Overview of Major Federal Laws that Protect Individuals with Mental Illness from Discrimination

By: Ranko Shiraki Oliver, Professor of Law

The following post summarizes Professor Oliver’s presentation at the Journal’s Seventh Annual Spring Symposium in April 2019.

The views expressed in this post are those of the author, and do not necessarily reflect the opinions of the Journal, the William H. Bowen School of Law, or UA Little Rock.

I applaud the members of the 2018-19 Editorial Board of the Arkansas Journal of Social Change and Public Service (Journal) at the Bowen School of Law for selecting the subject of mental health as the focus of the Journal’s Seventh Annual Spring Symposium in 2019.  The topic of mental health is an important public health issue that the United States has faced for decades, and, regrettably, will probably continue to face for many years to come.  Thus, it is very appropriate for the Journal to select this topic in furtherance of its mission of creating public awareness about important issues related to social change.  I am honored to have been asked to write this essay and present at the Symposium.

Mental illnesses are common in the United States and they are increasing at a disturbing rate.  According to The National Institute of Mental Health (NIMH), in 2017 46.6 million adults aged 18 and older (nearly one in five adults, or 18.9% of all adults living in the United States) had a mental illness.  The NIMH states that mental illnesses include a variety of conditions that manifest themselves in differing degrees of severity, ranging from mild to moderate to severe.  The NIMH classifies this spectrum of illnesses into two broad categories: Any Mental Illness (AMI), which encompasses all recognized mental illnesses, and Serious Mental Illness (SMI), which represents a smaller and more severe type of AMI.  https://www.nimh.nih.gov/health/statistics/mental-illness-shtml   AMI is defined as mental, behavioral, or emotional disorder, and varies in its degree of impact – from no impairment to mild, moderate, and often severe impairment.  The statistics given above relate to individuals with AMI.  SMI is defined as a “mental, behavioral, or emotional disorder resulting in serious functional impairment, which substantially interferes with or limits one or more major life activities.  The burden of mental illnesses is particularly concentrated among those who experience disability due to SMI.”  Id.  In 2017, an estimated 11.2 million adults aged 18 and older had an SMI, which represented 4.5% of all adults living in the United States.  Id.

These millions of individuals who have a mental illness (AMI or SMI) are individuals who try to carry on with their lives and responsibilities as best they can, and who have dreams and hopes like all of us.  They are people who want to hold jobs, go to the movies, go out to dinner, go to a park or museum, live in housing of their choice, and, in general, engage in the same activities in which everyone else engages.  To ensure that these individuals with a mental illness (and other disabilities) are not discriminated against in any of these settings, and that they are given as equal access to services, programs, and activities as is reasonably possible, since the early 1970s Congress has enacted a number of important statutes that seek to protect individuals with disabilities, including those with a mental illness.  This essay provides an overview of such statutes.

The federal statute that is considered to be the most important in prohibiting discrimination against individuals with disabilities (including mental illness) is the Americans with Disabilities Act of 1990 (ADA), and its important amendment in 2008, through the Americans with Disabilities Act Amendments Act of 2008 (ADAAA).  The ADA prohibits discrimination on the basis of a disability in employment (Title I); state and local services, programs, and activities (Title II); public accommodations (private businesses that open their doors to the public and whose operations affect interstate commerce) (Title III); transportation, and communications.  See U. S. Department of Justice, A Guide to Disability Rights Laws 2, July 2009, https://www.ada.gov/cguide.htm (hereinafter Guide).  Titles I to III of the ADA are the most relevant for purposes of this discussion.  The ADA imposes a three-part mandate on entities that must comply with its provisions.  They must (1) not discriminate against individuals with disabilities, (2) they must provide reasonable accommodations to qualified individuals with disabilities, and (3) they must not segregate individuals with disabilities, and must permit them to participate in the most integrated manner possible.

The ADA is considered to be the most sweeping piece of civil rights legislation since the Civil Rights Act of 1964 because of its broad application to the private and public sectors.  The ADA was modeled after The Rehabilitation Act of 1973, which also prohibits discrimination on the basis of disability and requires the provision of reasonable accommodations.  However, because its application is limited to programs conducted by federal agencies, programs receiving federal financial assistance, federal employment, and employment practices of federal contractors, the enactment of the ADA was necessary to extend the non-discrimination/reasonable accommodations mandate to the private and public sectors that were not subject to the provisions of the Rehabilitation Act of 1973.

