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Psychiatric Disabilities and theAmericans with Disabilities ActJohn T. Pardeck PhD aa School of Social Work at Southwest Missouri StateUniversity , Springfield, MO, 65804, USAPublished online: 22 Oct 2008.

To cite this article: John T. Pardeck PhD (1998) Psychiatric Disabilities and theAmericans with Disabilities Act, Journal of Health & Social Policy, 10:3, 1-12, DOI:10.1300/J045v10n03_01

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Psychiatric Disabilitiesand the Americans with Disabilities Act:Implications for Policy and Practice

John T. Pardeck, PhD

ABSTRACT. People with psychiatric disabilities are often victimsof job discrimination. The Americans with Disabilities Act (ADA)of 1990 makes it very clear that job discrimination based on a psy-chiatric impairment is illegal. The Equal Employment OpportunityCommission (EEOC) reports that psychiatric disability is one of theleading causes why persons file discrimination complaints. Giventhis situation, an analysis is offered of what constitutes a psychiatricdisability under the ADA. An overview, an analysis, and examplesof the kinds of accommodations employers can be expected to pro-vide people with psychiatric disabilities are offered. The policy andpractice implications of the employment provisions (Title I) in thearea of psychiatric disabilities are presented. [Article copies availablefor a fee from The Haworth Document Delivery Service: 1-800-342-9678.E-mail address: getinfo@haworthpressinc.com]

The Americans with Disabilities Act of 1990 (ADA) was enactedto protect the estimated 43 million Americans with disabilities. Asof July 1994, all employers with 15 or more employees had to be incompliance with this new law. Title I (Employment Provisions) ofthe ADA protects persons with disabilities from job discriminationin all aspects of employment including hiring, promotion, and jobbenefits.As a general rule, under Title I, employers cannot discriminate

John T. Pardeck is Professor of Social Work, School of Social Work at South-west Missouri State University, Springfield, MO 65804.

Journal of Health & Social Policy, Vol. 10(3) 1999E 1999 by The Haworth Press, Inc. All rights reserved. 1

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JOURNAL OF HEALTH & SOCIAL POLICY2

against a ‘‘qualified individual with a disability.’’ A qualified indi-vidual with a disability is a person who is able to perform theessential functions of a job with or without accommodation. Underthe ADA, a disability is defined as a physical or mental impairmentthat substantially limits one or more major life activity, such aswalking, talking, seeing, hearing, or learning. Individuals are pro-tected by the ADA if they currently have an impairment, have arecord of such an impairment, or if the employer feels they have animpairment.

JOB DISCRIMINATIONAND PSYCHIATRIC DISABILITIES

Discrimination based on psychiatric disabilities is one of theleading causes why persons file complaints with the Equal Employ-ment Opportunity Commission (EEOC) (see Table 1). The psy-chiatric disabilities that are the basis for these complaints includebut are not limited to anxiety disorders, depression, bipolar disor-der, and schizophrenia.Employers at times discriminate against people with psychiatric

disabilities because of popular misconceptions. These misconcep-tions include the beliefs that people with psychiatric disabilities arelikely to be violent; that they can never recover from their mentalillness; or that they cannot tolerate stress on the job. The data inTable 1 suggests that a significant number of people with psychiat-ric disabilities may be treated differently in the workplace given thelarge number of job discrimination complaints filed by this pro-tected group.

PSYCHIATRIC DISABILITY UNDER TITLE I

The ADA defines a mental impairment as any mental or psycho-logical disorder, such as emotional or mental illness. Examples ofmental impairments include major depression, bipolar disorder, anxi-ety disorders, schizophrenia, and personality disorders. The currentedition of the American Psychiatric Association’s Diagnostic and

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John T. Pardeck 3

TABLE 1. Disabilities Most Often Cited for Basis of Discrimination Com-plaints with the EEOC from July 26, 1992 Through September 30, 1996

Disabilities Cited Percentage

Back impairments 18.2

Emotional/Psychiatric impairments 12.7

Neurological impairments 11.3

Extremities 9.0

Heart impairments 4.1

Diabetes 3.6

Substance Abuse 3.3

Hearing impairments 2.9

Vision impairments 2.6

Blood DisordersHIV (Subcategory of Blood Disorders) 2.4

Cancer 2.3

Asthma 1.7

72,687 Total charges (This is not a complete list; therefore, percentagesdo not add up to 100%)

Source: TADAR: The ADA Report (Vol. 6, no. 1), 1997. Columbia, MO: University ofMissouri.

