Introduction
Youth residential facilities all across America are filled with the future of our workforce. While in these facilities young people are taught to be functioning attributes to society, and the main way to do this is by obtaining employment. Often these youth are plagued by physical and mental disabilities that will give them a harder road than someone applying for the same position. The U.S. Census Bureau says that about 49.7 million Americans have a disability. Those with a physical disability were 9.4 percent, mental disability was 5.6 percent for people age 16 and older, and 6.9 percent had an employment disability (census.gov). When youth leave facilities were they have been groomed and ultimately institutionalized, they are stuck without skills that will help them obtain employment and be able to compete in today’s society.
The research in this paper will explore the laws that protect those with disabilities and how they may be improved to provide them with equal employment opportunities. These youth put so much of their self-worth into having a job but are often discriminated against. Getting up and being involved in a working society puts forth an image of belonging as so many times in their past they have been shunned aside and made to feel inferior by those most important to them.
Disability discrimination occurs when an employer or other entity covered by the Americans with Disabilities Act, as amended, or the Rehabilitation Act, as amended, treats a qualified individual with a disability who is an employee or applicant unfavorably because she has a disability (eeoc.gov). The negative portrayal of those with mental disabilities is what habitually causes them not to obtain employment. Employers fear the unknown, they seem to only know what they’ve heard about the disabilities and are reluctant to hire.
Americans with Disabilities Act and Fair Employment and Housing Act
It is first important to understand the law that protects those with a disability. Disability discrimination occurs when an employer or other entity covered by the Americans with Disabilities Act, as amended, or the Rehabilitation Act, as amended, treats a qualified individual with a disability who is an employee or applicant unfavorably because she has a disability. Disability discrimination also occurs when a covered employer or other entity treats an applicant or employee less favorably because she has a history of a disability (such as cancer that is controlled or in remission) or because she is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if she does not have such an impairment) (eeoc.gov).
The ADA says that “major life activity” must be an activity that is “of central importance to most people’s daily lives”. Some lower courts had required that individuals must be limited in more than one major life activity to be considered “disabled”. Some federal courts had held that episodic or intermittent impairments, such as epilepsy or post-traumatic stress disorder, were not covered as disabilities. This portion could directly affect a large amount of these youth and those returning from wars that have to return to the workforce (fehc.gov).
The Fair Employment and Housing Act of California says that an employee’s impairment need only affect one job, not a class or broad range of employment, to limit the major life activity of working. Specifically states that chronic or episodic conditions are covered as disabilities. FEHA still focuses on an employer’s perception. An individual is protected if s/he is “regarded or treated as” having or having had any physical or mental condition that makes achievement of a major life activity difficult; or has no present disabling effect but may become a future qualifying physical or mental condition. There is no durational limit to be a disability in FEHA. Note that FEHA provides that when the ADA’s definition of “disability” results in “broader protection” of the civil rights of disabled individuals than the FEHA’s, then “that broader protection” or coverage prevails over conflicting FEHA provisions (fehc.gov).

Mental Disorders
After six years of working with youth who are from tumultuous backgrounds and who suffer from a plethora of disabilities including Post Traumatic Stress disorder, Bipolar, Autism, Schizophrenia, and Asperger’s just to name a few. The next step to helping expand the laws for those with disabilities is having a basic understanding of the disorders. With basic knowledge of the disorder and the affects it could have on the person the employer can understand the limitations that may be presented or any extra accommodations they will have to be made.
