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**Sharingthe Dream: Is the ADA Accommodating All?**

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**Chapter5**

**PsychiatricDisabilities and the ADA**

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

**TITLEI: EMPLOYMENT OF INDIVIDUALS WITH PSYCHIATRIC DISABILITIES**

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

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

This initial focus on physical disabilities provided fewanswers to the ADA�s implications for people with psychiatric disorders, and�significantly less progress has been made by those with mental orintellectual disabilities.�[5] The attention topsychiatric disabilities increased as alleged discrimination based on emotionalor psychiatric impairments became the second largest source of ADA charges,after back problems, filed with the EEOC. The percentage of ADA charges filedwith the EEOC for discrimination alleging emotional or psychiatric impairments,over the four-year period of 1992 to 1996, increased steadily from 8.7 percentto 15 percent.[6]In 1997, charges based on psychiatric disabilities increased to 15.5 percent,making psychiatric conditions the leading category of disability, with backconditions falling to second.[7]In 1998, charges based on psychiatric disabilities increased to 18.3 percent; in1999, psychiatric disability charges decreased to 15.8 percent but were stillthe leading category of disability.[8]

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| **TABLE      1**

**Percentage of Charges Filed under the ADA      **for Selected      Impairments**** |
|--------------------------------------------------------------------------------------------------------|
|                                                                                                        |  |
|                                                                                                   | **Impairment ** |
| **Fiscal year**                                                                                        | **Back       problems** | **% of charges** | **Psychiatric      disability**

**% of charges**

1992

208

19.8

91

8.7

1993

3,201

19.8

1,496

9.8

1994

3,664

19.4

2,342

12.4

1995

3,463

17.5

2,608

13.2

1996

2,897

16.1

2,697

15.0

1997

2,703

14.9

2,798

15.5

1998

2,299

12.9

3,230

18.3

1999

2,069

12.2

2,682

15.8

Source:      EEOC, Charge Data System

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

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

**Issuanceof EEOC Psychiatric Guidance and the Reaction**

In response to the OTA report and the lack of understandingby employers and employees about the ADA protections for individuals withpsychiatric disabilities, the EEOC issued a publication titled �EEOCEnforcement Guidance: The Americans with Disabilities Act and PsychiatricDisabilities,� in March 1997.[16]

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

We have an attorney-of-the-day function that gets about9,000 phone calls a year in the office of legal counsel. We got numerousquestions from all the stakeholders in psychiatric disabilities from thebeginning, and we keep track of those questions and save them for possiblepolicy guidance. Then, also, in our public speaking we had a lot of interactionwith employers and individuals with disabilities on these issues. And then mostimportant we received letters, a huge number of letters, particularly on conductissues, from employers, from the very beginning.[18]

The Psychiatric Enforcement Guidance was designed to�facilitate full enforcement of ADA on charges alleging employmentdiscrimination based on psychiatric disability.�[19]It was also intended to (1) respond to questions and concerns expressed byindividuals with psychiatric disabilities regarding the ADA, and (2) answerquestions posed by employers about how the principles of the ADA analysis applyin the context of psychiatric disabilities.[20]The EEOC �had been flooded with questions about the [ADA], mostly fromemployers, [and the EEOC] wanted to show that the law applies to people withpsychiatric disabilities in exactly the same way it applies to people withphysical disabilities.�[21] Ms. Mastroianni explainedthat there was also �some feeling that you couldn�t apply normal workplacerules to people with [mental] disabilities. We are saying that you can.�[22]

The publication of the guidelines sparked a �firestorm ofcontroversy.�[23] Within days of itsrelease employment lawyers, clinicians in the psychiatric field, and thenational media were engaging in a fierce debate over the Psychiatric EnforcementGuidance.[24]

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

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

The reaction from employers was mixed. Large employers withaccess to personnel and legal specialists appeared least concerned. Mary JaneEngland, president of the Washington Business Group on Health, which represents175 large corporations, including Pepsico and Hewlett-Packard, welcomed theguidelines saying that they clarified employers� obligations.[27]Ann Reesman, general counsel for the Equal Employment Advisory Council, a groupof about 300 large employers, said the Psychiatric Enforcement Guidance was�helpful, because it gave us insights into the EEOC�s position on things�and how to avoid running afoul of the agency.[28]The guidelines, she said, are cause for alarm only �if you read all the pressand not the guidelines� themselves.[29]In fact, many of the companies Ms. Reesman serves �have been subject to almostidentical disability requirements under the 1973 Rehabilitation Act.�[30]

Jonathan Mook, a lawyer counseling both large and smallemployers in their attempts to deal with compliance under the ADA, testified atthe Commission�s ADA hearing that �the EEOC�s guidelines represent atleast a good initial step in the area of trying to clarify and provide guidanceto employers on what obligations are under the statute, and how the statutoryterm[s] should be interpreted.�[31]Mr. Mook noted, however, that �based upon my conversation with employers, indealing with this area, I think there are many aspects of that guidance thatreally fail to take into account the real-world problems that employersexperience in dealing with individuals who have or claim to have psychiatricdisabilities.�[32]

James McDonald, a labor attorney whose firm represents arange of entities, including large and small employers, testified at theCommission�s ADA hearing:

Instead of bringing clarity . . . the EEOC�s guidance,unfortunately, just creates more uncertainty. It creates this uncertainty, forexample, by suggesting that a condition need not be included in the AmericanPsychiatric Association�s current edition of the DSM in order to be a coveredmental disability under the ADA, by providing that personality disorders may becovered disabilities, and by expanding the list of major life activities, toinclude such things as sleeping, concentrating, and getting along with otherpeople.[33]

Small employers shared this concern. The NationalFederation of Independent Business issued a statement calling the new guidelines�lengthy, confusing and dangerously vague,� leaving small business �wideopen to the risk and cost of frivolous litigation.�[34]Susan R. Meisinger, senior vice president of the Society for Human ResourceManagement, which represents personnel directors at companies of all sizes, saidthe Psychiatric Enforcement Guidance �creates confusion for employers,especially small employers who don�t have any special expertise� in ADAprovisions.[35]

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

Employers are also concerned that accommodating individualswith psychiatric disabilities is more difficult and costly than accommodatingthose with physical disabilities. According to Laura Mancuso, a consultant whohas advised hundreds of employers on compliance with the ADA, these concerns arenot justified. Ms. Mancuso noted that accommodations �for workers withpsychiatric disabilities are, in most cases, inexpensive or free. An employeewith psychiatric problems may initially need more time from supervisors orcoworkers, but research shows that the need tends to fade over time.�[38]

Despite the initial controversy, the PsychiatricEnforcement Guidance is being relied on by courts and appears to be used byemployers. There remains, however, difficulty in the application of theguidance.

**DisputedAreas of ADA�s Coverage of Psychiatric Disabilities**

**DisabilityDefined**

The ADA defines psychiatric disability as a �mentalimpairment that substantially limits one or more of the major life activities of[an] individual; a record of impairment; or being regarded as having such animpairment.�[39] EEOC�s regulationsdefine �mental impairment� to include �any mental or psychologicaldisorder, such as . . . emotional or mental illness.�[40]The examples of impairments in the Psychiatric Enforcement Guidance include�major depression, bipolar disorder, anxiety disorders (which include panicdisorder, obsessive compulsive disorder, and post-traumatic stress disorder),schizophrenia, and personality disorders.�[41]The Psychiatric Enforcement Guidance further provides that the current editionof the American Psychiatric Association�s *Diagnosticand Statistical Manual of Mental Disorders* (DSM-IV) �is relevant foridentifying these disorders� and notes that Congress expressly excludedseveral specific conditions from ADA�s protections.[42]

EEOC�s broad definition of what may constitute animpairment�the DSM-IV lists more than 374 psychiatric disorders�alarmedsome employers and employment attorneys because, they contend, it muddiesemployers� ability to correctly identify those individuals entitled toprotections under the ADA. Labor attorney James McDonald testified that alisting in the DSM-IV should be required and is only a starting point fordetermining whether a condition is a mental impairment. �ADA�s legislativehistory and at least one court decision recognize that Congress intended thatonly mental disorders as defined in the [DSM-IV] may qualify as �mentalimpairments� potentially covered by the ADA.�[43] Mr. McDonald would narrowthe category of impairment because he believes that personality disorders, whichare listed in the DSM-IV, should be excluded from ADA coverage. The PsychiatricEnforcement Guidance�s inclusion of personality disorders as impairments, Mr.McDonald said,

provides a plethora of new opportunities for problememployees to disguise their misconduct as disease. Although a nasty orinsubordinate employee might not qualify as disabled if his bad attitude isconsidered in isolation, if his attitude can be linked somehow to a personalitydisorder, he will be considered to have an �impairment� that may qualify forADA coverage.[44]

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

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

The Psychiatric Enforcement Guidance, however, clearlylimits the definition of impairment, providing that �[n]ot all conditionslisted in the DSM-IV . . . are disabilities, or even impairments, for purposesof the ADA.�[47] In fact, identifying themental impairment, whether or not it is in the DSM, is just the first step indetermining whether an individual meets the requirements for disability underthe statute. Under the ADA, the disability must also substantially limit one ormore of the major life activities of the individual.[48]Peggy Mastroianni testified:

