long term impact, or

the expected permanent or long term impact of

or resulting from the impairment (56 FR 35735).

As noted above, this explanation connotes significant impairment. Certain mental disorders, by

their very nature, possibly could be considered a

disability under the ADA. The EEOC guidelines

state:

The determination of whether an individual

has a disability is not necessarily based on the

name or diagnosis of the impairment the person

has, but rather on the effect of that impairment

on the life of the individual. Some impairments

may be disabling for particular individuals but

not for others, depending on the stage of the disease or disorder, the presence of other impairments that combine to make the impairment disabling or any number of other factors. Other

impairments, however, . . are inherently substantially limiting (56 FR 35741).

Certain mental disorders are, by their nature and

definition, chronic and quite disabling. For example, the DSM-III-R diagnostic criteria for schizophrenia include severe symptoms (e.g., hallucinations and catatonic behavior), marked functional

impairment, and a duration of at least 6 months

(2). People with schizophrenia often suffer a lifelong, degenerating course. Certainly the determination of a work accommodation normally requires more information than a diagnosis, for

mental disorders or other conditions. And some

advocates and experts note that classifying a particular disorder as “severe” or “chronic” can be

stigmatizing. Nonetheless, it is clear that the diagnostic criteria for certain mental disorders make

them, by definition, “inherently substantially limiting.” Advice to the EEOC on this point from experts and advocates could assist in delineating

diagnoses that fall in this category.

Another point to consider, in regard to the definition of “substantially limiting,” is the duration

of an impairment. The EEOC, in its regulations

and guidelines, asserts that the duration of an impairment is an important consideration in determining whether it is substantially limiting. The

guidelines elaborate: “[T]emporary, non-chronic

impairments of short duration, with little or no

long term or permanent impact, are usually not

disabilities” (56 FR 35741). Department of Justice regulations for Title II also indicate, in slightly different language, that “short-term or transitory illnesses are not disabilities if they do not place

a substantial limitation on a person major life activities.” Some mental health advocates and experts object to defining “substantial limitation” in

terms of duration or temporal limits (24). While

the guidelines do not list a psychiatric impairment

as an example (“[S]uch impairments may include,

but are not limited to, broken limbs, sprained

joints, concussions, appendicitis, and influenza.”), conditions such as short-term depression

following the loss of a spouse, which is a temporally delimited mental disorder included in the

DSM-III-R, may not be considered disabilities

under this rationale.

Mental health experts and advocates have expressed concern over how impairments that episodically remit then intensify fit into the ADA’s

definition of disability (40). While many major

mental disorders are chronic conditions, like some

physical impairments (e.g., multiple sclerosis),

symptoms may wax and wane over time. EEOC

staff indicated to OTA that a new chapter for the

compliance manual on the topic of “Disability”

will expressly address this issue. “Episodic disorders, which remit and then intensify, may be ADA

disabilities. They may be substantially limiting

when active or may have a high likelihood of reoccurrence in substantially limiting forms. In addition, such conditions may require a substantial limitation of a major life activity to prevent or to

lessen the likelihood or severity of recurrence. Fi-
— —

48 I Psychiatric Disabilities, Employment, and the Americans With Disabilities Act

nally, side effects of medications may be substantially limiting in themselves” (48).

“Major life activities” is the other defining term

discussed by the EEOC: an impairment rises to the

level of disability if it limits a major life activity.

The EEOC defines major life activities in its regulations as “functions such as caring for oneself,

performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.”

The interpretive guidelines provide further details: “Major life activities are those basic activities that the average person in the general population can perform with little or no difficulty. Major

life activities include caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working” (56 FR

35741).

Even though the list of major life activities provided by the EEOC is not meant to be exhaustive,

many mental health advocates and experts have

criticized it, asserting that none of the examples is

especially relevant to psychiatric disabilities

(19,40). To quote the American Psychological

Association’s comment on the regulations:

In the listing of “major life activities,” the

only activity listed which is likely to pertain to

people with mental disabilities is “working.”

“Working” is a very general term and so persons

with mental disabilities will be put in the difficult and possibly untenable position of having to

prove they are qualified to work at the same time

that they have to demonstrate that they are substantially limited in their ability to work in order

to be covered by the ADA (3).

It is important to note that neither the EEOC nor

all mental health experts concur with this viewpoint (29). As noted by analysts with the EEOC,

“In our view, the major life activities of learning,

caring for oneself, and performing manual tasks

all may be substantially limited by psychiatric disorders or by the side effects of psychotropic medications” (48). Advocates’ concerns reflect, in

part, the fact that people do not generally appreciate how mental disorders can impair function.

Various mental health advocates have suggested that the following life functions be added

to EEOC technical assistance materials or guidelines: remembering, concentrating, thinking,

information processing, communicating, perceiving, reasoning, and maintaining social relationships (3,40). Although the list of major life activities in the EEOC’s guidelines is not meant to be

exhaustive, more explicit guidance in terms of

mental disorders and related disabilities would

undoubtedly be very useful to employers and employees attempting to implement the ADA. The

next section summarizes information on the functions and activities that are limited in psychiatric

conditions.

It is also relevant to note how the EEOC defines

a substantial limitation in the major life activity of

working. First, the EEOC states that this consideration is one of last resort. “If an individual is substantially limited in any other major life activity,

no determination should be made as to whether

the individual is substantially limited in working”

(56 FR 35741). In the absence of a limitation in

other major life activities, the EEOC advises an

individualized evaluation of work limitation.

Consideration should be given, in the view of the

EEOC, to the geographic area to which an individual has reasonable access, as well as the number

and types of jobs—with similar or distinct qualification demands—affected by the work limitation.

The EEOC is careful to note that “an individual

does not have to be totally unable to work in order

to be considered substantially limited in the major

life activity of working.

While the guidelines do not provide a description, they do refer to a case relevant to psychiatric

disabilities brought under the Rehabilitation

Act—Forrisi v. Bowen, 794 F. 2d 931, 934 (4th

Cir. 1986). This case shows that while courts have

been expansive in defining mental impairment per

se, substantially limiting psychiatric impairments

have sometimes been defined more restrictively.

In this particular case, the court held that acrophobia—fear of heights-did not substantially limit

a utility systems repairman from jobs that do not

require climbing and exposure to heights; he did

not have a disability under the law.
Chapter 3 How the ADA and Research Define Psychiatric Disabilities 49

The last two prongs of the ADA’s disability definition add a record of past impairment and the

perception of such an impairment in the law’s definition of disability:

Has a record of such impairment means has a

history of, or has been misclassified as having, a

mental or physical impairment that substantially limits one or more major life activities.

IS regarded as having such an impairment

means .

-

(1) Has a physical or mental impairment that

does not substantially limit major life activities

but is treated. . . as constituting such limitation;

(2) Has a physical or mental impairment that

substantially limits major life activities only as a

result of the attitudes of others toward such impairment; or

(3) Has none of the impairments defined

(above). . . but is treated by a covered entity as

having a substantially limiting impairment (56

FR 35735).

The law itself, these regulations, and guidelines

from the EEOC reflect an attitude of zero-tolerance for employment decisions based on stereotypes or discriminatory beliefs. The often-cited

decision of the U.S. Supreme Court in School

Board of Nassau County v. Arline (1987) underscores the point that the attitudes of others are important contributors to disability:

. . . [S]ociety’s accumulated myths and fears

about ability and diseases are as handicapping

as are the physical limitations that flow from the

actual impairment (480 U.S. 273 (1987)).

As noted in chapter 2, the stigma attached to psychiatric disabilities epitomizes this U.S. Supreme

Court finding. Indeed, the negative attitudes surrounding mental disorders are so strong that job

application forms commonly asked: “Have you

had a nervous breakdown?””Have you ever been

hospitalized in a mental institution?” or “Have

you ever received treatment for a nervous or emotionaI condition?” These questions evince the

firmly entrenched belief in our society that mental

illness, present or past, is incompatible with work.

Research and experience reflected in the second

part of this chapter show that this simplistic belief

is false.

The ADA should make such questions a thing

of the past.5 Title I of the ADA prohibits employers from asking applicants about their disabilities,

an important protection for such “invisible”

conditions as psychiatric disabilities. Under the

ADA, employers are barred from using any source

of information about disability status—voluntary

medical examinations, educational records, prior

employment records, billing information from

health insurance, psychological tests, and others.

In addition to prohibiting pre-job-offer medical

exams and prescribing a specific mechanism for

conducting post-offer exams, the burden of proof

placed on employers serves to protect applicants

and employees with disabilities. While the burden

of proving that one is disabled under the ADA’s

definition lies with the individual alleging discrimination, the EEOC’s guidelines indicate that

the second prong “of the definition is satisfied if

a record relied on by an employer indicates that

the individual has or has had a substantially limiting impairment.” In terms of the third prong of the

ADA’s definition of disability, the EEOC guidelines require employers to “articulate a non-discriminatory reason for the employment action. . .

(or else) an inference that the employer is acting

on the basis of ‘myth, fear or stereotype’ can be

drawn” (56 FR 35743).

RESEARCH CHARACTERIZATIONS OF

PSYCHIATRIC DISABILITIES

The above discussion reveals several questions

about psychiatric disability that are relevant under

the ADA. How do mental disorders affect life activities? Which impairments are most limiting?

How long do the symptoms and functional limitations of various mental disorders last, and do they

5 It is interesting 10 note that questions on applications for Federal jobs persisted for as long as a decade after becoming illegal under the

Rehabilitation Act (45). To the knowledge of OTA, no data address whether this is the case for the ADA.
50 I Psychiatric Disabilities, Employment, and the Americans With Disabilities Act

Disorder Some common symptoms Common treatment approaches

Schizophrenia

Major depression

Bipolar disorder

(manic-depression)

Obsessive-com pulsive

disorder

Panic disorder

Delusions, hallucinations; impaired ability to integrate

information, to reason, to concentrate, or to focus

attention; usually marked by incoherence, bizarre

behavior, suspicion, paranoia (psyohotic or “positive”

symptoms); dulling of emotions or inappropriateness of

emotional response (e.g., a “wooden” personality),

apathy, social withdrawal (nonpsychotic or “negative”

symptoms). Symptoms vary widely among patients,

combine In different ways, and may change over time.

Complete loss of interest or pleasure in activities;

weight gain or loss; insomnia or hypersomnia; slowed

or agitated movement; fatigue; intense feelings of guilt

or worthlessness; diminished ability to think or

concentrate; recurrent thoughts of death or suicide.

Symptoms of depression are described above. Mania

is characterized by an extremely elevated, expansive,

or irritable mood; inflated self-esteem or grandiosity;

decreased need for sleep; extremely talkative and

distractible; agitated motion; excessive Involvement In

pleasurable activities (e.g., buying sprees, sexual

indiscretions); psyohotic symptoms (delusions and

hallucinations) may also occur.

Obsessions are recurrent and persistent ideas,

thoughts, impulses, or images (e.g., the feeling of

being dirty, the desire for symmetry) that although

irrational and unwanted, cannot be resisted.

Compulsions are repetitive, purposeful, and intentional

behaviors (e.g., hand-washing, checking if stove Is on

or door is looked). The obsessions or compulsions

cause marked distress, are time-consuming, or

significantly interfere with the person’s normal routine.

Hallmark symptom includes sudden, inexplicable

attacks of intense fear that is associated with powerful

physical symptoms, including shortness of breath,

dizziness or faintness, trembling, sweating, choking,

nausea numbness, flushes, chest pain, fear of dying,

fear of going crazy, or of doing something uncontrolled.

May be associated with agoraphobia--fear of being in

public places.

Treatment usually integrates antipsychotic

medications to manage psychosis and

supportive psychotherapy aimed at helping

individuals understand illness reduce

stress, and enhance coping skills; may

involve hospitalization.

Treatment often consists of antidepressant

medications and/or various forms of

psychotherapy; short term hospitalization

and/or electroconvulsive therapy (ECT)

may be required in severe oases.

Depressive episodes are treated as above.

Manic episodes are usually treated with

lithlum carbonate. Psychosis maybe

treated with antipsychotic drugs;

hospitalization may be required.

Treatment currently conslsts of medication

and/or behavioral therapy.

Treatment may lnclude mediation

(antidepressant tier antianxiety drugs)

or psychotherapy (especially behavioral

and cognitive therapies as well as

relaxation techniques), or both.

SOURCE: U.S. Congress, Office of Technology Assessment, The BMw of MWd D/sordws, OTA-BA-538 (Washington, DC: U.S.

Government Ptinting office, September 1992).

recur? Many of the legal issues concerned with Mental disorders and their functional sequelae

these questions await further governmental guid- are prevalent and costly to society at large and in

ance and adjudication. However, knowledge from the workplace:

research on and past experience with mental disorders can assist ADA implementation. This section

● People with mental disorders account for

describes current models of and provides informaapproximately 10 percent of the charges filed

by individuals with the EEOC between July 26,

tion on psychiatric disabilities.
Chapter 3 How the ADA and Research Define Psychiatric Disabilities 151

1992 and October 31, 1993; they represent the

second largest population of disabilities (48).6

Decreased productivity and lost work days are

the largest cost imposed by mental disorders on

society. Of the total estimated cost of $136.1

billion in 1991, $60.0 billion or nearly 50 percent accrued from lost output, exceeding the

cost of hospitalization, care provider consultation, and medication combined (38,43).

Data from a recent survey of white collar workers confirm the high toll of depression on business: 9 percent of the men and 17 percent of the

women surveyed experienced an episode of

major depression during the previous year.

More than 50 percent of employees with

depressive symptoms reported work impairments (14).

Data from several studies link depression to disability at work (13,22,50): Individuals with depression were shown to experience four times

as many disability days when compared to

asymptomatic individuals. In fact, depressive

symptoms lead to levels of disability comparable to major heart conditions and exceed other

major medical disorders such as diabetes. Furthermore, simply the presence of depressive

symptoms—far below the threshold for a diagnosis of major depression—significantly impairs functioning.

What are mental disorders? As noted in an earlier OTA report, The Biology of Mental Disorders

(46), mental disorders encompass abroad range of

conditions, classified on the basis of expressed

thought processes or emotions, observed behaviors, physical symptoms, and functional impairments. Some of the most common and serious

conditions afflicting American adults, their symptoms and common treatments are listed in table

3-1. As in physical conditions, mental disorders

can range from temporary, relatively minor condi -

One year

Type of disorder

Schizophrenic disorders

Mood disorders

. Bipolar disorder

● Major depression

. Dysthymia

Anxiety disorders

. Phobic disorders

● Panic disorders

. Obsessivecompulsive disorder

Antisocial personality

disorder

Any mental disorder

Any mental/substance

abuse disorder

prevalence

rate (percent

+ standard

error)

1.1 + 0.1

9.5 + 0.3

1.2 + 0.1

5.0 + 0.2

5.4 + 0.2

12.6 + 0.3

10.9 + 0.3

1.3 + 0.1

Estimated

number of

persons

1,749,000

15,143,000

1,908,000

7,950,000

8,586,000

20,034,000

17,331,000

2,067,000

2.1 + 0.1 3,339,000

1.5 + 0.1 2,385,000

22.1 + 0.4 35,139,000

28.1 + 0.5 44,679,000

SOURCE: D.A. Regier, W.E. Narrow, D.S. Rae et al., The de

Facto U.S. Mental and Addictive Disorders Service System:

Epidemiologic Catchment Area Prospective l-Year Prevalence

Rates of Disorders and Services,” Archives of General

Psychiatry 50:85-94, 1993.

tions to chronic and severely incapacitating disorders. The more common and serious conditions

listed in table 3-1 typically have a chronic course,

with symptoms remitting and relapsing. While the

causes of many mental disorders have not been determined, ongoing research is providing more

clues about the biological and psychological substrates and contributors. Furthermore, in many

cases effective treatment approaches, including

medication and psychotherapy, are available (47).

Just how prevalent are mental disorders? The

most recently reported findings from the National

Institute of Mental Health’s (NIMH’s) Epidemiologic Catchment Area (ECA) program7 show that

more than one in five American adults has a diagnosable mental disorder in a given year (42) (table

3-2). Conditions range from the less common dis6 chapters provides a complete description of the EEOC’s process for handling charges under the ADA.

7 l“he Epl&mlologiC” Catchmeflt Area (ECA) program involved face-to-face interviews of more than 20,000 adults iiving In communities

and institutions. Data on the prevalence of mental and addictive disorders were coliected between 1980 and 1985 in five regions of the United

States. A compiete description of the ECA program is available (44).
52 I Psychiatric Disabilities, Employment, and the Americans With Disabilities Act

Estimated

Percent of number

Service setting population of persons

Specialty mental

health/addictive 5.9 9,361,000

General medical 6.4 10,043,000

Other human services 12.5 19,734,000

Voluntary supports 4.1 6,535,000

Total* 14.7 23,107,000

Total is lees than sum of service in each setting since individuals

often access more than one type of provider.

SOURCE: D.A. Regier, W.W. Narrow, D.S. Rae et al., “The de

Facto U.S. Mental and Addictive Disorders Service System:

Epidemiologic Catchment Area Prospective l-Year Prevalence

Rates of Disorders and Services,” Archives of General

Psychiatry 50:35-94, 1993.

orders of schizophrenia and bipolar disorder, with

a 1-year prevalence rate of 1.1 ± 0.1 percent and

1.2 ± 0.1 percent, respectively, to the exceedingly prevalent mood disorders of major depression

(5.0 ± 0.2 percent), and dysthymia (5.4 ± 0.2

percent). The ECA data also reveal that 14.7 percent of American adults—more than 23 million

people—sought treatment for mental or addictive

disorders from mental health specialists, primary

care providers, other human service personnel

(such as pastoral counselors), and/or peers, families, and friends (table 3-3).8

The ECA data underline the broad spectrum of

diagnoses and service needs that typify mental

health problems in the United States. Although it

is clear that all of these conditions would not equal

disabilities under the ADA, this diversity will undoubtedly surface in the workplace, as indicated

by requests received by the Job Accommodation

Network (JAN),9 which is funded by the President’s Committee on the Employment of People

with Disabilities. While 47 percent of the inquiries received by JAN related to mood disorders,

calls sought information on a wide variety of mental disorders (table 3-4). What these data on diagnoses, symptoms, and service use do not reveal is

the nature of associated disabilities.

Current models of psychiatric disability began

with the need to apportion resources and to deliver

useful services. Psychiatric or psychosocial rehabilitation comprises a broad range of services that

“assist persons with long-term psychiatric disabilities increase their functioning so that they are successful and satisfied in the environments of their

choice with the least amount of ongoing professional intervention” (5,7). The psychosocial rehaPercent (%) of total

inquiries on mental

Specific disorder* disorders

Bipolar disorder (manic depression) .................30

Depression . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Schizophrenia. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15

Stress/anxiety . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Phobias . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Other (personality disorder, post traumatic

stress disorder, obsessive-compulsive

disorder) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

● As specified by caller.

SOURCE: Job Accommodation Network, 1993.

8 ECA data reveal two issues worthy of comment. First, most people with diagnosable mental or addictive disorders-71.5 percent-receive no treatment or service. Even people with the most serious diagnoses—schizophrenia, major depression, obsessive-compulsive disorder,

and panic disorder-receive treatment only 45 to 65 percent of the time. The gap between diagnosis and treatment may reflect transient symptoms for which treatment was not sought, inadequate access to mental health care, lack of recognition on the part of a care provider, or other

factors.

The second issue concerning service use and prevalence involves the many individuals without a diagnosable disorder who receive treatment: 46 percent of those receiving treatment fail under this category. The ECA data offer some clues about this apparent discrepancy. The vast

majority of those receiving care without a current diagnosis have a history of a serious mental disorder (schizophrenia, bipolar disorder, major

depression, and panic disorder) or significant, if diagnostically subthreshold, symptoms.

9 The Job Accommodation Network or JAN is a government-funded technical assistance program aimed at offering employers and employees practical advice on how to accommodate disabilities in the workplace. A complete description of JAN appears in chapter 5.
Chapter 3 How the ADA and Research Define Psychiatric Disabilities 53

Stages: 1. Impairment Il. Disability Ill. Handicap

Definitions: Any loss or abnormality of Any restriction or lack of ability, A disadvantage, resulting from an

psychological, resulting from an impairment, to impairment and/or a disability, for a given

physiological, or anatomical perform an activity in the manner individual that limits or prevents the

structure or function. or within the range considered fulfillment of a role that is normal

normal for a human being. (depending on age, sex, social, cultural

factors) for that individual.

Exam pies: Hallucinations, delusions, Lack of work adjustment skills or Unemployment.

depression. social skills.

SOURCE: W. Anthony, H. Cohen, and M. Farkas, Psychiatric Rehabilitation(Boston, MA: Center for Psychiatric Rehabilitation, 1990).

bilitation model, based on the WHO’s model for

disability (5,21 ,27) (table 3-5), specifies that an

impairment, which entails the symptoms of a

mental disorder, may restrict certain skills or functions including various social skills. Psychiatric

disabilities may impede an individuals’ ability to

fulfill certain roles, such as holding a job. This

model has clear implications for service delivery:

While treatment to alleviate a psychiatric impairment remains important, interventions geared toward improving skills, functional performance

and environmental supports are also critical.

What data exist concerning the prevalence and

nature of psychiatric disabilities (box 3-2)? No

data specify how many people with psychiatric

disabilities are covered by the ADA. However, recent information from a random survey of adults

living in communities detail the prevalence of

psychiatric disabilities and associated serious limitations in activity (8). The results of the 1989 supplement to the National Health Interview Survey

indicate that approximately 5 million adults with

3.3 million currently in communities—1.8 percent of the total population—have a serious mental illness: a mental disorder during the past year

that seriously interfered with daily life. Nearly 80

percent of individuals with a psychiatric impairment were limited in: taking care of personal

needs such as eating, dressing, and bathing (activities of daily living); managing money, doing everyday household chores, and getting around outside the home (instrumental activities of daily

living); and, cognitive and social functioning. Impaired functioning translated into employment

problems for many: Nearly 50 percent of the

people with serious mental illnesses between the

ages of 18 and 69 were either completely unable

to work (28.9 percent) or limited in work (18.4

percent). Unsurprisingly, a significant fraction of

these individual s—23.2 percent—receive disability payments from the government, because of

their mental conditions.

This study also defines functional limitations

that stem from mental disorders and are especially

relevant to employment. More than 90 percent of

those restricted in work: 1) experience problems

in social functioning; 2) have problems coping

with day-to-day stress; and 3) find it difficult to

concentrate long enough to complete tasks (table

3-6). These data mirror guidelines for assessing

disability (e.g., SSA disability determinations),

experience in service delivery, and a large body of

research (17). Preliminary data and analysis related to the ADA also echo these findings. Telephone requests handled by JAN since the ADA’s

implementation identify stress intolerance as an

important functional limitation in mental illness

(25). Other limitations related by callers include

behavior that may contribute to problems in interpersonal relationships, and the reduced ability to

concentrate. Similarly, in a report on 12 employed

individuals with serious mental disorders, common functional limitations included difficulty

concentrating, handling stress, initiating personal

contact, and responding to negative feedback

(31).

While the conceptual model of psychiatric disabilities embrace the notion of impairment and
54 I Psychiatric Disabilities, Employment, and the Americans With Disabilities Act

Measures of disability can be quite useful to policymakers, Information on prevalence, longitudinal

course, and associated socioeconomic status can aid in service planning, resource distribution, and the

assessment of enacted policies The Federal Government collects some relevant information on disability

in general, and psychiatric disabilities specifically. Several analyses have concluded, however, that these

efforts contribute to a shallow and irregularly updated database.

The National Health Interview Survey (NHIS) is the Federal Government’s most regular collection of information on disabilities. Conducted by the National Center for Health Statistics every 2 years, the NHIS

collects data concerning existing impairments and activity limitations in noninstitutionalized individuals

Another source of information on disabilities is the Survey of Income and Program Participation (SIPP), conducted by the U.S. Census Bureau since 1983. SIPP is an ongoing study of the economic well-being of U.S.

households. As part of the third round of interviews, data were collected on functional limitations, work limitations, and the receipt of Social Security or Veterans disability benefits, Finally, the Current Population Survey (CPS), in which the U. S. Department of Labor collects data on the work status of the population each

month, solicits information on disability status in each March supplement

NH IS, SIPP, and CPS provide limited information on disabilities in general; The data they provide on psychiatric disabilities are even more scant. To augment the Nation’s database on disabilities in general and

psychiatric disabilities specifically, a special survey to supplement the NHIS is underway. The survey was

planned to provide a depth of data heretofore unknown in the field of disability statistics, In addition to information on health status, health care utilization, and activity limitation, the survey includes a variety of

questions on impairments (e.g , severity, nature, onset, and duration), receipt of benefits, employment status, work accommodations, earnings, use of vocational rehabilitation services, social interactions, and selfperceptions of disability. The survey also provides an opportunity for longitudinal study. Furthermore, a

group of experts developed a new section on psychiatric and cognitive impairments,

To improve the Nation’s database on psychiatric disabilities, the Center for Mental Health Services

(CMHS) has developed the Uniform Client Data Instrument (UCDI) to assess psychiatric disability, The

UCDI incorporates questions on psychiatric symptomatology, daily activities, social functioning, behavioral

functional limitation, the relative role of each factor in work is unclear and controversial. On the

one hand, many people in the psychosocial rehabilitation community disavow a high correlation

between symptoms or diagnosis and employment

outcome (4,5,35).

A number of studies illustrate the lack of relationship between a variety of assessments of

psychiatric symptomatology and future ability

to live and work independently. . . Although occasional studies do report a relationship between

a type of symptom and rehabilitative outcome

. . . the evidence is overwhelming that little or

no relationship exists (5).

On the other hand, some researchers offer evidence of significant correlation between psychopathology and work performance. For example,

data from a recently completed study of nearly

500 individuals with various mental and addictive

disorders implicate a close correlation between

the type and severity of symptoms and work performance and employment (28,30,32).

[A]ssessments of psychiatric symptoms and

vocational performance . . . documented that severity of psychiatric symptoms was significantly related to the functional capacity for work in a

wide variety of mental disorders. Persons with

psychotic disorders performed much more poorly on work performance than those with nonpsychotic disorders (30).

These seemingly antithetical results reflect differing measures of psychiatric symptomatology,
Chapter 3 How the ADA and Research Define Psychiatric Disabilities 55

problems at home and/or work, and substance abuse, The UCDI was incorporated into the National Medical Expenditures Survey (conducted in 1986, data not yet available). More recently, the UCDI was incorporated into a supplement to the NH IS; the data are described in table 3-6. While much of the regular CMHS’

data collection focuses on service providers and use, a current project—the Longitudinal Client Sample

Survey of Outpatient Mental Health Programs—will include information on client functioning. But, Federal

support for the collection, analyses, and reporting of national statistics on mental health services and client

characteristics has been precarious over the last several years, in that it has not had an official budget of its

own Prior to fiscal year 1989, the program received funds from program management and support accounts at NIMH. Since that time, $5.1 million in fiscal year 1992 and $8,8 million in fiscal year 1993 came

from a mental health block grant set-aside.