The DSM-IV will be used to gather a better understanding of these mental disorders. First, Asperger’s causes a qualitative impairment in social interaction, as manifested by at least two of the following: marked impairment in the use of multiple nonverbal behaviors such as eye-to-eye gaze, facial expression, body postures, and gestures to regulate social interaction, failure to develop peer relationships appropriate to developmental level. There is a lack of spontaneous seeking to share enjoyment, interests, or achievements with other people (e.g., by a lack of showing, bringing, or pointing out objects of interest to other people), lack of social or emotional reciprocity. Restricted repetitive and stereotyped patterns of behavior, interests, and activities, as manifested by at least one of the following: encompassing preoccupation with one or more stereotyped and restricted patterns of interest that is abnormal either in intensity or focus, apparently inflexible adherence to specific, nonfunctional routines or rituals, stereotyped and repetitive motor mannerisms (e.g., hand or finger flapping or twisting, or complex whole-body movements), persistent preoccupation with parts of objects. The disturbance causes clinically significant impairment in social, occupational, or other important areas of functioning (aspergers.com). For the research of this paper we will use the same characteristics for Autism as well as they is very similar. Most of these youth suffer from the next disorder some more extreme than others. Post-Traumatic Stress Disorder is also common in soldiers returning from war, as they will also have to rejoin the workforce upon their return from duty. Thus, this is a relevant disorder in the times faced by Americans today. Posttraumatic Stress Disorder is a condition characterized by intense fear, helplessness, or horror (or disorganized or agitated behavior in children) resulting from the exposure to extreme trauma. The characteristic symptoms include persistent re-experiencing of the traumatic event, persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness, and persistent symptoms of increased autonomic arousal. The full symptom picture must be present for more than 1 month, and the disturbance must cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.
Complications individuals with this disorder may describe painful guilt feelings about surviving when others did not survive or about the things they had to do to survive. Avoidance patterns may interfere with interpersonal relationships and lead to marital conflict, divorce, or loss of job. Auditory hallucinations and paranoid ideation can be present in some severe and chronic cases (mentalhealth.com).
Youth with the next disorder seemed to have the hardest time because the diagnosis is often combined with others such as PTSD. For those that were diagnosed Bipolar to have PTSD as well, the possibilities are dangerous because PTSD can trigger a manic episode. Bipolar I Disorder is one of the most severe forms of mental illness and is characterized by recurrent episodes of mania and (more often) depression. The condition has a high rate of recurrence and if untreated, it has an approximately 15% risk of death by suicide. It is the third leading cause of death among people aged 15-24 years, and is the 6th leading cause of disability (lost years of healthy life) for people aged 15-44 years in the developed world.
In adults, mania is usually episodic with an elevation of mood and increased energy and activity. In children, mania is commonly chronic rather than episodic, and usually presents in mixed states with irritability, anxiety and depression. In adults and children, during depression there is lowering of mood and decreased energy and activity. During a mixed episode both mania and depression can occur on the same day (mentalhealth.com).
The most severe of the mental disorders that will be discussed in this research is Schizophrenia. This disorder, at some point in the illness, involves a psychotic phase (with delusions, hallucinations, or grossly bizarre/disorganized speech and behavior). This psychotic phase must last for at least one month (or less if successfully treated). Schizophrenia also causes impairment in social or vocational functioning which must last for at least 6 months. The psychotic phase is not due to a medical condition, medication, or illegal drug.
Employment
The Bazelon Center for Mental Health Law reports that of those ages 18 to 64 years living in the community, 74.3 percent of people without disabilities were employed, and only 35.3 percent of individuals with disabilities where employed. Of those that are employed 32 percent only work part time. Also, 70 percent of those with a serious mental illness who have college degrees earn less than 10 dollars an hour. This statistic is alarming especially since it reported that those with a college degree earn a million dollars more over a lifetime than those without a degree.
Employment rates also vary by diagnostic group from 40 to 60% for people reporting a major depressive disorder to 20-35% for those reporting an anxiety disorder. Unemployment rates for people with serious and persistent psychiatric disabilities (such as schizophrenia) are the highest, typically 80-90% (Bond, pp.204). As a result, people with serious mental disabilities constitute one of the largest groups of social security recipients. Employers are more likely to hire someone with a physical disability (Long, pp. 20). This is alarming due to the fact that the same law protects both classes.