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

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

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

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

Ms. Mancuso added, �Our knowledge or understanding ofmental disorders� could change, and if the DSM were not �scheduled to berevised for another 5 or 10 years� it would not provide the protectionsenvisioned by the ADA.[51]�The EEOC has not chosen, and Congress did not choose to have a list [with theADA], nor did it with the Rehabilitation Act�; therefore, the regulationsproperly leave latitude for changes in both societal attitudes and scientificassessments of what constitutes a psychiatric disability.[52]

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

**AccommodatingPsychiatric Disabilities**

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

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

has communicated a request for a change at work (time off)for a reason related to a medical condition (being �depressed and stressed�may be �plain English� for a medical condition). This statement issufficient to put the employer on notice that the employee is requesting areasonable accommodation. However, if the employee�s need for accommodation isnot obvious, the employer may ask for *reasonable*****documentation concerning the employee�s disability and functionallimitations.[60]

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

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

Mr. Mook added that the system is unworkable �unless youput the obligation on an employee to come to the employer and tell that employerthat the employee has been diagnosed with an identifiable mental disorder undersome recognized standard.�[62]

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

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

The courts, relying on the Psychiatric EnforcementGuidance, have held that no magic words are required and an individual may useplain English to trigger the process to determine whether there is a reasonableaccommodation under the ADA.[69]

**Providing anAccommodation**

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

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

The regulations provide: �To determine the appropriatereasonable accommodation it may be necessary for the [employer] to initiate aninformal, interactive process with the [employee] with a disability in need ofthe accommodation. This process should identify the precise limitationsresulting from the disability and potential reasonable accommodations that couldovercome those limitations.�[75]

The Psychiatric Enforcement Guidance elaborates on theregulations, explaining �reasonable accommodations for individuals withdisabilities [are] determined on a case-by-case basis because workplaces andjobs vary, as do people with disabilities.�[76]

The Circuit Courts of Appeals have considered theregulations, the interpretive guidelines, and the Psychiatric EnforcementGuidance and have split in their opinions on the parties� burdens in theinteractive process. The Ninth Circuit held that an employee�s first requestfor accommodation does not trigger an employer�s duty to initiate aninteractive process. Instead, the court found that the regulations state onlythat an interactive process may be necessary. The court determined that the EEOCused permissive language, which serves as a warning to employers that a failureto engage in an interactive process might expose them to liability for failingto make reasonable accommodation. The Ninth Circuit ruled an employer will beliable for discrimination if a reasonable accommodation was available, but theemployer did not act upon it; however, �the ADA and its regulations do not . .. create independent liability for the employer for failing to engage inritualized discussions with the employee to find a reasonable accommodation.�[77]

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

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

While the Psychiatric Enforcement Guidance is consistentwith EEOC�s regulations, a number of the reasonable accommodations discussedhave been strongly criticized by attorneys for employers. Jonathan Mook findsthe EEOC�s inclusion of a �temporary job coach� as a possible reasonableaccommodation problematic. In his view, this accommodation appeared out ofnowhere.[81]�The employer may make an adjustment in the workplace but the employershouldn�t need to have to hire somebody from the outside to come in and helpan employee make that adjustment.�[82]In fact, prior to the Psychiatric Enforcement Guidance, the EEOC in itsinterpretive guidance discussed this very issue, providing that �examples ofsupported employment include . . . hiring an outside professional (�jobcoach�) to assist in job training.�[83]

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

reassignment must be considered as a reasonableaccommodation when accommodation in the present job would cause undue hardshipor would not be possible. Reassignment may be considered if there arecircumstances under which both the employer and employee voluntarily agree thatit is preferable to accommodation in the present position.

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

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

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

want to have different standards of performance applied tothem . . . they want to somehow be given a dispensation from different kinds ofquality or quantity work standards. And that is the tough issue, because you arenot dealing with how could we modify the workplace, or how could we even modifythe work schedule, or we could let this person work at home, or we could givethem a Dictaphone, or a computer, whatever would physically make it easier.[88]

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

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

**Conduct,Misconduct, and Discipline**

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

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

The Psychiatric Enforcement Guidance specifically providesthat �nothing in the ADA prevents an employer from maintaining a workplacefree of violence or threats of violence, or from disciplining an employee whosteals or destroys property.�[93]In essence, if the employer would impose the same discipline on an employeewithout a disability, it may discipline an employee with a disability forengaging in such misconduct. If, however, the conduct standard is not jobrelated and consistent with business necessity, �imposing discipline underthem could violate the ADA.�[94]Mr. McDonald characterized the requirement as imposing a �dramatic newburden� on employers.[95]

Critics, including Mr. McDonald, point to the example inthe Psychiatric Enforcement Guidance of a disheveled and rude warehouse workerwith an unspecified mental disability as an illustration that EEOC operates in avacuum without adequate consideration of the realities of the workplace. In theexample, an employee with a psychiatric disability works in a warehouse loadingboxes for shipment. The employee does not come into regular contact with otheremployees and has no customer contact. The employee begins coming to work�appearing increasingly disheveled. His clothes are ill-fitting and often havetears in them.�[96] The employee also becomesincreasingly anti-social. Coworkers complain that the employee is abrupt andrude. �His work, however, has not suffered.�[97]The Psychiatric Enforcement Guidance provides that because the warehouse workerhad no customer contact and irregular coworker contact, the company�srequirement in its handbook that employees have a neat appearance and becourteous to each other was neither job related for that position nor consistentwith business necessity.[98] Thus, rigid applicationof these rules to this employee would violate the ADA, according to the EEOC.[99]

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

Mr. Imparato agreed that the Psychiatric EnforcementGuidance example is bad, but �the principle is a good principle, which is, ifyou are going to apply a conduct standard, a conduct rule, don�t apply everyrule in your employee manual equally, employ a rule that is job related andconsistent with business necessity, if it is going to be used to disciplinesomeone.�[103]

Mr. Imparato testified that a good example is �a manualthat says, everybody has to be at their desk at 9 o�clock, but you have someemployees for whom that is not as important. . . . It doesn�t make sense toapply that rule across the board, if the employee has a legitimatedisability-related reason not to be able to be at their desk at 9 o�clock.�[104]

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

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

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

The majority of the federal circuit courts, consistent withthe Psychiatric Enforcement Guidance, have held that an employer may hold adisabled employee to the same standards of conduct to which it would hold anondisabled employee. In rejecting arguments that misconduct caused bydisability is protected, the courts have reasoned that Congress, in enacting theADA, intended to prohibit unfair stereotypes about people with disabilities butnot to shield them from the consequences of misconduct.[107]

**DirectThreat and the Individual with a Psychiatric Disability**

The ADA allows an employer to lawfully exclude individualsfrom employment, for safety reasons, if the employer can show that employment ofthe individual would pose a �direct threat to the health or safety of otherindividuals in the workplace.�[108]The EEOC regulations provide that direct threat �means a significant risk ofsubstantial harm to the health or safety of the individual or others that cannotbe eliminated or reduced by reasonable accommodation.�[109]The regulations require that the �determination that an individual poses a�direct threat� shall be based on an individualized assessment of theindividual�s present ability to safely perform the essential functions of thejob.�[110]Factors to be considered in determining whether an individual poses a directthreat include the duration of the risk, the nature and severity of thepotential harm, the likelihood that the potential harm will occur, and theimminence of the potential harm.[111] 

The Psychiatric Enforcement Guidance relies on bothlegislative history and the EEOC interpretive guidance to expand upon theseregulations by requiring that �the employer must identify the specificbehavior on the part of the individual that would pose a direct threat. Anindividual does not pose a �direct threat� simply by virtue of having ahistory of psychiatric disability or being treated for a psychiatricdisability.�[112]Where an individual has a history of violence or threats of violence,identification of the �specific behavior� that would pose a direct threatmust include �an assessment of the likelihood and imminence of futureviolence.�[113]

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

The standard should be one where the employer has someobjective evidence of behavior by an employee that is causing concern amongother employees and is raising concerns with other employees. And that should besufficient for an employer, then, in that employer�s discretion, to take sometype of action, such as putting an employee on leave, and before that employeewould come back to work, to have that employee have an evaluation pertaining towhether that employee could be a threat to the other employees.[115]

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

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

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

**IMPACT OF THE CRITICISMS OF THE PSYCHIATRIC****guidance**

As discussed, issuance of the Psychiatric EnforcementGuidance sparked a national media frenzy, highlighted by editorials paintingnightmare scenarios of manipulative substandard employees with headlines such as�Employers are Terrified.� The *RichmondTimes* printed a cartoon of a Friday-the-13th-type character, complete withhockey mask and raised ax, as an example of an applicant protected by the ADA.[119]Many advocates see this sustained attack in the media and the proposals to rollback protections as �precursor[s] to attacks on the Act�s protection forpeople with psychiatric impairments.�[120]

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

One possibility would be simply to rewrite the definitionof disability so that it excludes mental disabilities. Many of the horrorstories that we�ve heard�andI don�t think�bycalling them horror stories, I don�t mean to indicate that they aren�t true.I think that there are a lot of true horror stories, and I think adisproportionate number of them involve the application of the ADA toindividuals with mental disabilities.

