On March 26, the Equal Employment Opportunity Commission (EEOC) released a policy guidance that answers various questions concerning the application of the employment provisions of the Americans With Disabilities Act (ADA) to persons with psychiatric disabilities.
A qualified individual with a psychiatric disability is covered by the ADA even if medication is taken to control the effects of the disability. Here are selected questions and answers from the guidance:
l. What is a psychiatric disability under the ADA?
Under the ADA, the term "disability" means: a) a physical or mental
impairment that substantially limits one or more of the major life activities
of an individual, b) a record of such an impairment, or c) being regarded
as having such an impairment.
2. What is a mental impairment under the ADA?
The ADA rule defines "mental impairment" to include any mental
or psychological disorder, such as emotional or mental illness. Examples
of emotional or mental illnesses include major depression, bipolar disorder,
anxiety disorders (which include panic disorder obsessive compulsive disorder,
and post-traumatic stress disorder), schizophrenia and personality disorders.
The current edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (now the fourth edition, DSM-IV) is relevant for identifying these disorders. Not all conditions listed in the DSM-IV, however, are disabilities, or even impairments, for purposes of the ADA.
3. Are traits or behaviors in themselves mental impairments?
No. Traits or behaviors are not, in themselves, mental impairments. For example, stress, in itself, is not automatically a mental impairment. Stress, however, may be shown to be related to a mental or physical impairment. Similarly, traits like irritability, chronic lateness and poor judgment are not, in themselves, mental impairments, although they may be linked to mental impairments.
4. Should the corrective effects of medications be considered when deciding if an impairment is so severe that it substantially limits a major life activity.
The ADA legislative history unequivocally states that the extent to which an impairment limits performance is assessed regardless of measures taken to reduce the impact of the impairment, such as medications.
Thus, an individual who is taking medications for a mental impairment has an ADA disability if there is evidence that the mental impairment, when left untreated, substantially limits a major life activity.
Relevant evidence for EEOC investigators includes, for example, a description of how an individual's condition changed when she/he went off medication or needed to have dosages adjusted, or a description of his/her condition before starting medication.
A copy of this guidance (EEOC Notice No. 915.002, 3/25/97) is available from the EEOC Web site at <http://www.eeoc.gov> or by calling the Commission's Publications Distribution Center at 800/669-3362 (TDD 800/800-3302).
Censure of abusive board of supervisors Member protected
A member of a county board of supervisors confronted other members of the board with abusive language after they switched their votes for committee membership and he was adversely affected by the change.
The board disciplined the member by censure and removed him from all committees for one year. The censured member filed suit claiming that his rights of free speech and due process had been violated.
The U.S. Court of Appeals for the Fourth Circuit ruled in favor of the board, finding that the board had been acting in a legislative capacity and was, therefore, absolutely immune from the constitutional rights challenges. The court reviewed the historical basis for legislative immunity and concluded that the power of a legislative body to punish its members is the power by which such bodies preserve their integrity without compromising the principle that citizens may choose their representatives.
While the abusive member's speech was also legislative speech that was protected from executive or judicial interference, his words were not protected from the legislative body's judgment.(Whitener vs. McWatters No. 96-1515; 4th Cir. Apr. 30, 1997).
(Legal Notes was written by Donna Clemons-Sacks, deputy general counsel
to the International Municipal Lawyers Association. Clemon-Sacks is a former
associate county attorney.)