Tag: Discrimination

On This Day … 26 July [2022]

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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 Sanism (or Mentalism)?

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Introduction

Mentalism or sanism describes discrimination and oppression against a mental trait or condition a person has, or is judged to have.

This discrimination may or may not be characterised in terms of mental disorder or cognitive impairment. The discrimination is based on numerous factors such as stereotypes about neurodivergence, for example autism, learning disorders, attention deficit hyperactivity disorder (ADHD), foetal alcohol spectrum disorders (FASD), bipolar disorder, schizophrenia, and personality disorders, specific behavioural phenomena such as stuttering and tics, or intellectual disability.

Like other forms of discrimination such as sexism and racism, mentalism involves multiple intersecting forms of oppression, complex social inequalities and imbalances of power. It can result in covert discrimination by multiple, small insults and indignities. It is characterised by judgements of another person’s perceived mental health status. These judgments are followed by actions such as blatant, overt discrimination which may include refusal of service, or the denial of human rights. Mentalism impacts how individuals are treated by the general public, by mental health professionals, and by institutions, including the legal system. The negative attitudes involved may also be internalised.

The terms mentalism, from “mental”, and sanism, from “sane”, have become established in some contexts, though concepts such as social stigma, and in some cases ableism, may be used in similar but not identical ways.

While mentalism and sanism are used interchangeably, sanism is becoming predominant in certain circles, such as academics, those who identify as mad and mad advocates and in a socio-political context where sanism is gaining ground as a movement. The movement of sanism is an act of resistance among those who identify as mad, consumer survivors, and mental health advocates. In academia evidence of this movement can be found in the number of recent publications about sanism and social work practice.

Mentalism tends to be referred as mental disability, distinguishing itself from ableism, which refers to physical disability.

Etymologies

The term “sanism” was coined by Morton Birnbaum during his work representing Edward Stephens, a mental health patient, in a legal case in the 1960s. Birnbaum was a physician, lawyer and mental health advocate who helped establish a constitutional right to treatment for psychiatric patients along with safeguards against involuntary commitment. Since first noticing the term in 1980, New York legal professor Michael L. Perlin subsequently continued its use.

In 1975 Judi Chamberlain coined the term mentalism in a book chapter of Women Look at Psychiatry. The term became more widely known when she used it in 1978 in her book On Our Own: Patient Controlled Alternatives to the Mental Health System, which for some time became the standard text of the psychiatric survivor movement in the US. People began to recognise a pattern in how they were treated, a set of assumptions which most people seemed to hold about mental (ex)patients regardless of whether they applied to any particular individual at any particular time – that they were incompetent, unable to do things for themselves, constantly in need of supervision and assistance, unpredictable, likely to be violent or irrational etc. It was realised that not only did the general public express mentalist ideas, so did ex-patients, a form of internalised oppression.

As of 1998 these terms have been adopted by some consumers/survivors in the UK and the US, but had not gained general currency. This left a conceptual gap filled in part by the concept of ‘stigma’, but this has been criticised for focusing less on institutionalised discrimination with multiple causes, but on whether people perceive mental health issues as shameful or worse than they are. Despite its use, a body of literature demonstrated widespread discrimination across many spheres of life, including employment, parental rights, housing, immigration, insurance, health care and access to justice. However, the use of new “isms” has also been questioned on the grounds that they can be perceived as divisive, out of date, or a form of undue political correctness. The same criticisms, in this view, may not apply so much to broader and more accepted terms like ‘discrimination’ or ‘social exclusion’.

There is also the umbrella term ableism, referring to discrimination against those who are (perceived as) disabled. In terms of the brain, there is the movement for the recognition of neurodiversity. The term ‘psychophobia’ (from psyche and phobia) has occasionally been used with a similar meaning.

