Annie Daley

5-16-16

Civil Liberties

Equal Protection Under the Law

Americans with Disabilities Act and Mental Illness

The Fourteenth Amendment to the US Constitution guarantees equal protection

under the law to all people born or naturalized in the United States. Intended to

prevent discrimination against former slaves, various interest groups have attempted to

expand the meaning to include protections for gender, sexual orientation, and disabilities.

While their still is no federal law specifically outlawing discrimination based on gender

or sexual orientation, the Americans with Disabilities Act and subsequent Americans

with Disabilities Act Amendments Act prevents discrimination towards people with

disabilities including those with mental illnesses. The law raises as many questions as it

solves, with people debating on what qualifies as a disability, what the accommodations

should be, and how stringently the mental health of high applicants for high-

responsibility jobssuch as pilots, police officers, and military personnelshould be

vetted. Despite the Americans with Disabilities Act, discrimination against people with

mental illnesses is still rampant. Unfortunately, much of the system that stigmatizes

mental illnesses also prevents people from seeking treatment, meaning that the quest for

mentally healthy employeesespecially in high responsibility jobsis actually resulting

in poorer mental health among those employees, and potentially increased danger to

those around the employees.

 The Americans with Disabilities Act, passed in 1990, was a monumental victory

for mental health rights advocates. Its extensive provisions protect not only those with

physical disabilities, but also people with mental disabilities, which the ADA defines as a

mental impairment that substantially limits one or more major life activities. In 2009,

the Americans with Disabilities Act Amendments Act took effect and broadened the

definition of a mental impairment to include any mental or psychological disorder,

such as intellectual disabilityorganic brain syndrome, emotional or mental illness, and

specific learning disabilities. Unsavory personality traits, such as a bad temper or poor

judgment do not qualify an individual as disabled unless they are symptoms of a mental

or psychological disorder. Old age is not considered an impairment; some medical

conditions frequently afflicting the elderly are. While once ignored under the ADA, the

courts now recognize many episodic conditions as disabilities. In the 2011 case of Kinney

v Century Services Corp, the court found that episodes of depression that significantly

impaired activities while the depression was active but didnt impact work when inactive

qualified an individual as disabled under the ADAAA. The ADA required that an

employer to believe that any mental or physical impairment substantially limited a major

life activity in order for the employee to be regarded as disabled and protected by the

ADA from discrimination. Under the ADAAA, the employer does not need to believe

that the impairment limits a significant life activity for the employee to receive protection

(Miller and Cotner).

Because of the protections outlined in the ADA and ADAAA, employers cannot

discriminate against anyone because of a mental illness; they are to be considered equally

qualified as a person without a mental illness if they can perform the essential job
functions with or without reasonable accommodations. This might mean an adjusted

work schedule, working from home, advance notice of work-related events, sound

blocking equipment to reduce workplace noises, allowing a leave of absence, hiring of a

job coach to train the disabled employee, among many others. If, however, the essential

function of the job cannot be performed with any given accommodation, the employer is

not required to provide the accommodation; in the 2010 case of Shin v. University of

Maryland Medical System the courts ruled that a medical intern who had attention deficit

disorder and significant impairment in visual-spatial reasoning and memory could not

perform the main functions of the job even with reasonable accommodations and

therefore did not qualify under the ADA as having a disability and thus protected. An

employer is also not required to provide accommodations based on a perceived disability;

it is the responsibility of the employee to communicate their needs to their supervisor in

order to obtain accommodations. In the 2012 case of Otto v. City of Victoria, a US court

of appeals held that an employer does not need to accommodate an employee by creating

a new position, excusing job prerequisites, or changing the employees supervisor. The

supervisor, however, may be required to change their methods or supervision. An

employer may discipline an employee for behaviors associated with a mental disability if

the behavior is detrimental to the essential job function. Employers may also keep an

employee out of the workplace if they are deemed a threat to themselves or others; they

are not required to accommodate violent employees, even if that violence stems from a

mental illness. (Miller and Coner).

Discrimination against employees or potential employees with mental illnesses is

logical until you stop to think about the effect it has on the people who are unemployed
through no fault of their own. In our society, stigma against mental illness is so prevalent

that discrimination against someone with a mental illness may be completely

subconscious (Succeeding at Work). This can make a lawsuit against an employer

difficult; in order to win, the petitioner must demonstrate intended discrimination and that

their disability was the determining factor in any decisions made. Sometimes subpoenaed

emails and other written evidence will prove intended discrimination, but suits against

employers for discrimination on the basis of disability are notoriously hard to win.

Employers also have a legitimate interest in not hiring people who would require

accommodations: the employer is not compensated by the government for reasonable

requirements provided. Hiring a substitute while an employee is on a medical leave,

rearranging schedules, and allowing employees to work from home all complicate

processes for the employer and frequently cost money that comes out of the company

budget (Enforcement Guidance).

While the burden imposed upon employers to provide accommodations for

employees with mental illnesses is visible, the alternative would be to increase the

already inexcusably large population of unemployed people with mental illnesses who

are perfectly capable of working with or without reasonable accommodations.

Frequently, a disability will give someone a unique insight and can help that person do a

better job than someone who does not have a disability. Police, for example, are

notoriously poorly trained to deal with the large numbers of criminals who are mentally

ill. The empathy that officers who personally deal with mental illnesses bring can make

the crucial difference between forging a bond with the perpetrator and bringing them in

alive versus alienating them and forcing a shootout. An employee with an anxiety
disorder, once the anxiety is under control, may be more likely to take care in very

precise details of the work. While people who feel emotions more strongly than most do

feel more negative emotions, they also experience more positive emotions. Once the

negative emotions are under control, many find the heightened positive emotions an

experience they wouldnt trade to get rid of the negative emotions, and those positive

emotions can help an entire workplace community.

