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Meeting of March 15, 2011 - Employment of People with Mental Disabilities - Transcript


STUART J. ISHIMARU, Commissioner
CHAI R. FELDBLUM, Commissioner
VICTORIA A. LIPNIC, Commissioner


P. DAVID LOPEZ, General Counsel
PEGGY R. MASTROIANNI, Associate Legal Counsel

This transcript was produced from a DVD provided by the Equal Employment Opportunity Commission.


Announcement of Notation Votes

Employment of People with Mental Disabilities

Employment Rates of People with Mental Disabilities

Sharon Lewis

Dr. William Kiernan

Dr. Gary Bond

Ruby Moore

Requirements of the ADA, Strategies to Comply & Outcomes for People with Mental Disabilities

Samuel Bagenstos

Jack Eaton

Tenesha Abbott

Anupa Iyer

Litigation to Enforce the Rights of People with Mental Disabilities

Markus Penzel

Donna Malone

Motion to Adjourn


1:03 p.m.

CHAIR BERRIEN: Good afternoon everyone. The meeting of the Equal Employment Opportunity Commission will now come to order.

I want to thank everyone who's come for joining us and everyone who is watching online for participating as well remotely.

In accordance with the Sunshine Act, today's meeting of the Commission is open to public observation of deliberations and voting.

At this time I'm going to ask Bernadette Wilson to announce any notation votes that have taken place since the last Commission meeting.

Ms. Wilson?

MS. WILSON: Good afternoon.

Before I begin, is there anyone here in need of interpreter services?

Okay. Good afternoon, Madam Chair, Commissioners. I'm Bernadette Wilson from the Executive Secretariat. We'd like to remind our audience that questions and comments from the audience are not permitted during the meeting, and we ask that you carry on any conversations outside the meeting room, departing and reentering as quietly as possible. Also, please take this opportunity to turn your cell phones off or to vibrate mode.

I would also like to remind the audience that in case of emergency, there are exit doors to the right and left as you exit this room, additionally, the restrooms are down the hall to the right and left of the elevators.

During the period February 15, 2011 through March 11, 2011, the Commission acted on four (4) items by notation vote:

Approved litigation on one case;

Approved the Spring 2011 Regulatory Agenda;

Approved the Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act as Amended; and,

Approved a Resolution Honoring Laura Hinton on her Retirement.

Madam Chair?

CHAIR BERRIEN: Thank you, Ms. Wilson.

We are privileged today to welcome a number of speakers here to discuss the employment of people with intellectual and psychiatric disabilities.

This meeting of the Commission is particularly timely as we prepare to issue final regulations implementing the Americans with Disabilities Act Amendments Act.

I'd like to thank Commissioner Feldblum and her staff, particularly Jennifer Mathis, for their leadership in conceiving and organizing this meeting and providing members of the Commission with very helpful background information for today's discussion.

Commissioner Feldblum will discuss the purpose of today's meeting more fully in her opening remarks. But I did want to initially thank her, as well as all of today's panelists and witnesses for their participation and time today, and the audience, all of you who have joined us for this important discussion.

I'll note that today's witnesses will address issues of great importance to the Commission and our work. We have the opportunity today to hear about some of the issues that people with mental disabilities confront in the workplace and some of the best practices adopted by employers who have successfully hired and retained workers with mental disabilities. The panel today is uniquely suited to give perspectives on what the law requires with respect to employment of people with disabilities and how employers can help increase both the successful employment of people with disabilities as they operate their businesses effectively.

I look forward to hearing your testimony today and I thank all of you for joining the Commission's meeting today.

And now I'd like to turn to my colleagues on the Commission and ask them if they would like to make brief opening statements.

Commissioner Ishimaru?

COMMISSIONER ISHIMARU: Great, thank you, Madam Chair.

Twenty-some odd years ago was the start of my journey dealing with disability issues. And in that journey I had the honor and privilege of working with Chai Feldblum, who, both of us at the time were not in the protected age class; we were younger, but it's been a fascinating journey. And during my time working as a staff member on Capitol Hill; we passed the Fair Housing Amendments Act, which included people with handicaps, as we called them then, and then working on the 1990 Americans with Disabilities Act. And I was frankly always surprised at the level of agreement on Capitol Hill back then on whether we should provide anti-discrimination protections for people with disabilities. People got it, they understood it, they wanted broad coverage. And, it was never a controversy. And that I think is due in large part to the fact that so many members of Congress and so many Americans understood. They had family, they had friends who had both either physical or mental disabilities; they understood what the problems were and they wanted to try to provide the base level of protections under the various civil rights laws we have.

Twenty-some odd years later, we're here in Washington on the brink of issuing final regulations on the ADA Amendments Act. I think we are all looking forward to the issuance of those regulations.

We're also -- from my point of view, the evolution of disability issues over time is fascinating and how we've become more open. I know some of our witnesses will talk about the post-Olmstead environment and I think that is a sign of progress. And in these issues of dealing with both intellectual disabilities and psychiatric disabilities; how things have evolved over time, I think, is a good thing. And I look forward to hearing from the witnesses on those issues.

Frankly, we've been talking for a long time about myths, fears, and stereotypes and how those have kept so many people back over the years. The ADA was intended originally to deal with that as well with the Amendments Act that Congress passed a number of years ago. The ADA restored the intent of Congress in passing the original ADA for people with mental disabilities. And I believe they should receive the full protections of the law.

Under the Amendments Act, it's my hope and expectation that individuals with mental disabilities -- who we will hear from and about today, and others like them -- will undoubtedly be covered by the law based on their impairments and the manifestations of their impairments.

So I'm looking forward to the hearing. It's really a stellar group. I want to commend Commissioner Feldblum and Jennifer Mathis of her staff for really pulling together a super hearing.

Really, I think Madam Chair, since I'm the institutional memory here; I think it's the first time we've actually dealt with the ADA head-on during the course of my tenure. We've dealt with disability issues from time to time, but I don't think we've ever actually had a meeting on the ADA itself, and on the eve of issuance of the Amendments,… of the regulations, I think it's well suited.

So again, my thanks to you, Madam Chair, and I yield back.

CHAIR BERRIEN: Thank you, Commissioner.

Now I'll turn to Commissioner Barker.

COMMISSIONER BARKER: Thank you Madam Chair.

I appreciate your insight into that, Stuart. I didn't realize that we had not held a meeting directly on the ADA before. And if we have not, well, shame on us and it's about time.

I want to share in Stuart's thoughts of appreciation to Chai for the work in formulating this issue and bringing it before the Commission. As you know, as Commissioners we have our independent and sometimes differing views, but I think that when it comes to the ADA; we speak with one voice in our concern and our compassion to see that people who suffer from disabilities who are covered by the Act, are given the opportunities that they deserve as Americans. And I think we also speak with one voice in our efforts to see that the expanded definition of the ADA under the ADA Amendments Act, is fully implemented and enforced. So I am grateful to Commissioner Feldblum for putting this meeting together.

And I want to thank in advance the people who have come, some of you distances, to testify today. In particular, we have some individuals who will testify, and while we are always appreciative for the experts; I'm most appreciative of the individuals who have the courage to come and tell their story, so I'm looking forward to that.

And before I close, I can't close without making one comment, and that is; as a Commission, one of the things that we are committed to is, embracing all cultures. And I don't think any of us have been able to not watch the news this week and see the terrible things that are happening to the Japanese people and the Japanese culture. And Commissioner Ishimaru has family members who are in Japan who gratefully tells me were not hurt or killed. But I would just say that as a Commission, we need to be particularly conscious of the effect of this culture and on their lives. And I'm particularly impressed by the grace with which the Japanese people have accepted what has been handed to them and think we can all learn from that. And I hope this is just one more recognition of the fact that we need to be an inclusive culture, embracing other cultures. And I sincerely hope that our government and that the American people will be very generous in the aid that we provide to the Japanese people.

Thank you.

CHAIR BERRIEN: Thank you Commissioner Barker.

I turn to Commissioner Feldblum now.


I am so pleased -- I am so pleased, and now I'm even more pleased that you can hear me. I'm so pleased, Commissioner Barker, for having us remember what is going on outside in the overall world as we try to make our place a better place to be.

I am so pleased that the Commission is holding this public meeting on the topic of employment of people with mental disabilities.

I thank Chair Berrien for welcoming the idea of such a meeting when I first broached it with her and I appreciate her confidence in asking me to help organize it.

I am incredibly grateful to Jennifer Mathis, who has devoted countless hours to conceptualizing and pulling this meeting together. To Sharon Masling, who has helped organize and galvanize my office in the mere two months that she has been on board. And to Steve Zanowic and Toni Barnes for keeping everything going while Sharon, Jennifer, and I were working basically around the clock on getting the ADA Amendments regulations out and on working on this meeting.

Part of why this Commission meeting is so timely is that since January 2009, when the ADA Amendments Act first became effective; more people with intellectual and psychiatric disabilities have been clearly covered by the ADA and hence have important workplace rights. That means that we as a Commission, have an obligation to engage in the technical assistance and public education that the statute that created us, gives us the mandate to do. So towards that end, I hope the meeting will educate us on the following three things:

First, people with significant disabilities, including intellectual disabilities and serious mental illness, are no longer being shut away in institutions to the extent they had been before. They are being educated in our schools. They are living in our communities. As part of that trend, we now have in-depth and sophisticated research on how to ensure that people with intellectual disabilities and serious mental illness can perform well in competitive employment. And we're going to hear about that.

Second, we are talking about real people and real employers. This is not a do-good charity enterprise. This is about how to have a competitive and engaged workforce in a productive economy. This is about employers, unions and employment agencies learning how to implement both simple accommodations and working with supported employment providers to make sure that people get the support they need to work successfully. It's about individuals earning a living and paying taxes rather than being dependent on disability insurance.

Third, I hope we learn that it is important to have a law to back up workplace rights for people with disabilities. For that rare employer, union or employment agency that hasn't fully absorbed their technical assistance and hasn't trained all of its supervisors effectively; we need to have a strong enforcement system. So we will hear one story of where the ADA and this agency stepped in to make a difference. But a nondiscrimination framework gives us only part of the picture and I encourage us to think in a broader fashion as well.

As my great friend Bob Williams says, the historical flaw in the employment discussion around people with disabilities has been the assumption that simply being employed is the goal; as if it's a historic achievement if a person with a disability has a job, any job. That can't be right. People with disabilities want jobs for the same reasons everyone wants jobs; to make money so we can buy things and be independent and to have a sense of self-worth. That should be our expectation for everybody. Obviously the starting point is to have a job. Certainly in this economy, that's critical. But our expectations cannot end there. We want people to have good jobs.

So finally, I believe one way to break down the divide between what we expect for ourselves and what we say we expect for people with disabilities; is to recognize that we all exist on a spectrum of ability.

As a person with anxiety disorder that is medicated, I view myself as a person on the spectrum of people with psychiatric disabilities. To me, there is no sharp divide between us and them. Some of us have impairments that generate more stigma and prejudice than others. Some of us have impairments that need more accommodation than others. But we all want to work if we are able to.

I look forward to our witnesses this afternoon educating us about how well or not we are doing as a country right now with regard to people with intellectual disabilities and serious mental illness.

Thank you again Madam Chair for convening this meeting.

CHAIR BERRIEN: Thank you Commissioner. And again, thank you for your leadership today.

And finally, I turn to Commissioner Lipnic.

COMMISSIONER LIPNIC: Thank you Madam Chair. And welcome to all of our witnesses. Thank you all for being with us today and especially, as Commissioner Barker said, for those of you who have traveled some distance to be with us.

As you could certainly tell by my colleague, Commissioner Feldblum's comments, her passion on this issue is unstoppable. And I certainly want to thank her for, as Commissioner Ishimaru mentioned, her tireless work going back -- how many years now, twenty-five years, something like that?


COMMISSIONER LIPNIC: -- since she was 10 years old -- as a tireless and passionate advocate for the disability community. And we thank you, Commissioner Feldblum, for taking the lead in putting this important meeting together today.

Today we will examine an issue of importance to millions of Americans: the employment of workers with mental disabilities. As others have noted, today's meeting could not be more timely insofar as it comes while our agency will, in the very near future, publish long-awaited regulations to implement the Americans with Disabilities Act Amendments of 2008; a law building on the landmark protections for workers with disabilities of all kinds adopted in the ADA more than 20 years ago.

It is certainly the case that while these regulations that we hope to have out soon, protect workers with all sorts of disabilities; I think that they will have an especially profound effect on workers with mental disabilities. And as Commissioner Feldblum mentioned and has drilled into me over and over again, it's about more people who are covered.

In that light, I look forward to hearing from our witnesses as to where we are today, where we can do better. I am especially interested in hearing from everyone about where employers can do better and what steps we may need to take in the future to help that goal.

As Commissioner Ishimaru noted, 21 years ago we made a promise to millions of workers with disabilities in this country that they would be judged solely on their ability to do the job just like anyone else. The ADA regulations and the law represent our commitment to keeping that vital promise.

Thank you all for being with us today. I look forward to your testimony. And Madam Chair, I yield back my time.


And I want to say to all of our panelists, you've heard from each of us and I suspect you will hear throughout the day how much we do appreciate you being with us and taking the time to prepare for and to appear in front of the Commission today. It's a valuable service.

I want to go over the ground rules very briefly. Each panelist will have up to 10 minutes to present oral testimony. Your written testimony will be posted in full on our website. You don't have to review the written testimony verbatim. It will be made available to everyone through our website.

We'll be using our timing lights, which are right here. And the yellow light will go on to give you the one-minute warning, and then the red light will come on when the time expires.

And as you may know we have 10, I believe, panelists today. So it's an aggressive and ambitious agenda, and we will definitely need to use the timing lights in order to hear from everyone and hear fully from everyone. So with that preface, I will turn now to Panel 1, which is seated.

And the first panel consists of Sharon Lewis, Commissioner of the Administration on Developmental Disabilities for the U.S. Department of Health and Human Services; Dr. William Kiernan, Director of the Institute for Community Inclusion; Dr. Gary Bond, Professor of Psychiatry, Dartmouth Psychiatric Research Center; and Ruby Moore, Executive Director of the Georgia Advocacy Office.

We'll begin with Commissioner Lewis.

MS. LEWIS: Thank you very much Madam Chair and distinguished Commissioners. And thank you for the opportunity to join you today in this important hearing and to talk to you a little bit about individuals with intellectual disabilities, some strategies around supportive and integrated employment outcomes for this population; and how the service system is really supporting the goals of the ADA in achieving access to employment opportunities for individuals with intellectual and developmental disabilities.

As you mentioned, Commissioner Feldblum, for all of us, employment is a critical component of community living. It's more than a job. Work is not only the means to economic self-sufficiency; it is also important, especially for individuals with intellectual and developmental disabilities, for many other reasons: to contribute to their communities, to build a network of social relationships, and to create opportunities for lifelong learning.

Multiple studies indicate that self-determination status is a predictor of quality of life, especially for individuals with mental disabilities, and is positively correlated with improved employment, independent living, and community inclusion outcomes.

Beyond the opportunity to earn wages, other benefits of integrated employment includes expanded social relationships, higher job satisfaction, improved self-worth, transferable work skills, and increased self-determination.