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

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

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

Judges don�t understand it, employers don�t understandit, most lawyers don�t understand. But to try to develop the law in anadversarial proceeding, when you have very little in the way of hard standardsis very dangerous and problematic.[122]

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

The EEOC, however, issues all of its Enforcement Guidancewithout notice and comment rulemaking. The EEOC issues subregulatoryguidance�which requires no formal notice and comment�because �it allowsthe Agency to move in a more timely and efficient manner to address importantdeveloping issues.�[124]The courts, moreover, are now relying on the Psychiatric Guidance and holdingthat EEOC�s interpretation of the ADA is entitled to deference.[125]

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

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

**TitleII: Public Entities and Individuals with Mental Disabilities**

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

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

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

During the Commission�s ADA hearing, the panelistsdiscussed Title II with respect to the issue of integration and availability ofcommunity services.

**MOSTINTEGRATED SETTINGS REQUIREMENT**

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

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

The DOJ�s mandate to public entities to integrate mayhave had the unforeseen result of creating longer waiting lists for thoseseeking to be integrated in community-based settings. Although public entitiesare now required to integrate, these entities do not always get the resourcesthey need to provide these services.

Sharon Davis of The Arc, a national organization on mentalretardation,[138] released a study inNovember 1997 documenting the time individuals with mental disabilities wait toreceive community services.[139]She observed that 52,072 were waiting for residential services, 64,962 neededday/vocational services, and another 35,852 were waiting for both. Dr. Davisalso said there were 5,376 people in state institutions waiting for communityplacement.[140] Dr. Davis also foundthat states choose not to maintain waiting lists for a variety of reasons,including fear of litigation, a desire not to bring public attention to theproblem, fear that the waiting lists will grow as more individuals find outabout or discover services, and an inability to collect and synthesize the datafrom the local programs across the state.[141]

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

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

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

Opponents also raise cost as an integration issue.Panelists at the Commission�s ADA hearing addressed this contention. JosephRogers, executive director of the Mental Health Association and a person who hasbeen institutionalized and has a mental disability, noted that high qualitycommunity-based care could be more expensive for individuals with multipledisabilities:

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

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

**Olmstead�s Integration Mandate**

The Supreme Court, in *Olmsteadv. L.C.,*[147]had the opportunity to consider whether the ADA mandated the integrationof individuals with mental disabilities; the Court, while recognizing the needto consider integrated settings, did not mandate them.

In *Olmstead,*theSupreme Court upheld an Eleventh Circuit decision that segregation ofindividuals with mental disabilities might constitute discrimination based ondisability.[148]*Olmstead* held that states have anobligation under the ADA to provide community placement for individuals whenthree conditions are met: (1) the state�s treatment professionals determinethat such a placement is appropriate; (2) the affected individual does notoppose the placement; and (3) the state can reasonably accommodate the placementwithout creating a fundamental alteration to its program, given the state�savailable resources and the needs of other individuals with mental disabilities.[149]

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

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

Pennsylvania has also moved thousands of residents fromstate hospitals and institutions for the retarded into community-based settingspursuant to a five-year plan that the governor�s administration is nowenforcing.[155] This was the result of afederal court�s determination that the Pennsylvania Department of PublicWelfare discriminated against individuals confined to a Haverford institutionwhen community-based placement in integrated settings was more appropriate.[156]

Although some state and local agencies are moving towardintegrated settings, some legal scholars insist that the majority�s decisionin *Olmstead* allowed the states enoughdiscretion to evade community-based placement. One scholar explained:

Among the elements necessary for a finding ofdiscrimination, the Court included the recommendation from a patient�s statepsychiatrists that integrated, community-based treatment is appropriate for thepatient. Unfortunately, the Court�s deference to the professional judgment ofstate psychiatrists may have an unwelcome result. State institutionaladministrators seeking to avoid compliance with the ADA for financial reasonshave opportunities to create institutional cultures in which mental healthprofessionals�despite standards of professional ethics�are encouraged towithhold recommendations for community treatment. In order to achieveCongress�s objective of segregating and isolating fewer mentally disabledpatients in institutions, the Court should have permitted patients to contest,in a truly adversarial process, the judgment of state psychiatrists who fail torecommend community treatment.[157]

Another source asserted:

[I]t is highly significant that in the first part of itsruling, the Court made the powerful statement that the unjustified segregationof individuals with mental disabilities in institutions constitutesdiscrimination under the ADA. At the same time, however, it is disappointingthat in the second part of its ruling, the Court conditioned the right ofindividuals with mental disabilities to live in the most integrated settingappropriate in a broader interpretation of the reasonable-modificationsregulation.[158]

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

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

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

***The Future underOlmstead***

Despite the Supreme Court�s holding in *Olmstead*, those defending the rights of individuals with mentaldisabilities believe they are still debating the same issues. Some legalscholars believe that *Olmstead* leftthe states with broad discretion. First, the state, through its employees, maydetermine whether an integrated setting is the most appropriate environment fora particular individual. Second, the state may still argue that placement of aparticular individual or individuals would fundamentally alter its existingprogram. Third, and most importantly, financial constraints are an importantconcern because the amount of funding that states actually provide is stillunder their control. In short, individuals with mental disabilities, or thoserepresenting such individuals, still need the approval of the state�s�treatment professionals,� and they must argue their cases to stateagencies, which may be unwilling to allow community placement because of thecost of the program, the fear of increased use of such programs, and/or the fearof liability.

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

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

In Washington, D.C., for example, a series of *WashingtonPost* articles uncovered various cases of neglect and abuse in the city�sgroup homes.[167]These articles highlight the difficulty of getting needed community services tode-institutionalized individuals with mental disabilities through the city�sbureaucracies. One article reported:

The District�s taxpayer-funded programs for the retardedare among the most expensive in the country, with an average cost per patient ofmore than $100,000 a year. The Washington Post found that, with minimaloversight by city agencies and the D.C. Council, the care of the retarded andmillions of dollars in public funds had been entrusted to a convicted nightclubowner and several companies with long histories of abusing or neglecting theirwards. Documented abuse went unpunished: From 1990 to 1999, the city failed toissue a single fine against a company found to have mistreated a mentallyretarded person. And 50 deaths in the last three years went unexamined by cityofficials.[168]

In a Florida case, a jury found in favor of a profoundlymentally retarded child who had been abused in Florida group homes.[169]The Florida Department of Health and Rehabilitative Services had placed KimberlyGodwin in a group home at the age of 10.[170]When the agency found that Ms. Godwin was being abused, it moved her to theSchenck Group Home in Fort Pierce, Florida. Despite signs of physical abuse atthis institution as well, state caseworkers failed to follow-up on theallegations of mistreatment.[171]In December 1991, it was discovered that Ms. Godwin was pregnant. When thepregnancy was detected, she was again moved to another home but received noprenatal care for two months.[172]When Ms. Godwin was 20 weeks pregnant, her parents were informed, and she washospitalized. She obtained an abortion, and then she returned to her parents�house.Based on these facts, the juryawarded Ms. Godwin $8 million.[173]

On January 20, 2000, the National Council on Disabilityissued a report to President Clinton regarding the treatment and rights ofindividuals with disabilities titled *FromPrivileges to Rights: People Labeled with Psychiatric Disabilities Speak forThemselves*.[174]In its report, the NCD maintained that the rights of individuals withpsychiatric disabilities are routinely violated and that they are treated asless than full citizens or even human beings.[175]The NCD based its report on the comments of various individuals with psychiatricdisabilities who testified at a hearing it held in Albany, New York, in November1998.[176]Moreover, the NCD called on the President and Congress to address the problemsthat have made the treatment of persons with mental disabilities �a nationalemergency and a national disgrace.�[177]The agency outlined several core recommendations that it believes should beconsidered to help resolve the mistreatment of these persons, including amovement toward voluntary treatment, the involvement of individuals with mentaldisabilities in the design of these services, a ban on aversive treatment andthe development of cultural alternatives, an increase in the types of servicesoffered, the modification of SSI and SSDI to support integration, and theintroduction of a system that allows existing agencies to coordinate theiractions and work together.[178] 

**INDIVIDUALSWITH MENTAL DISABILITIES AND LAW ENFORCEMENT**

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

Today, the delivery of law enforcement services andprograms to individuals with mental disabilities is an emerging issue underTitle II of the ADA and there is little case law in this area to date.[180]Most of the material on the subject is privately published information fromdisability rights organizations and law enforcement research institutes.[181]Nevertheless, it is an important area because nearly every aspect of lawenforcement is subject to Title II of the ADA and has the potential to result insignificant state and local liability. The Department of Justice�s primarytechnical assistance document, which is distributed to local law enforcemententities, states the ADA �affects virtually everything that officers anddeputies do� in the delivery of law enforcement services to individuals withdisabilities. This includes receiving citizen complaints; interrogatingwitnesses; arresting, booking, and holding suspects; operating telephone (911)emergency centers; providing emergency medical services; enforcing laws; andother miscellaneous duties.[182]

