Fundamental to the definition of community inclusion is the expectation that people with psychiatric disabilities will have the same opportunities in life as anyone else, including the chance to live and work in the community like everyone else, to pursue an education or civic engagement like everyone else, or to enjoy leisure/recreational activities and religious affiliations like everyone else.
The ‘right’ to live like everyone else hasn’t always been the law of the land, but Congress laid the federal foundation for a community inclusion mandate in 1990, when it passed the landmark Americans with Disabilities Act (ADA). The ADA is part of a greater movement toward social change initiated by the Civil Rights Act and the Fair Housing Act of the 1960s: although these earlier laws did not go so far as to include equal opportunities for people with disabilities, their approach to social justice set the groundwork for later laws that did, such as the the ADA of 1990. The result of grassroots organizing by people with many types of disabilities nationwide, the ADA, which was reauthorized by the Congress a decade later, continues to be a cornerstone for the community inclusion movement. (See http://www.adata.org for more information.)
According to the U.S. Department of Justice Civil Rights Division’s brochure on the Americans with Disabilities Act, “an individual is considered to have a disability if he or she has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment. The Act then goes on to spell out the rights of people with disabilities in a series of ‘titles’ that continue to shape federal and state policy. (See http://www.usdoj.gov/crt/ada/q%26aeng02.htm for frequently asked questions on the ADA.)
What are the titles of the Americans with Disabilities Act?
Employment: An employer is not allowed to discriminate against people with disabilities – including people with psychiatric disabilities – in hiring, firing, promotion, or other aspects of the job, and must make ‘reasonable accommodations’ that allow a person with a disability to perform a job.” Reasonable accommodations” are those modifications or adjustments to a workplace environment that will give a qualified applicant who has a disability the ability to apply for the job and will enable an employee with a disability to perform the essential functions of the job. It is necessary for employers to accommodate only known disabilities of a qualified applicant or employee. Accommodations should also be individualized, because disabilities and job requirements vary. Employers are not required to make accommodations that would pose “undue hardships” to their business, i.e. an “action requiring significant difficulty or expense.”
Employers can receive a special tax credit for complying with accommodations of the ADA. The employment provision applies to private employers, State and local governments, employment agencies, and labor unions. Employers with 25 or more employees were covered as of July 26, 1992. Employers with 15 or more employees were covered two years later, beginning July 26, 1994. (Title I.) The ADA bars discrimination in all employment practices including: job application procedures, hiring and firing, advancement, compensation, training, recruitment, advertising, tenure, layoff, leave, fringe benefits, and all other employment-related activities. (See http://www.ada.gov/cguide.htm for more information on Title I.)
Government services: Local and state governments must make their services accessible to people with disabilities and must not discriminate in providing services. Every public entity program is covered by the ADA, including the activities of state legislatures and courts, town meetings, police and fire departments, motor vehicle licensing, and employment. (Title II.) (See http://www.ada.gov/t2hlt95.htm for more information on Title II.)
Businesses: Private businesses and non-profits that serve the public, called places of public accommodation by the ADA, and commercial facilities (other businesses) are required to make their facilities accessible to people with disabilities and must not discriminate based on disability. Some examples of places of public accommodation include: restaurants, hotels, theaters, doctors’ offices, pharmacies, retail stores, museums, libraries, parks, private schools, and day care centers. (Title III.) See http://www.ada.gov/t3hilght.htm for more information on Title III.)
Other ADA titles cover topics including telecommunications and miscellaneous matters, but the titles relating to employment and government services are particularly significant to community inclusion. Individuals who experience discrimination and prejudice in the workplace and in the provision of support services find themselves with diminished choices in their ability to care for themselves and to participate in everyday activities, such as where to live and where to work.
How are these provisions enforced?
- Employment complaints can be filed with the Equal Employment Opportunity Commission or certain state human rights agencies. Possible remedies include: hiring, reinstatement, promotion, back pay, front pay, restored benefits, reasonable accommodation, attorneys’ fees, expert witness fees, and court costs.
- The ADA’s provisions relevant to the State and local governments are enforced through private lawsuits. Complaints can also be filed with eight designated Federal agencies, including the Department of Justice.
- Public accommodations provisions can be enforced through private lawsuits in which a court order can be obtained to stop the discrimination that is occurring.
- Other complaints can also be filed directly with the U.S. Attorney General.
Despite certain limits, the ADA requires major changes from businesses and governments, and Congress was aware that businesses and governments would need guidance in making those changes. To help provide that guidance, Congress specified in the ADA that certain federal agencies, like the Equal Employment Opportunity Commission (EEOC) and the Department of Justice (DOJ), would put together some more specific regulations on how to comply with the ADA.
How are ‘reasonable accommodations’ defined?
The Equal Employment Opportunity Commission enforces Title I’s prohibition against discrimination in employment and has issued many regulations based on Title I. However, defining a reasonable accommodation in response to psychiatric symptoms can often be more challenging than designing accommodations of physical or sensory disabilities. ADA regulations disallow employers from asking disability-related questions during the application process, unless the applicant asks for reasonable accommodation during the process of hiring. Under most cases, employers must keep all information about their employees’ medical conditions confidential. Supervisors and managers can be told about needed accommodations; first aid and safety personnel can be informed if the person with a disability may require emergency treatment; and government officials assessing ADA compliance should be given information on request.
Some reasonable accommodations for people with psychiatric abilities include: time off from work, a modified work schedule (some medications cause morning grogginess and a modified work schedule can combat this problem), physical changes in the workplace, such as dividers or partitions (to help people with disability-related concentration problems), making exceptions in work policy, the adjusting of supervisory methods, providing a job coach, and others. The federally funded Job Accommodation Network (JAN) offers free consultation services to employers and employees. Their web site http://www.jan.wvu.edu provides a great deal of helpful information. For more listings of real-life accommodations provided by employers see http://www.jan.wvu.edu/media/SitandSol.html.
How are the ADA and the Olmstead Decision connected?
One set of regulations issued by the Department of Justice in response to Title II of the ADA has proven to be particularly significant for people with psychiatric disabilities. DOJ’s ‘integration regulation’ states: A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities. The setting that should enable individuals with disabilities to interact with non-disabled persons to the fullest extent possible. (28 C.F.R., part 35, section 130 and Appendix A.) This regulation, which offers many people with psychiatric disabilities a chance to live in the community rather than in institutions, was reaffirmed by the U.S. Supreme Court in the Olmstead v. L.C. decision.
Additional information about the ADA is available from http://www.adata.org and the Bazelon Center for Mental Health Law at http://www.bazelon.org. Information about the Equal Employment Opportunity Commission is available from their website at http://www.eeoc.gov/ada/index.html.