When I think about the success stories for individuals with intellectual disabilities and people whom others might consider to be unemployable due to the significance of their disabilities; I think of my friend Andy Owens in Oregon. One way to describe Andy is based upon his disability. Andy is nonverbal, he experiences severe cerebral palsy and a significant intellectual disability. He has limited use of his extremities and he uses a power wheelchair. However, Andy would prefer to be described in terms of his professional career. Since completing high school, Andy has worked at a large independent bookstore managing the inventory process using assistive technology. He uses a head switch to operate the scanning equipment and an augmentative communication device to communicate with his peers; supports which were developed and funded by transition services, vocational rehabilitation assistive technology experts, and his family. He has been in this job for 10 years now and now earns over $11 an hour, pays taxes, and is a respected contributor to his organization. He is held to the same productivity standards as his colleagues. He is well liked, appreciated by his colleagues, receives positive performance reviews; and most importantly, he loves his job, he sees it as a career. His boss says, "Powell's wants good employees who want to work hard and Andy does a good job."

Andy's success can be attributed to several factors, including his own self-determination and desire to have a job despite low expectations of the school system from which he completed high school; a supportive family; hard work; flexible and coordinated supports; and critically, a welcoming employer who sees the benefit of hiring a hardworking, loyal employee who will stay with the firm for an extended period of time. Unfortunately, Andy's success is part of a small minority. One study of recent high school graduates with intellectual and developmental disabilities, indicated only about 14 percent were earning at least minimum wage. And, one to four years after high school, youth with intellectual disabilities demonstrate the lowest rate of paid employment among students with disabilities.

Recently the Administration on Developmental Disabilities held a series of listening sessions across the country asking the community for input. Among the issues identified, access to integrated, competitive employment for people with intellectual disabilities was repeatedly cited. In particular, stakeholders identified the establishment of what we call, Employment First Policy and strategies, as one of the top goals that the Administration on Developmental Disabilities should pursue and support.

Employment First is an approach that is underway in many states that focuses upon integrated, community-based employment as the first priority option for the service system for individuals with intellectual and developmental disabilities. The presumption is that integrated employment at competitive wages should be the expectation of training and employment services. These services are primarily funded by state intellectual/developmental disability agencies through Medicaid waivers and through vocational rehabilitation agencies.

States that have adopted an Employment First approach, ensure that these agencies -- VR, home and community-based service providers, and the educational service systems -- work together in developing strategies across programs so that individuals with intellectual disabilities are supported to access integrated, community-based employment opportunities. These states are working towards meeting the employer needs for reliable, loyal, and productive workers through the provision of services that support these individuals to successfully perform job responsibilities consistent with their identified strengths in community settings for competitive wages.

Forward-thinking service providers also look to target growth sectors in the development of training and employment services with an understanding of the employment marketplace, and opportunities to match employees and employers based on the individual's strengths and the employer's needs.

Support for access to integrated employment services varies tremendously across the states. State ID/DD agencies report that currently only 22 percent of their clients participate in integrated employment.

Medicaid is the largest federal source of funding for home and community-based services, and state ID/DD agencies are the primary source for day and employment services and supported employment through Medicaid waivers.

Among the most important factors influencing employment outcomes is the approach of these state agencies, which play a critical role in determining the direction of the Medicaid investments.

Successful strategies include flexibility in waiver funding, data collection focused on integrated employment and creating those incentives and those rewards, and innovative practices and training. Beyond the priorities of the state agencies, another important influence on employment outcomes is the approach of the community rehabilitation providers, the CRPs, who are the primary source of day and employment services in most states.

Currently, only 26 percent of individuals who are served by CRPs are working in integrated employment.

CHAIR BERRIEN: Ms. Lewis, could you wrap up?


Repeatedly, the biggest barrier I hear described by individuals with intellectual disabilities and their families, are related to low expectations and a lack of understanding among both service providers and employers. However, the next generation of youth are clear in their desire to work. According to one study, 96 percent of transition age youth with disabilities believe that they will work as adults.

We need to honor and support that desire and ensure those opportunities exist.

Thank you.

CHAIR BERRIEN: Thank you so much. And there will be opportunities in the question and answer period as well.

Dr. Kiernan?

DR. KIERNAN: Thank you Madam Chair and Commissioners.

I really want to thank each of you as well for keeping employment as a focus, because it is critical and we are not there yet. We can do better. Just as Commissioner Lewis had suggested that the employment rates for persons with disabilities are low. And as the data showed in my report to you, those numbers are low. The consequence of not being employed is poverty. Forty-two percent of persons with intellectual disabilities live below poverty.

I'd like to summarize a few points around the four questions that you asked since I think that will frame a little bit of the story.

Some of the data that I present to you are from different sources. So there are little variations in those but I think they tell a picture of what in fact we need to do.

If we looked at the overall issues of the changes in the labor market, not all is gloom and doom. While we have a 9 percent unemployment rate; the Federal Reserve and the Bank of Boston noted that in fact, there were 10 percent more workers than there were jobs in 2010. They forecast that there'll be 15 percent more jobs than there are workers in 2018. So we're heading for a shortage that most employers will tell you they're quite well aware of.

When do we get ready to address this? Now. 2018 is around the corner for youth who are transitioning from school into adult life. Additionally, when we look at the types of jobs that are available, there are a number of jobs that in fact are jobs that allow for persons who have limited employment experience to enter the labor market.

Just as Commissioner Feldblum had mentioned Bob Williams' comment, a job is not necessarily another rung in the poverty ladder. A job is an ability to get out of poverty and to become independent. A job is also a multiple series of engages in the workplace. It's not one job, one place, one time, forever.

I'll just add a couple of other items when we look at the labor market. One of the allies for us in the future for the employment of persons with disabilities will be, me and you, as we age; some of us a little more gracefully than others. My kids would say I don't do it very gracefully at all. But the reality is that the largest of the labor market segment is going to be older workers. Older workers acquire limitations through the normal aging process. Employers day in and day out make modifications to keep the productive older worker. They create what in fact Commissioner Feldblum had noted in a prior report, the issues of flexible arrangements in the workplace. That allows us to create opportunities to support individuals who may have some limitations who frankly, as we describe them at age 65, and we were to put those into a 35-year-old body; we would say they're a disability. At 65 we say they're a health condition, yet they impact people in the same way. So that the accommodations that we make are more similar than dissimilar to the groups who are going to be the largest workforce, which is the older worker. Workers with disabilities who are underrepresented generally in the labor market -- and frankly, the growth in the New England region was the immigrant worker, the recently arriving immigrant worker -- the accommodations are much more similar than dissimilar.

Let me just raise a couple of questions about the barriers to employment, and then a few suggestions of what I think employers might consider in what we might consider is a reasonable role for employers in order to change this around and frankly for them to meet their labor market needs in the future.

That if we looked at employers' perspectives, there clearly are some perspectives that employers have about that they don't really know the difference between persons with mental illness and mental retardation. And frankly, maybe they shouldn't. But they should know whether a person can be well-matched to their job and produce, and what are the supports that are necessary for us to offer those individuals a way to become a productive worker; not a label, but a productive worker.

There are some employers who do have perceptions about disabilities and conditions that in fact you and your efforts have really called to task on, and we will have to continue to do that. But there are other employers that we can reward and recognize for the contributions that they have made.

From the standpoint of some of the other barriers to employment, there are two that I'll just highlight. One is the inadequate ability for us to clearly identify where the jobs are and how we support people in the workplace. We don't really have the trained staff who can adequately support individuals who say, "I want to go to work."

And the second piece is that there is a lot of tension in families, particularly in the world of persons with intellectual disabilities, where there's a concern of two parents working and somebody going out to work and being employed 15 hours a week, and what do we do with the balance of the time. We have not figured out a good answer to parents for that. And what are the opportunities and the ways of supporting people who may not work full-time but certainly can work and engage in the workplace.

The issues of safety come up as issues. And clearly the safety comes up in issues in my case when I think of my kids, who don't happen to have disabilities and sometimes make some decisions that I would question. But the fact of the matter is I do get concerned about that as a parent.

Let me raise a couple more points for you, and that's the desire to work, and Commissioner Lewis had mentioned that. The students who are coming out of the fully inclusive educational school experiences are fully expecting to go to work. We've got a promise to deliver on that and it's time for us to step forward and do it.

In addition, one other study showed that 63 percent of the persons who are working in community rehab providers in one state when asked are they expecting to go and work somewhere outside of the workshop, they said yes. Yet 88 percent of the staff who work in programs, expect that in fact it's going to be necessary to have these programs forever. So we've got a bit of a disconnect between our expectations and what the wishes are of persons with disabilities as they're coming up the line.

The last element that I'll share with you is a couple of areas of future opportunities for employers. I think employers in using their natural supports at the workplace are terrific places to offer training. I think there are some employers who are doing outstanding jobs in providing training. Not necessarily with people with disabilities, but they could certainly expand their training programs to include persons with disabilities in the workplace. They are a training resource, a natural training resource. What better place to learn how to work than in the real workplace? So we can engage workers, and in fact we can engage them currently in the systems that we have available to us.

The second area that I'll mention is, the thing that we hear oftentimes from an employer is, "I will hire persons with disabilities but I can't find them." I don't whether you've ever heard that but I suspect you have. And the reality of that is the fact that we have a problem in job development and job finding. We don't know how to find those jobs. There is technology that's out now that looks at sorting jobs by knowledge skills and abilities, and matching people's resumes to KSAs -- knowledge, skills, and abilities -- and cutting down the job development process so we can make a much quicker match. Just like you do when in fact you have to find a Target or whatever store it is, a Giant store, in the nearest area, and you search for those and they come up on the Web. We can do the same thing in technology with searching for jobs that would match people on knowledge, skills, and abilities, not job titles; they tell us little.

And then the last piece that I'll just mention is that one of the barriers in employment is referred to as transportation, can't get there from here. Well, with the technology that exists today and the nature of the work that we have available, we can move work to places quite easily. We don't use the technology as much as we can but we can certainly have work areas that in fact people engage in and we can send work to people. We can create, conceivably, work units where people get together and work, and they have flexible schedules. Remember that flexible issue; that's the driver in a lot of this. They can really work and be productive in those sorts of environments.

And then the last piece that I'll suggest to you is that one of the things that I think is a relatively interesting and maybe simple fix; and that's the Executive Order that the President issued about employing persons with disabilities at the federal government. What about extending that to expecting that employers and companies that contract with the federal government have an equal commitment, and create opportunities for persons with disabilities, who live off the workload and the scope of work that is issued by the federal government, having an investment in hiring persons with disabilities? I will defer to you as to what are the carrots and sticks that you ought to have in place to do that, but it may not be a bad strategy.

Our issue is really that in fact, 71.9 percent of the general population are in the workforce; 23 percent of the population of persons with intellectual disabilities are in the workforce. I will feel we have done our job when we have in the general workforce, the same labor force participation rate for all groups, whether it's people with disabilities, people in different cultures and communities, or what. That's the goal to have.

Thank you.

CHAIR BERRIEN: Thank you Dr. Kiernan.

I turn to Dr. Bond.

DR. BOND: Madam Chair and distinguished Commissioners, thank you very much for inviting me today.

I've been doing research on employment services for people with serious mental illness for 30 years and my testimony concerns that group. And what I am going to talk about is first starting with what do we mean by serious mental illness. I'll talk a little bit about the employment statistics, how many people are working now, what are some of the barriers, what are the strategies for overcoming those barriers.

So to start off with, a serious mental illness is defined by three criteria: diagnosis, and the diagnoses would include schizophrenia, affective disorders, and any of the major psychiatric disorders; disability, by that we mean impairment in areas of living such as working, activities of daily living; and duration is the third criterion, which refers to having involvement in the mental health system over a period of time.

People with serious mental illness comprise 3 percent of the population. They're one of the largest groups receiving Social Security disability payments, and so they're a major portion of the disability community. And they're a very heterogeneous group. You can't characterize them in any single way. We have Nobel Prize winners, we have famous artists, we have successful legislators, and we have people who live in poverty, and who are isolated and live very empty lives.

So the main point that I want to make out of my testimony is that the current employment situation is very discouraging in terms of the employment rate for this group, but we have the technology. We have a method and methods to help this group to have employment rates that are very excellent.

In terms of the employment rates for people who are receiving community treatment, there are numerous surveys that typically show rates under 15 percent. If you look at people who have been released from psychiatric hospitals and you follow them up for six months through a year later, the rate is about 5 percent. You look at community samples, people who are not in treatment, the rate's a little bit higher, maybe 20 percent. The rate is very low. And we can compare this to people with other disabilities and the general population but it's pretty obvious that this is a very low rate.

If you interview people with serious mental illness and ask if you would like to work, the rate is 70 percent, in that range. And the rate is probably higher depending on the circumstances that a person's in. If a person is in a mental health center where the staff discourage them, say that, "You're not really ready for work," then, if they don't see the opportunity for it, the rate's going to be even lower. So, a big gap between the percentage who want to work and those who are actually working.

So, what are the barriers to getting and keeping jobs? Well, in one interview asking people with mental illness what they saw as the barriers, the four that came to the top Number 1, were: attitudes, stigma and discrimination against them; fear of losing benefits was a very salient barrier; inadequate treatment; and last, have access to vocational services. Those were the four that were the most common.

In terms of attitudinal barriers, there have been lots of surveys done of attitudes towards mental illness. And one that really sticks out in my mind was one that asked the general public how comfortable you'd feel with somebody with mental illness. And only 20 percent said that they'd be very comfortable, compared to triple that amount for other disabilities. In most surveys they come out very low in terms of hierarchy of acceptability.

And there have been many studies that looked at hiring practice of employers and coworker attitudes that bear this out, the way that discrimination and negative attitudes show up in day-to-day life, in housing as well as in just ordinary daily living.

I might touch on one of the attitudinal barriers that comes up a lot in discussing mental illness. That is the fear that people with mental illness are violent. And the news stories that come out from time to time, the Giffords incident among many others, really bring this to the mind of people in the public that there's a connection here.

If you actually look at epidemiological studies, it turns out that people with severe mental illness who do not have a substance abuse problem, are no more likely to be violent than the rest of the public. And in fact, people who are working -- that seems to be a protective factor -- they actually have less tendency for aggressive behavior. So the findings are that that's not a barrier to employment if properly understood with the right education.

In terms of fear of losing Social Security benefits and losing Medicaid, there's a lot of misinformation. There's one survey that found that 85 percent of the respondents thought that they'd lose their benefits if they went to work. And so that actually is a very solvable problem through good benefits counseling.

Certainly the kinds of services we provide in mental health centers are critical to making this work. And in many states day treatment programs are prominent in terms of the services provided. Day treatment has no bearing on people gaining employment. It's an ineffective treatment. It is widely practiced because Medicaid pays for it and because professionals have experience providing these services.

It's also kind of interesting to find out that the accommodations, if somebody is working, what kind of accommodations they need. For someone with a psychiatric disability, the accommodations are usually pretty inexpensive compared to architectural accommodations, for example. And yet this is a group that has the least accommodations in the workplace. Probably because of the nature of the limitations, they are not visible. And sometimes people with mental illness don't disclose in the workplace, which is a further reason.

So let me move on now and talk about some of the strategies. One of the main strategies for overcoming barriers to employment is provision of effective programs. And at Dartmouth, where I'm employed, we've been studying an evidence-based supported employment approach that is very commonsensical. It involves helping people identify what they'd like to do, going out and finding an employer who needs an employee that matches with what the person is interested in. It's a rapid job search approach not involving a lot of pre-vocational training. It is an ongoing support approach and it's, as I say, working with employers. And the point is that we've been studying this for 15 years; there are now 15 rigorous experimental studies, all of which have shown double or triple the competitive employment rate for people enrolled in these programs. The overall rate of employment for people who enroll in these programs is about 70 percent, which compares to the 15 percent I mentioned earlier. Importantly, if you look at the long-term career of people in these programs, about half of them become steady workers over a 10-year period. We have two long-term studies that have looked at this that show that it is not a short-term outcome but something that can be sustained over a lifetime.