ADA Title I – Employment requires employers of fifteen employees or more to provide qualified individuals with disabilities an equal opportunity to benefit from all employment-related opportunities available to others (for example, recruitment, hiring, promotions, training, pay, social activities).

A “qualified individual with a disability” is one who can perform the essential functions of the job he/she seeks or holds with or without reasonable accommodations.  Consideration is given to the employer’s determination of what are the “essential functions of the job.”  The accommodations that an employer is obligated to provide to an applicant or employee with a disability must be “reasonable,” which means that they must not be too expensive or too disruptive operationally or administratively.  The obligation to provide reasonable accommodations (modifications or adjustments) applies to the job application process, the work environment, to permit the employee with a disability to enjoy equal benefits and privileges of employment, and to making existing facilities used by the employee with a disability readily accessible and usable.  Thus, to be entitled to protection, an individual must have a disability (the importance of the definition of “disability” after the enactment of the ADAAA is discussed below) and must be able to perform the essential functions of the job with or without reasonable accommodations.

In addition, to be a “qualified individual with a disability,” the individual must not pose a “direct threat” to the health and safety of other individuals in the workplace, and/or to himself/herself.  A “direct threat” is a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by a reasonable accommodation.  To determine whether an employee with a disability poses a “direct threat, an individualized assessment of the individual’s present ability to safely perform the essential functions of the job must be made.

Finally, if an employer requires employment qualifying criteria that screen out or tend to screen out applicants or employees with a disability, and an applicant or employee is therefore not a “qualified individual with a disability,” the employer will prevail if it can show that the disqualifying requirement is “job-related and consistent with business necessity,” and that such requirement cannot be met by the applicant/employee by providing a reasonable accommodation.

ADA Title II – State and Local Government Services, Programs, and Activities applies to all services, programs, and activities provided or made available by “public entities,” defined as state and local governments or any department, agency, special purpose district, or other instrumentality of a state or states or local government.  The provisions of Title II apply regardless of the government’s size or receipt of federal funds.  It requires that individuals with disabilities be given equal opportunity to benefit from all of their programs, services and activities, such as public education; employment; transportation; recreation; health care; social services; voting; including programs, services, and activities while individuals with disabilities are incarcerated.

The obligation to reasonably accommodate an individual with a disability also applies to public entities.  They must make reasonable modifications of policies, practices, and procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.

Public entities must not impose eligibility or qualifying criteria that screen out or tend to screen out individuals with disabilities, unless such criteria can be shown to be necessary for the provision of the services, program or activity being offered.  See Guide, supra, at 3-4.

ADA Title III – Public Accommodations applies to businesses and non-profit service providers that are privately owned, leased, leased to, or operated that offer services to the public.  Restaurants, doctors’ offices, homeless shelters, retail stores, movie theaters, and hotels are examples of entities to which Title III applies.

The obligation to reasonably modify policies, practices, and procedures to accommodate individuals with disabilities also applies to public accommodations  when such modifications are necessary to afford goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the public accommodation can establish that making those modifications would fundamentally alter the nature of the goods, services, facilities, etc.  See Guide, supra, at 5-6.

Definition of “Disability”

The dual mandate of non-discrimination and reasonable accommodations of the ADA protects individuals with disabilities who can meet any of the three prongs of the definition of “a person with a disability”:

  1. One who has a physical or mental impairment that substantially limits one or more major life activities;
  2. One who has a record of such an impairment; or
  3. One who is regarded as having such an impairment.

The regulations for Titles I, II, and III generally define a mental or psychological disorder to include an intellectual disability (formerly referred to as mental retardation), organic brain syndrome, emotional or mental illness, and specific learning disabilities.  See, e.g., 29 C.F.R. § 1630.2(h)(2). See also Ruth Colker, Federal Disability Law in a Nutshell 22 (West Academic Publg. 2019).

The ADAAA’s impact has been very significant in the definition of the term “disability.”  Congress enacted the ADAAA to restore the original intent and protections of the ADA and to restate the definition of the term “disability,” after the United States Supreme Court issued landmark decisions between 1992 and 2002 that narrowly interpreted the term “disability.”  In those cases, plaintiffs with disabilities did not prevail because they were found to not have impairments that “substantially limited” them in “one or more major life activities.”  In the ADAAA, therefore, Congress stressed that the definition of “disability” was to be construed in favor of broad coverage of individuals with disabilities, to the maximum extent permitted by the terms of the ADAAA.  Michael L. Perlin et al., MENTAL DISABILITY LAW CASES AND MATERIALS 688 (Carolina Academic Press 2017).

