On This Day … 26 July [2022]

Events

  • 1990 – The Americans with Disabilities Act of 1990 is signed into law by President George H.W. Bush.

People (Births)

Americans with Disabilities Act of 1990

The Americans with Disabilities Act of 1990 or ADA (42 U.S.C. § 12101) is a civil rights law that prohibits discrimination based on disability.

It affords similar protections against discrimination to Americans with disabilities as the Civil Rights Act of 1964, which made discrimination based on race, religion, sex, national origin, and other characteristics illegal, and later sexual orientation and gender identity. In addition, unlike the Civil Rights Act, the ADA also requires covered employers to provide reasonable accommodations to employees with disabilities, and imposes accessibility requirements on public accommodations.

In 1986, the National Council on Disability had recommended the enactment of an Americans with Disabilities Act (ADA) and drafted the first version of the bill which was introduced in the House and Senate in 1988. The final version of the bill was signed into law on 26 July 1990, by President George H.W. Bush. It was later amended in 2008 and signed by President George W. Bush with changes effective as of 01 January 2009.

Disabilities Included

ADA disabilities include both mental and physical medical conditions. A condition does not need to be severe or permanent to be a disability. Equal Employment Opportunity Commission regulations provide a list of conditions that should easily be concluded to be disabilities:

Other mental or physical health conditions also may be disabilities, depending on what the individual’s symptoms would be in the absence of “mitigating measures” (medication, therapy, assistive devices, or other means of restoring function), during an “active episode” of the condition (if the condition is episodic).

Certain specific conditions that are widely considered anti-social, or tend to result in illegal activity, such as kleptomania, paedophilia, exhibitionism, voyeurism, etc. are excluded under the definition of “disability” in order to prevent abuse of the statute’s purpose. Additionally, gender identity or orientation is no longer considered a disorder and is also excluded under the definition of “disability”.

Carl Jung

Carl Gustav Jung (26 July 1875 to 06 June 1961) was a Swiss psychiatrist and psychoanalyst who founded analytical psychology. Jung’s work has been influential in the fields of psychiatry, anthropology, archaeology, literature, philosophy, psychology, and religious studies.

Jung worked as a research scientist at the famous Burghölzli hospital, under Eugen Bleuler. During this time, he came to the attention of Sigmund Freud, the founder of psychoanalysis. The two men conducted a lengthy correspondence and collaborated, for a while, on a joint vision of human psychology.

Freud saw the younger Jung as the heir he had been seeking to take forward his “new science” of psychoanalysis and to this end secured his appointment as president of his newly founded International Psychoanalytical Association. Jung’s research and personal vision, however, made it impossible for him to follow his older colleague’s doctrine and a schism became inevitable. This division was personally painful for Jung and resulted in the establishment of Jung’s analytical psychology as a comprehensive system separate from psychoanalysis.

Among the central concepts of analytical psychology is individuation – the lifelong psychological process of differentiation of the self out of each individual’s conscious and unconscious elements. Jung considered it to be the main task of human development. He created some of the best known psychological concepts, including synchronicity, archetypal phenomena, the collective unconscious, the psychological complex and extraversion and introversion.

Jung was also an artist, craftsman, builder and a prolific writer. Many of his works were not published until after his death and some are still awaiting publication.

Glynis Breakwell

Dame Glynis Marie Breakwell DBE DL FRSA FAcSS (born West Bromwich, 26 July 1952) is a social psychologist and an active public policy adviser and researcher specialising in leadership, identity process and risk management. In January 2014 she was listed in the Science Council’s list of ‘100 leading UK practising scientists’. Her achievements as Vice-Chancellor of the University of Bath in Bath were marred by controversy culminating in her dismissal in a dispute regarding her remuneration.

Breakwell has been a Fellow of the British Psychological Society since 1987 and an Honorary Fellow since 2006. She is a chartered health psychologist and in 2002 was elected an Academician of the Academy of Social Sciences.

Breakwell was appointed Dame Commander of the Order of the British Empire in the 2012 New Year Honours for services to higher education. She is also a Deputy Lieutenant of the County of Somerset.

What is Olmstead v .L.C. (1999)?

Introduction

Olmstead v. L.C., 527 U.S. 581 (1999), is a United States Supreme Court case regarding discrimination against people with mental disabilities.

The Supreme Court held that under the Americans with Disabilities Act, individuals with mental disabilities have the right to live in the community rather than in institutions if, in the words of the opinion of the Court, “the State’s treatment professionals have determined that community placement is appropriate, the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.”

The case was brought by the Atlanta Legal Aid Society, Inc.

Background

Tommy Olmstead, Commissioner, Georgia Department of Human Resources, et al. v. L. C., by Zimring, guardian ad litem and next friend, et al. (Olmstead v. L.C.) was a case filed in 1995 and decided in 1999 before the United States Supreme Court. The plaintiffs, L.C. (Lois Curtis) and E.W. (Elaine Wilson, deceased 04 December 2005), two women were diagnosed with schizophrenia, intellectual disability and personality disorder. They had both been treated in institutional settings and in community based treatments in the state of Georgia.

  • Guardian ad litem: A legal guardian is a person who has been appointed by a court or otherwise has the legal authority to care for the personal and property interests of another person, called a ward.
  • Next Friend: In common law, a next friend is a person who represents another person who is underage, or, because of disability or otherwise, is unable to maintain a suit on his or her own behalf and who does not have a legal guardian. Also known as litigation friends.

Following clinical assessments by state employees, both plaintiffs were determined to be better suited for treatment in a community-based setting rather than in the institution. The plaintiffs remained confined in the institution, each for several years after the initial treatment was concluded. Both sued the state of Georgia to prevent them from being inappropriately treated and housed in the institutional setting.

Opinion of the Court

The case rose to the level of the United States Supreme Court, which decided the case in 1999, and plays a major role in determining that mental illness is a form of disability and therefore covered under the Americans with Disabilities Act (ADA). Title II of the ADA applies to ‘public entities’ and include ‘state and local governments’ and ‘any department, agency or special purpose district’ and protects any ‘qualified person with a disability’ from exclusion from participation in or denied the benefits of services, programs, or activities of a public entity.

The Supreme Court decided mental illness is a form of disability and that “unjustified isolation” of a person with a disability is a form of discrimination under Title II of the ADA. The Supreme Court held that community placement is only required and appropriate (i.e. institutionalisation is unjustified), when:

  • The State’s treatment professionals have determined that community placement is appropriate;
  • The transfer from institutional care to a less restrictive setting is not opposed by the affected individual; and
  • The placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.

Unjustified isolation is discrimination based on disability. Olmstead v. L.C., 527 U.S. 581, 587 (1999).

The Supreme Court explained that this holding “reflects two evident judgments.”

  • First, “institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life.”
  • Second, historically “confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.” Id. at 600-601.

However, a majority of Justices in Olmstead also recognized an ongoing role for publicly and privately operated institutions:

“We emphasize that nothing in the ADA or its implementing regulations condones termination of institutional settings for persons unable to handle or benefit from community settings…Nor is there any federal requirement that community-based treatment be imposed on patients who do not desire it.” Id. at 601-602.

A plurality of Justices noted: “[N]o placement outside the institution may ever be appropriate . . . ‘Some individuals, whether mentally retarded or mentally ill, are not prepared at particular times – perhaps in the short run, perhaps in the long run – for the risks and exposure of the less protective environment of community settings ’ for these persons, ‘institutional settings are needed and must remain available’” (quoting Amicus Curiae Brief for the American Psychiatric Association, et al). “As already observed [by the majority], the ADA is not reasonably read to impel States to phase out institutions, placing patients in need of close care at risk… ‘Each disabled person is entitled to treatment in the most integrated setting possible for that person—recognizing on a case-by-case basis, that setting may be an institution’[quoting VOR’s Amici Curiae brief].” Id. at 605.

Justice Kennedy noted in his concurring opinion, “It would be unreasonable, it would be a tragic event, then, were the Americans with Disabilities Act of 1990 (ADA) to be interpreted so that states had some incentive, for fear of litigation to drive those in need of medical care and treatment out of appropriate care and into settings with too little assistance and supervision.” Id. at 610.

The Supreme Court did not reach the question of whether there is a constitutional right to community services in the most integrated setting.