I'd echo what the other speakers have said about the benefits of employment are just really tremendous in terms of self-image, in terms of quality of life, and in terms of control of symptoms.

So in terms of what an employer can do, it would include some commonsense practices in terms of evaluating people as individuals and not responding to stereotypes.

So I see that I'm out of my time so I will stop here.

CHAIR BERRIEN: Thank you very much, Dr.

And now, Ms. Moore.

MS. MOORE: Good afternoon, Commissioners and General Counsel. And thank you so much for giving me the opportunity to testify today. Employment of people with disabilities is very near and dear to my heart. I have generations of family members with psychiatric disabilities who have successfully worked in highly competitive careers across many employment sectors. Professionally I have about 35 years in the disability field, most of which I've spent helping people to get jobs who were accused of being unemployable because of their type or level of disability who have successfully made contributions in real jobs for real pay.

In these contexts I've had the opportunity to work with literally hundreds of employers, HR directors, coworkers, diversity teams, lots of people with disabilities. And I've come to understand that virtually everybody with a disability can work if we go about it talking about some of the things that my colleagues here have talked about, which is paying attention to what people's real gifts are and their interests and skills, as well as the needs of the employer.

One of the biggest obstacles to employment is the consciously and unconsciously held beliefs about people with intellectual and psychiatric disabilities. And I've come to realize after decades of doing this that one of the problems is that often people have a hard time imagining a person with a significant impact of their disability actually becoming employed and having a career. And so one thing, I've brought you a book of vignettes. And it was really a struggle to do this. There was literally thousands of stories and we just picked a few from Georgia over the last couple of years or two. And really, honestly we have stories of people working across every business sector at every type and level of disability, including mental disabilities, which you're interested in hearing about today, in jobs ranging from anything from processing fish to pouring champagne in a gem gallery, to building computer cable harnesses, to becoming assistant head coaches, to published authors, to world-renowned artists. And it does involve support. And it involves some technology that we've figured out, but it's not necessarily expensive technology. One of the things we're doing today is myth busting. And Chai, please forgive me, because you probably know all of this. You've been trying to teach people this for 20 years.

I've had the experience of helping lots of people to get jobs. And from that experience, particularly for people with mental disabilities, I realized that for a person with a psychiatric disability; sometimes it's as simple as a flexible schedule required so that the person could go to their therapist, or go to their doctors appointments, or deal with some of the effects of trauma that they may have experienced. And just kind of looking ahead while we're talking about people with mental disabilities, obviously we have lots of people returning from Iraq now. And certainly we have a whole generation of Vietnam vets; I won't even get into that. But people coming back with post-traumatic stress disorder and the effects of trauma who absolutely expect to, and should expect to, rejoin the workforce.

I'm reminded of a woman who works in an oil refinery in the Gulf Coast. And because of the effects of her trauma, she needs to have a flexible work schedule, and sometimes a few times a week, be able to leave her job for doctors appointments or dealing with the effects of her trauma. But because she's so good at her job and the employer's needs are being met, the workplace flexibility issue is just not that big of a deal.

One challenge though is psychiatric disabilities sometimes generate particular fears about unknown risks. And job applicants often run into the trouble here right at the front gate. If there are gaps in their employment history that kinda show up on their resume, the employer may be viewing their decision from the front end as saying, "Do I want to take the risk of hiring a person with a mental illness?" Once it's been framed in that way, the struggle becomes for the employer thinking about risk management as opposed to saying, "What contribution can this person make to meet the unmet needs of my company?" So where you really have the opportunity for headache relief, the discussion becomes, "Am I taking on a headache?"

Perhaps the most important thing to realize is that the difficulties that people present are less about the person with the disability and more about the organizational culture of the business, their management skills, and their orientation to human resources and personnel development. Good management skills and a commitment to focusing on real personnel needs often can prevent many unnecessary barriers.

I've been an employer of people with disabilities for over 25 years and I've worked with hundreds of employers. And I know that the challenges that employers face in accommodating people can often be easily and creatively addressed.

The first step is recognizing that for optimal performance in the workplace, employers need to enhance employee performance through a variety accommodations, and not just for people with disabilities. It's a commitment to developing your workforce. Employers who are less committed to workforce development and workplace flexibility, not only have more trouble in accommodating people with disabilities, but often have trouble with job retention issues of their non-disabled workforce.

There are exemplary employers though who have made this commitment and companies that have created environments of flexibility and accommodation that have been very successful. I'll give you some examples: Hewlett-Packard, Boeing, Tektronix, Physio-Control, and United Technologies have all restructured their work environments and orientation and training practices to accommodate people with significant sensory and cognitive impairments. Pizza Hut changed their recruitment, orientation, mentoring, and team-building practices, resulting in over 35,000 jobs for people with disabilities, and also reducing the costs associated with high turnover and low job retention. Starbucks created flexible work hours. They were originally thinking about working moms returning to the workforce, but they've also used that now to accommodate people with disabilities. We've learned a lot from Ben and Jerry's. Perhaps they're the gold standard for paying attention to their employees' well-being and creating a culture for positive and participatory solutions to the entire workforce, including people with disabilities. And Marriott Corporation has sponsored some very important projects around accommodating people with psychiatric disabilities that have benefitted the entire workforce.

People have to be qualified to do the job, but there are lots of qualified people with mental disabilities who are out there. The pivotal point is how the person is viewed when they come to apply for the job. If the environment needs to be changed a little bit for the person to be successful, is the employer willing to consider changing the job description or altering the environment a bit for that person to be productive? Sometimes that involves the person being able to recognize that the person with a disability has skills that meet an unmet need at that company. Sometimes the required adaptation means changing the job description itself. I think Bill was talking about looking at not just knowledge, skills, and abilities that are needed in order to do the job and doing a job match, but also looking at what are the unmet needs of this company that might not be characterized in that job description as it currently exists.

I've been an employer for 25 years. At present 78 percent of my employees have disabilities. We have a wide range of folks with all kinds of disabilities -- a lot of people with psychiatric disabilities at every level of the organization. I have a phenomenal group of employees. I did not hire them out of charity. I hired them because they're the best and most qualified people that I could find, and I'm a bear about finding qualified people.

One of the things I've learned is that in making accommodations for each of my employees who happens to have a disability, we've created a better workforce for everybody. I'm not just saying that because I'm a champion for people with disabilities. I'll give you some examples.

In accommodating an employee who is deaf who requires CART transcription services, we've made it easier for people with attention deficits and cognitive disabilities to also participate in staff meetings and other training events. And I might add, the young Millennials who are addicted to their little screens, pay more attention when we've got the CART transcription on the wall saying what are we talking about; it's not the thing on your phone.

In accommodating people with psychiatric disabilities, we've become a lot better prepared to accommodate maternity and paternity leave. Those accommodations that would be covered by the Family and Medical Leave Act, and other needed flexibilities in work schedules that employees with and without disabilities need in order to balance home and work life, and sometimes school and other things.

Our commitment to workforce development and workplace flexibility has led to changing the way we do performance reviews, the redesign of our job descriptions, a different approach to team building, job sharing, and succession planning. We have extremely low turnover -- I'm finishing -- high customer satisfaction, and a highly productive workforce.

And I'll just wrap it up by saying I'm 100 percent sure that the investment we've made in our workforce, including lots of people with disabilities, has been returned to our company at least 10-fold.

Thank you.

CHAIR BERRIEN: Thanks to the entire panel and thank you for working within the time constraints.

We're going to turn now for questions and comments from the Commissioners, beginning with Commissioner Ishimaru.

COMMISSIONER ISHIMARU: Great, thank you, Madam Chair.

I am struck by how things have changed over time. And how, now there's a body of evidence and studies that have been developed over time; it's no longer that it's take a chance. We have studies that show that people with both intellectual disabilities and psychiatric disabilities can perform well in the workplace in the right setting. And I think especially when you go to the questions of fears and stereotypes that people have of what people can do. And I think the studies that Dr. Bond, especially in his testimony, talked about I found very informative and very helpful.

I have a lot of questions and I know we don't have much time.

I guess my overriding question is, how do we go beyond the charity model? How do we educate employers to say, "Folks who have mental disabilities will be good workers for you just like all your workers or your hope for all your workers?" How do we get that point across? And it shouldn't be because someone has a specific interest in disability because they have a person with a disability in their family or they have a close friend who may have a disability. How do we get beyond people just doing good but doing it for their business purposes?

From anyone, maybe Ms. Moore, because you employ people.

MS. MOORE: I think a piece of that is something that you could be involved in or are involved in, and that's education and advocacy, continued education and advocacy around what's possible. I personally want to do a national YouTube tour -- I'm sure my board will be thrilled -- to have literally videos of people working across the country; because even states who aren't very good at this, have examples of people working in cool jobs who have very significant disabilities. So I think the piece is education and advocacy.

I think one of the things we learned from -- when the ADA was signed into law, we actually saw a drop in employment rates for people with disabilities. We all have theories about that. I think Dr. Bond covered a lot of what the fears were on the part of the person, on the part of the employer.

But another piece is -- I'm sure we have HR people in the background, so you don't have to rush me out of town here. But I think there's a piece where HR folks have been taught some fear of liability. And so from that perspective, may not use some of their talents that they were taught when they came into this as a career, to help figure out what are the needs of this company and how do we recruit, and support, and retain people. And there are all kinds of not only relatively simple solutions that don't cost a lot of money in terms of accommodating people; but there are also places to go to to say, "How have other employers addressed this?" When I lived in Massachusetts, back when Bill and I used to work together, we had what we called the Massachusetts Corporate Partnership Program. And it was early on in the supported employment days. And there were a lot of employers who were kind of afraid to try something that sounded like, "This is not for us," you know. And we had employers talking to other employers, and thank God they also came and talked to the legislature so we got funding. But, I think that we need to help human resource managers to also understand that they could be a little more assertive in terms of researching the possibilities, going to some of the work that Chai and other people have done around workplace flexibility. And we've got the Office of Disability Employment Policy, the National Disability Rights Network. There's lots of places to turn.

COMMISSIONER ISHIMARU: Could I sneak in a question for Dr. Bond before my time runs out?

Are there studies out there that show a difference of people who develop psychiatric impairments on the job, when they're in the workplace and they develop a psychiatric impairment; are they treated better than someone coming into the workforce having a psychiatric disability? Do you understand what I'm saying? That someone's on the job, they show no manifestation of a psychiatric impairment, they develop it later in life. Does the employer treat them better? Are there any studies that show that?

DR. BOND: None are popping into my mind right now, but I think tagging on what Bill was saying about employers who know an individual, respond to that person on those grounds rather than a label. So I think that's one big difference.


DR. KIERNAN: I wonder whether I could just add one quick comment to your question about how to change employers and how to engage them more. And I think there's two or three different levels of activity that are going on. One is the youth who are coming from the school programs have a very different experience and a different set of expectations. And we need to encourage that and not discourage it at the time of graduation. And Commissioner Lewis was talking about the post-secondary opportunities for students with intellectual disabilities are showing great promise, albeit they're very early on.

The other piece of it is that the accommodations that I think Dr. Bond had mentioned and you were alluding to, that workers naturally make in the workplace have broad application. If we can convince employers that the accommodations they make for persons with disabilities are for the benefit of everybody and not a special deal; then one is we demystify the process, the other is we don't single out the person with a disability as being a special case; they're like every other worker.

COMMISSIONER ISHIMARU: Thank you very much.

Thank you Madam Chair.


Commissioner Barker?

COMMISSIONER BARKER: I guess my question would be for Commissioner Lewis, maybe Dr. Kiernan, or whoever, but Commissioner Lewis, I'm particularly impressed with where you have been in your career and the fact that you were with the Senate Health Committee, the House Ed and Labor Committee, so you've got a lot of experience with the federal government. And I'm wondering since the federal government should be the exemplar of hiring persons with disabilities, and certainly persons with intellectual disabilities; do you have any sense of how we do, how the federal government does?

MS. LEWIS: Well it's not my area of expertise, but I can tell you that under President Obama's leadership, as we all know, we have a significant initiative to improve the hiring of individuals with disabilities across the federal government, including individuals with intellectual and psychiatric disabilities. I know that within HHS we're currently ramping up in terms of the data collection and understanding, how we are doing all the way down through our departments and really putting a laser focus on this. And what we do know from the field and Dr. Kiernan's work, is that when we collect data, we pay attention. When we know what our numbers look like, our numbers go up. I can tell you that within the administration on developmental disabilities, 75 percent of the hires that we've done since I've arrived have been individuals with disabilities, including involving -- there is a phenomenal project that I actually mention in my written testimony, called Project SEARCH that is a demonstrated evidence-based practice around bringing individuals with intellectual disabilities into the workforce, the youth. And we, across the federal government, are implementing that program at the Department of Education, the Department of Labor, and the Department of Health and Human Services in order to bring youth with intellectual disabilities into the workforce.

COMMISSIONER BARKER: Dr. Kiernan, do you have anything to add to that?

DR. KIERNAN: Commissioner Barker, I would say that we all can do better, that everybody can do better. And is the federal government at the place of saying that, yes, we can relax and we've done our job? No. Can I say that? No. I suspect even in Ruby's case she could say she could do better. I wouldn't put words into Ruby's mouth, but…

MS. MOORE: There's still 22 percent left.

DR. KIERNAN: I think the issue that you raise is that the federal government can be an exemplary resource. And former Commissioner Griffin is certainly leading up an effort that could do that. And your role as advocating for that, which I know you've been doing all the way along, is really a central way of bringing to life the persons with disabilities who acquire disabilities while in the work years or bring a disability from early life into the work age range. We ought to be looking at all of those folks. And we ought to be saying what can we do with regard to engineering jobs. When we can produce the knowledge, skills, and abilities of every single job in the US every single day; we should be able to match people up to those positions.

COMMISSIONER BARKER: Any other panel members?

MS. MOORE: I can put in a plug for workplace flexibility? Because of all the different remedies -- besides raising people's expectations, presenting the rival image of what's possible, having employers talk to each other, and having good support for people; all of those are great strategies, but the workplace flexibility ends up being, I think, the big umbrella for solving the problem. And going back to what Dr. Kiernan said about this is for everybody, we really are finding a changing workforce. The expectations of the American worker today are not for the old drill, the 9:00-5:00, you're sitting in your cubicle, you've got your job description, you adhere to it rigorously. We are way beyond that, and it's not just telecommuting and things like that, but a lot of times when I'm talking to employers about hiring a person with a psychiatric disability, they say, "What if they have to be hospitalized?" I say, "You've never hired a pregnant woman?" "Yes." "Okay. Then you know what to do." So it's helping people to understand, there is just nothing all that special about this.

CHAIR BERRIEN: Thank you, and Commissioner Feldblum?

COMMISSIONER FELDBLUM: Great, well, I actually have the same question for all of you, so I'll just ask it and then just go down, which is, I've read in a number of places and it was in some of your testimony that actually doing supported employment, doing accommodations can end up saving the taxpayer money. You've already heard, I think, it's important for the person. But there are any number of other people who'll say, "Thank you for sharing, but, we've been doing it this way, it seems to have been working." So, from each of your perspectives, why do you think that, if you were just thinking about this from a purely green eyeshades taxpayer form, why would you think that the world should look different than it looks now?

