Bazelon Center Title I of the ADA Prohibiting Discrimination in the Workplace -- Title I of the Americans with Disabilities Act Title I of the ADA, which prohibits disability-based employment discrimination, can be found in the United States Code at 42 U.S.C. (s)(s) 12111-12117. The federal Equal Employment Opportunity Commission (EEOC) has the primary responsibility for implementing and enforcing Title I by issuing regulations and other intrepretative materials and investigating allegations of disability-based employment discrimination. The Bazelon Center has compiled and periodically updates lists of resources and court cases on Title I, Mental Health Consumers and Employment Litigation. See the civil rights section of our publications page for ordering information. Regulations and Other Interpretive Materials In 1991, the EEOC issued regulations interpreting Title I, published in the U.S. Code of Federal Regulations at 29 C.F.R. Part 1630. The agency has also issued interim enforcement guidances that set forth its position on important issues, including 1. the ADA's application to employer-provided health insurance; 2. definition of the term "disability"; 3. pre-employment disability-related inquires and medical examinations; 4. the interaction between Title I of the ADA and state worker-compensation laws; and 5. the ADA's application to individuals with psychiatric disabilities. Although these guidances do not have the force of regulation, they do present the enforcing agency's view and may be given some deference by the courts. The EEOC has also published a Technical Assistance Manual on Title I and an ADA Handbook. The Handbook and the guidances can be obtained through the EEOC website, from the EEOC field office nearest you or from the national office at 1801 L Street, NW, Washington, DC 20507, 1-800-669-EEOC. Litigation Before going to court with a claim of disability discrimination in the workplace, an individual must file a complaint with the EEOC. Between July 26, 1992 and June 30, 1996, people with psychiatric impairments filed 8,536 such complaints. This represents 12.6% of all Title I complaints filed with the EEOC since the ADA's enactment. The agency has litigated a few of these claims, but most cases that reach the federal courts are brought by private plaintiffs. To date, the outcome of both EEOC and private employment litigation has been mixed for people with mental disabilities. EEOC Litigation When a complaint is made to the EEOC, the agency has the option of litigating the case itself. As of September 1, 1996, the EEOC had taken seven cases involving individuals with mental disabilities, including six on behalf of people with psychiatric impairments and one on behalf of individuals with mental retardation. Among these cases are: EEOC v. CNA Insurance Cos., No. 96-1304 (7th Cir. Sept. 27, 1996). The EEOC attempted to challenge a long-term disability insurance policy that provides far shorter coverage for mental health than physical disabilities. The EEOC's case was dismissed, however, because the court found that an individual who qualifies for disability benefits as "permanently and totally disabled" is not protected by the ADA and can't use the Act to challenge an allegedly discriminatory work benefits program. EEOC v. Union Carbide and Plastics Co., No. 94-103 (E.D. La. April 12, 1996) (Settlement Agreement). The EEOC raised two important issues -- (1) whether a company violated the ADA by refusing to exempt an employee with bipolar disorder from working rotating shifts; and (2) whether individuals whose disabilities are controlled by medication are nevertheless "disabled" within the meaning of the Act -- but never obtained a ruling on the merits because the parties settled before trial. EEOC v. The Hertz Corp., No. 96-72421 (E.D. Mich. filed May 24, 1996). The EEOC's first lawsuit on behalf of individuals with mental retardation asserts that the defendant discriminated against two employees with mental retardation when it fired them as a result of the alleged misconduct of the employees' job coaches. Private Litigation If the EEOC has not acted on a discrimination complaint after 180 days, the person who filed the complaint can ask the agency for a "right to sue" letter. The EEOC also issues "right to sue" letters when it completes an investigation, whether or not it finds discrimination. The letter gives a complainant the right to pursue a private employment-discrimination case. Issues in cases brought by people with mental disabilities include: * The definition of disability * The nature of reasonable accommodation * How an employee must request reasonable accommodation * Workplace misconduct The definition of disability The ADA's definition of disability requires a person to be "substantially limited" in a major life activity. For people with mental disabilities, this usually means caring for oneself, thinking, concentrating, interacting with others. Working is also defined as a major life activity. Courts are taking a generally conservative view of whether a person is "substantially limited" in working. Courts are paying close attention to whether an individual is unable to do only the particular job at issue or, in the words of the EEOC regulations, is unable to do a range or class of jobs. For example, in Muller v. Automobile Club of Southern California, 897 F. Supp. 1289 (S.D. Cal. 1995), an insurance company claims adjuster who developed post-traumatic stress disorder after being threatened by a customer was found by the court to be capable of doing similar work for other employers or in other jobs. Thus, the court held, Ms. Muller was not a person with a disability as defined by the ADA. In addition, although the EEOC says that courts should first