ON BEHALF OF
THE NATIONAL ALLIANCE FOR THE MENTALLY ILL
UNITED STATES COMMISSION ON CIVIL RIGHTS
HEARING ON TITLE I OF THE AMERICANS WITH DISABILITIES ACT AND PSYCHIATRIC DISABILITIES
DECEMBER 14, 1998
Historically, people with mental illnesses have been stigmatized. This stigma permeates writings from medieval to modern times. It was once thought that mental illness was related to being possessed with demons. While such concepts are no longer prevalent, people suffering from severe mental illnesses are still largely viewed as constitutionally weak, products of poor upbringing, and responsible for their own plight.
Today of course, we know better. We know that mental illnesses such as schizophrenia, bipolar disorder, and major depression are real medical illnesses-as real as heart disease, cancer, and other organic conditions affecting the body. However, discrimination against individuals with mental illnesses continues to be a serious and pervasive social problem.
The Equal Employment Opportunity Commission (EEOC) has recognized, in enforcement guidance issued on "The Americans with Disabilities Act and Psychiatric Disabilities," that the workforce includes many individuals with psychiatric disabilities who face employment discrimination because their disabilities are stigmatized and misunderstood. It was the intent of Congress that the ADA be used to combat such employment discrimination and the myths, fears, and stereotypes upon which it is based.
In the relatively short time the ADA has been in effect, there has been some confusion and negative public attention focused on its application, frequently due to widespread misconceptions predicated upon the false fears and stigmatizing stereotypes discussed above. However, the ADA has also had significant positive effects overlooked by the media and the general public. These positive effects are of critical importance to persons with mental illness and their families.
The 1990's has been deemed by Congress to be the "Decade of the Brain," in recognition of remarkable advances that have occurred in understanding and treating serious brain disorders such as schizophrenia, bipolar disorder, Tourette's syndrome, and epilepsy. Because of these advances, people who thirty years ago may have been relegated to the back wards of hospitals are today capable of working and living independently in the community.
However, many people with severe mental illnesses overcome the most debilitating symptoms of their illnesses only to discover that doors to employment and other aspects of life in the community are barred to them because of attitudinal barriers and unjustified fears of mental illnesses. In recognition of this, Congress made sure that people with severe mental illnesses were included within the scope of the ADA's anti-discrimination protections. NAMI urges the Civil Rights Commission to exert its leadership in ensuring that people with severe mental illnesses continue to benefit from these important protections.
Historically, people with severe mental illnesses have been loathe to disclose their conditions to others for fears that such disclosures would have profoundly negative effects on employment, housing and other aspects of their lives. Unfortunately, these fears have often come to pass. The ADA provides crucial protections for people with psychiatric disabilities against inappropriate breaches of privacy and confidentiality. These protections affect both the hiring process and employment experience of persons with mental illnesses.
The ADA protects the privacy of individuals with psychiatric disabilities by imposing limits on compelled disclosure of a psychiatric disability. Employers are not permitted to ask applicants about psychiatric history in the pre-offer interview process. Generally, applicants and employees are only required to disclose a psychiatric disability when requesting an accommodation. Given the substantial prejudice towards persons with mental illness, the limits set on compelled disclosure are absolutely imperative to the full integration of persons with psychiatric disabilities into the workforce. With these protections, the likelihood that a person with mental illness will suffer discrimination in the hiring process is substantially decreased.
The confidentiality requirements set out in the ADA and the EEOC Guidance on Psychiatric Disabilities ("Guidance") serve to protect the privacy of an employee with a psychiatric disability. While supervisors and managers may become aware of the presence of a psychiatric disability, they are prohibited from discussing it with others. As an added privacy protection, the Guidance requires that employee records which contain information about psychiatric history be stored separately from other personnel files. Both of these confidentiality provisions reduce the likelihood that the employee will experience stigma in the workplace, in the form of discriminatory treatment and exclusion by co-workers. Again, given the serious and pervasive problem of stigma associated with mental illness, these protections are critically important.
NAMI shares the concern of the Civil Rights Commission that negative portrayals of the ADA undermine support and understanding of the Act. Some media portrayals of the ADA have been unnecessarily negative, exaggerating potential for frivolous lawsuits under the Act, instead of focusing on the significant potential of the law to provide equal opportunity for individuals with disabilities.
Despite such misunderstanding and negative views by the American public, the ADA is a crucial tool for persons with psychiatric disabilities in the workplace. What the media and the public frequently overlook is that, in many instances, the ADA can actually prevent litigation.
