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Mental disabilities and the ADA.

The Americans with disabilities act (ADA) has required certain adjustments on the part of businesses, some of which have had security implications. One of the most controversial and misunderstood issues has been how employers must treat employees or job candidates with mental disabilities. An analysis of cases to date, however, suggests that employers face these types of questions infrequently, and where problems do exist, they can often be managed with knowledge, foresight, and a reason able degree of accommodation.

The ADA. Congress enacted the ADA in 1990 to do for persons with disabilities what the Civil Rights Act and Title IX have done for racial minorities and women: protect them from unlawful acts of discrimination.

The ADA is divided into five titles. but titles I, II, and III are most relevant for the security professional. Title I addresses employment situations, including discrimination in hiring and in the workplace. Title II governs public services, particularly state and local governments and public transportation. Title III covers public accommodations.

Accommodation. The act requires that employers make reasonable accommodations to meet the needs of persons with disabilities, including mental disabilities. This concept of reasonable accommodation distinguishes the ADA from other civil rights legislation. Reasonable accommodation is not affirmative action, and affirmative action is not an ADA requirement.

In general, the idea behind reasonable accommodation is that businesses must provide supportive aids and services to otherwise qualified persons with disabilities, thereby enabling them to enjoy the same opportunities and benefits as anyone else. Reasonable accommodation is intended to remove barriers that inhibit persons with disabilities from enjoying those opportunities and benefits. Neither purpose requires preferences or quotas.

While reasonable accommodation is a key concept for all managers, security managers should especially note three critical concepts: the definition of mental disabilities; what it means to be otherwise qualified; and the statutory exclusions for current drug users, on-the-job drinking, and persons who constitute a direct threat to others.

Definitions. The ADA defines mental disabilities in three ways. The first addresses actual impairments. This definition includes "any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities," that substantially limits one or more major life activities. The key point is that unless an impairment is substantially limiting, it is not a protected disability.

The second definition encompasses any person who "has a history of, or has been classified as having" a mental disability Complainants must be able to show that they were discriminated against based on a demonstrable record of disability. Moreover. that historical record must describe an impairment that is substantially limiting.

The third definition covers persons who erroneously are regarded as having a mental disability. Plaintiffs must he able to show that defendants acted tinder a belief that the plaintiff had a substantially limiting impairment.

If complainants meet one of these definitions, they must also establish that they are otherwise qualified to participate in the activity or benefit at issue. In other words, they must be qualified once reasonable accommodations are taken into account.

For example, consider the newspaper reporter who is terminated because he is continually unable to meet deadlines due to a bipolar disorder. The only available accommodation - allowing him to submit the work late - is unreasonable because it would undermine the publication of the newspaper. Under the ADA, it is likely that the reporter would not be viewed as otherwise qualified and his or her ADA complaint would be dismissed.

Substance abuse. The ADA creates exclusions from coverage for persons who are current abusers of drugs or alcohol. Both of these exclusions under the law are substantial, but they are defined somewhat differently.

Anyone who is currently taking a controlled substance for unlawful purposes is not covered under the ADA, even if that person can prove he or she has a drug addiction. Moreover, courts broadly construe current drug use to include not only the present but also the recent past.

The key determination is whether a complainant has an ongoing illegal drug use problem or a past problem that is being addressed by treatment or rehabilitation. This distinction doesn't turn on a precise calculation of the time that has passed; it emphasizes the perceived intentions of the complainant.

In addition. anyone who is drinking while engaging in a work-related activity or who is engaging in that activity while alcohol-impaired is excluded from coverage. The meaning of current alcohol use is less subjective since it is limited to actual harmful behavior, whereas, as explained, the courts have defined current drug use as involving behavior that ceased sometime in the recent past.

Direct threat. Perhaps the most noteworthy ADA exclusion for security managers is for persons whose disabilities pose a direct threat to the health and safety of others. Such a threat could arise from a variety of mental or cognitive disabilities and could involve dangers due to either violence or an inability to work or perform other tasks safely. Safety issues may also involve persons with other disabilities including epilepsy, diabetes, or any condition in which side effects from medications might inhibit functioning Regardless of the source, however, the risk of harm must be both significant and substantial before any action may be taken against the person with a disability.

The key to determining whether a person poses a direct threat is an individualized and objective assessment of risk of harm that considers four factors: the duration of risk; the nature and severity of the potential harm; the likelihood that the harm will occur; and the imminence of the harm.

While recent cases do not specify how these four factors should he measured, they do reinforce the tenets of federal regulations that allow an assessment of potential harm to be based on "a reasonable medical judgment that relies on the most current medical knowledge or on the best available objective evidence." In one case, for example, a hospital successfully terminated its chief of medicine after it was proven that he was drinking while treating his patients. The court noted that there was little room for error where the lives of patients were concerned. Also, a postal worker with a personality disorder was properly fired after it was established that he had lost control at work and started screaming and throwing furniture.

When the threat of violence is unclear, however, the courts have ruled that employers must be certain of potential danger before taking action. For example, the Peace Corps could not reject an applicant with chronic depression without first determining whether her condition would create a direct threat to her health and safety in a foreign land. In another case, the U.S. Postal Service required that all employee undergo a series of psychiatric evaluations to determine whether he posed a risk to others after he made threats against the U.S. postmaster. A court ruled that this action was too severe, and ordered the postal service to cease the evaluations unless the employee's subsequent behavior indicated that he was a direct threat.

In making any such assessment, the employer must always consider how reasonable accommodation could alleviate the problem. Thus, a college student whose threatening behavior can be controlled when he participates in outpatient treatment is not considered a direct threat as long as he continues to participate in that program.

A frequent mistake that is made in determining the existence of a direct threat is automatically equating mental disability with violence. There is no meaningful connection. To be meaningful, a connection should be based on an objective, individualized risk assessment that includes persuasive evidence of recent acts of violence. A connection based on a disability label is impermissible under the ADA.

To ensure that employment decisions do not violate ADA provisions, companies may want to hold ADA training sessions for key personnel. Security professionals can take the lead in ensuring that their companies do not err either in ignoring the ADA or in interpreting its provisions too broadly.

John Parry is director of the American Bar Association's Commission on Mental and Physical Disability Law, editor-in-chief of the Mental and Physical Disability Law Reporter and author of Mental Disabilities and the Americans with Disabilities Act. To order this publication or to receive a free catalog of all the Commission's products and services, call (202) 662-1570 (voice), 662-1032 (fax), 662-1012 (TTY); or write to the ABA Commission on Mental and Physical Disability Law, 740 15th St. N.W., 9th Floor, Washington, D.C. 20005.
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Title Annotation:Americans with Disabilities Act
Author:Whelpton, Eric
Publication:Security Management
Date:Mar 1, 1998
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