Social Division

According to Coni Kalinowski (a psychiatrist at the University of Nevada and Director of Mojave Community Services) and Pat Risser (a mental health consultant and self-described former recipient of mental health services), mentalism at one extreme can lead to a categorical dividing of people into an empowered group assumed to be normal, healthy, reliable, and capable, and a powerless group assumed to be sick, disabled, crazy, unpredictable, and violent. This divide can justify inconsiderate treatment of the latter group and expectations of poorer standards of living for them, for which they may be expected to express gratitude. Further discrimination may involve labelling some as “high functioning” and some as “low-functioning”; while this may enable the targeting of resources, in both categories human behaviours are recast in pathological terms.

The discrimination can be so fundamental and unquestioned that it can stop people truly empathising (although they may think they are) or genuinely seeing the other point of view with respect. Some mental conditions can impair awareness and understanding in certain ways at certain times, but mentalist assumptions may lead others to erroneously believe that they necessarily understand the person’s situation and needs better than they do themselves.

Reportedly even within the disability rights movement internationally, “there is a lot of sanism”, and “disability organisations don’t always ‘get’ mental health and don’t want to be seen as mentally defective.” Conversely, those coming from the mental health side may not view such conditions as disabilities in the same way.

Some national government-funded charities view the issue as primarily a matter of stigmatising attitudes within the general public, perhaps due to people not having enough contact with those (diagnosed with) mental illness, and one head of a schizophrenia charity has compared mentalism to the way racism may be more prevalent when people do not spend time together throughout life. A psychologist who runs The Living Museum facilitating current or former psychiatric patients to exhibit artwork, has referred to the attitude of the general public as psychophobia.

Clinical Terminology

Mentalism may be codified in clinical terminology in subtle ways, including in the basic diagnostic categories used by psychiatry (as in the DSM or ICD). There is some ongoing debate as to which terms and criteria may communicate contempt or inferiority, rather than facilitate real understanding of people and their issues.

Some oppose the entire process as labelling and some have responded to justifications for it – for example that it is necessary for clinical or administrative purposes – as the way a person may justify the use of ethnic slurs because they intend no harm. Others argue that most aspects could easily be expressed in a more accurate and less offensive manner.

Some clinical terms may be used far beyond the usual narrowly defined meanings, in a way that can obscure the regular human and social context of people’s experiences. For example, having a bad time may be assumed to be decompensation; incarceration or solitary confinement may be described as treatment regardless of benefit to the person; regular activities like listening to music, engaging in exercise or sporting activities, or being in a particular physical or social environment (milieu), may be referred to as therapy; all sorts of responses and behaviours may be assumed to be symptoms; core adverse effects of drugs may be termed side effects.

The former director of a US-based psychiatric survivors organization focused on rights and freedoms, David Oaks, has advocated the taking back of words like “mad”, “lunatic”, “crazy” or “bonkers”. While acknowledging that some choose not to use such words in any sense, he questions whether medical terms like “mentally ill”, “psychotic” or “clinically depressed” really are more helpful or indicative of seriousness than possible alternatives. Oaks says that for decades he has been exploring the depths of sanism and has not yet found an end, and suggests it may be the most pernicious ‘ism’ because people tend to define themselves by their rationality and their core feelings. One possible response is to critique conceptions of normality and the problems associated with normative functioning around the world, although in some ways that could also potentially constitute a form of mentalism. After his 2012 accident breaking his neck and subsequent retirement, Oaks refers to himself as “PsychoQuad” on his personal blog.

British writer Clare Allen argues that even reclaimed slang terms such as “mad” are just not accurate. In addition, she sees the commonplace mis-use of concepts relating to mental health problems – including for example jokes about people hearing voices as if that automatically undermines their credibility – as equivalent to racist or sexist phrases that would be considered obviously discriminatory. She characterises such usage as indicating an underlying psychophobia and contempt.

Blame

Interpretations of behaviours, and applications of treatments, may be done in an judgmental way because of an underlying mentalism, according to critics of psychiatry. If a recipient of mental health services disagrees with treatment or diagnosis, or does not change, they may be labelled as non-compliant, uncooperative, or treatment-resistant. This is despite the fact that the issue may be healthcare provider’s inadequate understanding of the person or their problems, adverse medication effects, a poor match between the treatment and the person, stigma associated with the treatment, difficulty with access, cultural unacceptability, or many other issues.