The services and programs provided to individuals withmental disabilities have become important because the probability of anindividual with a disability becoming involved with law enforcement�as avictim, witness, or suspect�will increase dramatically as the trend continuestoward full integration and participation in our society for individuals withmental disabilities.[183]

**Law Enforcement and Individualswith Psychiatric Disabilities**

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

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

At the Commission�s ADA hearing, Jim Ramnaraine, a seniorhuman resources representative from the Hennepin County (Minnesota) PoliceDepartment, spoke about the difficulty of recognizing individuals with mentaldisabilities and responding appropriately:

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

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

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

**Law Enforcement and Individualswith Mental Retardation**

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

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

In sum, police officers �should always consider thepossibility that a disability is involved when faced with impairedresponsiveness or behavior that doesn�t make sense. . . .�[199]Taking people into custody solely because of behavior caused by their disabilitymay deprive them of their rights and violate of the ADA.[200]

**TitleIII: Public Accommodations and Psychiatric Disabilities **

Title III of the ADA was not the subject of testimony atthe Commission�s ADA hearing; however, this report would be incomplete withoutbriefly highlighting some of the more significant issues affecting individualswith psychiatric disabilities under Title III.

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

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

Public accommodations cover awide array of private entities whose operations affect commerce�ranging fromlodging to places of public entertainment to service establishments totransportation services.[202]Courts aredivided over whether �public accommodation� applies only to actual physicalstructures or whether it reaches beyond mere access to the physical structures.[203]

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

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

In *Amir v. St. LouisUniversity*,[208]the Eighth Circuit revisited the issue of Title III and mental disability andagain denied the individual�s claim. In this case, a graduate student (Amir)was expelled from the university�s medical school. Amir alleged that theuniversity discriminated against him based upon his mental disability inviolation of Title III of the ADA. The Eighth Circuit accepted the districtcourt�s finding that Amir suffered from a disability �because his obsessivecompulsive disorder . . . affects his ability to eat and drink without vomiting,his ability to concentrate and learn, and his ability to get along withothers.�[209] The court also foundthat the university was a public accommodation under the ADA. The court thenheld that �Amir did not provide sufficient evidence from which a reasonablejury could conclude that [the university�s] adverse decisions were based uponhis disability.�[210]The court also concluded that none of the three accommodations suggested by Amir�whichincluded completing his psychiatry clerkship at another institution, a passinggrade in psychiatry, and reassignment to another professor�amounted to areasonable accommodation under the ADA.[211]

**Title III andInsurance**

The issue of insurance and psychiatric disabilities hasbeen the focus of several ADA discrimination cases. One of the questions facingcourts is whether the ADA applies to insurance policies that make benefitdistinctions between physical disabilities and mental disabilities. The federalcourts are divided on the scope of the ADA�s application.[212]

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

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

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

Conversely, the First Circuit, in *Carparts Distribution Center, Inc. v. Automotive Wholesaler�sAssociation*,[222]held that establishments of public accommodation are not limited to actualphysical structures. The court examined the language of the ADA, which includedthe definition of public accommodation, and reasoned that the plain meaning didnot require the conclusion that public accommodation was limited to physicalstructures.[223] The court held that byincluding �travel service� among the list of services considered as publicaccommodations, Congress clearly contemplated that �service establishments�include providers of services that do not require a person to physically enteran actual physical structure. Because many travel services conduct business bytelephone or correspondence without requiring their customers to enter an officeto obtain their services, the First Circuit concluded that it �would beirrational to conclude that persons who enter an office to purchase services areprotected by the ADA, but persons who purchase the same services over thetelephone or by mail are not. Congress could not have intended such an absurdresult.�[224]

**Title III andProfessional Licensing**

An emerging body of case law alsoaddresses ADA challenges to mental health inquiries in the context ofapplications for membership in state medical and bar associations.[225]Mental health inquiries have been and continue to beroutinely requested for applications in state bars and medical boards. Licensingboards believe that questions about mental health history have the legitimatepurpose of protecting the public and the profession.[226]

In response, some mental health advocates argue thatprofessional licensing boards� inquiries into an applicant�s mental healthhistory must be eliminated because they violate the ADA�s broad prohibitionagainst discrimination.[227]Other advocates argue that mental health questions are permissible if they arelimited to recent or severe instances of mental illness.[228]Still others urge that only questions pertaining to certain conduct bepermitted.[229]

The courts have varied in theirresponses to these challenges, but the majority have held that broad questionsabout an individual�s mental health violate the ADA�leaving open thepossibility that narrowly tailored questions will not be prohibited.[230]The interaction between the ADA and psychiatric disabilities is constantlyevolving, and there are still many unanswered questions that likely will beresolved by the courts. For individuals with psychiatric disabilities, therehave been meaningful strides in the past 10 years, but there is still much to beaccomplished.

*Fortoo long, mental health has been put in parenthesis; we did not want to talkabout it, and we did not take it seriously as a country. The stigma of mentalillness has kept many in need from seeking help, and it has preventedpolicymakers from providing it.*[231]

[1] The Health Insurance    Reform Act of 1995, S. 1028, 104th Cong., 142 Cong. Rec. S3590 (1996)    (statement of Sen. Wellstone).

[2] 42 U.S.C. � 12112(a)    (1994). The ADA also applies to employment agencies, labor unions, and joint    labor-management committees with 15 or more employees.

[3] Kathryn Moss, Matthew    Johnsen, and Michael Ullman, �Assessing Employment Discrimination Charges    Filed by Individuals with Psychiatric Disabilities Under the Americans with    Disabilities Act,� *Journal of    Disability Policy Studies*, vol. 9, no. 1 (1998), p. 83. *See also* Robert Pear, �Employers Told to Accommodate the Mentally    Ill,� *New York Times*, Apr. 30,    1997, p. 1A (hereafter cited as Pear, �Employers Told�).

[4] Gary Anthes, �The    Invisible Workforce,� *Computerworld*,    May 1, 2000, p. 50.

[5] Ibid.

[6] Equal Employment    Opportunity Commission, Charge Data    System, Oct. 26, 1999.

[7] Ibid.

[8] Ibid.

[9] U.S. Congress, Office of    Technology Assessment, *Psychiatric    Disabilities, Employment and the Americans with Disabilities Act*    (Washington, D.C.: Government Printing Office, 1994), pp. 51�52.

[10] Ibid.

[11]Ibid.,    p. 114. 

[12] Ibid.

[13] Ibid., p. 14.

[14] Ibid., p. 67.

[15] Ibid., pp. 67, 98�105.

[16] Equal Employment    Opportunity Commission, �EEOC Enforcement Guidance on the Americans with    Disabilities Act and Psychiatric Disabilities� no. 915.002 (Mar. 25,    1997), p. 1 (hereafter cited as EEOC Psychiatric Enforcement Guidance). The    full text of the Psychiatric Enforcement Guidance is available on EEOC�s    Web site at <www.eeoc.gov> or from the EEOC�s publication    distribution center (800-669-3362).

[17] Peggy Mastroianni,    testimony before the U.S.**Commission    on Civil Rights, hearing, Washington, D.C., Nov. 12�13, 1998, transcript,    pp. 294�95 (hereafter cited as Hearing Transcript).

[18] Ibid.

[19] EEOC Psychiatric    Enforcement Guidance, Introduction.

[20] Ibid.

[21] Pear, �Employers    Told.�

[22] Helen O�Neill, �New    Federal Guidelines Put Employers in a Bind,� Associated Press, May 3,    1997, *available in* NEXIS News    Library, AP file.

[23] Claudia Center, �EEOC    Guidance on Psychiatric Disabilities Advances ADA Awareness,� vol. 6, no.    7 (July 1997) (hereafter cited as Center, Guidance on Psychiatric    Disabilities Advances ADA Awareness).

[24] U.S. Commission on Civil    Rights, *Helping Employers Comply with    the ADA*, 1998, p. 118.

[25] At the drafting of this    report, Mr. Imparato had left the National Council on Disability and is now    president and CEO of the American Association of People with Disabilities.    Mr. Imparato is also a former special assistant to EEOC Commissioner Paul    Miller.

[26] Andrew Imparato    Testimony, Hearing Transcript, pp. 213�14.

[27] Julie Kosterlitz,    �Psyched Out,� *National Journal*,    May 24, 1997, p. 1028 (hereafter cited as Kosterlitz, �Psyched Out�).

[28] Ibid.

[29] Ibid.

[30] Ibid.

[31] Jonathan Mook Testimony,    Hearing Transcript, p. 209.

[32] Ibid.

[33] James J. McDonald Jr.    Testimony, Hearing Transcript, p. 207.