Information relating to the impact of the ADA on employment is not addressed by any of the ongoing or

planned Federal surveys. Data are lacking on the hiring of people with psychiatric disabilities, discrimination and other problems in the workplace, or the attitudes of employers and employees about the ADA and

psychiatric disabilities Indeed, which people with mental disorders are covered by the ADA is not clear.

Some analysts have suggested that the EEOC, which now collects information from large employers on the

hiring of women and minorities, could monitor such trends among people with disabilities as well, to estabIlsh a statistical basis for discrimination. Also, surveys by Federal granting agencies, including the CMHS,

NIMH, or the National Institute on Disability and Rehabilitation Research, could incorporate the ADA’s definition of disability and ask questions about employment experiences.

SOURCES lnstltuteof Medlcme, f3isabi/ifyifrAmerica Towarda Nationa/Agenda forPrevenfiOn (Washington, DC: NationalAcademy

of Sciences, 1991), E H Yelln “The Recent Hrstoryand lmmedlatE? Future of Employ mentAmong Persons With Disabilities, ” TheAmerlcans Wth DlsabMes Act From Po/icy to Prachce, J West (ed ) (New York, NY Mllbank Memorial Fund, 1991), R. Manderscheid,

Director, Dlwslon of State and Commumty Systems Development, Center for Mental Health Services, Substance Abuse and Mental

Health Serwces Admmlstrahon, Rockvllle, MD, personal commumcahon, February 1993, M Adler, Office of the Assistant Secretary

for Planning and Evaluation, U S Department of Health and Human Serwces, Washington, DC, personal communication, January

1993

measures of work performance, and vocational not be drawn. Data and experience permit the foloutcomes. Furthermore, treatment status and individual ability are almost always ignored in these

studies as are traditional labor force predictors

(e.g., age, gender, ethnicity, and social class), the

type or amount of any vocational services that the

individual may have received, and prior job history (15).10 Complete resolution of how impairment, functional limitation, and work disability

relate to one another awaits further research (box

3-3). That is not to say that some conclusions canlowing assertions.

Psychiatric symptomatology has practical

relevance for employment. Some research data

suggest an important link between certain psychiatric impairments and ability to work. Indeed,

several scholars, upon review of the research literature, acknowledge data supporting the link between symptoms and functioning, and point out

the association between severe and chronic conditions, psychotic features, and subsets of symp10 Other fac[or~ [() & ~on~idered are ~hange~ in the d~nl~nd for ]a&)r, [he changing r{)]es of men and w[)~n in work, and changing industrial

structure. Preliminary data suggest that people with psychiatric disabilities fared more ~xwly than people with other types of disabilities during

the 1980s, with a general increase in the unemployment rate (52).
cm0) —

Limited in

Limited in instrumental

personal care activities of daily Limited in

Work limitation Total with activities such as living such as Limited In Limited in coping concentrating

status among serious mental eating, dressing, managing money, social with day-to-day long enough to

people 18-69 illness and bathing household chores functioning stress complete tasks

years of age (in 1,000’s) (% of total) (% of total) (% of total) (% of total) (% of total)

Unable to work 829 7.7 48.8 70.4 86.5 72.9

Limited in work 529 2.6 30.2 61.2 80.1 67.2

No current work limitation 1,032 4.6 26.8 52.6 21.4

Does not work for other

reasons or work limitation

status unknown 9.8 30.7 54.3 32.0

Total 2,874 2.7 22.9 46.3 67.7 46.5

SOURCE: P.R. Barker, R.W. Manderscheid, G.E. Hendershot et al., ‘Setious Mental Illness and Disability in the Adutt Household Population: Untted States, 1989,9

Advance Data Frum VW/and Hea#h Stati@”cs of the Center lbr Disease ContruUNdffonal Center ibr H6#th Staih?b”cs, Sept. 16, 1992.

=-.

s
Chapter 3 How the ADA and Research Define Psychiatric Disabilities 57

Models of disability and data from research show that identifying a particular diagnosis or symptom is

insufficient to determine the severity of disability, required services, or work limitations In order to qualify for

the ADA’s protections a person must be an individual with an impairment that “substantially limit(s) one or

more of the major Iife activities “ EEOC investigators, employers, people with mental disorders, and mental

health care providers face the challenge of determining who with a mental disorder has a psychiatric disability under the law

The Status of Functional Assessment

Questionnaires, interviewing techniques, and observational approaches have been developed to

assess disability, and disability assessment has become a standard part of vocational and psychosocial

rehabilitation services. The goals of assessment maybe very general, aimed at measuring social skills, the

ability to maneuver every-day requirements, and work performance; or very specific, aimed at specific disorders and functions Recent analyses have documented shortcomings of these disability assessment

methods Following a comprehensive review, one researcher concluded that no one instrument was wholly

adequate for assessing functional impairments Recently this same scholar noted that:

[B]etter methods of assessment would Improve both the interpretation of future evaluations and current clinical practice Most evaluations use relatively idiosyncratic methods of measuring role functioning What IS needed IS an easily administered, low-cost assessment tool that not only measures individuals’ impairments and role

functioning, but provides information that IS directly relevant to treatment decisions.

Similarly, expert reviewers of social functioning measures concluded that modest reliability and the lack of

evaluation Iimit the usefulness of available assessment tools Furthermore, they concluded, none is simple

enough for routine clinical use These conclusions are in the National Institute of Mental Health’s plan for

services research, which states that

[a]lthough [dlsability] assessment seems Iogical and straightforward enough, the truth IS that the mental

health field IS still without an adequate arsenal of Instruments and techniques to fully accomplish the task No

aspect of clinical services-or of research designed to improve such services-can prosper without the availability of meaningful and valid techniques for assessing the status of mentally ill patients, not only in purely clinical terms but also in terms of their everyday functioning in the real world and their strength on which rehabilitation

can build Needed are ways to assess general health status and physical functioning, the quality of the

patient’s life, the nature of the family’s burden, and the patient’s rehabilitation potential and progress.

Disability Assessment at the Social Security Administration

The experience of the Social Security Administration (SSA) illuminates the pitfalls of implementing disability assessment SSA administers two disability income maintenance programs the Social Security Disability Insurance (SSDI) program and Supplemental Security Income (SSI) program Eligibility for these programs hinges on the inability to work. The methods used by SSA to assess severe psychiatric disability in

the 1980s was said to be difficult to use, too subjective, out of date, and discriminatory. “The essential problem is. that it is not possible to construct a set of medical and vocational standards that will distinguish perfectly between those who are able to work and those who are not able to work “ The public outcry that resulted from a disproportionate number of people with severe mental disorders being terminated from the

programs led Congress to order a revision of SSA’s psychiatric disability assessment methods The new

method includes the consideration of diagnosis as well as limitations in four areas of functioning: activities of

daily living, social relations: cognitive functioning such as concentration, persistence, and pace; and decompensation or deterioration in work Consideration of environmental interventions was also provided as

an option in the assessment

(continued)
58 I Psychiatric Disabilities, Employment, and the Americans With Disabilities Act

SSA’s current disability determination is not without its critics: An American Psychiatric Association study

of the new guidelines indicates that additional changes may improve the disability determination; the use of

this assessment method by psychiatrists and other care providers also warrants improvement; some have

criticized the increasing number of people with psychiatric disabilities who now receive SSI or SSDI.

It should be noted that the SSA’s disability determination procedure is not appropriate for the ADA. The

elaborate hurdle that people with disabilities must vault to receive SSA program benefits would limit unduly

the ADA-guaranteed protections against discrimination. In addition, the definition of disability under the

ADA obviously is not limited to individuals who cannot work at all.

Functional Assessment and the ADA

The ADA defines disability in terms of impairment and functional limitations. In general, an applicant or

employee discloses the presence of a disability to an employer or covered entity, often providing very limited information. The employer may require confirmation of a disability that is not readily apparent, such as a

psychiatric disability. Also, the EEOC must make a determination as to whether an individual is considered

disabled under the ADA in the event that a charge of discrimination is filed. To date, in its computerized

charge data system, the EEOC simply lists the marginally informative term “mental illness” as the impairment relevant to psychiatric disability. 1 The EEOC will be implementing anew coding system for disabilities

in fiscal year 1994 and it will include a category for “emotional/psychiatric impairment, ” under which there

will be separate entries for anxiety disorder, depression, manic-depressive disorder, schizophrenia, and

other emotional/psychiatric condition where none of the above clearly apply. What doesn’t exist are guidelines for determining who with a mental disorder has an impairment that substantially limits a major life activity—is disabled under the ADA’s definition. Convening a group of experts and interested parties to help

fashion guidance for EEOC investigators and others, concerning diagnoses and other assessment criteria

relevant to the ADA and employment would be useful. Continued research and the development of functional assessment tools also represent critical needs.

I Mental retardation is appropriately listed separately from mental illness

SOURCES. C Koyanagt and H. Goldman, lnchingForwatd. AReporton Progrt?ss Made in FederalMentalHealth Policy in the 1980s

(National Mental Health Association, 1991 ), US. Department of Health and Human Services, Towarda Nationa/P/an /orthe Chronica/-

/y Menta//y /// (Public Health Service, Washington, DC, 1980); H.A Pincus, C. Kennedy, and S J .!3mmens, American Psychiatric

Association, Washington, DC, “Study of SSA Methods and Standards for Evaluating Disability Based on Mental Impairment, ” final

report to Social Security Adminlstratlon (SSA-600-84-01 74), November 1987; HA Pincus, C, Kennedy, S.J. Simmens, et al , “Determinmg Dlsabllity Due to Mental Impairment: APA’s Evaluation of Social Security Admmlstrat!on Guldelmes, ’’Arrrer&mJourna/ olPsy -

chlatry 1481037-1043, 1991, H.H. Goldman, A E. Skodol, and T.R Lave, “RevisingAasVfor DSM-IV A Review of Measures of Social

Functlonmg, ’’ArrrericanJourna/olPsychMy 149.1148-1156, 1992; C.J. Wallace, “Functional Assessment m Rehabllitatlon, ” Schizophrenia Bu//etin 12604-630, 1987

toms and work (5,16,49). What does this mean Many people with psychiatric disabilities

now, in practical terms? People with psychiatric will find access to appropriate treatment necesdisabilities as well as care providers, advocates, sary for maintaining employment. Even experts

and other experts note that exacerbation of symp- who highlight the importance of functional and

toms may require brief time away from work for environmental interventions admit that medicatreatment (see discussion of reasonable accom- tion, psychotherapy and/or other clinical intervenmodations in ch. 4). In fact, access to treatment tions are a necessary component of care. “Psymay become paramount. chiatric treatment and psychiatric rehabilitation
Chapter 3 How the ADA and Research Define Psychiatric Disabilities 59

procedures ideally occur in close sequence or simultaneously” (5). Results from a recent study of

depression reinforce this point. Data from 10 major studies of depression treatment revealed that

symptom relief significantly improved work

function and outcome (33). The authors of the

study concluded that “behavioral impairments,

including missed time, decreased performance,

and significant interpersonal problems are common features of depression that appear to be highly responsive to symptomatically effective treatment given adequate time” (33).

Although many effective medications, psychotherapeutic interventions, and other approaches

are available (1,47), access to effective treatment

is far from universal. Research and policy analyses point to several barriers to treatment, including: Limitations on insurance coverage, underrecognition of symptoms by care providers, and

inadequate or inappropriate treatment offered by

some care providers (46). Without access to treatment, the protections and requirements of the

ADA become a moot point for many people with

psychiatric disabilities.

While important, the relevance of psychiatric symptoms and treatment to employment remains limited and not clearly understood. The

precise relationship among impairments, functional limitations, and work is obscure and complex. For example, the course of symptoms over

time does not parallel that of functional limitations. An author of one recent review of the data

concluded that “diagnoses do not predict rehabilitation outcomes except in the broadest terms, and

there are wide variations in outcomes within diagnostic groups” (49). Also, while research data increasingly characterize the nature of cognitive impairments in schizophrenia—including problems

with attention, memory, information processing,

and other aspects of learning-very little is known

about how these specific deficits relate to job performance (18,20,34,39,41 ,49). Certainly the presence of even unusual symptoms does not necessarily hamper work performance. An example,

shared by a rehabilitation specialist, conveys this

last point: A computer programmer, who suffered

hallucinations that could be distracting, found that

audibly responding to the voices allowed him to

continue successfully with his work (9). No

doubt, the young man’s talking to himself appeared unusual to his coworkers, but his work did

not suffer.

Clinical treatment can have a paradoxical impact on disability and employment. While, as

noted above, effective treatments are available for

many mental disorders, they are not a panacea.

Medications are not effective for everyone, and

some of the most disabling symptoms of mental

disorders may resist their effects. In fact, medication has little direct impact that has been measured

on such functional issues as interpersonal relationships (6,49). Furthermore, the side effects of

psychotropic medications can prove quite annoying if not outright disabling. Some common side

effects of psychoactive medications include: Dry

mouth, constipation, blurred vision, memory difficulties, restlessness, tremor, and sedation. Data

from a recent survey of employed individuals with

psychiatric disabilities confirm this observation:

Medication side effects commonly led to functional difficulties on the job (31). Similarly, a reviewer of the research literature concluded that

while standard or minimal medication dose in

schizophrenia was associated with positive work

outcomes, a “surprising number of studies [suggested] that higher dose or more consistent neuroleptic treatment might be associated with poorer

work outcomes” (32).

This research on impairments and their treatments notwithstanding, one of the most reliable

indicator of future work performance is prior work

(1 1,16):

Notably, every study that investigated the

link between prior work history and future vocational performance has found a significant, positive relationship between these two variables

(16).

Some of the most severe mental disorders interrupt key aspects of developing a work history,

however, For most people, late adolescence and

early adulthood are critical times for building

vocational skills and gaining knowledge, through

education or early work experience. This is just
60 I Psychiatric Disabilities, Employment, and the Americans With Disabilities Act

the time that symptoms of disorders such as

schizophrenia first erupt. ECA data reveals theresulting disruption of educational achievement.

While the educational achievement of people with

schizophrenia is comparable to others at the beginning of college, achievement diverges by the

end of college: Only 4.8 percent of individuals

with schizophrenia obtain a degree compared to

17 percent in the total population (26).

What do these data imply for the ADA? Quite

bluntly, people with the most severe mental disorders, and often with less education and a checkered work history, are unlikely to achieve competitive employment by virtue of the ADA’s passage

alone. Individuals with severe psychiatric disabilities will require a broad range of educational,

psychosocial, and vocational services to prepare

them to find and keep a job. While the ADA is an

important tool for fighting the discrimination

commonly attached to psychiatric disabilities, it is

only one piece of the puzzle for people with the

most severe conditions.

Several experts have commented that the

ADA’s impact will be most strongly felt by people

with less severe mental disorders (12, 45):

There are many people, probably a much

larger number, in the workforce with less severe

conditions or less pronounced functional limitations, who have much to gain from the ADA. It is

particularly for their vocational needs that the

provisions of the ADA provide a good fit (1 2).

Indeed, data described throughout this section

demonstrate the prevalence of diagnosable mental

disorders and symptoms among working-age

adults. However, much less is known about this

population’s functional limitations, their employment characteristics, accommodation needs, or

even who among this group would be covered under the first prong of the ADA’s definition of disability. As noted above, the first prong of the

ADA’s definition refers to individuals with serious or nontrivial disabilities. While courts have

been expansive in defining mental impairment per

se under the Rehabilitation Act, substantially limiting psychiatric impairments have sometimes

been defined more restrictively. Unless questions

are answered concerning these less severe conditions—Which ones are covered? How can such

determinations be made?—the ADA is open to

excessive subjectivity in claims of psychiatric disability.

SUMMARY AND CONCLUSIONS

The ADA’s definition of disability explicitly includes people with psychiatric disabilities, as does

Title V of the Rehabilitation Act. Furthermore, the

law addresses some specific concerns of this population, such as discrimination on the basis of past

impairment. More recently, the EEOC has been

developing guidelines especially relevant to psychiatric disabilities, including a discussion of issues surrounding episodic disorders and the potentially impairing effects of treatment. The

charge coding system used by the EEOC is also

being updated to reflect more specific diagnostic

terminology. Further guidance from the EEOC

concerning psychiatric disabilities would still be

useful. Specifically, questions remain on whether

any mental disorders are, by definition, “substantially limiting impairments” and how to determine

the functional implications of psychiatric impairments. A useful first step on these questions

would be to convene groups of experts to help

fashion guidance.

OTA’s review of the literature reveals some

general characteristics of psychiatric disabilities:

Mental disorders range from relatively shortlived, minor conditions to extremely debilitating, chronic ones with remitting and relapsing

symptoms.

Data do not divulge the number of people with

psychiatric disabilities covered by the ADA.

We know that mental disorders are common,

with more than one in five American adults

having a diagnosable mental disorder in a given

year. Five million adults in the U.S. have a serious mental illness: A mental disorder during

the past year that seriously interfered with daily

life.

Studies document a few, specific functional

limitations associated with mental disorders
Chapter 3 How the ADA and Research Define Psychiatric Disabilities 61

and relevant to employment: Problems in social functioning; difficulty in concentrating;

and problems coping with stress.

The relative role of symptoms and functional

limitations in employment for people with psychiatric disabilities has been a contentious topic. Data do permit some conclusions, however.

Psychiatric symptoms have been linked to

work performance and employment outcome.

Thus, access to effective treatment and time off

during symptom exacerbation, or other accommodation of symptoms, will be important for

many people with psychiatric disabilities.

Symptomatology is not the whole picture,

however. Functional limitations and environmental supports (or lack thereof) are critical issues for people with psychiatric disabilities.

It is unlikely that people with the most severe

psychiatric disabilities will gain competitive

employment—the underlying value of the

ADA—in the absence of treatment, access, and

vocational and other psychosocial supports.

Many more people with less severe conditions

may be covered by the ADA. However, much

less is known about this population’s functional limitations, their employment characteristics, accommodation needs, or even who

among this group would be covered under the

first prong of the ADA’s definition of disability.

Unless questions are answered concerning

these less severe conditions—Which ones are

covered? How can such determinations be

made?—the ADA is open to excessive subjectivity in claims of psychiatric disability.

OTA recommends research into the following

issues to close the psychiatric disability data gap:

The relationship between mental disorder

symptom and treatment to work disability.

The number of people with mental disorders

covered by the ADA.

The development of functional assessment

measures of psychiatric disabilities for clinical

and public policy arenas.

The impact of the ADA on the relationship between mental disorders and employment status.

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4 I Psychiatric Disabilities, Employment and the Americans With Disabilities Act

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The ADA’s

Tools for

Effecting

Employment 4

T

he Americans With Disabilities Act (ADA) can be

thought of as a tool box. In it exist several tools and blueprints to build a structure to end employment discrimination and provide meaningful work opportunities for

people with psychiatric disabilities. Perhaps the most important

implement in the ADA tool box is the law’s requirement that employers provide reasonable accommodations for qualified individuals with disabilities. As with any tool, effective use of the

ADA’s reasonable accommodation tool requires an understanding of its potential, limits, and intended role. The next section of

this chapter provides a description of the reasonable accommodation tool; a step-by-step blueprint of the accommodation process

as defined by the law, research, and experience; and how these

work with the building materials—the requirements of the workplace, and people with psychiatric disabilities, their abilities, impairments, experiences, and problems.

At least two issues covered by the ADA raise questions around

psychiatric disability: 1 ) the threat of harm posed by an individual

with a disability, and 2) the provision of health insurance. The second part of the chapter addresses these two issues.

EMPLOYMENT OF PEOPLE WITH PSYCHIATRIC

DISABILITIES: REQUIREMENTS UNDER THE ADA

One way in which the ADA defines discrimination on the part of

an employer is “not to make reasonable accommodation to the

known physical or mental limitations of an otherwise qualified

applicant or employee with a disability” (42 U.S.C. 121 12(b)).

This section discusses the legal requirement related to the disclosure of a disability, qualifications for a job, and reasonable accommodation. 6 5
- . 

66 I Psychiatric Disabilities, Employment, and the Americans With Disabilities Act

Reconstruction of the legal requirements of the

law into key components may assist analysis, but

such dissection does not realistically reflect expression of needs, desires, limitations and decisions between an employer and applicant or employee. To a certain extent, the U.S. Equal

Employment Opportunity Commission (EEOC),

charged with implementing the ADA, recognized

the dynamic aspects of these areas of human communication. It did not simply define the key terms

listed above, but also offered guidance on how

employers and applicants or employees decide

these issues. It said: “[T]he appropriate reasonable

accommodation is best determined through a flexible, interactive process that involves both the employer and the qualified individual with a disability” (56 FR 35748). The EEOC suggests that

employers, upon request for an accommodation,

should:

(1) Analyze the particular job involved and

determine its purpose and essential functions;

(2) Consult with the individual with a disability to ascertain the precise job-related limitations imposed by the individual’s disability and

how those limitations could be overcome with a

reasonable accommodation;

(3) In consultation with the individual to be

accommodated, identify potential accommodations and assess the effectiveness each would

have in enabling the individual to perform the

essential functions of the position; and

(4) Consider the preference of the individual

to be accommodated and select and implement

the accommodation that is most appropriate

for both the employee and the employer (56

FR 35748).

Although the ultimate decision about accommodation rests with the employer, the EEOC

guides employers along a practical course, imbued by mutual input and respect for employer

and employee. But even this advice reflects a linear process and hinges on adequate knowledge of

the law and effective accommodations, as well as

communication skills on the part of the employer

and an individual with a disability. OTA has uncovered few data concerning the interactions between employers and individuals with psychiatric

disabilities. Evidence from a preliminary study indicates that discussions among employers and

employees about psychiatric disabilities or accommodations are rare (35). Employers may lack

knowledge about mental disorders or be uncertain

as to how they should address the topic. And as

discussed in chapters two and three, people with

psychiatric disabilities may lack self-esteem, a

characteristic that they need to request accommodations.

Disclosing a Psychiatric Disability

to an Employer

Before an employer provides an accommodation—and before the ADA requires one—an applicant or employee must disclose his or her need.

As indicated in the EEOC guidelines:

Employers are obligated to make reasonable

accommodation only to the physical or mental

limitations resulting from the disability of a

qualified individual with a disability that is

known to the employer. Thus, an employer would

not be expected to accommodate disabilities of

which it is unaware. If an employee with a known

disability is having difficulty performing his or

her job, an employer may inquire whether the

employee is in need of a reasonable accommodation. In general, however, it is the responsibility of the individual with a disability to inform

the employer that an accommodation is needed

(56 FR 35748).

For many individuals, revealing the presence of

a disability is not a voluntary decision. Although

the specific impairment and needed accommodations may not be apparent, a person in a wheelchair visibly discloses the presence of a disability.

This is not the case for many people with psychiatric disabilities that are not physically obvious.

Thus, disclosure is a deliberate-and often

wrenching-decision. Many factors may influence the decision to disclose, including awareness

of the ADA, perceived benefits and drawbacks of

disclosure, and practical decisions as to when,

how much, and to whom. OTA found almost no

empirical data on disclosure of psychiatric disabilities to employers, and the EEOC is largely
Chapter 4 The ADA’s Tools for Effecting Employment 67

mute on the subject. The following discussion

stems from data from preliminary studies and the

published or verbal testimony of people with mental disorders, rehabilitation experts, other mental

health advocates, and business representatives.

Employee awareness of the ADA is the gateway to disclosure. Chapter 2 notes that considerable media attention was focused on the passage

and early implementation of the ADA. Other factors suggest that at least some individuals with

psychiatric disabilities are aware of the ADA: National consumer-run technical assistance centers

as well as the national offices of mental health advocacy organizations have advertised and prepared information on the ADA (see chs. 2 and 5);

Federal funds have been granted to two private organizations for technical assistance that focuses

on the ADA and psychiatric disabilities (see ch.

5); and a sizable proportion of information requests of the Job Accommodation Network and

charges of discrimination with the EEOC relate to

psychiatric disabilities (figure 4-1) (see ch. 3). In

fact, mental illness accounted for the second highest percentage of charges of discrimination, as

broken down by impairment type, filed with the

EEOC to date.

Nevertheless, many people with psychiatric

disabilities and employers are unaware of the

ADA. Informal 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. Data from a recent

survey of people with all disabilities showed that

less than 30 percent had heard of the ADA (1 9).

Given that awareness of the ADA is a prerequisite

for invoking its protection, efforts to insure ADA

awareness in business, consumer, and service organizations seems critical. Attorneys, Federal officials, rehabilitation professionals, and people

with disabilities indicate that service providers

can be critically important for educating people

with psychiatric disabilities about the ADA (56).

At the Federal level, obvious sites for increasing

awareness of the ADA include: governmentfunded programs targeted to people with disabilities, such as the Social Security Administration’s

Mental illness

9.9%

Back

1

Of 17,355 total ADA-related charges filed with the EEOC

between July 26, 1992 and October 31, 1993, the second

highest percentage—1, 710 charges-.-were related to mental

illness.

SOURCE. U S. Equal Employment Opportunity Commission, Dec 1,

1993.

disability income maintenance programs; mental

health services that receive Federal dollars from

block grants and the Community Support Program (administered by the Center for Mental

Health Services); protection and advocacy programs; vocational rehabilitation programs; and

the EEOC (see ch. 5).

People with psychiatric disabilities, experts

and advocates testify that the largest obstacle to

disclosure appears to be, ironically, the ADA’s intended prey: stigma and discrimination. By disclosing a psychiatric disability, an individual risks

discrimination, teasing, harassment, isolation,

stigmatizing assumptions about his or her ability,

and the labeling of all of one’s behaviors and emotions as pathological (see ch. 2) (35,56,67). Data

from the EEOC seem to confirm the problem that

people with psychiatric disabilities have with harassment: While mental illness accounted for

7.9 percent of all ADA-related charges of discrimination received by the EEOC during the first 6

months the law was in effect, these conditions

made up 12.5 percent of all ADA charges having
68 I Psychiatric Disabilities, Employment and the Americans With Disabilities Act

No. of charges related Total number Percent of

to mental illness of charges total ADA

(% of total mental (% of total charges due to

Issues Illness charges) ADA charges) mental illness

Discharge 140 (52.8%) 1,548 (46.1%) 9.0%

Reasonable accommodation 44 (16.6%) 684 (20.4%) 6.4%

Harassment 36 (14.3%) 303 (9%) 12.5%

Benefits 11 (4%) 114 (3.4%) 9.6%

Hiring 36 (13.5%) 516 (15.4%) 7.0%

Total 265 3,358 7 . %

SOURCE: U.S. Equal Employment Opportunity Commission, 1993.

to do with harassment (table 4-1) (72). A leader in

the consumer movement describes the difficulties

and implications of disclosure (12):

Disclosure of one’s psychiatric history is a

very personal matter which can aid in one’s recovery, allow reasonable accommodation under

the ADA, and yet can lead to discrimination . . .

Though I am presently open about being a mental health consumer/survivor, I only arrived at

this position through a gradual process. At first I

did not appreciate the stigma involved in having

a psychiatric label. This quickly changed. While

strolling down a corridor on pass during my first

hospitalization, I met a surgeon who was a colleague of my father’s and whom I had known

since childhood. He asked me what brought me

to the hospital. When I told him I was a patient

on the psychiatric unit, a look of horror gripped

his face momentarily. This expression was too

quickly replaced by forced humor. ‘That’s a

good one Danny,’ he laughed too loudly and

briskly walked on. I knew from that time on I

was branded and should not lightly share information about my hospitalization.