Mentalism may lead people to assume that someone is not aware of what they are doing and that there is no point trying to communicate with them, despite the fact that they may well have a level of awareness and desire to connect even if they are acting in a seemingly irrational or self-harming way. In addition, mental health professionals and others may tend to equate subduing a person with treatment; a quiet client who causes no community disturbance may be deemed improved no matter how miserable or incapacitated that person may feel as a result.

Clinicians may blame clients for not being sufficiently motivated to work on treatment goals or recovery, and as acting out when things are not agreed with or are found upsetting. But critics say that in the majority of cases this is actually due to the client having been treated in a disrespectful, judgmental, or dismissive manner. Nevertheless, such behaviour may be justified by characterising the client as demanding, angry or needing limits. To overcome this, it has been suggested that power-sharing should be cultivated and that when respectful communication breaks down, the first thing that needs to be asked is whether mentalist prejudices have been expressed.

Neglect

Mentalism has been linked to negligence in monitoring for adverse effects of medications (or other interventions), or to viewing such effects as more acceptable than they would be for others. This has been compared to instances of maltreatment based on racism. Mentalism has also been linked to neglect in failing to check for, or fully respect, people’s past experiences of abuse or other trauma.

Treatments that do not support choice and self-determination may cause people to re-experience the helplessness, pain, despair, and rage that accompanied the trauma, and yet attempts to cope with this may be labelled as acting out, manipulation, or attention-seeking.

In addition, mentalism can lead to “poor” or “guarded” predictions of the future for a person, which could be an overly pessimistic view skewed by a narrow clinical experience. It could also be made impervious to contrary evidence because those who succeed can be discounted as having been misdiagnosed or as not having a genuine form of a disorder – the no true Scotsman fallacy. While some mental health problems can involve very substantial disability and can be very difficult to overcome in society, predictions based on prejudice and stereotypes can be self-fulfilling because individuals pick up on a message that they have no real hope, and realistic hope is said to be a key foundation of recovery. At the same time, a trait or condition might be considered more a form of individual difference that society needs to include and adapt to, in which case a mentalist attitude might be associated with assumptions and prejudices about what constitutes normal society and who is deserving of adaptations, support, or consideration.

Institutional Discrimination

Offensive and injurious practices may be integrated into clinical procedures, to the point where professionals no longer recognise them as such, in what has been described as a form of institutional discrimination.

This may be apparent in physical separation, including separate facilities or accommodation, or in lower standards for some than others. Mental health professionals may find themselves drawn into systems based on bureaucratic and financial imperatives and social control, resulting in alienation from their original values, disappointment in “the system”, and adoption of the cynical, mentalist beliefs that may pervade an organisation. However, just as employees can be dismissed for disparaging sexual or ethnic remarks, it is argued that staff who are entrenched in negative stereotypes, attitudes, and beliefs about those labelled with mental disorders need to be removed from service organisations. A related theoretical approach, known as expressed emotion, has also focused on negative interpersonal dynamics relating to care givers, especially within families. However, the point is also made in such views that institutional and group environments can be challenging from all sides, and that clear boundaries and rights are required for everyone.

The mental health professions have themselves been criticised. While social work (also known as clinical social work) has appeared to have more potential than others to understand and assist those using services, and has talked a lot academically about anti-oppressive practice intended to support people facing various -isms, it has allegedly failed to address mentalism to any significant degree. The field has been accused, by social work professionals with experience of using services themselves, of failing to help people identify and address what is oppressing them; of unduly deferring to psychiatric or biomedical conventions particularly in regard to those deemed most unwell; and of failing to address its own discriminatory practices, including its conflicts of interest in its official role aiding the social control of patients through involuntary commitment.

