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Shandi Finnesssey ImageEEOC: Ensuring Freedom To Compete in the Workplace

Passage of the Americans with Disabilities Act (ADA) in 1990 extended federal protection from discrimination on the basis of disabilities—including hidden disabilities—to the private sector workplace, thereby establishing the freedom for all Americans to compete on a level playing field. Among many hidden disabilities, psychiatric disabilities are perhaps the most misunderstood and subject to myths, stereotypes and stigma, resulting in high unemployment and underemployment of qualified individuals and denial of equal opportunities.
Since July 26, 1992, the effective date of the ADA, there have been more than 189,600 charges of employment discrimination filed nationally under the ADA, of which about 28,470 have been based on psychiatric disabilities such as anxiety disorders, depression, bipolar disorder and schizophrenia. In addition to enforcing the ADA, the U.S. Equal Employment Opportunity Commission (EEOC) educates the public and employers about the rights and responsibilities of businesses, employees and job applicants, and also provides information about reasonable accommodations and about hiring and retaining qualified individuals with disabilities.

Under the ADA, people with disabilities should be assessed individually so that their knowledge, skills, abilities and talents, not their diagnoses, are the focus. The EEOC hopes that an active education process will help raise sensitivity and shatter generalizations and misunderstandings about mental conditions. Scientific advances have demonstrated that mental disabilities are complex brain conditions which may result from an interplay of factors such as genetic predisposition, chemical imbalances, physical brain injuries, environmental conditioning, etc. With this knowledge, Americans may become more accepting of the reality that psychiatric conditions have nothing to do with individuals’ character, moral fiber or ability to make multi-faceted contributions as employees. Accommodations allowing people with psychiatric disabilities to perform effectively in the workplace are usually low-cost and relatively easy to implement.

Title I of the ADA addresses employment, covering the full spectrum of employment issues including the job application process, hiring, assignment, wages, training, benefits, discipline, promotions, harassment, privileges of employment and terms and conditions. The ADA specifically prohibits retaliation for opposing discrimination, participating in an EEOC investigation or requesting reasonable accommodation. Workplace issues frequently relevant for people with mental conditions are confidentiality, hiring and reasonable accommodations.

Due to the stigma of psychiatric disabilities in our society, many workers are understandably fearful of disclosing mental health issues to their employers. In reality, many of us are already working closely with capable coworkers who have mental conditions; we may simply be unaware that they have disabilities from time to time affecting their mental or emotional health. Unfortunately, myths and misconceptions abound in the workplace and in society about these conditions and those who have them.

Confidentiality

The ADA provides protection for all people, whether or not they have disabilities, in maintaining the confidentiality of medical information and records. Employers must maintain separate medical files from their personnel files, must restrict access to those records, and cannot disclose medical information, even after an employee leaves (exceptions include sharing information with supervisors for necessary restrictions and reasonable accommodations, with first aid and safety officials for emergency situations, with government officials who enforce compliance with the ADA, with workers’ compensation agencies, and with insurance carriers as required for coverage).

Additionally, employers may not make medical inquiries or require physical exams at the application, interview or pre-offer stage of employment. Following an offer of employment, however, an employer may ask any medical questions, whether job-related or not, as long as the employer does so across-the-board for all employees entering the job category, not just for a single individual. If a person is rejected based on a medical reason it must be job-related and consistent with business necessity. At this early stage, however, many prospective employees are still reluctant to disclose psychiatric disabilities because of concern about negative consequences.

Breaches of confidentiality by the employer or management can adversely affect people with disabilities, especially if the disability is psychiatric. If a breach of confidentiality results in harassment toward the individual or in ostracism by coworkers, the employer will also be liable. Managers must be vigilant and proactive in ensuring a workplace free from unlawful harassment and can promote the acceptance of all by modeling respectful behavior themselves.