As indicated in the above passage, disclosure

also may lead to benefits. Experts, advocates, and

people with psychiatric disabilities have said that

openly admitting the diagnosis of a mental disorder may enhance self-esteem, diminish shame,

permit coworkers and others to offer support, and

even empower another individual’s revelation

(12,32,35,46). Data from one study of people with

psychiatric disabilities participating in a vocational rehabilitation program suggested that refusal to

disclose was linked to a shorter job tenure (1 1).

Data from another study indicate that employers

who knowingly hire individuals with mental disorders have a more positive attitude about accommodations and abilities of such individuals than

employers who do not (7). Evidence also suggests

that experience with workers who have psychiatric disabilities decreases the perception that mental illness is linked to violence or hostility (7). Important to this discussion, disclosure invokes the

protection of the ADA. At least one conclusion

can be drawn about the difficult decision to disclose a psychiatric disability: Research into the

impact of disclosure, of which there is a dearth,

undoubtedly would assist in this process.

The decision to disclose a psychiatric disability

is only the first of several considerations. What

exactly should one disclose? to whom? when?

The EEOC suggests that “an employee needs to

disclose enough information about his disabilityrelated work 1 imitations to support his need for accommodation” (72). Such a goal would rarely necessitate a complete medical/treatment history:

“[B]ecause of the flexible nature of this process,

the EEOC does not necessarily require employees

to disclose specific diagnoses (psychiatric or

otherwise), as a prerequisite for reasonable ac-
Chapter 4 The ADA’s Tools for Effecting Employment 69

commodation” (72). ’ A recent case study found

that managers of people with serious psychiatric

disabilities, many of whom were referred by rehabilitation services, seem to know surprisingly

little about the nature of their employees’ impairment (35). This finding confirms the general experience of vocational and psychosocial rehabilitation service providers.

Care providers must also consider the question

of what to disclose. The ADA permits employers

to call on experts to confirm the presence of an “invisible” disability and to offer advice on reasonable accommodations. Of course, psychiatrists,

psychologists, and other mental health professionals have long been involved with work-related assessments of mental health. Disclosure of

a mental disorder raises a host of ethical, legal, and

practical concerns, including informed consent

and confidentiality (50,5 1). Professional associations are cautious: The American Psychiatric

Association’s “Principles of Medical Ethics with

Annotations Especially Applicable to Psychiatry”

counsel psychiatrists to “fully describe the nature

and purpose and lack of confidentiality of the examination to the examinee at the beginning of the

examination,” when evaluating individuals for

job suitability or security purposes (50). The

American Occupational Medical Association advises physicians to

treat as confidential whatever is learned

about individuals served, releasing information

only when required by law or by over-riding

public health considerations . . . and should recognize that employers are entitled to counsel

about the medical fitness of individuals in relation to work, but are not entitled to diagnoses or

details of a specific nature (50).

The ADA tells care providers, when requested, to

provide information that is sensitive to the needs

of the employee and employer at work.

Like the issue of what to disclose, employees

must consider when and how to do so. Should one

reveal a psychiatric disability or history of one at

the time of application? when hired? when an accommodation is needed? after perceiving that one

has been discriminated against? Again, few research data shed light on this issue. Some people

with psychiatric disabilities interviewed recently

recommend waiting until after first establishing

oneself as a good employee (35). While little reason, and no legal requirement exists, to disclose

before an accommodation is needed, and ample

reason exists not to disclose too soon, waiting too

long also may be a problem. As noted at a recent

OTA meeting(1):

From the employer perspective the big concern is that these issues tend to arise when there

is some kind of performance problem or conduct

problem. Somebody isn’t coming to work on

Mondays and Fridays or is missing a lot of work,

and the employer doesn’t know why and begins

progressive discipline. And, typically, what

happens is the person doesn’t say anything relating to a medical condition, and then when the

axe is about to fall and termination is proposed

and is imminent, all of a sudden the person says,

“Wait a minute. All of my problems are due to

my medical condition, my disability, and you

can’t discharge me.”

At that point the employer’s emotional reaction typically is, “Well, you never said anything

about this before and it’s too late.” Whether or

not it’s too late is an interesting legal issue for

the EEOC, but that’s where it arises and that may

be the only reason why someone may wish to

disclose in advance of problems to deal partly

with the legal requirement and partly with the

interpersonal relationship with the employer.

An employee may also be uncertain whom to

tell about a psychiatric disability. The EEOC regulations and guidelines make clear that information about a disability may be distributed to various individuals, including one’s direct supervisor,

who may be responsible for providing the accommodation; medical or emergency personnel, who

1 Employer confirmation of a psychiatric disability as well as EEOC investigation of a charge of discrimination may require more information, including a diagnosis.
. - — .. 

70 I Psychiatric Disabilities, Employment, and the Americans With Disabilities Act

I

may be called on during a crisis; and government

officials investigating compliance with this and

other laws. Neither guidance on who in the organization should be contacted first, nor research

data on whom employees should approach and

what happens as a consequence exists. Establishing a procedure for disclosure may help ease employees’ tasks, and assist employers in implementing the ADA. A mental health advocate and

expert explains at a recent meeting (53):

Procedure is very important . . . what the

EEOC and others can do is work on making it

possible for people to disclose by designating an

office or individual of an employer who is the

reasonable accommodation person, whose job it

is to make it comfortable to disclose, to be a mediating force with supervisors and other employees so that if disclosure has to occur under

the ADA, there’s a way to make it easier.

In larger organizations, existing resources—including human resource offices, personnel offices

and employee assistance programs—may help facilitate disclosure (box 4-1 ). However,

[i]n practice. . . [designating a specific ADA

contact] may not always work. Some employees

may not be comfortable dealing directly with

the designated person and should be allowed to

work with a trusted supervisor or superior. . . In

some situations, moreover, the designated person may need to meet with an outside ADA consultant or with upper management as part of the

reasonable accommodation process . . . If the

work force is unionized, the involvement of a

union representative also may be requested . . .

[A]ll of these individuals [barring perhaps the

union representative]2 would be subject to the

ADA’s confidentiality requirements (72).

The assumption behind this discussion—that

revealing a psychiatric disability is a voluntary

and premeditated action—is not always correct.

As noted in the ADA and relevant regulations and

guidelines, information about an impairment or

history of impairment may arise from a variety of

sources, such as medical examinations after an offer of employment, for medical insurance or for

workers’ compensation purposes. Also, some

people with serious psychiatric disabilities have

gaps in employment history, arrestor criminal records that reflect the course of their condition. The

EEOC stresses that

an employer may not make pre-offer inquiries about disability, and that this prohibition extends to requests for workers’ compensation records, health insurance records, references, or

other relevant materials. In terms of criminal records or gaps in employment or educational history, an employer may inquire about the employment gaps and criminal records but may not

ask whether they reflect the course of disability.

If the applicant inadvertently discloses a disability (physical or mental), the employer may not

ask follow-up questions about the disability and

may not make employment decisions on the basis of the disability. Once an employer knows

that an applicant has a history of disability, the

employer will have to prove that this was not the

reason for an adverse employment action if the

individual later files an ADA charge (72).

People with psychiatric disabilities who have an

arrest, criminal record, or employment history gap

stemming from their disability may face the dilemma of not gaining employment because of

these factors or having to disclose their disability

in order to explain work history gaps, for example.

The prevalence of this occurrence is unknown.

Employers may face another difficult situation

related to the disclosure of a psychiatric disability.

A change in behavior or performance may suggest

to a coworker or employer that an employee is suffering from a psychiatric impairment. However,

the employee may not recognize such symptoms

or may not be willing to admit to having such a

problem. Indeed, a psychiatric impairment may

not exist. Under the ADA, employers are general2 me EEW has not yet decided whether a union representative involved in the reasonable accommodation process would be subject to the

ADA’s confidentiality requirements. The Commission is considering this question, along with other ADA issues unique to unionized workforces.
Chapter 4 The ADA’s Tools for Effecting Employment 71

Employers increasingly turn to employee assistance programs—EAPs—to help employees become

more fit, healthy, and able to cope with personal problems. From a few employer-sponsored alcohol abuse

programs in the 1940s, EAPs have expanded across the largest U.S. businesses. This box considers the

current roles of EAPs in American businesses and what they may bring to ADA implementation, especially

for people with psychiatric disabilities,

There are an estimated 12,000 EAPs in the U.S. A 1989 Employee Benefits Survey conducted by the

Bureau of Labor Statistics found that 49 percent of full-time workers in private business establishments with

more than 100 employees were offered EAPs. Fifteen percent of full-time workers in private business estabIishments with fewer than 100 employees were offered these programs.

EAPs are structured in a variety of ways and vary a great deal in the types of services they offer. Some

firms—usually large corporations—have built on in-house programs that are likely to have originated as

alcohol rehabilitation programs. Many retain a single problem focus on alcohol and drug abuse, tend to

have strong links with labor unions, and are used most frequently by involuntarily referred male and minority

employees, Some smaller firms form consortia to provide collectively owned EAPs, And some firms contract, individually or in multi-firm consortia, with outside providers for employee assistance services. Contractual EAPs offer employers a choice of a broad range of services on a fee for service basis. While some

contractual EAPs undoubtedly offer professional, quality services, others have engendered a reputation for

the “business card phenomenon” in which unqualified people print up business cards and announce that

they are providing EAP services.

The professional make-up of EAP service providers reflects the variation among EAPs themselves. An

EAP practitioner maybe self-educated, be a graduate of a certificate program, or have an advanced degree in one of the health care professions. A 1986 survey of 182 EAP practitioners found that one-third had

an advanced degree, most often in social work, psychology, or psychiatry About 18 percent had a relevant

undergraduate degree (but no graduate training), 21 percent were certified in alcohol and/or drug counseling and 5 percent had participated in other “certificate programs. ” Close to 22 percent of the practitioners

received ongoing training by attending on-the-job and professional workshops. The survey analysts concluded that 17 percent of the EAPs that offered specialized services such as counseling and case management did not have the skilled staff legally required to provide the services. These data indicate that some

EAP professionals are highly trained and have an extensive background in mental health; they are likely to

be familiar with issues presented by psychiatric disabilities. However, many do not have training that would

familiarize them with these conditions. Moreover, because employee assistance practitioners who are not

licensed cannot classify client sessions as privileged, there is a danger that confidentiality could be

breached in the event records were subpoenaed.

Thus, the history, types of services provided, and professionals involved suggest that some EAPs have

the potential to assist in such critical areas as disclosure, devising accommodations, verifying disabilities,

and educating the work force and supervisors. It is important to note, however, that although “pockets of

activity” exist, EAP service providers have not yet recognized, much less defined in an organized way, their

role as educators about the ADA or psychiatric disabilities. Furthermore, EAP experience is not with people

with more serious psychiatric disabilities. And, most workers do no have access to EAPs.

SOURCES S Berger, Washington Employer Resource Consortium, Washington, DC, personal communlcahon, April 1993, Bureau

of National Affairs, Inc , EmployeeAssistancePrograms Benefits, Problems, andProspects (Washington, DC The Bureau of National

Affairs, Inc , 1987), f-l V Hayghe, “AntI-Drug Programs m the Workplace Are They Hereto Stay?” Month/y bborReview, April 26-29,

1989, S L Hyland, “Health Care Benefits Show Cost-Containment Strategies, ” Month/y Labor RevJew February 42-43, 1992, F Luthans and R Waldersee, “What Do We Really Know About EAPs$’” Human Resource Management 28(3) 385-401, 1989, D Phllllps,

Center for Occupational Programs for Employees, Inc , Washington, DC, personal communlcatlon, April 1993, L A Straussner, “A

Comparatwe Analysls of In-House and Contractual Employee Assistance Programs, ” Evaluation of Employee Assistance Programs,

M J Holosko and M D Fed (eds ) (New York, NY Haworth Press, 1988)
72 I Psychiatric Disabilities, Employment and the Americans With Disabilities Act

ly forbidden from inquiring about a possible impairment or disability. However, medical inquiries may be made during employment if they are

job-related and consistent with business necessity. This means, according to the EEOC,

that the inquiries must be related to the specific job at issue and must concern performance

of an essential function of that job. Under this

standard, medical inquiries are allowed. . . if an

employee is having difficulty performing essential job functions effectively, an employer may

inquire about the difficulties and whether they

may have a medical cause without violating the

ADA (72).3

These limitations on medical inquiries offer important protection to employees with psychiatric

disabilities, given the stigma attached to mental

disorders, the ease with which our society equates

poor job performance or unusual behavior with a

mental illness, and the cultural diversity that exists in our society, which makes inferences about

individual behavior difficult. Guidance from

people with psychiatric disabilities, employers,

and other experts on how to manage such situations, and research on the prevalence and potential

outcomes would help clarify these difficult questions for employees and employers.

Qualifying for a Job

A critical question under the ADA is: “Are you

qualified?” The requirements of Title I apply only

to those who meet the definition of “qualified individual with a disability.” The EEOC’s guidance

on answering it bounces back and forth between

an evaluation of the individual with a disability as

well as the requirements of the job (box 4-2).

The first branch of this decision tree focuses on

general prerequisites of a position. As explained

by the regulation, a:

[qualified individual with a disability means

an individual with a disability who satisfies the

requisite skill, experience, education and other

job-related requirements of the employment

position such individual holds or desires (56 FR

35735).

That an employee must meet such basic requirements as holding a particular degree, such as

an M.D. to practice medicine, or has a particular

skill, such as knowing how to type for a secretarial

position, is neither onerous nor surprising. Such

standards have become the currency by which a

minimal level of knowledge or expertise is assured. But even this most basic hurdle may be difficult for some people with psychiatric disabilities

to overcome. As described in chapter 3, the onset

and course of some severe psychiatric conditions

interrupt educational and occupational advancement. Thus, for some people with psychiatric disabilities, the first step toward an affirmative “I am

qualified” will rest on other policies and services

aimed at supporting education and training (e.g.,

vocational and psychosocial rehabilitation, supported education).

For the person who has earned a degree and/or

garnered the necessary skills and licenses, the

question now becomes more specific: “Can you,

with or without an accommodation, perform the

essential functions of the job?” The focus is

shifted to the job itself. What exactly are essential

functions? The statute defines essential functions

as

the fundamental job duties of the employment

position the individual with a disability holds or

desires. The term “essential functions” does not

include the marginal functions of the job (56 FR

35735).

The EEOC’s regulatory language outlines various reasons for calling a task an essential function:

(i) The function maybe essential because the

reason the position exists is to perform that finetion;

(ii) The function maybe essential because of

the limited number of employees available

3 Employers may make medical inquiries in two other situations as well, under this standard: If the employer has a legitimate basis to be

concerned about direct threat and when other Federal laws require it.
Chapter 4 The ADA’s Tools for Effecting Employment 73

Many firms use tests developed and validated by psychologists for employment purposes, Psychological tests—including cognitive ability tests, personality tests, honesty and integrity tests, and interest inventories—can be used by organizations in screening of applicants, and in the promotion, training, and development of employees. The use of such tests raise concerns about validity, privacy, and discrimination. The

ADA adds to the constellation of concerns. This box describes the issues raised by the ADA and psychological testing for people with psychiatric disabilities.

The ADA specifically enjoinders against discriminatory employment tests. Discrimination is defined to

include,

a) using qualification standards, employment tests or other selection criteria that screen out, or tend to screen

out an individual with a disability or a class of individuals with disabilities unless the standard, test or other selection criteria, as used by the covered entity is shown to be job-related for the position in question and is consistent

with business necessity, and,

b) failling to select and administer tests concerning employment in the most effective manner to ensure that,

when such test is administered to a job applicant or employee who has a disability that impairs sensory manual

or speaking skills, such test results accurately reflect the skills, aptitude or whatever other factor of such applicant or employee that such tests purports to measure, rather than reflecting the impaired sensory manual or

speaking skills of such employee or applicant (except where such skills are the factors that the test purports to

measure).

The EEOC regulations further clarify.

A selection criteria that is not job related and consistent with business necessity violates section 1630. IO(a)

only when it screens out an individual with a disability on the basis of disability there must be a nexus between

the exclusion and the disability A selection criterion that screens out an individual with a disability for reasons that

are not related to the disability does not violate this section.

The ADA does not outlaw the use of psychological tests for employment purposes, nor does it mandate a

standard of proven relevance to a particular job. Rather, it entreats against testing which has a discriminatory impact on people with disabilities, And even this requirement takes a back seat to business necessity,

The impact of psychological testing on people with psychiatric disabilities seldom has been discussed;

indeed, the EEOC’S regulatory language specifies only “impaired sensory, manual or speaking skills, ”

Nonetheless, questions may arise concerning the potential discriminatory impact of employment testing on

people with psychiatric disabilities and accommodations useful to this population.

In many instances, the same psychological test can be used for different purposes and in different settings, such as both employment selection and clinical diagnosis. This has raised the issue of whether or not

psychological tests should be viewed as pre-employment tests or medical exams, which are more stringently regulated under the ADA. Wayne Camara, the Assistant Executive Director of Science at the American Psychological Association, asserts that “tests used in an employment context, to measure job related

functions or characteristics as opposed to diagnostic purposes, do not constitute medical examinations.

Often instruments originally designed for clinical purposes are used to identify suitability for the job or to

predict job performance. Used in such contexts any diagnostic information that could possibly reveal the

presence and nature of a psychiatric disability are not sought nor reported to an employer. ” The EEOC has

not released relevant guidelines to date, however, the commission is currently working on guidance for preemployment medical exams that will include a section on psychological testing. The guidelines will most

likely consist of factors an employer can review to determine whether a test is medical or not. If tests are

used primarily in a clinical setting to diagnose psychiatric disabilities, the test maybe considered a medical

exam under the ADA.

(continued)
 —- —— —

74 I Psychiatric Disabilities, Employment, and the Americans With Disabilities Act

An individual with a psychiatric disability may need accommodation during a testing procedure; the

ADA does require “reasonable accommodation” during pre-employment testing. Accommodating individuals with psychiatric disabilities during pre-employment exams raises some dilemmas. Disclosure of a disability is required before an accommodation may be required. The stigma and discrimination so often attached to mental disorders may hinder disclosure during the application process. Advocates suggest that

most people with a psychiatric disability will not disclose during the application process for this reason. The

price of not disclosing also maybe high; an individual with a psychiatric disability may fail to be hired in the

face of impaired performance on a psychological test.

Another issue raised by accommodating individuals with disabilities during pre-employment testing is

identifying useful accommodations. OTA was unable to find data that document accommodations that may

be useful or effective for people with psychiatric disabilities. Commonly used test modifications may be

helpful for persons with specific psychiatric disabilities, however, including changes in the time allowed for

tests, and the administration of tests individually rather than in a group. Test modifications, even commonly

used ones, do raise questions concerning reliability and validity.

SOURCES: American Psychological Asoclatlon, StandadsforEdKationa/andPsycho/ogica/ Testing (Washington, DC American

Psychological Assoclatlon, 1985); W.J. Camara, Assistant Execuhve Dvector for Science, American Psychological Assoclatlon,

Washington, DC, personal commumcatlon, May24-25, 1993, Sept. 24, 1993, and Jan. 18, 1994, C Hansen, 4

’Psychological Assessment A Research Literature Reww,” A Handbook of F%ycho/ogica/ Assessment, C. Hansen (ed ) (New York, NY” Quorum books,

1991), R, Khmoskl, Professor of Psychology, Ohio State Unwerslty, Columbus, Ohio, personal communication, May 24, 1993, D J

Kleinke, Director, Employ merit Testing, Edison Electrlc Institute, Washington, DC, personal communlcatlon, Jan. 12,1994, R. Kllmoskl, and S. Palmer, “The ADA and the Hmng Process m Organizations,” Consulting Psycho/ogyJouma/ 45(2) 10-35, 1993; PR Mastrolanm, Assstant Legal Counsel, ADA PoIIcY Dwlslon, U.S Equal Employment OpportunltyCommw.ion, Washington, DC, personal

commumcatlon, May24, 1993; J.W. Parry, “Mental Disabilities Under the ADA’ A DIffIcull Path to Follow, ” Menfa/andPhysfca/Disabl/f~

Law Reporier 1 7:100-1 12, 1993.

among whom the performance of that job func- Nor is an employer obliged to lower perfortion can be distributed; and/or mance standards under the ADA. To quote the

(iii) The junction may be highly specialized EEOC’s guidance:

so that the incumbent in the position is hired for It is important to note that the inquiry into eshis or her expertise or ability to perform the par- sential functions is not intended to second-guess

ticular function (56 FR 35735). an employer’s business judgment with regard to

Employer judgment, previously written job descriptions, the actual experience of a previous

worker in that position, as well as time spent doing

a task and implications of not doing it determine

essential functions. The EEOC’s guidance does

not eschew employer judgment on what is essential. Rather, one way in which the law approaches

the goal of nondiscrimination is by equating the

defined essential components of a job with what

is actually performed. An employer cannot select

employees by a higher standard than he or she is

in fact tolerating.

production standards, whether qualitative or

quantitative, nor to require employers to lower

such standards . . . If an employer requires its typists to be able to accurately type 75 words per

minute, it will not be called upon to explain why

an inaccurate work product, or a typing speed of

65 words per minute, would not be adequate.

Similarly, if a hotel requires its service workers

to thoroughly clean 16 rooms per day, it will not

have to explain why it requires thorough cleaning, or why it chose a 16 room rather than a 10

room requirement. However if an employer does

require accurate 75 word per minute typing or
Chapter 4 The ADA’s Tools for Effecting Employment 75

the thorough cleaning of 16 rooms, it will have to

show that it actually imposes such requirements

on its employees in fact, and not simply on paper.

It should also be noted that, if it is alleged that

the employer intentionally selected the particular level of production to exclude individuals

with disabilities, the employer may have to offer

a legitimate, nondiscriminatory reason for its

selection (56 FR 35743).

Performance standards, especially in terms of

attendance, may raise especially difficult issues

for employers. Regular and predictable attendance is a standard of performance commonly

viewed as essential—whether it is in the job description or not. The courts basically have upheld

this position.

4 Even so, attendance is not so easily

dealt with. As noted in the previous chapter, a

characteristic feature of some psychiatric disabilities as well as some other health conditions is the

intermittent and often unexpected flair of symptoms, which may preclude work for a short time.

People with psychiatric disabilities and others

who have pulled together lists of desired or useful

accommodations universally bring up occasional

medical leave or part-time work. Indeed, an employer’s duty of reasonable accommodation will

almost certainly include the duty to tolerate additional absences. Differentiating between additional absences as a reasonable accommodation and

absences as a performance problem will prove

challenging to many employers.5

Given the ADA’s requirements, many experts

and advocates advise businesses to write job descriptions and requirements before filling a position and to make sure that review of an applicant

qualifications are based on the requirements of the

job. So does the EEOC:

Although part 1630 (of the regulations) does

not require employers to develop or maintain job

descriptions, written job descriptions prepared

before advertising or interviewing applicants

for the job . . . are among the relevant evidence

to be considered in determining whether a particular function is essential (56 FR 35743).

Survey data indicate that employers, especially

in large businesses, have focused a considerable

portion of their implementation efforts on preparing job descriptions (74). Employers-especially

large employers—increasingly summon experts

to conduct job analyses to guide their hiring and

employment practices.

The ADA is just the latest in a series of laws,

judicial decisions, and professional trends fostering job analysis. For example, the Federal Uniform Guidelines on Employee Selection Procedures—published jointly by the U.S. Civil

Service Commission, the U.S. Department of Justice, the EEOC, and the U.S. Department of Labor

in 1978—specifically recognizes the relevance of

job analysis in demonstrating selection procedures when an employer is charged with discriminatory hiring practices. In addition, professional

guidelines issued by organizations such as the

American Psychological Association, the American Educational Research Association, the National Council on Measurement in Education, and

the Society for Industrial and Organizational

Psychology of the American Psychological

Association stress the importance of job analysis

to assess the essential functions of a job.

What exactly is job analysis? Basically, it is the

process of gathering and synthesizing information

about job functions and the work environment. A

4 Courts have analyzed an inability to maintain regular attendance in variety of ways, including: (a) the view that an inability to maintain

regular attendance makes an individual not “otherwise qualified” under the first part of the definition of “qualified individual with a disability;”

(b) the view of attendance as an essential function under the second prong of the definition of “qualified,” with focus on whether a reasonable

accommodation enables the person to perform this function; and (c)considering a disciplinary action based on an employee’s failure to satisfy a

performance standard as legitimate or discriminatory under the ADA (72).

s The EEOC emphasizes that “essential functions generally involve job tasks rather than abilities or ways of doing things. . . If something is

labeled as an essential function, the analysis will be whether the function itself can be performed with reasonable accommodation. . . [Furthermore] some requirements are more suitably viewed as behavior or performance standards. . . [w]hen. . . employers must consider whether they

are truly necessary for performance of a particular job and job function, and whether they can be adjusted without undue hardship” (72).
76 I Psychiatric Disabilities, Employment, and the Americans With Disabilities Act

job analysis determines the essential and nonessential job functions and forms the criteria for recruiting, selecting, accommodating, training, and

determining fair wages.

There are several ways to conduct a job analysis. Typically, an expert, such as an industrial/organizational psychologist, will observe workers

performing the job in question, examine the context of the job, conduct interviews with workers

and their supervisors, and occasionally make use

of a questionnaire to be completed by a representative sample of people currently holding the job

(14,20).

There are dozens of systems of job analysis.

They vary widely in their objectives, theoretical

foundations, and methods of data gathering and

analysis. They can be divided into two general

groups: “Job-oriented” systems focus on the mission, tasks, and other substantive features of jobs;

“worker-oriented” systems focus on the abilities,

skills, and other characteristics of the workers performing the job (2,1 5).

Functional job analysis, a job-oriented approach developed by the U.S. Department of Labor (DOL) in the 1930s, is the most established

method of job analysis. The approach is comprehensive, simple to use, and expandable. Virtually

all job analysis systems have used or adapted its

materials. The DOL system forms the basis of the

Dictionary of Occupational Titles (DOT), which

is the most comprehensive source of information

on the occupational structure of the U.S. economy. The passage of time has rendered the DOT out

of date, especially in regards to the cognitive, behavioral, and social demands of a job. These job

components are especially relevant not only to

psychiatric disabilities but to an economy that is

increasingly based on services instead of

manufacturing. The DOL is conducting research

to improve job analysis methodology, which will

provide guidance on the cognitive, behavioral,

and other requirements of jobs (70). Also, DOL

chartered the Advisory Panel for the Dictionary of

Occupational Titles to make recommendations for

a new DOT system that will reflect the changes

taking place in the workplace. The advisory panel

has submitted a final report to the Secretary of Labor, who will review the recommendations and

develop a plan to implement a new DOT (70).