In the “user/survivor” movement in England, Pete Shaughnessy, a founder of mad pride, concluded that the National Health Service is “institutionally mentalist and has a lot of soul searching to do in the new Millennium”, including addressing the prejudice of its office staff. He suggested that when prejudice is applied by the very professionals who aspire to eradicate it, it raises the question of whether it will ever be eradicated.[25] Shaughnessy committed suicide in 2002.

The psychiatric survivors movement has been described as a feminist issue, because the problems it addresses are “important for all women because mentalism acts as a threat to all women” and “mentalism threatens women’s families and children.” A psychiatric survivor and professional has said that “Mentalism parallels sexism and racism in creating an oppressed underclass, in this case of people who have received psychiatric diagnosis and treatment”. She reported that the most frequent complaint of psychiatric patients is that nobody listens, or only selectively in the course of trying to make a diagnosis.

On a society-wide level, mentalism has been linked to people being kept in poverty as second class citizens; to employment discrimination keeping people living on handouts; to interpersonal discrimination hindering relationships; to stereotypes promoted through the media spreading fears of unpredictability and dangerousness; and to people fearing to disclose or talk about their experiences.

Law

With regard to legal protections against discrimination, mentalism may only be covered under general frameworks such as the disability discrimination acts that are in force in some countries, and which require a person to say that they have a disability and to prove that they meet the criteria.

In terms of the legal system itself, the law is traditionally based on technical definitions of sanity and insanity, and so the term “sanism” may be used in response. The concept is well known in the US legal community, being referred to in nearly 300 law review articles between 1992 and 2013, though is less well known in the medical community.

Michael Perlin, Professor of Law at New York Law School, has defined sanism as “an irrational prejudice of the same quality and character as other irrational prejudices that cause and are reflected in prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry that permeates all aspects of mental disability law and affects all participants in the mental disability law system: litigants, fact finders, counsel, and expert and lay witnesses.”

Perlin notes that sanism affects the theory and practice of law in largely invisible and socially acceptable ways, based mainly on “stereotype, myth, superstition, and deindividualization.” He believes that its “corrosive effects have warped involuntary civil commitment law, institutional law, tort law, and all aspects of the criminal process (pretrial, trial and sentencing).” According to Perlin, judges are far from immune, tending to reflect sanist thinking that has deep roots within our culture. This results in judicial decisions based on stereotypes in all areas of civil and criminal law, expressed in biased language and showing contempt for mental health professionals. Moreover, courts are often impatient and attribute mental problems to “weak character or poor resolve”.

Sanist attitudes are prevalent in the teaching of law students, both overtly and covertly, according to Perlin. He notes that this impacts on the skills at the heart of lawyering such as “interviewing, investigating, counseling and negotiating”, and on every critical moment of clinical experience: “the initial interview, case preparation, case conferences, planning litigation (or negotiation) strategy, trial preparation, trial and appeal.”

There is also widespread discrimination by jurors, who Perlin characterizes as demonstrating “irrational brutality, prejudice, hostility, and hatred” towards defendants where there is an insanity defence. Specific sanist myths include relying on popular images of craziness; an ‘obsession’ with claims that mental problems can be easily faked and experts duped; assuming an absolute link between mental illness and dangerousness; an ‘incessant’ confusion and mixing up of different legal tests of mental status; and assuming that defendants acquitted on insanity defences are likely to be released quickly. Although there are claims that neuroimaging has some potential to help in this area, Perlin concludes that it is very difficult to weigh the truth or relevance of such results due to the many uncertainties and limitations, and as it may be either disregarded or over-hyped by scientists, lawyers or in the popular imagination. He believes “the key to an answer here is a consideration of sanism”, because to a great extent it can “overwhelm all other evidence and all other issues in this conversation”. He suggests that “only therapeutic jurisprudence has the potential power to ‘strip the sanist facade’.”

Perlin has suggested that the international Convention on the Rights of Persons with Disabilities is a revolutionary human rights document which has the potential to be the best tool to challenge sanist discrimination.

He has also addressed the topic of sanism as it affects which sexual freedoms or protections are afforded to psychiatric patients, especially in forensic facilities.