Surveys of US employers show that half of them are unwilling to hire someone with past psychiatric history or currently undergoing treatment for depression, and approximately 70% are reluctant to hire someone with a history of substance abuse or someone currently taking antipsychotic medication (Scheid, pp.76). In Attitudes of Employers to the Mentally Ill Manning and White share that half of employers would rarely employ someone with a psychiatric disability and almost a quarter would dismiss someone who had not disclosed a mental illness. Even though the Americans with Disabilities Act states “restricts questions that can be asked about an applicant's disability before a job offer is made” (ada.gov).
Compared with individuals with physical disabilities, twice as many people with mental disabilities (the majority) expect to experience employment-related stigma. One in three mental health consumers in the United States report being turned down for a job once their psychiatric status became known and in some cases, job offers were rescinded when a psychiatric history was revealed (Wahl). This rejection has the capability to send someone with an illness such as bipolar into a manic episode.
Due to the fear of rejection often individuals do not seek out the help they need. Only about a third of employees with depression will consult a mental health professional, physician or employee assistance programs and as few as one in 10 of those who report occupational impairment will take medication to address this problem. Yet, the majority of those who are appropriately treated for depression will manifest improved work performance and reduced disability days sufficient to offset employer costs for treatment (Zhang, pp. 1211). Compounding this problem is the fact that few managers have sufficient knowledge to recognize or skills to effectively manage mental health problems at the workplace. Court Cases
Wills v. Superior Court of Orange County
Wills v. Superior Court of Orange County (4th Appellate District, 4/13/2011), is a prime example of what employers fear when hiring individuals with mental disorders. The case is as follows the plaintiff Linda Wills worked for the OC courts and suffered from bipolar disorder. While her supervisors had no clue she suffered from the disorder she did make them aware that she suffered from depression. During her employment she took several leaves of absences to tend to her illness but no one knew what the leaves where for but Wills and her doctor.
While Wills was unknowingly in the middle of a manic episode she threatened two of her co-workers by saying that she was going to place them on her “Kill Bill” list. This was a saying that she got from a movie where the character created a list of people to kill. The co-workers of course took this as a serious threat. After the statement was mad once again her doctor placed her on medical leave. During her leave she forwarded an angry and profane cell phone ringtone to several people including some co-workers. She also sent rambling emails to co-workers that were taken as violent. Due to this behavior and the courts having in there contract that threatening co-workers will not be tolerated Wills was terminated upon her return from leave.
Wills then filed a Fair Employment and Housing Act claim against the employer. The courts ruled that the courts were warranted in their decision to let Wills go because she violated written policies prohibiting threats and violence in the workplace. Although she was able to prove that she did have a mental illness the court reasoned that to hold otherwise would place employers in a unfair and difficult dilemma: they may not discriminate against an employee based on a disability but, at the same time, must provide all employees with a safe work environment free from threats and violence.
This case deals with the stigma that most people with disabilities will face in the workplace. If Wills had informed her co-workers and supervisors of her mental illness she faced the possibility of being dismissed as most with mental disabilities do. She had to make a decision to divulge the information and face being terminated or go about the situation as she did.
In most cases an employer must treat disability-caused misconduct as part of the disability itself when it comes to making employment decisions. On the other hand this does not mean the employer is prohibited from taking adverse employment action based on the disability-caused misconduct. The company must evaluate the situation as though it were taking action based directly on the disability. This often means having to evaluate accommodations which may assist the employee in preventing future misconduct caused by the disability for example, modifying a work schedule for an employee to enable the employee to meet the employer’s schedule and attendance requirements. Only in certain circumstances involving threats or violence against coworkers is an employer allowed to take such adverse employment action against an employee without having to run through this analysis. Therefore, Orange County Courts could not have let Wills go for missing so much time from work because she provided documentation from her doctor.
