Civil vs. Human Rights

The Illusion of Inclusion – Roadblock #3

The ADA Reinforces Stigma

ADA

The Americans with Disabilities Act was signed into law 25 years ago by President George H.W. Bush. The ADA altered the public’s perception of the civil rights of people with disabilities; offering protection from discrimination in employment, as well as equal access to public and private services. In 2008, President George W. Bush signed the ADAAA (ADA Amendments Act), which broadened the definition of “disability.” While the ADA has provided SOME protection from discrimination in employment; those with “invisible” disorders face the greatest challenges. (See also “Mental Illness – Behind the ADA Smoke Screen” below).

A Medical Model – ADA

The ADA is based on a medical approach to the definition of disability, and was never intended to achieve equality. The narrowly drawn legislation sought to move people from reliance on government benefits to employment by prohibiting discrimination.

The Social Model – CRPD

In comparison, the Convention on the Rights of People with Disabilities (CRPD), adopted by the United Nations in 2006, embraced a human rights approach, which included a broad definition of equality, a social model of disability, recognition of the right to reasonable accommodation as a free-standing human right, and adherence to the interdependence of civil, political, economic, social, and cultural rights as well as negative and positive rights. The Americans with Disabilities Act at 25 Years: Lessons to Learn from the Convention on the Rights of Disabilities, written by Arlene S. Kanter, suggests that the CRPD values independence alongside the need for support. This “right to support” offers an opportunity to ensure greater equality and participation in society, while challenging the American values of independence and self-reliance.

A human rights approach views people with disabilities as rights holders, who are more often disabled by the attitudinal barriers societies erect to exclude and stigmatize them, than by their own mental condition.

Civil Rights – Requiring Proof of Eligibility?

The ADA (along with other laws, which are based on the medical model) requires a person with a disability to prove that he or she has a medical condition or diagnosis in order to receive protection under the law. No other civil rights law in the U.S. requires the person to prove eligibility by meeting a certain test, nor do any other civil rights laws include categories of people who are specifically excluded.

The social model of disability sees the problem of exclusion of people with disabilities not as a result of the person’s medical condition or diagnosis, but rather the result of societal barriers that limit the person’s full inclusion and participation in society.

The Stigma of Requesting Accommodations

The requirement of reasonable accommodations within the ADA may perpetuate the very stereotype the ADA seeks to eradicate. Disability studies scholar, Lennard Davis observes, when individuals exercise their right to accommodations, they are seen as “overly self-concerned, overly demanding.” They are “regarded as narcissists,” and “as demanding exceptions for themselves, that overstep what employers can or should provide.”

As long as such negative views of people with disabilities remain unchallenged, people with disabilities will remain stigmatized and excluded from mainstream society. And, while “reasonable accommodations” and modifications may be “required”, they are not guaranteed.

Lennard Davis’ accurately states, “There is much to celebrate on this 25th anniversary of the ADA, but there is more to do to move the largest minority out of poverty and away from social stigma, so that their civil rights on paper will also confer economic and social rights in reality.” His blog, Discrimination Doesn’t End on the 25th Anniversary of the Americans With Disabilities Act, posted on the Huffington Post Website, reminds us that discrimination also exists in misperceptions about how government benefits work, and despite widespread propaganda; the fraud rate for government benefits is less than one percent by many estimates. Yet disabled people on benefits are cast as “welfare queens.”

On the 25th Anniversary of the ADA, Psychology Today published, Why People with Mental Illness Haven’t Gained from the ADA – The shameful wall of exclusion remains. The article illustrates why people with serious mental illness remain one group of people that has been “left behind by the ADA.” Perhaps the only way for the ADA to truly serve its stated purpose…“to make sure Americans with disabilities have the same rights and opportunities as everyone else,” is by questioning the “old fashioned American values of independence and self-reliance, and embracing a more interdependent mentality. According to Psychology Today, the healthiest way to interact with those close to us, is by being truly interdependent.

It is time to move beyond civil rights, and to embrace the deeper construct of “human rights” for all.

On July 20, 2015, the 25th anniversary of the ADA, President Obama acknowledged the importance of employing individuals with disabilities. He stressed that we have more to do to live up to our responsibilities, suggesting, “This is not just about American rights, it is about human rights, and that is something our nation has to stand for.”

The President Speaks on the
25th Anniversary of the Americans with Disabilities Act

Mental Illness – Behind the ADA Smoke Screen

Unfortunately, conversations about workforce diversity rarely include people with disabilities. Those with mental disabilities perceive the ADA as merely a smoke screen, because in reality, the law cannot guarantee the protection of jobs for individuals with Mental Illness because mental disorders DO “affect performance.” One’s productivity and behavior may appear inconsistent at times (regardless of whether or not an individual has disclosed his/her disability). While memory and cognition can be impacted by other disabilities, such as multiple sclerosis, diabetes, or chronic pain; the public tends to be less forgiving when symptoms are not “visible,” and begin in the brain. Colleagues often conclude that an individual “lacks motivation,” has a character flaw, or simply does not possess a respectable work ethic, when their performance declines.

In truth, for individuals experiencing cognitive symptoms…

A. Impairment tends to vary in intensity in response to stress, changes in physical health, adjustments or tolerance to medication, a variation in sleep schedule, seasonal changes, and/or variables within the work environment.

B. After disclosing a disorder and securing appropriate accommodations, performance can be affected by subsequent anxiety, and concerns regarding reactions and judgments of supervisors and colleagues; which can potentially be more painful than the mental illness itself.

C. Employees who choose not to disclose, are NOT likely to obtain the accommodations necessary to adequately meet employer expectations; further eroding self-esteem, and augmenting already poor mental health. The energy invested in keeping secrets hidden, and the discomfort of living inauthentic lives, often adds insult to injury.

D. The modern workplace has made it more and more difficult for those with “hidden” disabilities to access accommodations.

Click through to access the Mental Health Impairment section of JAN’s Searchable Online Accommodation Resource (SOAR) system; designed to let users explore various accommodation options for people with disabilities in work and educational settings.

Disability Statistics

Employees with disabilities earn “one third less,” according to DisabilityScoop.com.” For those with a high school diploma, the wage gap amounted to $6,500 per year. The disparity rose to nearly $13,000 for those with a bachelor’s degree and over $20,000 for individuals with master’s or other more advanced degrees.” Treatment costs, combined with a compromised earning potential, add even more stress to an individual fighting to “bounce back” from each episode of a chronic mental illness.

Despite the progress over 25 years, social stigma persists, and equal employment remains an issue. The ADA National Network highlighted the low employment rate as one of the current barriers to equality. Cornell University (PDF) reported that the employment rate for people with disabilities in 2012 was 33.5%; which was less than half the rate of people without disabilities.