Sanism in the legal profession can affect many people in communities who at some point in their life struggle with some degree of mental health problems, according to Perlin. This may unjustly limit their ability to legally resolve issues in their communities such as: “contract problems, property problems, domestic relations problems, and trusts and estates problems.”

Susan Fraser, a lawyer in Canada who specialises in advocating for vulnerable people, argues that sanism is based on fear of the unknown, reinforced by stereotypes that dehumanise individuals. She argues that this causes the legal system to fail to properly defend patients’ rights to refuse potentially harmful medications; to investigate deaths in psychiatric hospitals and other institutions in an equal way to others; and to fail to properly listen to and respect the voices of mental health consumers and survivors.

Education

Similar issues have been identified by Perlin in how children are dealt with in regard to learning disabilities, including in special education. In any area of law, he points out, two of the most common sanist myths are presuming that persons with mental disabilities are faking, or that such persons would not be disabled if they only tried harder. In this particular area, he concludes that labelled children are stereotyped in a process rife with racial, class and gender bias. Although intended to help some children, he contends that in reality it can be not merely a double-edged sword but a triple, quadruple or quintuple edged sword. The result of sanist prejudices and misconceptions, in the context of academic competition, is that “we are left with a system that is, in many important ways, stunningly incoherent”.

Oppression

A spiral of oppression experienced by some groups in society has been identified. Firstly, oppressions occur on the basis of perceived or actual differences (which may be related to broad group stereotypes such as racism, sexism, classism, ageism, homophobia etc.). This can have negative physical, social, economic and psychological effects on individuals, including emotional distress and what might be considered mental health problems. Then, society’s response to such distress may be to treat it within a system of medical and social care rather than (also) understanding and challenging the oppressions that gave rise to it, thus reinforcing the problem with further oppressive attitudes and practices, which can lead to more distress, and so on in a vicious cycle. In addition, due to coming into contact with mental health services, people may become subject to the oppression of mentalism, since society (and mental health services themselves) have such negative attitudes towards people with a psychiatric diagnosis, thus further perpetuating oppression and discrimination.

People suffering such oppression within society may be drawn to more radical political action, but sanist structures and attitudes have also been identified in activist communities. This includes cliques and social hierarchies that people with particular issues may find very difficult to break into or be valued by. There may also be individual rejection of people for strange behaviour that is not considered culturally acceptable, or alternatively insensitivity to emotional states including suicidality, or denial that someone has issues if they appear to act normally.

On This Day … 01 March

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Events

  • Zero Discrimination Day.
  • Self-injury Awareness Day (international).

Zero Discrimination Day

Zero Discrimination Day is an annual day celebrated on 01 March each year by the United Nations (UN) and other international organisations. The day aims to promote equality before the law and in practice throughout all of the member countries of the UN. The day was first celebrated on 01 March 2014, and was launched by UNAIDS Executive Director Michel Sidibé on 27 February of that year with a major event in Beijing.

In February 2017, UNAIDS called on people to “make some noise around zero discrimination, to speak up and prevent discrimination from standing in the way of achieving ambitions, goals and dreams.”

The day is particularly noted by organisations like UNAIDS that combat discrimination against people living with HIV/AIDS. “HIV related stigma and discrimination is pervasive and exists in almost every part of the world including our Liberia”, according to Dr. Ivan F. Camanor, Chairman of the National AIDS Commission of Liberia. The UN Development Programme also paid tribute in 2017 to LGBTI people with HIV/AIDS who face discrimination.

Campaigners in India have used this day to speak out against laws making discrimination against the LGBTI community more likely, especially during the previous campaign to repeal the law (Indian Penal Code, s377) that used to criminalise homosexuality in that country, before that law was overturned by the Indian Supreme Court in September 2018.

In 2015, Armenian Americans in California held a ‘die-in’ on Zero Discrimination Day to remember the victims of the Armenian genocide.

