On Tuesday the U.S. Equal Employment Opportunity Commission (EEOC) held a public meeting to discuss the employment of individuals with mental disabilities. According to EEOC Chair Jacqueline A. Berrien, the hearing “provided an important opportunity to dispel myths and learn about effective ways to dismantle barriers to employment for people with disabilities.” The meeting was divided into three panels to address the employment rates of people with mental disabilities; the requirements of the Americans with Disabilities Ac t (ADA) and how the Act applies to individuals with mental disabilities; and litigation to enforce the rights of people with mental disabilities.
According to Sharon Lewis, Commissioner of the Administration on Developmental Disabilities, U.S. Department of Health And Human Services, “the proportion of the population of people with disabilities who are employed is estimated to be 17 percent, compared to 63 percent for people without disabilities.” William E. Kiernan, Director of the Institute for Community Inclusion, cited similar low employment statistics for this population.
Many panelists focused on the cause of this low employment rate. Ruby Moore, Executive Director of the Georgia Advocacy Office, testified that “[o]ne of the biggest obstacles to employment is consciously- and unconsciously- held beliefs about people with psychiatric, cognitive or intellectual disabilities.” Other issues facing employers include not knowing how to accommodate a person with a mental disability and fear of liability. For employees with mental disabilities, Moore suggested certain types of accommodations that might be appropriate. For example, she explained that an employee with a cognitive or intellectual disability might require more time to learn the job tasks. Another accommodation might include “structuring the task or the environment to make it easier to learn the job tasks.” For a person with a psychiatric disability, Moore suggested that a flexible schedule might be required to allow the employee to see a therapist or to go to doctor’s appointments.
Mark Penzel, an EEOC trial attorney, testified that he believed that the passage of the Americans with Disabilities Act Amendments Act (ADAAA) and imminent EEOC regulations on this statute will make it easier to build a case against an employer for alleged mental or psychiatric disability discrimination. Specifically, Penzel explained that the ADAAA provides that “[t]he definition of disability … shall be construed in favor of broad coverage …” and that “the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.” According to Penzel, “particularly helpful to people with psychiatric disabilities is the ADAAA’s statement that ‘An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.’”
In addition, the panelist claimed that the new law’s change to the “regarded as” prong of the definition of disability will enable more individuals with mental disabilities to be considered “disabled” under the Act. He explained that before the ADA was amended, a claimant
needed to prove what was inside an employer’s head (by showing that the employer believed a person was substantially limited in a major life activity). The ADAAA eliminates this issue. Now “[a]n individual meets the requirement of ‘being regarded as having such an impairment if the individual establishes that he or she has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” These changes in the law should enable [the EEOC] to more quickly get to the core issue of discrimination and not get hung up on coverage for people with clear impairments.
A complete list of the panelists and their testimony, in addition to a transcript of the meeting, can be found here.