MS. LEWIS: So for individuals with intellectual disabilities, what we know is that, for those who are able to move into the workforce; first and foremost, they go from being individuals who are simply beneficiaries of services to individuals who are paying taxes. And individuals like my friend Andy that I mentioned, move from SSI on to SSDI. They actually become contributors whose benefits are then being paid back out of the contributions that they are making as employees. And, for this population in particular, and I think that Dr. Kiernan can also address this; we often see that the accommodations and the needs in terms of bringing supports into the workplace are front-loaded. That for individuals with intellectual and developmental disabilities, when we use vocational rehabilitation and we bring in supports early on, and there is an opportunity to maintain flexibility and bring supports in on an as-needed basis; often those supports are able to be reduced over time and the amount of resource that is needed can be reduced.

One of the stories that you'll see in my written testimony is around a young man named Patrick from Wisconsin, who the school system, and VR, and Medicaid supported early on in his employment. He is now five years as an employee doing work for a manufacturer in Wisconsin with all-natural supports being provided by peers and managers on the workplace as natural accommodations and a very nominal expense. So I think that we see a reduction in services themselves for some individuals.


DR. KIERNAN: Thank you.

There are some studies, and I think I cited a few of them, from Dr. Cimera that looks at the return on investment for a sample that he traced from 2002 to 2007 who went through the public voc rehab system. And for each individual who was placed in employment, and I hope my memory is correct, it was $1.33 on return on investment. And so there's some clear indications of a return on investment just from the dollar standpoint. But I think the return is probably a lot greater in lots of areas, as we hear people talking about the sense of identity and the sense of relationships. There was a hearing just recently with a young man named David Egen who talked very eloquently about what it was like to have friends at work who teased him in a funny way. And he challenged a very known humorous senator who's in his first term to what he meant by that. He engaged and so this young man was quite interested in telling the story about what he got, which were the softer rewards, probably more valuable to all of us but we call them softer rewards, to that sort of stuff.

The other is that, I think as Commissioner Lewis said, we really look at, and I think Ruby Moore had mentioned, the use of natural supports and getting coworkers -- the more we have interaction of colleagues and coworkers in the workplace; the more likely it is that we get acceptance and conversation and dialogue and we get happier workers.

There are clearly in the health side of the world, there are clearly some studies that show that people who are engaged in employment are lower uses of health services. We haven't done exhaustive studies on that from our perspective. We should look at those and we do on occasion through the Medicaid infrastructure grants.

And then the last element that I would just mention is that -- I mentioned it before and I think you, Commissioner, had mentioned Bob Williams – and the average person is working 15-17 hours a week. We can hardly call that victory. We need to increase the hours in the employment opportunities, but we also need to recognize that there may in fact be some people who will have limitations on the number of hours that they can work. So a hard and fast silver bullet rule is probably a risky thing to do. But it's clear that this is an underemployed population of individuals who are engaged in work now.

But, my final message would be one of saying that I think the concept of case closure is a bankrupt concept. I think that the idea that when a person gets a job you're done your work is incorrect. I think the issue is when a person gets into a job you are beginning your career supports and development. And we need to have flexible ways to support people sometimes on a paid resource, an external system whether it's a job coach, a voc rehab person, or Ruby, or me, or somebody else coming in. And other times it's a coworker and other times it's a very gifted and talented employer or a manager who has read some reports about flexible work assignments, and understands it.

COMMISSIONER FELDBLUM: My time is up so I'm going to yield back and maybe you guys will answer and respond to some other question. Thank you.

CHAIR BERRIEN: Commissioner Lipnic?

COMMISSIONER LIPNIC: Thank you Madam Chair.

First of all, thank you all for your testimony, and Dr. Bond, you said in your testimony that workers with mental health conditions are about one-half as likely to receive accommodations than people with other types of disabilities, so I wonder if you could tell us a little bit about, first of all, how you studied that and arrived at that number, and then my real question is, is that because – and I don't know if this is in your study at all -- people with mental disabilities are less likely to ask for accommodations?

DR. BOND: Well that actually wasn't my study so I'm at a little bit of a disadvantage trying to answer the specifics.

But as I mentioned earlier, I think that it's a combination of things that accounts for a lower percentage of accommodations for people with serious mental illness. One is that many don't disclose because of the stigma, in part. The second is that the nature of psychiatric disability is different than for physical disabilities in terms of the clarity of what the accommodations would be. A lot of the accommodations in terms of giving written instructions for people who have cognitive problems, of arranging the work environment if they're having personal problems. A lot of the accommodations I regard as just good supervision and good practice in an employment situation; but they're not building a ramp, they're not bringing in some new technology.

So that would be my conjecture, that it's a combination of things.

I did really want to answer the cost question, if I could.


DR. BOND: To say that in terms of the economic argument, there is a report that's coming out of Richard Frank's office, over in Health and Human Services looking at the benefits of employment for people with psychiatric disabilities. And there are two ways in which the economic argument goes.

The first is the long-term benefits in terms of reduction in mental health treatment costs. My colleague, Phil Bush at Dartmouth, has a 10-year follow-up study in which the savings are something like $50,000 a year for high users of services if they're employed compared to those that aren't employed. And as I mentioned earlier, that other research shows that people who start down this path of working, develop -- about half of them develop a pattern of becoming steady workers. So if you marry those two facts together there is a real opportunity if more people can enter the workforce to reduce the use of day treatment, inpatient hospitalization, emergency rooms, health care costs.

The second area of savings is for young adults before they develop a disability. We believe that if we can intervene early -- and the employment rate for this group, for people experiencing early psychosis, the employment rate or going back to school, is 90 percent. And so, if we can prevent the socialization into disability, they don't start off on SSI/SSDI in the first place; once they're on SSDI, it's difficult to get off.

So, I'm sorry to jump in.

COMMISSIONER LIPNIC: No, no, no. By all means.

Just to go back to my question about accommodations, and actually, Dr. Kiernan, because I thought I heard you say that the accommodations are much more similar than dissimilar?


COMMISSIONER LIPNIC: And so I wonder if you could sort of expound on that a little bit?

DR. KIERNAN: Sure. Let me use me an example. If my colleague, Dr. Bond here, came in and said, "Okay, Kiernan, I want you to do these 10 things." When I was much younger I would remember all 10 things, now I would remember three. I would have a close approximation of what the other three were, and I would have completely lost the other four.

If he handed me --

COMMISSIONER LIPNIC: And is that within the first 10 seconds, an hour later?

DR. KIERNAN: My kids would say in the first two seconds.

But if in fact he handed me the materials, or sent me an email, or put it in writing; or in fact if I wasn't really fluent in the language, as I was in Italy at one point, pictures. So I'm matching to sample and I'm letter identifying, there's many ways that I can use those that would accommodate a different workforce. The Walgreen's was an example where in fact that they converted much of their major distribution center to screens with pictures on them so that people could use the pictures seen, and it reduced considerably the error rate. These were accommodations that were made not because of people with disabilities; they were made for increasing productivity, that accommodated in some ways and fit in nicely with some of the skills that certain persons with disabilities entered the workplace with.

COMMISSIONER LIPNIC: I do have one other question but, my time is

CHAIR BERRIEN: Well, I want to make sure, Ms. Moore, that you have an opportunity, if you want, to answer the question about the cost benefit analysis.

MS. MOORE: Okay. Well, a good bit of it got covered, but since you've cited Cimera's study, I will say that for the 400,000 people with disabilities who are currently in segregated prevocational readiness programs; when you apply the cost benefit data from Cimera's study; $1.5 billion would be saved if we invested in supported employment instead of the segregated settings.

The other green part of this, since we've been talking about the benefit directly to people with disabilities, the other side of that of course is the employers.

And I'll just give one example of that I had a hand in. When Pizza Hut came to us to consult to them, it wasn't around disability issues. They asked us to help them with their management of their company and their personnel issues and establish a mentoring program. Their problem they thought was one of job recruitment. Their real problem -- so they came to us and said, "Can you help us with five percent of our job recruitment? Because we're having roughly 285 percent turnover in every one of our positions in our best situations." So you can imagine in your own workforce if every single one of the positions turned over at least three times a year; what it would take to try to recruit, train, orient, hold onto any kind of culture in your organization. It was out the roof.

What we found was it was not a great place to work. So we worked with them around what it would take to recruit people with significant disabilities in the process of saying, "What would we have to do to kind of settle down things and make this a place that didn't feel like churn and burn." And I have great respect for Pizza Hut, by the way, but, in order to do that, for people with disabilities to be able to have a stable work environment where they could do the job productively and be part of the team; we helped Pizza Hut to not only recruit 35,000 employees who wanted to work there, but they changed the way they went about supporting their entire workforce and their teams to reduce the cost of that constant turnover.

CHAIR BERRIEN: Ms. Moore, I'd like to ask you one other question. Some of the examples you've cited, a number of the employers you've cited are very large companies. One of the questions and perhaps challenges that some employers might face is that they are smaller businesses. If you or anyone on the panel could speak a bit about how accommodations are provided or what recommendations you have about providing accommodations for smaller businesses?

MS. MOORE: I'll start and then probably all of us have something to say about that. The largest growth industries have been in the smaller places of employment, and so I actually have a lot of experience doing that. The great news is there, it's much easier to kind of get your hands around the culture of the organization and what would work in a smaller environment. People are also more likely -- what we've found, is it tends to have more of a kind of family feel to it, like, "We're a small team of people, what will work here?" And the key is to say what are the unmet needs of this place of employment, what's the culture of this place of employment, and what would work with supporting this individual within that context. When we use the gifts and talents of the people that have disabilities but also have talents and we meet the unmet need of the employer; those solutions around accommodations are generally fairly simple to figure out. And that's even to the extent of -- I remember a situation where we had a young woman who had Prader-Willi Syndrome. And for those of you who may not be familiar with that, it's a neurological disorder that it feels like you're starving to death all the time. And so there's a real problem with people literally eating themselves to death. And we helped this woman get a job in a small mom-and-pop organization. It was a place that laundered linens for hotels and so it was kind of a high-end laundering business. Anyway it was a family operation. They didn't have a lot of money for making outrageous accommodations, something beyond a reasonable accommodation. The human services system wanted to have a paid food guard with her to make sure that she didn't eat. So their solution was, "We'll pay a junior mental health coordinator to stand by your side and watch you work and make sure you don't eat." That would have been really expensive, and the employer would not have been up for doing that or able to do that. It was because it was the wrong solution. It was like the wrong person doing the wrong thing in the wrong way. But when they watched the food guard watching her do her job to keep her safe, they said, "Why -- what's that guy -- we love her, we love Sherri, but who's that guy who comes and just, you know -- that goon? Is that where my tax dollars are going; we're paying him to just sit here and watch her work?" So they basically said, "We can watch her work. If there's something special we need to know about this, let us know." But you didn't need to be a junior mental health coordinator to make sure that she was doing her job. She loved her job so she wasn't making a mad dash down the street to go get pizza. So that's just one example. There's many examples, but it's actually easier with a small employer.

DR. BOND: I'd just add that in looking at statistics from evidence-based supported employment in terms of size of employer or size of the community -- some people think that it's harder to get jobs in rural communities -- we found no pattern at all in that regard.

I think the strategies are different with large corporations and for mom-and-pop stores. But I think it's just what Ruby has said. It's entirely possible in either setting. It's a matter of being innovative and thinking through what needs to be done.

DR. KIERNAN: I think I would agree with the concepts that are presented. It is actually and often times when you're talking to the person who owns the company and is also the person who's in the middle of the work area, it's often times easy to negotiate some changes to look at. Sometimes also there are some jobs where there's just not a good match from the start, and those are non-starters. And those are ones where we have made an error and we need to go back and rethink how we match up the person.

And then the other piece is that sometimes you'll get in the smaller companies or the smaller organizations, the individual who applies for the job is also somebody in the local area and happens to be known in the area. And so it's not infrequent that somebody will know somebody else. And so you'll have the sense of support of the individual as a worker. So really it cuts across very different ways. And I think Dr. Bond did mention that the approaches we would use in the very large companies might be different, although ultimately the approach that's most successful is one person matching up with one coworker and having an opportunity to interact with a group of people.

CHAIR BERRIEN: I want to thank you all very much. I have to police myself now so I want to thank you all very much for this very informative panel.

We are going to take a very brief, very brief 10-minute break in between the two panels. And when we come back we will turn to our second panel. So a brief break, 10 minutes, then come back for the second panel.

Thank you. Thank you so much for being with us.

(Whereupon, a recess was taken.)

CHAIR BERRIEN: We'll now hear from Panel 2, entitled, Requirements of the ADA, Strategies to Comply, and Outcomes for People with Mental Disabilities.

The second panel consists of Samuel Bagenstos, Principal Deputy Assistant Attorney General, US Department of Justice, Civil Rights Division; Jack Eaton, Manager, Giant Supermarket; Tenesha Abbott, employee, Giant Supermarket; and Anupa Iyer, EEOC intern and law student at Seattle University.

Thank you all for being here today.

And we'll begin with Sam Bagenstos.

MR. BAGENSTOS: Thank you.

As the Chair said, I am the Principal Deputy Assistant Attorney General for Civil Rights at the Department of Justice. Among the things I do is lead our disability rights enforcement at the Civil Rights Division, where we enforce, we administer, and we adopt regulations like the EEOC does, but many more regulations unfortunately, to implement the ADA Titles 2 and 3. Those are the parts that prohibit disability-based discrimination by state and local governments and by places of public accommodation. And we also share enforcement responsibility with the EEOC for Title 1 of the ADA, which involves employment. We enforce the statute as against public employers and, as you know, the EEOC against private employers.

I am really pleased that this is a renewed focus for the Commission. The employment rights of people with mental disabilities is an exceptionally important problem. And it's a problem that we have been focusing on as well. In the Department of Justice we have over the past couple of years focused increasingly on a renewed commitment to enforce the Olmstead decision of the Supreme Court to ensure that people with disabilities of all kinds, both mental disabilities and other disabilities, have the opportunity to move out of inappropriate residential settings, institutional settings, and into their communities where they can live the same sort of lives that people without disabilities live. We've been playing our part in that regard to implement President Obama's Community Living Initiative and have moved aggressively to enforce Olmstead.

As you know, the Olmstead Court held that a state violates Title 2 of the ADA when it subjects individuals with disabilities to unnecessary institutionalization. And in this administration we have taken that very seriously. We've investigated, we've brought, we've participated in, and we've negotiated cases on behalf of people with a range of disabilities, physical disabilities, mental illness, developmental disabilities, including cases like our landmark United States v. Georgia settlement in which Ruby Moore, who spoke on the first panel, was a very important partner with us.

Under the agreement that we entered into with the state of Georgia last fall, Georgia will provide services in the community including treatment services, 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. And employment was one of the services that the state agreed to provide as part of the settlement, which was a very important principle for us.

One of our baseline principles in enforcing Olmstead at the Department of Justice is that Olmstead is not just about where people live, but it's about how people live. The harm of unnecessary institutionalization is that it separates people from the community of course, but also that it denies them the opportunities that people without disabilities take for granted. To decide when and what to eat, with whom, to decide whether to go to the movies, what movie to go to, whether to bring a companion or whether to go alone, to decide when to turn one's light out at night. And simply to move someone from an institution to a community-based residence, doesn't integrate that person into the community if she is still denied choice about how to spend her days but instead has to spend them in congregate programs. And we've heard about some of those this morning.