Statistical Manual of Mental Disorders (DSM-IV) (American Psy-chiatric Association, 1994) is critical for classifying psychiatric dis-abilities under the ADA. The DSM-IV is recognized as an importantreference by the courts when litigating employment discriminationcases based on psychiatric disabilities (Pardeck, 1998).Not all conditions listed in the DSM-IV are disabilities under the

ADA. Behaviors noted in the DSM-IV that are excluded from ADAcoverage are people currently using illegal drugs or those involvedin child abuse. These kinds of conditions are clearly disorders andare listed in the DSM-IV; however, they are not impairments underthe ADA. Furthermore, traits or behaviors, in and of themselves, are

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not necessarily mental disabilities. For example, stress in itself isnot automatically a mental impairment unless it can be shown that itis related to a mental or physical impairment. Similarly, traits likeirritability, chronic lateness, and poor judgment are not in them-selves mental impairments, although they may well be linked to animpairment (Pardeck, 1998).

Major Life Activities

A mental impairment must substantially limit at least one majorlife activity before it rises to the level of a disability under Title I ofthe ADA. Major life activities limited by a mental impairment varyamong individuals. No exhaustive list of major life activities isavailable; however, mental impairments often restrict major lifeactivities such as learning, thinking, concentrating, interacting withothers, caring for oneself, speaking, performing manual tasks, orworking. Sleeping is also considered a major life activity that maybe limited by a psychiatric disability (Equal Employment Opportu-nity Commission, 1997).

Substantial Limitation

When deciding if an impairment substantially limits one’s func-tioning, the analysis must include the person’s typical functioning athome, at work, and in other settings; it must be established that theindividual’s functional limitations are clearly linked to a mentalimpairment. What is critical is the fact that expert testimony aboutsubstantial limitation is not necessarily required; credible testimonyfrom the individual with a mental impairment and his or her familymembers, friends, or even co-workers may suffice (Equal Employ-ment Opportunity Commission, 1997).A major life activity is substantially limited by an emotional

impairment if it prevents a person from performing a major lifefunction or significantly restricts the condition, manner, or durationunder which a person can perform a major life activity, as comparedto the typical person in the general population. An emotional im-pairment does not significantly restrict a major life activity if itresults in only mild limitations (Pardeck, 1998).

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When considering whether a mental impairment is corrected bymedication, the ADA stresses that the impairment continues tosubstantially limit major life activities even though the severity ofthe impairment has been reduced. The ADA unequivocally con-cludes that the degree to which an impairment limits performanceof a major life activity is assessed without regard to mitigatingmeasures, including medication. Consequently, a person who istaking medication for a psychiatric impairment has a disability un-der Title I if there is evidence that the impairment, when left un-treated, substantially limits a major life activity (Equal EmploymentOpportunity Commission, 1997).An emotional impairment is substantially limiting if it lasts for

more than several months and significantly restricts the perfor-mance of at least one or more major life activities during a giventime period. An emotional impairment is not substantially limitingif it lasts for only a brief time or does not significantly restrict aperson’s ability to perform a major life activity (Pardeck, 1998).Some mental impairments may be long-term, or potentially long-

term, because their duration is indefinite and unknowable. Thesekinds of impairments, if severe enough, may constitute a disability.However, conditions that are temporary or have no long-term ef-fects on an individual’s major life activities are not substantiallylimiting. For example, a broken arm is temporary, therefore it is nota disability under the ADA (Pardeck, 1998).Conditions that are episodic may constitute impairments that are

substantially limiting when active or have a high likelihood ofrecurrence. Psychiatric disabilities that fit this description includebipolar disorder, major depression and schizophrenia; these condi-tions may remit and intensify, sometimes repeatedly, over thecourse of months or even years. An example of this kind of condi-tion follows (Pardeck, 1998):