About ten years after the Olmstead decision, the State of Georgia and the United States Department of Justice entered a settlement agreement to cease all admissions of individuals with developmental disabilities to state-operated, federally licensed institutions (“State Hospitals”) and, by 01 July 2015, “transition all individuals with developmental disabilities in the State Hospitals from the Hospitals to community settings,” according to a Department of Justice Fact Sheet about the settlement. The settlement also calls for serving 9,000 individuals with mental illness in community settings. Recently, the federal court’s Independent Reviewer for the settlement found significant health and safety risks, including many deaths, plaguing former State Hospital residents due to their transition from a licensed facility home to community-settings per the settlement. The Court has approved a moratorium on such transfers until the safety of those impacted can be assured.

This page is based on the copyrighted Wikipedia article <https://en.wikipedia.org/wiki/Olmstead_v._L.C. >; it is used under the Creative Commons Attribution-ShareAlike 3.0 Unported License (CC-BY-SA). You may redistribute it, verbatim or modified, providing that you comply with the terms of the CC-BY-SA.

What is the Americans with Disabilities Act of 1990?

Introduction

The Americans with Disabilities Act of 1990 or ADA (42 U.S.C. § 12101) is a civil rights law that prohibits discrimination based on disability.

It affords similar protections against discrimination to Americans with disabilities as the Civil Rights Act of 1964, which made discrimination based on race, religion, sex, national origin, and other characteristics illegal, and later sexual orientation. In addition, unlike the Civil Rights Act, the ADA also requires covered employers to provide reasonable accommodations to employees with disabilities, and imposes accessibility requirements on public accommodations.

In 1986, the National Council on Disability had recommended the enactment of an Americans with Disabilities Act (ADA) and drafted the first version of the bill which was introduced in the House and Senate in 1988. The final version of the bill was signed into law on 26 July 1990, by President George H. W. Bush. It was later amended in 2008 and signed by President George W. Bush with changes effective as of 01 January 2009.

Brief History

The ADA has roots in Section 504 of the Rehabilitation Act of 1973.

Drafting

In 1986, the National Council on Disability (NCD), an independent federal agency, issued a report, Towards Independence, in which the Council examined incentives and disincentives in federal laws towards increasing the independence and full integration of people with disabilities into our society. Among the disincentives to independence the Council identified was the existence of large remaining gaps in our nation’s civil rights coverage for people with disabilities. A principal conclusion of the report was to recommend the adoption of comprehensive civil rights legislation, which became the ADA.

The idea of federal legislation enhancing and extending civil rights legislation to millions of Americans with disabilities gained bipartisan support in late 1988 and early 1989. In early 1989 both Congress and the newly inaugurated Bush White House worked separately, then jointly, to write legislation capable of expanding civil rights without imposing undue harm or costs on those already in compliance with existing rules and laws.

Lobbying

Over the years, key activists and advocates played an important role in lobbying members of the US Congress to develop and pass the ADA, including Justin Whitlock Dart Jr., Patrisha Wright and others.

Ms. Wright is known as “the General” for her work in coordinating the campaign to enact the ADA. She is widely considered the main force behind the campaign lobbying for the ADA.

Support and Opposition

Support

About the importance of making employment opportunities inclusive, Shirley Davis, director of global diversity and inclusion at the Society for Human Resource Management, said: “People with disabilities represent a critical talent pool that is underserved and underutilized”.

Opposition from Religious Groups

The debate over the ADA led some religious groups to take opposite positions. The Association of Christian Schools International opposed the ADA in its original form, primarily because the ADA labelled religious institutions “public accommodations” and thus would have required churches to make costly structural changes to ensure access for all. The cost argument advanced by ACSI and others prevailed in keeping religious institutions from being labelled as “public accommodations”.

Church groups such as the National Association of Evangelicals testified against the ADA’s Title I employment provisions on grounds of religious liberty. The NAE believed the regulation of the internal employment of churches was “… an improper intrusion [of] the federal government.”

Opposition from Business Interests

Many members of the business community opposed the Americans with Disabilities Act. Testifying before Congress, Greyhound Bus Lines stated that the act had the potential to “deprive millions of people of affordable intercity public transportation and thousands of rural communities of their only link to the outside world.” The US Chamber of Commerce argued that the costs of the ADA would be “enormous” and have “a disastrous impact on many small businesses struggling to survive.” The National Federation of Independent Businesses, an organization that lobbies for small businesses, called the ADA “a disaster for small business.” Pro-business conservative commentators joined in opposition, writing that the Americans with Disabilities Act was “an expensive headache to millions” that would not necessarily improve the lives of people with disabilities.

“Capitol Crawl”

Shortly before the act was passed, disability rights activists with physical disabilities coalesced in front of the Capitol Building, shed their crutches, wheelchairs, powerchairs and other assistive devices, and immediately proceeded to crawl and pull their bodies up all 100 of the Capitol’s front steps, without warning. As the activists did so, many of them chanted “ADA now”, and “Vote, Now”. Some activists who remained at the bottom of the steps held signs and yelled words of encouragement at the “Capitol Crawlers”. Jennifer Keelan, a second grader with cerebral palsy, was videotaped as she pulled herself up the steps, using mostly her hands and arms, saying “I’ll take all night if I have to.” This direct action is reported to have “inconvenienced” several senators and to have pushed them to approve the act. While there are those who do not attribute much overall importance to this action, the “Capitol Crawl” of 1990 is seen by some present-day disability activists in the United States as a central act for encouraging the ADA into law.

Final Passage

Senator Tom Harkin (D-IA) authored what became the final bill and was its chief sponsor in the Senate. Harkin delivered part of his introduction speech in sign language, saying it was so his deaf brother could understand.

George H. W. Bush, on signing the measure on 26 July 1990, said:

I know there may have been concerns that the ADA may be too vague or too costly, or may lead endlessly to litigation. But I want to reassure you right now that my administration and the United States Congress have carefully crafted this Act. We’ve all been determined to ensure that it gives flexibility, particularly in terms of the timetable of implementation; and we’ve been committed to containing the costs that may be incurred…. Let the shameful wall of exclusion finally come tumbling down.

ADA Amendments Act (2008)

The ADA defines a covered disability as a physical or mental impairment that substantially limits one or more major life activities, a history of having such an impairment, or being regarded as having such an impairment. The Equal Employment Opportunity Commission (EEOC) was charged with interpreting the 1990 law with regard to discrimination in employment. The EEOC developed regulations limiting an individual’s impairment to one that “severely or significantly restricts” a major life activity. The ADAAA directed the EEOC to amend its regulations and replace “severely or significantly” with “substantially limits”, a more lenient standard.

On 25 September 2008, President George W. Bush signed the ADA Amendments Act of 2008 (ADAAA) into law. The amendment broadened the definition of “disability”, thereby extending the ADA’s protections to a greater number of people. The ADAAA also added to the ADA examples of “major life activities” including, but not limited to, “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working” as well as the operation of several specified major bodily functions. The act overturned a 1999 US Supreme Court case that held that an employee was not disabled if the impairment could be corrected by mitigating measures; it specifically provides that such impairment must be determined without considering such ameliorative measures. It also overturned the court restriction that an impairment that substantially limits one major life activity must also limit others to be considered a disability. In 2008, the United States House Committee on Education and Labour stated that the amendment “makes it absolutely clear that the ADA is intended to provide broad coverage to protect anyone who faces discrimination on the basis of disability.” Thus the ADAAA led to broader coverage of impaired employees.

25th Anniversary (2015)

As of 2015 the ADA had improved access to public services, the built environment (e.g. crosswalks with curb cuts and accessible pedestrian signals), understanding of the abilities of people with disabilities, established a right to equal access to public services and has demonstrated the contributions which people with disabilities can make to the economy. Disparities have remained in employment, earned income, Internet access, transportation, housing, and educational attainment and the disabled remain at a disadvantage with respect to health and health care.

On 20 July 2015, the White House held a reception to celebrate the 25th anniversary of the ADA. The introductory remarks were given by Haben Girma, a deafblind disability rights lawyer and advocate. Among the guests was Alice Wong, a disability rights activist who came via telepresence robot.

Web Content Accessibility Guidelines (2019)

In October 2019, the Supreme Court declined to resolve a circuit split as to whether websites are covered by the ADA. The Court turned down an appeal from Domino’s Pizza and let stand a US 9th Circuit Court of Appeals ruling which held that the Americans With Disabilities Act protects access not just to brick-and-mortar public accommodations, but also to the websites and apps of those businesses.

Disabilities Included

ADA disabilities include both mental and physical medical conditions. A condition does not need to be severe or permanent to be a disability.

Equal Employment Opportunity Commission regulations provide a list of conditions that should easily be concluded to be disabilities: deafness, blindness, an intellectual disability (formerly termed mental retardation), partially or completely missing limbs or mobility impairments requiring the use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, attention deficit hyperactivity disorder, Human Immunodeficiency Virus (HIV) infection, multiple sclerosis, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia. Other mental or physical health conditions also may be disabilities, depending on what the individual’s symptoms would be in the absence of “mitigating measures” (medication, therapy, assistive devices, or other means of restoring function), during an “active episode” of the condition (if the condition is episodic).

