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Statement on Mental Disabilities and the ADA
Samuel R. Bagenstos
Civil Rights Division, United States Department of Justice

Thank you for the invitation to discuss this important issue today. I serve as the Principal Deputy Assistant Attorney General for Civil Rights at the United States Department of Justice. Among my many duties in that capacity, I supervise the Civil Rights Division’s disability rights enforcement. The Civil Rights Division is responsible for enforcing, administering, and adopting regulations to implement Titles II and III of the Americans with Disabilities Act, which prohibit disability discrimination by state and local governments and places of public accommodation, respectively. We also enforce Title I of the ADA, which prohibits disability-based employment discrimination, against state and local government employers. The EEOC, of course, has the responsibility for enforcing Title I in the private sector and for adopting regulations to implement that title.

I am very pleased that the Commission is placing a renewed focus on the important issue of discrimination against people with mental disabilities. That renewed focus dovetails with the Department of Justice’s focus on ensuring that people with disabilities have the opportunity to move out of inappropriate institutional settings and into their communities, where they can live the same sorts of lives that people without disabilities live. Playing our part to implement President Obama’s Community Living initiative, we have moved aggressively to enforce the Supreme Court’s decision in Olmstead v. L.C.. As you know, the Court in Olmstead held that a state violates Title II of the ADA when it subjects individuals with disabilities to unnecessary institutionalization. In this Administration, we have investigated, brought, or participated in Olmstead cases on behalf of people with a range of disabilities, from developmental disabilities, to physical disabilities, to mental illness. Those cases include our landmark settlement agreement in United States v. Georgia, in which Ruby Moore was such an important partner for us. Under that agreement, Georgia will provide services in the community—including treatment, housing, and crisis services—for literally thousands of its residents with developmental disabilities and mental illness who are currently institutionalized or at risk of institutionalization.

One of our baseline principles at the Department of Justice is that Olmstead is not about where people live so much as it is about how people live. The harm of unnecessary institutionalization is that it separates people with disabilities from the broader community, to be sure, but also that it denies them opportunities that people without disabilities take for granted: to decide when and what to eat, and with whom; to decide whether to go to the movies, what movie to go to, and whether to bring a companion; to decide, most elementally, when to turn out one’s own light at night. Simply to move someone from an institution to a community-based residence does not integrate her into the community if she is still denied choices about how to spend her days but instead must spend them in congregate programs. That is why, in our Olmstead enforcement, we have focused not just on whether people with disabilities move to community-based residential settings but also on whether they live meaningful, integrated days. Our Georgia settlement, for example, commits the state to provide supported employment services to ensure that people who have left the state’s psychiatric hospitals have the supports they need to work in the competitive labor market.

Our efforts, in this regard, dovetail nicely with those of the EEOC. We know that work is an essential part of full and equal participation in the community. Work commands respect, and it represents agency, responsibility, and independence. Work is the place where people with and without disabilities can come together, share common projects, and break down barriers of stereotype and prejudice. Whatever people may have thought in the past, we now know that people with all sorts of disabilities, physical and mental, are entitled to real lives and real jobs. Our efforts at the Department of Justice help to ensure that people with mental disabilities receive the supports they need to enter and succeed in the competitive workplace, and your efforts at the EEOC help to ensure that employers give them a fair shake.

Especially after the ADA Amendments Act, which Congress adopted two and a half years ago, Title I provides people with mental disabilities robust protections against discrimination. The statute prohibits employers from discriminating against qualified individuals with a disability. As part of that prohibition, the statute requires employers to provide reasonable accommodations to ensure equal opportunity, so long as the accommodation does not cause undue hardship. Both the EEOC and the Department of Justice have recognized that compliance with the accommodation requirement demands a flexible, interactive process between employer and employee. An employer thus is forbidden to deny a job based on reflexive stereotypes or assumptions about disability, such as the assumption that a job coach necessarily interferes with work functions. And an employer must provide such accommodations as shift changes, flexible schedules, permission to take short breaks during the workday, or employee leave beyond what is ordinarily permitted in order to provide equal opportunity to employees with disabilities. Title I also prohibits the use of employment selection tools that screen out people with disabilities (like some sorts of personality tests) unless they test for factors that are in fact, and not just assumption, relevant to success on the job. The legal test that encapsulates this point is that a tool that screens out people with disabilities must be “job related and consistent with business necessity.”

Let me close by reiterating how important today’s topic is. Employment discrimination against people with mental disabilities denies individuals the chance to contribute to society and to their own place in it. As we at the Department of Justice work to ensure that people with mental disabilities are no longer unnecessarily institutionalized, it becomes ever more important that we—the Department of Justice and the EEOC—also work to ensure that those who leave institutions have the opportunity not just to have a “placement” in the community but to live a meaningful, integrated life in the community. Our work to ensure that states provide the relevant supports, and your work to ensure that private employers do not discriminate, are both essential to achieving this goal.