Ascertaining the psychological and social demands of a job and how well an individual meets

such demands is especially relevant to people with

psychiatric disabilities. Some of the most vexing

management and legal questions also will arise

around behavior. Cases under the Rehabilitation

Act vividly illustrate some of the difficulties employers have encountered in managing emotional

outbursts, insubordination, threats, and other erratic behavior in employees with psychiatric disabilities (1 O). Given such concerns, employers

may be well-advised to consider carefully the specific psychological, behavioral, and social requirements of positions in their organization.

Providing Reasonable Accommodation

to a Qualified Employee

The ADA requires employers to provide “reasonable accommodations” for qualified individuals

with disabilities.6 The law equates discrimination

with not making such accommodations. As the

linchin of the ADA’s antidiscrimination requirement, the identification of effective accommodations for people with psychiatric disabilities becomes critical. Just as it appears that many people

construe a disability as a physical disability—

such as being in a wheelchair—accommodations

are often viewed in physical terms—such as

building a ramp. Many experts and advocates note

that employers are unfamiliar with the types of

6 The ADA calls for accommodation in three contexts: during employee selection, on the job, and in terms of benefits and privileges of

employment. This section focuses on the accommodation of employees on the job. The sections on psychological tests (box 4-2) and mental

health benefits considers some issues relevant to applicants and privileges of employment. It is important to note that: “[I]t is least likely that

reasonable accommodations for people with mental disabilities will be required during the hiring process, since most people probably will not

reveal their disability until after they are hired. Even for those who would choose to reveal their disability, the pre-hiring circumstances in which

a reasonable accommodation would be needed are limited” (47). Further discussion is provided in the section on disclosure.

I
Chapter 4 The ADA’s Tools for Effecting Employment 77

measures that may assist people with psychiatric

disabilities in the workplace (10,34,35).

A variety of workplace modifications may assist people with psychiatric disabilities. Changes

to the physical environment, such as a private office or secluded work space, maybe useful; however, measures such as restructuring job tasks or

schedules may be required. Such “nonphysical”

interventions may form “reasonable accommodations” under the ADA, according to the language

of the law itself, EEOC regulations and guidelines, and case law interpretations of the Rehabilitation Act. EEOC regulations say:

Reasonable accommodation may include but

is not limited to . . . [j]ob restructuring. . . [or]

part-time or modified work schedules (56 1%

35736).

The guidelines go further:

IO]ther accommodations could include permitting the use of accrued paid leave or providing additional unpaid leave for necessary treatment. . . An employer . . . may restructure a job

by reallocating or redistributing nonessential,

marginal job functions. . . An employer. . . may

also restructure a job by altering when and/lor

how an essential jinction is performed. For example, an essential jumction customarily performed in the early morning hours may be rescheduled until later in the day as a reasonable

accommodation to a disability that precludes

performance of the function at the customary

hour . . . The reasonable accommodation requirement is best understood as a means by

which barriers to the equal employment opportunity of an individual with a disability are removed or alleviated. These barriers may . . . be

rigid work schedules that permit no flexibility as

to when work is performed or when breaks may

be taken, or inflexible job procedures that unduly limit the modes of communication that are

used on the job, or the way in which particular

tasks are accomplished (56 FR 35744).

The legal definition of accommodation, thus,

makes explicit reference to adjustments useful to

people with psychiatric disabilities. The question

then becomes: “What measures should be enacted

for a specific individual with a psychiatric disability in a specific workplace?” Of course, this question cannot be answered in the abstract, but must

be addressed on an individual basis, taking into

account a particular employee’s limitations, abilities, and preferences, as well as the nature of the

job, work site, and the employer’s resources. Enumeration of potentially useful measures, however,

could aid this decisionmaking process. While few

data speak to the impact of such measures in a

competitive work setting, OTA found that several

experts and consumer groups have begun compiling lists of potentially useful accommodations,

based on surveys, experience in vocational rehabilitation, and preliminary studies (5,8,1 1,18,34,

35,46,48,59,65,69) (tables 4-2 and 4-3).

All of these sources strike similar chords. In

general, many accommodations address the functional limitations commonly associated with psychiatric disabilities: difficulties in concentrating,

dealing with stress, and interacting with others

(see ch. 3). To help an individual concentrate on

work tasks, employers may: provide a private office or space for work, so as to limit interruptions

and noise; maintain structure through well-defined daily task schedules; eliminate nonessential

or secondary tasks that may be distracting; and

minimize supervisor/coworker interruption of an

employee. Accommodations that may help an employee better deal with stress include: increased

positive feedback and sensitivity on the part of supervisors and coworkers; making time or other resources (e.g., support from supervisor or willing

coworker; counseling services at the office) available for contacting support network (figure 4-2);

and permitting self-paced workload, flexible

hours, and work at home (with provision of necessary technical equipment such as a computer).

Orienting supervisors and coworkers may also

help ease the difficulties people with psychiatric

disabilities may have with interpersonal interactions (figure 4-3).

Among the most common accommodations

listed by experts and people with psychiatric disabilities are those that address symptoms or treatment side effects. All lists compiled include providing leave when short-term hospitalization is

required to control symptoms. Other accommodations include: use of part-time work schedules,
78 I Psychiatric Disabilities, Employment, and the Americans With Disabilities Act

Number of Number of jobs

accommodations using accommodation

Type of accommodation (n=231) (n=47)

Orientation and training of supervisors to

provide assistance 80 (38.1%) 39 (83%)

Modifying work environment by provision of

onsite job support and assistance 38 (16.4%) 35 (74%)

Modifying work schedules and time 36 (15.6%) 25 (53%)

Modifying work rules of procedures 24 (10.3%) 16 (34%)

Modifying performance expectations 17 (7.4%) 15 (32%)

Modifying job tasks 14 (6.1%) 13 (28’%)

Modifying work place social norm 12 (5.2%) 13 (28%)

Orienting coworkers 7 (3.0%) 5(1 1%)

Other 3 (1.7%) 3 (6%)

NOTE: Percentages will not add to 100 since more than one accommodation was provided to each employee.

SOURCE: E.S. Fabian, A. Waterworth, and B. Ripke, ‘Reasonable Accommodations for Workers With Serious Mental Illness: Type,

Frequency, and Associated Outcomes,” Psychosocial Rehabilitation Journal 17:163-172, 1993.

job-sharing, or more frequent breaks (for those

who do not have the stamina for full-time work);

flexible hours (that take into account medication

side effects, such as early morning drowsiness);

time off each week for clinical services; and limited night or shift work when symptoms or effects

of medication interfere.

Some advocates have suggested that decreased

work standards may be a useful accommodation

for people with psychiatric disabilities (67). In

fact, evidence from the preliminary study of

people with psychiatric disabilities participating

in a vocational rehabilitation program show that

“accommodations” often involved modifying

performance expectations (1 1). However, case

law under the Rehabilitation Act does not appear

to support compromise on legitimate performance

standards to accommodate individuals with psychiatric disabilities (10). And the EEOC’s statements regarding essential functions of the job indicate that the ADA does not bar legitimate

productivity requirements, so long as they are enforced in a nondiscriminatory manner:

“[Employees with disabilities should not be evaluated on a lower standard or disciplined less severely than any other employee. This is not equal

employment opportunity” (73).

Lists of commonly desired or used accommodations, while aiding the decisionmaking process, do not supplant the need for case-by-case assessment. Work places and jobs vary, as do people

with psychiatric disabilities, who include a broad

range of talent, ability, and functional limitations.

Some individuals with psychiatric disabilities

may even be insulted by the suggestion that they

cannot work full time, need very detailed supervision, or should be secluded. A former director of

Fountain House commented, “I have seen lists of

accommodations and some seem highly unnecessary for most people such as an accommodation

which arranges for a person having difficulty with

people to work in isolation (54).”

The education of supervisors and coworkers

emerges as a commonly cited accommodation.

People often do not understand psychiatric disabilities, may feel uncomfortable around people

with such a disability, fear them, or may simply

not know how to act. At least two studies have

shown that inservice education in higher education settings decreases fear of disruption by

people with mental disorders (6,75) Worksite

training and orientation must proceed carefully,

however. For example, coworker training may

have a variety of purposes, such as dispelling the
Chapter 4 The ADA’s Tools for Effecting Employment 79

Flexibility

Providing self-paced workload and flexible hours

Allowing people to work at home, and providing necessary equipment

Providing more job-sharing opportunities

Modifying job responsibilities

Providing supported employment opportunities

Keeping the job open and providing a liberal leave policy (e.g., granting up to 2 months of unpaid leave, if it does not cause

undue hardship on the employer)

Providing back-up coverage when the employee needs a special or extended leave

Providing the ability to move Iaterally, change jobs, or change supervisors within the same organization so that the person

can find a job that is a good fit

Providing time off for professional counseling

Allowing exchange of work duties

Providing conflict resolution mechanisms

Supervision

■ Providing written job instructions

■ Providing significant levels of structure, one-to-one supervision that deals with content and interpersonal skills

• Providing easy access to supervisor

■ Providing guidelines for feedback on problem areas, and developing strategies to anticipate and deal with problems before

they arise

■ Arranging for an individual to work under a supportive and understanding supervisor

■ Providing individualized agreements

Emotional supports

Providing ongoing on-the-job peer counseling

Providing praise and positive reinforcement

Being tolerant of different behaviors

Making counseling/empioyee assistance programs available for ail employees

Allowing telephone calls during work hours to friends or others for needed support

Providing substance-abuse recovery support groups and one-to-one counseling

Providing support for people in the hospital (e.g., visits, cards, telephone calls)

Providing an advocate to advise and support the employee

Identifying employees who are willing to help the employee with a psychiatric disability (mentors)

Providing on-site crisis intervention services

Providing a 24-hour hot-line for problems

Providing natural supports

Physical accommodations at the workplace

■ Modifying work area to minimize distractions

■ Modifying work area for privacy

■ Providing an environment that is smoke-free, has reduced noise, natural light, easy access to the outside, and is wellventilated

■ Providing accommodations for any additional impairment (e.g., if employees with psychiatric disabilities have visual or

mobility impairment, they may need such accommodations as large print for written materials, 3-wheel scooter, etc.)

Wages and benefits

■ Providing adequate wages and benefits

■ Providing health insurance coverage that does not exclude pre-existing conditions, including psychiatric disabilities, HIV,

cancer, etc.

■ Permitting sick leave for emotional well-being, in addition to physical well-being

■ Providing assistance with child care, transportation, care for aging parents, housing, etc.

■ Providing (specialized) training opportunities

Dealing with coworkers’ attitudes

• Providing sensitivity training for coworkers

■ Facilitating open discussions with workers with and without disabilities, to articulate feelings and to develop strategies to cleat

with these issues

■ Developing a system of rewards for coworkers without disabilities, based on their acceptance and support for their coworkers

with disabilities

The items on this list do not necessarily refcts “reasonable accommodaticactions” as defined by the ADA.

SOURCE: President’s Committee on Employment of People With Disabilities, 1993
— ——

80 I Psychiatric Disabilities, Employment, and the Americans With Disabilities Act

1

Ongoing supportive counseling 57%

Placement or replacement 32%

1 ~ Durable goods to sustain employment 26%

L I

% Employer intervention or assistance

L

% Transportation 11 ‘/o

~

1-

IMecticalpayrnents WO

12%

I

I

Therapy 9%

1

I I

Work adjustment training 8%

I

I I I 1 I o 10 20 30 40 50 60

Percentage of responding counselors

In a survey of vocational rehabilitation counselors,

researchers identified counseling to be the most frequent

post-employment service provided to people with psychiatric

disabilities.

SOURCE M D Tashjia, B J Hayward, S Stoddard et al , Best Practice

Study 01 Vocational Rehabilitation Services to Severely Mentally Ill Persons (Washington, DC. Policy Study Associates, 1989)

ignorance and harmful myths attached to mental

disorders or providing information on how best to

manage an employee with a psychiatric disability.

But, focusing a training course around an individual employee identified as having a psychiatric

disability may be exceedingly stigmatizing and illegal. Experience with AIDS workplace education programs shows that while effective education need not be costly (see ch. 5), simply

distributing pamphlets about AIDS increased employee anxiety rather than diminishing it (21 ,22).

Also, a workplace policy defining the company’s

position and practices as they relate to an employee with a disability appears critical (74): It

guides employee attitudes and behavior, establishes a framework for communication, instructs

supervisors on how to address the issue, and lets

all employees know where to go for confidential

information and assistance.7

Many mental health advocates and experts note

the parallel between useful accommodations for

people with psychiatric disabilities—such as

workplace flexibility and an individualized approach to management—and good management

practices that would benefit any worker. They assert that adjustments of job demands to the temperament, sensitivities, strengths, weaknesses,

and preferences of a valued employee happens all

the time. Data from a recent preliminary study

support this observation (35). Several supervisors

responded that they made accommodations to employees with psychiatric disabilities “because it

made good business sense and because they made

such modifications for any employee who needed

them.” Data from another recent study indicate

that those who already employ persons with psychiatric disabilities are quite knowledgeable

about the needs of these workers for accommodations, have more positive attitudes, and may be

quite open to accommodating these workers if

need be (7). Thus, exposure can be a critical part

of the equation.

But, the apparent routine nature of such management practices is paradoxical and potentially

problematic. Employers, familiar with “accommodations” that may be useful for people with

psychiatric disabilities, do not equate the concept

with common management practices. Also, some

accommodations—such as working at home or

7 It is important to note that the EEOC is “undecided whether coworker training could be a ‘reasonable accommodation’ for a qualified

individual with a psychiatric disability. On the one hand, coworker training would be a requirement imposed on other employees in the work

place, and we have concluded in some instances that requirements imposed on other workers are not reasonable accommodation for the qualified individual with a disability. For example, we do not think that an appropriate accommodation for a qualified individual with a chemical

sensitivity disability is to prohibit all other employees from wearing perfume in the office. On the other hand, coworker training could help a

qualified individual with a psychiatric disability to interact more effectively with coworker-s and therefore to perform his or her essential job

functions more effectively. On this basis, an argument could be made that this is a reasonable accommodation” (72).
Chapter 4 The ADA’s Tools for Effecting Employment 81

 Oriented coworker/supervisors 47.4%

I

t I

Reassigned tasks 22.80/o I

c

o

E

“% Transferred to

% another job 21 .1%0

E

E

o Modified work

$ hours 15.8%

;=s1’80’0

Additional

training 14%

=14’0

o 10 20 30 40 50

Percent of accommodated employees with

psychiatric disabilities

Data from survey of employers, commissioned by the U.S.

Department of Labor indicated that the most frequent

accommodation provided to individuals with psychiatric

disabilities under the Rehabilitation Act was the orientation of

supervisors and coworkers.

SOURCE Berkeley Planning Associates, A .sfuc$ of Accommodaflons

Provided to Hand/capped Emp/oyees by Federa/ Contractors, Vol 1

Study Fmdlngs (Washington, DC U S Department of Labor, 1982)

flexible hours—that may be necessary for a person with a psychiatric disability to perform his or

her job, are desired by many employees. Coworkers may resent such “special” treatment, especially if the employee with an invisible disability has

disclosed to his or her supervisor alone, and not to

fellow coworkers. Data from a preliminary study

have suggested that people with psychiatric disabilities can suffer negative social and/or personal

consequences from receiving accommodations in

the workplace, in part because of the general desirability of such accommodations (35). Perhaps the

most troublesome legal issue emerges when an accommodation conflicts with a collective bargaining agreement. Shift work, office space, and leave

time—all issues that may arise when accommodating people with psychiatric disabilities—are

often dealt with in collective bargaining agreements. The law and EEOC regulations and guidelines have not fully addressed the overlap between

collective bargaining agreements and reasonable

accommodations. Clearly, further guidance is

needed in managing such complexities and conflicts. The EEOC is now developing policy about

reasonable accommodation and undue hardship in

the context of collective bargaining agreements.

While the accommodations described thus far

form an important resource for employers and employees, the information, as noted time and again

in this chapter, was not derived from carefully

controlled research. Questions about applicability, effectiveness, preference, and impact on the

workplace are largely unaddressed. For example,

many of the listed accommodations stem from the

experience of people with the most severe conditions who receive a high density of services and

support; the application of such accommodations

to people with other types of psychiatric disabilities in the competitive work environment are unknown.

The ADA does not require businesses to enact

every accommodation that an employee requests.

As stated in the EEOC regulations:

It is unlawful for a covered entity not to make

reasonable accommodation to the known physical or mental limitations of an otherwise qualified applicant or employee with a disability, unless such covered entity can demonstrate that

the accommodation would impose an undue

hardship on the operation of its business (56 FR

35737).

An undue hardship refers to significant diffi -

culty or expense incurred by a covered entity. Factors to be considered in determining an undue

hardship include:

The nature and net cost of the accommodation

needed under this part, taking into consideration the availability of tax credits and deductions, and/or outside funding;

The overall financial resources of the facility or

facilities involved in the provision of the reasonable accommodation, the number of per-
82 I Psychiatric Disabilities, Employment, and the Americans With Disabilities Act

m

●

■

sons employed at such facility, and the effect on

expenses and resources;

The overall financial resources of the covered

entity, the overall size of the business . . . with

respect to the number of its employees, and the

number, type and location of its facilities;

The type of operation or operations of the covered entity, including the composition, structure and functions of the work force of such entity, and the geographic separateness and

administrative or fiscal relationship of the facility or facilities in question to the covered entity; and

The impact of the accommodation upon the operation of the facility, including the impact on

the ability of other employees to perform their

duties and the impact on the facility’s ability to

conduct business (56 FR 35736).

Based on a study of the practices of 2,000 Federal contractors under the Rehabilitation Act,

many claim that the cost of accommodating

people with psychiatric disabilities is negligible

(71 ). In fact, the survey data indicated that half of

the accommodations made for all types of disabilities (physical and psychiatric) were cost-free;

another 30 percent cost less than $500. Notably,

the cost-free accommodations (e.g., changes in

management practices) were among those most

frequently used for people with psychiatric disabilities. These cost data, however, are not comprehensive. Estimates did not include the cost of

extended leaves of absence,8 increased supervision, or work site training. Certainly, these accommodations can represent a significant expenditure, especially for smaller companies without

extensive management resources or a large work

force to absorb demands. Advocates and other experts increasingly recognize the more elusive nature of costs for accommodating people with psychiatric disabilities. As recently acknowledged by

the Job Accommodation Network: “Costs usually

are $0 in terms of purchasing equipment. Costs

come in terms of training, absenteeism, and lost

productivity.” And Mancuso, a rehabilitation

counselor and researcher on the ADA, notes that

costs may be sustained overtime: “(S)uch accommodations have the disadvantage of requiring sustained changes in practice over time. This stands

in contrast to one-time, physical adaptations such

as raising the height of a desk to accommodate a

worker using a wheelchair (34).” More research is

needed to ascertain the costs of accommodating

people with psychiatric disabilities.

The EEOC’s guidance on undue hardship goes

beyond dollars, as indicated above: “Undue hardship” refers to any accommodation that would be

unduly costly, extensive, substantial, or disruptive . . .“ This does not translate into accommodating misperceptions and ignorance, however.

It should be noted . . . that the employer

would not be able to show undue hardship if the

disruption to its employees were the result of

those employees fears or prejudices toward the

individual’s disability and not the result of the

provision of the accommodation. Nor would the

employer be able to demonstrate undue hardship by showing that the provision of the accommodation has a negative impact on the morale of

its other employees but not on the ability of these

employees to perform their jobs (56 FR 35752).

While outright stigma and prejudice are not

valid excuses for discrimination, accommodating

aberrant or unusual behavior raises some difficult

issues. Most lists of accommodations recognize

that increased tolerance of unusual behavior is desirable. Some of the sources list conflict resolution counseling as a useful accommodation. The

EEOC provides no explicit guidance on this issue.

Case law under the Rehabilitation Act generally

limits the employer’s responsibility to accommodate disruptive behavior. Review of court deci8 It is important to note that employer provision of unpaid medical leave, which maybe a reasonable accommodation under the ADA, may

be required of employers with 50 employees or more by the Family and Medical Leave Act. Thus, even if unpaid medical leave is deemed too

costly to be reasonable under the ADA, it may be required by the Family and Medical Leave Act.
Chapter 4 The ADA’s Tools for Effecting Employment 83

sions under the Rehabilitation Act led one legal

scholar to this conclusion:

When the employee’s mental disability leads

to episodes of disruptive behavior most decisions require little accommodation on the part of

the employer, under the Rehabilitation Act . . .

The holdings in these cases reflect that inappropriate behavior justifies adverse action, if the

same action would have been taken in the absence of disability. (10)

Reasonable accommodation should not be

equated with supported employment. Nevertheless, how the ADA deals with supported employment services may prove to be of critical importance for people with severe psychiatric

disabilities. Research data and experience suggest

that supported employment can assist many individuals maintaining employment (59). But, preliminary data indicate that neither employers nor

people with psychiatric disabilities view supported employment as a reasonable accommodation (35). The EEOC draws a careful distinction

between the two:

The term “supported employment,” which

has been applied to a wide variety of programs

to assist individuals with severe disabilities in

both competitive and noncompetitive employment, is not synonymous with reasonable accommodation. Examples of supported employment include modified training materials,

restructuring essential functions to enable an individual to perform a job, or hiring an outside

professional (job coach) to assist in job training.

Whether a particular form of assistance would

be required as a reasonable accommodation

must be determined on an individualized, caseby-case basis (56 FR 35747).

While the ADA may require some employers

in large companies to provide a job coach or other

supported employment service as an accommodation, undoubtedly many employers, especially

those in smaller businesses, will not be required to

do so, given the costs. Alternate sources of funding for supported employment services may prove

critical for some people with severe psychiatric

disabilities. The EEOC, in its guidance, explicitly

permits alternative funding streams.

If the employer or other covered entity can

show that the cost of the accommodation would

impose an undue hardship, it would still be required to provide the accommodation if the

funding is available from another source, e.g., a

State vocational rehabilitation agency, or if

Federal, State, or local tax deductions or tax

credits are available to offset the cost of the accommodation (56 FR 35745).

These guidelines specify two potential sources

for funding: the vocational rehabilitation program

and tax incentives offered to businesses. The U.S.

Congress has required the Federal-State Vocational Rehabilitation program to apply supported employment services to people with the most severe

disabilities and to dovetail these efforts with the

requirements of the ADA (see ch. 3). In fiscal year

1993, the Federal Government provided nearly $2

billion in grants to the States for vocational rehabilitation programs; another $32 million was for

development of collaborative programs to provide supported employment services. Although

42 State vocational rehabilitation agencies have

funded supported employment programs since

1985, people with psychiatric disabilities can find

it difficult to obtain those services (52,59). The

challenge remains to gear supported employment

services to people with psychiatric disabilities and

for employers to tap into such services, through

State vocational rehabilitation, mental health

agencies, and other providers.

Three types of Federal tax assistance are available to businesses to reduce the costs of accommodating people with disabilities in the workplace.

Under section 51 of the Federal Internal Revenue

Tax Code, businesses may be eligible for a Targeted Jobs Tax Credit of 40 percent of up to $6,000

of an employee’s first year of wages when hiring

people with disabilities and other groups of individuals with special employment needs. Under

section 190 of the Internal Revenue Tax Code,

businesses may be eligible for a tax deduction of

up to $15,000 for costs incurred to remove architectural and transportation barriers from the workplace. And, a few months after the ADA was

passed, Congress created anew tax credit, specifically aimed at small businesses. The Omnibus
84 I Psychiatric Disabilities, Employment, and the Americans With Disabilities Act

Reconciliation Act of 1990 (P.L. 101-508) added

section 44 to the Federal Internal Revenue Tax

Code, allowing eligible small businesses a tax

credit equal to one-half of expenditures in excess

of $250 but not greater than $10,250 to reduce the

costs of providing access to people with disabilities in the workplace. In general, these methods of

tax assistance have rarely if ever been applied to

the accommodation of people with psychiatric

disabilities (24,43).

SPECIAL CONCERNS RAISED

BY THE ADA

Employment is not simply a matter of doing one’s

job and being paid for it. A wide assortment of

benefits and issues emerge directly or tangentially

from work. Thus, the ADA impinges on a variety

of issues, many of which have not been thoroughly considered to date. Two specific issues, which

are critically important to people with psychiatric

disabilities as well as employers, warrant attention: the direct threat standard in the ADA, and

employer-provided health insurance. Employers

are understandably concerned about the risk of

violence in the workplace. On the other hand,

people with psychiatric disabilities, their family

members, and advocates protest the stigmatizing

and exaggerated perception of the people with

mental disorders as being violent. Similarly, while

employers voice concern about the costs of health

insurance, mental health advocates cite the need

for improved mental health benefits. The following sections discuss the ADA’s impact on these

areas as well as the relevant information concerning psychiatric disabilities.

The ADA’s Direct Threat Standard and

Psychiatric Disability

While it is “unlawful for [an employer] to discriminate on the basis of disability against a qualified

individual with a disability,” under the ADA, employers may include as a qualification standard “a

requirement that an individual shall not pose a direct threat in the workplace.” The EEOC defines

direct threat in the regulations as:

. . . 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 (56 FR 35736).

The EEOC’s inclusion of direct threat to self as

well as others led to an outcry from many people

with psychiatric disabilities and other mental

health advocates. Opponents to the EEOC’s position note that it encourages employer paternalism

(47,53). The fact that paternalistic powers formed

the rationale for involuntary hospitalization of

mental patients in the past, and dangerousness to

self is a common criterion for involuntary commitment, heightened sensitivity to this issue (3).

Legal experts and mental health advocates also

claim that the EEOC’s interpretation goes well beyond the law’s language and intent. The ADA

makes no mention of direct threat to self: ‘*The

term ‘qualification standards’ may include a requirement that an individual shall not pose a direct

threat to the health or safety of other individuals

in the workplace.” The U.S. Department of Justice’s Title H regulations also do not mention direct threat to self. In its own defense, the EEOC

notes that this interpretation is consistent with the

legislative history of the ADA and case law interpreting section 504 of the Rehabilitation Act. In

fact, one of the few cases involving psychiatric

disabilities turned on proof of a direct threat to

self: Doe v. New York University, 666 F.2d 761,

777 (2d Cir. 1981). An academically gifted but

suicidal and self-destructive medical student

sought readmission to NYU Medical School as a

remedy for alleged discrimination in violation of

the Rehabilitation Act. The court found that the

individual was not qualified for readmission because she could not handle the inevitable stresses

of medical school without posing a danger to herself or others, thus subjecting the medical school

to liability for knowingly permitting such exposure (10). The concern about employer liability

was reasserted at a recent OTA workshop by one

of the original authors of the EEOC regulations:

The bottom line for me on this issue is this:

I’ll make an analogy. If anybody in this room

wants to go sky diving, you can do it. And before
Chapter 4 The ADA’s Tools for Effecting Employment 85

you board that plane, you’re going to sign a

waiver of liability that is as long as your arm, and

those waivers are enforceable . . . But if you

want to go to work and you actually pose, in the

words of the Commission’s regulations, a high

probability of substantial harm to yourself in doing your job, you cannot waive your right to

Workers’ Compensation . . . the reality is that in

the workplace the employer’s got to pay the bill

if you get injured. . . The employer cannot make

the employee waive that (1).