Hewitt vs. Alcan Aluminum Corporation
Plaintiff was hired to fill an "entry level" position and after a week of becoming familiar with the plant's general operations, he submitted "bids" for several job openings. He was selected, trained and certified by Alcan as a fork lift operator. This position required him to drive a fork lift truck and other industrial conveyances to move, pick up and deliver assorted products, equipment and materials to diverse locations throughout the plant area. Subsequently, Alcan processed and recertified plaintiff for this position in 1985, 1989 and 1996. In Alcan's Employee Handbook of Policies and Practices, the Alcan Mission and Safety Policy stresses the importance of employees guaranteeing a safe and healthy workplace. The Handbook specifically provides that disregarding safety rules and practices, negligently causing injury or possible injury to other employees, and damaging company property, will result in disciplinary action up to and including dismissal.
Starting in January 1995, until his discharge in June 1998, plaintiff was involved in a series of accidents resulting from the unsafe and reckless operation of fork lift trucks or other equipment used in the course of his employment causing property damage and/or near miss accidents. He also displayed disruptive and inappropriate conduct while attending a team safety meeting on October 3, 1995. In addition to corrective action instructions after several of his accidents, plaintiff also received written warnings that future occurrences of property damage could result in additional discipline up to and including termination.
Plaintiff's last fork lift accident at the Alcan plant occurred on June 17, 1998. The fork lift plaintiff was operating knocked over a high stack of heavy aluminum ingots known as sow blocks that weigh 1,000 to 2,500 lbs. each. There was 186*186 no personal injury, but the falling sow blocks crushed a three foot by seven foot hole through the building side causing extensive damage to the inside and outside of the building. When plaintiff continued to operate his forklift in an unsafe manner, he was ordered off the machine forthwith, sent home, later suspended, and, after the accident was investigated, was terminated on June 19, 1998, for unsafe and reckless performance that presented a serious and direct threat to him and other employees.
In January 1999, plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC") alleging discrimination in violation of the Americans with Disabilities Act. Plaintiff claimed that he had a mental impairment — post traumatic stress disorder ("PTSD") and depression — that when not treated with medication, substantially limits his major life activity of working; that Alcan was aware of his condition and discharged him because of his disability; that his alleged unsafe behavior took place because his medication was not always effective; that he could safely perform other work at the plant, but Alcan was unable or unwilling to make reasonable accommodations for him. The EEOC concluded its inquiry by finding that there was no evidence that plaintiff was discharged based on his disability, and that Alcan's discharge of plaintiff based on his unsafe and reckless work performance was a legitimate, nondiscriminatory reason for its action.
The EEOC issued plaintiff a Notice of Right-to-Sue letter dated June 14, 1999. This action was commenced with a filing of a summons and complaint on September 16, 1999, seeking monetary damages, injunctive relief and counsel fees. Currently before the court is defendant's motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff has entered opposition to this motion defendant has also moved in its reply brief to strike Plaintiff's Exhibit A from the record in this case claiming that the medical records contained therein are not properly authenticated. Defendant's latter motion will be denied because the non-moving party is in a favorable position, being entitled "to have the credibility of his evidence as forecast assumed, his version of all that is in dispute accepted, all internal conflicts in it resolved favorably to him, the most favorable of possible alternative inferences from it drawn in his behalf; and finally, to be given the benefit of all favorable legal theories invoked by the evidence as considered."(scholar.google.com).
These two cases are examples of how difficult it is for a person with a mental disability to maintain employment. The sometimes erratic behaviors can cause conflicts and often dangers in the workplace. Wills behavior caused a major dilemma for her company which was whether to satisfy the co-workers and adhere to their concerns or to maintain Wills employment and hope that the behaviors did not persist. Hewitt on the other hand posed dangers to himself and others as well as costing the company a tremendous amount of money. Although, the company was aware of Hewitt’s conditions his accidents became too much of a liability.