Of particular significance to individuals with mental illnesses are the ADAAA changes to the definition of the terms “major life activities” and “substantially limits.”  Post-ADAAA, the term “major life activities” includes major bodily functions, such as neurological and brain functions.  The term “substantially limits” has been amended to state that an impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.  Therefore, the term “disability” includes an impairment that is episodic or in remission, if it would substantially limit a major life activity when active.  Id., at 690.  The regulations promulgated by the Equal Employment Opportunity Commission interpreting the ADAAA state that among the disorders that post-ADAAA should be easily concluded to substantially limit brain function are disorders such as major depressive disorder and bipolar disorder.  29 C.F.R. § 1630.2(j)(3)(iii).  In addition, the regulations state that psychiatric problems that are episodic or are in remission now qualify as disability, if the psychiatric problems substantially limit a major life activity when active.  Id., (1)(vii).  See Margaret E. Vroman, Mentally Disabled Employees and the ADAAA: What’s An Employer to Do?, 16 Quinnipac Health L.J. 149 (2012-13), reprinted in Michael L. Perlin et al., MENTAL DISABILITY LAW CASES AND MATERIALS 692 (Carolina Academic Press 2017).

The mental and psychological impairments are now listed in the “predictable assessments” regulation, such as intellectual disability, major depressive disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia.  While this change reasonably can be anticipated to result in more conditions being considered to be “disabilities,” it is important to understand that, to be considered “disabled,” individuals with mental illness must establish that the impairment substantially limits one or more of their major life activities.  Colker, supra.

It is also important to note the qualifier included in 29 C.F.R. § 1630.2(j)(1)(vii): “if the psychiatric problems substantially limit a major life activity when active.”  While the ADAAA requires that the term “substantially limits” be interpreted broadly, to be protected by the ADA and ADAAA, an individual with a mental illness must still show that he/she is substantially limited in a major life activity.  This is also the language used by the NIMH to describe a “serious mental illness” or “SMI,” as stated at the beginning of this essay.  Whether this means that only individuals with an “SMI” should expect to be protected, and that individuals with an “AMI” should not, is an issue being addressed by federal courts interpreting the ADAAA.

The ADAAA also made two other important changes in the definition of “disability.”  First, the ameliorative effects of mitigating measures are not to be considered in determining whether an individual has a disability.  For individuals with mental illness, this means that medications, reasonable accommodations, or learned behavioral or adaptive neurological modifications are not be considered in determining whether those individuals have a “disability” that is protected by the ADA and ADAAA.  Perlin, supra at 690-91.  Second, it is now easier for plaintiffs to meet the third prong of the definition of “disability” – being “regarded as” having a disability.  Post-ADAAA, an individual will able to argue that he/she was regarded as having such a disability by establishing that he/she has been subjected to an action prohibited by the ADA/ADAAA 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.  Id., at 690.

The ADA and the ADAAA, indeed, are the most important federal acts that protect individuals with disabilities, but other important federal statutes also prohibit discrimination of individuals with disabilities in a variety of other settings.  For example, the Fair Housing Act Amendments Act of 1988 prohibit discrimination in housing on the basis of disability.  Its coverage includes private housing, housing that receives federal funding, and state and local government housing.  It also prohibits discrimination in any aspect of selling or renting housing, or the denial of a dwelling to a buyer or renter because of the disability of that individual, an individual associated with the buyer or renter, or an individual who intends to live in the residence.  It also prohibits discrimination in housing-related activities, such as financing, zoning practices, design of new construction, and advertising.

Owners of housing facilities must make reasonable exceptions of their policies in order to afford individuals with disabilities equal housing opportunities.  An example of a reasonable exception is to waive the “no pet” policy to permit individuals with disabilities who have a service animal or an emotional support animal in the residence.   Landlords must also make reasonable access-related modifications of private living as well as common use spaces.  Guide, supra, at 7.

The Air Carriers Access Act of 1986 prohibits discrimination in air transportation by domestic and foreign air carriers against individuals with physical and mental impairments.  Air carriers that provide regularly scheduled flights to the public must provide reasonable accommodations and assistance in seat reservations, boarding the aircraft, and other aspects of air travel.  Id., at 8.