Experts and advocates on both sides concede that

the issue likely will be decided by the courts

(47,67).

The EEOC regulations and guidelines procedurally narrow the definition of direct threat: “Direct threat means a significant risk of substantial

harm that cannot be eliminated or reduced by reasonable accommodation” (56 FR 35376). Thus,

the risk need not be eliminated entirely to fall below the direct threat definition; instead, the risk

need only be reduced to the level at which there no

longer exists a significant risk of substantial harm.

The direct threat standard “must apply to all individuals, not just to individuals with disabilities”

(56 FR 35745). A direct threat determination must

be based on “an individualized assessment of the

individual’s present ability to safely perform the

essential functions of the job” (56 FR 35736).

This clarifies that a determination that employment of an individual would pose a direct threat

must involve an individualized inquiry and must

be based on the individual’s current condition.

This is reinforced in the interpretive guidance.

Furthermore, the interpretive guidance indicates

that “[relevant evidence may include input from

the individual with a disability, the experience of

the individual with a disability in previous similar

positions, and opinions of medical doctors, rehabilitation counselors, or physical therapists who

have expertise in the disability involved and/or direct knowledge of the individual with the disability” (56 FR 35745). Factors to be considered when

determining whether employment of an individual would pose a direct threat includes “the imminence of potential harm” (56 FR 35736).

These guidelines attempt to limit speculative

assertions of risk or the application of stereotypic

assumptions about such risk. One of the few examples to be found in the EEOC’s regulations or

guidelines pertaining to psychiatric disabilities illustrates this point further: “[A] law firm could not

reject an applicant with a history of a disabling

mental illness based on a generalized fear that the

stress of trying to make partner might trigger a relapse of the individual’s mental illness.”

Concerns about danger to others can arise in a

variety of contexts, depending on the functions of

the job. For example, difficulties in concentration

may pose a “direct threat” if the individual is operating heavy equipment. However, if any one stereotype of mental illness is most prevalent and

damaging, it is that of the homicidal maniac. As

evident to any patron of the news and entertainment media in the U.S.—and supported by research data—the image of people with mental disorders most often relayed to the public is a violent

and deranged one (66). Results from a 1990 nationwide telephone survey indicate that the majority of the American public links mental illness to

violence (33). Stigma-busting campaigns have

been aimed at dispelling this cruel and exaggerated stereotype. The message in those campaigns

is: People with mental disorders are no more violent than the average person.

Nevertheless, mental illness is sometimes

associated with violent behavior. Supporting data

are accruing, often from the research efforts of

those who did not anticipate or desire the result.

Several types of studies support the link between

mental illness and violent behavior, including

those evaluating arrest and jail rates of people with

mental disorders, and hospital and communitybased surveys (31,40,63). For example, data indicate that people with mental disorders experience

higher arrest and imprisonment rates for minor offenses and violent crimes (27,28,29,36,49,60,61 ).

People with serious mental disorders constitute 5

to 15 percent or more of the jail and prison population in the U.S. (25,62).
86 I Psychiatric Disabilities, Employment, and the Americans With Disabilities Act

Despite the consistent finding in the 1970s and

80s that mental disorders have some link to violent behavior, many of these studies suffer serious

methodological weaknesses, including inadequate definition of violence and selection bias.

More recently, however, data from two large and

methodologically sound studies confirm the findings from the early, imperfect efforts (31,58). Data

from the ECA study—a large, community-based

survey-demonstrated a statistically significant

link between some mental disorders and self-reports of violent acts (58). Link and colleagues

compared violent behavior among people who

currently were or had been in treatment for mental

disorders and people who were never treated. The

subjects with mental disorders and controls were

matched for various demographic characteristics,

treatment status was assessed, and carefully

drawn measures of violence included official and

self-reports of arrest rates, as well as self reports

of fighting, hitting others, and weapon use. While

confirming the importance of social and demographic factors in violent behavior, the data show

a significant, if modest, link between all measures

of violence and mental disorders. It turned out that

only those experiencing recent psychotic symptoms showed elevated rates of violence. Data from

another study suggest that specific aspects of psychosis—when a person feels personally threatened or the intrusion of thoughts that can override

self-control—are linked to violence (33).

Taken together, the available data impute a relationship between mental disorders-especially,

psychotic disorders—and violent behavior. The

limits of these data must be emphasized. First, the

demonstrated link is modest at best: Demographic

factors, substance abuse, and a history of violent

behavior are far more tightly correlated to violence in people with and without psychiatric disabilities. Secondly, the assertion that most people

with mental disorders are not violent remains unchallenged. Finally, and relevant to this discussion, none of these data emerge from research in

the workplace.

Evidence of a correlation between mental illness and violence certainly does not translate into

ADA-sanctioned exclusion of people with these

conditions from the workplace. As mentioned

above, individualized assessment of imminent,

significant risk of substantial harm constitutes the

EEOC’s standard. The EEOC guidelines also allow for the expert opinion of medical and other

professionals in carrying out this standard. However, performance of this task has been surrounded by nearly as much controversy and doubt

as the link between mental illness and violence.

How well can clinicians predict future violence

by people with mental disorders? The prevailing

opinion has been “not well at all.” In large part this

lack of confidence was based on a review of research published in 1981 (38). Monahan, a leading researcher in the field, concluded that for every time a clinician correctly predicts violent

behavior, he or she would be wrong two times.

More recent data paint a somewhat more optimistic picture of clinician assessment of violent behavior. While the studies reviewed by Monahan

focused largely on institutionalized patients and

the assessment of violent behavior over the long

term, more recent efforts focus on more specifically drawn measures of violent behavior in the short

term. For example, data from a large sample of individuals with mental disorders, recruited to the

study from emergency room admissions, demonstrated clinician accuracy in predicting violence

over the next 6 months significantly better than

chance, at least for male patients (30). Similarly,

prediction accuracy exceeded that of chance in a

study of post-hospitalization adjustment of

people with mental disorders over the course of 6

to 12 months (26). These and other data imply, in

the words of one reviewer, “that the use of actuarial data and techniques may result in predictions

whose accuracy exceeds chance” (45).

This conclusion is hardly a ringing endorsement. Indeed, there are important caveats. First,

further research is crucial for identifying the variables that may lead to more accurate prediction.

Factors other than mental health status, such as a

past history of violent behavior and substance

abuse, are linked to violence, and undoubtedly

must be included in any attempts to predict violence. Situational and interfactional variables are

known to be important contributors to violent be-
Chapter 4 The ADA’s Tools for Effecting Employment 87

havior and must be considered (39,44). Furthermore, situational and interpersonal factors will

highlight many of the accommodations that may

reduce the threat of harm. Results from a MacArthur Foundation- and NIMH-funded study will be

available in 1996 (41,57); they will likely shed

light on the process of predicting violent behavior

in people with mental disorders. Even with better

methods, the prediction of violence will never be

error free. Thus, the acceptable level of accuracy

for disqualifying someone from work will require

consideration of ethical, legal, and public policy

concerns (17).

The issue of the risk of violence and its treatment warrants special attention, as people with

disabilities, advocates, experts, and employers

have raised concerns. Are employers required to

provide treatment to employees who present a direct threat? Are employees required to take medication in order to maintain their jobs? Can employers monitor medications as a reasonable

accommodation for employees who have posed a

direct threat without medication and who have a

history of failing to take medications? While the

legal questions are complicated, controversial,

and unanswered, there can be no doubt that this issue will arise. The EEOC does not require employers to provide treatment as a reasonable accommodation (see next section); however, the

Commission has not yet taken a position on

whether employees can be required to take medications to keep their jobs (72). OTA interviews of

various vocational rehabilitation professionals

and other experts and advocates also reveal that

treatment compliance is a very real issue. People

with mental disorders often do not comply with

prescribed treatment, for reasons that can include

denial of a chronic illness, or intolerance of side

effects (9,1 3,16). And the data linking mental illness to violence suggest that severe symptoms and

nontreatment do play a role (3 1,63). Research and

full discussion of this issue are clearly needed.

Where do we stand? This review of the research

literature bespeaks limited gains in understanding

the link between mental illness and violence. Critical questions remain unanswered about the specific predictors and modifiers of threatening behavior.

Health Insurance for People With

Psychiatric Disabilities

Health insurance is typically considered a privilege of employment. And the ADA prohibits “discrimination against a qualified individual with a

disability in regard to . . . privileges of employment” (42 U.S.C. 121 12(a) ).9 Federal regulations

and interim guidance recently drawn up by the

EEOC echoes the ADA’s stance against insurance

exclusions used as a subterfuge to evade the purpose of Title I. To this end, EEOC regulations specifically prohibit various discriminatory practices. For example, employers may not:

■

■

●

make employment decisions based on potential

increases in health insurance premiums;

limit health insurance eligibility on the basis of

voluntary medical examinations in employee

health programs; or

deny a qualified individual with a disability

equal access to the same terms or conditions of

insurance that other employees enjoy.

It should come as no surprise that the prospect

of ADA-compelled health benefit reform allured

disability rights advocates. In fact, lists compiled

by people with psychiatric disabilities and other

mental health advocates often include better

health insurance coverage as a useful and desired

accommodation. The barrier to affordable health

insurance that millions of Americans currently

confront is a familiar problem for people with disabilities; they have long endured exclusions and

limitations from private sector coverage (42). For

people with psychiatric disabilities, the situation

is even worse. Data and analyses clearly docu9 This sections concentrates on the issue of individual and group medical insurance. However, other forms of coverage for medical treatment of mental disorders exist, such as long-term disability insurance, which is typically limited for mental health and substance abuse problems.
88 I Psychiatric Disabilities, Employment, and the Americans With Disabilities Act

ment the limitations commonly placed on mental

health benefits by such means as high copayments, large deductibles, and separate (usually

lower) limits on annual and lifetime expenditures

or services (55,68). Caps on mental health benefits reflect insurer concerns about uncontrollable

costs and the ill-defined nature of some disorders;

the evolution and availability of a public sector

system of care and the apparent lack of public demand for more generous coverage are also a factor.

Many also attribute the inequity to discrimination

(55,66).

While the need for improved access to mental

health care may make a compelling case for health

care reform, the question remains as to what role

the ADA can or should play in achieving this goal.

The language of the law, its legislative history, and

related regulations and guidelines indicate that the

ADA does not intend a complete revision of insurance industry policy and practice (4). As stated in

the law and EEOC regulations:

[T]he act shall not prohibit or restrict:

(1) an insurer, hospital or medical service

company, health maintenance organization, or

an agent or entity that administers benefit plans,

or similar organizations from underwriting

risks, classifying risks, or administering such

risks that are based on or not inconsistent with

State law; or

(2) a person or organization covered by this

Act from establishing, sponsoring, observing or

administering the terms of a bona fide benefit

plan that are based on underwriting risks, classifying risks, or administering such risks that are

based on or not inconsistent with State law; or

(3) a person or organization covered by this

Act from establishing, sponsoring, observing or

administering the term of a bona fide benefit

plan that is not subject to State laws that regulate insurance. (56 FR 35739)

The EEOC regulations that implement the

ADA ensure that employees with psychiatric disabilities will not be discriminated against if a

health plan is offered; it does not require access to

mental health insurance. The regulations clearly

allow traditional insurance practices of preexisting condition clauses, underwriting and risk assessment and classification and ERISA-regulated, self-insured plans, “even if they result in

limitations on individuals with disabilities.” Essentially, the law requires that an employer offer

the same benefits to all employees. This does not

provide a carte blanche for disparate health insurance coverage on the basis of disability. According to interim guidance from the EEOC, employers must demonstrate that the disability-based

distinctions in coverage are fiscally necessary

(N-915.002).

Because the employer has control of the risk

assessment, actuarial, and/or claims data relied

upon in adopting a disability-based distinction,

the burden of proof should rest with the employer

. . . If the employer asserts that the disabilitybased distinction was necessary to prevent the

occurrence of an unacceptable change in coverage or premiums, or to assure the fiscal soundness of the insurance plan, the evidence presented should include nondisability-based

options for modifying the insurance plan and the

factual data that supports the assumptions and/

or conclusions.

How might the ADA be used to influence mental health benefits? One question to consider is:

“Is disparate treatment of mental disorders by insurance a disability-based disparate treatment?”

While excluding treatment for a particular mental

disorder, such as schizophrenia, would likely lead

to an affirmative response to this question, the

EEOC’s recent guidance, citing case law under

section 504 of the Rehabilitation Act, answers resoundingly “no” for mental health benefits in general (N–915.002).

[A] feature of some employer provided health

insurance plans is a distinction between the

benefits provided for the treatment of physical

conditions on the one hand, and the benefits provided for the treatment of “mental/nervous”

conditions on the other. Typically, a lower level

of benefits is provided for the treatment of mental/nervous conditions than is provided for the

treatment of physical conditions . . . Such broad

distinctions, which apply to the treatment of a

multitude of dissimilar conditions and which

constrain individuals both with and without disabilities, are not distinctions based on disability.
Chapter 4 The ADA’s Tools for Effecting Employment 89

Consequently, although such distinctions may

have a greater impact on certain individuals

with disabilities, they do not intentionally discriminate on the basis of disability and do not

violate the ADA.

This interpretation of the ADA seems to leave

little room for using this tool to abolish the traditional disparity between mental health benefits

and other health benefits. It is important to note

that advocates argue that this analysis is specious.

For many disabled people with mental disorders

who are otherwise qualified for a job, the lack, inequity, or insuffiency of insurance coverage is the

barrier to employment (23). Furthermore, the

people with the most severe and chronic conditions are most affected by restricted mental health

benefits.

What proves to be an interesting question under

the ADA, especially for people with psychiatric

disabilities, is whether providing some health care

could be construed to be a reasonable accommodation, and thus required of the employer, absent undue hardship. Health care benefits are generally provided by employers. Chapter 3 noted

data that show treatment is often important for

controlling the clinical symptoms of mental disorders and may be linked to work functioning. And

as discussed in this chapter, treatment may figure

prominently in controlling symptoms related to

harmful behavior. One legal expert’s review led to

the conclusion:

Can employees expect an employer to pay for

medication or provide insurance that will pay

for such medications? To date, there is no good

answer to that question in the statute, its regulations, or the case law. Logically, it would seem

that if the expense to the employer is reasonable,

perhaps only slightly more than what the employer pays for other employees’ health care,

such an accommodation is required (47).

Another view is that “that’s the kind of personal

service ruled out . . . [It] goes beyond . . . removing a barrier caused by the workplace or the way

work is customarily performed, which is . . . the

lode star for reasonable accommodation (l).”

Guidelines prepared by the EEOC indicate that

employer provision of medication is not, in the

view of the agency, a reasonable accommodation:

The obligation to make reasonable accommodation is a form of nondiscrimination. It applies to all employment decisions and to the job

application process. This obligation does not extend to the provision of adjustments or modifica -

tions that are primarily for the personal benefit

of the individual with a disability. Thus, if an adjustment or modification is job-related, e.g.,

specifically assists the individual in performing

the duties of a particular job, it will be considered a type of reasonable accommodation. On

the other hand, if an adjustment or modification

assists the individual throughout his or her daily

activities, on and of the job, it will be considered a personal item that the employer is not required to provide. Accordingly, an employer

would generally not be required to provide an

employee with a disability with a prosthetic

limb, wheelchair, or eyeglasses (56 FR 35747).

Given the conflicting viewpoints, it maybe that

the courts will be called upon to interpret the Act.

Considering medications a reasonable accommodation may be opposed by some advocacy

groups who worry about coerciveness and psychiatric treatment. The distinction between providing a medication as an accommodation and requiring an individual to take a medication to keep

his or her job may be viewed as a slippery slope.

A consumer spokesperson said, “I can imagine a

scenario in which ‘reasonable accommodation’ is

deemed to mean that the employee must take psychotropic medication as a condition of employment. Given the many negative ‘side effects’ of

these medications, it can create a negative cycle of

further impairment, especially when the person

identified as psychiatrically disabled feels

coerced or is forced into taking these drugs” (64).

Representatives of small businesses also express

reluctance in further involving employers in clinical care (43).

Clearly, the ADA will address some of the

health benefit practices that are disability-based.

But the Act’s jurisdiction overemployed-provided

health benefits is explicitly circumscribed.
90 I Psychiatric Disabilities, Employment and the Americans With Disabilities Act

Achieving insurance parity for mental health

benefits under the ADA appears even less likely.

These limitations and uncertainties have served to

focus the attention of advocates and experts on

health care reform efforts in general. As stated by

an EEOC representative at a recent meeting:

“[Whatever we say about health insurance at this

point is like the tail wagging the dog, because the

real discussion about what’s happening. . . is taking place elsewhere (37).” However, if health care

reforms are too costly, too limited, or occur too

slowly, people with psychiatric disabilities may

be motivated to seek adequate treatment via this

route.

SUMMARY AND CONCLUSIONS

OTA’s analysis points out many unanswered questions concerning psychiatric disability, the workplace, and the ADA (see table 4-4). First, a better

characterization of the questions, concerns, and

current practices around disclosure and accommodation is needed. Information derived from

workshops, surveys, and case studies on disclosure, accommodation practices, and problems

could guide further research and those who are implementing the ADA. The most useful information will come from forums representing the full

range of viewpoints and concerns. This includes

people with disabilities, managers and supervisors, coworkers, and mental health and legal professionals. It also requires consideration of such

sensitive issues as confronting an individual about

an undisclosed disability, the impact of psychiatric disability on performance, possible behavioral

problems, and potential coworker fear or resentment of accommodations.

Even though we know that much more knowledge is needed, implementation must move forWhat are the usual positive and negative consequences of disclosing a psychiatric disability for an individual with a

psychiatric disability? For the supervisor and employer? Coworker?

What types of information concerning a psychiatric disability are relevant and/or useful to employers?

How does timing of disclosure influence the individual with a psychiatric disability, the employer, and the work place?

How do gaps in employment history, a criminal or arrest record affect the employment of people with psychiatric

disabilities?

How can current job analysis methodology better assess cognitive, behavioral, and social factors?

Which functional assessment approaches reliably predict work performance and are useful under the ADA?

How frequently do emotional outbursts, insubordination, threats, and other erratic behavior arise at the work place in

relation to psychiatric disability? How can managers and coworkers best deal with such behaviors when they occur?

How effective in permitting work and improving work performance are the accommodations commonly listed as useful to

people with Psychiatric disabilities?

What are the speific and net costs-including possible redistribution of work load and changes in benefit uses-of these

accommodations to employers?

What is the impact of providing an accommodation to an employee with a psychiatric disability on that employee?

Coworkers? supervisors?

What impact does coworker training on psychiatric disabilities have on individuals with these conditions and ADA

implementation in the workplace?

What kinds of information would assist supervisors in providing effective accommodations for employees with psychiatric

disabilities?

What can be learned about accommodating people with psychiatric disabilities from businesses that make accommodations

for all of their workers?

How does psychiatric disability relate to violence in the work place?

How can the threat of violence in the workplace, as it may relate to psychiatric disabilities, be predicted? Abated or

diminished?

SOURCE: Office of Technology Assessment, 1994.
Chapter4 The ADA’s Tools for Effecting Employment 91

ward. This chapter points to a substantial amount

of information to aid in that goal. Consumer organizations, experts, and researchers have compiled

lists of useful accommodations for people with

psychiatric disabilities. Because research indicates considerable ignorance about the ADA, the

challenge is to disseminate this information to

people with psychiatric disabilities and employers, and to increase awareness and understanding

about psychiatric disabilities among employers

and coworkers. The Federal Government can assist by building on current ADA technical assistance [e.g., by NIDRR and the EEOC (see ch. 5)]

and strengthening existing ties in the community,

including consumer organizations (see ch. 2),

mental health and rehabilitation services in States,

counties, and local communities [e.g., funded by

CMHS, NIMH, NIDRR (see ch. 5)]. Because the

impact of education such as teaching coworkers

about psychiatric disabilities, is unknown, such

education needs to be evaluated.

The chapter ends with a discussion of two issues raised by the ADA and of keen interest to

people with psychiatric disabilities: the threat of

violence and employer-based mental health benefits. People with mental disorders, their families,

and others decry the media’s stereotyping of

people with these conditions as violent. Because

the ADA includes as a qualification standard “ a

requirement that an individual shall not pose a direct threat in the workplace,” the question of the

link between violent behavior and mental illness

becomes relevant. Recent data and reviews of research indicate a link between the threat of violence and some mental disorders. Given the prevailing stereotype, it must be emphasized that the

link is modest-demographic factors, substance

abuse, and a history of violent behavior are far

more tightly correlated to violence. In addition,

violence appears to be related to a small subset of

psychotic conditions and symptoms. Clearly, the

correlation between mental illness and violence

does not translate into ADA-sanctioned exclusion

of people with these conditions from the workplace: The EEOC’s regulations and guidelines

narrow the definition of direct threat to one that is

substantial, imminent, individually determined,

and not abated by accommodation. Furthermore,

the law and research in this area raise questions

concerning the prediction of violence, the link between violence and mental illness in the workplace, and treatment issues in the workplace.

Mental health benefits are another key issue for

people with mental disorders in general and under

the ADA. Mental health benefits are commonly

limited, compared to general health coverage,

with the result that people sometimes do not receive treatment. Access to effective treatment will

be important for many people with psychiatric

disabilities to gain and maintain employment (see

ch. 3). Although the ADA prohibits various discriminatory practices in terms of employer-provided health insurance, the law, its legislative history, and interim guidance from the EEOC enjoin

against its use to abolish the traditional disparity

between mental health benefits and other types of

benefits. Furthermore, guidelines from the EEOC

indicate that the provision of medication is not a

reasonable accommodation.

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1994).

Swanson, J.W., Holzer, C.E., Ganju, V.K. et

al., “Violence and Psychiatric Disorder in the

Community: Evidence From the Epidemiologic Catchment Area Survey s,” HospitaZand

Community Psychiatry 41:761-770, 1990.

Tashjian, M. D., Hayward, B.J., Stoddard, S.

et al., Best Practice Study of Vocational Rehabilitation Services to Severely Mentally 111

Persons (Washington, DC: Policy Study

Associates, 1989).

Teplin, L., “Criminalizing Mental Disorder:

The Comparative Arrest Rate of the Mentally

Ill,” American Psychologist 39:794-803,

1984.

Teplin, L. A., “The Prevalence of Severe Mental Disorder Among Male Urban Jail Detainees: Comparison With Epidemiologic Catchment Area Program,” American Journal of

Public Health 80:639-669, 1990.

Torrey, E. F., Stieber, J., Ezekiel, J. et al., Criminalizing the Seriously Mentally Ill: The

Abuse ofJails as Mental Hospitals (Washington, DC, National Alliance for the Mentally

Ill and Public Citizen’s Health Research

Group, 1992).

Torrey, E. F., “Violent Behavior by Individuals with Serious Mental Illnesses,” paper

presented at Institute on Hospital and Community Psychiatry, Baltimore, MD, Oct. 12,

1993.

Unzicker, R., Coordinator, National Association of Psychiatric Survivors, Sioux Falls,

South Dakota, personal communication,

Sept. 12, 1993.

U.S. Commission on Civil Rights, Accommodating the Spectrum of Individual Abilities

(Clearing House Publication 81, Washington,

DC, 1983).

U.S. Congress, OffIce of Technology Assessment, The Biology ofMental Disorders, OTABA-538 (Washington, DC: U.S. Government

Printing Office, September 1992).
Chapter 4 The ADA’s Tools for Effecting Employment 95

67.

68.

69.

70.

71,

U.S. Congress, Office of Technology Assessment, “Americans With Disabilities Act,

Mental Illness, and Employ merit,” OTA

Workshop, Apr. 21, 1993.

U.S. Congress, Office of Technology Assessment, Benejit Design: Mental Health Services

and Substance Abuse Treatment, in press.

U.S. Department of Health and Human Services, Public Health Service, Substance

Abuse and Mental Health Services Administration, Center for Mental Health Services,

Community Services Program, “Reasonable

Accommodations for People With Psychiatric Disabilities,” prepared by J. Parrish,

March 1991.

U.S. Department of Labor, staff communication, May 8, 1993.

U.S. Department of Labor, A Study ofAccom -

modations Provided to Handicapped Employees by Federal Contractors, Final Report, prepared by Berkeley Planning

72.

73.

74.

75.

Associates, Contract No. J-(-E1 -0009)

(Washington, DC, 1982).

U.S. Equal Employment Opportunity Commission, staff communication, Nov. 10, 1993.

U.S. Equal Employment Opportunity Commission, A Technical Assistance Manual on

the Employment Provisions (fitle I) of the

Americans With Disabilities Act (Washington, DC: U.S. Government Printing Office,

1992).

Washington Business Group on Health, Institute for Rehabilitation and Disability Management, The Annual Review of Disability

Management, K.A. Kirchner and K.A. Tanasichuk (eds.) (Washington, DC: Washington

Business Group on Health, 1992).

Wolf, J., and DiPietro, S., “From Patient to

Student: Supported Education Programs in

Southwest Connecticut,” Psychosocial Rehabilitation Journal 15:61-68, 1992.
Relevant

Federal

Agencies’

Activities 5

T

he Americans With Disabilities Act’s (ADA’s) success depends on many individuals and organizations. Employers

and people with disabilities who educate themselves

about the law and comply voluntarily will be most important. Consumer, advocacy, and business organizations can assist

employers and people with disabilities by providing materials

and other forms of educational outreach. State and local governments, who must also meet ADA requirements, will further extend knowledge of and compliance with the ADA by dove tailing

their disability programs and business support activities with the

law.

The Federal Government must also play a role in translating

the law’s vision into reality. The ADA requires the Federal Government to prepare regulations and guidelines to implement the

law; to enforce the law; to assist those with rights and responsibilities under the law; and to coordinate their enforcement and technical assistance efforts. In addition to these requirements, specified by the ADA itself, the U.S. Congress has ordered Federal

research and service agencies to provide technical assistance and

to conform their activities with the ADA’s mission. Furthermore,

the Federal Government is a key source of monetary support for

ADA and employment research.

This chapter describes Federal activities relevant to Title I of

the ADA and psychiatric disabilities. The agencies and offices

discussed in this review are as follows:

■ U.S. Equal Employment Opportunity Commission (EEOC);

Ž

■

National Institute on Disability and Rehabilitation Research

(NIDRR);

Center for Mental Health Services (CMHS); 97
98 I Psychiatric Disabilities, Employment, and the Americans With Disabilities Act

● National Institute of Mental Health (NIMH);

and

● President’s Committee for the Employment of

People with Disabilities (President’s Committee).

The chapter also briefly discusses the research efforts of the National Institute for Occupational

Safety and Health (NIOSH). Of course, not every

ADA activity supported by the Federal Government is reviewed. Federal programs that collect

disability statistics were discussed in chapter

three; and although the National Council on Disability (NCOD) is among the Federal Government’s most prominent ADA actors, the agency

does not devote any special attention to psychiatric disabilities and Title I of the ADA. The U.S.

Department of Justice—another key player under

the ADA—also is not discussed, as its efforts do

not focus on employment.