That's why in our Olmstead enforcement we focus not just on whether people with disabilities move to community-based residential settings, but also whether they live meaningful, integrated days. You can see that in some of our recent investigative findings, as well as in our Georgia settlement which, as I've said, commits the state to provide supported employment services, which we've heard about some this morning as well, 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 very nicely with those of the EEOC. We know, as people have spoken earlier today as well, that work is an essential part of full and equal participation in the community. Work commands respect, it represents agency, responsibility, and independence. It's the place where people with and without disabilities can come together, share common projects, and break down the barriers of the stereotypes and prejudice that Commissioner Ishimaru's been talking about a lot today.

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 when they're in the workforce.

Especially after the ADA Amendments Act, which Congress adopted two and a half years ago; Title 1 provides people with mental disabilities robust protections against discrimination, and the new regulations of the Commission are especially important in that regard.

The statute prohibits employers from discriminating against qualified individuals with a disability. And as part of that prohibition; it 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 and interactive process between employer and employee.

An employer is thus forbidden to deny a job based on reflexive stereotypes or assumptions about disability, such as the assumption that a job coach or other kinds of supports necessarily interfere with job functions. And an employer must provide such accommodations as shift changes, flexible schedules, permission to take short breaks during the workday, or employee leave that goes beyond what's ordinarily permitted in order to provide equal opportunity to employees with disabilities.

Title 1 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, as you well know, is a tool that screens out people with disabilities must be job related and consistent with business necessity. So these are essential parts of the tools that you have and that we have as well.

I just want to talk again in closing about the importance of the topic that we're talking about today. Employment discrimination against people with mental disabilities denies individuals the chance to contribute to society and denies them their own place in our broader society.

As we at the Department of Justice work to ensure that people with mental disabilities are no longer unnecessarily institutionalized in the post-Olmstead world, as Commissioner Ishimaru said; 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 and integrated life in the community; and our work to ensure that states provide the relevant supports works hand in hand with your work to ensure that private employers do not discriminate, and these are both essential to reaching that goal.

Thank you very much.

CHAIR BERRIEN: Thank you, Mr. Bagenstos.

We turn to Jack Eaton.

MR. EATON: Good afternoon, Chair Berrien and distinguished Commissioners. My name is Jack Eaton. I am the General Manager of Giant Food in Columbia Heights, NW Washington, DC. We are a retail food establishment. We are part of a chain of 180 stores in Maryland, Virginia, and Washington, DC. We were established in 1936. The first Giant Food Store was actually located about four or five blocks from where my store is now, on Georgia and Park Road.

My store employs about 190-210 associates at any given time. We have a full-time to part-time ratio of 20 percent to 80 percent, 80 percent being part-time.

I began hiring people with disabilities early in my career as an assistant manager in the early 1990s. I had the pleasure and good fortune to work with some very inspired and intelligent store managers. I learned much from them in terms of leadership and developing people's skills. One of the highlights of that learning process was appreciating the benefits of utilizing employment services that promoted the hiring of people with disabilities. Because many people with disabilities have not had the kinds of opportunities that many of us take for granted, many are particularly eager to show what they can do as employees.

I came to understand how much we gained by employing people with disabilities. I enjoyed their positive attitudes, their dedication to their jobs, and their eagerness to learn and achieve new goals. I think that makes us as an organization, better able to mirror the community in which we work.

There are many jobs available in Giant -- including, for example, baggers, parcel pick up, and returning to the shelf items that customers have removed but don't want -- that are successfully performed by people with disabilities.

What makes me excited by this is watching people develop to the point where they are capable of moving into more complex positions with more responsibility. While not everyone with a disability can do every job, just as not everyone without a disability can do every job; the possibility of growing and advancing keep people -- keeps people motivated.

I know that the people with disabilities that I have worked with over the years develop self-confidence, enhanced social skills, and employment skills to better prepare themselves for their future. In addition, it makes me feel better professionally and personally that I am helping in some way to make someone's life a little better. Dealing with people's individualized needs also makes me a better manager.

Often in my career I've turned to organizations like the Marriott Bridges program and the Kennedy Institute, which work with employers to find job opportunities for young people with disabilities, because the employment opportunities in the particular store or community that I am working in are challenged. In other words, there are not many applicants for a particular position that I might be trying to fill.

In times like this I have had better success utilizing the clients of those two aforementioned organizations than trying to recruit people from the general public.

Of course the job and the employee need to be a good match. Just as with employees who don't have disabilities, occasionally an employee with a disability finds out that working in a supermarket is not for them. That doesn't mean that the person can't work. It's the same process that all of us go through to find the right job for us. Overwhelmingly, however, my efforts to hire and keep employees with intellectual disabilities have been a huge success.

Finally, there is nothing more satisfying than seeing employees with disabilities working side by side next to employees without disabilities, and to an outsider the disabilities are invisible. I get a certain sense of awe when I see one of our staffers with a disability walking with a sight-challenged or physically challenged customer acting as their personal shopper. This is truly a wonderful sight. It's a good reminder that we are all human beings and that we are all fundamentally the same.

I would like to introduce Tenesha Abbott.

Hi, Tenesha.


MR. EATON: How are you?


MR. EATON: Tenesha has been working with me at my store for over a year now.

Do you have a disability?

MS. ABBOTT: I have to read first.

MR. EATON: You're going to read first?


MR. EATON: I'm sorry. Go ahead.

MS. ABBOTT: Good afternoon. My name is Tenesha Abbott and I am 27 years old. And I have a disability. I am here to tell my -- to tell you about what it means to me to work.

I have asked my manager, Mr. Jack, to help me tell my story. He is going to ask me questions and I'm going to answer them.

MR. EATON: Okay. Do you have a disability, Tenesha?


MR. EATON: What is your disability?

MS. ABBOTT: MR, mental retardation.

MR. EATON: And are you working currently?


MR. EATON: Where do you work?

MS. ABBOTT: I work at the Giant Supermarket.

MR. EATON: And how long have you been there?

MS. ABBOTT: Over a year.

MR. EATON: What do you do there at Giant?

MS. ABBOTT: I bag, I do carts, I return stuff to the shelves.

MR. EATON: What else have you done there?

MS. ABBOTT: Help the customers, the blind --

MR. EATON: You help the blind customers do their shopping?

MS. ABBOTT: -- do their shopping.

MR. EATON: And do you interact with them?


MR. EATON: How does that help you?

MS. ABBOTT: I'm nervous.

MR. EATON: I know you are. That's okay. So am I.

MS. ABBOTT: Good. They help me learn to read more words.

MR. EATON: Because you're looking for products for them, if they ask for something and you see the word on the shelf? What happens if you can't find an item for a customer?

MS. ABBOTT: I ask a manager.

MR. EATON: One of the managers?

MS. ABBOTT: One of the managers or somebody -- another employee.

MR. EATON: Okay. Good. What are some of the other jobs you've had before you worked at Giant?

MS. ABBOTT: I worked at the Kennedy Institute as a receptionist and I worked at Melwood as a custodian.

MR. EATON: And what did they do for you there; did they help you get another job?

MS. ABBOTT: The Kennedy Institute --

MR. EATON: Helped you get a job at Giant?

MS. ABBOTT: -- helped me get a job at Giant. They actually helped me get all my jobs.

MR. EATON: Good. What do you like about the job at Giant?

MS. ABBOTT: The customer service, learning more words, learning how to read and stuff.

MR. EATON: What kind of things have you learned on this job? Oh, you just told me. Okay.

Reading, how is it helping you read?

MS. ABBOTT: Just stuff that when people ask me, I don't know the word. So they will tell me to spell it out or something. Then they will tell me and then I know it for the next time.

MR. EATON: Okay. Good. That's when you're helping the blind people shop?

MS. ABBOTT: Or regular people shop.

MR. EATON: You're helping them too, aren't you?

MS. ABBOTT: They need help too.

MR. EATON: That's one of the most exciting things to see when you see these guys help another customer shop. They don't know. It's just fantastic.

Again -- Do you ever need help with a job?


MR. EATON: Where do you get that kind of help?

MS. ABBOTT: A manager.

MR. EATON: What do they do for you?

MS. ABBOTT: They tell me where it is or show me where it is. And then when I need it again, I go get it.

MR. EATON: In working at Giant, have you found friends there --


MR. EATON: -- made friends?

MS. ABBOTT: Made friends.

MR. EATON: What do you do with those friends?

MS. ABBOTT: I talk to them.

MR. EATON: Do you ever see them outside of Giant?

MS. ABBOTT: I see them outside of Giant, go to the mall.

MR. EATON: You shop?

MS. ABBOTT: Talk, shop, go to the store.

MR. EATON: Spend your money?

MS. ABBOTT: Spend my money.

MR. EATON: Where do you live right now?

MS. ABBOTT: I live at 3540 Water Street Northwest.

MR. EATON: That's pretty close to the store, isn't it?

MS. ABBOTT: Yes. About 15 minutes away.

MR. EATON: Who are you living with?

MS. ABBOTT: My aunt.

MR. EATON: Okay, what happened to your mom and dad?

MS. ABBOTT: My mom died when I was 8. And my dad, he's staying with us. He's an alcoholic, he stays with us.

MR. EATON: Did you spend some time in foster care?


MR. EATON: Then you ended up at your aunt's house?


MR. EATON: Do you want to keep living with your aunt?


MR. EATON: What do you want to do?

MS. ABBOTT: Get my own place.

MR. EATON: Good, what skills do you think you need to have to live on your own? What skills do you think you need?

MS. ABBOTT: Budgeting, setting up money orders, saving money, saving a lot of money.

MR. EATON: What do you do with the money you have now?

MS. ABBOTT: I spend it.

MR. EATON: What do you spend it on?

MS. ABBOTT: On everything, clothes, shoes, bus fare, movies.

MR. EATON: Do you like movies?

MS. ABBOTT: Candy, food.

MR. EATON: Do you have video games?

MS. ABBOTT: Yes. I love playing video games.

MR. EATON: What do you have?

MS. ABBOTT: I have a Wii.

MR. EATON: You have a Wii?

MS. ABBOTT: But I stop that to work.

MR. EATON: How are you learning the skills like saving money from working at Giant?

MS. ABBOTT: My aunt is helping me.

MR. EATON: Your aunt's helping you?


MR. EATON: She takes your paycheck and you help put some away for savings --

MS. ABBOTT: She takes my credit card.

MR. EATON: -- before you spend it all on clothing, shoes, and shopping with the girls?

MS. ABBOTT: Yes. She takes my credit card.

MR. EATON: What's it feel like when you can't work?

MS. ABBOTT: Boring.

MR. EATON: What do you do?

MS. ABBOTT: I call in and ask can I work if they need help.

MR. EATON: You talk to one of the other managers?

MS. ABBOTT: I'll talk to one of the other managers.

MR. EATON: What do they tell you?

MS. ABBOTT: They'll tell me yes or no.

MR. EATON: How often do they say yes?

MS. ABBOTT: I did it twice so I got work twice.

MR. EATON: You have a 100 percent success rate then?

MS. ABBOTT: Right.

MR. EATON: Good. What do you do when you're not working; do you watch TV?

MS. ABBOTT: Yes. I watch TV.

MR. EATON: You play your Wii? You like that.

MS. ABBOTT: I play video games.

MR. EATON: What other jobs do you think you might want to do?

MS. ABBOTT: I want to work with the old people. If I can't work with the old people I want to go for acting. If I can't act I want to work for home health care...

MR. EATON: Very nice.

MS. home health care.

MR. EATON: Right now is it pretty great to work at Giant?

MS. ABBOTT: Yes. It's great working at Giant. I get a paycheck.

MR. EATON: You earn it! She is really hard working. I can't say enough. I've got up to 10 people, I think, with disabilities. When Steve was asking me how many I had, I was trying to count in my head and I forgot about five of them because I forget that they have disabilities.

That was awesome. I think I was more nervous than you though.

MS. ABBOTT: Yes. Finished?



MR. EATON: I've got a red light.

Thank you.

CHAIR BERRIEN: Thank you both very much.

And now I'll turn to Anupa Iyer.

MS. IYER: Good afternoon Madam Chair and Commissioners. Thank you for inviting me to testify today.

My name is Anupa Iyer. I am a third year law student and a legal intern at the EEOC. As a law student I have worked as a research assistant, received a fellowship to work for an NGO in Budapest, Hungary doing human rights work, and I interned for a protection and advocacy agency in Washington.

Prior to going to law school, I spent nearly three years working successfully as a technical recruiter. And before all of this, I spent close to five years working as a union organizer.

All of this information is laid out on my resume. What you don't see are the gaps on my resume because of the years spent locked in a psychiatric institution due to my mental illness.

At the age of 17, prior to starting my junior year at UCLA, I had my first experience with mental illness.

Stuck in an unfamiliar and competitive environment, I struggled with depression, which was manifested through an eating disorder. I stopped caring about my friends, family, and academics. My thoughts were consumed with achieving physical perfection. Despite this, I still graduated from UCLA at 19 and started working as a union organizer.

The tightly knit facade I had woven looked appealing to outsiders. I was young, attractive, and jet-setting across the country organizing workers. No one could see the cracks appearing beneath the surface except me.

At 20, I was financially in ruins. During manic episodes I would blow my salary on expensive clothes. And when creditors called me, I would escape my depression by racking up more debt. At the end of every month I had to beg my parents for rent money. They stopped me from becoming homeless.

By 21, I was unable to cope with my untreated eating disorder, later exacerbated by the emotional agony of being raped by a stranger. I self-medicated by abusing alcohol, cutting and burning myself.

Aching for relief, one night I attempted to end my life with a bottle of vodka and a handful of sleeping pills. I nearly succeeded.

This was the first of five suicide attempts and over eleven voluntary and involuntary commitments in various psychiatric institutions across the country. For the next two years I spent much of my time institutionalized.

In many facilities my every move was monitored. If I wanted to use the bathroom, I had to ask for permission. My prescribed regimen of antidepressants left me unable to read, write, or hold a conversation. I now spent my days gazing absently at the TV, finding solace with an extra-large box of Crayola crayons and a Disney princess coloring book.

I felt like a failure. I was unemployed, living with my parents between hospitalizations, and my only source of income was a monthly SS/DI check which my parents kept. I was defined as a patient, not as a person and not by my potential. I was such a bad patient that hospitals were reluctant to admit me.

My parents were given two options by my doctors: apply for guardianship and force electroshock therapy on me, or send me to a group home. I was told by my doctors I would never be able to go back to school and I would never hold a decent job. I came to realize that getting out of the institution and making a life for myself was my only option, and work was my salvation.

One morning I packed my bags and walked out of an institution in Los Angeles against medical advice and took a job with my old employers in Seattle. In Seattle I committed myself to living my potential, the potential the doctors never saw in me.

However, reintegrating into society by working and living independently was not easy. I had to learn how to live on my own again. After nine months working with the union, I had to quit to maintain my recovery. But after this, finding a new job was difficult. When I applied for retail positions, almost no one called. And if they did, the first question they asked was, "If you have a college degree and worked as a national recruiter for a labor union, why do you want to work here?" I could never answer that question. Even worse, my years of institutionalization left gaps on my resume that I was forced to creatively explain. I believed if I told them the truth they wouldn't hire me.

Eventually, when I got a job in IT recruiting, my fear that I would be stigmatized was actualized. When I spoke to my supervisors about anxiety attacks I had over a test I needed to take; they laughed at me and gave me an office nickname which was used by all of my coworkers, "crazy girl." I stayed at that job for over a year and a half in spite of the humiliation because I believed no one else would hire me.

Eight years after my first hospitalization, I have finally gained the confidence to share my story because now as a future attorney, I feel respected and not feared. My work gives my life meaning. It shows me that anything is possible, that I am capable, and that I have the right to dream and dream big.

