Unequal Rights: Discrimination Against People With Mental Disabilities and the Americans With Disabilities Act • Hollow Promises: Employment Discrimination Against People With Mental Disabilities

Justice Brandeis, in his now celebrated dissent in Olmstead v. U.S. (1), wrote, "Experience should teach us to be most on guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding." Susan Stefan, in her companion volumes Unequal Rights: Discrimination Against People With Mental Disabilities and the Americans With Disabilities Act and Hollow Promises: Employment Discrimination Against People With Mental Disabilities, demonstrates that, as regards discrimination against persons with mental disabilities, we must guard against each other's well-meaning zeal just as much as we must guard against that of our government. Professor Stefan shows us the insidious nature of discrimination by pointing out how pervasive and destructive disparate treatment of persons with mental disability is and how often such discrimination occurs in the name of beneficence.

The first volume, Unequal Rights: Discrimination Against People With Mental Disabilities and the Americans With Disabilities Act, begins with an overview of the landscape of discrimination in a wide variety of everyday activities, from churches and educational institutions to housing, and a variety of governmental controls, including marriage and divorce laws, custody and parental rights determinations, and police practices. Stefan makes the point, supported by social science research, that the general public views people with mental disabilities—a compromise term she uses to decrease stigmatization associated with language referring to "disease"—as somehow being to blame for their condition or capable of controlling their disability.

Unlike many works that address clinical and legal topics, Professor Stefan's work gives us the problem in the words and voices of those who must live with the injustice. In chapter 2 she demonstrates how the language that clinicians and attorneys use to describe an incident or situation varies markedly from the description of these same incidents by the people who endure them. She also introduces the reader to a logical differentiation of persons who experience discrimination into two categories. The first category comprises people who "pass," whose lives are affected by mental disability but whose struggles against the impact of the disability are all too often discounted. The second category includes people who are part of the public mental health system. People in this second category often see any evidence of strength or ability they possess being erased as a result of systemic discrimination.

Chapter 3 examines the conflict arising from the role played by government, and in particular the courts, in establishing access to disability benefits while at the same time enforcing disability rights. The U.S. Supreme Court's decision in Board of Trustees of the University of Alabama et al. v. Garrett et al. (2) had not been issued when the book was published, yet the author correctly predicted that the decision would create a jurisprudential catch-22 in which the Americans With Disabilities Act (ADA) identifies the rights of people with mental disabilities but the Court's interpretation of the act's provisions leaves those people without a remedy. As Stefan predicted, the Court found that states cannot be sued, because the 11th Amendment to the U.S. Constitution limits Congress's power to abrogate state immunity.

Chapter 4 examines the ADA in-depth and considers the case of Olmstead v. L. C. (3), in which the U.S. Supreme Court decided that unnecessary institutionalization constituted impermissible discrimination under the ADA. This chapter, along with chapter 5, also considers the forms of discrimination experienced by people with mental disability who have become institutionalized or placed under some other form of control, such as guardianship. Because of discrimination, such placements have traditionally resulted in an individual's loss of rights and the system's failure to recognize the individual's strengths. Chapter 5 in particular considers how the complexities of applying for Social Security Income, Social Security Disability Insurance, and Medicaid programs and of understanding and complying with their restrictions affect the exercise of a person's rights to remain free from discrimination.

Chapters 6 and 7 consider the group of individuals with mental disabilities who have not become institutionalized in any sense but who are instead subject to discrimination in community-based settings, even though their disabilities are less apparent than those of the other group. The emotions of people who are forced to struggle not only with discrimination but also with the impact of their disabilities are made abundantly clear. The dignity and the righteous indignation of those who battle against illegal constraints comes boldly through in these chapters. Private insurance, institutions of higher learning, and the professional licensing boards in particular come in for well-deserved criticism, because their requirements often discriminate against people with mental disabilities and fail to take their abilities into account. The book's conclusion offers a powerful call to arms for concerned practitioners of every discipline and people of every locality to recognize discrimination when they see it and to fight against continuation of the status quo.

