A Fairness of Mind
By Brian D. Shannon,J.D.
C
M i e Ummer
(Editor's Note: Thefollowing essay
toas zwitten by Tmas Tech University
Professor of Law Brian D. Shannon,
u)horegtrlarly teaches among his
coi~rsesa seminar in law andpsychiatry. He also volzcnteers as a
member of the boards of directors of
both the Lzrbbock Regional Mental
Health/Mental Retardation Center
and the Tmas Council of Community MHMR Centm. Shannon and
T m m Tech Law Professor Dan Benson recently have cotnpleted work on
a book, "Texas Crimirzal Procedrcre
& The 0ffender WithMental Illness:
At2 Atzalysis & Gttirie,"which zuas
fir ndcd by a grant front the Taas
Bur Fol~?~~/atiorz.)
ongress enacted the Americans with Disabilities Act
(ADA) in 1990, and most
citizens generally are aware
that this landmark legislation provides
greater legal protections to persons
with disabilities. Somewhat less understood, however, is that the act covers
not only persons with physical disabilities, but also individuals suffering from
an array of mental disabilities.
Under the new law, a covered disability may include "a physical or mental impairment that substantially limits
one or more of the major life activities
of. . . (an) individual." The ADA also
provides protections to persons who
have a previous record of impairment
or who have been regarded as having
an impairment. The implementing regulations for the ADA further define
"mental impairment" to include "any
mental or psychological disorder, such
as mental retardation, organic brain
syndrome, emotional or mental illness,
and specific learning disabilities." Despite the breadth of this definition, the
act specifically excludes active illegal
drug users, persons with compulsions
such as gambling, and a variety of sexual disorders and preferences.
Clearly, however, the scope of the
ADA is far broader than just physical
disabilities. Indeed, more than 1,100
allegations of employment discrimination based on mental disability were
filed with the Equal Employment
Opportunity Commission during the
first year of the ADA's existence, representing almost 10 percent of all claims
filed, according to a recent article by
Paul E Mickey Jr. and Maryelena Pardo.
The inclusion of mental disabilities
within the ambit of the act was intended, in part, to provide greater protections to persons who traditionally have
been "victimized by myths, fears, and
stereotypes about certain mental or
physical conditions," notes author John
VC! Parry. For example, despite general
ignorance and popular misconceptions,
recent brain research has revealed that
serious mental illnesses such as schizophrenia, manic depression and major
depressive illnesses are organic diseases of the brain. Like other organs of
the body, the brain can become ill. For
example, Dr. E. Fuller Torrey, a leading
research psychiatrist, has commented
that "the evidence that serious mental
illnesses are diseases is now overwhelming . . . ." Given the origins of
these illnesses, Dr. Torrey has queried,
"Why should we treat them (mental
illnesses) any differentlythan Parkinson's or Alzheimer's or multiple sclerosis?" Such mental illnesses are treatable
diseases of the brain, and not indicative
of flaws or weaknesses in character.
What is the significance of the ADA's
coverage of individuals suffering from a
variety of mental disabilities?With
respect to employment opportunities,
persons with mental disabilities are
protected by the ADA if they "can perform the essential functions" of a job.
Title I of the act precludes employers
from discriminating against qualified
individuals with disabilities "in regard
to job application procedures, the hiring, advancement, or discharge of
employees, employee compensation,
job training, and other terms, conditions, and privileges of employment."
Through ~ u l y25,1994, the employment sections of the ADA apply to
employers with 25 or more full or regular, part-time employees. Starting on
July 26,1994, the scope of the act
expands to include employers with 15
or more full or regular, part-time
employees.
In addition, the implementing regulations provide that the ADA will protect "an individual with a disability
(whether physical or mental) who satisfies the requisite skill, experience, education and other job-related requirements of the employment position
such individual holds or desires, and
who, with or without reasonable
accommodation, can perform the
Ante timmer
SPRING 1974 7
essential functions of such position."
With regard to persons suffering from
mental illnesses or other mental
impairments, Parry has suaested that
"the primary impediments to performing essential job functions (and thus
employment) are characteristics or
symptoms that affect the abilities to
think, perceive, act or react."
The ADA requires employers to make
individualized determinations about a
person's present ability to handle and
safely perform the essential functions of
a job. Particularly in the case of persons
with mental illness, an employer's
determination should not be based on
pre-conceivedperceptions, fears or stereotypes about the particular disability,
notes author Deborah Zuckerman.