Because of my mental illness I need small accommodations, such as the ability to leave work early once a week to see a therapist and occasionally a day off when I'm struggling with depression. This is how I deal with my mental illness. It is different for everybody. This doesn't mean that I can't do the job, that I'm incapable of working hard, or that I am stupid.

Work and school have helped me to recreate my life. With each passing day I shed my identity as a hopeless patient and rebuilt myself as a student, advocate, and future attorney. The girl I used to be is not the woman sitting here today. Working is critical to my recovery from mental illness. Now I cherish every day of my life. It is truly a gift. It is one more day where I get to wake up to the sound of my alarm, not to a nurse screaming at me to take my pills. Knowing what it feels like to be locked up, drugged, and told that my life is meaningless, that I will not make it outside of a group home, and that I will never hold a real job; I find myself working harder because it means so much to me and I don't ever want to return to an institution.

Every day and every task I get -- researching cases, writing a report to the World Health Organization, or making Xerox copies -- I do with a smile because in that moment I realize that my life matters, that I am capable, and I am free.

Thank you.

CHAIR BERRIEN: Thank you to all the panel.

We'll begin with comments or questions from Commissioner Ishimaru.


You know, one of the best things about meetings like this and the most helpful to me is hearing actual stories. I know how hard it is to come up here and be out of your element, but it's very helpful to us to hear the stories, to see how these issues affect people directly. So thank you for sharing those stories.

And it illustrates the importance of work and how important it is in -- as you're trying to get lives together. And that I think is the importance of the work that Sam does at DOJ. I want to commend all of you for that.

Mr. Eaton, you do a great job there, and --

MR. EATON: Pardon me? Thank you.

COMMISSIONER ISHIMARU: You do a great job at the Columbia Heights store. I remember when it opened. I used to live in the neighborhood. I remember how excited we were to get the big, shiny Giant there. It sounds like you've done a terrific job in hiring a diverse group of people.

Do you know if other supermarket chains do similar work in opening up job opportunities for people with disabilities?

MR. EATON: I don't really have a knowledge. I've been with Giant 31 years. I was just wondering that when I came over here. There's the Harris Teeter that just opened up.


MR. EATON: I wonder if they have any people with disabilities in there?

COMMISSIONER ISHIMARU: Because you've shown clearly that folks can do the job and they blend into your workforce nicely, and I hope there's a whole series of jobs that are opening up for people with disabilities, whether they're physical or mental.

But thank you again for a terrific job.

MR. EATON: There's tremendous opportunities there.

COMMISSIONER ISHIMARU: Mr. Bagenstos, welcome. It's good to see you.

Sam and I go way back, back when we were young. Sam has had a brilliant career both --

MR. BAGENSTOS: That means that we're no longer young.

COMMISSIONER ISHIMARU: Well no, certainly you are.

Sam's had a brilliant career both in public service and in the academy, and we welcome you.

Can you talk a little bit about the Olmstead work that the Department of Justice is doing? And when you're coming up with settlements, consent decrees, relief for people, how do you integrate the workforce piece in that? Is it done through the state agency to try to get people jobs? Do you push to try to get them private placements, or placements in supported employment or evidence-based employment? I'm learning all these new terms. Can you talk about that?

MR. BAGENSTOS: Sure, it's very important to us to incorporate employment issues into how we resolve Olmstead matters because employment is so important, both to recovery in a mental illness context but also just to being a full citizen in the community.

So what we have done -- in a case like the Georgia case, for example, the agreement we negotiated both contemplates that people with a variety of disabilities will get different kinds of vocational services from the state. But it also specifically says over a period of five years the state has to provide supported employment services to a certain number of people that they step up over time, which was a number based on our assessment of at least a significant chunk of the need. And so that's what we try to do. We try to see who are the people in whatever state where we are with whatever issue that we're looking at who need employment services, what are the kinds of services they need -- some are going to be more intensive than others -- and then try to get the state to agree to provide that over a period of time.

COMMISSIONER ISHIMARU: If a defendant had a program that didn't do outplacement, if they had people in the old style settings of, for lack of a better term, day care or some sort of system where people were not working on the workforce; would that be a desired outcome for the Department of Justice?

MR. BAGENSTOS: No, it would not be a desired outcome for us. And we have publicly in our investigative findings, in states that have a sort of a heavy reliance on segregated day programs or segregated day settings; we have said that that's inappropriate segregation. It violates the ADA, it violates Olmstead, and it's the kind of thing that we're seeking remedies for.

COMMISSIONER ISHIMARU: Again, let me thank the panel. Your testimony has been very, very helpful and much appreciated.

Thank you, Madam Chair.


And Commissioner Barker?


Sam, thank you again for taking so much of a part of your day to be with us and share what Justice is doing. I was delighted to hear all the stuff that I was not aware that you were doing, frankly, and I appreciate you sharing that with us.

And Tenesha, thank you so much for your testimony. You did a great job and I appreciate hearing from you.

MS. ABBOTT: You're welcome.

COMMISSIONER BARKER: So do you have a good boss?


COMMISSIONER BARKER: And thank you, Mr. Eaton, for all that you do. It's clear that you have a great rapport with your employees and that's the key to everything.

So Anupa, does that mean unique?

MS. IYER: Yes.

COMMISSIONER BARKER: That's because I'm fluent in whatever language that is.

MS. IYER: I was going to say, how'd you know?

COMMISSIONER BARKER: We had a conversation several weeks ago and you told me that's what it meant.

But thank you for sharing with us. You have a wonderful story. And I know it will continue to get even better and that there will be lots of opportunities for you. So we're delighted that we were part of that first step for you. Thank you.

MS. IYER: Thank you. I've enjoyed my experience here so far.

COMMISSIONER BARKER: I don't have anything further.

CHAIR BERRIEN: Thank you, Commissioner.

Commissioner Feldblum?


So Tenesha, I noticed when Anupa was talking, a few times you nodded your head. So were there things she said that sounded familiar to you?

MS. ABBOTT: I liked it.

COMMISSIONER FELDBLUM: Yes, so what did you like about what she said?

MS. ABBOTT: About working, how she changed so she could work -- changed what people were saying so she could work. I would do the same thing.

COMMISSIONER FELDBLUM: Yes. And I appreciated in your -- you had done some written testimony that's in the record. You said how you liked being in a store and being able to buy what you wanted to buy when you're in a store. And I grew up quite poor and I used to do the food shopping for my family starting when I was 10 years old. And I always had to be so careful that I was only buying enough for the amount of money that I had been given. And to this day at age 52, one of the great pleasures in my life is to go to a store and say, "I have enough money to buy whatever I want." Now, that's in a food store. That's the only place I have that experience is the food store. But there's that piece. Okay.

Anupa, a lot of people are very into like, "Oh, you have so much courage." I'm curious because I know you thought about whether you wanted to come forward and give this testimony, I'm curious about whether you found that helpful? Like, what made you decide you wanted to do this?

MS. IYER: I think there are several reasons why I decided to testify today. Part is what I said in my testimony. At this point in my life I feel like people look at me differently. They don't look at me like a person with mental illness. They look at me as an attorney. And I want to use -- I went to law school so I could use my experiences as a way to change societal perceptions of mental illness. And I saw today's Commission meeting as -- it's an opportunity to spark a conversation amongst employers about employing people with psychiatric disabilities; that people with psychiatric disabilities are not scary, that we are capable and we're capable individuals. And the only way that these perceptions about people with psychiatric disabilities can change, is if more of us are in the workforce. So that was one of the reasons.

And the other reason is to inspire other people with psychiatric disabilities to challenge the system, to challenge professionals who may say that they can never do anything, to say, "I can do it. I want to do it," and to pursue their dreams.

And finally, I am graduating from law school. So if anybody wants to take up the challenge of hiring an attorney with a psychiatric disability, please let me know.

COMMISSIONER FELDBLUM: Great. And Mr. Eaton, I wonder if you were just at a barbecue with someone and you had like three minutes to say, "Hey, this is why I think" -- like the Harris Teeter. Let's say the Harris Teeter manager was at the barbecue. Setting aside competition, what would you say to them to deal with the fears, what we heard before that you think about risk management?

MR. EATON: All I can do is speak on my experiences. And that's that I've had nothing but good luck with people with disabilities. I've never had a situation where I had to call Bridges in, or Kennedy, and say, "This guy isn't working out." We've always managed either to work with them and their coaches, and their job coaches, to correct the behaviors that might be causing a problem or correct the behaviors that are allowing them not to do their job. And I said this in the testimony, it is rewarding to see them grow into jobs. Because I've been doing this since the early 1990s and I've got guys who are working seafood, they're cleaning fish, that I've forgotten that they were hired under Bridges, for example. Because while we're doing all this talking I'm thinking back over the years, and even in the -- in 1990 was when I first became aware, because I was actually doing the hiring, that it is helpful, because there's a resource that's there. Steve and people from Bridges, they want us to hire their clients. There's been times where you can't get anybody to take one of those jobs, to take an entry-level job at Giant. So it made it a lot easier. And then you work with them and it's -- for one, everybody who starts working at Giant starts at an entry-level job. I hire a lot of kids. And there's really the benefit -- I get more satisfaction out of seeing them succeed and grow than I do -- and I don't see it happen with mainstream kids or kids without disabilities. So there's a reward. Personally, I get a kick out of it. Professionally, it does help, the community accepts it and appreciates it. It's all about building that relationship with the customers.


CHAIR BERRIEN: Commissioner Lipnic?

COMMISSIONER LIPNIC: Thank you Madam Chair.

And thanks to all of our panelists for being with us here. Your testimony was incredibly inspirational.

Mr. Eaton, just to follow up a little bit on what you were saying a second ago, it seems like if you started this in 1990, you were way ahead of your time. And I wonder if you could talk a little bit about sort of how, if this is the case, how you think perceptions have changed from when you started hiring people in 1990 to where you are today?

MR. EATON: Like I said, I worked for some really inspired people, some managers that I learned so much from. And I walked into situations where they already had people on staff that had disabilities. There was a stigma. You had a guy working the parcel pick-up and he obviously had mental disabilities. And there was a fear of them getting into trouble, or causing customer complaints, or what have you; but it never developed like that. And I've always had good relationships with the Bridges people and the Kennedys where I could use them as a go-between to help correct any issues; I've never had a problem. I don't know, maybe I'm lucky, certainly it wasn't anything I think I did; but I've never had a situation where we couldn't rectify a situation with a person with a disability.

I don't know if I've answered your question.


And can you tell us a little bit about -- and you said this in your testimony, about utilizing the employment services that are available to help, that that was a learning process for you. And then how you came to that and what advice you might have for other employers to really avail themselves of that?

MR. EATON: Well, I met Steve when he was with Bridges back in 1997. I was in Aspen Hill, Maryland working a store. I was a store manager by this time. I guess that was really the big eye-opener. I had always worked with people with challenges, with disabilities and didn't really think much about it. It was something we did and the benefits were obvious. But when I got with Steve, it really opened my eyes up to the opportunities and the potential for staffing the store. And after I had experience really hands-on with several of his clients -- he'll tell you that he and I have talked off and on for the last 13 years about these opportunities. It's been a big help.

Again, I don't know if I'm answering your question, but I've always been a glass-half-full person. So I always tend to look at the positive side of things and look at the positive side of what Tenesha and her coworkers are doing.

Again, I've forgotten your question. I'm just rambling.


And Anupa, I had a question for you. You said that you, at one point wanted to be thought of not as a patient but defined by your potential. And I wonder if you could tell us a little bit about what that was like, and what advice you might have on how we could go about as a Commission in encouraging employers to do that?

MS. IYER: Well, when I referred to the patient potential, that was obviously sort of when I was institutionalized. And I was being constantly told that, "This is your diagnosis. You're diagnosed as bipolar. This is who you are. And because you're bipolar, these are the limitations that you have on your life." And so I said that as a way to encourage other people with mental illness, whatever their diagnosis is, to challenge what professionals may say about them and their limitations. And going to the piece of employers, I think there are several things that as a Commission and the business community can do. People with mental illness are an untapped resource. We want to work, we want to be a part of the community, and we need sometimes some small accommodations. For me, it's taking time off early once a week to see a therapist. It's no different than a parent who might need to leave early from work to pick up their kid.

And employers should be supportive rather than stigmatizing. In my experience, the stigma of being called crazy was -- it was humiliating, and it made it hard for me to want to work; but I did it because I felt like I had to challenge whatever people were saying, and that's just me as a person. But as I've done my internships, I've been open about my disability, and my employers have been extremely supportive and extremely encouraging. And in school people have been very supportive, and I think that's really, really important. And I think overall it's the factor of not writing people off because they have a disability. Don't write me off. Don't write other people off with mental illness either. We can all work and we want to.

Thank you.

MS. ABBOTT: I know I do.

COMMISSIONER LIPNIC: Thank you, Madam Chair.

Thank you all very much.


Ms. Abbott, Ms. Abbott, can I ask you a question? You said you do want to work? And you are 27, I believe you said?

MS. ABBOTT: Twenty-seven.

CHAIR BERRIEN: And how long have you been working? How old were you when you started working at all?

MS. ABBOTT: I did some summer jobs.

CHAIR BERRIEN: Starting when?

MS. ABBOTT: When I was in high school. I did -- I don't know the age. But I did summer jobs, I did job shadowing, regular jobs. I've just been doing jobs.

CHAIR BERRIEN: But you've been working at least 10 years?


CHAIR BERRIEN: Mr. Eaton, in your experience have you had -- is retention a problem or issue, or has that been something that you find is not an issue?

MR. EATON: In general I'm running about 35 percent turnover rate. That's gone down a lot in the last couple of years, mainly I think because of the economy. People appreciate that they have a job. With people that I'm employing that have disabilities, it's a lot lower than that, a lot lower. Like I said, we have people that have been with me for two, three, four years that I've been in this store that I don't see there's a disability anymore. I forget. Like I was recounting to Steve how many people I had in the store. I got to five and I kind of scratched my head. Then he reminded me of some other names I had forgotten. They're just mainstream employees to me. There's no difference.

At the end of the day -- I don't want to act like I'm some kind of benevolent person, but at the end of the day I've got a business to run. I've got to get a job done, I've got to make a budget, and I've got to make a sales goal. And to do that, I've got to have you come back into the store after having a pleasant experience with Tenesha or any of her other coworkers, disabilities or no disabilities. That's the bottom line for me. If they can help me, I'm all for it. If I can help them, I'm all for it; but the bottom line is I'm a businessman. And I've got to make a profit, and I've got to make a budget, and I've got to make a sales goal. And in order to do that is just by making everybody happy, them, you, and all my customers, and the people above me; giving them money. So, yes, there's a little selfishness here. I get something out of it professionally. So I want to clear that up that this is a business I'm running.

CHAIR BERRIEN: And has the Giant chain, not just locally but wherever it operates, have they also incorporated some of the practices that you have or is there opportunity to do that?

MR. EATON: Many of them have. I think many of them have. My whole organization includes Stop and Shop, and Giant Food of Carlisle, three different, they're up in New England and Pennsylvania. I don't know what they're up to, but I know in Giant; I'm pretty familiar with that, after 30 years I've been to almost every area. And you find this kind of situation in most stores.

CHAIR BERRIEN: Mr. Bagenstos, you mentioned personality tests as a kind of selection tool or device that could have an adverse impact on people with some mental or intellectual disabilities. Could you speak a little bit more about that practice and the concerns you and the Justice Department have about it?