If there is any criticism of this fine volume, it is that it occasionally uses dated examples without placing them in historical context and ignores part of a case to make the point the author wants. For example, in the first chapter, Stefan uses the decision in McCabe v. Lifeline Ambulance Services and the City of Lynn (4) to illustrate a point about police practices. She then editorializes that had the victim been charged with a crime, "even a felony, the police could not have entered her apartment without a warrant, but the 1st Circuit ruled that the city policy permitting forcible warrantless entries of private residences to enforce involuntary civil commitment laws did not violate [the victims] constitutional rights." In fact, the court was considering an entry pursuant to a warrant of apprehension that had been issued by a court the previous day. The case could easily be used to illustrate a number of points about discrimination while holding true to the facts of the case.

In the second volume, Hollow Promises: Employment Discrimination Against People With Mental Disabilities, Stefan discusses the issue of employment discrimination and its impact on persons with mental disabilities. This volume considers how passage of the Rehabilitation Act of 1973 and the ADA have affected such discrimination. As in the first volume, the author creates a logical differentiation of persons with mental disabilities into a category that encompasses people who are employed—similar to those who "pass" as described in the first volume—and those who do not work and have usually been institutionalized.

It should come as no surprise to anyone familiar with the first volume that each group is discriminated against and that only the nature and degree of the discrimination differ. Stefan points out that social images of persons with severe emotional problems having successful work careers are lacking because these persons must conceal their mental disabilities to avoid the more pernicious discrimination that revealing them would bring about.

Chapter 1 explains, again in the words of those living with the discrimination, how much having a job means. The author points out that we are defined in many ways by our work. This chapter also brings into question the findings of social science research in regard to high unemployment rates among persons with mental disabilities and describes the reality that persons with mental illness serve as senators, television and print journalists, and astronauts and in a wide variety of both professional and blue-collar jobs that are far beyond "entry level."

Chapter 2 provides an excellent, readable overview of the underlying federal laws (primarily the Rehabilitation Act of 1973 and the ADA), state codes, and case law that define the nature of the remedies available to persons with mental disabilities if they suffer discrimination during the course of their employment. The chapter also provides insight into the ineffectiveness of these remedies as currently interpreted.

Chapter 3 discusses the terminology of the ADA and in particular the nature of "mental impairment." It is important to point out that the ADA does not require merely a diagnosis to trigger ADA's protections. Chapter 4, however, considers the restrictions created by the "substantial limitations" language of the ADA. One of the unfortunate realities of writing about the law is that the lag time before publication often means that the law has changed in the interim. When this volume was published, the U.S. Supreme Court's decision on Toyota Motor Manufacturing v. Williams (5), which clarifies—and further restricts—the application of the ADA, was still pending.

Although discrimination based on a failure to perceive a person's current fitness is difficult to accept, the practice of being forced to suffer for a label applied years earlier is somehow even more onerous. It points out that much of the confusion that leads to lawsuits' being "regarded as having disability" could be ameliorated if the defendant simply admitted that the allegation was true and the parties focused instead on the extent of the harm suffered.

In chapter 6 Professor Stefan examines claims that result from disabilities brought about by stressful or hostile environments in which the employees were seen as qualified and productive until some intervening event. As she demonstrates, we have come to accept stress and abuse as intrinsic to the workplace, which makes it difficult for employees to bring up issues that arise from discrimination due to work-related disabilities.

Chapter 7 considers the nature of discrimination and examines the characteristics of successful employment discrimination cases. The nature and consequences of requests for "reasonable accommodations" are reviewed in chapter 8.

Stefan has assembled a pair of outstanding source books for anyone interested in the nature and the impact of discrimination against persons with mental disabilities as well as the laws that have been passed to help prevent it. These two volumes contain sufficient legal detail to satisfy attorneys who want to take on ADA cases, while remaining readable and understandable to persons who are not versed in the law. In the same manner, they provide a wealth of social science information and research results to justify the arguments they make. It is, however, the author's ability to give voice to those who suffer oppression and discrimination that sets these volumes apart from similar attempts to consider these topics and that makes them recommended reading for anyone who works with persons who suffer from mental disabilities of any manner.