Certain specific conditions that are widely considered anti-social, or tend to result in illegal activity, such as kleptomania, paedophilia, exhibitionism, voyeurism, etc. are excluded under the definition of “disability” in order to prevent abuse of the statute’s purpose. Additionally, gender identity or orientation is no longer considered a disorder and is also excluded under the definition of “disability”.

Titles

Title I – Employment

The ADA states that a “covered entity” shall not discriminate against “a qualified individual with a disability”. This applies to job application procedures, hiring, advancement and discharge of employees, job training, and other terms, conditions, and privileges of employment. “Covered entities” include employers with 15 or more employees, as well as employment agencies, labour organisations, and joint labour-management committees. There are strict limitations on when a covered entity can ask job applicants or employees disability-related questions or require them to undergo medical examination, and all medical information must be kept confidential.

Prohibited discrimination may include, among other things, firing or refusing to hire someone based on a real or perceived disability, segregation, and harassment based on a disability. Covered entities are also required to provide reasonable accommodations to job applicants and employees with disabilities. A reasonable accommodation is a change in the way things are typically done that the person needs because of a disability, and can include, among other things, special equipment that allows the person to perform the job, scheduling changes, and changes to the way work assignments are chosen or communicated. An employer is not required to provide an accommodation that would involve undue hardship (significant difficulty or expense), and the individual who receives the accommodation must still perform the essential functions of the job and meet the normal performance requirements. An employee or applicant who currently engages in the illegal use of drugs is not considered qualified when a covered entity takes adverse action based on such use.

There are many ways to discriminate against people based on disabilities, including psychological ones. Anyone known to have a history of mental disorders can be considered disabled. Employers with more than 15 employees must take care to treat all employees fairly and with any accommodations needed. Even when an employee is doing a job exceptionally well, she or he is not necessarily no longer disabled; employers must continue to follow all policies for the disabled.

Part of Title I was found unconstitutional by the United States Supreme Court as it pertains to states in the case of Board of Trustees of the University of Alabama v. Garrett as violating the sovereign immunity rights of the several states as specified by the Eleventh Amendment to the United States Constitution. The Court determined that state employees cannot sue their employer for violating ADA rules. State employees can, however, file complaints at the Department of Justice or the Equal Employment Opportunity Commission, who can sue on their behalf.

Title II – Public Entities (and Public Transportation)

Title II prohibits disability discrimination by all public entities at the local level, e.g., school district, municipal, city, or county, and at state level. Public entities must comply with Title II regulations by the US Department of Justice. These regulations cover access to all programmes and services offered by the entity. Access includes physical access described in the ADA Standards for Accessible Design and programmatic access that might be obstructed by discriminatory policies or procedures of the entity.

Title II applies to public transportation provided by public entities through regulations by the US Department of Transportation. It includes the National Railroad Passenger Corporation (Amtrak), along with all other commuter authorities. This section requires the provision of paratransit services by public entities that provide fixed-route services. ADA also sets minimum requirements for space layout in order to facilitate wheelchair securement on public transport.

Title II also applies to all state and local public housing, housing assistance, and housing referrals. The Office of Fair Housing and Equal Opportunity is charged with enforcing this provision.

Title III – Public Accommodations (and Commercial Facilities)

Under Title III, no individual may be discriminated against on the basis of disability with regards to the full and equal enjoyment of the goods, services, facilities, or accommodations of any place of public accommodation by any person who owns, leases, or operates a place of public accommodation. Public accommodations include most places of lodging (such as inns and hotels), recreation, transportation, education, and dining, along with stores, care providers, and places of public displays.

Under Title III of the ADA, all new construction (construction, modification or alterations) after the effective date of the ADA (approximately July 1992) must be fully compliant with the Americans With Disabilities Act Accessibility Guidelines (ADAAG) found in the Code of Federal Regulations at 28 C.F.R., Part 36, Appendix A.

Title III also has applications to existing facilities. One of the definitions of “discrimination” under Title III of the ADA is a “failure to remove” architectural barriers in existing facilities. See 42 U.S.C. § 12182(b)(2)(A)(iv). This means that even facilities that have not been modified or altered in any way after the ADA was passed still have obligations. The standard is whether “removing barriers” (typically defined as bringing a condition into compliance with the ADAAG) is “readily achievable”, defined as “…easily accomplished without much difficulty or expense”.

The statutory definition of “readily achievable” calls for a balancing test between the cost of the proposed “fix” and the wherewithal of the business and/or owners of the business. Thus, what might be “readily achievable” for a sophisticated and financially capable corporation might not be readily achievable for a small or local business.

There are exceptions to this title; many private clubs and religious organizations may not be bound by Title III. With regard to historic properties (those properties that are listed or that are eligible for listing in the National Register of Historic Places, or properties designated as historic under state or local law), those facilities must still comply with the provisions of Title III of the ADA to the “maximum extent feasible” but if following the usual standards would “threaten to destroy the historic significance of a feature of the building” then alternative standards may be used.

Under 2010 revisions of Department of Justice regulations, newly constructed or altered swimming pools, wading pools, and spas must have an accessible means of entrance and exit to pools for disabled people. However, the requirement is conditioned on whether providing access through a fixed lift is “readily achievable”. Other requirements exist, based on pool size, include providing a certain number of accessible means of entry and exit, which are outlined in Section 242 of the standards. However, businesses are free to consider the differences in the application of the rules depending on whether the pool is new or altered, or whether the swimming pool was in existence before the effective date of the new rule. Full compliance may not be required for existing facilities; Section 242 and 1009 of the 2010 Standards outline such exceptions.

Service Animals

The ADA provides explicit coverage for service animals. Guidelines have been developed not only to protect persons with disabilities but also to indemnify businesses from damages related to granting access to service animals on their premises. Businesses are allowed to ask if the animal is a service animal and ask what tasks it is trained to perform, but they are not allowed to ask the service animal to perform the task nor ask for a special ID of the animal. They cannot ask what the person’s disabilities are. A person with a disability cannot be removed from the premises unless either of two things happen: the animal is out of control and its owner cannot get it under control (e.g. a dog barking uncontrollably in a restaurant), or the animal is a direct threat to people’s health and safety. Allergies and fear of animals would not be considered a threat to people’s health and safety, so it would not be a valid reason to deny access to people with service animals. Businesses that prepare or serve food must allow service animals and their owners on the premises even if state or local health laws otherwise prohibit animals on the premises. In this case, businesses that prepare or serve food are not required to provide care or food for service animals, nor do they have to provide a designated area for the service animal to relieve itself. Lastly, people that require service dogs cannot be charged an extra fee for their service dog or be treated unfairly, for example, being isolated from people at a restaurant. People with disabilities cannot be treated as “less than” other customers. However, if a business normally charges for damages caused by the person to property, the customer with a disability will be charged for his/her service animal’s damages to the property.

Auxiliary Aids

The ADA provides explicit coverage for auxiliary aids.

Auxiliary aids and services are items, equipment or services that assist in effective communication between a person who has a hearing, vision or speech disability and a person who does not.

ADA says that a public accommodation shall take those steps that may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the public accommodation can demonstrate that taking those steps would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or would result in an undue burden, i.e. significant difficulty or expense. The term “auxiliary aids and services” includes:

  • Qualified interpreters on-site or through video remote interpreting (VRI) services; notetakers; real-time computer-aided transcription services; written materials; exchange of written notes; telephone handset amplifiers; assistive listening devices; assistive listening systems; telephones compatible with hearing aids; closed caption decoders; open and closed captioning, including real-time captioning; voice, text, and video-based telecommunications products and systems, including text telephones (TTYs), videophones, and captioned telephones, or equally effective telecommunications devices; videotext displays; accessible electronic and information technology; or other effective methods of making aurally delivered information available to individuals who are deaf or hard of hearing;
  • Qualified readers; taped texts; audio recordings; Brailled materials and displays; screen reader software; magnification software; optical readers; secondary auditory programmes (SAP); large print materials; accessible electronic and information technology; or other effective methods of making visually delivered materials available to individuals who are blind or have low vision;
  • Acquisition or modification of equipment or devices; and
  • Other similar services and actions.