While the ADA clearly assigns to the EEOC the

enforcement of Title I, technical assistance and research responsibilities do not neatly disperse

among the various agencies listed above. Before

commencing an agency by agency review, this

section takes a closer look at technical assistance

and research activities.

“Technical assistance” includes just about any

form of information dissemination: brochures,

public and video presentations, conferences,

training programs, toll-free help lines, computer

bulletin boards, clearing house activities, posters,

or manuals. Compliance with the requirements of

a new statute like the ADA depends on awareness

and understanding by people whom the law affects. The minimal impact of the Rehabilitation

Act’s antidiscrimination provisions reflects, in

part, the general lack of awareness of this law (21)

(see ch. 2). The congressional sponsors of the

ADA were well aware of the importance of technical assistance, mandating such activities in the

language of the law and in other legislation.

Executive branch agencies have responded to

the call for technical assistance with a veritable

blizzard of materials and activities (16,30). But

surveys of businesses and individuals indicate

that the campaign has been inadequate (2,5,8). For

example, results from a survey of businesses employing 25 or more individuals revealed that nearly 40 percent of the respondents had little awareness of the ADA (5). Also, a recent Harris poll

found that only 30 percent of people with disabilities had heard or read about the ADA (6). Corroborating these observations, a recent report that assessed Federal ADA activities concluded: “The

need for information and technical assistance continues to grow, outstripping Federal and State resources” (16). The report highlighted the need for

information aimed at small businesses and minorities with disabilities, as well as the requirement

for more sophisticated information that focused

on specific kinds of disabilities’ and complex provisions of the ADA (e.g., health insurance, workers’ compensation, and collective bargaining

agreements).

Information on psychiatric disabilities and the

ADA rank among the most critical of technical assistance needs (10). As noted in previous chapters,

mental disorders and psychiatric disabilities are

poorly understood and greatly stigmatized in our

society (see ch. 2). With their impact on behavior

and social interactions, they raise difficult and

somewhat unique employment issues (see chs. 3

and 4) that cry out for technical assistance. Although fairly primitive and generally not critical

in its analysis, the response has begun (19). For

example, in 1992 the Bazelon Center for Mental

Health Law* published Mental Health Consumers

in the Workplace: How the Americans With Disabilities Act Protects You Against Employment

Discrimination for consumers (1 3). In 1993, The

American Bar Association and National Mental

Health Association published The ADA and

1 Although providing some examples of specific disabilities needing technical assistance attention, the report did not specifically indicate

that psychiatric disabilities require such attention, a conclusion of this OTA report.

2 The Bazelon Center for Mental Health Law was formerly The Mental Health Law Project.
Chapter 5 Relevant Federal Agencies’ Activities 99

People With Mental Illness: A Resource Manual

for Employers (33). And NIDRR funded a technical assistance center with the Washington Business Group on Health (see later discussion).

It is important to keep in mind that the type of

technical assistance needed varies, depending on

the target audiences’ expertise, available resources, and role in implementing the ADA. For

example, what will help businesses with fewer

than 100 employees differs from that which will

assist larger firms. Smaller firms are much more

limited in the time, staff, or money that they can

devote to learning about a new law and complex

area of disability.

In considering the Federal Government’s psychiatric disability research efforts, estimates of

total Federal expenditures on disability-related

research provide a useful perspective. 3 Comprehensive estimates, however, are not easy to derive,

given the diverse range of conditions, methods,

and sponsors that constitute the disability research

enterprise. OTA, citing a survey by the National

Institute of Handicapped Research (NIHR, now

NIDRR), proffered one of the most comprehensive estimates of Federal disability research dollars more than 10 years ago (22). According to the

NIHR survey, 16 agencies and offices devoted

nearly $66 million to disability- related research

in fiscal year 1979. Nearly half of that amount

—$31.7 million—was provided by NIHR. A

1991 Institute of Medicine (IOM) report provides

a more recent (if less complete) tally of disability

research expenditures (7): NIDRR spent $60 million in fiscal year 1990, which reflects a IO-percent increase from 1979, when adjusted for inflation.4 The U.S. Veterans Administration devoted

$22 million to disability-related research in that

same year. In addition, the National Institutes of

Health estimated that $78 million was spent over

several years on rehabilitation research projects

beginning in 1984.

Analysts repeatedly have concluded that the

Federal Government’s disability research expenditures are much less than the amounts spent on

health care research in general or the economic toll

of these conditions. For example, the 1982 OTA

study estimated that Federal funds spent on disability-related research equaled less than 1 percent

of all health-care research dollars, and more recent

computations show that the cost of disabilities to

the nation each year is 1,000 times higher than the

public funds spent on disability research (7,22).

Specifically, disability research receives no more

than $200 million annually from the Federal Government, while disabilities cost our society an estimated $200 billion each year, including health

care expenditures, lost or diminished productivity, and income maintenance (7). Given these expenses and other factors, OTA’s conclusion from

the 1982 study holds true today:

The amount of funds devoted to research and

development in the disability area is quite small

in comparison to the number of people affected,

the complexity of the research problems involved, and the total health-care research and

development budget.

Many of the characteristics of disability research in general hold true for the psychiatric disability research enterprise: A diverse range of approaches is involved, as described later in the

chapter. And despite the costs imposed by mental

disorders—an estimated $136.1 billion in 1991,

with the largest part, $60 billion, stemming from

lost or diminished productivity-only $14.3 million are available for research (17,1 8,23). Those

funds total approximately 1.3 percent of the combined total annual budgets of NIDRR, CMHS,

and NIMH—the key Federal funders of research

(and technical assistance) related to mental disorders and disability-devoted to issues directly

relevant to psychiatric disability and employment

(table 5-l). Moreover, research on employment

and mental disorders is fragmented within the

Federal Government, with little interagency coor3 Research devoted to disability as a civil rights issue —as opposed to health, rehabilitative, or socimconomic issues—is not included in

the OTA’S estimate of research funding.

4 Adjusted for inflation Using the 1987 implicit price deflator for the Gross ~)mestic ~oduct (4).
100 I Psychiatric Disabilities, Employment, and the Americans With Disabilities Act

Principal

Institute mission

National Institute on Supports research

Disability and and technical

Rehabilitation assistance for all

Research disabilities

Center for Mental Administers block

Health Services grants to States for

mental health

services and

supports research

National Institute of Supports mental

Mental Health disorders research

Total funds

Specifically

related to

psychiatric

disability and

employment Percent of total

Funding mechanisms (in $ millions) budget

Supports training and $3.5a

5.6 percent

research centers; fieldinitiated research projects;

and a technioal assistance

resource center

Supports training and $1.5a

0.36 percent (1 .4%

research centers; of non-block grant

demonstration projects; budget)

consumer self-help centers

Funds investigator-initiated $9.3 b

1.5 percent

studies and research

centers

a

Fiscal year 1993.

bFiscal year 1992.

SOURCE: Office of Technology Assessment, 1994.

dination and no agency or office currently offering

leadership or making this issue a priority (box

5-l).

U.S. EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Established by law in 1964, the EEOC, or

Commission, enforces Title I of the ADA, as well

as Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, section 501 of

the Rehabilitation Act, and the equal pay provisions of the Fair Labor Standards Act. The EEOC

is composed of five individuals (no more than

three from one political party) (figure 5-l),with

the chair and vice-chair designated by the U.S.

President. As of this writing, no new Chair of the

EEOC has been appointed. In addition to national

headquarters staff, the Commission has field offices in all 50 States.

The Commission’s enforcement of Title I of the

ADA, as spelled out by the statute, involves issuing regulations, providing technical assistance to

covered entities and people protected by the law,

and coordinating activities with the U.S. Departments of Justice and Labor. As noted in the 1993

NCOD report, the EEOC’s regulations were issued in the time frame required by the law, and

technical assistance activities have been extensive. However, and as documented throughout

this OTA report, the regulations, guidance, and

technical assistance promulgated by the EEOC

provide minimal guidance on many issues specifically relevant to psychiatric disabilities. As reiterated throughout this report, the complexity of psychiatric disabilities and the general lack of

knowledge about these conditions engenders the

need for further information and guidance, an observation shared by the EEOC itself. “Cases involving individuals with alleged mental disabilities are frequently more complicated than those

involving physical disabilities. Investigators may

require more time to determine whether a mental

impairment exists, whether a disability exists, and

whether an individual with a mental disability is

qualified (which may involve consideration of

whether a reasonable accommodation is needed,

and if so, what would be an effective accommodation)” (24,3 1). This concern is magnified by the
Chapter 5 Relevant Federal Agencies’ Activities 101

Effecting communication among agencies that share responsibilities and interests is a common bureaucratic dilemma, Several Federal agencies, as described in this chapter and report, have authority over research, technical assistance, program administration, and policy enforcement relevant to psychiatric disability and employment, Despite jurisdictional overlap, each agency has a unique culture and functional

role Many observers believe that this heterogeneity is healthy, permitting distinct and potentially useful approaches to flourish. However, redundant or conflicting Federal policies and activities may also flourish in

the absence of meaningful communication, While individuals in different agencies informally interact, formal mechanisms of interagency communication lie moribund,

Public Law 102-321 created a new Center for Mental Health Services (CMHS) within the Substance

Abuse and Mental Health Services Administration (SAMHSA) of the Public Health Service, Department of

Health and Human Services, thus separating this mental health service agency from the principal mental

health research agency—the National Institute of Mental Health (NIMH), That law requires cooperation and

consultation between the CMHS and the NIMH in a variety of areas Such communication clearly could help

the CMHS move forward with demonstration projects, technical assistance, and services solidly based on

research supported by NIMH Also, NIMH’s research expertise could assist in program evaluation at the

CMHS. Conversely, the CMHS could assist NIMH in promoting research relevant to current practices, policy

needs, and real world demands While NIMH and CMHS indicate that they are working together on a report

to the U.S. Congress on effective methods of providing mental health services to individuals in correctional

facilities, to date, no general mechanism has been elaborated to animate the congressional mandate for

information exchange between the CMHS and NIMH,

The U S Congress established the Interagency Committee on Disability Research to promote communication and funding coordination among the committee’s 27 member agencies, which include: the National Institutes of Health (including NIMH), SAMHSA (including CMHS); the National Science Foundation; and

offices in the U S Departments of Health and Human Services, Education, Labor, and Veterans Affairs, and

the National Aeronautics and Space Administration. In existence since 1981, the committee has not met at

all during the last year and has never focused directly on psychiatric disability.

In April of 1993, the CMHS replaced the NIMH as a cosigner with the Rehabilitation Services Administration (RSA) and NIDRR on a renewed Memorandum of Understanding (MOU) In effect since 1979, the MOU

sets out guidelines for interagency collaboration on service delivery, staff training, and evaluation activities

related to the rehabilitation and employment of people with psychiatric disabilities. Representatives from

each agency serve as members of a liaison group responsible for informing each other about their agency’s

activities, exploring possible cooperative efforts, recommending cooperative activities to the chief executives of their agency, and developing and implementing a work plan to carry out approved cooperative activities The MOU specifically mentions as one of its goals the “provision of technical assistance on implementing the Americans with Disabilities Act for persons with psychiatric disabilities “ Also, it helps coordinate the cofunding by CMHS and NIDRR of the National Rehabilitation and Research Centers at Boston

University and Thresholds Institute in Chicago, Illinois. While proponents contend that the MOU can and has

been an important catalyst for interagency cooperation, several experts and advocates commented to OTA

about its current ineffectiveness And no efforts have focused on the ADA to date,

(continued)
102 I Psychiatric Disabilities, Employment, and the Americans With Disabilities Act

The National Task Force on Rehabilitation and Employment for People with Psychiatric Disabilities

(NTREPPD) has tried to promote collaboration among RSA, NIDRR, NIMH, CMHS, and the Social Security

Administration. NTREPPD is composed of representatives of professional organizations, service providers,

consumers, family members, research and training organizations, advocacy groups, Federal, State, and

local government agencies, and others. Its central function is to advise the RSA and NIDRR on policy and

research priorities related to rehabilitation and employment issues for people with psychiatric disabilities.

The group originated as the RSA Task Force on Vocational Rehabilitation for Persons with Long-Term Mental

Illness. In 1991, it became an independent entity and was chartered as NTREPPD, The members of

NTREPPD had been meeting quarterly in Washington, DC to share information and develop recommendations about legislation and regulations, research priorities, training and service delivery issues; many observers considered the group vital. More recently, however, many members have desisted meeting attendance, complaining about NTREPPD’s voluntary nature and its limited impact on policies.

SOURCE. Office of Technology Assessment, 1994.

fact that charges related to psychiatric disabilities vialed for 32 additional staff positions for ADA

account for approximately 10 percent of all

charges, second only to back problems (see chs. 3

and 4).

The EEOC’s budget, in fiscal year 1991, was

approximately $200 million, with $1 million provided to begin the required preparations for implementing the ADA. In addition, in fiscal year 1991,

Congress provided EEOC $3.6 million in supplemental funding. In fiscal year 1992, Congress appropriated a total of $211 million, with $4 million

for ADA implementation. The EEOC also received a supplemental appropriation providing $1

million available through fiscal year 1993. A total

of $222 million was appropriated to the EEOC for

fiscal year 1993.

Many analysts have concluded that despite

these appropriation increases, the EEOC is under

considerable fiscal and staffing strain (e.g.,

1,19,20). Between fiscal year 1981 and 1992,

while the average annual real rate of the total

EEOC budget increased 8.13 percent,5 staff were

being significantly reduced (figure 5-2). Between

fiscal year 1980 and fiscal year 1991, staff was reduced by 594 full-time equivalents—a 17.5 percent decrease. Although the U.S. Congress proimplementation in fiscal year 1992, total staff fell

from 2,853 in 1990 to 2,791 in 1992. The overall

decreases in staff-which with rent, communications, and utilities consume approximately 90 percent of the total budget—were mirrored in the

number of investigators. In the field offices, assigned enforcement investigators dropped from

949 in fiscal year 1988 to 782 in 1992, a 17.6 percent decrease. At the same time its staff was being

reduced, the EEOC was given more responsibilities-enforcement of the ADA and the Civil

Rights Act of 1991. Overall charges of discrimination received by the EEOC increased by 13 percent between fiscal year 1991 and 1992 and continue to rise (31).

These staff and budget figures have significant

implications for ADA enforcement and technical

assistance activities of the EEOC. For example,

the staffing constraints curtail the time available

for investigation of charges and conciliation efforts (20,3 1). These constraints are likely to have

a particularly acute impact on the investigation of

complaints relating to psychiatric disabilities,

which raise complex issues and require more time

for investigation than other disabilities. Addition5 Adjusted for inflati[)n using the ]$)87 implicit price deflator for the Gross n~mes!ic ~~uct (4).
Chapter 5 Relevant Federal Agencies’ Activities 103

COMMISSIONER VICE CHAIRMAN CHAIRMAN COMMISSIONER COMMISSIONER

1

I

~

General Executive

Counsel Secretariat

Offi.:.f 11-==1 **I Offi.J.f 1

I Cornrnunications and \ I inspector I

Legislative Affairs General

Ei!2!i!HH I

Legal II Coordination

Advice and Guidance II ADA Services

m

I

 1 ‘ewices I L——_——l

I 1 Eiizl-r

Employee Development and

Program Training Staff

1 I L I

Administration

Support Services

Staff

Charge

Resolution

and Review r Program

Field

Management

Program

(East)

i

Financial and

Resource

Management

Services

Operations

Research and

Planning

Programs

I —

L

Systemic

Investigations

and Individual

Compliance

Programs L

Field

Management

Program

(West)

DISTRICT, AREA” AND LOCAL OFFICES

I Field Management Programs (East) I Field Management Programs (West) I

Atlanta Charlotte Memphis New York Chicago Houston Milwaukee San Francisco

Savannah Greensboro”’ Little Rock” Boston* Minneapolis Fresno

Greenville”’ Nashville Buffalo”* Honolulu

Ralelgh Oakland

I I I I I I

I SanJose 1

Miami Philadelphia Dallas Indianapolis Phoenix Seattle

Tampa” Newark” Oklahoma Louisville” Albuquerque”

Pittsburgh City”

St. Louis Washington, DC Denver Los Angeles San Antonio

Kansas City” Field Office San Diego El Paso”

Birmingham New Orleans

Jackson” ,

I 1 I Detroit I I

SOURCE U S Equal Employment Opportunity Commission, 1993
104 I Psychiatric Disabilities, Employment and the Americans With Disabilities Act

250,000

200,000 “ Full time staff

150,000

Funding (in thousands of dollars) -2,000

100,0001,50 0

198182 83 84 85 86 87 88 89 90 91* 92*

Although total funding to the U.S. Equal Employment

Opportunity Commission experienced a real, average annual

rate of increase of 8.3°/0 since 1981, full time staff positions

declined by approximately 17%.

*includes supplemental for ADA.

SOURCE: US. Equal Employment Opportunity Commission, 1993.

al technical assistance and monitoring or other research efforts are also likely to be restricted.

Title I of the ADA orders the EEOC to use the

same enforcement procedures as used for Title VII

of the Civil Rights Act of 1964. In general,

charges are received and investigated by the field

and headquarters offices. The EEOC’s 1992 Technical Assistance Manual provides a detailed description of the enforcement process, which is

summarized below (30).

The process begins when an applicant or employee files a charge of discrimination with the

EEOC. A group or organization may also file a

charge on behalf of an individual. Commissioners

also may file charges when they have evidence of

discrimination but no charging party. It is incumbent upon the charging party to file with the EEOC

within 180 days of an alleged discriminatory act.6

Charges, including basic identifying information,

the nature of the alleged discrimination, and the

disability involved, can be filed in person, by telephone, or by mail.

Investigating officers in the field offices investigate each claim: They review the written charge

and interview the charging party, witnesses, and

the employer or alleged discriminator (the respondent). In approximately 95 percent of charges, the

investigator finds no cause to believe discrimination occurred under the statutory definition. The

charging party still maintains the right to sue privately, however.

In approximately 5 percent of cases in which

the investigator finds reasonable cause to believe

discrimination has occurred, the EEOC attempts

to resolve the issue and to avoid litigation. If conciliation fails, the EEOC may file a lawsuit on behalf of the charging party, or it may issue a rightto-sue letter to the charging party. Most charges

are conciliated or settled before a court trial begins, and EEOC-initiated lawsuits account for less

than 5 percent of all cases that reach court.

Investigators in EEOC field offices are critical

for the enforcement of Title I of the ADA. They are

the engine of charge investigation. Each investigator’s high case load can obviously diminish the

quality of each investigation. Knowledge of the

ADA and psychiatric disabilities is another critical factor. To ascertain field office investigators’

resources on psychiatric disabilities and the ADA,

OTA contacted each of the 50 field offices asking

questions about training received on the ADA in

general, psychiatric disabilities, other available

resources, and the perceived need for further assistance (see ch. 5 appendix).7

EEOC headquarters provided general training

to all field offices on Title I of the ADA in two sessions: The first session was in 2 days to provide a

legal analysis of ADA principles. A second weekG Up to 300 days may be available for filing a charge in the event that other State or local laws are involved.

7 Forty field offices provided information to OTA. The appendix to this chapter describes the request for information from the EEOC field

oftlces.
Chapter5 Relevant Federal Agencies’ Activities 1105

long session focused on how to investigate and

process complaints related to the ADA. The

EEOC headquarters also provided an investigation manual, the “Desk Book,” and the “Technical Assistance Resource Directory ”-a comprehensive list of agencies and services available, by

locale.

How well did these information resources cover psychiatric disabilities? Given the general focus of these training sessions and materials, it is

not surprising that the answer to this question is

“sparsely.” The week-long training on investigatory procedures used hypothetical cases for discussion purposes; only one of the cases dealt with

an employee with a mental disability who required time off from work for periodic treatment

or diagnostic services.

While investigators have received little formal

information on psychiatric disabilities from headquarters, some field offices have tapped into additional resources. Twelve of the 40 respondents

have sponsored seminars by local experts, and 15

have connected with a local network of experts to

call for assistance on a case-by-case basis. Most

field offices indicated that additional training on

psychiatric disabilities would be very helpful.

One of the most suggested needs was training or

assistance for the initial stage of the investigation,

including guidance on the types of information

that are important. For example, 28 of the 40 responding field offices said information on the nature of mental illness, impact on employment

functioning, and useful accommodations would

be very useful. EEOC headquarters could address

this resource need with additional guidance in

technical assistance manuals and policy papers.

Other Federal agencies, including NIDRR,

CMHS, and NIMH, could also develop resource

information in consultation with the EEOC. Nearly all of the field offices indicated that seminars

would be useful. However, individuals associated

with the Washington, DC and Chicago IL field offices indicate that intensive training sessions or

seminars do not suffice. Since people with disabilities, the workplace issues that arise, and the philosophy of the ADA require case-by-case assessment, outside experts, who can be consulted as

needed, are among the most useful resources. The

issue thus becomes identifying local, knowledgeable experts. The Federal Government may be

able to help by bringing together EEOC field offices with federally-funded service providers, including those funded by mental health block

grants, vocational rehabilitation funds, and the

community support program supported by the

CMHS.

NATIONAL INSTITUTE ON DISABILITY

AND REHABILITATION RESEARCH

NIDRR is the lead Federal agency supporting

disability research. Located within the Department of Education’s Office of Special Education

and Rehabilitative Services (OSERS), NIDRR

develops and implements long-range plans for rehabilitation research, coordinates the work of all

Federal agencies supporting or conducting such

research, and disseminates research results to

businesses, professionals, and people with disabilities.

With an annual budget of $62 million in fiscal

year 1992, NIDRR’s research portfolio emphasizes clinical and applied studies in conjunction

with service provision. Psychiatric disabilities are

not the prime focus of NIDRR’s program; rather

its research portfolio spans all disabilities. Of the

$62 million spent in fiscal year 1992, 5.6 percent—$3.5 million—went to psychiatric disabilities (25). NIDRR, along with CMHS, funds two

Rehabilitation Research and Training Centers that

focus on people with severe and chronic mental

disorders: Boston University’s Center for Psychiatric Rehabilitation, and Thresholds National

Research and Training Center located in Chicago,

Illinois. Both of these centers receive additional

funds from NIDRR for field-initiated research

projects. The Boston University’s Center receives

funds to explore the long-term outcomes of a specific rehabilitation program, and the possibilities

of including consumers in the conduct and definition of research regarding services. Thresholds

National Research and Training Center received a
106 I Psychiatric Disabilities, Employment, and the Americans With Disabilities Act

field-initiated research grant supporting research

on the effectiveness of educating State rehabilitation counselors about the ADA and psychiatric

disabilities.

NIDRR has recently increased its commitment

to psychiatric disabilities. In September 1992,

NIDRR sponsored a consensus validation conference on “Strategies to Secure and Maintain Employment for Persons with Long-Term Mental Illness.” A panel of experts commissioned papers

summarizing research in the field and heard one

day of testimony from consumers, providers, family members, and researchers. NIDRR also

awarded the Matrix Research Institute a $400,000

per-year grant, for 4 years, for support of a Rehabilitation Research and Training Center on Long

Term Mental Illness.

The U.S. Congress has assigned NIDRR with

considerable responsibilities under the ADA.

Specifically, 15 grantees receive approximately

$5 million in funds from NIDRR to provide information, training, and technical assistance to

businesses and agencies with duties and responsibilities under the ADA. In addition to 10 regional

Disability and Business Technical Assistance

Centers, two National Peer Training Projects provide education about the ADA: One project targets staff, associates, and volunteers at independent living centers, and the other targets

individuals with disabilities and their family

members. Three materials development projects

develop and test technical assistance, training materials, and programs for use by the Technical Assistance Centers and the Peer Training Projects.

While these ADA-technical assistance activities

include information on psychiatric disabilities, in

general, they have had but little impact on consumers and employers (box 5-2). Recognizing

that more technical assistance is still needed,

NIDRR recently provided $120,000 for each of 3

years for a resource center on psychiatric disabilities organized and coordinated by the Washington

Business Group on Health (WBGH), a nonprofit

membership organization of employers. The purpose of the center is to provide information and

technical assistance to employers, advocates, service providers, unions, and others to assist in

achieving voluntary compliance with Title I of the

ADA. Among the project goals are: The creation

of widespread awareness among employers about

their responsibilities under the ADA; the establishment of a WBGH/ADA Resource Center consisting of a database of effective employer policies, “best practices” and resource individuals

and materials; the provision of information and

technical assistance; the production and wide dissemination of a series of ADA mental health information briefs; and the production of an employer’s guide to accommodating individuals

with mental disabilities in the workplace.

CENTER FOR MENTAL HEALTH

SERVICES

Public Law 102-321 created a new Center for

Mental Health Services within the Substance

Abuse and Mental Health Services Administration (SAMHSA) of the Public Health Service, Department of Health and Human Services

(DHHS). 8 The CMHS is the Federal Government’s leading administrator of funds devoted

specifically to mental health services. The largest

portion of its budget—$278 million of a total of

$385 million in fiscal year 1993—funds mental

health block grants, the categorical Federal support of community mental health and social service programs (table 5-2) (28).9

8 ~ort{) ~to~r ]992, CMHS and NIMH were hth part of NIMH.

9 It is relevant to note that P.L. 102-321 identifies service providers other than Community Mental Health Centers, including psychosocial

rehabilitation agencies, as potential block grant fund recipients.
Chapter 5 Relevant Federal Agencies’ Activities 107

The National Institute on Disability and Rehabilitation Research (N IDRR) has funded 10 regional Disability and Business Technical Assistance Centers—DBTACs—since 1992, The 10 DBTACs represent one of

the Federal Government’s principle sources of ADA technical assistance. They aim at providing employers,

people with disabilities, and others with responsibilities under the ADA with information, training, technical

assistance, and referrals to local sources of ADA information and expertise These centers currently are

funded with 5-year grants, but NIDRR’s aim is to develop a system whereby the regional centers eventually

will be regarded as State and local resources and affiliated with State and local governments For this reason, the DBTACs are encouraged to establish relationships with State and local agencies throughout their

regions

To help identify needs and coordinate activities, the DBTACs have organized regional, Stater and local

advisory committees made up of representatives from small and large businesses, State and local service

providers, citizens with all types of disabilities and their family members, and disability support and advocacy groups To reach as many people with an interest in the ADA as possible, the DBTACs are developing

mailing lists of people with disabilities; employers; personnel and recruitment agencies, business groups

such as chambers of commerce, small business associations, better business bureaus, minority business

associations, and others; State and local government agencies; disability advocacy groups, and service

providers The mailing lists are used for direct-mail campaigns to draw attention to the provisions of the ADA

and the DBTACs resources, and to generate information for data bases and reference guides on local

sources of ADA information and expertise. Each of the DBTACs provides a toll-free technical assistance hot

line for information and referrals. Also, the DBTACs provide training sessions, including regional conferences, and State and local workshops, and presentations.