[34]    Kosterlitz, �Psyched    Out,� p. 1028.

[35] Pear, �Employers    Told.�

[36] Robert L. Dunston,    �EEOC Guidance on Psychiatric Disabilities Sparks Controversy,� *Employment    Testing�Law & Policy Reporter*, July 1997, p. 105.

[37] Ibid.

[38] Pear, �Employers    Told.� *See also* Ilana DeBare,    �Making Accommodations,� *San    Francisco Chronicle*, Sept. 8, 1997, p. B1 (A study of Sears, Roebuck    & Co. and the ADA, by Peter Blanck, a University of Iowa law professor,    found that most mental disabilities were accommodated for about $100,    compared with the average cost of $250 for cancer cases and $10,000 for    orthopedic cases).

[39] 42 U.S.C.**� 12102(2) (1994).

[40] 29 C.F.R. � 1630.2(h)(2)    (1999).

[41] EEOC Psychiatric    Enforcement Guidance, Question 1. The ADA and the regulations expressly    exclude various sexual behavior disorders (including transvestism,    transexualism, pedophilia, and voyeurism), homosexuality, gender identity    disorders, bisexuality, compulsive gambling, kleptomania, pyromania, and    psychoactive substance use disorders resulting from current illegal use of    drugs. *See* 42 U.S.C. � 12211(b)    (1994); 29 C.F.R. � 1630.3(d) (1999).

[42] EEOC Psychiatric    Enforcement Guidance, Question 1.

[43] James J. McDonald Jr. and    Jonathan P. Rosman, �EEOC    Guidance on Psychiatric Disabilities: Many Problems, Few Workable    Solutions,� *Employee Relations Law Journal,* vol. 23 (1997)    pp. 5, 8 (hereafter cited as McDonald and Rosman, �EEOC    Guidance�) (citing Cong. Rec. S10772 (Sept. 7, 1989) (statement of    Sen. Armstrong)).

[44] Ibid. The Psychiatric    Enforcement Guidance states that �traits and behaviors� such as    irritability, chronic lateness, poor judgment, and being under stress are    not, in themselves, mental impairments, but may be linked to them. EEOC    Psychiatric Enforcement Guidance, Question 2.

[45] Ibid. McDonald and Rosman    identify seven personality disorders (PD) that raise significant questions    as to how these disorders might be accommodated in the workplace: paranoid    PD is a pattern of distrust and suspiciousness such that others� motives    are interpreted as malevolent; antisocial PD is a pattern of disregard for,    and violation of, the rights of others; borderline PD is a pattern of    instability in personal relationships and self-image, and marked    impulsivity; histrionic PD is a pattern of excessive emotionality and    attention-seeking; narcissistic PD is a pattern of grandiosity, need for    admiration, and lack of empathy; dependent PD is a pattern of submissive and    clinging behavior related to an obsessive need to be taken care of;    obsessive-compulsive PD is a pattern of preoccupation with orderliness,    perfectionism, and control.

[46] Mook Testimony, Hearing    Transcript, p. 247.

[47] EEOC Psychiatric    Enforcement Guidance, Question 1. The Psychiatric Enforcement Guidance    further states the �DSM-IV also includes conditions that are not mental    disorders but for which people may seek treatment (for example, problems    with a spouse or child). Because these conditions are not disorders, they    are not impairments under the ADA.� Ibid.

[48]*See*29 C.F.R. � 1630(g)(1) (1999). *See    also**id.* at � 1630(j)(1). Substantially limits means �[u]nable to    perform a major life activity that the average person in the general    population can perform.� 29 C.F.R.� 1630(j)(1) (1999). Factors to be    considered in determining whether a person is substantially limited in a    major life activity include �(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 . . . resulting from the    impairment.� 29 C.F.R. � 1630(i) (1999). Major life activities are    functions such as �caring for oneself, performing manual tasks, walking,    seeing, hearing, speaking, breathing, learning, and working.� 29 C.F.R.�    1630(i) (1999).

[49]    Mastroianni, Hearing    Transcript, p. 266.

[50] Laura Mancuso, Hearing    Transcript, pp. 222�23.

[51] Ibid., p. 223.

[52] Ibid.

[53] 42 U.S.C. � 12112(a)    (1994).

[54]*See*29 C.F.R. app. 1630.2(m) (1999).

[55] 29 C.F.R. app. 1630.2(m).

[56] 29 C.F.R. app. 1630.2(m).    The issue of being qualified and protected by the ADA has other implications    as well. Individuals permanently disabled by psychiatric disabilities have    challenged disparate insurance coverage, alleging violation of Title I.    While these individuals usually meet the burden of establishing disability,    they generally do not prevail because they are not found to be    �qualified.� The insurance issue is covered in Title III of this    chapter. Additionally, the Catch-22 of proving one is an �individual with    a disability� and yet a �qualified individual� is discussed in chapter    3 of this report.

[57] 42 U.S.C. � 12112(a)    (1994).

[58] 42 U.S.C. � 12112(5)(a)    (1994). The ADA does provide a defense for employers �if the covered    entity can demonstrate that the accommodation would impose an undue hardship    on the operation of the business.� 42 U.S.C. � 12112(5)(a) (1994).

[59] EEOC Psychiatric    Enforcement Guidance, Question 17. The request must state that it is related    to a medical condition. The Psychiatric Enforcement Guidance provides an    example of a request that does not meet the requirements: �An employee    asks to take a few days off to rest after the completion of a major project.    The employee does not link her need for a few days off to a medical    condition. Thus, even though she has requested a change at work (time off),    her statement is not sufficient to put the employer on notice that she is    requesting reasonable accommodation.� Ibid., Question 17, Example C.

[60] Ibid., Answer A (emphasis    in original).

[61] Mook Testimony, Hearing    Transcript, p. 227.

[62] Ibid.

[63] Mancuso Testimony,    Hearing Transcript, p. 238.

[64] Ibid., p. 239.

[65] Imparato Testimony,    Hearing Transcript, p. 239.

[66] Ibid.

[67] Ibid.

[68] Ibid., pp. 239�40.

[69]*See*Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 313 (3d Cir. 1999)    (employer does not have to invoke the magic words �reasonable    accommodation� but must make clear he or she wants assistance); Hedberg v.    Indiana Bell Telephone Co., 47 F.3d 928, 934 (7th Cir. 1995) (�the ADA    does not require clairvoyance�); Smith v. Midland Brake, Inc., 180 F.3d    1154, 1172 (10th Cir. 1999) (an employee does not need to use magic words to    give employer notice that he or she is seeking an accommodation for a    disability) (relying on EEOC�s Psychiatric Enforcement Guidance) (the    employer must, however, have some notice or knowledge of the disability). *See,    e.g.,* Miller v. National Cas. Co., 61 F.3d 627, 629 (8th Cir. 1995) (an    employer is not obligated to divine the presence of a disability from the    employee�s extended absence from work and �before an employer must make    accommodation for the physical or mental limitation of an employee, the    employer must have knowledge that such a limitation exists�); Collings v.    Longview Fibre Co., 63 F.3d 828, 834 (9th Cir. 1995) (even assuming the    plaintiffs had a medically recognizable disability, they could not establish    a case under the ADA when they failed to show that the employer was aware of    the disability); Taylor v. Principal Mut. Life Ins., 93 F.3d 155, 165 (5th    Cir. 1996) (holding, �Where the disability, resulting limitations, and    necessary reasonable accommodations are not open, obvious, and apparent to    the employer, as is often the case when mental disabilities are involved,    the initial burden rests primarily upon the employee . . . to specifically    identify the disability and resulting limitations�).

[70] 29 C.F.R. � 1630, app.    � 1630.9.

[71] 29 C.F.R. � 1630.2(o)(1)    (1999).

[72] 29 C.F.R. �    1630.2(o)(2)(i)�(ii). An employer may claim, as a defense, that the    requested accommodation would create an �undue hardship.� If an employer    can demonstrate that it would create an undue hardship�defined as    �significant difficulty or expense� in light of factors such as the    nature and net cost of the accommodation and the overall financial resources    of the entity�an accommodation may not need to be provided. *See*    29 C.F.R. � 1630.2(p)(1)�(2).

[73] Ibid.

[74]*See    generally* EEOC Psychiatric Enforcement Guidance, �Selected Types of    Reasonable Accommodation,� Questions 23�29.

[75] 29 C.F.R. � 1630.2(o)(3)    (1999).

[76] EEOC Psychiatric    Enforcement Guidance, �Selected Types of Reasonable Accommodation.�

[77] Barnett v. U.S. Air,    Inc., 157 F.3d 744, 752�53 (9th Cir. 1998), *amended by* 196 F.3d 979 (9th Cir. 1998), *amended by* 99 Cal. Daily Op. Serv. 8645 (9th Cir. 1999), *vacated    by* 201 F.3d 1256 (9th Cir. 2000). *See    also*Willis v. Conopco, Inc., 108 F.3d 282, 285 (11th Cir. 1997)    (holding that the plaintiff has the burden of showing available    accommodations and that the employer cannot be found liable �merely for    failing to engage in the [interactive] process itself�); White v. York    Int�l Corp., 45 F.3d 357, 363 (10th Cir. 1995) (noting that the    regulations only recommend an interactive process and only after the    employee shows that reasonable accommodation is available); Staub v. Boeing    Co., 919 F. Supp. 366, 370 (W.D. Wash. 1996) (holding that the regulations    only recommend an interactive process).