The Fair Housing Act Amendments Act of 1988 and the Air Carrier Access Act of 1986 define “disability” the same way the Rehabilitation Act of 1973 defines it, and the same definition was incorporated into the ADA.

The Civil Rights of Institutionalized Persons Act of 1980 (CRIPA) authorizes the U.S. Attorney General to investigate conditions of confinement at state and local government institutions, such as prisons, jails, pretrial detention centers, juvenile correctional facilities, publicly operated nursing homes, and institutions for individuals with psychiatric or developmental disabilities.  Its goal and purpose are to permit the U.S. Attorney General to investigate, uncover, and correct institutional and widespread problems that seriously jeopardize the health and safety of institutionalized residents.   The U.S. Attorney General may file civil law suits in cases in which reasonable cause to believe exists that conditions are “egregious and flagrant,” that are subjecting residents to “grievous harm,” and which are part of a “pattern or practice” of resistance to residents’ full enjoyment of constitutional or federal rights under Title II of the ADA and Section 504 of the Rehabilitation Act.

CRIPA does not authorize the U.S. Attorney General to investigate individual, isolated incidents or to represent individual persons who are institutionalized.  Id., at 9-10.

The Protection and Advocacy for Individuals with Mental Illness Act of 1986 (PAIMI Act) was enacted by Congress because of its concern for the prevalence of abuse and neglect among individuals with mental illness.  The PAIMI Act (and the Developmental Disabilities Assistance and Bill of Rights Act of 1975) authorized the protection and advocacy systems throughout the United States to pursue legal, administrative, and other remedies to protect the rights of individuals with mental illness (and intellectual and developmental disabilities).  In 2000 Congress amended and expanded the PAIMI Act to give protection and advocacy systems in the United States the authority to investigate possible abuse and neglect in the community, including facilities, such as schools that provide services to individuals with mental illness.  In July 2015, the Department of Justice (DOJ) published a statement explaining that Congress expanded the PAIMI Act to fully protect individuals with mental illness, including the estimated (at that time) 13.3 percent of school-age children nationwide receiving treatment for a serious mental, behavioral, or emotional disorders.   The DOJ’s statement indicated that researchers had identified schools as a critical place for screening and support services for children with mental health disabilities.  As a result, the national network of protection and advocacy entities has a significant role in ensuring compliance with the PAIMI Act and the ADA.  Protection and Advocacy for Individuals with Mental Illness – OPA, https://www.justice.gov/archives/opa/blog.protection-and-advocacy-

The Protection and Advocacy agency in Arkansas is Disability Rights Arkansas, http://www.disabilityrightsar.org/

The Individuals with Disabilities Education Act of 1990 (IDEA) requires schools to provide special education and related services to eligible students whose school performance is adversely affected by one of thirteen conditions identified in the statute.  For purposes of this essay, one of those conditions is relevant to children with mental health issues: Emotional Disturbance.  “Emotional disturbance” is defined as a condition exhibiting one or more of a list of characteristics over a long period of time, and to a marked degree, that adversely affects a child’s educational performance.  34 C.F.R. § 300.8(c)(4).  The term “emotional disturbance” can encompass a number of mental disorders, which may include anxiety disorder, schizophrenia, bipolar disorder, obsessive-compulsive disorder, and depression.  13 Conditions Covered Under IDEA, https://www.understood.org/en/school-learning/special-services/speci…; see also generally, High Anxiety: Mental Health Issues and the IDEA, Presented to the New Hampshire Association of Special Education Administrators, Mar. 12, 2015, by Wadleigh, Starr & Peters, P.L.L.C, www.wadleighlaw.com

Society’s perception, understanding, and acceptance of individuals with disabilities, including those with mental illnesses, have improved over the last five decades, and this change in social values has become the national policy reflected in the important federal legislation discussed here.  However, as a society, we must continue to advocate for the rights of individuals with mental illness and other disabilities.   We have come a long way, but we still have a long way to go.  We must continue to work hard so that individuals with mental illnesses and other disabilities are recognized for what they are: Human beings who have feelings, dreams, and hopes like anyone else, and who are valuable and contributing members of society.  We must open our doors to them and treat them with respect and dignity, not because the law requires it, but because that is the right thing to do.

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