Hands on Experience Working one on one with these youth gives one an inside look at the difficulties they face in everyday life, especially when it comes to obtaining employment. Jacob 20 (name changed to protect identity) has been diagnosed with PTSD, bipolar, and has an IQ of 54% which deems him mentally retarded. Jacob currently has pending charges of 2nd degree assault stemming from an incident that took place while he was living in a residential facility. The incident took place two weeks after Jacobs 18th birthday which was why he was charged as an adult. Jacobs’s disorder as seen in the case of Wills and Hewitt caused his anger to make him act irrationally, throwing a garbage can and accidentally hitting a school administrator.
The state of Kentucky gives youth in states care the opportunity to recommit when they turn 18. They are given the opportunity to go to an in state college for free and stay in an apartment rent free as long as they are enrolled in school and are working at least 25 hours a week. Jacob is a participant in this program therefore he must maintain employment or risk being removed from states care. With this Jacob will join the high number of homeless youth with mental disabilities. Due to his criminal charges and mental disabilities Jacob has had an extremely difficult time finding employment.
Jacob has been called in for interviews but once there the employer can clearly identify that he has a mental disorder, and therefore he never receives a call back. This causes discouragement and vulnerability in those trying to be productive assets in American society. Due to the lack of opportunities for this group of people employers like Kroger and Wal-Mart have made it their mission to hire more people with disabilities.
Employers Hire those with Disabilities
As one of the country’s largest private employers, Wal-Marts mission is to encourage and empower their associates at all levels by providing job opportunities for associates with disabilities to participate fully in the workplace. Wal-Mart’s efforts to recruit a diverse workforce include partnering with organizations such as Career Opportunities for Students with Disabilities, the National Business and Disability Council, RecruitABILITY and the American Association of People with Disabilities. Leading and Empowering Associates with Disabilities (LEAD) is the Associate Resource Group (ARG) in Wal-Mart’s Home Office created to build a sense of community among associates sharing similar backgrounds and interests. ARGs focus on five key areas including recruitment and retention, diversity best practices insight, business support, associate development and community development. Wal-Mart policy allows for job aids for associates with medical conditions not currently recognized by law under the ADA. Wal-Mart will continue to work to be a leader in support of our associates with disabilities (walmartstores.com).
Wal-Mart has received numerous awards for their efforts to employ those with disabilities. Wal-Mart abides by the laws under the ADA as well as going above and beyond the call of duty to ensure that all are given equal opportunities. The employees are placed in the front of the house amongst the customers giving them a since of leadership and allows them to take ownership.
Incentives for Organizations
Each year the federal government spends 40 times more to support individuals with disabilities than it spends to help them prepare for and find jobs. To further encourage employers to hire individuals with disabilities, the U.S. Department of Labor (DOL) offers wage and tax incentives. After an employee with disabilities has worked 400 hours, the company is eligible to receive a tax credit of 40 percent of the employees’ first $6,000 in wages. If the worker leaves employment, but has worked at least 120 hours, the employer remains eligible for a prorated tax credit of 25 percent. Therefore the government sees the positive aspect in organizations employing those with disabilities.
The Work Opportunity Tax Credit (WOTC) is a federal income tax benefit administered by the U.S. Department of Labor, for private, for profit employers who hire from target populations. WOTC reduces a business’ federal tax liability, serving as an incentive to select job candidates who may be somewhat disadvantaged in their efforts to find employment. Hiring from a select group of qualified job seekers can mean direct federal tax savings to businesses ranging from $1,200 to $9,000 per qualifying employee (Collison, pp.8). If the Human Resource director of organizations becomes aware of these credits they are more likely to begin hiring those with disabilities, thus expanding opportunities for this set group.