examine whether an individual is substantially limited in other activities before examining whether the individual is substantially limited in working, many courts seem to go directly to whether the person is limited in working, or to require detailed evidence from plaintiffs as to how they are substantially limited in non-working activities. For example, in Mustafa v. Clark County School District, 876 F. Supp. 1177 (D. Nev. 1995), a case decided under Section 504 of the Rehabilitation Act, a teacher who developed panic disorder and anxiety contended that he was substantially limited not only in working but also in other major life activities. The court rejected Mr. Mustafa's claim, however, apparently relying in large part on the fact that Mr. Mustafa's doctors had advised him to engage in physical exercise. Also, although the court acknowledged that Mr. Mustafa's impairment was a barrier to his employment as a teacher, it held that he was not barred from employment generally. Cases such as Muller and Mustafa indicate that plaintiffs should be prepared to prove to the court that, as a result of their disability, they are capable of doing few if any jobs (e.g., showing that the impairment would disqualify them from performing several work-related tasks). In addition, plaintiffs who plan to assert that they are substantially limited in activities other than working should be prepared to present specific evidence as to how those activities are limited. Plaintiffs might want to present evidence from treating professionals, social workers and peer counselors in as detailed a manner as possible. The nature of reasonable accommodation The ADA requires employers to provide a "reasonable accommodation" for employees' (and job applicants') disabilities to enable the employee to perform the essential functions of the job. The ADA very broadly describes what could constitute a reasonable accommodation, including "job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies ... or other similar accommodation." A potential accommodation is not "reasonable" and need not be provided if the employer can demonstrate that it would create an "undue hardship," i.e., "significant difficulty or expense." Perhaps because the wording of the statute is so broad, courts have differed on what is "reasonable" in accommodating a particular disabled plaintiff. For example, the court ruled on behalf of a plaintiff with anxiety and depression in Wood v. County of Alameda, No. C-94-1557-THE, 13 ADD 908 (N.D. Cal. 1995), ordering the county government to reassign the plaintiff to any vacant position for which she was qualified. Ms. Wood had previously received temporary disability benefits and was cleared to return to work, but not to her old job. She asked for the reasonable accommodation of reassignment to a vacant position, but the county claimed that it only assigned individuals to vacant positions in limited circumstances. The court found, however, that in fact the county government routinely reassigned employees and held that it discriminated against Ms. Wood by failing to make this option available to her. By contrast, in Mancini v. General Electric Co., 820 F. Supp. 141 (D. Ct. 1993), the court ruled against a plaintiff with an emotional impairment who had been fired after an altercation with his supervisor. Mr. Mancini asserted that he could have performed the essential functions of his job if he had been allowed to transfer away from the supervisor, but the court found this type of accommodation not reasonable. "Employers are entitled to assign personnel as their needs dictate," the court held. The conflicting results in the Wood and Mancini cases suggest that courts may be far more sympathetic to plaintiffs who, as in Wood, invoke the ADA to gain equal access to something an employer is already providing to others. Mancini illustrates that courts are generally less sympathetic to plaintiffs viewed as asking for "special" treatment." The Mancini court did not undertake any real analysis in deciding that reassigning the plaintiff would create an impermissible "undue burden" for the employer; it simply asserted that reassignment is something an employer shouldn't have to do. Even though Section 504 and the ADA both indicate that the rules can be bent to accommodate a person with a disability, many courts seem reluctant to force employers to do so. As did the Mancini court, they may ignore Section 504 case law and the explicit provisions of the ADA that contemplate reassignment (at least to a vacant position). How an employee must request reasonable accommodation A related issue involves how explicit an employee must be in requesting a reasonable accommodation. The Fifth Circuit Court of Appeals recently ruled that plaintiffs bear much of the burden of articulating reasonable accommodation requests. Taylor v. The Principal Financial Group, Inc., Nos. 95-50291 & 95-50455, 1996 WL 350705 (5th Cir. June 26, 1996). During a negative performance review, Mr. Taylor informed his employer that he had been diagnosed with bipolar disorder. He asked his boss to speak with company doctors about the manifestations of the disease and then to schedule another meeting. In response to the boss' question whether he was "all right," Mr. Taylor responded, "Yeah, I guess." He did not tell his employer that he believed he was unable to perform his job duties. The Fifth Circuit held that Mr. Taylor had failed to request a reasonable accommodation. Noting that he had not specified any limitations resulting from his disorder, the court appeared to rely on his statement that he was "all right." The court noted that mental disabilities often involve disorders, limitations and accommodations that "are not open, obvious and apparent to the