Self-Injury Awareness Day

Self-injury Awareness Day (SIAD) (also known as Self-Harm Awareness Day) is a grassroots annual global awareness event / campaign on 01 March, where on this day, and in the weeks leading up to it and after, some people choose to be more open about their own self-harm, and awareness organisations make special efforts to raise awareness about self-harm and self-injury. Some people wear an orange awareness ribbon, write “LOVE” on their arms, draw a butterfly on their wrists in awareness of “the Butterfly Project” wristband or beaded bracelet to encourage awareness of self-harm. The goal of the people who observe SIAD is to break down the common stereotypes surrounding self-harm and to educate medical professionals about the condition.

What is the Americans with Disabilities Act of 1990?

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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.

On This Day … 01 March

Published on by Andrew MarshallLeave a comment

Events

  • Self-injury Awareness Day.
  • Zero Discrimination Day.

Self-Injury Awareness Day

Self-injury Awareness Day (SIAD) (also known as Self-Harm Awareness Day) is a grassroots annual global awareness event/campaign on 01 March, where on this day, and in the weeks leading up to it and after, some people choose to be more open about their own self-harm, and awareness organisations make special efforts to raise awareness about self-harm and self-injury. Some people wear an orange awareness ribbon, write “LOVE” on their arms, draw a butterfly on their wrists in awareness of “the Butterfly Project” wristband or beaded bracelet to encourage awareness of self-harm. The goal of the people who observe SIAD is to break down the common stereotypes surrounding self-harm and to educate medical professionals about the condition.

Background

Depression and self-harm often go hand-in-hand, though there are many other reasons people self-harm. As many as two million Americans currently engage in self-harm, with methods like cutting, scratching, bruising, and hitting themselves, along with other more harmful methods. It’s said that these behaviours promote feelings of control and help relieve tension, while helping the person express their emotions and escape the numbness that accompanies depression.

SIAD was created to spread awareness and understanding of self-injury, which is often misrepresented and misunderstood in the mainstream. Those who self-harm are often left feeling alone and afraid to reach out for help because they fear they’ll be seen as “crazy.”

Participating Organisations

Many organizations are now getting involved in SIAD. Some of them include:

  • Sociedad Internacional de Autolesión.
  • LifeSIGNS (Self-Injury Guidance & Network Support).
  • Self-Injury Foundation.
  • YoungMinds.
  • ChildLine.
  • The Mix.
  • Adolescent Self-Injury Foundation.
  • Cars for Hope.

Zero Discrimination Day

Zero Discrimination Day is an annual day celebrated by the United Nations (UN) and other international organisations. The day aims to promote equality before the law and in practice throughout all of the member countries of the UN. The day was first celebrated on 01 March 2014, and was launched by UNAIDS Executive Director Michel Sidibé on 27 February of that year with a major event in Beijing.

In February 2017, UNAIDS called on people to “make some noise around zero discrimination, to speak up and prevent discrimination from standing in the way of achieving ambitions, goals and dreams.”

The day is particularly noted by organisations like UNAIDS that combat discrimination against people living with HIV/AIDS. “HIV related stigma and discrimination is pervasive and exists in almost every part of the world including our Liberia”, according to Dr. Ivan F. Camanor, Chairman of the National AIDS Commission of Liberia. The UN Development Programme also paid tribute in 2017 to LGBTI people with HIV/AIDS who face discrimination.

Campaigners in India have used this day to speak out against laws making discrimination against the LGBTI community more likely, especially during the previous campaign to repeal the law (Indian Penal Code, s377) that used to criminalise homosexuality in that country, before that law was overturned by the Indian Supreme Court in September 2018.

In 2015, Armenian Americans in California held a ‘die-in’ on Zero Discrimination Day to remember the victims of the Armenian Genocide.

Book: Anti-Discriminatory Practice in Counselling & Psychotherapy

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Book Title:

Anti-Discriminatory Practice in Counselling & Psychotherapy.

Author(s): Colin Lago and Barbara Smith (Editors).

Year: 2010.

Edition: First (1st).

Publisher: SAGE Publications Ltd.

Type(s): Paperback and EPUB.

