On March 15, 2011 the EEOC convened a public hearing on “The Employment of People with Mental Disabilities.” Organized primarily by Commissioner Chai Feldblum, who had significant involvement in the creation and passage of the Americans with Disabilities Act (”ADA”), the hearing featured three witness panels. Commissioner Stuart Ishimaru commented that the hearing was particularly timely as the Commission is on the brink of issuing its final regulations regarding the ADA Amendments Act.
One of the hearing’s themes was the dignity and pride that working allows individuals with mental disabilities to have. In addition, a host of social and economic benefits to the individual and society, socially and economically were presented. The Commissioners of both parties in their opening and closing statements noted the bipartisan nature of this concern and indicated a sentiment that they speak with one voice in support of addressing the issues surrounding those with disabilities seeking and attempting to maintain employment.
Employment Rates of People with Mental Disabilities
The first panel presented research, anecdotal data, and suggested strategies to improve the employment rates of people with mental disabilities. Dr. William Kiernan, director of the Institute for Community Inclusion, noted that 42% of people with intellectual disabilities live beneath the poverty line and that only 23% of such persons are in the workforce (as compared to 71.9% of the general population). Dartmouth professor Gary Bond reported that 70% of individuals with serious mental illness wish to work. Panelists also talked about challenges for individuals with mental disabilities, including transportation and the need for flexible hours, and the technology which is redefining the traditional work day and location that can provide solutions. Ruby Moore, executive director of the Georgia Advocacy Office, cited various examples of corporations that have worked to create successful accommodations, including flexible working hours policies.
Requirements of the ADA, Strategies to Comply and Outcomes for People with Mental Disabilities
The second panel included Samuel Bagenstos, the principal deputy assistant attorney general for civil rights, a local Giant Foods supermarket manager and one of his employees with a mental disability, and a current EEOC legal intern who has struggled with psychiatric issues. Bagenstos testified on litigation efforts by the Department of Justice to enforce the ADA after Olmstead v. L.C., 527 U.S. 581 (1999), which requires public agencies to provide services “in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” The supermarket manager testified about his success in working with individuals with mental disabilities and emphasized in questioning that his employment of such persons was based on business interest, not charity. One of his employees spoke about the connections she had made with people and the pride she takes in working. The EEOC legal intern described the dehumanizing effects of her multipl institutionalizations and described the pride and self-worth she has regained through sheer effort after removing herself from institutionalization.
Litigation to Enforce the Rights of People with Mental Disabilities
In the final panel, EEOC senior trial attorney Markus Penzel and charging party Donna Malone discussed their experience in EEOC v. Land Air Express, and how the ADA Amendments Act would have changed the litigation. Malone, who suffers from post-traumatic stress disorder (PTSD) as a result of repeated abuse by family members, was discharged after seven years based on a stereotype of individuals with PTSD. Penzel noted that the issue of whether Malone was legally disabled was a substantial issue in the litigation, but would not be an issue under the expanded scope of disability under the ADA Amendments Act. In addition, Malone’s case would have been simplified due to the change in the burden of proof for individuals claiming to have been discriminated against because they are “regarded as” disabled. Penzel believes the changes to the ADA will help the EEOC and plaintiffs get to the substantive issues instead of being caught up in threshold issues.
In her concluding remarks, Commissioner Feldblum stated her hope that the hearing demonstrated that it is possible to change the dire employment statistics for individuals with mental disabilities. She further posited that one critical step is to establish a forum through which efforts can be built upon the experience of employers who have been leading that way, using what they have learned to create more systematic change. Commissioner Feldblum then announced, “Towards that end, I am very pleased that I have had some initial conversations with the Chamber of Commerce and Society for Human Resource Management and I am pleased that they are willing to explore the possibility of working with me, the various disability groups and various agencies within the government to develop a coherent and coordinated effort to increase the number of people with disabilities in employment.” Commissioner Feldblum explained that she and her staff will facilitate such cooperative efforts with an initial focus on individuals with mental disabilities and that she will be forming a disability group with her government colleagues and a business group to get the efforts under way.