employer," and held that "[w]hen the nature of the disability, resulting limitations, and necessary accommodations are uniquely within the knowledge of the employee and his health-care provider, a disabled employee cannot remain silent and expect his employer to bear the initial burden of identifying the need for, and suggesting, an appropriate accommodation." Workplace misconduct Cases involving individuals with disabilities who have engaged in workplace misconduct illustrate courts' general reluctance to "excuse" the misconduct of disabled employees, even if that misconduct is related to a disability. For example, Mancini v. General Electric held that the plaintiff was not a "qualified individual with a disability" because he was insubordinate and because the ability to follow orders was an essential function of the job, even though the court seemed to accept the fact that there was a link between his emotional impairments and his insubordinate behavior. Carroza v. Howard County , 847 F. Supp. 365 (D. Md. 1994), aff'd, 45 F.3d 425 (4th Cir. 1994) (table), held that an employer doesn't violate Section 504 or the ADA by disciplining an employee for misconduct (the plaintiff was fired for "insubordination" and angry "outbursts") even if the misconduct is related to the employee's disability. A somewhat different view was articulated by the court in a New York Section 504 case, Hogarth v. Thornburgh, 833 F. Supp. 1077 (S.D.N.Y. 1993), concerning an employee with bipolar disorder who was fired for engaging in misconduct related to his disability. Although the defendant asserted that Mr. Hogarth's employment was terminated because of the misconduct, not because he was disabled, the court found that the two issues were intertwined, and that workplace rules have to be analyzed to determine whether they are essential to the job before an employee can be disciplined for breaking these rules. (The court ultimately ruled against the plaintiff, however.) ---------- Title II of the ADA Prohibiting Discrimination in the Provision of Public Benefits and Services -- Title II of the Americans with Disabilities Act Title II of the ADA, located in the United States Code at 42 U.S.C. (s)(s) 12131-34, prohibits discrimination by state and local government agencies. Title II covers all public agencies, whether or not they receive federal financial assistance. Title II employs broad language in outlawing discrimination, stating that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs or activities of a public entity or be subjected to discrimination by any such entity." A more detailed interpretation of this prohibition is included in Title II's implementing regulations, issued in 1991 by the United States Department of Justice in its capacity as the agency charged with interpreting Title II. These regulations appear in the United States Code of Federal Regulations at 28 C.F.R. Part 35. The Justice Department has published a Technical Assistance Manual on Title II with annual updates. Using Title II to Challenge Unnecessary Institutionalization and Segregation One of the most exciting potential uses of Title II is as a vehicle to end the unnecessary institutionalization and segregation of disabled individuals. ADA regulations specifically direct public entities to "administer services, programs and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." In its analysis of this regulation, the Justice Department states: "[T]hese provisions are intended to prohibit exclusion and segregation of individuals with disabilities and the denial of equal opportunities enjoyed by others, based on, among other things, presumptions, patronizing attitudes, fears and stereotypes of individuals with disabilities .... Integration is fundamental to the purposes of the Americans with Disabilities Act. Provision of segregated accommodations and services relegates people with disabilities to second-class status." In addition, people with mental disabilities have asserted that the ADA's requirement that public agencies make reasonable accommodations in their programs can be interpreted to require the transfer of funds or programming from institutional to community settings. Advocates interested in pursuing a "reasonable accommodation" argument should be aware, however, that a defendant is likely to counter this argument by asserting that such a transfer of resources would amount to a "fundamental alteration" of or "undue burden" on the defendants' program. The ADA states that if a requested accommodation is a "fundamental alteration" or "undue burden," it is not "reasonable," and is not required by the Act. In the past two years, individuals with disabilities have had increasing success in convincing courts to recognize the ADA's potential as a tool to combat unnecessary segregation. Some notable cases include: Helen L. v. DiDario, 46 F.3d 325 (3d Cir. 1995), cert. denied sub nom Pennsylvania Secretary of Public Welfare v. Idell S., 116 S. Ct. 64 (1995), holding that the State of Pennsylvania violated the ADA by confining in a nursing home a plaintiff who did not require nursing home care. Charles Q. v. Houstoun, No. 1:CV-95-280 (M.D. Pa. April 22, 1996) (two separate decisions). In two decisions relying heavily on Helen L. v. DiDario, the court granted summary judgment for three plaintiffs with mental illness who alleged that the state defendants violated the ADA by treating plaintiffs in a state psychiatric hospital rather than in community settings. Williams v. Wasserman, No. CCB-94-880 (D. Md. July 31, 1996), denying the state defendants' motion for summary judgment regarding individuals with traumatic brain injury confined in state psychiatric institutions, who have been recommended for placement in community-based settings