Synopsis:

Anti-Discriminatory Practice in Counselling and Psychotherapy is a groundbreaking text which identifies the ease with which individuals can be disadvantaged merely on the basis of their gender, race, culture, age, sexuality or ability. Examining these and other areas of discrimination, leading experts highlight how vital it is for counsellors, psychotherapists – and others in the helping professions – to be aware of and engage with their own social, political and cultural attitudes, and how they must develop their skills as culturally sensitive, reflective practitioners if counselling is to be truly accessible to all members of society.

This substantially revised and updated second edition now also includes chapters on working within an anti-discriminatory approach with:

  • Refugees;
  • People with mental health difficulties; and
  • People with disfigurement or visible differences.

While each thought-provoking chapter now:

  • Links theory to practice by providing case studies and extracts from therapeutic dialogues;
  • Assesses the most recent research findings;
  • Provides exercises for enhancing awareness and skills within each different domain or care setting; and
  • Presents references for further recommended reading.

Clearly written and accessible, Anti-discriminatory Practice in Counselling and Psychotherapy is an indispensable addition to the toolkit of everyone either training to be or practising in the counselling and psychotherapeutic professions.

Do Adults Experiencing Mental Illness & Homelessness follow Distinct Stigma & Discrimination Group Trajectories based on their Mental Health-problems?

Published on by Andrew Marshall1 Comment

Research Paper Title

Trajectories and mental health-related predictors of perceived discrimination and stigma among homeless adults with mental illness.

Background

Stigma and discrimination toward individuals experiencing homelessness and mental disorders remain pervasive across societies. However, there are few longitudinal studies of stigma and discrimination among homeless adults with mental illness.

This study aimed to identify the two-year group trajectories of stigma and discrimination and examine the predictive role of mental health characteristics among 414 homeless adults with mental illness participating in the extended follow-up phase of the Toronto At Home/Chez Soi (AH/CS) randomised trial site.

Methods

Mental health-related perceived stigma and discrimination were measured at baseline, one, and two years using validated scales.

Group-based-trajectory modelling was used to identify stigma and discrimination group trajectory memberships and the effect of the Housing First treatment (rent supplements and mental health support services) vs treatment as usual on these trajectories.

The associations between mental health-related characteristics and trajectory group memberships were also assessed using multinomial logistic regression.

Results

Over two-years, three group trajectories of stigma and discrimination were identified.

For discrimination, participants followed a low, moderate, or increasingly high discrimination group trajectory, while for stigma, participants followed a low, moderate or high stigma group trajectory.

The Housing First treatment had no significant effect on discrimination or stigma trajectories groups.

For the discrimination trajectories, major depressive episode, mood disorder with psychotic features, alcohol abuse, suicidality, severity of mental health symptoms, and substance use severity in the previous year were predictors of moderate and increasingly high discrimination trajectories.

History of discrimination within healthcare setting was also positively associated with following a moderate or high discrimination trajectory.

For the stigma trajectories, substance dependence, high mental health symptoms severity, substance use severity, and discrimination experiences within healthcare settings were the main predictors for the moderate trajectory group; while substance dependence, suicidality, mental health symptom severity, substance use severity and discrimination experiences within health care setting were also positive predictors for the high stigma trajectory group.

Ethno-racial status modified the association between having a major depression episode, alcohol dependence, and the likelihood of being a member of the high stigma trajectory group.

Conclusions

This study showed that adults experiencing mental illness and homelessness followed distinct stigma and discrimination group trajectories based on their mental health-problems.

There is an urgent need to increase focus on strategies and policies to reduce stigma and discrimination in this population.

Reference

Mejia-Lancheros, C., Lachaud, J., O’Campo, P., Wiens, K., Nisenbaum, R., Wang, R., Hwang, S.W. & Stergiopoulos, V. (2020) Trajectories and mental health-related predictors of perceived discrimination and stigma among homeless adults with mental illness. PLoS One. 15(2), pp.e0229385. doi: 10.1371/journal.pone.0229385. eCollection 2020.