MR. BAGENSTOS: I don't want to speak about anything that we may be doing right now, but it's more the general point that there are selection devices that can be used. And this is true in the disability context and out of the disability context. There are selection devices that can be used that will effectively test, in this case, for having a mental disability instead of testing for doing the job and the ability to do the job. And that's something that's of great concern in this context. And I think it's something that both the Department of Justice in our Title 1 enforcement authority and the EEOC in its Title 1 enforcement authority needs to look at.

CHAIR BERRIEN: And are there any other ways -- of course, we've been in regular contact with Assistant Attorney General Perez about how we could work more closely together. Is there anything else you can share with us today about what we could do to work more effectively together on this set of issues?

MR. BAGENSTOS: Well I think it's very useful to have me -- and several of my colleagues are here watching -- but to have me at this meeting, and to have a series of regular interactions which we've been having. I think the relationship between the EEOC and the Civil Rights Division is very strong and I hope that it continues to be very strong. We feel like this is an opportunity for us to all work together to achieve the common goal of enforcing civil rights laws. And I'm very happy with how that's working.


Ms. Iyer and Ms. Abbott, I want to thank you both for sharing your stories and your experiences in the workforce, and helping everyone on the Commission to understand better the ways that -- the kinds of experiences you've had, but also the things that we as a Commission ought to be looking for and trying to address, and working with employers to address. I want to thank you both for being here and thank the entire panel for being here.

We will move to our third panel. No break. If we can just have the panelists change places? This is Markus Penzel, Donna Malone, for our final panel.

Our last panel today is Litigation to Enforce the Rights of People with Mental Disabilities, and it features Markus Penzel, who's a Senior Trial Attorney for the EEOC and was counsel in EEOC v. Land Air Express; and Ms. Donna Malone, who was the charging party in EEOC v. Land Air Express. And we'll begin with Mr. Penzel.

MR. PENZEL: Thank you Chair Berrien, Commissioners, and General Counsel. Thank you for the opportunity to be here today.

I am an EEOC trial attorney from the Boston Area Office. In February of 2002, EEOC filed a complaint in Maine against Land Air Express of New England. EEOC alleged that the company had violated the ADA by first, refusing to grant a leave of absence to long-time employee Donna Malone as a reasonable accommodation for her mental disability and second, by terminating her employment because of her disability.

Following prolonged sexual and physical abuse as a child, Ms. Malone has had near-lifelong diagnoses of Post-Traumatic Stress Disorder, depression, and eating disorders. To use the language of the ADA, these mental impairments had left her substantially limited in numerous major life activities, such as sleeping and eating and, periodically, caring for herself, thinking, and working. Before starting at Land Air in 1992, she had been hospitalized numerous times due to her condition. And while at the company, she was hospitalized twice due to her condition in April and May of 1999. And then on July 14, 1999, during a third hospitalization, she was fired.

The evidence showed that the company's reasons for her termination, which they gave as excessive leave, was false and pretextual. Not only did the termination violate the company's own medical leave policy, but there was also direct evidence that she was terminated because of her disability. The manager who fired Ms. Malone admitted that he did so because of his, "gut feeling," based on news stories about employees going Postal; that Ms. Malone was a danger to other employees. Relying solely on a stereotype, the manager stigmatized Ms. Malone and fired her. The case never went to trial. After a year of litigation, the company agreed to a $360,000 settlement.

The consent decree enjoined the company from violating the ADA, required the company to distribute a policy on reasonable accommodations to all employees and include it in the company's employee handbook, and required the company to provide ADA training to its managers.

The case underscored the significant challenges that persons with mental disabilities sometimes face in the workplace and the courts. Apart from the excellent result, what I remember most about the case was that we had to devote more than half of our brief opposing summary judgment to the threshold question of whether Ms. Malone was legally disabled, that is, whether she was even covered by the ADA.

Under the ADA at the time, many courts had said that short, episodic impairments did not constitute a substantial limitation. This should not have been a big issue. Ms. Malone clearly had a disability that, when most active, left her almost wholly unable to function. Donna Malone's own supervisor and doctors, who knew her best, felt she could continue working as the productive employee she'd always been if just given some time off to heal. They were however, ignored by managers who relied on a stereotype instead.

I trust that the passage of the ADA Amendments Act, along with the Commission's new regulations, will make that part of my next ADA case easier. Particularly helpful to people with psychiatric disabilities is the ADA Amendments Act statement that, "An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active".

The new law's change to the regarded-as prong of the definition of disability would have also simplified Ms. Malone's case, since one no longer has to prove that the employer believed that the employee was substantially limited in one of those major life activities to prevail. The ADA Amendments Act eliminates that issue. These changes in the law should let us get more quickly to the core issue of discrimination and not get hung up on coverage for people with clear impairments.

For a fuller understanding of the impact of discrimination against those with mental disabilities, I'd like to introduce you to Donna Malone -- we are honored to be here with her -- who will talk about her experience and the impact of the discrimination she suffered.

Thank you.


Ms. Malone, please?

MS. MALONE: Good afternoon, Chair Berrien, Commissioners, and General Counsel Lopez.

My name is Donna Malone. I'm a 47-year-old woman who has long-standing diagnoses of Post-Traumatic Stress Disorder, Major Depressive Disorder, and eating disorders which include anorexia and bulimia. These diagnoses were the direct result of many years of well documented neglect, physical abuse, and sexual abuse at the hands of my mother, brother, sister, and two of my stepfathers.

At the age of 14, I was given the opportunity to work in a summer program through the state of Massachusetts. My first job was working with the Conservation Commission, clearing and creating paths in the conservation areas around Lowell, Massachusetts. This was the first time in my life I felt a glimpse of self-worth. I was a quick learner and loved doing my job. At this point, I realized that working hard was the way that I could feel good about myself and no one could take that away from me.

I continued to work part-time through high school and college. I was struggling with my psychological disabilities simultaneously. I was hospitalized many times in the 1980s. During this time I was plagued with flashbacks as well as difficulty sleeping, and my anorexia was at a life-threatening level. I was unable to do the day-to-day functions on a regular basis. I felt incredibly lost and alone.

Once I found a full-time job and began raising my own family, I was better able to manage my symptoms and illness with help of a solid treatment team. I began working at Land Air Express in 1992. I started as a tariffs manager and worked my way up to terminal manager in Scarborough, Maine. I was proud of my performance as a terminal manager. I maintained the lowest overtime costs, met all goals, had the lowest turnover in employees, and was committed 100-plus percent. Work stress along with non-work-related stressors strongly exacerbated my illnesses and I required hospitalization. I was hospitalized April 2-21 in 1999. I returned to work briefly and was hospitalized again from April 26-May 3.

Once I returned from this hospitalization, Sean Gill, the director of operations, transferred me to the Pittsfield, Maine terminal as operations manager -- as a demotion. I took on my job in Pittsfield as operations manager with 100 percent commitment. However, I was still struggling with my illness, as this situation was a painful reminder of what I had lost. I knew the job inside and out. I could step into 99 percent of the job positions and not skip a beat in production and operate at a high level. Yet I was being treated like I was insignificant. It was like that little kid again, being abused for no reason.

The treatment exacerbated my flashbacks, increased my difficulty sleeping, and worsened my anorexia. I constantly feared that I was going to lose my job and I was always feeling insecure. What would I do if I lost my job? My work is a powerful aspect of who I am. A great deal of my self-worth directly related to my work ethic, my work ability, and my commitment to get the job done at the highest level possible. I realized in July 1999 that I again needed hospitalization. I spoke to the terminal manager regarding the need for me to be hospitalized. I expressed great concern about having my job when I returned. The terminal manager, after a couple of phone calls, informed me at the time that my job was secure, and that he wanted me to do what I needed to take care of myself.

The third day of my hospitalization, however, I had a phone conversation with Sean Gill, the director of operations. In that conversation, Sean told me I no longer had my job at Land Air Express. He told me that he had to look out for the rest of his employees' safety. I told Sean at the time that he could speak to my doctors if needed to verify that I would not be a danger to anyone. He made no attempt to contact the doctor. My treating physician at the hospital sent Sean a letter that gave me complete clearance to return to work on July 26.

Finally, at the end of July my therapist contacted Sean at my request. The result of the conversation was more of the same. Sean continued with his belief that I would be a safety issue for his other employees. Sean never even requested a face-to-face meeting with me throughout this process. He never attempted to seek out an understanding of the illness I struggled with. His fear and general lack of knowledge regarding psychological illnesses nearly destroyed my life.

My termination triggered more and longer hospitalizations. My struggle became more difficult once I was no longer employed. My self-worth plummeted drastically and every day was a reminder of what I had lost. As a single parent with two kids, I had just bought a new house and the financial burden was tremendous. I had to file for bankruptcy. The termination pulled away my only source of self-esteem.

I knew of another situation where an employee had cancer and needed chemotherapy and radiation therapy, and was granted time off without repercussions. The company sent flowers to this individual, expressed constant support and concern for her condition. All the right things had happened with this employee. After all, cancer is an accepted illness.

The illnesses I struggle with are no different from having cancer, heart disease, lung disease, or any other chronic illness that requires ongoing management of symptoms, medication, and hospitalization when the illness is exacerbated. Fortunately, new work opportunities helped me rebuild my life. After a brief employment with another trucking company, I chose to switch gears and get into the medical field.

I began working at Maine Medical Center as a secretary in the emergency room. Maine Medical Center had classes available to gain nurses aide certification within Maine. I was accepted into the class and began working on the medical surgical floor as a CNA while maintaining my position in the emergency room. Once the ER tech position opened up in the emergency room, I applied and was chosen for that position. I was then trained further in EKG and phlebotomy and I also was trained in ER coding. I thrived in this job again and I was increasing my self-worth. I loved working. My basket was being filled with positive feedback as I was a good employee.

I also sat on the Board of Trustees for Spring Harbor Hospital, which is a free-standing psychiatric hospital in the state of Maine. And I was a part of the Performance Improvement Committee that addressed issues of psychiatric patients being treated in an emergency room setting. I did continue to struggle with my illnesses, but was afforded the time I needed to take care of myself.

Finally, at the end of 2002, I moved to Massachusetts to start over again as my son's father took a job that relocated him to Massachusetts. I found a job within five months at an ambulance company as a billing clerk for their ambulance runs. I put myself through school and achieved a master's certificate in medical billing and coding. I was promoted to billing manager, and in 2006 was promoted again to director of administration for the same ambulance company.

In February of 2011, I went part-time at the ambulance company so I could take a full-time job as a physician auditor for a major insurance company in Massachusetts. In addition to these two jobs, I have been a professor at a community college level in the medical billing and coding program since 2006.

Working at three different jobs I know sounds like a lot, but it keeps me going. I have had supportive experiences surrounding my illness from both the ambulance company and the hospital. I have been granted time off for hospitalizations and I also have been granted the flexibility to maintain my appointments with therapists when needed.

Some of the new job responsibilities have presented some challenges in getting to know new people, new procedures, et cetera. After working so long on one job, taking a new job presents itself. I work hard on a daily basis to maintain stability within myself and my within my surroundings. I know when to reach out for extra support. I have a supportive treatment team that enables me to continue to attain my goals in life.

In closing, I would like to express how important work is to somebody like me who struggles with a psychological disability. Work gives me a purpose, a sense of pride and accomplishment. I am no different than anyone else with a chronic illness. The difference is the public's and private sector's lack of understanding of psychiatric illnesses. Unfortunately, incidents involving psychiatric disabilities are sometimes portrayed in the media in a way that generates unwarranted fear of all people with psychiatric disabilities. These cases, however, only depict a tiny fraction of people with psychiatric illnesses. In my case, my manager at Land Air, without any attempt to understand me or talk to my doctors and without any legitimate reason; lumped me in with those few people who make those headlines. In doing so, he not only hurt me terribly and tagged me with the stigma of psychiatric illnesses, but he also lost a valuable employee. That way of doing business hurts many and helps no one.

Thank you.

CHAIR BERRIEN: Thank you, Ms. Malone and Mr. Penzel.

And we'll turn now to questions and comments from the Commissioners, beginning with Commissioner Ishimaru.


Ms. Malone, thank you for coming and telling your story. I always marvel at charging parties who come to us because it's not easy to tell your story, it's not easy to go through the process, it's not easy to sort of lay your life bare in, oftentimes, hostile circumstances. And I really appreciate you coming forward and I'm glad we were able to help.

It sounds like you've had a pretty good run of jobs over the years and it's worked out. Have you run into other problems in other jobs or most people have valued you for the wonderful worker that you are, it sounds like.

MS. MALONE: I've had experience on both sides and that's been wonderful. But even with this new job that I have taken, there's still that fear of what's going to happen if. I think those of us that have a psychiatric disability, we always -- we're right on target when we're on target. And when we're not, there's that fear, that fear that, you know what, this is going to be it and if I don't -- what's going to happen now that I'm not 100 percent in their eyes. So that's always there. No matter how many positive experiences you have, that's always there.

COMMISSIONER ISHIMARU: Mr. Penzel, in dealing with defendants over the years, do they react when you come to settlement as in this case? Do they mend their ways? Do they see that what happened was a problem and probably shouldn't happen again because it opens them up to liability, or is it a cost of doing business?

MR. PENZEL: Well, I haven't had any repeat offenders. And I've had a number of other mental disability cases more along the intellectual disability type. They usually, they settle very quickly. This one was a bit more protracted. It did get all the way through filings of summary judgment motions, but then we did have a mediation afterwards and were able to settle it at that point. Whether they mend their ways, I haven't heard anything back from Land Air. I know they've expanded and I see their trucks around. So I'm hoping they're doing the right thing. I see all EEOC charges that come through the New England area. I haven't seen any against them.

COMMISSIONER ISHIMARU: That's good to know.

MR. PENZEL: I couldn't say if I had.

COMMISSIONER ISHIMARU: Because I always wonder, how do you get reach beyond just your case? And I think that's an important piece of what we do. It's important to try to teach the lessons that come out of our work beyond just the individuals who are involved, but to try to make the employment process better for all employees.

MR. PENZEL: Well, the interesting thing about this case is there really was sort of smoking-gun type testimony. It first came -- the interesting thing was that she had a very supportive supervisor, a man by the name of Fred Blaschke, who didn't want to see her fired and who was the one who told her, take the time you need, and sort of even fought with Sean Gill, I think, over the termination. And actually, Sean Gill made Fred Blaschke write in the termination notice -- after telling him that, we don't want her around because she could be a danger to herself and others, said, "Don't write that"; write, we've given her enough leave, basically. And that was in his writing but it was dictated by Sean Gill. So you sort of wonder. You don't catch employers with a smoking gun very often. So here it is. You sort of wonder what else is out there. On the other hand, with the ADA Amendments Act, it will be easier to do that. You had to sort of explain in the old days why "going Postal" meant that she was substantially limited in a major life activity. Like, oh, that affects interacting with others; that's the major life activity. No. It's that she had an impairment and they fired her based on that impairment.

COMMISSIONER ISHIMARU: So you can get to the heart under the new law of whether discrimination has occurred or not?

MR. PENZEL: Much more quickly. Right.

COMMISSIONER ISHIMARU: Well, thank you both for coming, you're much appreciated.

Thank you Madam Chair.

CHAIR BERRIEN: Commissioner Barker?

COMMISSIONER BARKER: I also want to thank both of you for coming. And Ms. Malone, it was a terrific testimony. I appreciate it and we all do.

Mr. Penzel, thank you so much for the work that you do.

That's it.


Commissioner Feldblum?

