Challenges for the mentally ill: the "threat to safety" defense standard and the use of psychotropic medication under Title I of the Americans with Disabilities Act of 1990.

• Author: Guiduli, Karin A.

Introduction

Employment is "the key to independence."(1) For the mentally ill, however, the right to employment(2) has been a conditional one. Like all citizens, the mentally ill have a legitimate need and a right to be productive, working members of society.(3) By inversely correlating productivity with disability,(4) however, society has long stigmatized mentally ill individuals and thwarted their search or acceptance and assimilation into regular society. In the employment arena, this stigma often crosses the line into actual discrimination.

On July 26, 1990, this country took a major step toward eliminating such discrimination when President Bush signed into law the Americans with Disabilities Act (the "ADA", or the "Act"). This landmark enactment marked the bestowment of a "breathtaking promise for people with mental disabilities."(6) Congress noted:

Martin Luther King had a dream. We have a vision. Dr. King

dreamed of an America "where a person isjudged not by the color

of his skin, but by the content of his character." ADA's vision is

of an America where persons are judged by their abilities and not

on the basis of their disabilities.(7)

In short, the ADA guarantees persons with disabilities equal access to societal civil rights.(8) The Act simultaneously sets up a prohibition against discrimination and an obligation to accommodate reasonably persons with physical and mental impairments.(9) Mental impairments, because of their hidden and often misunderstood nature, present special challenges for the successful implementation of the ADA. In striving toward its goal of inclusion, the ADA faces the difficulty of a long history of exclusion with regard to the mentally impaired.(10) Furthermore, the ADA's emphasis on physical disability(11) has led many to construe the Act to provide more direct protection to persons with physical disabilities, suggesting that the Act may be unfairly and unequally applied to persons with mental illness.(12)

This Comment looks at the employment challenges facing the mentally ill under the ADA and argues that the unique nature of mental illness, together with the large success of treatment through medication, warrants additional safeguards for the mentally ill through ADA protection. Part I describes the barriers to employment which face the mentally ill and establishes the unique position of such individuals in the employment setting. Part II introduces the ADA and outlines the mechanics of Title I, the ADA's employment provision. Part III details one ADA employer defense, the direct threat qualification (or "safety defense"), which has broad application to the mentally ill, and evaluates the current interpretations of the defense. Given the unique nature of the mental-illness disability, Part III argues that the safety defense may unfairly be used against persons with mental illness; therefore, additional safeguards are needed to assure that the ADA's protection extends to the mentally ill. Part IV proposes one such safeguard. when an employer attempts to invoke the safety defense against a mentally ill employee, the potentially mitigating impact of psychotropic medication on the illness must be considered. Specifically, this Comment suggests that this safeguard be implemented as an additional factor in the EEOC's current direct threat analysis. This Comment concludes with a discussion of the applications and implications of adding the use of psychotropic medication to the direct threat analysis.

1. Mental Illness and Employment

   1. Mental Illness As a Barrier to Employment

      Today, it is estimated that 1.5 million Americans have some form of severe, persistent, disabling mental illness that interferes with daily functioning.(13) Moreover, up to twenty percent of the U.S. population suffers from a diagnosable psychiatric disorder. Depressive disorders,(15) anxiety disorders,(16) and schizophrenia(17) are the most prevalent forms of mental illness.(18) In addition to these specific afflictions, persons with mental illness suffer from low self-esteem, feelings of inadequacy, social anxiety, stigma, and self-blame.(19)

      These statistics carry broad implications for America's work@ force. As the first symptoms of mental illness frequently surface between the ages of fifteen and twenty-five-years generally reserved for substantial educational and/or vocational training(20) - the unemployment rate for the mentally ill has been measured to be as high as seventy percent." Although each mentally ill individual faces unique challenges, the common difficulties faced by the mentally ill in the workplace include. functional difficulties, problems socializing, limited stamina, irregular attendance, maladaptive coping mechanisms for stress, heightened anxiety, difficulty accepting feedback, distractibility, fear of relapse, stress due to fear of stigma resulting from disclosure of the illness, physical side effects of medication, and an inability to respond to change.(23)