Several DBTACs have focused to some extent on psychiatric disabilities Their advisory committees and

mailing lists include individuals with psychiatric disabilities and advocacy/consumer groups representing

this constituency. One DBTAC in Washington State helped to craft language for the 1993 State Civil Rights

Act barring discrimination in employment for people with mental disabilities, and helped to develop training

about workplace accommodations for people with psychiatric disabilities Another DBTAC is working cooperatively with IBM to develop a self-paced software program about Title I of the ADA with situational examples that will include accommodating people with psychiatric disabilities in the work place The Northeast

DBTAC in Trenton, New Jersey is developing a televised panel discussion, “Making the ADA Work Reasonably Accommodating People with Mental Illness, ” which features a successful employee with a psychiatric

illness, an employment specialist, and an employer, The Southwest DBTAC is working with the Texas Rehabilitation Commission to develop a model training program on the ADA and people with psychiatric disabilities

Technical assistance hotline requests concerning psychiatric disabilities generally form only a small

percentage of total requests, however. This suggests that employers and the general public do not yet see

the ADA as being related to psychiatric disabilities or they do not see the DBTACs as providing such information The majority of those requests for information are from individuals with psychiatric disabilities or

their employers, followed by mental health agencies, therapists, and rehabilitation counselors People with

psychiatric disabilities typically ask how to approach employers about an accommodation, whether it is

necessary to document psychiatric disability, how such documentation is used, and the procedure for deciding an appropriate and reasonable accommodation. Employers usually ask whether they can request

documentation of a psychiatric disability, what types of accommodation are appropriate, and how to determine the existence of a direct threat.

SOURCE Off Ice of Technology Assessment, 1994
108 I Psychiatric Disabilities, Employment, and the Americans With Disabilities Act

Amount

Program (In $1,000)

Demonstrations

Community Support Program (CSP)

Child and Adolescent Service

System Program (CASSP)

Homeless

Prevention

Subtotal, Demonstrations

Mental health services for children

Clinical training

AIDS training

Protection and advocacy

Projects for Assistance in Transition

from Homelessness (PATH)

Mental health block grant

Total, CMHS

Total full-time staff

$12,201

12,201

21,419

—

$45,821

$4,903

2,956

2,987

20,832

29,462

277,919

$384,880

142

NOTE: Excludes funding for program management. The fiscal

year 1993 appropriation enacted by Congress consolidated

funding for each of the centers and the office of the administrator into a single line Item entitled program management.

SOURCE: Center for Mental Health Services, 1993.

Although employment is not a top priority for

CMHS, several programs and activities sponsored by the CMHS touch on the issue. Perhaps

most significant are those efforts undertaken by

the Community Support Program (CSP). CSP

was created in 1977 for people with severe psychiatric disabilities, not institutionalized, but rather living in communities (14). Under this program, States receive funds for community

services, including psychiatric and general medical care, housing, social supports, and case management services. Lauded by many as an innovator and stimulus for much needed services,l0 CSP

has supported a few activities relevant to employment and the ADA. Of the 26 research demonstration projects it funds, 6 focus on vocational rehabilitation and other employment-related services,

including supported education. The total amount

dedicated to these projects is $7 million over 3

years; in fiscal year 1993, costs totaled $802,000.

As mentioned in the previous section, the

CMHS, through CSP, cofunds with NIDRR two

national rehabilitation research and training centers, at Boston University and Thresholds National Research and Training Center in Chicago, Illinois. These centers conduct research, disseminate

knowledge and information, and provide technical assistance on service approaches to increase

employment opportunities and successes for this

population. The CMHS provides approximately

$600,000 each year to support the centers.

CSP is a leader in Federal support for the psychiatric consumer movement (see ch. 2). 11 Thirteen 3-year consumer-operated service demonstration projects, totaling approximately $4

million, recently completed their Federal funding

period. Through a small contract ($18,000), the

program results are being analyzed and synthesized. The report, available in 1994, will provide

information on the supervision needs, problems

encountered, and accommodations used by consumers employed by these projects. Also, CSP

provides $700,000 per year to two national consumer self-help centers: Project Share in Philadelphia, Pennsylvania, and the National Empowerment Center in Lawrence, Massachusetts. Each

center conducts some technical assistance activities related to employment and reasonable accommodations (28). For example, the National Empowerment Center conducted a national

teleconference with consumers and consumer organizations in approximately 30 States to educate

them on the ADA and to discuss how to ask for

reasonable accommodations. Project Share conducted training for the business community on

hiring people with psychiatric disabilities.

10 me greatest impact of the CSP is n{~t so much to bring about or fund widespread development of comprehensive community-based

services, but rather to create a conceptual framework for the services provided to people with severe mental disorders in the community (29).

i I ~i]e supP)ti ~)f the C{)nsumr movement general]y is considered an important function of CSP, a recent report of the Inspector General

of the U.S. Department of Health and Human Services notes complaints that the support may be skewed toward certain sectors of the movement and thus may not be representative (29).
Chapter 5 Relevant Federal Agencies’ Activities 109

Approximately 20 percent of the efforts of both

centers are directed toward employment issues.

CSP has supported some ADA-related activities, although significant funding has not been devoted to this subject. CSP produced a special issue

of “Community Support Services Network

News” in December of 1991 that focused on the

ADA’s provisions (3). Also, a 1992 survey of CSP

participants provided information about the kinds

of accommodations that may be useful to people

with psychiatric disabilities (28). Earlier this year,

an in-house training session, in which outside experts were invited to talk to CSP and other CMHS

staff, was devoted to the ADA. And CSP contracted with a rehabilitation/ADA expert consultant to conduct case studies on reasonable accommodations and prepare a technical assistance

document (12).

The program for the Protection and Advocacy

for Individuals with Mental Illness (PAIMI), administered by CMHS, was signed into law in 1986

(P.L. 99-319) and reauthorized and amended in

1988 and 1991. Annual formula grant allotments

are made to existing Protection and Advocacy

(P&A) Systems that were previously designated

by the Governor in each State to protect and advocate for the rights of persons with developmental

disabilities under the Developmental Disabilities

Assistance and Bill of Rights Act (P.L. 94-103, as

amended, 42 USC 6012). In fiscal year 1993,

CMHS allocated nearly $21 million in funds to

P&As. These PAIMI programs engage in administrative, legal, systemic, and legislative activities

to protect and advocate for the rights of individuals who have a significant mental illness or emotional impairment and are inpatients or residents

in public or private residential facilities or have

been within the last 90 days, and specifically, to

investigate incidents of abuse and neglect.

While employment issues are not a major priority, PAIMI programs have both received and provided training on issues concerning the ADA and

psychiatric disabilities (15). Based on an April

1993 survey conducted by the National Association of Protection and Advocacy Systems (NAPAS) to which nearly 50 percent of the P&As responded, most reported having received some

form of training about the ADA.

OTA’s analysis indicates that the CMHS has

supported some activities related to employment,

the ADA, and psychiatric disabilities. With its focus on community services and consumer participation, the CMHS could play a more useful role

in research and service provision, and especially

technical assistance. Indeed, among the strongest

conclusions of the DHHS Inspector General report was the need for the CMHS to increase and

improve its technical assistance (29). However,

support for activities concerning the ADA and

employment can be characterized as very modest

to date, with approximately $1.5 million dollars-1.4 percent of the non-block grant budget—spent in fiscal year 1993. Various factors

likely contribute to the limited support for employment and ADA-related issues. First, because

the ADA is a relatively new statute, many Federal

and non-Federal researchers and policy makers

have yet to become actively engaged in this issue.

Furthermore, employment is not a priority at the

CMHS. No office, budget line, or specific legislative language addresses this topic. Funding is also

an issue. In the last fiscal year, funding for programs under the CMHS declined by 6 percent,

which translated into cuts for all but two of the

CMHS’s existing programs. This decrease in

funding follows a decrease in purchasing power in

the area of services (excluding the block grant program) of 1.1 percent per year between 1980 and

1992 (23). It is important to note, however, that

services purchasing power increased an average of

13.4 percent per year since 1986. Finally, the development of new programs and priorities have

likely been stalled by the reorganization of the

CMHS in 1993.

NATIONAL INSTITUTE OF

MENTAL HEALTH

NIMH is the nation’s top supporter of mental

disorders research (box 5-3). Recently reunited

with the National Institutes of Health by Public

Law 102-321, the vast majority of NIMH’s fund-
110 I Psychiatric Disabilities, Employment, and the Americans With Disabilities Act

The Occupational Safety and Health Act of 1970, which pledged “safe and healthful working conditions

for working men and women. ..“ created the National Institute for Occupational Safety and Health (NIOSH),

NIOSH, part of the United States Centers for Disease Control and Prevention (CDC) in the Department of

Health and Human Services (DHHS), is the Federal institute charged with conducting research and making

recommendations for the prevention of work-related diseases and injuries. Its responsibilities, supported

by $108 million in fiscal year 1993, include: conducting research and developing methods for evaluating

work place hazards; responding to employer and employee requests to investigate possible hazardous

working conditions; recommending methods for preventing occupational disease, injury, and disability to

the Occupational Safety and Health Administration (OSHA), the Mine Health and Safety Administration

(MSHA), industry, and employee organizations; and providing education and training to prepare individuals

for careers in the field of occupational safety and health.

Eight current in-house and three extramural research projects related to psychological disorders include

studies in various work environments on the relationship between work practices and organizational factors

(leadership, communication style, etc.), stressors, performance, and health effects. Total funding for these

stress related activities equals $786,962, 0.73 percent of NIOSH’s total budget. Other stress-related activities include two American Psychological Association—NIOSH national meetings on stress and the work

place; an analysis of data on the relationship between suicide and different occupations; and the development of an improved questionnaire for assessing job stress and strain. Nothing in NIOSH’s current research

portfolio addresses the relationship between work and disabilities in general, psychiatric disabilities specifically, or the ADA. However, the Senate Report “Departments of Labor, Health and Human Services, and

Education and Related Agencies Appropriations Bill 1993” (Report 102-397) requested that NIOSH provide

recommendations to the Senate Appropriations Committee on the ADA. In response to this request, NIOSH

responded that with “appropriate and additional resources and staff ,“ the agency could best address the

ADA by focusing on the health and safety implications of employing people with disabilities,

SOURCE National Institute for Occupational Safety and Health, 1993

ing-more than 70 percent of its budget in fiscal

year 1991—goes to basic biomedical and behavioral research and clinical studies (23). Services

research is also part of NIMH’s mandate, with the

Services Research Branch in the Division of Epidemiology and Services Research forming the focal point for support of investigator-initiated research on mental health services. To underscore the

need for services research, the U.S. Congress mandated that 12 percent of the NIMH budget be dedicated to mental health services in fiscal year 1993,

and 15 percent in subsequent years. Recently,

NIMH published a plan for services research: Caring for People With Severe Mental Disorders: A National Plan of Research to Improve Services (27).

As part of its services research portfolio, NIMH

supports studies of disabilities and employment

(box 5-4). However, relative to the institute’s

overall budget, little money is spent on this area.

OTA requested that NIMH specifically delineate

its support for research on: 1 ) general disability

and psychiatric disability, including its characterization, assessment and measurement; 2) vocational rehabilitation, employment issues in general, and the ADA specifically; and 3) public

attitudes attached to mental disorders. NIMH provided a list of 32 grants, totaling $9.3 million in

fiscal year 1992, 1.5 percent of NIMH’s total research budget (26). Of these 32 awards, 7 grants,

receiving $3.3 million in fiscal year 1992, focused
Chapter 5 Relevant Federal Agencies’ Activities 111

In addition to its support for rehabilitation services and employment research, the National Institute of

Mental Health (NIMH) has been working with the business community to promote mental health and combat

depression in the work place Organized as a public/private partnership, the DEPRESSION Awareness,

Recognition, and Treatment (D/ART) program is a national public and professional education campaign

aimed at reducing the prevalence of depressive disorders. The D/ART National Worksite Program is the first

to address a specific mental disorder in the workplace. A little more than $100,000, 10,6 percent of the total

D/ART budget, was spent on the Worksite Program in fiscal year 1993. Initial activities began in 1989 as a

collaborative effort with the Washington Business Group on Health (WBGH). The goals of the work site program, which harmonize with the ADA’s mandate include: informing employers about depression and its impact on costs, productivity, employees and their families; initiating multifaceted and integrated approaches

to managing depression at the work site; assisting employers in implementing depression-related activities

in their companies; and, disseminating employers’ experience among other major U.S companies.

Advised by members of the Corporate Leadership Council (CLC)-an employer advisory group composed of human resource and health management professionals from more than 15 Fortune 500 companies—NIMH and WBGH staff developed a six-part comprehensive approach for managing depression in the

work place Employee education about symptoms and treatment of depression, management training to

identify employees whose work may be affected by depression; employee assistance services for on-thejob support for employees experiencing depression, proper benefit design and management, and data

collection and analysis on prevalence, cost, treatment outcomes and attitudes about depression, and the

integration of health programs

D/ART has produced a slide presentation for businesses that describes its “Management of Depression” approach In addition, D/ART publishes posters and informational brochures targeted to employees

and their families, management personnel, and employers. The publications have been distributed to Fortune 500 employers, business coalitions, and national business, employee assistance, wellness programs,

and human resource management organizations. Currently, members of NIMH, WBGH, and the CLC are

developing a program to educate employee assistance professionals about depression so that they can

perform roles in education, management training, crisis intervention, recognition and appropriate referral,

case management, and on-the-job support.

Recently, some D/ART Community Partners also have begun to provide work site education programs

about depression Located in 23 States and the District of Columbia, Community Partners are networks of

community mental health groups coordinated under the leadership of a single nonprofit mental health

agency, usually a local affiliate of the National Mental Health Association, or the National Alliance for the

Mentally Ill, Most of the Community Partners receive around $3,500 a year in NIMH funding to conduct D/

ART programs, During the spring of 1993, OTA interviewed 23 of the 32 Community Partners. Fifteen of the

23 groups Indicated that they-albeit infrequently-conducted work site programs about depression Of

those 15, six—in Indiana, Missouri, New Jersey, Ohio, Oklahoma, and Virginia-explained that work site

education activities had been infrequent because they chose to concentrate on other aspects of D/ART’s

public education campaign. What is particularly significant is that the remaining nine—in Alabama, California, Colorado, Georgia, Maryland, Texas and Utah—said that employers generally were not interested in

workplace discussions about mental illness. Many of the partners found that companies may avoid discussions about “AIDS, alcohol, and mental illness—for fear they may offend or make people uncomfortable. ” In

addition to the issue of stigma, some D/ART Community Partners have found employers reluctant to use the

D/ART program because they are concerned that the demand for services will exceed the supply of affordable resources, treatment of depression will be a costly drain on medical insurance benefits, or acknowledging that depression exists in the work place will expose employers to workers’ compensation suits

(continued)
112 I Psychiatric Disabilities, Employment, and the Americans With Disabilities Act

On the other hand, eight of the Community Partners—in California, Florida, Kansas, New York, North

Dakota and Virginia-conducted work site depression education programs frequently and found them to

be well received by employers and employees, Many groups combine D/ART educational materials with

those of other organizations, such as the National Mental Health Association, the United Way, and the Wellness Councils of America. At least one, in California, conducts programs for employers about the ADA and

reasonable accommodations for people with psychiatric disabilities. These groups generally report an increase in calls requesting additional information about depression after presentation of work site programs.

While some groups found that working through a company’s employee assistance program (EAP) is an effective way to establish a presence in the workplace, others—in Alabama, California, Texas, Utah, and Washington—note that in some companies EAPs are: A bureaucratic response to employees’ problems; typically deal with short term, situational problems; do not have sufficient personnel; carry out certain designated duties and are not innovative enough to expand their role to educate people about mental illness.

Several of the groups asserted that the success or failure of a work site education program depended on the

support it received from CEOs and other company officials.

SOURCE: Off Ice of Technology Assessment, 1994.

specifically on psychiatric disability and voca- types and combinations of psychosocial and vocational rehabilitation.

In addition, NIMH is seeking to increase its research portfolio in this area. In 1993, it awarded

a contract to two new researchers in mental disorder-based disability and funded a new grant. The

contract examines disability data collected in the

Baltimore site of the Epidemiologic Catchment

Area (ECA) study (see ch. 3). Its objective is to

provide national estimates of disability due to

mental disorders as well as some information to be

used in developing estimates of benefits for health

care reform. The grant examines the extent to

which job requirements and health status affect

the age specific probabilities of work disability or

retirement of persons with severe mental disorders.

NIMH’s National Plan also specifically identified the need for research to assist in implementing the ADA. A program announcement, Research on Disabilities and Rehabilitation

Services for People with Severe Mental Disorders,

has been active since 1991 and will remain so

through July 1994, when NIMH plans to revise

and update it. This request for grant applications

encourages research on the characterization and

classification of disabilities; the assessment of

tional rehabilitation; vocational incentives and

disincentives; various environmental factors that

affect disability and rehabilitation, including

community and employer attitudes and structure

and accommodation of work settings; and implementation and effects of the ADA.

Few researchers applied under the program announcement. Based on conversation with several

researchers and individuals at the NIMH, OTA

found that several factors probably contribute to

the lack of interest. First, the program announcement was the first time NIMH announced it was

funding research on disabilities due to mental disorders; in general, it takes about a decade to create

a full program of research (26). Secondly, several

people in the vocational rehabilitation field stress

that the review committees at NIMH, with their

expertise and preference for randomized research

designs typical of biomedical research, do not respond favorably to the types of studies needed on

the issues of the ADA and employment (e.g., longitudinal, survey designs). To stimulate research

in this area, NIMH held two workshops. The first

focused on the state-of-the-art in disabilities and

rehabilitation services research. The second was

designed to assist new investigators (or those new
Chapter 5 Relevant Federal Agencies’ Activities 113

to NIMH research funding) to develop research

proposals that would be acceptable to NIMH. In

a separate one-day session, the NIMH convened

experts in physical disability research to discuss

the state-of-the-art in research instrumentation

and methodologies for possible use in research on

disabilities due to mental disorders.

PRESIDENT’S COMMITTEE ON THE

EMPLOYMENT OF PEOPLE WITH

DISABILITIES

The goal of the President’s Committee in the

U.S. Department of Labor is to develop employment opportunities for people with disabilities.

Created by President Eisenhower in 1955, the

President’s Committee has an annual budget of

$4.0 million and works with approximately 600

individuals (32). They include employers, training and rehabilitation specialists, educators, labor

leaders, veterans organizations, medical and

health professionals, service organizations, community leaders, as well as people with disabilities

and their organizations and advocates.

The ADA has been a cause celebre of the President’s Committee. Before the statute’s passage,

the President’s Committee helped to organize nationwide hearings on disability and discrimination. Justin Dart, Jr., the former chair, headed the

63 public forums of the Task Force on the Rights

and Empowerment of Americans with Disabilities. The testimony at these hearings provided key

“data” on this type of discrimination and helped

to propel the ADA’s passage. As recounted by Mr.

Dart at a congressional hearing:

Although America has recorded great progress in the area of disability during the past few

decades, our society is still infected by the ancient, now almost subconscious assumption that

people with disabilities are less than fully eligible for the opportunities, services, and support

systems which are available to other people as a

matter of right. The result is massive, societywide discrimination.

Since the ADA’s passage, the President’s Committee has maintained its support for this statute

by organizing an ADA employment summit on

December 2, 1992 and conducting a series of teleconferences across 50 States to review ADA implementation.

Recently, the President’s Committee has paid

more attention to psychiatric disabilities by focusing on their negative images and perceptions. To

help fight the pervasive stigma and discrimination, the President’s Committee has organized a

“Coalition Against the Discrimination of People

with Psychiatric Disabilities” (CADPPD). Building on a 1992 summit of 42 national leaders and

organizations concerned with media images of

mental illness, CADPPD’s goals have broadened,

as reflected in their mission statement:

People with psychiatric disabilities must possess the same inalienable rights and responsibilities as all other human beings. The mission of

the Coalition is to eliminate discrimination

against people with psychiatric disabilities. The

purpose of the Coalition is to serve as a forum to

share information, discuss policies and opportunities, and to encourage cooperative action to

achieve common goals.

CADPPD work groups are developing language

guidelines and position papers on such issues as

civil rights, and it has prepared a list of workplace

accommodations. The coalition includes a diverse

membership, representing such groups as the National Alliance for the Mentally Ill, the National

Association of Psychiatric Survivors, the National Mental Health Consumers’ Association, as well

as professional associations.

The Job Accommodation Network (JAN), located on the Morgan town campus of West Virginia University, provides one of the most practical

services available from the President’s Committee. With an annual budget of less than $1 million

($825,378) in fiscal year 1993 and a staff of 15,

JAN provides information and referrals to employers, rehabilitation and social service counselors, and people with disabilities on workplace accommodations. Receiving approximately 4,500

inquiries each month, JAN represents one of the

most comprehensive source of information concerning job accommodations currently supplied

by the Federal Government. Just a few years ago
114 I Psychiatric Disabilities, Employment, and the Americans With Disabilities Act

JAN answered very few calls concerning psychiatric disabilities (10). Today, 5 percent of the

4,500 calls each month focus on these conditions.

Prior to the ADA’s passage, about 60 percent of

calls about psychiatric disabilities came from

people with such conditions or their families.

Since the President signed the ADA, however,

only 19 percent of the increasing volume of calls

come from these individuals, while 41 percent

come from businesses. In addition, 20 percent

come from health care facilities, 11 percent from

educational institutions, and 9 percent from counselors and other service providers (9). Although

JAN has not amassed a great deal of in-house expertise on accommodating people with psychiatric disabilities (11 ), it has developed a list of mental health services that may provide useful

information to employers and others.

SUMMARY AND CONCLUSIONS

The Federal Government has a prominent role

to play in the ADA’s implementation. Besides the

law requiring Federal enforcement, technical assistance and research are needed to guide and inform implementation. This chapter surveyed Federal activities relevant to Title I of the ADA and

people with psychiatric disabilities.

The ADA requires the EEOC to enforce Title I

and calls for the Commission to issue guidelines

and regulations, and to provide technical assistance. Despite the considerable amount of technical assistance activity supported by the Commission, little discussion of psychiatric disabilities

has occurred. OTA’s inquiry of EEOC field offices

determined that EEOC investigators consider

themselves in need of more information on psychiatric disabilities. While the EEOC has not

traditionally focused on a particular class or type

of disability, the lack of knowledge about mental

disorders and associated disabilities, even among

EEOC investigators, and the complex questions

that can be raised by these conditions argue for

specific attention. Given current staffing and budgetary constraints, it appears unlikely, however,

that the Commission will address this area.

In addition to the EEOC, several other Federal

agencies—NIDRR, CMHS, NIMH, and the President Committee—have supported some technical assistance efforts concerning psychiatric disabilities, employment, and the ADA. This

assistance has targeted employers and people with

psychiatric disabilities. Continued efforts are necessary, as ignorance of these conditions and the

law itself apparently abound. Collaboration

among the mental health/disability research funding agencies and the EEOC may help assure continued and expert technical assistance in today’s

constrained budgetary environment.

Research is the final category of Federal activity important for ADA implementation and

people with psychiatric disabilities. Federal

money spent on disability research is historically

small, in comparison to the overall expenditures

on health research. The research dollars devoted

to psychiatric disability and employment fit this

same pattern. The leading Federal funders of disability and mental health research—NIDRR,

NIMH, CMHS—spend approximately 1.3 percent of their annual budgets on research and technical assistance combined—less than $15 million

last year. However, all three of these agencies have

recently increased their commitment to psychiatric disabilities and employment research. The

challenge will be sustaining and increasing attention to this topic, in order to generate the types of

information necessary to effect optimal ADA implementation and employment for people with

psychiatric disabilities. As the different researchfunding agencies have distinct missions and cultures, a further challenge will be to develop relevant and appropriate research portfolios: relevant

to the real world needs of employers and people

with psychiatric disabilities and appropriate to a

particular agency’s mission. Collaboration and

coordination of interagency research funding

could help in identifying the relevant and appropriate activities in the most efficient way possible. While mechanisms for communicating

across agencies have or do exist, they lie moribund at the present time.
Chapter 5 Relevant Federal Agencies’ Activities 115

1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

11.

12.

Bell, C. G., Attorney, Jackson, Lewis, Schnitzler and Krupman, Washington, DC, personal

communication, Jan. 13, 1993.

Buck Consultants, Inc., survey findings presented at “Sixth Annual National Disability

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Washington, DC, Oct. 26-27, 1992.

Center for Psychiatric Rehabilitation, Boston

University, “Focus: The Americans With

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Psychiatric Rehabilitation, December 1991 ).

Council of Economic Advisers, Economic

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Gallup Organization, Inc., “Baseline Study to

Determine Business’ Attitudes, Awareness

and Reaction to the Americans with Disabilities Act,” (Washington, DC: Electronic Industries Foundation, February 1992).

Harris, Louis and Associates, Attitudes of

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(New York, NY: Louis Harris and Associates,

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31-35, October/November/December 1991.

Judy, B. T., Director, Job Accommodation

Network, West Virginia University, Morgantown, WV, personal communication, Apr. 21,

1993.

Mancuso, L. L., “The ADA and Employment

Accommodations: What Now?” American

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Consumers in the Workplace: How the Americans With Disabilities Act Protects You

Against Employment Discrimination (Washington, DC: 1992).

Mulkem, V. M., and Manderscheid, R. W.,

“Characteristics of Community Support Program Clients in 1980 and 1984,’’HospitaZand

Community Psychiatry 40: 165-172, 1989.

National Association of Protection and Advocacy Systems (NAPAS), Washington, DC,

personal communication (ADA survey),

April 1993.

National Council on Disability, A DA

Watch—Year One: A Report to the President

and the Congress on Progress in Implementing the Americans With Disabilities Act

(Washington, DC: Apr. 5, 1993).

National Foundation for Brain Research, The

Costs of Disorders of the Brain (Washington,

DC: 1992).

Rice, D.P., Kelman, S., Miller, L.S. et al., The

Economic Costs of Alcohol and Drug Abuse

and Mental Illness: 198S (San Francisco, CA:

Institute for Health and Aging, University of

California, 1990).

Rubenstein, L. S., “Implementation of the

ADA on Behalf of People With Psychiatric

Disabilities: The First Two Years,” in preparation.

Solomon, M.L., “Is the ADA ‘Accessible’ To

People With Psychiatric Disabilities?” Journal of Rehabilitation Administration, August:lo9-1 17, 1993.

Tucker, B. P., “Section 504 of the Rehabilitation Act After Ten Years of Enforcement: The

Past and the Future,” University of Illinois

Law Review 4:845-921, 1989.

U.S. Congress, OffIce of Technology Assessment, Technology and Handicapped People,

OTA-H-179 (Washington, DC: U.S. Government Printing Office, 1982).
— —

116 I Psychiatric Disabilities, Employment, and the Americans With Disabilities Act

23.

24.

25.

26.

27.

U.S. Congress, Office of Technology Assessment, The Biology ofMental Disorders, OTABA-538 (Washington, DC: U.S. Government

Printing Ofilce, September 1992).

U.S. Congress, Office of Technology Assessment, “Americans With Disabilities Act,

Mental Illness, and Employment,” OTA

workshop, Apr. 21, 1993.

U.S. Department of Education, National

Institute on Disability and Rehabilitation Research, William E. McLaughlin, Acting Director, personal communication, September

1993.

U.S. Department of Health and Human Services, Public Health Service, National Institutes of Health, National Institute of Mental

Health, Rockville, MD, Frederick K. Goodwin, Director, personal communication,

July 27, 1993.