[78]*See*Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 316 (3d Cir. 1999)    (�[w]hile an employee who wants a transfer to another position ultimately    has the burden of showing that he or she can perform the essential functions    of an open position, the employee does not have the burden of identifying    open positions without the employer�s assistance. �In many cases, an    employee will not have the ability or resources to identify a vacant    position absent participation by the employer� �); Criado v. IBM Corp.,    145 F.3d 437, 444 (1st Cir. 1998) (when an employer terminated an employee    with mental illness due to an alleged miscommunication over a leave of    absence, a jury could find that the employer failed to live up to its    responsibility to find accommodations); Taylor v. Principal Fin. Group, 93    F.3d 155, 165 (5th Cir. 1996) (holding that �the employee�s initial    request for an accommodation . . . triggers the employer�s obligation to    participate in the interactive process of determining one�), *cert.    denied*, 519 U.S. 1029, 117 S. Ct. 586, 136 L. Ed.2d 515 (1996); Beck v.    Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996) (holding    that both parties have a responsibility to participate in an interactive    process and that �courts should look for signs of failure to participate    in good faith or failure by one of the parties to make reasonable efforts to    help the other party determine what specific accommodations are    necessary�). *See also* Fjellestad v. Pizza Hut, 188 F.3d 944 (8th Cir. 1999)    (holding that while there is no per se liability under the ADA if the    employer fails to engage in an interactive process, for summary judgment    purposes failure to engage is prima facie evidence that the employer may be    acting in bad faith).

[79]*Taylor*,    184 F.3d at 315. *See also* Bolstein    v. Reich, 1995 U.S. Dist. LEXIS 7313, AD Cas. (BNA) 1761 (D.D.C. 1995)    (attorney with chronic depression and severe personality disturbance was not    a qualified individual with a disability because his requested    accommodations of more supervision, less complex assignments, and the    exclusion of appellate work would free him of the very duties that justified    his government pay grade). The *Bolstein*    court observed that the plaintiff objected to a reassignment to a lower    grade for which he could have performed the essential functions of the    position. *Id*.

[80] Craven v. Blue Cross and    Blue Cross, No. 99-1924, 2000 U.S. App. LEXIS 12321, at *9, *10 (8th Cir.    June 7, 2000).

[81] Jonathan R. Mook,    Ogletree, Deakins, Nash, Smoak & Stewart, Washington, D.C., telephone    interview, Oct. 2, 1998.

[82] Ibid.

[83] 29 C.F.R. � 1630.9 app.    (1999).

[84] EEOC Psychiatric    Enforcement Guidance, Question 29.

[85] McDonald Testimony,    Hearing Transcript, p. 235.

[86] Ibid., pp. 235�36.

[87]*See*    Equal Employment Opportunity Commission, �Enforcement Guidance on    Reasonable Accommodation and Undue Hardship Under the Americans with    Disabilities Act,� no. 915.002 (Mar. 1, 1999), Question 32. The    Enforcement Guidance on Reasonable Accommodation further provides that    �[n]othing in the ADA, however, prohibits an employer from doing so.    Furthermore, although an employer is not required to change supervisors, the    ADA may require that supervisory methods be altered as a form of reasonable    accommodation.� Ibid.

[88] McDonald Testimony,    Hearing Transcript, p. 232.

[89] Ibid.

[90]*Taylor,*184 F.3d at 319 (quoting the EEOC Psychiatric Enforcement Guidance).

[91] EEOC Psychiatric    Enforcement Guidance, Conduct introduction.

[92] Ibid., Question 30.

[93] Ibid.

[94] Ibid.

[95] McDonald and Rosman, �EEOC    Guidance,� p. 15. *See also*    Eileen P. Kelly and Hugh C. Rowland, �Mental Disabilities Claims Under the    Americans with Disabilities Act and the EEOC�s Guidelines,� *Labor    Law Journal,* September 1997, p. 565 (�The EEOC Guidance goes right to    the heart of an important issue for employers, employer autonomy. The    Psychiatric Enforcement Guidance appears to undermine an employer�s right    to establish rules for its own workplace�).

[96] EEOC Psychiatric    Enforcement Guidance, Question 30, Example C.

[97] Ibid.

[98] Ibid.

[99] Ibid.

[100]    McDonald and Rosman, �EEOC    Guidance,� p. 16.

[101]    McDonald Testimony, Hearing Transcript, p. 208.

[102]    Ibid., p. 216.

[103]    Imparato Testimony, Hearing Transcript, p. 215.

[104]    Ibid., pp. 215�16.

[105]    Mastroianni Testimony, Hearing Transcript, p. 268.

[106]    Ibid.

[107]*See* Den Hartog v. Wasatch Academy,    909 F. Supp. 1393, 1401 (D. Utah 1995) (�Only the Second Circuit�in the    context of the Rehabilitation Act, not the ADA�has determined that    misconduct caused by a disability is protected�).

[108]    42 U.S.C. � 12113(b) (1994).

[109]    29 C.F.R. � 1630.2(r) (1999).

[110]**29 C.F.R. � 1630.2(r)*.* The    regulations contemplate that the determination will include a reasonable    medical judgment relying on the most current medical knowledge and/or the    best available objective evidence.

[111]    29 C.F.R. � 1630.2(r)*.*The    regulations contemplate individualized and careful assessments of the    possible accommodations and the potential risks.

[112]    EEOC Psychiatric Enforcement Guidance, Question 33.

[113]    Ibid.

[114]    Mook Testimony, Hearing Transcript, p. 242.

[115]    Ibid., p. 243.

[116]    Palmer v. Circuit Court, 117 F.3d 351, 352 (7th Cir. 1997), *cert.    denied*, 522 U.S. 1096 (1998).

[117]*Id*. at 352.

[118]*Id*.

[119]    Center, Guidance on Psychiatric Disabilities Advances ADA Awareness.

[120]    Bazelon Center for Mental Health Law, �Political and Legislative    Attacks,� <http://www.bazelon.org/ada.html>.*See also*Marca Bristo, chairperson, National Council on Disability,    Letter to the Editor, *Washington Times*, July 27, 1998,    <http://www.ncd.gov/correspondence/wt_7-27-98.html>.

[121]    Roger Clegg, Testimony, Hearing Transcript, pp. 43�44.

[122]    McDonald Testimony, Hearing Transcript, pp. 250�51.

[123]    Mook Testimony, Hearing Transcript, pp. 209�10.

[124]    U.S. Commission on Civil Rights, *Overcoming the Past, Focusing on the    Future: An Assessment of EEOC�s Enforcement Efforts*, 2000, p. 83    (internal quotations omitted). Additionally, �notice and comment comes at    a substantial price in terms of time and resources and could extend the    process to well over two years.� Ibid., fn. 75.

[125]*See* Olson v. Dubuque Community    Sch. Dist., 137 F.3d 609 (8th Cir.1998). *See    also* Ralph v. Lucent Technologies, Inc., 135 F.3d 166, 170 (1st Cir.    1998) (holding that accommodation of a disability by providing for part-time    work is authorized by the ADA and EEOC�s Psychiatric Enforcement    Guidance).

[126]*See* discussion on Survey of    Employment Decisions in chapter 3 of this report.

[127]    John Parry, �Trend: 1999 Employment Decisions Under the ADA Title    I�Survey Update,� *Mental & Physical Disability Law Reporter,*    May/June 2000, American Bar Association, pp. 348�50.

[128]    Michael Higgins, �No Sudden Impact: Courts Rejecting Mental Disability    Claims Despite EEOC Guidelines Intended to Protect Mentally Ill,� *ABA Journal*, November 1997, p. 25.

[129]    PR Newswire Association, Inc., �National Council on Disability Calls for    Changes in the Treatment of People labeled with Psychiatric Disabilities,�    Jan. 20, 2000.

[130]**42 U.S.C. � 12132 (1994).

[131]    42 U.S.C. � 12131(1). Title II applies to state and local government    bodies. 42 U.S.C. �� 12111(2), (5), 12112(a).

[132]    42 U.S.C. � 12131(2).

[133]    28 C.F.R. � 35.150(a).

[134]    28 C.F.R. � 35.130(d) (1999).

[135]    Sharon Davis, �The Arc: A Status Report to the Nation on People with    Mental Retardation Waiting for Community Services,� The Arc, November    1997, p. 1 (hereafter cited as Davis, �The Arc�). Dr. Davis is the    director of The Arc�s Department of Research and Program Services.

[136]    42 U.S.C. � 12101(a)(2), (5) (1994).

[137]    28 C.F.R. app. A., Part 35 � 35.130 (1999).