Captions are considered one type of auxiliary aid. Since the passage of the ADA, the use of captioning has expanded. Entertainment, educational, informational, and training materials are captioned for deaf and hard-of-hearing audiences at the time they are produced and distributed. The Television Decoder Circuitry Act of 1990 requires that all televisions larger than 13 inches sold in the United States after July 1993 have a special built-in decoder that enables viewers to watch closed-captioned programming. The Telecommunications Act of 1996 directs the Federal Communications Commission (FCC) to adopt rules requiring closed captioning of most television programming. The FCC’s rules on closed captioning became effective 01 January 1998.

Title IV – Telecommunications

Title IV of the ADA amended the landmark Communications Act of 1934 primarily by adding section 47 U.S.C. § 225. This section requires that all telecommunications companies in the U.S. take steps to ensure functionally equivalent services for consumers with disabilities, notably those who are deaf or hard of hearing and those with speech impairments. When Title IV took effect in the early 1990s, it led to the installation of public teletypewriter (TTY) machines and other TDD (telecommunications devices for the deaf). Title IV also led to the creation, in all 50 states and the District of Columbia, of what was then called dual-party relay services and now are known as Telecommunications Relay Services (TRS), such as STS relay. Today, many TRS-mediated calls are made over the Internet by consumers who use broadband connections. Some are Video Relay Service (VRS) calls, while others are text calls. In either variation, communication assistants translate between the signed or typed words of a consumer and the spoken words of others. In 2006, according to the Federal Communications Commission (FCC), VRS calls averaged two million minutes a month.

Title V – Miscellaneous Provisions

Title V includes technical provisions. It discusses, for example, the fact that nothing in the ADA amends, overrides or cancels anything in Section 504. Additionally, Title V includes an anti-retaliation or coercion provision. The Technical Assistance Manual for the ADA explains this provision:

III-3.6000 Retaliation or coercion. Individuals who exercise their rights under the ADA, or assist others in exercising their rights, are protected from retaliation. The prohibition against retaliation or coercion applies broadly to any individual or entity that seeks to prevent an individual from exercising his or her rights or to retaliate against him or her for having exercised those rights … Any form of retaliation or coercion, including threats, intimidation, or interference, is prohibited if it is intended to interfere.

Reaction

Criticism

Employment

The ADA has been criticised on the grounds that it decreases the employment rate for people with disabilities and raises the cost of doing business for employers, in large part due to the additional legal risks, which employers avoid by quietly avoiding hiring people with disabilities. Some researchers believe that the law has been ineffectual. Between 1991 (after the enactment of the ADA) and 1995, the employment rate of men with disabilities dropped by 7.8% regardless of age, educational level, or type of disability, with the most affected being young, less-educated and mentally disabled men. Despite the many criticisms, a causal link between the ADA and declining disabled employment over much of the 1990s has not been definitively identified.

In 2001, for men of all working ages and women under 40, Current Population Survey data showed a sharp drop in the employment of disabled workers, leading at least two economists to attribute the cause to the Act. By contrast, a study in 2003 found that while the Act may have led to short term reactions by employers, in the long term, there were either positive or neutral consequences for wages and employment. In 2005 the rate of employment among disabled people increased to 45% of the population of disabled people.

“Professional Plaintiffs”

Since enforcement of the act began in July 1992, it has quickly become a major component of employment law. The ADA allows private plaintiffs to receive only injunctive relief (a court order requiring the public accommodation to remedy violations of the accessibility regulations) and attorneys’ fees, and does not provide monetary rewards to private plaintiffs who sue non-compliant businesses. Unless a state law, such as the California Unruh Civil Rights Act, provides for monetary damages to private plaintiffs, persons with disabilities do not obtain direct financial benefits from suing businesses that violate the ADA.

The attorneys’ fees provision of Title III does provide incentive for lawyers to specialise and engage in serial ADA litigation, but a disabled plaintiff does not obtain a financial reward from attorneys’ fees unless they act as their own attorney, or as mentioned above, a disabled plaintiff resides in a state that provides for minimum compensation and court fees in lawsuits. Moreover, there may be a benefit to these “private attorneys general” who identify and compel the correction of illegal conditions: they may increase the number of public accommodations accessible to persons with disabilities. “Civil rights law depends heavily on private enforcement. Moreover, the inclusion of penalties and damages is the driving force that facilitates voluntary compliance with the ADA.” Courts have noted:

As a result, most ADA suits are brought by a small number of private plaintiffs who view themselves as champions of the disabled. For the ADA to yield its promise of equal access for the disabled, it may indeed be necessary and desirable for committed individuals to bring serial litigation advancing the time when public accommodations will be compliant with the ADA.

However, in states that have enacted laws that allow private individuals to win monetary awards from non-compliant businesses (as of 2008, these include California, Florida, Hawaii, and Illinois), “professional plaintiffs” are typically found. At least one of these plaintiffs in California has been barred by courts from filing lawsuits unless he receives prior court permission. Through the end of fiscal year 1998, 86% of the 106,988 ADA charges filed with and resolved by the Equal Employment Opportunity Commission, were either dropped or investigated and dismissed by EEOC but not without imposing opportunity costs and legal fees on employers.

Case Law

There have been some notable cases regarding the ADA. For example, two major hotel room marketers (Expedia.com and Hotels.com) with their business presence on the Internet were sued because its customers with disabilities could not reserve hotel rooms through their websites without substantial extra efforts that persons without disabilities were not required to perform. These represent a major potential expansion of the ADA in that this, and other similar suits (known as “bricks vs. clicks”), seeks to expand the ADA’s authority to cyberspace, where entities may not have actual physical facilities that are required to comply.

Green v. State of California

Green v. State of California, No. S137770 (Cal. Aug. 23, 2007) was a case in which the majority of the Supreme Court in California was faced with deciding whether the employee suing the state is required to prove he is able to perform “essential” job duties, regardless of whether or not there was “reasonable accommodation,” or if the employer must prove the victim was unable to do so. The court ruled the burden was on the employee, not the employer, and reversed a disputed decision by the courts. Plaintiff attorney David Greenberg brought forth considerations of the concept that, even in the state of California, employers do not have to employ a worker who is unable to perform “essential job functions” with “reasonable accommodation.” Forcing employers to do so “would defy logic and establish a poor public policy in employment matters.”

National Federation of the Blind v. Target Corporation

National Federation of the Blind v. Target Corporation was a case where a major retailer, Target Corp., was sued because their web designers failed to design its website to enable persons with low or no vision to use it.

Board of Trustees of the University of Alabama v. Garrett

Board of Trustees of the University of Alabama v. Garrett was a United States Supreme Court case about Congress’s enforcement powers under the Fourteenth Amendment to the Constitution. It decided that Title I of the Americans with Disabilities Act was unconstitutional insofar as it allowed private citizens to sue states for money damages.

Barden v. The City of Sacramento

Barden v. The City of Sacramento, filed in March 1999, claimed that the City of Sacramento failed to comply with the ADA when, while making public street improvements, it did not bring its sidewalks into compliance with the ADA. Certain issues were resolved in Federal Court. One issue, whether sidewalks were covered by the ADA, was appealed to the 9th Circuit Court of Appeals, which ruled that sidewalks were a “program” under ADA and must be made accessible to persons with disabilities. The ruling was later appealed to the US Supreme Court, which refused to hear the case, letting stand the ruling of the 9th Circuit Court.

Bates v. UPS

Bates v. UPS (begun in 1999) was the first equal opportunity employment class action brought on behalf of Deaf and Hard of Hearing (d/Deaf/HoH) workers throughout the country concerning workplace discrimination. It established legal precedence for d/Deaf/HoH Employees and Customers to be fully covered under the ADA. Key findings included:

  • UPS failed to address communication barriers and to ensure equal conditions and opportunities for deaf employees;
  • Deaf employees were routinely excluded from workplace information, denied opportunities for promotion, and exposed to unsafe conditions due to lack of accommodations by UPS;
  • UPS also lacked a system to alert these employees as to emergencies, such as fires or chemical spills, to ensure that they would safely evacuate their facility; and
  • UPS had no policy to ensure that deaf applicants and employees actually received effective communication in the workplace.

The outcome was that UPS agreed to pay a $5.8 million award and agreed to a comprehensive accommodations programme that was implemented in their facilities throughout the country.

Spector v. Norwegian Cruise Line Ltd

Spector v. Norwegian Cruise Line Ltd was a case that was decided by the United States Supreme Court in 2005. The defendant argued that as a vessel flying the flag of a foreign nation it was exempt from the requirements of the ADA. This argument was accepted by a federal court in Florida and, subsequently, the Fifth Circuit Court of Appeals. However, the US Supreme Court reversed the ruling of the lower courts on the basis that Norwegian Cruise Lines was a business headquartered in the United States whose clients were predominantly Americans and, more importantly, operated out of port facilities throughout the United States.