An employee in a human service agency has had episodicbouts with major depression for almost a year. At times he isintensely sad and socially withdrawn; however, he continuesto go to work. The employee also suffers from serious insom-nia, and has had severe problems concentrating. This em-ployee has an impairment that significantly restricts his ability

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to interact with others, to sleep, and to concentrate. The effectsof this impairment are severe and have lasted a long enoughtime period to substantially limit major life activities.

A mental impairment substantially limits an employee’s ability tointeract with others if it can be shown that the impairment is linkedto such behavior. Unfriendliness with co-workers or others wouldnot, standing alone, be sufficient to establish a substantial limitationin interacting with others. An employee would be substantiallylimited, however, if his or her relations with co-workers, for exam-ple, were characterized on a regular basis by severe problems suchas consistently high levels of hostility, social withdrawal, or failureto communicate. These kinds of conditions must be long-term orpotentially long-term to be considered as a disability under Title I ofthe ADA (Pardeck, 1998).

Disclosure of an Emotional Impairment

Employers cannot ask questions that are likely to result in infor-mation about an applicant’s disability before making a job offer.Questions on a job application form focusing on psychiatric disabil-ities or any kind of disability are prohibited before an employmentoffer is made. In limited circumstances, an employee may ask ques-tions related to a psychiatric impairment if the employer feels anaccommodation may be needed. If an applicant requests an accom-modation, and the need is not obvious, an employer may ask anapplicant for documentation about his or her disability. The em-ployer has the right to request that the documentation come from aprofessional person. A variety of professionals including profes-sional social workers can provide this verification (Pardeck, 1998).An employer should make it clear to an applicant that any request

for documentation concerning a disability will not affect the hiringprocess. Information may only be requested by the potential em-ployer to verify facts about an applicant’s disability.From a legal standpoint, the only clear circumstance in which an

employer may ask questions related to an applicant’s disability,including a psychiatric disability, is after an employment offer ismade. This means that once an employer extends an offer of em-ployment, the employer may require a medical examination that

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includes questions about an applicant’s emotional impairment (Par-deck, 1998).When an employer has been informed of an applicant’s psychiat-

ric disability, this information becomes confidential under theADA. If the person is hired, information concerning an employee’spsychiatric disability must also be stored separately from the usualpersonnel files. The only persons within an organization who canlegally have access to this information include the following (GreatPlains Disability and Business Technical Assistance Center, 1995):

1. A supervisor may need the information to ensure that the ap-propriate accommodation is provided to an employee.

2. First aid and safety personnel may be told of the disability be-cause they may have to provide emergency treatment.

3. Government officials investigating compliance with the ADAmust be provided relevant information concerning an em-ployee’s disability on request.

Other employees have no right to know about a co-worker’sdisability. An employer may not even tell employees whether anaccommodation is being offered to a co-worker. Given this kind ofsituation, it is particularly important that ADA training be providedto all employees to help ensure that they understand their rights andobligations under the law (Pardeck, 1998).

Requesting Reasonable Accommodation

An employer must provide a reasonable accommodation to aqualified individual with a psychiatric disability unless it can showthat the accommodation would impose an undue hardship for theemployer. Employees with psychiatric disabilities at times are re-luctant to request reasonable accommodations because of the poten-tial negative consequences (Harris and Associates, 1994; EqualEmployment Opportunity Commission and U. S. Department ofJustice, 1992).When a person requests an accommodation for a psychiatric

disability, there is a process that should be followed. The followingis an example of the process (Pardeck, 1998):

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An employee of a human service agency requests time offbecause she is depressed. This request can simply be written in‘‘plain English’’ and does not necessarily have to be in ahighly technical format. This kind of statement is sufficient toput the employer on notice that the employee is requesting anaccommodation. However, if the employee’s need for accom-modation is not obvious, the agency may request documenta-tion concerning the employee’s disability and functional limi-tations.