The Mental Health Parity Act Those with mental disabilities are often taken advantage of; therefore they need laws to protect them in all situations. The Mental Health Parity Act is one such law. The Mental Health Parity Act (MHPA), signed into law on September 26, 1996, requires that annual or lifetime dollar limits on mental health benefits be no lower than any such dollar limits for medical and surgical benefits offered by a group health plan or health insurance issuer offering coverage in connection with a group health plan. MHPA applies to group health plans for plan years beginning on or after January 1, 1998. The original sunset provision (providing that the parity requirements would not apply to benefits for services furnished on or after September 30, 2001) has been extended several times. If you have questions about the sunset provision, contact the EBSA office nearest you.
The law generally requires parity of mental health benefits with medical/surgical benefits with respect to the application of aggregate lifetime and annual dollar limits under a group health plan. Provides that employers retain discretion regarding the extent and scope of mental health benefits offered to workers and their families (including cost sharing, limits on numbers of visits or days of coverage, and requirements relating to medical necessity). The law, however, does not apply to benefits for substance abuse or chemical dependency.
The law also contains the following two exemptions, small employer exemption MHPA does not apply to any group health plan or coverage of any employer who employed an average of between 2 and 50 employees on business days during the preceding calendar year, and who employs at least 2 employees on the first day of the plan year. Increased cost exemption, MHPA does not apply to a group health plan or group health insurance coverage if the application of the parity provisions results in an increase in the cost under the plan or coverage of at least one percent (dol.gov).
Drug Addiction and Alcoholism
The factor of drug and alcoholism is imperative when dealing with the issue of mental health, especially with those coming from the backgrounds as these youth. Children whose parents or other siblings are alcoholics or drug users are at greater risk of developing a substance use disorder than those without such a history. Having an alcoholic family member, for example, doubles the risk of a male child later become alcohol or drug dependent. Genetic factors play a significant role in determining this trait. There is evidence that children born of an alcoholic parent, even when raised by non-alcoholic foster parents, have much higher rates of alcoholism than those with non-alcoholic origins.
Those that consume alcohol while pregnant have the risk of giving their children Fetal Alcohol Syndrome. A baby with fetal alcohol syndrome may have the following symptoms: Poor growth while the baby is in the womb and after birth, Decreased muscle tone and poor coordination. Delayed development and significant functional problems in three or more major areas: thinking, speech, movement, or social skills (as expected for the baby's age) Heart defects such as ventricular septal defect (VSD) or atrial septal defect (ASD). Structural problems with the face, including, Narrow, small eyes with large epicanthal folds, Small head, Small upper jaw, Smooth groove in upper lip, and Smooth and thin upper lip.
Parental drug use or parental attitudes approving drug use appear to predispose children to substance abuse. Since parents serve as models for their children’s behavior in so many ways, it is not surprising that children whose parents smoke, drink heavily or use illegal drugs are more likely to do so than children whose parents do not (acde.org). Women who abuse drugs while pregnant put their children at extremely high risk and these children are born with the drugs in their system.
Once these children who are impacted by drug and alcohol use at birth grow up and enter the workforce, they face a new set of problems. The consumption of drugs and alcohol is commonly split into three categories: use, abuse, and dependence. Although these terms are frequently used interchangeably by lay people, they each have a particular meaning for substance abuse treatment professionals.
The use of drugs or alcohol does not usually rise to the level of impairment that would constitute a disability, although abuse and dependence do. Drug or alcohol abuse is defined as an intense, regular, or binge consumption. Dependence means compulsive or addictive consumption. Substance abuse and substance dependence are both treatable conditions under the Diagnostic and Statistical Manual IV (DSM-IV), the diagnosis of which focuses on psychological, behavioral, and cognitive symptoms. Most importantly, especially for the purposes of the ADA, the impact of substance abuse on functioning is important in evaluating the severity of the condition. For instance, some drug addicts and alcoholics can function at work even after things have declined at home.
The Americans with Disabilities Act (ADA) protects some substance abusers against employment discrimination. However, because not all instances of drug or alcohol addiction are covered by the ADA, many employers and employees do not understand their rights and responsibilities under the Act. The ADA applies to organizations with at least 15 employees and is administered by the Equal Employment Opportunity Commission (EEOC). Although this is federal law each state has the ability to set aside its own law and implications. Employers must evaluate both state and federal laws when enacting company policies and procedures.