[138]    The Arc, formerly the Association for Retarded Citizens of the United    States, is a national organization dedicated to improving the rights and    treatment of persons with mental retardation. The Arc studies issues    concerning persons with mental retardation and produces pamphlets, reports,    brochures, letters, and other information concerning persons with mental    retardation. Its publications range from reports on national waiting lists    to pamphlets for police officers on how to treat suspects with mental    retardation. The Arc�s national headquarters are located at 500 E. Border    St. S-300, Arlington, TX 76010. Its phone numbers are (817) 261-6003 and    (817) 277-0553 (TDD).

[139]    Davis, �The Arc.�

[140]    Ibid., p. 2. At the time of Dr. Davis� study, only 16 states reported    information on transfers from institutions to community-based residential    settings, like group homes. Ibid.

[141]    Ibid., p. 12.

[142]    A. Kathryn Powers Testimony, Hearing Transcript, pp. 123�24.

[143]    E. Fuller Torrey Testimony, Hearing Transcript, p. 130.

[144]    Ibid.

[145]    Joseph Rogers Testimony, Hearing Transcript, p. 142.

[146]    Ira Burnim Testimony, Hearing Transcript, p. 144; Powers Testimony, Hearing    Transcript, p. 151.

[147]    527 U.S. 581 (1999).

[148]*Id.* at 587.

[149]*Id.*

[150]    Bobby Denniston, �Indiana needs a plan for integrating the disabled,� *Indianapolis    Star*, Jan. 24, 2000, p. A09.

[151]    Robert Pear, �U.S. Seeks More Care for Disabled Outside Institutions,� *New    York Times*, Feb. 13, 2000, section 1, p. 24 (hereafter cited as Pear,    �U.S. Seeks More Care�).

[152]*Disability Compliance Bulletin,*    vol. 17, no. 3 (Mar. 24, 2000). �As explained in the letter to state    Medicaid directors, the decision in Olmstead requires states to provide    community-based services for eligible persons with disabilities if: The    state�s treatment professionals determine that such placement is    appropriate; The eligible individuals do not oppose the placement; The    placement can be reasonably accommodated, taking into account the state�s    resources and the needs of other receiving state-supported disability    services.� Ibid.

[153]    Lynn Okamoto, �Iowa Keeps Abreast of Services to Disabled,� *Des    Moines Register*, Feb. 16, 2000, p. 3.

[154]    Ibid.

[155]    �Back to the Community; Court Ruling Nudges Deinstitutionalization    Effort,� *Pittsburgh Post-Gazette,*Mar.    20, 2000, p. A-14.

[156]    Kathleen v. Dep�t of Public Welfare, 1999 U.S. Dist. LEXIS 19498,    19498�99 (E.D. Pa. 1999).

[157]    �Leading Cases: III. Federal Statutes, Regulation, and Treaties,� *Harvard    Law Review,* vol. 113 (1999), pp. 326, 327.

[158]    Joanne Krager, � �Don�t Tread on the ADA�: Olmstead v. L.C. Ex. Rel    Zimring and the Future of Community Integration for Individuals with Mental    Disabilities,� *Boston College Law Review,* vol. 40 (1999), pp. 1221,    1223.

[159]    197 F.3d 611 (2d Cir. 1999).

[160]    Rodriguez v. City of New York, 197 F.3d 611, 612 (2d Cir. 1999).

[161]*Id.*at 619.

[162]*Id.*

[163]    �Courts of Common Pleas: Family Law�*In    re Bear*,� PICS No. 00-0196, *Pennsylvania    Law Weekly*, Feb. 21, 2000, p. d11. This is a Pennsylvania Court of    Common Pleas case that is not published or in electronic format. Psychiatric    cases, outside of employment, are often sealed or the parties� names are    redacted, and they are difficult to find in the public record.|

[164]    Ibid.

[165]    Ibid.

[166]    Ibid.

[167]    Katherine Boo, �Olympic Achievement Out of Reach,� *Washington Post,*Mar. 14, 1999, p. A1. Katherine Boo, �Residents    Languish; Profiteers Flourish,� *Washington    Post*, Mar. 15, 1999, p. A1. Katherine Boo, �System Loses Lives and    Trust,� *Washington Post,*Dec. 5,    1999, p. A1. Marcia Slacum Greene and Lena H. Sun, �Deaths Put D.C. Group    Home Under Scrutiny,� *Washington    Post,*May 18, 2000, p. A1. Barbara Vobejda, �Concerns Raised About    Program for Retarded,� *Washington    Post*, May 19, 2000, p. A1.

[168]    Katherine Boo, �U.S. Probes D.C. Group Homes,� *Washington Post,*May 4, 1999, p. A1.

[169]    �Verdict and Settlements,� *National    Law Journal*, May 15, 2000, p. A13. Please note this is a secondary cite.    This case is not yet available in print or electronic format (citing Godwin    v. State of Florida Dep�t of Health and Rehabilitative Servs., No.    95774CA-11 (Cir. Ct. St. Lucie Co., Fla. 2000)).

[170]    Ibid.

[171]    Ibid.

[172]    Ibid.

[173]    Ibid.

[174]National Council on Disability,    �From Privileges to Rights: People Labeled with Psychiatric Disabilities    Speak for Themselves,� Jan. 20,    1999, <http://www.ncd.gov/newroom/publications/privileges.html>.

[175]    Ibid., p. 5.

[176]    Ibid., p. 4.

[177]    Ibid., p. 6.

[178]    Ibid., pp. 4, 6�9. The NCD report provides an in-depth analysis, and its    recommendations are a starting point for addressing the problems associated    with providing services to individuals with psychiatric disabilities under    the ADA.

[179]    Law Enforcement Resource Center, �Police and people with Disabilities:    Facilitator Guide� (Minneapolis, MN: Law Enforcement Resource Center,    1996), p. 11 (hereafter cited as LERC, Facilitator Guide). This has been    made a part of the record at exhibit 24.

[180]*See* U.S. Commission on Civil    Rights, �Law Enforcement: Discrimination by Law Enforcement Personnel,�    in *Helping State and Local Governments    Comply with the ADA,*1998, pp. 66�69. Although the Department of    Justice has submitted *amicus*    briefs, it has not initiated litigation against a law enforcement agency    under Title II. Ibid., p. 67.

[181]    Several documents were introduced at the Commission�s ADA hearing held    Nov. 12�13, 1998. Leigh Ann Davis provided an opening statement to the    Commission and submitted several other publications that she wrote.

[182]    U.S. Department of Justice, Civil Rights Division, Disability Rights    Section, �Commonly Asked Questions About the ADA and Law Enforcement,�    n.d., pp. 1�2.

[183]    Leigh Ann Davis, �People With Mental Retardation in the Criminal Justice    System,� The Arc, October 1995, p. 2.

[184]    28 C.F.R. app. A., Part 35 � 35.102 (1999).

[185]*Id.*

[186]    Police Executive Research Forum, �Mental Illness: Police Response,�    n.d., p. 5.

[187]    Ramnaraine Testimony, Hearing Transcript, p. 81.

[188]    Ibid. Besides the videotape that Hennepin County produces, The Arc also    produced a videotape titled �Understanding Mental Retardation: Training    for Law Enforcement,� 1998.

[189]    Police Executive Research Forum, �Mental Illness: Police Response,�    n.d., p. 6.

[190]    Ibid.

[191]    Ibid.

[192]    Leigh Ann Davis, �A Police Officers Guide: When in Contact With People Who    Have Mental Retardation,� The Arc, 1996, pp. 1�2    <http://TheArc.org/ada/police.html>. Mental retardation refers to    below average abilities to learn and process information and generally    occurs before adulthood. Mental illness affects thought processes, moods,    and emotions and can occur at any age. Ibid., p. 2.

[193]    Ibid.

[194]    Leigh Ann Davis, �People With Mental Retardation and the Criminal Justice    System,� The Arc, October 1995, p. 2.

[195]    LERC, Facilitator Guide, pp. 12�13. �A Police Officer�s Guide: When in    Contact With People Who Have Mental Retardation,� The Arc, undated    pamphlet.

[196]    The Arc has several publications regarding individuals with mental    disabilities. *See e.g*., �A    Police Officer�s Guide,� and �Understanding Mental Retardation:    Training for Law Enforcement,� 1998.

[197]    Ibid.

[198]    Ibid.

[199]    Police Executive Research Forum, �Take Another Look: Seizure Recognition    and Management�Information for Law Enforcement Personnel,� n.d., p. 2.    The pamphlet advises that to protect people�s rights �it is better to    handle a seizure-like episode as if it is a seizure until evidence clearly    points in another direction.� Ibid., p. 4.

[200]    Ibid.

[201]    42 U.S.C. � 12182(a) (1994).

[202]*See*42 U.S.C. � 12181(7) (1994).