Requests for reasonable accommodations do not necessarily haveto be in writing. Furthermore, employees can request an accom-modation at any time during employment. If a disability is notobvious, the employer can require the employee to provide docu-mentation. The employer can require the employee to go to a healthcare professional of the employer’s choice for purposes of docu-menting the need for an accommodation (Pardeck, 1998).Reasonable accommodations for persons with disabilities must

be determined on a case-by-case basis because workplaces and jobsvary, as do people with disabilities. Accommodations for peoplewith psychiatric disabilities may involve changes to workplace poli-cies, procedures, or other practices. Physical changes in the work-place or extra equipment may also be effective accommodations forsome persons (Equal Employment Opportunity Commission, 1997).The precise nature of an effective accommodation for an individ-

ual with a psychiatric impairment may not be apparent. A profes-sional who is an expert on emotional impairments may have to helpan employer and employee to communicate effectively about anaccommodation. The following covers selected types of reasonableaccommodation that may be effective for individuals with psychiat-ric disabilities (Equal Employment Opportunity Commission, 1997).Changing a person’s work schedule may be a reasonable accom-

modation. For example, the employee might change the workschedule to 10 AM to 6 PM rather than 9 AM to 5 PM. Somemedications taken for psychiatric impairment may cause extremegrogginess and prevent an individual from concentrating early inthe morning. Depending on the job, a later work schedule mayenable the employee to perform essential functions of a job.

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Physical changes in the workplace or equipment can serve asaccommodations for a person with a psychiatric disability. For ex-ample, room dividers, soundproofing or visual barriers betweenworkspaces may be a reasonable accommodation for a person witha mental disability that limits one’s focusing on work tasks. Permit-ting an employee to wear headphones to block out noise can also beused as an accommodation (Pardeck, 1998).An accommodation may also consist of modifying workplace

policy. For example, a human service agency may provide a reason-able accommodation that allows an employee with a disability whohas problems concentrating to use a tape recorder during an inter-view with a client. Even though this practice may not be allowedunder agency policy, it may be a reasonable accommodation to alterthe policy for an employee with a psychiatric disability that inhibitsconcentration.A reasonable accommodation for a person with a psychiatric

disability might also be adjusting supervisory methods. The follow-ing provides an example of this kind of accommodation (Pardeck,1998):

An employee of a human service agency requests more dailyguidance and feedback as a reasonable accommodation forlimitations associated with a psychiatric disability. In responseto his request, the employer consults with the employee, hishealth care professional, and his supervisor about how hislimitations are manifested in the office, for example, the em-ployee is unable to stay focused on the steps necessary tocomplete large projects. As a result of consultations, the super-visor and employee work out a long-term plan to initiateweekly meetings to review the status of large projects andidentify which steps are to be taken.

IMPLICATIONS FOR POLICY AND PRACTICE

The ADA prohibits discrimination against persons with psychiat-ric disabilities in the area of employment. The evidence suggeststhat discrimination against persons with psychiatric impairments inthe workplace is extensive (Fersh and Thomas, 1993).

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The ADA evolved from two civil rights laws: (1) the Civil RightsAct of 1964, and (2) the Rehabilitation Act of 1973. There are manysimilarities between these two earlier laws and the ADA. For exam-ple, the Civil Rights Act of 1964 prohibits discrimination on thebasis of race, sex, religion, and national origin. The RehabilitationAct prohibits discrimination based on disability; however, it onlycovers public and private entities receiving federal funds. TheADA, like the Rehabilitation Act, also prohibits discrimination onthe basis of disabilities. The ADA is far more expansive than theRehabilitation Act because it covers all employers with 15 or moreemployees in both the public and private sectors. The ADA is morethan simply adding disability to the list of protected classes becauseit requires public and private entities to provide reasonable accom-modations to people with disabilities in the workplace. No otherprotected class has this kind of right under federal civil rights law(Pardeck, 1998).As illustrated in this paper, the employment provisions of the