Under the ADA, employers must balance enforcing reasonable workplace safety and behavioral rules with making reasonable accommodations for employees with drug and alcohol problems. The least employers can do is prohibit employees from coming to work under the influence of drugs or alcohol and engaging in disruptive behavior, even if the behavior is associated with a protected drug or alcohol problem. Employees with past drug or alcohol problems, and some employees with current alcohol problems, are protected under the ADA. However, employees who currently use drugs illegally do not enjoy the same protections. In fact, the legislation points out those current illegal-drug users are not protected if the employer’s actions are based upon the drug use. Employers can prohibit the use of illegal drugs or the use of alcohol in the workplace. In Sally v. Circuit City, Inc., a US Court of Appeal found for the employer when it terminated a manager who admitted to using illegal drugs, failed to show for work due to the drug use, and came to work under the influence.
Illegal drug users are not just those who use so called ‘street drugs’ – the exclusion pertains to those who take prescription drugs unlawfully as well. To be considered a current illegal drug user, and thus not find protection under the ADA, the employee must have used the drug close enough in time to the related employment issue or incident to indicate that there is an on-going problem. This determination must be made on a case-by-case basis and should not encompass behavior that occurred prior to entering a treatment program. Employers are permitted to ensure that employees are no longer using illegal drugs by conducting drug tests and obtaining information from treatment programs.
If an employee is participating in a supervised drug rehab program, such as being enrolled at a drug treatment center, is currently on a methadone maintenance program, or has completed drug treatment, they are protected from discrimination under the ADA. The ADA also protects people who are mistakenly targeted as drug abusers during workplace drug testing.
To be protected under the ADA, alcoholics must be at a level of addiction in which the alcoholism impairs one or more major life functions, such as caring for one’s self (ada.gov). However, the person also must be able to perform the “essential functions” of the job with reasonable accommodation for incidental tasks. Active alcoholics will be held to the same performance and conduct standards as other employees, even if job-related issues stem from the alcohol abuse.
In the recent second circuit decision of Vandenbroek v. PSEG Power, the US Court of Appeal upheld summary judgment in favor of the employer, finding that terminating an alcoholic employee was not a violation of the ADA. The employee argued that his alcoholism resulted in his frequently being late to work. The employer argued that Vandenbroek had been terminated due to violation of the no call/no show policy, rather than his alcoholism. The court found that getting to work on-time was an “essential” function of the job and the employee’s lack of ability to do so due to his alcoholism did not entitle him to ADA protection.

JOB APPLICANTS & DRUG TESTING
Under the ADA, a prospective employer may ask about current illegal drug use prior to making an offer of employment; employers can also question employees about current drug use at any time without giving a reason. Employers are also allowed to test job candidates and current employees as well, even if there is no obvious reason to do so.
However, employers must be very careful not to inquire about alcohol use or past drug use prior to making an employment offer. Similarly, current employees can only be questioned about such issues if it is job related or is required by business necessity.
Recovering drug addicts and alcoholics are entitled to accommodation based on their job requirements and time in recovery. For instance, employees may need time off to attend outpatient treatment, counseling sessions, or 12-step meetings. Some of these requirements may be permanent to avoid relapse. Employers might also allow active alcoholics to enter an in-patient alcohol treatment center using unpaid time off. If the employer provides paid leave for treatment for those suffering from other disabilities, the same benefit must be provided for an alcoholic who enters rehab (everythingaddiction.com).