and who allege that the defendants' failure to provide them with community-based care violates the ADA. K.L. v. Valdez, No. 93-1359 BB/LCS (D.N.M. Oct. 6, 1995), refusing to dismiss the ADA and Section 504 claims of children with mental, emotional and developmental disabilities who allege that several state agencies provide inadequate care to disabled children who are in or at risk of entering state custody. Wyatt v. Hanan, No. 3195-N (M.D. Ala. March 6, 1995). In a pretrial ruling in this long-standing mental disability class action, the court denied plaintiffs' motion for summary judgment regarding their ADA claims, but also stated that the Act "requires that services or programs provided by a public entity 'integrate' qualified disabled individuals with non- disabled persons to the fullest extent appropriate for the disabled and reasonable for a public entity." The Bazelon Center has compiled and periodically updates a list of Title II and Section 504 cases of interest to people with mental diabilities, People with Mental Disabilities and the Right to Adequate and Appropriate Public Services. For ordering information, visit the civil rights section of our publications page. Collaboration with Public Agencies Advocates can also advance the right of people with mental disabilities to non-discriminatory public services through collaboration and non-litigation advocacy with public agencies. Title II requires public agencies to identify their rules, policies and procedures that exclude people with disabilities from participation in public programs and develop plans to eliminate those barriers. The Bazelon Center conducted a collaborative project with two public agencies and a consumer network in South Carolina, creating a model for agencies' self-evaluation of the barriers they unwittingly erect to access by people with mental illness. A book, Opening Public Agency Doors, documents the project and includes many ideas for increasing access to a wide range of services and benefits. Ordering information appears in the civil rights section of our publications page. ---------- Title III of the ADA Prohibiting Discrimination by Private Businesses -- Title III of the Americans with Disabilities Act Title III of the ADA prohibits discrimination on the basis of disability by "private entities" operating places of "public accommodation." Businesses governed by Title III include banks, restaurants, supermarkets, hotels, shopping centers, privately-owned sports arenas, movie theaters, private day care centers, schools and colleges, accountant or insurance offices, lawyers' and doctors' offices, museums and health clubs. Title III can be located in the United States Code at 42 U.S.C. (s)(s) 12181-12189; implementing regulations by the U.S. Department of Justice are in the United States Code of Federal Regulations at 28 C.F.R. Part 36. The Justice Department has published a Technical Assistance Manual on Title III with annual updates. To date, most Title III case law has focused on physical rather than mental disabilities. However, a few cases are relevant to mental disability issues. Insurance issues are the focus on several, described on a separate page. In the context of private child care, education, health care and access issues, these include: Roberts v. KinderCare Learning Centers, 86 F.3d 844 (8th Cir. 1996), rejecting the plaintiffs' claims that a child care center violated the rights of a disabled four-year-old by refusing either to admit him or to provide one-on-one care when the child's personal care attendant services were unavailable. Orr v. KinderCare Learning Centers, No. CV-S-95-507 (E.D. Cal. 1995) (consent decree). The parties signed a consent decree in which the after-school child care provider agreed to allow the continued enrollment of a 10-year-old with mental retardation and other developmental disabilities. California Advocates for Nursing Home Reform v. Creekside Care Convalescent Center, No. Civ. S-94-1709-WBS>GH, 15 ADD 1152 (E.D. Cal. 1995), refusing to dismiss the plaintiffs' allegations that a private nursing home provided inadequate care to its residents, in violation of Section 504 and Title III of the ADA. Adleman v. Acme Markets Corp., No. 95-4037, 15 ADD 859 (E.D. Pa. 1996), concerning allegations that a supermarket violated Title III by failing to provide a mentally and physically disabled plaintiff with the assistance he required in obtaining certain items and by telling him that he could "shop elsewhere" if he was dissatisfied. This case was dismissed because the plaintiff sought monetary damages, and Title III does not authorize money damages as relief. Rothman v. Emory University, No. 93-C-1240, 1993 WL 281412 (N.D. Ill. June 29, 1993), refusing to dismiss some ADA claims of a former law student who alleged that the law school subjected him to hostile treatment and failed to provide a reasonable accommodation for his epilepsy. For a list of cases using Title III to protect the rights of people with mental disabilities, send $4 to the Bazelon Center for Mental Health Law, 1101 15th Street NW, Suite 1212, Washington, DC 20005-5002. ----------------------------------------------------------------- You are welcome to reproduce all or part of the text on this web page electronically or in print, crediting as your source the Bazelon Center for Mental Health Law. We would greatly appreciate receiving a copy of your use of our material. Please send to: Lee Carty, Communications Director Bazelon Center for Mental Health Law 1101 15th Street NW, Suite 1212 Washington, DC 20005-5002 Fax: 202-223-0409 e-mail: leec@bazelon.org ----------------------------------------------------------------- Bazelon Center for Mental Health Law - maryg@bazelon.org ---------- End of Document