COMMISSIONER FELDBLUM: So I'm interested in how we help folks come out about who they are. I mean there's some things about me that you just know. I'm a woman. If you focus on my name, Chai Feldblum, you'd maybe figure out I'm Jewish. You don't know that I'm a daughter of a Holocaust survivor unless I tell you, right? You don't know I'm a Lesbian unless I tell you. You don't know that I have anxiety disorder unless I tell you. So these are all choices that I make, right? But I feel quite, I'm quite safe, sort of in my life right now and that is not the case for a lot of people. So I'm just sort of curious, Ms. Malone, about what things you think we can do to help make things more safe for people. Because I do know that we will reduce stigma -- whether it's on gay people, people with mental disability, or whatever -- if people can come out. So I'm curious.

MS. MALONE: I think that's a complex issue. I don't think that there is a simple answer to that question because you're talking about dealing with multiple different personalities. And the bottom line is I don't think there's anybody that can go to an interview and feel comfortable with a psychiatric illness and say, okay, I want this job, I'm capable, here are my credentials, I've proven myself in the past, but I also have PTSD and I may need accommodations. Because are they going to tell you they're not going to hire you because you have PTSD? No. You're just going to become part of the bottom of the pack and you're never going to know why you weren't hired. So is that discrimination? Who's going to know?

So I think for me, in my life, how I've chosen to navigate that issue is, get the job, prove my ability. When my illness exacerbates, then I go and I talk to my core people that I work for and say, "This is what I need, this is what's helped me in the past. I'm not asking for a lot of extra or special treatment. Just give me this little bit of time and I'll be okay. I know what I need to do." I hope -- I haven't had to experience that -- I am pleased to report that I have not been hospitalized since 2006, which I'm very happy about. But you know, like any chronic illness, exacerbation could come about tomorrow. I don't know that. I don't know what tomorrow is going to bring. So I just work in the best of my ability to communicate when the need is there, and hope that I'm embraced with support as if I had another chronic illness that's maybe a little bit more accepted.


CHAIR BERRIEN: Commissioner Lipnic?

COMMISSIONER LIPNIC: First of all, thank you both for being here.

Ms. Malone, thank you for your testimony. And I second the comments of Commissioner Ishimaru in terms of how helpful it is to us and amazing it is to us when charging parties come to us and tell us their stories, so thank you for that.

Mr. Penzel, I was curious, have you seen many cases -- and I know you couldn't talk about any specifics, but -- under the Amendments Act, do you have things now that you feel like --

MR. PENZEL: We just sent you one last night.


COMMISSIONER LIPNIC: Okay. I'll have to check my inbox.

MR. PENZEL: It should be in OGC's mailbox.

COMMISSIONER LIPNIC: Okay. In the time that the law has been amended, have you seen many new cases?

MR. PENZEL: I wouldn't say -- we always see ADA cases going through. But the one we've sent up is particularly, I think, appropriate for the ADA Amendments Act because it's more of a short-term disability failure to accommodate. We'll see.

COMMISSIONER LIPNIC: Okay, but you're certainly, it sounds like, confident that, under the Amendments Act, that certainly the EEOC's work will be easier than in previous cases?

MR. PENZEL: Absolutely. Yes.

COMMISSIONER LIPNIC: Okay, and Ms. Malone, just to follow up a bit on what Commissioner Feldblum was asking, since you've experienced both, as you've said, people being not particularly helpful at all and then on the other side people who have been helpful when you've explained to them, this is what I need in terms of my accommodation, and I'm curious on those who have been helpful, how that is received and how you approach that with them? And before you answer that, even what advice you might have for other people about how to approach their employers.

MS. MALONE: Good question. I guess for me it's with as much honesty as I can muster in regards to, I'm de-compensating; I need to catch myself before I get into a much deeper hole than I need it to be and this is what I need. I think in some respects, I may have a little better ability because I can use certain medical lingo that kind of helps me out in that arena. But at the same time, I think the biggest thing is the fear of the unknown, because it doesn't matter whether you've done it before; for somebody that has the psychiatric illnesses that I have, you're always looking for that other shoe to drop. So even though I may have come to you and asked you for the time off and you've accommodated me; the next time I have to ask you, it's almost like I've never asked you before. And that's how --

COMMISSIONER LIPNIC: That's how you feel it. That's how you experience it.

MS. MALONE: That's exactly right, and I have to believe that for a lot of people with psychiatric illnesses, that is how it is because of the stigma that's out there. And the constant worry is, are they going to think this is too much. Even if it's once a year, that's the thought process.


MR. PENZEL: If I could just add, in this particular case, the supervisor she had who said, "take your time; go to the hospital." He was very sympathetic. In fact, he had had a month or more off because his wife had died and he had depression afterwards. So the company was fine dealing with that, I think. That sort of fit their world view or fit this other director of operations' manager's world view, but PTSD?

COMMISSIONER LIPNIC: And that was an acceptable degree of mental disability?

MR. PENZEL: That was acceptable. Right.

MS. MALONE: Because it was a causal disability.

MR. PENZEL: Right.

MS. MALONE: It wasn't necessarily a psychiatric illness as would be long-standing.

MR. PENZEL: And one other thing that happened in this, just sort of the personal side of this case, was that director of operations who, you know -- the postal guy; one of the things he said to -- I think he said it to Donna or maybe his manager -- was, "I've had" -- I think he was ex-military – "I've had people die. I've seen this, and I still make it to work."

MS. MALONE: He told that to me.

MR. PENZEL: So he didn't get it. Or at least in his world view, this was sort of how you do it. And he wasn't willing to assess her individually, which is what really the ADA has always been about.

COMMISSIONER LIPNIC: Right. Well again, thank you both, for your testimony, it's very helpful to us. Thanks.

CHAIR BERRIEN: I echo the thanks of every member of the Commission we've heard from. Thank you to both of you.

In some ways this demonstrates the use of an ultimate enforcement vehicle for the Commission: litigation. And ultimately the case did settle after you filed the suit. I wonder if you could say something about any efforts before you actually went to court to try to resolve, and whether there was movement short of ultimately making a decision to file in court?

MR. PENZEL: In this particular case or generally?

CHAIR BERRIEN: In this case.

MR. PENZEL: We tried conciliation. They put -- I don't know if I can say the number that they offered. I don't think I can, but it was a low number. It was a low number. It didn't end up anywhere close -- it didn't even cover back pay. So there were efforts to settle it, there always are. And quite often with these ADA cases, they do end up, they quite often end up settling in conciliation. We've conciliated a number of them so that you don't ever see them.

CHAIR BERRIEN: I have a very basic question. Ms. Malone, how did you know to come to the EEOC?

MS. MALONE: Actually, I personally didn't. The lawyers that I was working with in regards to my custody issue with my son helped me once they found out that I got fired. And they took it and really kind of helped me navigate.

But if I may just comment on the question that you asked Mr. Penzel?


MS. MALONE: All I ever wanted out of all that was -- I didn't even want to go to court. I just asked for my job back. I never once at any juncture was it ever about money for me, was it ever about making a big deal out of this. I just wanted my job back. I had worked long and hard. I had been working since 1992 in that job. And my illness was within relatively good control for all that time except till 1999. And I needed some accommodations and wasn't given them. All I wanted was my job back. They sort of created the issue where it snowballed to where it ended up.

CHAIR BERRIEN: And Mr. Penzel, say a little bit about what you think the Commission can do to, sort of, take the lessons of a case like this one and carry them forward in ways that might hopefully prevent another situation where someone loses a job or their work life is interrupted for a reason that ultimately they are vindicated?

MR. PENZEL: Well I think what the Commission does now, which is to take cases like this when you have the opportunity to approve them, and when we file them, to publicize them, and when we settle them to publicize them. And also, when we have the opportunity and technical assistance programs and other avenues; to make sure that people know what the law is. I mean this was a very simple case, it shouldn't ever have gotten this far. I think most employers want to do the right thing. And this case was very simple. I mean she had worked steadily for seven years, seven years. And she talked about her internal job stress, the certain demotion, but there were also external stressors that sort of that came out: her mother showing up unannounced, reintroducing back in her life; that triggered the first hospitalization. She had been hospitalized and was fine, she was going along fine. The third hospitalization was triggered by a friend committing suicide. I mean these are sort of extraordinary events which really weren't related to anything that the employer was doing or she was doing in her job; it was just like the expression, "stuff happens." And all she needed was some time off. And she had the bad luck of having one bad thing happen right after another, which for whatever reason triggered in this guy's head the notion, oh she's going to be unreliable, she'll never come back, she's a danger to the employees. But he didn't even take into account the letter that the doctor had written. And even after she had been fired, he did talk to her therapist and was belligerent with the therapist. He had made up his mind and that was sad. It was an unusual situation. So I hope it doesn't come up that much. But it's certainly something that, who knows how many people are thinking this stuff and don't express it openly.

MS. MALONE: Can I add one more point? I see the red light and I'm sorry.

The bottom line is, my thing is, the safety of the employees I worked with, for the seven years up to the point, I needed hospitalization, was never in question. I worked side by side with everybody. I've had the best overtime ratio, production reports, the least amount of turnover, never a question. And now suddenly I needed hospitalization, I needed some extra help, and now I'm a danger. One doesn't work for the other.

Thank you.

CHAIR BERRIEN: Thank you again, Ms. Malone and Mr. Penzel, for your testimony and for coming forward and sharing with us today.

And to close today's meeting, I'm going to invite the members of the Commission to make brief closing remarks if you have any, beginning with Commissioner Ishimaru.

COMMISSIONER ISHIMARU: Well thank you, Madam Chair.

After our last meeting on needing a job to get a job, I got a piece of fan mail from a person out there. It said, you know, you're always out there trying to do stuff for -- special rights for certain groups of people. And I wanted to write back to say, it really isn't about that; it's about getting to a problem that's out there and we're using the tools that we have to address it in the jurisdiction that we have. And here today I think we saw that so many of these issues don't benefit just one group, but it benefits the group of employees as a whole and employers as well. You can make it work for both employees and employers by having practices that make sense. And I hope that's a lesson we can pull from this. And I thought all of our testimony today was very helpful.

And again, I want to thank my colleague, Commissioner Feldblum for organizing this. I'm glad we did a meeting on this. I hope it will lead to vigorous enforcement in the field so that people with disabilities, whether they be physical or mental, get the full range of protection that was envisioned by the Congress both in 1990 and in 2008.

So again, my thanks to you Madam Chair.

CHAIR BERRIEN: Thank you Commissioner Ishimaru.

Commissioner Barker?

COMMISSIONER BARKER: Well I just think this has been a great meeting and very educational on so many levels. And I think the gist of the whole meeting for me is it points out how important the ADA Amendments Act was.

And Chai, thank you for all your work to get that done. And I look forward to a lot of these issues not having to be litigated, Mr. Penzel, because like you said, they ought to be settled issues now.

Thank you all, again.


Commissioner Feldblum?


I want to thank all of this afternoon's incredibly fine witnesses. I want to thank the experts who illuminated us with the dire statistics, and they are dire. I want to thank the advocates and lawyers who have been working in this field for years.

I want to thank the people with disabilities and our own local Giant Supermarket manager for telling us their personal stories.

I began with a Bob Williams quote, and he really is one of my heroes in this field, so I have to end with one of his. And he often quotes FDR's statement, "True individual freedom cannot exist without economic security and independence." And that is so true. Individual freedom cannot exist without economic security and independence. And when you've lost that job and you just have a mortgage, boy, do you know that.

We know how to make it possible for individuals with intellectual disabilities and psychiatric disabilities to work and to have that independence and freedom. But despite all this knowledge, we have not seen significant improvement in employment, the statistics are dire. My hope is that this Commission meeting has helped demonstrate to us that we can change those statistics. I believe that we as a society -- and I am also a half-full glass type of gal -- can change our assumptions and our expectations about employment for people with intellectual and psychiatric disabilities; and that will make a real difference in terms of employment outcomes.

One critical step, I believe, is to establish a forum in which we are building upon the experiences of those employers who have been leading the way, and to use what they have learned in order to create change on a more systematic basis.

Towards that end, I am very pleased that I've had some initial conversations with the Chamber of Commerce and the Society for Human Resource Management. And I am pleased that they are willing to explore the possibility of working with me, with various disability groups, and various agencies within the government to develop a coherent and coordinated effort to increase the number of people with disabilities in employment.

Building off of this Commission meeting, my staff and I will facilitate such cooperative efforts with an initial focus on the employment of people with mental disabilities. I look forward to reaching out to my government colleagues, including my Commission colleagues, and to a range of disability groups as well as to additional business groups as we get these efforts underway.

Thank you again Madam Chair, for agreeing to convene this meeting.


Commissioner Lipnic?

COMMISSIONER LIPNIC: Thank you Madam Chair.

And again, thanks to all of our witnesses for your incredibly enlightening and oftentimes, incredibly brave testimony today. That was very helpful to us.

I want to also thank Commissioner Feldblum and her very hardworking staff, who are not just a great staff but incredibly committed to this issue as well. And I look forward to further engagement on this issue and hope that we as a Commission will be able to provide some -- whether better guidance or best practices -- in addition to all of the work that goes on in our District offices every day.

And Mr. Penzel, you're a great example of that.

So thank you for convening this meeting.

CHAIR BERRIEN: So in closing, I mostly want to focus on some words of thanks. I neglected earlier in saying thank you to acknowledge the work of Sharon Alexander in my office, who worked with me in preparation for this meeting. She has also worked very hard along with Patrick Patterson on the Americans with Disabilities Act Amendments regulation.

And as all members of the Commission have said today and as I opened, Commissioner Feldblum has exercised tremendous leadership both in the legislative process and also as a member of this Commission in ensuring that the employment rights of people with disabilities are fully protected and enforced; but in also ensuring that the very practical questions, and barriers, and challenges that might exist in the workplace and the obstacles or perceived obstacles to the full enforcement of the ADA, and now the ADA Amendments Act, are dismantled. And today's meeting was a very, very practical effort to advance that goal, to advance the ball in that way. And the commitment that she's outlined to try to continue this dialogue so that this meeting is not a one-off, but in fact that this meeting is part of a broader effort by the Commission to engage all affected communities is significant.

And I want to acknowledge General Counsel Lopez, who in this meeting and in all of the meetings of the Commission, has ensured that we have had access to some of the people around the Commission who in a very real and practical sense, enforce the law, both the attorneys around the country who work to enforce the law in courts, but ultimately to the people like you, Ms. Malone, who have come forward and said, I have rights and they've been violated. I believe they've been violated and I believe that there's something I can do about it. So I want to thank you, as well.

And in closing, I think I just want to pick up on something you said, Ms. Malone, which was, all you wanted was your job. And I think that's a refrain that we hear so often as Commissioners and staff of the Commission. We hear so often you just want the job; you just want the opportunity. And today's meeting, and the ADA, and the ADA Amendments Act, and really every law that we enforce is ultimately about ensuring that there are no discriminatory reasons why you can't fulfill that goal and why that objective cannot be fulfilled.

We heard some very, very powerful testimony today representing every perspective on how we can get closer to the goal of ensuring that people who want to work, who are qualified to work and eager to work have every opportunity to work and to remain in meaningful work. And I think that's why we're all here. So we thank you for helping us to do our job and to do it better.

And if there is a motion, I believe we're ready to adjourn.



CHAIR BERRIEN: All in favor?

(Chorus of ayes.)

CHAIR BERRIEN: We're adjourned.

(Whereupon, the foregoing matter was adjourned at 4:16 p.m.)