U.S. Department of Health and Human Services, Public Health Service, National Institute of Mental Health, Caring for People with

Severe Mental Disorders: A National Plan of

Research to Improve Services DHHS Publication No. (ADM) 91-1762 (Washington, DC:

Superintendent of Documents, U.S. Government Printing Office, 1991).

28.

29.

30.

31.

32.

33.

U.S. Department of Health and Human Services, Public Health Service, Substance

Abuse and Mental Health Services Administration, Center for Mental Health Services,

Rockville, MD, personal communication,

1993.

U.S. Department of Health and Human Services, OffIce of Inspector General, Revitalizing the Community Support Program,

June 1993.

U.S. Equal Employment Opportunity Commission, A Technical Assistance Manual on

the Employment Provisions (7We I) of the

Americans With Disabilities Act (Washington, DC: U.S. Government Printing Office,

1992).

U.S. Equal Employment Opportunity Commission, Washington, DC, staff communication, Mar. 18, 1993.

U.S. Department of Labor, The President’s

Committee on Employment of People With

Disabilities, Washington, DC, personal communication, September 1993.

Zuckerman, D., Debenham, K., and Moore,

K., The ADA and People With Mental Illness:

A Resource Manual For Employers (Washington, DC: American Bar Association and

Alexandria, VA: National Mental Health

Association, 1993).
Appendix 5A:

Survey of EEOC

Field Offices About

Psychiatric Disabilities

and the ADA 5A

AL

AZ

CA

co

DC

FL

GA

HI

Birmingham (DO)

Phoenix (DO)

Los Angeles (DO)

San Francisco (LO)

San Jose (LO)

Fresno (LO)

Oakland (LO)

Denver (DO)

Washington (FO)

Miami (DO)

Tampa (AO)

Atlanta (DO)

Savannah (LO)

Honolulu (LO)

IL

IN

KY

LA

MA

MD

MI

MN

MO

NC

NJ

NM

NY

Chicago (DO) OH

Indianapolis (DO)

Louisville (AO) PA

New Orleans (DO)

Boston (AO) TN

Baltimore (DO)

Detroit (DO) TX

Minneapolis (LO)

St Louis (DO)

Charlotte (DO) VA

Newark (AO)

Albuquerque (AO) WA

New York City (DO) WI

Cincinnati (AO)

Cleveland (DO)

Philadelphia (DO)

Pittsburgh (AO)

Memphis (DO)

Nashville (AO)

Dallas (DO)

Houston (DO)

San Antonio (DO)

Norfolk (AO)

Richmond (AO)

Seattle (DO)

Milwaukee (DO)

(FO=Field Office, DO=District Office, AO=Area Office, LO=Local Office)
118 I Psychiatric Disabilities, Employment, and the Americans With Disabilities Act

(1)

(2)

(3)

(4)

(5)

What formal information, training, or

assistance do EEOC field office

investigators receive about mental illness?

What formal information, training, or

assistance do EEOC field office

investigators receive about how the

ADA’s provisions will specifically affect

employment for people with psychiatric

disabilities?

Have field office staff received formal or

informal assistance from sources other

than the EEOC, e.g., local experts on

mental illness and psychiatric disabilities

such as care providers, Federal, State, or

local government agencies (State Mental

Health Agency, Community Mental

Health Center, Vocational Rehabilitation

Agency), representatives of professional

or consumer groups (mental health

professional associations, Alliance for the

Mentally III, researchers at universities),

others?

If field office staff receive formal or

informal assistance from other sources,

does it come in the way of a seminar?

provision of materials? intermittent

contact when specific cases or questions

arise? or by other means?

Would further training, information, or

assistance on mental illness and

psychiatric disabilities be useful? If so,

what types would be useful?

Investigators at 9 field offices indicated they had not

yet received any information, training or assistance

about mental illness; 15 said mental disabilities were

briefly mentioned in ADA training sessions they had

attended; 16 had received small amounts of training

or assistance about mental illness: some viewed a

videotaped training session, some participated in

training sessions conducted by mental health care

providers or advocacy groups in their communities,

and some did both.

Nearly all investigators have attended ADA training

sessions and/or conferences that discussed ADA provisions. A single example of how this law might

affect employment for people with psychiatric disabilities was provided.

Fifteen of the field offices have received information

and assistance from representatives of State vocational rehabilitation offices, mental health advocacy

groups, NIDRR’s regional Disability and Business

Technical Assistance Centers, Mental Health

Associations, Independent Living Resource Centers,

the Thresholds National Research and Training Center, in Chicago, Illinois, and the National Association of State Mental Health Program Directors,

Washington, DC.

Information and assistance from sources other than

the EEOC come in seminars, training sessions, meetings, brown–bag lunches, intermittent contact when

a need arises, and written materials.

All of the respondents indicated that further information, training, and assistance would be useful in

areas such as sensitivity training, information on

specific mental illnesses, work disabilities associated

with them, and appropriate accommodations.
Appendix A:

Workshop

Participants A

Americans With Disabilities Act, Mental Illness, and Employment

April 21,1993

Mary Jane England, Workshop

Chair

Washington Business Group on

Health

Washington, DC

Sheila Akabas

The Columbia University School

of Social Work

New York, NY

Mary Ann Bean

Virginia Mental Health

Consumers’ Association

Richmond, VA

Christopher G. Bell

Jackson, Lewis, Schnitzler &

Krupman

Washington, DC

Joseph Bevilacqua

South Carolina Department of

Mental Health

Columbia, SC

Richard Bonnie

University of Virginia

School of Law

Charlottesville, VA

Judith A. Cook

Thresholds National Research

and Training Center

Chicago, IL

Karen Danley

Center for Psychiatric

Rehabilitation

Boston, MA

Rick Douglas

President’s Committee on

Employment of People

With Disabilities

Washington, DC

Donald E. Galvin

Washington Business Group

on Health

Washington, DC

Veronica V. Goff

Washington Business Group

on Health

Washington, DC

Emily Hoffman

Washington, DC

Ron Honberg

National Alliance for the

Mentally III

Arlington, VA

Barbara T. Judy

West Virginia University Job

Accommodation Network

Morgantown, WV

Cille Kennedy

National Institute of Mental

Health

Rockville, MD

 119
120 I Psychiatric Disabilities, Employment, and the Americans With Disabilities Act

Alan Leshner

National Institute of Mental

Health

Rockville, MD

Irene Levine

Center for Mental Health

Services

Rockville, MD

Robert P. Liberman

University of California, Los

Angeles

Los Angeles, CA

Laura L. Mancuso

Formerly, National Association

of State Mental Health

Program Directors

Goleta, CA

Peggy Mastroianni

U.S. Equal Employment

Opportunity Commission

Washington, DC

William E. McLaughlin

National Institute on Disability

and Rehabilitation Research

Washington, DC

Jim Mintz

University of California, Los

Angeles

Los Angeles, CA

John Monahan

University of Virginia School

of Law

Charlottesville, VA

Joseph Rogers

National Mental Health

Consumers Self-Help

Clearinghouse

Philadelphia, PA

Leonard S. Rubenstein

Bazelon Center for Mental

Health Law

Washington, DC

James R. Schmidt

Formerly, Fountain House

Oakland, ME

Jane West

Milbank Memorial Fund

Chevy Chase, MD

Note: OTA appreciates and is grateful for the valuable assistance provided by the workshop participants. The workshop participants

do not, however, necessarily approve, disapprove, or endorse this report. OTA assumes full responsibility for the report and the accuracy of its contents.
OTA thanks the many individuals and organizations that generously supplied information for this study

addition, OTA acknowledges the following individuals for their review of drafts of this background paper:

William A. Anthony

Center for Psychiatric

Rehabilitation

Boston, MA

Paul S. Appelbaum

University of Massachusetts

Medical Center

Worcester, MA

Christopher G. Bell

Jackson, Lewis, Schnitzler &

Krupman

Washington, DC

Joseph J. Bevilacqua

South Carolina Department of

Mental Health

Columbia, SC

Gary R. Bond

Indiana University/Purdue

University at Indianapolis

Indianapolis, IN

Richard J. Bonnie

University of Virginia School of

Law

Charlottesville, VA

Edward P. Burke

National Council on Disability

Washington, DC

Wayne J. Camara

American Psychological

Association

Washington, DC

Randee Chafkin

President’s Committee on

Employment of People with

Disabilities

Washington, DC

Judith A. Cook

Thresholds National Research

and Training Center

Chicago, IL

Robert M. Cook-Deegan

Institute of Medicine

Washington, DC

Isabel Davidoff

National Institute of Mental

Health

Rockville, MD

Curtis L. Decker

National Association of

Protection and Advocacy

Systems, Inc.

Washington, DC

Rick Douglas

President Committee on

Employment of People with

Disabilities

Washington, DC

 121
122 I Psychiatric Disabilities, Employment and the Americans With Disabilities Act

Bruce D. Emery

National Association of State

Mental Health Program

Directors

Alexandria, VA

Jonathan D. Ezekiel

Derwood, MD

Veronica V. Goff

Washington Business Group on

Health

Washington, DC

Harriet Hartmann

U.S. Equal Employment

Opportunity Commission

Washington, DC

James T. Havel

Mental Health Policy Resource

Center, Inc.

Washington, DC

Nancy Jones

Library of Congress

Washington, DC

Denise M. Juliano

National Institute of Mental

Health

Rockville, MD

Cille Kennedy

National Institute of Mental

Health

Bethesda, MD

Kathleen Kirchner

Washington Business Group

on Health

Washington, DC

David J. Kleinke

Edison Electric Institute

Washington, DC

Richard Klimoski

Ohio State University

Columbus, OH

Brenda Kunkel

Center for Mental Health

Services

Rockville, MD

Susan Kay Lang

San Francisco, CA

Richard A. Lemen

National Institute for

Occupational Safety and

Health

Atlanta, GA

Irene Levine

Center for Mental Health

Services

Rockville, MD

Robert P. Liberman

University of California, Los

Angeles

Los Angeles, CA

Bruce G. Link

Columbia University

New York, NY

Laura L. Mancuso

Formerly, National Association

of State Mental Health

Program Directors

Goleta, CA

Ronald W. Manderscheid

Center for Mental Health

Services

Rockville, MD

Peggy R. Mastroianni

U.S. Equal Employment

Opportunity Commission

Washington, DC

Kathryn Shane McCarty

American Bar Association

Washington, DC

William E. McLaughlin

National Institute on Disability

and Rehabilitation Research

Washington, DC

Athena McLean

Philadelphia Geriatric Center

Philadelphia, PA

Carol Miaskoff

U.S. Equal Employment

Opportunity Commission

Washington, DC

John Monahan

University of Virgina School of

Law

Charlottesville, VA

John Noble

State University of New York at

Buffalo

Buffalo, NY

Janet O’Keeffe

American Psychological

Association

Washington, DC

Jacqueline Parrish

Center for Mental Health

Services

Rockville, MD

John Parry

American Bar Association

Washington, DC
Harold A. Pincus

American Psychiatric

Association

Washington, DC

Edward E. Potter

McGuiness & Williams

Washington, DC

Darrel Regier

National Institute of Mental

Health

Rockville, MD

Sharon Rennert

U.S. Equal Employment

Opportunity Commission

Washington, DC

Booth M. Ripke

St. Luke’s House, Inc.

Bethesda, MD

Leonard S. Rubenstein

Bazelon Center for Mental

Health Law

Washington, DC

Leslie Scallet

Mental Health Policy Resource

Center

Washington, DC

James R. Schmidt

Formerly, Fountain House

Oakland, ME

Sam Siiverstein

Formerly, National Institute of

Mental Health

Silver Spring, MD

Rae Unzicker

National Association of

Psychiatric Survivors

Sioux Falls, SD

Donald Vereen

National Institute of Mental

Health

Rockville, MD

Appendix B Acknowledgments 123

Ecford Voit

National Institute of Mental

Health

Rockville, MD

Charles J. Wallace

University of California, Los

Angeles

Los Angeles, CA

Jane West

Milbank Memorial Fund

Chevy Chase, MD

Paul Widen

Center for Mental Health

Services

Rockville. MD

Edward H. Yelin

University of California, San

Francisco

San Francisco, CA
Appendix C:

List of

Contractor

c Documents

For this report, the Office of Technology Assessment commissioned two reports on topics related to

psychiatric disability and the Americans With Disabilities Act. The reports are available in a single volume (NTIS PB 94-140902) from the National Technical Information Service (NTIS) in Springfield, VA.

For additional information, call NTIS at (703) 487-4600.

■ Psychological Testing, the ADA, and Mental Illness, K.A. Tanasichuk, and K.A. Kirchner, Washington Business Group on Health, 1993.

● The ADA and Psychiatric Disabilities: Human Resources to Assist in Implementing Title I, B.D.

Emery and L.L. Mancuso, 1993.

These contractor documents were prepared for the OTA assessment entitled Psychiatric Disabilities,

Employment, and the Americans With Disabilities Act. They are being made available because they contain much useful information beyond that used in the OTA report. However, they are not endorsed by

OTA, nor have they been reviewed by the Technology Assessment Board. References to them should cite

the contractor, not OTA, as the author.

124 
ACRONYMS

ADA

ADAA

CADPPD

CLC

CMHS

CPS

CSP

D/ART

DBTAC

DOL

DOT

DSM-III-R

EAP

ECA

EEOC

ERISA

FHA

— Americans With Disabilities

Act

— Anxiety Disorders Association

of America

— Coalition Against the Discrimination of People With Psychiatric Disabilities

— Corporate Leadership Council

— Center for Mental Health

Services

— Current Population Survey

— Community Support Program

— DEPRESSION Awareness,

Recognition, and Treatment

— Disability and Business Technical Assistance Center

— U.S. Department of Labor

— Dictionary of Occupational

Titles

— Diagnostic and Statistical

Manual, third edition, revised

— Employee Assistance Program

— Epidemiologic Catchment Area

— U.S. Equal Employment

Opportunity Commission

— Employee Retirement Income

Security Act of 1974

— Fair Housing Act

Appendix D:

Acronyms and

Glossarv of

Te;ms D

FJA

HUD

ICIDH

IOM

JAN

JIMS

NAMI

NAPAS

NAPS

— Functional Job Analysis

— U.S. Department of Housing

and Urban Development

—International Classification of

Impairments, Disabilities, and

Handicaps

— Institute of Medicine

—Job Accommodation Network

— Job Information Matrix

Systems

— National Alliance for the Mentally Ill

— National Association of Protection and Advocacy Systems

— National Association of Psy -

chiatric Survivors

NASMHPD — National Association of State

Mental Health Program Directors

NCOD — National Council on Disability

NDMDA — National Depressive and Manic-Depressive Association

NHIS — National Health Interview

Survey

NIDRR — National Institute on Disability

and Rehabilitation Research

NIMH — National Institute of Mental

Health

1 2 5
126 I Psychiatric Disabilities, Employment and the Americans With Disabilities Act

NIOSH

NMHCA

OFCCP

PAIMI

PHA

RSA

SAMHSA

SIPP

SSA

SSDI

SSI

UCDI

VR

WBGH

WHO

—National Institute for Occupational Safety and Health

— National Mental Health Consumer Association

— Office of Federal Contract

Compliance Programs

— Protection and Advocacy for

Individuals with Mental Illness

—public housing agency

— Rehabilitation Services Administration

— Substance Abuse and Mental

Health Services Administration

— Survey of Income and Program

Participation

— Social Security Administration

— Social Security Disability Insurance

— Supplemental Security Income

— Uniform Client Data Instrument

— vocational rehabilitation

— Washington Business Group on

Health

— World Health Organization

GLOSSARY OF TERMS

Activities of daily living: Used in various measures of functional limitations, activities of daily living or ADLs are the most basic level of

self-care tasks, which typically include such

activities as feeding oneself, maintaining continence, using the toilet, bathing, dressing, getting in and out of a bed or chair, and getting

around inside the house. See functional limitation.

Bipolar disorder: A severe mood disorder characterized by manic and major depressive episodes, with periods of recovery generally separating the mood swings. Psychosis may be

present during manic episodes. See major depression.

Direct threat: Defined in the ADA as “a significant risk to the health or safety of others that

cannot be eliminated by reasonable accommodation” (42 U.S.C. 121 11). Under the ADA,

employers may include as a qualification standard a requirement that an individual not pose a

direct threat in the work place.

Disability: As defined by the ADA, “with respect

to an individual: (A) a physical or mental impairment that substantially limits one or more

of the major life activities of such individual;

(B) a record of such an impairment; or (C) being regarded as having such an impairment”

(42 U.S.C. 12102(2)). In general, disability reflects impairment, its functional sequelae, and

environmental supports and demands. Under

the functional limitation model of disability,

disability refers to impaired performance of a

socially defined role, reflecting an impairment

or functional limitation and the environmental

supports and demands. In the World Health Organization’s model of disability, disability is

the result of impairment, referring to the inability or restricted ability to perform activities

considered within the range normal for humans. See functional limitation model of disability, impairment, functional limitation, psychiatric disability.

Disability rights movement: Comprises a coalition of people with various types of disabilities,

who work together advocating for disability

policies that foster independence, integration,

adequate services, freedom of choice, and selfdetermination.

Disease: Under the World Health Organization

system of classifying disability, refers to

pathology in an individual. See pathology, impairment, disability.

Dysthymia: A disorder under the DSM-III-R involving a chronic mood disturbance, specifically depressed mood, for at least 2 years. Other

symptoms may be associated with the periods

of depressed mood as well, including: poor appetite or overeating, insomnia or hypersomnia,

low energy or fatigue, low self-esteem, poor

concentration or difficulty making decisions,

and feelings of hopelessness. See major depression.

Empowerment: A fundamental principle held by

people with psychiatric disabilities who have

organized, empowerment connotes a sense of
Appendix D Acronyms and Glossary of Terms 127

personal and social potency; acquiring the ability to make decisions that affect an individual’s

life. See disability rights movement.

Essential functions of a job: Defined in the ADA

as “those functions that are not marginal; the

fundamental job duties of the employment

position. Reasons for calling a task an essential

function include: the function may be essential

because the reason the position exists is to perform that function; the function may be essential because of the limited number of employees available among whom the

performance of that job function can be distributed; and/or, the function may be highly specialized so that the incumbent in the position is

hired for his or her expertise or ability to perform the particular function” (56 FR 35735).

See qualified individual with a disability.

Fair Housing Act Amendments of 1988: The

original Fair Housing Act, passed in 1968, prohibits discrimination in public and private real

estate transactions based on race, color,

religion, sex, or national origin. The 1988

Amendments extended its coverage to people

with disabilities.

Fountain House: Founded in 1957 in New York,

it pioneered “clubhouses,” an approach topsychosocial rehabilitation that provides for transitional employment services. The club houses

place individuals in temporary jobs with onsite support and training. See Transitional employment.

Functional limitation: Restrictions on an individual’s actions or activities, under the functional limitation model of disability. See finetional limitation model of disability.

Functional limitation model of disability: A

model of disability that includes four stages on

the path toward disability: pathology, impairment, functional limitation, and disability. This

model notes that a variety of factors, such as

treatment, financial resources, or personal expectations, can impinge on any stage. The model also asserts that disability is not the inevitable result of a pathological condition,

impairment, or even functional limitation. See

pathology, impairment, functional limitation,

and disability.

Handicap: Under the World Health Organization’s model of disability, a person is said to

have a handicap when an impairment or disability limits or prevents role performance for

that individual in society. Is equivalent to the

term disability in the functional limitation

model of disability. Term is generally rejected

as stigmatizing in the United States. See disability.

Illegal use of drugs: According to the ADA, illegal use of drugs means “the use of drugs, the

possession or distribution of which is unlawful

under the Controlled Substances Act” (21

U.S.C. 812).

Impairment: Impairment reflects functional restrictions at the organ level, stemming from either pathologies or other mental, emotional,

physiological, or anatomical losses or abnormalities. Under EEOC regulations for the

ADA, impairment refers to “any physiological

disorder, or condition, cosmetic disfigurement,

or anatomical loss affecting one or more of the

following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, heroic and

lymphatic, skin, and endocrine; or any mental

or psychological disorder, such as mental retardation, organic brain syndrome, emotional

or mental illness, and specific learning disabilities” (56 FR 35735). See functional limitation

model of disability.

Instrumental activities of daily living: Used in

various measures of functional limitations,

instrumental activities of daily living or IADLs

are activities relevant to independent living, including such things as use of the telephone,

travel beyond walking distance, shopping, preparing meals, doing housework and/or laundry,

taking medications, managing finances, and

doing yard work. See activities of daily living.

Major depression: A mood disorder characterized by profound depression, that is, complete

loss of interest or pleasure in activities. Other
128 I Psychiatric Disabilities, Employment, and the Americans With Disabilities Act

common symptoms include weight gain or

loss, insomnia or excessive sleepiness, slowed

or agitated movement, intense feelings of guilt

or worthlessness, diminished ability to concentrate, and recurrent thoughts of death or suicide.

Bouts of depression commonly recur. Psychosis may also accompany major depression. See

bipolar disorder.

Major life activities: As defined by the EEOC in

regards to the ADA, major life activities are

functions such as caring for oneself, performing manual tasks, walking, seeing, hearing,

speaking, breathing, learning, and working.

Major life activities are those basic activities

that the average person in the general population can perform with little or no difficulty. To

be covered under the ADA’s first prong of the

definition of disability, impairments must substantially limit one or more major life activity.

Critics argue that the EEOC definition of major

life activities is not useful for psychiatric disabilities. See disability, impairment.

Obsessive-compulsive disorder: A mental disorder characterized by recurrent and persistent

thoughts, images, or ideas perceived by the sufferer as intrusive and senseless (obsessions)

and by stereotypic repetitive, purposeful actions perceived as unnecessary (compulsions).

It is generally a chronic condition, with symptoms waxing and waning over time.

Panic disorder: A mental disorder characterized

by sudden, inexplicable bouts, or attacks, of intense fear and strong bodily symptoms, namely, increased heart rate, profuse sweating, and

difficulty breathing. Panic attacks occur twice a

week, on average.

Pathology: Under the functional limitation model of disability, pathology refers to an abnormal

change in a normal bodily process or structure

that results from such factors as infection, trauma, or developmental process. See functional

limitation model of disability, disease.

Primary consumer: Refers to individuals with

disabilities themselves. See secondary consumer.

Psychiatric disability: A disability that flows

from a mental disorder. Functional limitations

commonly associated with psychiatric disabilities include problems with social interactions,

dealing with stress, and concentrating. See disability.

Psychosis: A mental state characterized by extreme impairment of the sufferer’s perception

of reality, including hallucinations, delusions,

incoherence, and bizarre behavior. Psychosis is

a prominent symptom of schizophrenia. See

schizophrenia.

Psychosocial rehabilitation: Comprises a broad

range of services that assists persons with longterm psychiatric disabilities increase their

functioning so that they are successful and satisfied in the environments of their choice with

the least amount of ongoing professional intervention. See Fountain House.

Qualified individual with a disability: As defined by the ADA, “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions

of the employment position that such person

holds or desires.” See essential functions of a

job.

Reasonable accommodation: Under the ADA,

“the term ‘reasonable accommodation’ may include: (A) making existing facilities used by

employees readily accessible to and usable by

individuals with disabilities; and (B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or

devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations

for individuals with disabilities.” See undue

hardship.

Rehabilitation Act of 1973, Title V: Important

legal antecedent to the ADA. Sections 501 and

503 require affirmative action in the hiring and

advancement of people with disabilities by the

Federal Government and any of its contractors
Appendix D Acronyms and GIossary of Terms 129

(and, under section 503, subcontractors) receiving over $10,000. These sections forbid

Federal executive agencies and Federal contractors and subcontractors from job discrimination against People with disabilities. Section

504 prohibits discrimination or exclusion because of disability in all programs or services

offered by recipients of Federal funds and by

executive agencies.

Schizophrenia: A mental disorder characterized

by disturbance of cognition, delusions and hallucinations, and impaired emotional responsiveness. The disorder consists of positive

symptoms (delusions, hallucinations, illogical

thought, and bizarre behavior) and negative

symptoms (blunting of emotion, apathy, and

social withdrawal). See psychosis.

Secondary consumer: Refers to family members

or others who care for people with disabilities.

See primary consumer.

Social Security Disability Insurance (SSDI):

An income maintenance program operated by

the U.S. Social Security Administration. It is

an insurance program for those who have become disabled. Eligibility for this program

hinges on the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment(s) which can be expected to result in

death or which has lasted or can be expected to

last for a continuous period of not less than 12

months. See Supplemental Security Income.

Supplemental Security Income (SSI): An income maintenance program operated by the

U.S. Social Security Administration. It is a social welfare program for people who are blind,

aged, or disabled. Eligibility for this program

hinges on the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment(s) which can be expected to result in

death or which has lasted or can be expected to

last for a continuous period of not less than 12

months. See Social Security Disability Insurance.

Supported employment: A term applied to a variety of programs to assist individuals with severe disabilities in paid employment. Supported employment services are integrated into

the work setting. Examples of supported employment include modified training materials,

restructuring essential functions to enable an

individual to perform a job, or hiring an outside

professional (job coach) to assist in job training. See transitional employment.

Technical assistance: Any form of information

dissemination aimed at assisting with implementation of the ADA, including: brochures,

public and video presentations, conferences,

training programs, toll-free help lines, computer bulletin boards, clearinghouse activities,

posters, or manuals.

Transitional employment: An approach to vocational rehabilitation that places individuals

with disabilities in temporary jobs with onsite

support and training. See Fountain House.

Underwrite: The process by which an insurer determines whether and on what basis it will accept an application for insurance.

Undue hardship: Defined by the ADA as “an action requiring significant difficulty or expense . . . In determining whether an accommodation would impose an undue hardship on

a covered entity, factors to be considered include: (i) the nature and cost of the accommodation needed under this Act; (ii) the overall

financial resources of the facility or facilities

involved in the provision of the reasonable accommodation; the number of persons

employed at such facility; the effect on expenses and resources, or the impact otherwise

of such accommodation upon the operation of

the facility; (iii) the overall financial resources

of the covered entity; the overall size of the

business of a covered entity with respect to the

number of its employees; the number, type, and

location of its facilities; and (iv) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the
130 I Psychiatric Disabilities, Employment, and the Americans With Disabilities Act

geographic separateness, administrative, or fiscal relationship of the facility or facilities in

question to the covered entity” (42 U.S.C.

12111). See reasonable accommodation.

Vocational rehabilitation: Comprises a broad

range of services that assist persons with disabilities increase their functioning at work.

Typically a component of psychosocial rehabilitation. See psychosocial rehabilitation.

Workers’ compensation: Provides cash benefits, medical care, and rehabilitation services

for workers who suffer work-related injuries

and diseases. The workers’ compensation system, which is enacted by State and Federal

laws, operates on the underlying principle that

employers should assume the costs of occupational disabilities without regard to fault. Employers covered by workers’ compensation are

relieved from civil actions involving negligence. Benefits are paid by insurance companies, special State insurance funds, or by employers acting as self-insurers.

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