Employers are not to ask, either in the
application process or during an interview, about whether a job applicant has
a disability or about the nature of the
disability. Employers may, however,
identify job-related functions and ask
job applicants whether they can perform the necessary tasks, she further
explains.
If an individual is "otherwise qualified" for a position, based on such factors as experience, skills, education or
licensing, the employer then must
determine whether that person can perform the job's essential functions, with
or without reasonable accommodations. The ADA requires that if an individual is able to perform a job's essential functions, but only with certain
accommodations, an employer's failure
to provide reasonable accommodations
constitutes discrimination unless the
employer can show that the accommodations would be an undue hardship or
that the employee, even after being
accommodated, still would pose a
direct threat to the health or safety of
that person or others, notes Mickey Jr.
and Pardo.
For persons with mental disabilities,
examples of reasonable accommodations in the workplace, Parry observes,
might include flexible scheduling to
accommodate the effects of psychoactive medications, reasonable time-off
for short-term medical or psychiatric
treatment, restructuring of duties or the
work environment, the sensitizing of
other employees about psychiatric conditions, or job assistance and training.
Zuckerman has suggested that the
actual cost of accommodating employees with mental illness is quite low,
8
V I STA S
Tam Tech Research
particularly given that, in contrast to the
case for many physical disabilities,
accommodations such as special equipment and architectural changes would
likely be unnecessary.
Clearly, the ADA will significantly
improve employment opportunities for
persons with disabilities. The ADA does
not apply solely to the employment setting, however. There have been many
inquiries concerning the extent to
which the ADA will affect colleges and
universities.
Moreovw, persons with
mental disabilities will
have new opportunities in
their lives. . . (through)
this signzjiicant legislation.
~s a general proposition, the passage
of the ADA will not have a major impact
on public colleges and universities
given the existence of prior legal prohibitions on discrimination against persons with disabilities. Institutions that
receive federal funds, such as most
public colleges and universities, have
long been covered by Section 504 of
the Rehabilitation Act of 1973.That law
already had placed limits on discrimination by such entities against persons
with disabilities, including mental
disabilities.
Indeed, one of the underlying purposes of the ADA was to extend preexisting legal restraints on discrimination from institutions receiving federal
funds to private employers and other
public sector entities. One possible distinction between prior law and the
ADA, however, relates to potential
remedies and available legal process. A
recent analysis suggested that under the
Rehabilitation Act, affected individuals
often must pursue complaints first
through federal agencies for investigation and review. In contrast, the ADA
permits more direct actions against
alleged violators, reports Scott Jaschik
in The Chronicle of Higher Education.
Another area of interest regarding the
ADA and persons with mental illness
relates to state licensing requirements
and application inquiries. Traditionally,
state licensing authorities, such as bar
examiners and medical licensing
boards, have asked very broad ques-
tions about the psychiatric histories of
applicants. The application questions,
although not uniform across the nation,
often inquire about any prior psychiatric illness or treatment over an applicant's lifetime or for a substantial
number of years. Although a state
licensing board generally has a duty to
bar from a profession persons who are
not presently fit to practice that profession, questions about past treatments or
illnesses do not focus on actual, current
impairments of an applicant's abilities
or functions. The ADA requires any
such inquiry to be narrowly tailored to
determine current fitness to practice a
profession. Overly broad questions may
run afoul of the ADA because they tend
to categorize persons with disabilities
based on status and broad stereotypes
that do not necessarily indicate that the
person cannot perform the essential
functions of the job.
At present, two courts already have
found fault with overly broad questions
concerning applicants' prior psychiatric
treatment or illnesses. In The Medical
Society of New Jersey v.Jacobs, a federal
judge found a likelihood that broadly
inquiring into the mental health of
applicants for New Jersey medical
licenses violates the ADA. Similarly,the
Maine Supreme Court recently has
ruled that the Maine state bar's inquiries into applicants' mental health histories and requests for complete release
of all medical records relating to psychiatric history violate the ADA. That
court suggested that although the state
bar could fashion other questions more
directly related to an applicant's current
fitness or behavior as it might affect the
practice of law, the broad questions in
issue violated the ADA. Of local interest, a legal challenge is now pending
against the state bar of Texas regarding
similar broad questions that law students must respond to in applying to
become Texas attorneys.
Without doubt, the ADA represents a
major change in the legal landscape for
persons suffering from disabilities.
Moreover, persons with mental disabilities will have new opportunities in
their lives given the protections
afforded by this significant legislation.
We can all benefit, however, by complying with the letter and spirit of the ADA
to better enable capable individuals
with disabilities, whether physical or
mental, to be full members of our
society.