Olmstead v. L.C.

Not to be confused with Olmstead v. United States, 277 U.S. 438 (1928), a case regarding wiretapping.

Olmstead v. L.C. was a case before the United States Supreme Court in 1999. The two plaintiffs, L.C. and E.W., were institutionalised in Georgia for diagnosed mental retardation and schizophrenia. Clinical assessments by the state determined that the plaintiffs could be appropriately treated in a community setting rather than the state institution. The plaintiffs sued the state of Georgia and the institution for being inappropriately treated and housed in the institutional setting rather than being treated in one of the state’s community-based treatment facilities.

The Supreme Court decided under Title II of the ADA that mental illness is a form of disability and therefore covered under the ADA, and that unjustified institutional isolation of a person with a disability is a form of discrimination because it “…perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life.” The court added, “Confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.”

Therefore, under Title II no person with a disability can be unjustly excluded from participation in or be denied the benefits of services, programmes or activities of any public entity.

Michigan Paralysed Veterans of America v. The University of Michigan

This was a case filed before The United States District Court for the Eastern District of Michigan Southern Division on behalf of the Michigan Paralysed Veterans of America against University of Michigan – Michigan Stadium claiming that Michigan Stadium violated the Americans with Disabilities Act in its $226-million renovation by failing to add enough seats for disabled fans or accommodate the needs for disabled restrooms, concessions and parking. Additionally, the distribution of the accessible seating was at issue, with nearly all the seats being provided in the end-zone areas. The US Department of Justice assisted in the suit filed by attorney Richard Bernstein of The Law Offices of Sam Bernstein in Farmington Hills, Michigan, which was settled in March 2008. The settlement required the stadium to add 329 wheelchair seats throughout the stadium by 2010, and an additional 135 accessible seats in clubhouses to go along with the existing 88 wheelchair seats. This case was significant because it set a precedent for the uniform distribution of accessible seating and gave the DOJ the opportunity to clarify previously unclear rules. The agreement now is a blueprint for all stadiums and other public facilities regarding accessibility.

Paralysed Veterans of America v. Ellerbe Becket Architects and Engineers

One of the first major ADA lawsuits, Paralysed Veterans of America v. Ellerbe Becket Architects and Engineers (PVA 1996) was focused on the wheelchair accessibility of a stadium project that was still in the design phase, MCI Centre (now known as Capital One Arena) in Washington, D.C. Previous to this case, which was filed only five years after the ADA was passed, the DOJ was unable or unwilling to provide clarification on the distribution requirements for accessible wheelchair locations in large assembly spaces. While Section 4.33.3 of ADAAG makes reference to lines of sight, no specific reference is made to seeing over standing patrons. The MCI Centre, designed by Ellerbe Becket Architects & Engineers, was designed with too few wheelchair and companion seats, and the ones that were included did not provide sight lines that would enable the wheelchair user to view the playing area while the spectators in front of them were standing. This case and another related case established precedent on seat distribution and sight lines issues for ADA enforcement that continues to present day.

Toyota Motor Manufacturing, Kentucky, Inc. v. Williams

Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, was a case in which the Supreme Court interpreted the meaning of the phrase “substantially impairs” as used in the Americans with Disabilities Act. It reversed a Sixth Court of Appeals decision to grant a partial summary judgement in favour of the respondent, Ella Williams, that qualified her inability to perform manual job-related tasks as a disability. The Court held that the “major life activity” definition in evaluating the performance of manual tasks focuses the inquiry on whether Williams was unable to perform a range of tasks central to most people in carrying out the activities of daily living. The issue is not whether Williams was unable to perform her specific job tasks. Therefore, the determination of whether an impairment rises to the level of a disability is not limited to activities in the workplace solely, but rather to manual tasks in life in general. When the Supreme Court applied this standard, it found that the Court of Appeals had incorrectly determined the presence of a disability because it relied solely on her inability to perform specific manual work tasks, which was insufficient in proving the presence of a disability. The Court of Appeals should have taken into account the evidence presented that Williams retained the ability to do personal tasks and household chores, such activities being the nature of tasks most people do in their daily lives, and placed too much emphasis on her job disability. Since the evidence showed that Williams was performing normal daily tasks, it ruled that the Court of Appeals erred when it found that Williams was disabled. This ruling is now, however, no longer good law – it was invalidated by the ADAAA. In fact, Congress explicitly cited Toyota v. Williams in the text of the ADAAA itself as one of its driving influences for passing the ADAAA.

US Airways, Inc. v. Barnett

Decided by the US Supreme Court in 2002, this case held that even requests for accommodation that might seem reasonable on their face, e.g. a transfer to a different position, can be rendered unreasonable because it would require a violation of the company’s seniority system. While the court held that, in general, a violation of a seniority system renders an otherwise reasonable accommodation unreasonable, a plaintiff can present evidence that, despite the seniority system, the accommodation is reasonable in the specific case at hand, e.g. the plaintiff could offer evidence that the seniority system is so often disregarded that another exception would not make a difference.

Importantly, the court held that the defendant need not provide proof that this particular application of the seniority system should prevail, and that, once the defendant showed that the accommodation violated the seniority system, it fell to Barnett to show it was nevertheless reasonable.

In this case, Barnett was a US Airways employee who injured his back, rendering him physically unable to perform his cargo-handling job. Invoking seniority, he transferred to a less-demanding mailroom job, but this position later became open to seniority-based bidding and was bid on by more senior employees. Barnett requested the accommodation of being allowed to stay on in the less-demanding mailroom job. US Airways denied his request, and he lost his job.

The Supreme Court decision invalidated both the approach of the district court, which found that the mere presence and importance of the seniority system was enough to warrant a summary judgment in favour of US Airways, as well as the circuit court’s approach that interpreted ‘reasonable accommodation’ as ‘effective accommodation.’

Access Now v. Southwest Airlines

Access Now v. Southwest Airlines was a case where the District Court decided that the website of Southwest Airlines was not in violation of the Americans with Disabilities Act, because the ADA is concerned with things with a physical existence and thus cannot be applied to cyberspace. Judge Patricia A. Seitz found that the “virtual ticket counter” of the website was a virtual construct, and hence not a “public place of accommodation.” As such, “To expand the ADA to cover ‘virtual’ spaces would be to create new rights without well-defined standards.

Ouellette v. Viacom International Inc.

Ouellette v. Viacom International Inc. followed in Access Now’s footsteps by holding that a mere online presence does not subject a website to the ADA guidelines. Thus Myspace and YouTube were not liable for a dyslexic man’s inability to navigate the site regardless of how impressive the “online theatre” is.

Authors Guild v. HathiTrust

Authors Guild v. HathiTrust was a case in which the District Court decided that the HathiTrust digital library was a transformative, fair use of copyrighted works, making a large number of written text available to those with print disability.

Zamora-Quezada v. HealthTexas Medical Group

Zamora-Quezada v. HealthTexas Medical Group (begun in 1998) was the first time this act was used against HMOs when a novel lawsuit was filed by Texas attorney Robert Provan against five HMOs for their practice of revoking the contracts of doctors treating disabled patients.

Campbell v. General Dynamics Government Systems Corp.

Campbell v. General Dynamics Government Systems Corp. (2005) concerned the enforceability of a mandatory arbitration agreement, contained in a dispute resolution policy linked to an e-mailed company-wide announcement, insofar as it applies to employment discrimination claims brought under the Americans with Disabilities Act.

Tennessee v. Lane

Tennessee v. Lane,[89] 541 U.S. 509 (2004), was a case in the Supreme Court of the United States involving Congress’s enforcement powers under section 5 of the Fourteenth Amendment. George Lane was unable to walk after a 1997 car accident in which he was accused of driving on the wrong side of the road. A woman was killed in the crash, and Lane faced misdemeanour charges of reckless driving. The suit was brought about because he was denied access to appear in criminal court because the courthouse had no elevator, even though the court was willing to carry him up the stairs and then willing to move the hearing to the first floor. He refused, citing he wanted to be treated as any other citizen, and was subsequently charged with failure to appear, after appearing at a previous hearing where he dragged himself up the stairs. The court ruled that Congress did have enough evidence that the disabled were being denied those fundamental rights that are protected by the Due Process clause of the Fourteenth Amendment and had the enforcement powers under section 5 of the Fourteenth Amendment. It further ruled that “reasonable accommodations” mandated by the ADA were not unduly burdensome and disproportionate to the harm.

What is the Mental Disability Advocacy Centre?