      These problems are magnified by the fact that the mentally ill are considered potentially dangerous in the workplace, and indeed in many other contexts as well.(24) The inherently subjective nature of mental illness adds to the difficulty of distinguishing misperceptions from reality in the workplace. Despite empirical evidence that mental illness is not a predictor of violence,(26) the media-driven image of the dangerous lunatic persists.(27) This image, combined with a presumption of incompetence, has prompted a generally skeptical attitude toward hiring the mentally ill.(28)

      Historically, mental impairment was seen as symbolic punishment for moral transgressions:(29) "[M]ental illness has been historically associated with sin, evil, God's punishment, crime, and demons."(30) Even legal study reveals a history tainted with labels and characterized by intolerance and disdain for the mentally ill.(31) The result is that the mentally ill, perceived as prisoners of their own deficient minds, have been lowered to the level of "third-class citizens" by the presumption that they are dependent and incompetent.(32) Mental illness is still greeted with skepticism by many, and the concept of coupling mental illness with independence remains unthinkable.(33) Today, people find it intolerable to witness a person talking to himself, depressed, contemplating suicide. The public wants to be spared this spectacle."(34) It is faced with these deeply rooted perceptions, and at the risk of creating a "spectacle" that the mentally ill enter the employment market.

   2. Mental Illness As Distinct from Other Disabilities

      1. Mental Illness Differs from Physical Disability

         Given the unique nature of the disability, it is not surprising that mental illness presents special challenges in the workplace. Its main counterpart, physical disability, may be distinguished on several grounds. First, unlike physical disability, which is typically apparent, mental illness is a disease hidden in the mind. Because mental illnesses "are far more complex and elusive, than physical disabilities, employers are less likely to recognize an employee with mental illness on sight.(35) Moreover, while a physical disability may have an overt manifestation, such as paraplegia, a mental illness rarely does.(36) Often mental illness is "hidden," or not readily apparent upon sight.(37) This overt/covert distinction also justifies differentiating mental illness from other types of mental impairments that do manifest themselves physically, such as mental retardation.(38)

         Second, mental illness is harder to understand than physical disability due to a lack of medical knowledge among professionals and a lack of familiarity among laypersons. Thus, with respect to mental illness, the law has evolved into an interactive exchange among mental health specialists.(39) Physical disabilities are easier, to deal with; they are more likely to have an agreed-upon course of treatment and expected recovery time, whereas diagnoses of mental illnesses are far less certain.(40)

         Third, the hidden and misunderstood nature of mental illness contributes to suspicion and disbelief that does not exist for physical disabilities. Lurking behind a diagnosis is the myth of mental illness."(41) A person disabled with anxiety disorder, for example, simply does not have the same kind of hard evidence of disability as does one who is confined to a wheelchair. While those with physical disabilities are viewed as unfortunate victims, those with mental illnesses must contend with the presumption that the disability is somehow their fault.(42)

         Finally, mental illness evokes a different response than physical disability among the public. While one might feel pity for the physically disabled, fear is a more common response to the mentally ill, as noted in a 1991 Harris Poll.(43) This study of public attitudes toward persons with disabilities indicated that while contact with physically disabled persons generally evoked pity and embarrassment, contact with the mentally ill engendered significant apprehension.(45) Indeed, characterizing a particular problem as a mental disease may lead to greater stigmatization than would some other way of describing the difficulty."(46)

      2. Mental Illness Involves Unique Treatment

         Mental illness is not only distinguishable from other types of disability on the basis of its manifestations, but also on the basis of its treatment-the use of psychotropic medication.(47) Such medication is widely successful in treating the symptoms of mental illness because it can control the biochemical imbalances in the body and brain which researchers now believe cause many mental illnesses.(48) For the most common mental illnesses,(49) psychotropic medication can be divided into four categories:(50) antidepressants (to treat depressive disorders), antimanics (to treat bipolar disorder or manic-depressive disorder),(52) antianxiety medication (to treat anxiety disorders),(53) and antipsychotics...