Mental illness is more common in the US than many people realize, and by failing to

support people with mental illnesses as they attempt to hold their own in the job market

closes America off to the incredible talents that millions of people have to offer. In any

given year, roughly one in five adults in the US will deal with a mental illness. In that

same year, one in twenty five will see one or more major life activities significantly

limited my a mental illness (Mental Health by the Numbers). Studies have shown that,

while most adults with mental illnesses want to be working and 60% of them could

function perfectly well with reasonable accommodations, fewer than 2% of those treated

in state mental health care centers received accommodations to work in 2012. That same

year, the overall employment rate in the US was just under 60%. For people with serious

mental illnesses, that number was less than 20%. The government support system has

been failing members of the workforce with mental illnesses. When someone with a

mental illness is hired, they loose access to their government support and benefits, such

as health care. Without that care, they frequently cannot afford the treatment they need.

This frequently results in someone resigning or losing their job, at which point they are

unemployed and receive government benefitsbut only until they find a job (if the can).

Fortunately, increased healthcare coverage has been helping those with mental illnesses
access treatment while being employed. The ADA has also helped tremendously in

helping to decrease the amount of systemized discrimination against people with mental

illnesses (Diehl). Frequently, those who suffer from a mental health condition are among

the most creative people; they see things differently, and that different perspective can be

a huge asset in any work place. America will never be at its strongest until all its citizens

are allowed to share their talents with the world.

Recently the question of mental health in high responsibility jobs has been brought to

light, with some people holding that those with mental illnesses ought not to be allowed

to fly planes, serve in the military, become a police officer, or tackle any other job that

holds responsibility for lives, and other people asserting that, with access to proper

treatment, people with mental illnesses are frequently able to remain highly functioning

members of society and very qualified for the jobs in question. Unfortunately, the bigger

problem is the medical requirements for some of these jobs. While there has been a

concerted effort on behalf of pilots everywhere to increase access to mental health

treatmentespecially after a 2015 Germanwings flight crashed when the copilot

committed suicide, taking everyone on board with himthere are still many limitations

in place. Mild to moderate depressive disorders treated with Prozac, Zoloft, Celexa, or

Lexapro are not grounds for dismissal, suspension, or non-hiring. That being said, pilots

can only be on one drug and cannot have any significant side effects. They must have

been on the stable dosage for six months before they can fly, and cannot have any

psychosis, suicidal ideation, or history of either electro convulsion therapy or prior usage

of psychiatric drugs that were not antidepressants while using antidepressant (Special

Issuance Certification for Depression with Antidepressant Usage). Pilot

requirements seem very sensible to me; they serve the interests of both the pilots

and the passengers by allowing pilots to fly if they are, as they are capable of being,

fully functioning members of society. While there is significant stigma attached to

pilots with mental illnesses, especially following the Germanwings crash, the official

policies are very reasonable.

In contrast to the reasonable requirements for pilots, the military and police

force have dangerous policies that not only bar fully qualified individuals from

serving their country, but prevent employees or hopefuls from seeking much

needed treatment in fear of being dismissed or not being hired. The military bars all

applicants who have ever seen a therapist for longer than six months, been admitted

to a residential treatment facility for a mental illness, or experienced repeated

symptoms or behaviors that significantly impaired school, social, or work

productivity (Medical Conditions that May Prevent You From Joining the Military).

Similarly, many police departments require that applicants do not have a diagnosed

mental illness and, in the case of physiological problems that did not meet the

criteria for diagnosis, applicants must be asymptomatic and off treatment for some

window of time before they are qualified. In the case of the Queensland Police Force,

people with a history of mental disorders or psychiatric illnesses may be qualified if

they have been asymptomatic for two years, but their application will be very

closely scrutinized, with careful attention paid to potential triggers associated with

the job (Health FAQs).

The requirements and causes for disqualification from the military and police

force are not only discriminatory, they are downright dangerous. Both jobs are incredibly
mentally taxing, and without proper emotion care, people are far more likely to develop

conditions such as Post Traumatic Stress Disorder, which can be incredibly debilitating

and a cause for dismissal, meaning that mentally ill people are essentially thrown out

with no care provided. Furthermore, the fear of being rejected on the basis of a mental

illness stops people from getting the treatment they need to avoid the medical record.

This means that people who are in control of their emotions, working hard to be the best

version of themselves they can be, and highly functional are rejected while incredibly ill

people can be handed guns and sent into the streets or into combat, a danger not only to

themselves but everyone around them. The military and police force need to recognize

the emotional needs of their employees and support psychiatric care. They need to stop

discriminating against people with mental illnesseswho can be completely functional

and start targeting the real problem, which is not mental illness, but the stigma attached to

and therefore lack of treatment for mental illnesses.

Mental illness is a huge problem in our country that will never get better until it is

destigmatized and people with mental illnesses are given equal opportunities to thrive.

The protections put in place for the protection of employees and society, while logical

at first glance, are predominately harmful, posing threats to society. With any luck,

education will lead to an eradication of stigma, which in turn will lead to appropriate

measures that protect people while allowing them to reach their fullest potential.
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