Introduction

The Mental Disability Advocacy Centre (MDAC) is an international human rights organisation founded in Hungary in 2002.

It is headquartered in Budapest.

Background

The MDAC is an international human rights organisation which advances the rights of children and adults with learning, intellectual and psycho-social (mental health) disabilities.

MDAC uses the law to promote equality and social inclusion through strategic litigation, advocacy, research and monitoring and capacity-building.

MDAC operates at the global level as well as regional and domestic levels in Europe and Africa.

Brief History

MDAC was founded by The Open Society Foundations (OSF) and was registered as a foundation by the Budapest Capital Court (registration number 8689) in November 2002. MDAC has participatory status with the Council of Europe, and was granted a special consultative status with the United Nations Economic and Social Council in 2011. MDAC is a member of the Fundamental Rights Platform of the European Union Agency for Fundamental Rights.

Beneficiaries

People with learning, intellectual and psycho-social (mental health) disabilities are excluded from economic, civil, social and political rights, including the right to education, health and to vote. They are also denied their personhood under the law, and can be placed in institutions against their will.

Objectives

MDAC’s objectives focus on the rights of people with intellectual, learning and psycho-social (mental health) disabilities to be free from abuse, be persons recognised by the law and have access to justice, to live in the community, be educated and to take part in society.

  • Freedom from ill-treatment: for people with disabilities to be not secluded from the rest of society nor be subjected to physical and chemical restraints, and to be treated only with their consent.
  • Legal capacity: for people with disabilities to have their right to make their own choices protected by law.
  • Community living: for people with disabilities to have a legal right to live in the community, and a legally enforceable choice as to where and with whom to live.
  • Inclusive education: for children, youth and adults with disabilities to have a legal right to be educated and learn alongside the rest of the community, and not be segregated.
  • Political participation: for people with disabilities to have the right to vote and stand for election, and be assisted in doing so.

Activities

These include creating progressive jurisprudence and law reform, empowering people with disabilities and promoting participatory politics, supported by research.

  • Defending disabled people’s rights in courts across Europe and Africa, setting precedent at European Court of Human Rights and other courts, training lawyers and providing legal advice and representation.
  • Advocacy by connecting with governments to reform and implement legal structures, undertaking a watchdog role, reviewing the actions of the UN and the EU as well as governments, and monitoring bodies, so that torture and ill-treatment is prevented.
  • Working at grassroots level to engage, empower and train people with disabilities to participate in acquiring their own rights.
  • Research of human rights abuses

Achievements

Since 2002, MDAC has achieved the following:

  • Ending the practice of caged beds: in 2003, MDAC carried out research in the Czech Republic, Hungary, Slovakia and Slovenia on those countries’ use of cage beds.
    • Cage beds are a means of confinement and restraint for adults and children used within many mental health and social institutions.
    • As a direct result of MDAC’s work, Hungary has banned their use in all institutions, the Czech Republic and Slovakia has banned their use in social care institutions.
    • Very few, if any, are still used in Slovenia.
  • Creating progressive human rights jurisprudence:
    • MDAC has won cases at the European Court of Human Rights which has opened the way to further challenges to political and social attitudes to the care of people with intellectual and psycho-social disabilities.
    • As a result, it has lobbied for reform of laws on guardianship and the right to be legally recognised as a person in Central and Eastern Europe and Russia. Stanev v Bulgaria (2012), concerned the long-term placement, torture and ill-treatment of a man diagnosed with a mental illness in a remote care institution by his guardian.
    • He had no recourse to legally challenge the decision in Bulgarian courts.
    • This was the first time the Court found a violation of Article 3 of the European Convention on Human Rights (prohibition of torture) in a disability case.
    • It was also the first time the court found that a person in a social care institution was unlawfully detained. Shtukaturov v Russia (2008), concerned the detention of a man diagnosed with schizophrenia.
    • He was placed under guardianship without being informed of the decision.
    • His guardian unlawfully allowed for his detention in a psychiatric hospital for seven months without a court review, and he was forcibly injected with psychiatric medication against his will.
    • MDAC took his case to the European Court of Human Rights and he won.
  • The right to education:
    • In 2008, MDAC won an international case under the European Social Charter (MDAC v. Bulgaria) on behalf of up to 3,000 Bulgarian children with intellectual disabilities – the first case on a child’s right to education in Eastern Europe.
  • The right to vote:
    • MDAC’s ‘Save the Vote’ campaign resulted in the Venice Commission, a constitutional law expert group, supporting universal suffrage for people with disabilities.
  • In 2013, MDAC was long-listed for the Václav Havel Human Rights Prize.
  • In 2014, MDAC released a report on cage beds in the Czech Republic, after its ground-breaking first report published in 2003.
    • This was covered by Lancet Psychiatry.

What is the Bazelon Centre for Mental Health Law?

Introduction

The Bazelon Centre for Mental Health Law is a national legal-advocacy organisation representing people with mental disabilities in the US (Washington, D.C.).

Originally known as The Mental Health Law Project, the Centre was founded as a national public-interest organization in 1972 by a group of specialised attorneys and mental disability professionals who were working to help the court define a constitutional right to treatment in terms of specific standards for services and protections.

In 1993, the organisation changed its name to the Judge David L. Bazelon Centre for Mental Health Law to honour the legacy of Judge David L. Bazelon, whose decisions as Chief Judge of the United States Court of Appeals for the District of Columbia Circuit had pioneered the field of mental health law.

Refer to the Treatment Advocacy Centre.

Litigation

The Centre’s precedent-setting litigation has established important civil rights for people with mental illnesses or developmental disabilities. These include the right to treatment in Wyatt v. Stickney (decided in 1971 and successfully concluded in 1999), and the Supreme Court’s 1999 Olmstead v. L.C. ex rel. Zimring decision affirming the right of people with disabilities to receive public services in the most integrated setting consistent with their needs.

Federal Policy

The Centre also engages in federal policy advocacy, working with Congress and the administrative agencies to ensure, for example, that people with mental disabilities are included under the protections of the Americans with Disabilities Act and amendments to the federal Fair Housing Act, and to generate resources such as Supplemental Security Income and Medicaid that can enable them to live and thrive in the community. In 2009, a major thrust was the integration of mental health in healthcare reform.

Publications

The Bazelon Centre’s publications include reports; issue papers; law, regulation, and policy analyses; advocacy manuals; and consumer-friendly guides to legal rights. These are available for free download from the centre’s website, or print copies may be ordered by postal mail, telephone, or email.

Funding

During the 2015 fiscal year, most of the Bazelon Centre’s revenue came from contributions, gifts, and grants. Notable organisations providing grant support to the Bazelon Centre include the Open Society Foundations and the MacArthur Foundation. Beginning in 1978, the MacArthur Foundation has awarded multiple grants to the Bazelon Centre, totalling $14,035,000 as of 2016.

On This Day … 01 September

Events

  • 1939 – Adolf Hitler signs an order to begin the systematic euthanasia of mentally ill and disabled people.
  • 2004 – Random Acts of Kindness Day (New Zealand).

Aktion T4

Aktion T4 was a postwar name for mass murder by involuntary euthanasia in Nazi Germany. The name T4 is an abbreviation of Tiergartenstraße 4, a street address of the Chancellery department set up in early 1940, in the Berlin borough of Tiergarten, which recruited and paid personnel associated with T4. Certain German physicians were authorised to select patients “deemed incurably sick, after most critical medical examination” and then administer to them a “mercy death” (Gnadentod). In October 1939, Adolf Hitler signed a “euthanasia note”, backdated to 01 September 1939, which authorised his physician Karl Brandt and Reichsleiter Philipp Bouhler to implement the programme.

The killings took place from September 1939 until the end of the war in 1945; from 275,000 to 300,000 people were killed in psychiatric hospitals in Germany and Austria, occupied Poland and the Protectorate of Bohemia and Moravia (now the Czech Republic). The number of victims was originally recorded as 70,273 but this number has been increased by the discovery of victims listed in the archives of the former East Germany. About half of those killed were taken from church-run asylums, often with the approval of the Protestant or Catholic authorities of the institutions.

The Holy See announced on 02 December 1940 that the policy was contrary to divine law and that “the direct killing of an innocent person because of mental or physical defects is not allowed” but the declaration was not upheld by some Catholic authorities in Germany. In the summer of 1941, protests were led in Germany by the Bishop of Münster, Clemens von Galen, whose intervention led to “the strongest, most explicit and most widespread protest movement against any policy since the beginning of the Third Reich”, according to Richard J. Evans.