NAMI regularly receives inquiries from employers seeking guidance on how to comply with the ADA. These inquiries include questions about reasonable accommodations, guidelines for conducting job interviews, protecting confidentiality of employees with psychiatric disabilities, and many others. The compassion and concern that many employers demonstrate towards workers with severe mental illnesses is remarkable! We also receive many questions from employees and job candidates with mental illnesses about their rights and responsibilities under the ADA.
Using the EEOC Guidance as a reference, voluntary cooperation between employers and employees can result in the creation of an understanding and productive work environment, fully integrating persons with mental illness into the workforce without litigation. Title I of the ADA also creates a strong presumption in favor of informal resolution of employment problems experienced by workers with disabilities, through the use of mediation and alternate dispute resolution methods instead of litigation.
Nearly 13% of all ADA claims brought to the EEOC are related to psychiatric disabilities. Critics of the ADA use this high incidence of claims to argue that allowing psychiatric disabilities to fall under the protections of Title I generates frivolous claims and encourages baseless litigation, which in turn undermines the credibility of the Act. Two important factors should be taken into consideration in examining the validity of this argument.
First, as discussed above, people with severe mental illnesses are frequently victimized by stigmatizing attitudes which translate into discrimination against them. Since in any given year, more than five million Americans suffer from an acute episode of mental illness, the 13% figure does not appear to be extraordinarily high.
Second, while the ADA incorporates a broad definition of "mental or emotional impairment", the actual criteria for establishing that one's impairment constitutes a disability deserving of the protections of Title I is far narrower. An individual with a psychiatric disability asserting a claim under Title I must prove not only that s/he has an impairment included within the Diagnostic and Statistical Manual (DSM-IV) used by psychiatrists to diagnose mental disorders, but also that this impairment results in a substantial limitation of at least one major life activity.
The DSM-IV has come under some criticism for its overly broad and inclusive nature. Critics argue that the broad nature of the DSM-IV invites the filing of frivolous claims by persons who do not truly have disabilities. However, it is unfair and unwarranted to penalize persons with severe mental illnesses such as schizophrenia, bipolar disorder, and major depression who file legitimate ADA claims by generally characterizing psychiatric disability protections under the ADA as abused and overused. As stated above, the requirement in the ADA that individuals asserting complaints must prove that their impairments cause substantial limitations in at least one major life activity is a safeguard against frivolous claims surviving beyond the EEOC administrative review process.
Occasionally, incidents of violence are connected with untreated severe mental illnesses. Frequently, these episodes generate considerable media attention and, unfortunately shape public perceptions of and further reinforce the stigma toward people with mental illnesses.
In discussing Title I of the ADA as it relates to psychiatric disabilities, it is important to recognize that these rare acts of violence are typically carried out by individuals who are not receiving treatment for their illnesses and as a direct result of delusions and/or hallucinations that significantly alter a person's perception of reality. These individuals are usually so ill that they are unlikely to be gainfully employed. Moreover, the ADA contains a "direct threat" provision which serves to exclude persons with a recent history of violence or those exhibiting signs of imminently threatening behaviors from the protections of Title I. Therefore, it is neither necessary nor appropriate to cite violence or threatening behaviors as a basis for excluding persons with severe mental illnesses from the ADA.
The ADA and Insurance
Perhaps the most insidious and pervasive form of discrimination experienced by people with severe mental illnesses is in the area of insurance. Most health insurance policies contain benefits for treatment for mental illnesses which are far lower than benefits for all other medical disorders. The same is true for long-term disability insurance and other forms of insurance benefits. Employers and insurance companies have never been able to demonstrate a sound actuarial justification for these arbitrary limits on mental health benefits.
Because of perceived ambiguities in the law, the ADA has been of limited value in addressing these historical, discriminatory inequities in insurance benefits. However, the ADA has been used to create broader awareness of discriminatory insurance practices, and to buttress efforts to enact federal and state legislation to achieve equitable inclusion of mental illnesses in insurance. This is yet another example of why the ADA is so important as a source for protecting persons with severe mental illnesses against inappropriate discrimination.
Once again, I appreciate the opportunity to provide testimony to the Commission, on behalf of NAMI, about the importance of the ADA for people with severe mental illnesses. Please direct any questions about this testimony to Ron Honberg or Katy Scheflen at the NAMI National Office, 703-524-7600.