Although it is unlawful for an employer to ask medical questions or to ask about the existence, nature or severity of any disability at the applicant stage, individuals may choose on their own to self-disclose their disabilities at any stage of employment. When might it be beneficial to self-disclose? (1) When the employer is a state, local or federal government agency or federal contractor, or is required by one of these entities to have an affirmative action plan for the benefit of people with disabilities in hiring and promotion; (2) When the person with a disability has enriched his or her qualifications for the job as a result of having a disability; (3) When the disability itself is a requirement for the job (such as when rehabilitated drug addicts will become employed as counselors working with addicts during a rehabilitation program).

What psychiatric disabilities are recognized under the ADA?

The definition of an individual with a disability under the ADA is unique: a person having a physical or mental impairment (or a combination of two or more impairments) that substantially limits a major life activity compared to the average person in the general population; a person with a record of such impairment; or a person who is regarded as having such an impairment. An individual with a disability qualifying for protection under the ADA is a person who meets the job-related requirements of a position, with the knowledge, skills, abilities and experience required for the job, and who with or without reasonable accommodation can perform the essential functions of the job. There should be an individualized assessment on a case-by-case basis, because functional limitations caused by psychiatric disabilities vary among individuals with the same condition.

Employers should not make assumptions that people with unpleasant personality traits have mental illnesses and should avoid making generalizations about psychiatric conditions. Unpleasant personality traits make others difficult to get along with, but they do not necessarily limit major life activities and are frequently not indicative of diagnosable psychiatric conditions (which, by contrast, are often hidden).

Keep in mind that not all people with psychiatric disabilities are protected under the ADA. The individual must have a mental impairment that substantially limits a major life activity. Conditions listed in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM) that qualify as mental impairments if they either prevent or significantly restrict a major life activity include anxiety disorders, depression, bipolar disorder, schizophrenia, obsessive-compulsive disorder, post-traumatic stress disorder, mental retardation, organic brain syndrome, learning disabilities and neurological disorders.

Not every condition listed in the DSM qualifies for protection by the ADA, however. Conditions such as pyromania, kleptomania, pedophilia, compulsive gambling and various sexual disorders are specifically excluded as disabilities under the ADA. A person who currently uses drugs illegally is not protected under the ADA; however, rehabilitated drug addicts or those currently undergoing rehabilitation are considered as individuals with a disability under the ADA, as are people with alcoholism. Personality traits such as irritability, poor anger management, impulsivity and poor judgment are also not covered under the ADA.

Short-term conditions, such as the depression many of us experience from the loss of a loved one, are not qualifying disabilities. The ADA specifically applies to chronic, long-term conditions. However, episodic conditions are covered if the person is substantially limited during episodes and there is a high likelihood they will recur.

The symptoms of some psychiatric conditions can be lessened or controlled with medications, but both the positive and negative effects of medications must be considered when evaluating the impact on major life activities. Reasonable accommodations may be required due to side effects of medications when employees rely upon them to control their conditions (for example, flexible time schedules if medications are sedating)

What major life activities are most affected by psychiatric disabilities?


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by Cynthia Stankiewicz Equal Employment Opportunity Commission
eeoc.gov
800.669.4000
800.669.6820 tty
Job Accommodation Network
800.JAN.7234
jan.wvu.edu

Read the rest of the interview with your order of ABILITY Magazine. Other articles in the Shandi Finnessey issue including - Letter From The Editor - Gillian Friedman, MD, Humor-Law Made Simple, Headlines - UCP Guide. DOL, DOJ, Cancer Breakthrough, Post Paralympic Games - Record Breaking Results, Steel & Lace - Epilepsy, A Private War, Youth Conference - Cultivating Tomorrows Leaders, Fighting Back - The Importance of Self-Defense, Nat'l Council On Disability - Recommendations, Breast Cancer - Important Information, Christopher Reeve - His Work Lives On, Fashion - New Products and Events, United Nations Update - Back on Track, World Ability Federation, Events and Conferences...subscribe!

More excerpts from the Shandi Finnessey issue:

Shandi Finnessey Interview by Chet Cooper

EEOC: Ensuring Freedom to Compete in the Workplace

Post Paralympic Games: Record Breaking Results

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