Several reasons have been suggested for the killings, including eugenics, racial hygiene, and saving money. Physicians in German and Austrian asylums continued many of the practices of Aktion T4 until the defeat of Germany in 1945, in spite of its official cessation in August 1941. The informal continuation of the policy led to 93,521 “beds emptied” by the end of 1941. Technology developed under Aktion T4 was taken over by the medical division of the Reich Interior Ministry, particularly the use of lethal gas to kill large numbers of people, along with the personnel of Aktion T4, who participated in Operation Reinhard. The programme was authorised by Hitler but the killings have since come to be viewed as murders in Germany. The number of people killed was about 200,000 in Germany and Austria, with about 100,000 victims in other European countries.

And now something slightly more positive.

Random Acts of Kindness Day

Random Acts of Kindness Day is a day to celebrate and encourage random acts of kindness.

“It’s just a day to celebrate kindness and the whole pay it forward mentality”, said Tracy Van Kalsbeek, executive director of the Stratford Perth Community Foundation, in 2016, where the day is celebrated on 04 November 4.

It is celebrated on 01 September in New Zealand and on 17 February in the US.

Background

  • The Random Acts of Kindness Foundation (RAK) was founded in 1995 in the US.
  • It is a non-profit headquartered in Denver, Colorado.
  • Random Acts of Kindness (RAK) day began in 2004 in New Zealand.

What is a Random Act of Kindness

A random act of kindness is a nonpremeditated, inconsistent action designed to offer kindness towards the outside world.

Suggested Activities

  • Pay for the person behind you in the drive-thru.
  • Let someone go ahead of you in line.
  • Buy extra at the grocery store and donate it to a food pantry.
  • Buy flowers for someone (postal worker, grocery store clerk, bus driver, etc.).
  • Help someone change a flat tire.
  • Post anonymous sticky notes with validating or uplifting messages around for people to find.
  • Compliment a colleague on their work.
  • Send an encouraging text to someone.
  • Take muffins to work.
  • Let a car into the traffic ahead of you.
  • Wash someone else’s car.
  • Take a gift to new neighbors and introduce yourself.
  • Pay the bus fare for the passenger behind you.

Website

What is the Prevalence & Associated Factors of Depression among Patients with Schizophrenia?

Research Paper Title

The prevalence and associated factors of depression among patients with schizophrenia in Addis Ababa, Ethiopia, cross-sectional study.

Background

Depression is common among people with schizophrenia and associated with severe positive and negative symptoms, higher rates of disability, treatment resistance and mortality related to suicide, physical and drug-related causes.

However, to the researchers knowledge, no study has been conducted to report the magnitude of depression among people with schizophrenia in Ethiopia.

Therefore, this study aimed to determine the prevalence and associated factors of depression among people with schizophrenia.

Methods

A hospital-based cross-sectional study was conducted among 418 patients with schizophrenia selected by systematic sampling technique.

Patient Health Questionnaire 9 (PHQ-9) was used to measure depression among the study participants.

To identify the potential contributing factors, we performed binary and multi-variable logistic regression analysis adjusting the model for the potential confounding factors.

Odds ratios (OR) with the corresponding 95% confidence interval (95%CI)) was determined to evaluate the strength of association.

Results

The prevalence estimate of depression among people with schizophrenia was found to be 18.0% [95% confidence interval: 14.50-22.30].

The multi-variable analysis revealed that current substance use (AOR 2.28, 95%CI (1.27, 4.09), suicide attempt (AOR 5.24, 95%CI (2.56, 10.72), duration of illness between 6 and 10 years (AOR 2.09, 95%CI (1.08, 4.04) and poor quality of life (AOR 3.13, 95%CI (1.79, 5.76) were found to be the factors associated with depression among people with schizophrenia.

Conclusions

The current study revealed that co-morbid depression was high among people with schizophrenia and associated with current substance use, suicide attempt, and long duration of the illness as well as poor quality of life.

Attention needs to be given to address co-morbid depression among people with schizophrenia.

Reference

Fanta, T., Bekel, D. & Ayano, G. (2020) The prevalence and associated factors of depression among patients with schizophrenia in Addis Ababa, Ethiopia, cross-sectional study. BMC Pyschiatry. 20(1):3. doi: 10.1186/s12888-019-2419-6.

Linking Risk of Suicidal Behaviour with Mental Disorders & Work Disability

Research Paper Title

Mental disorders and suicidal behavior in refugees and Swedish-born individuals: is the association affected by work disability?

Background

Among potential pathways to suicidal behavior in individuals with mental disorders (MD), work disability (WD) may play an important role.

The Researchers examined the role of WD in the relationship between MD and suicidal behaviour in Swedish-born individuals and refugees.

Methods

The study cohort consisted of 4,195,058 individuals aged 16-64, residing in Sweden in 2004-2005, whereof 163,160 refugees were followed during 2006-2013 with respect to suicidal behaviour.

Risk estimates were calculated as hazard ratios (HR) with 95% confidence intervals (CI).

The reference groups comprised individuals with neither MD nor WD.

WD factors (sickness absence (SA) and disability pension (DP)) were explored as potential modifiers and mediators.

Results

In both Swedish-born and refugees, SA and DP were associated with an elevated risk of suicide attempt regardless of MD. In refugees, HRs for suicide attempt in long-term SA ranged from 2.96 (95% CI: 2.14-4.09) (no MD) to 6.23 (95% CI: 3.21-12.08) (MD).

Similar associations were observed in Swedish-born. Elevated suicide attempt risks were also observed in DP.

In Swedish-born individuals, there was a synergy effect between MD, and SA and DP regarding suicidal behaviour.

Both SA and DP were found to mediate the studied associations in Swedish-born, but not in refugees.

Conclusions

There is an effect modification and a mediating effect between mental disorders and WD for subsequent suicidal behaviour in Swedish-born individuals.

Also for refugees without MD, WD is a risk factor for subsequent suicidal behaviour.

Particularly for Swedish-born individuals with MD, information on WD is vital in a clinical suicide risk assessment.

Reference

Björkenstam, E., Helgesson, M., Amin, R., Lange, T. & Mittendorfer-Rutz, E. (2020) Mental disorders and suicidal behavior in refugees and Swedish-born individuals: is the association affected by work disability? Social Psychiatry and Psychiatric Epidemiology. doi: 10.1007/s00127-019-01824-5. [Epub ahead of print].

Mental Health & the HSE

Introduction

In their Annual Report and Accounts 2017/2018, the Health and Safety Executive (HSE) stated that there were “0.5 million work-related stress, depression or anxiety cases (new or long-standing) in 2016/17” (HSE, 2018, p.9).

What is the HSE?

“HSE is the independent regulator for work-related health and safety in Great Britain. We are committed to playing our part in the wider health and safety system to ensure that others play theirs in creating healthier, safer workplaces. We also deliver wider functions such as regulatory schemes intended to protect the health of people and the environment, balancing the economic and social benefits that chemicals offer to society.” (HSE, 2018, p.10).

HSE and Stress

HSE states that where (work-related) stress is prolonged it can lead to both physical and psychological damage, including anxiety and depression, and that work can also aggravate pre-existing conditions, and problems at work can bring on symptoms or make their effects worse.

They go on to state that whether work is causing the health issue or aggravating it, employers have a legal responsibility to help their employees. Work-related mental health issues must to be assessed to measure the levels of risk to staff. Where a risk is identified, steps must be taken to remove it or reduce it as far as reasonably practicable.
Some employees will have a pre-existing physical or mental health condition when recruited or may develop one caused by factors that are not work-related factors.

Employers may have further legal requirements, to make reasonable adjustments under equality legislation.

Information about employing people with a disability can be found on GOV.UK or from the Equality and Human Rights Commission in EnglandScotland, and Wales.

There is advice for line managers to help them support their employees with mental health conditions.

What is the Stevenson Farmer ‘Thriving at Work’ Review?

In 2017, the UK government commissioned Lord Stevenson and Paul Farmer (Chief Executive of Mind) to independently review the role employers can play to better support individuals with mental health conditions in the workplace.

The ‘Thriving at Work’ report sets out a framework of actions – called ‘Core Standards’ – that the reviewers recommend employers of all sizes can and should put in place.

The core standards were designed to help employers improve the mental health of their workplace and enable individuals with mental health conditions to thrive.

By taking action on work-related stress, either through using the HSE Management Standards or an equivalent approach, employers would be able to meet parts of the core standards framework, as they would:

  • Form part of a mental health at work plan;
  • Promote communications and open conversations, by raising awareness and reducing stigma; and
  • Provide a mechanism for monitoring actions and outcomes.

Can Mental Health and Work-related Stress be Interlinked?