ADA for persons with psychiatric disabilities are complicated. Giv-en this fact, employers must be particularly knowledgeable of theADA because emotional impairments are quite prevalent in thegeneral population. In-service training in organizations will help toinsure that employers are in compliance with the ADA.Given the complexity of the rules governing the ADA, and the

expansive nature of this new law, it will probably take decades forthe ADA to be fully implemented in both the public and privatesectors. Employers who have failed to implement the employmentprovisions under Title I of the ADA have literally paid out millionsof dollars to job applicants and employees who have had their rightsviolated based on disability (Pardeck, 1998). The ADA is still a newlaw; employers have much to learn about the Act.One of the more interesting issues related to the ADA is that

approximately one-half of persons with disabilities do not realizethey are protected by the ADA (Shapiro, 1993). What this means isthat many people with psychiatric disabilities do not realize thatthey have new employment rights. It is critical for health and humanservice professionals who work with people with emotional impair-ments to inform them of their rights.Even though there continues to be high unemployment among

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John T. Pardeck 11

people with disabilities, many have benefited from the ADA. Forexample, the EEOC has intervened on behalf of numerous peoplewith psychiatric disabilities who have been discriminated against inthe workplace. There are now also many people with psychiatricdisabilities who are highly educated and earn excellent incomes.The ADA and other similar federal legislation have helped to insurefair treatment of people with emotional impairments in the work-place (Bennett-Alexander and Pincus, 1995).Employers have reported that the implementation of the ADA

has been relatively smooth in most aspects of the workplace. Mei-singer (1984) indicates that the process used to implement the ADAhas helped employers learn about their obligations in advance andmany now feel comfortable with the provisions of the ADA. Fur-thermore, employers are learning that persons with disabilities areexcellent employees (Pardeck, 1994).The ADA has clearly had a significant impact on the employ-

ment prospects of people with psychiatric disabilities. Even thoughthe federal government has been implementing a number of lawsover the last several decades that protect the rights of people withdisabilities in the workplace, the ADA to this point is the capstoneof these national laws. The ADA is aimed at increasing self-suffi-ciency among people with disabilities and helping insure their fullparticipation in the workplace. It is critical for employers to be fullyaware of the employment provisions of the ADA in order to ensurethat the rights of people with disabilities are not violated.

REFERENCES

American Psychiatric Association (1994). Diagnostic and statistical manual ofmental disorders: DSM-IV (4th ed.). Washington, DC: Author.

Bennett-Alexander, D.L. & Pincus, L.B. (1995). Employment law for business.Chicago, IL: Irwin.

Equal Employment Opportunity Commission & U. S. Department of Justice(1992). The Americans with Disabilities Act: Questions and answers. Wash-ington, DC: National Institute on Disabilities and Rehabilitation Research.

Equal Employment Opportunity Commission (1997). EEOC enforcement guid-ance: The Americans with Disabilities Act and psychiatric disabilities. Wash-ington, DC: Government Printing Office.

Fersh, D. & Thomas, P.W. (1993). Complying with The Americans with Disabili-ties Act. Westport, CT: Quorum Books.

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Great Plains Disability and Business Technical Assistance Center (1995). Ameri-cans with Disabilities Act Technical Assistance Manual Title II. Columbia,MO: Author.

Harris, L. and Associates (1994). NOD/Harris survey of Americans with disabili-ties. Washington, DC: National Organization on Disabilities.

Meisinger, S. (1994). Statement of the society for human resource managementbefore U.S. commission on civil rights. Washington, DC: United States Com-mission on Civil Rights.

Pardeck, J.T. (1994, July/August). What you need to know about The Americanswith Disabilities Act. Coping, 16-17.

Pardeck, J.T. (1998). Social work after The Americans with Disabilities Act.Westport, CT: Auburn House.

Shapiro, J.P. (1993). No pity: People with disabilities forging a new civil rightsmovement. New York: Times Books.

TADAR: The ADA Report (Vol. 6, no. 1), 1997. Columbia, MO: University ofMissouri.

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