[203]    For example, one interesting question that is now before the United States    District Court in Boston is whether the Internet is a public accommodation.    In November 1999, the National Federation of the Blind filed a lawsuit    against America Online (AOL), alleging that AOL is not compatible with the    software required to translate computer signals into synthesized speech or    Braille, which would allow the visually impaired to access AOL. National    Federation of the Blind v. America Online, No. 99CV1233EFH (D. Mass. filed    Nov. 4, 1999). The Department of Justice, in 1996, issued a statement, sent    to the U.S. Senate, stating that the ADA should cover government entities on    the Internet. The House Judiciary Committee�s Subcommittee on the    Constitution held an oversight hearing in February 2000 on the applicability    of the ADA to private Internet sites. The courts have yet to decide whether    the ADA public accommodation provisions cover the Internet and e-commerce    Web sites.

[204]*See*42 U.S.C. �� 12182(a)    (1994), (b)(2)(A)(ii) (1994). As with other ADA titles, a defendant accused    of discrimination has the defense of undue burden. *See*42    U.S.C. � 12182(b)(2)(iii) (1994) (an entity is required to accommodate    unless it can demonstrate that taking such steps would fundamentally alter    the nature of the good, service, facility, privilege, advantage, or    accommodation being offered, or would result in an undue burden).

[205]    One novel case regarding public accommodations that has been the subject of    recent media attention is the case of professional golfer Casey Martin. Mr.    Martin, who suffers from a rare congenital vascular disorder that puts him    at serious risk for leg fractures and blood clots when walking, sued the    Professional Golfers Association under the ADA for permission to use a golf    cart during tournaments. The federal district court ruled that the use of a    golf cart for a professional golfer suffering from this type of disability    was a reasonable accommodation. Martin    v. PGA Tour, Inc.,994 F.    Supp. 1242 (D. Or. 1998),*affirmed*    204 F.3d 994 (9th Cir. 2000). The Supreme Court granted the petition for *certiorari*by the Professional Golfers Association and heard oral arguments on    January 17, 2001. *See* PGA Tour, Inc. v. Martin, 121 S. Ct. 30, 2000    U.S. LEXIS 4865, 69 U.S.L.W. 3223.

[206]    86 F.3d 844 (8th Cir. 1996).

[207]    Roberts v. KinderCare Learning Centers, 86 F.3d 844, 847 (relying on 42    U.S.C. � 12182(b)(2)(iii) (1994)).

[208]    184 F.3d 1017 (8th Cir. 1999).

[209]    Amir v. St. Louis Univ., 184 F.3d 1017, 1027 (8th Cir. 1999).

[210]*Id.*

[211]*Id.* at 1028.

[212]    A related issue, beyond the scope of this report, is whether Title III    applies to the services provided by insurers as opposed to the physical    access to their offices.

[213]    The issue of insurance coverage for long-term disability benefits under    Title I has resulted in a split in the circuits. The Sixth, Seventh, Ninth,    and Eleventh Circuit Courts of Appeals have denied claims that limits on    long-term disability benefits for mental disability�with no restrictions    on long-term benefits for physical disability�are a violation under ADA. *See,    e.g.*, Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104 (9th Cir.    2000) (finding that statute defines �qualified individual� to be one who    can still perform �the essential functions of the employment position that    such individual holds� and that plaintiff, by identifying herself as    totally disabled, cannot fit within the parameters of the definition as she    no longer has the ability to perform her job); EEOC v. CNA Ins. Co., 96 F.3d    1039 (7th Cir. 1996) (denying standing because the disabled employee did not    meet the definition of a qualified individual with a disability); Parker v.    Met. Life Ins. Co., 121 F.3d 1006 (6th Cir. 1997), *cert.    denied*, 118 S. Ct. 871 (1998) (rejecting plaintiffs� standing as    qualified individuals with a disability because defining �benefits    recipient� as an �employment position� conflicted with the plain    meaning of the statute). The Third Circuit, however, examined the same issue    and reached the opposite conclusion, finding that Title I�s prohibition    against discrimination with respect to terms, conditions, and privileges of    employment, including benefits, permits former employees to sue over their    disability benefits. Ford v. Schering-Plough Corp., 145 F.3d 601, 608 (3rd    Cir. 1998) (determining that qualified individuals with a disability    included �former employees who were once employed with or without    reasonable accommodations yet who, at the time of suit, are completely    disabled�).

[214]    Many employers offer long-term disability plans, and most of these plans    draw a distinction between mental and physical disabilities�allowing    benefits for up to 18 or 24 months for persons deemed to be totally disabled    due to a mental disorder and benefits until age 65 for persons considered    totally disabled by physical disorders. *See,    e.g.,*EEOC v. CNA Ins. Co., 96 F.3d 1039 (7th Cir. 1996).

[215]    198 F.3d 1104 (9th Cir. 2000).

[216]    The insurance policy at issue provided benefits for 24 months for    individuals with mental illness, whereas individuals with physical    disabilities were not subject to the same limitation and could get benefits    until age 65. Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104,**1107�08 (9th Cir. 2000).

[217]*Id*. at 1114. To further illustrate    its point, the court analogized that a bookstore could not discriminate    against individuals with disabilities in having access to the bookstore, but    did not have to provide books in Braille as well as print. *Id.* at 1115.

[218]*Id*. at 1116. The court further    concluded that even if the insurance company was held to be a place of    public employment and the insurance policy was found to be an offered good,    it would fall within the ADA�s safe harbor for insurers.

[219]    121 F.3d 1006 (6th Cir. 1997).

[220]**Parker v. Met. Life Ins., 121 F.3d 1006, 1010 (6th Cir. 1997).

[221]*Id.* at 1011 (relying on    Stoutenborough v. National Football League, 59 F.3d 580 (6th Cir*.*)*,    cert. denied*, 516 U.S. 1028 (1995) (holding that television broadcasts    of football games are not public accommodations despite that football games    are held at a public accommodation).

[222]    37 F.3d 12 (1st Cir. 1994).

[223]    Carparts Distribution Ctr., Inc. v. Automotive Wholesaler�s Ass�n, 37    F.3d 12, 19�21 (1st Cir. 1994). The court stated that �even if the    meaning of public accommodation is not plain, it is, at worst, ambiguous.�    *Id*. at 19. This ambiguity, the court held, considered together with    agency regulations and public policy concerns, was persuasive that the    phrase was not limited to actual physical structures. *Id.*

[224]*Id.* The court recognized that    there is language in the legislative history that gives the impression that    Title III is primarily concerned with physical access, yet �there is    nothing in that history that explicitly precludes an extension of the    statute to the substance of what is being offered.� *Id.*Thus, the court limited its decision to �the possibility that the    plaintiff may be able to develop some kind of claim under Title III.� *Id.*

[225]    Cases challenging the discriminatory actions of licensing agencies or    professional committees/associations have been brought under both Title II    and Title III of the ADA. *See*Anonymous    v. Connecticut Bar Examining Comm., CV 94 0534160 S (Conn. Super. Ct. Jud.    Dist. Hartford/New Britain 1994) (challenging bar association, as public    entity under Title II, with discrimination for denying admission to the bar    based on applicant�s disclosed mental health history).

[226]*See, e.g.,* Deborah L. Rhode,    �Moral Character as Professional Credential,� *Yale Law Journal,*    vol. 94 (1985), pp. 491, 494 (bar associations are interested in protecting    their image and economic well-being and �A single [unfit or presumptively    unfit] lawyer brings �disrepute to the whole profession,� penalizing the    thousand who slave �mightily and righteously� �); Phyllis Coleman and    Ronald A. Shellow, Restricting Medical Licenses Based On Illness Is    Wrong�Reporting Makes It Worse, *Journal of Law & Health*, vol. 9    (1994/1995), pp. 273, 277 (�Medical boards face the difficult but    essential task of protecting the public from incompetent physicians. Indeed,    licensing boards are widely, if dimly, perceived as the keepers of the gate    of the medical profession�) (citation omitted).

[227]*See*Comment: �Challenging a State Bar�s Mental Health Inquiries Under the ADA,� *Houston    Law Review,* vol. 32 (Winter 1996), pp. 1384, 1386.

[228]    Ibid., p. 1386.

[229]    Ibid*.*

[230]    Several courts have enjoined bar committees from inquiries into    applicants� histories of having been treated for mental disorders, but    others have declined to do so. *Compare*Clark v. Virginia Bd. of Bar Exam�rs, 880 F. Supp. 430 (E.D. Va.    1995), and Ellen S. v. Florida Bd. of Bar Exam�rs, 859 F. Supp. 1489 (S.D.    Fla. 1994) (enjoining inquiries), *with*Campbell v. Greisberger, 865 F. Supp. 115 (W.D.N.Y. 1994), and McCready    v. Illinois Bd. of Admissions to the Bar, No. 94C3582, 1995 WL 29609 (N.D.    Ill. Jan. 24, 1995) (allowing inquiries). In Medical Society v. Jacobs, 1993    WL 41306 (D.N.J. 1993), a state medical board was prohibited from asking    about alcohol or drug abuse and mental or psychiatric illness.

[231]    The Health Insurance Reform Act of 1995, S. 1028, 104th Cong., 142 Cong.    Rec. S3589 (1996) (statement of Sen. Wellstone). |