Work-related stress and mental health problems often go together and the symptoms can be very similar. For example, work-related stress can aggravate an existing mental health problem, making it more difficult to control. And, if work-related stress reaches a point where it has triggered an existing mental health problem, it becomes hard to separate one from the other.

Common mental health problems and stress can exist independently. For example, an individual can experience work-related stress and physical changes such as high blood pressure, without having anxiety, depression or other mental health problems. They can also have anxiety and depression without experiencing stress.

The key differences between them are their cause(s) and the way(s) they are treated.

  • Stress is a reaction to events or experiences in someone’s home life, work life or a combination of both.
  • Common mental health problems can have a single cause outside work, for example bereavement, divorce, postnatal depression, a medical condition or a family history of the problem.

However, an individual can have these sorts of problems with no obvious causes. Employers can help manage and prevent stress by improving conditions at work. But they also have a role in making adjustments and helping the individual manage a mental health problem at work.

Linking HSE’s Management Standards, and Mental Ill Health and Stress

Although stress can lead to physical and mental health conditions, and can aggravate existing conditions, the good news is that it can be tackled.

By taking action to remove or reduce stressors, an employer can:

  • Prevent an individual becoming ill; and
  • Avoid those with an existing condition becoming less able to control their illness.

HSE’s Management Standards approach to tackling work-related stress establishes a framework to help employers tackle work-related stress and, as a result, also reduce the:

  • Incidence of mental ill health; and
  • Negative impact of mental ill health.

The Management Standards approach can help employers put processes in place for properly managing work-related stress. By covering six key areas of work design employers will be taking steps that will:

  • Minimise pressure;
  • Manage potential stressors; and
  • Limit the negative impact that the work could have on their employees.

References

HSE (Health & Safety Executive). (2018) Annual Report and Accounts 2017/18. Available from World Wide Web: http://www.hse.gov.uk/aboutus/reports/ara-2017-18.pdf. [Accessed: 18 November, 2019].

HSE (Health & Safety Executive). (2019) Mental Health. Available from World Wide Web: https://www.hse.gov.uk/stress/mental-health.htm. [Accessed: 18 November, 2019].

When Does a Mental Health Condition Become a Disability?

1.0 Introduction

A mental health condition is considered a disability if it has a long-term effect on your normal day to-day activity, and this is defined under the Equality Act 2010.

The condition is ‘long term’ if it lasts, or is likely to last, 12 months.

‘Normal day-to-day activity’ is defined as something the individual does regularly in a normal day. This includes things like using a computer, working set times or interacting with people.

Currently, the law considers the effects of an impairment on the individual. For example, someone with a mild form of depression with minor effects may not be covered. However, someone with severe depression with significant effects on their daily life is likely to be considered as having a disability.

2.0 Where Does the Equality Act 2010 Apply?

The Equality Act 2010 applies in England, Wales, and Scotland.

It does not apply in Northern Ireland, where individuals are protected by the Disability Discrimination Act 1995.

3.0 Definition of Disability under the Equality Act 2010

An individual is classed as disabled under the Equality Act 2010 if they have a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on their ability to do normal daily activities.

In order to be protected by the Act, a person must have an impairment that meets the Act’s definition of disability, or be able to establish that any less favourable treatment or harassment is because of another person’s disability or because of a perceived disability.

4.0 Factors to Consider in Determining Disability

Factors to consider include:

  • The individual must have an impairment that is either physical or mental;
  • The impairment must have adverse effects which are substantial;
  • The substantial adverse effects must be long-term; and
  • The long-term substantial adverse effects must be effects on normal day-to-day activities.

4.1 What Does Substantial and Long-term Mean?

  • ‘Substantial’ is more than minor or trivial, for example, it takes much longer than it usually would to complete a daily task like getting dressed.
  • ‘Long-term’ means 12 months or more, for example, a breathing condition that develops as a result of a lung infection.

4.2 What is an Impairment?

With regards to disability, an impairment refers to an individual’s ability to carry out normal day-to-day activities and, importantly, the effect that an impairment has on this ability.

A disability can arise from a wide range of impairments which can be:

  • Sensory impairments, such as those affecting sight or hearing.
  • Impairments with fluctuating or recurring effects such as rheumatoid arthritis, myalgic encephalitis (ME), chronic fatigue syndrome (CFS), fibromyalgia, depression and epilepsy.
  • Progressive, such as motor neurone disease, muscular dystrophy, and forms of dementia;
  • Auto-immune conditions such as systemic lupus erythematosis (SLE).
  • Organ specific, including respiratory conditions, such as asthma, and cardiovascular diseases, including thrombosis, stroke and heart disease.
  • Developmental, such as autistic spectrum disorders (ASD), dyslexia and dyspraxia;
  • Learning disabilities.
  • Mental health conditions:
    • With symptoms such as anxiety, low mood, panic attacks, phobias, or unshared perceptions;
    • Eating disorders;
    • Bipolar affective disorders;
    • Obsessive compulsive disorders (OCD);
    • Personality disorders;
    • Post-traumatic stress disorder (PTSD); and
    • Some self-harming behaviour.
  • Mental illnesses, such as depression and schizophrenia.
  • Produced by injury to the body, including to the brain.

What it is important to consider is the effect of an impairment, not its cause – provided that it is not an excluded condition. For example, addiction to, or dependency on, alcohol, nicotine, or any other substance (other than in consequence of the substance being medically prescribed) are specifically excluded from the Equality Act 2010 – although any accompanying impairments maybe protected.

5.0 What about Recurring or Fluctuating Conditions?

There are special rules about recurring or fluctuating conditions (ODI, 2011, p.29), for example “…mental health conditions such as schizophrenia, bipolar affective disorder, and certain types of depression, though this is not an exhaustive list.”

Some impairments with recurring or fluctuating effects may be less obvious in their impact on the individual concerned than is the case with other impairments where the effects are more constant.

6.0 What about Progressive Conditions?

A progressive condition is one that gets worse over time, and individuals with progressive conditions can be classed as disabled.

Examples of progressive conditions include various types of dementia.

Medical prognosis of the likely impact of the condition is the normal route to establishing protection under this provision. Although the effect need not be continuous and need not be substantial, the individual will still need to demonstrate that the impairment meets the long-term condition of the definition.

7.0 Employers & Disability

If an individual’s mental health condition means they are disabled they can get support at work from their employer. Two things to note:

  • The individual’s employer cannot discriminate against them because of their disability – they are protected by the Equality Act 2010; and
  • The employer must also keep the individual’s job open for them, and cannot put pressure on the individual to resign just because they have become disabled.

7.1 Reasonable Adjustments

The individual’s employer must make ‘reasonable adjustments’ for them so that they are not disadvantaged compared to non-disabled people, with examples including:

  • A phased return to work, for example working flexible hours or part-time;
  • Time off for medical treatment or counselling;
  • Giving another employee tasks the individual cannot easily do; and/or
  • Providing practical aids and technical equipment for the individual.

7.2 Time off from Work

If the individual is an employee and cannot work because of their disability, they may be able to get Statutory Sick Pay (SSP), although some employers have their own sick pay scheme.

If the individual still cannot work after 28 weeks, or they cannot get SSP, they can apply for Universal Credit (UC) or Employment and Support Allowance (ESA).

It is important to note that time off from work should not be recorded as an ‘absence from work’ if the individual is waiting for their employer to put reasonable adjustments in place.

7.3 Dismissals and Redundancy

The individual’s employer cannot dismiss them just because they have become disabled.

However, the individual can be dismissed if their disability means they cannot do their job even with reasonable adjustments.

An individual cannot be selected for redundancy just because they are disabled.

8.0 Disability Benefits

As well as having rights to protection from discrimination if the individual becomes disabled, they may also be entitled to certain benefits. The main disability and sickness benefits include:

  • Disability Living Allowance (DLA) or Personal Independence Payment (PIP);
  • Attendance Allowance; and/or
  • Employment and Support Allowance (ESA).

DLA is paid on top of income support, ESA, and other benefits. DLA does not reduce an individual’s other benefits and, in some cases getting DLA, can actually increase the amount the individual receives in other benefits. An individual can receive DLA if they are in or out of work.

What the individual is entitled to will depend on their circumstances. The individual might also be able to get:

  • Certain types of equipment or have adaptations made to their home without paying VAT;
  • Council Tax discounts;
  • A TV licence discount; and/or
  • Free vehicle tax.

9.0 Useful Links

10.0 References

ODI (Office for Disability Issues). (2011) Equality Act 2010: Guidance. Available from World Wide Web: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/570382/Equality_Act_2010-disability_definition.pdf. [Accessed: 25 November, 2019].