Posted by CareBear04 on April 17, 2008, at 0:37:04
hi all-- i posted this on the med board, but i'm not sure whether the same people check both, and i was hoping to get as many thoughts as i could.
LOOKING FOR INPUT
for my legal skills requirement this term, i'm taking a civil rights practicum, and our focus is on the americans with disabilities act restoration act (ADARA), which is pending in the senate. my class has been assigned to represent four organizations-- the diabetes association, the chamber of commerce, the testing association, and the psychiatric association. i guess by chance (no one knows about my psych diagnoses) i'm representing the APA. my final term assignment is to prepare and present Congressional testimony before the Senate committee addressing the bill.BACKGROUND ADA/ADARA info
the ADA provides protection for individuals with disabilities, requiring reasonable accommodations in employment, housing, access to public accommodations, education and testing, and other areas.the purpose of the ADARA is to restore the intent Congress [supposedly] had in 1990 when they passed the original ADA. the Supreme Court has held that a stringent standard should be applied to whether individuals qualify as "disabled" within the meaning of the ADA. one important aspect (maybe not as important to plaintiffs with mental illness) is that the Court has held that the assessment of disability should be made with regard to any "mitigating measures" (i.e. meds) rather than based on the baseline state of impairment. in the psych context, though, courts have held that an individual has a duty to mitigate and that those who fail to comply with treatment (or who use drugs and alcohol while taking their meds) are not eligible for the protection of the ADA. the current language of the ADA defines "impairment" in broad terms, so it's not hard to meet that requirement. however, it also requires that the impairment "substantially limit" a major life activity. this is the part where most plaintiffs get their cases tossed out of court. although ADA provisions would protect against certain actions suffered, courts often hold that plaintiffs do not qualify as a matter of law as disabled and thus entitled to the ADAs coverage.
the ADARA eliminates the "substantially limits" requirement, so that anyone with an impairment can argue their cases on the merits instead of having their claims barred based on a technical definition. Some other important changes are that the ADARA explicitly states that determination of whether an impairment exists shall be made without regard to use of a mitigating measure, and that it should not matter whether the manifestation of the impairment is episodic, in remission, or latent. the amendment also adds a new cause of action-- discrimination against an individual based on his or her use of a mitigating measure and/or the side effects of it. this addresses some problems raised in cases where plaintiffs (police officers, doctors, etc.) were suspended or terminated based on their use of psych meds.
anyway, my professor expects that the psychiatric association will naturally testify in favor of the bill, but i'm not sure it's so clear-cut. I figure that, better than anyone, the people on this board can give me good input on their thoughts and their experiences dealing with needing accommodations, facing stigma and stereotypes, any litigation anything! Im focused mainly on the employment part, but Id appreciate input on anything.
SOME POTENTIAL AREAS OF CONCERN
Here are a few concerns that I have. While the current definition requiring substantial limitation does exclude a lot of people, Im not sure that changing the definition will do more good than harm. I can see either (or even both) of two extremes resulting:(1) Everyone becomes a diagnosis and the diagnosis carries a lot of stereotypes. The ADARA doesnt really change anything beyond the definition of disability. Beyond proving a disability, people suing under the ADA also have to show that they are otherwise qualified, which means that, with or without accommodation, they can perform the essential functions of their job. In a lot of cases, an employer can still get away with explaining that they fired someone because he had a high risk of relapse or because he posed a danger or because he behaved bizarrely or because fellow employees felt threatened. One worry I have is that there remain so many misperceptions about mental illness, and that the ADARA would result in people being treated as members of a group (depressed, bipolar, schizophrenic, or just mentally ill) rather than as individuals. As a member of a group, they might be forced to prove that they arent especially violent, a security threat, reckless, just plain crazy, or any of the other misperceptions people still have about mental illness.
(2) At the other extreme, the ADARA might reinforce the view some others have about mental illness not being a real impairment. Obviously, mental illness encompasses a lot of disorders ranging from mild impairment to really severe and lasting limitations. Allowing a whole influx of new people to claim mental disability and benefit from mandatory accommodation may cause the implications of severe disorders to be trivialized. A lot of jurors deciding these cases might already believe that everyone gets depressed or stressed and that they suck it up so these plaintiffs should as well. Getting in the door by lowering the standard for disability doesnt ensure a favorable verdict, and presented with lots of cases of people demanding accommodations for mental illnesses of all sorts of severity, jurors may be more likely to treat everyone the same with a deal with it attitude. If that happens, then the ADARA would end up hurting the individuals who really cant function without accommodations.
so of course there are good and bad things about the bill. and, of course, in a lot of ways it doesn't go far enough in bringing about the changes that would best help people with our past and current experiences.but if you've read this far and have any thoughts, i'd really really love and appreciate your input either posted on this board or sent by Babblemail.
thanks so so much!
cb
poster:CareBear04
thread:823727
URL: http://www.dr-bob.org/babble/psycho/20080405/msgs/823727.html