COURT CASE
RAYTHEON CO.v.HERNANDEZ No. 02-749.Supreme Court of United States. Argued October 8, 2003.Decided December 2, 2003.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT 45 THOMAS, J., delivered the opinion of the Court, in which all other Members joined, except SOUTER, J., who took no part in the decision of the case, and BREYER, J., who took no part in the consideration or decision of the case. Carter G. Phillips argued the cause for petitioner. With him on the briefs were Alan Charles Raul, Paul Grossman, Paul W. Cane, Jr., Neal D. Mollen, Jay B. Stephens, and Ronald Stolkin.
Deputy Solicitor General Clement argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Olson, Assistant Attorney General Boyd, John P. Elwood, David K. Flynn, and Sarah E. Harrington. Stephen G. Montoya argued the cause and filed a brief for respondent. Justice Thomas delivered the opinion of the Court. The Americans with Disabilities Act of 1990 (ADA), 104 Stat. 327, as amended, 42 U. S. C. 12101 et seq., makes it unlawful for an employer, with respect to hiring, to "discriminate against a qualified individual with a disability because of the disability of such individual." 12112(a). We are asked to decide in this case whether the ADA confers preferential rehire rights on disabled employees lawfully terminated for violating workplace conduct rules. The United States Court of Appeals for the Ninth Circuit held that an employer's unwritten policy not to rehire employees who left the company for violating personal conduct rules contravenes the ADA, at least as applied to employees who were lawfully forced to resign for illegal drug use but have since been rehabilitated. Because the Ninth Circuit improperly applied a disparate-impact analysis in a disparate-treatment case in order to reach this holding, we vacate its judgment and remand the case for further proceedings consistent with this opinion. We do not, however, reach the question on which we granted certiorari. 537 U. S. 1187 (2003).
Respondent, Joel Hernandez, worked for Hughes Missile Systems for 25 years.[1] On July 11, 1991, respondent's appearance 47*47 and behavior at work suggested that he might be under the influence of drugs or alcohol. Pursuant to company policy, respondent took a drug test, which came back positive for cocaine. Respondent subsequently admitted that he had been up late drinking beer and using cocaine the night before the test. Because respondent's behavior violated petitioner's workplace conduct rules, respondent was forced to resign. Respondent's "Employee Separation Summary" indicated as the reason for separation: "discharge for personal conduct (quit in lieu of discharge)." App. 12a.
More than two years later, on January 24, 1994, respondent applied to be rehired by petitioner. Respondent stated on his application that he had previously been employed by petitioner. He also attached two reference letters to the application, one from his pastor, stating that respondent was a "faithful and active member" of the church, and the other from an Alcoholics Anonymous counselor, stating that respondent attends Alcoholics Anonymous meetings regularly and is in recovery. Id., at 13a-15a.
Joanne Bockmiller, an employee in the company's Labor Relations Department, reviewed respondent's application. Bockmiller testified in her deposition that since respondent's application disclosed his prior employment with the company, she pulled his personnel file and reviewed his employee separation summary. She then rejected respondent's application. Bockmiller insisted that the company had a policy against rehiring employees who were terminated for workplace misconduct. Id., at 62a. Thus, when she reviewed the employment separation summary and found that respondent had been discharged for violating workplace conduct rules, she rejected respondent's application. She testified, in particular, that she did not know that respondent was a former drug addict when she made the employment decision and did not see anything that would constitute a "record of" addiction.
Respondent subsequently filed a charge with the Equal Employment Opportunity Commission (EEOC). Respondent's charge of discrimination indicated that petitioner did not give him a reason for his nonselection, but that respondent believed he had been discriminated against in violation of the ADA. Petitioner responded to the charge by submitting a letter to the EEOC, in which George M. Medina, Sr., Manager of Diversity Development wrote "The ADA specifically exempts from protection individuals currently engaging in the illegal use of drugs when the covered entity acts on the basis of that use. Contrary to Complainant's unfounded allegation, his non-selection for rehire is not based on any legitimate disability. Rather, Complainant's application was rejected based on his demonstrated drug use while previously employed and the complete lack of evidence indicating successful drug rehabilitation.
"The Company maintains it’s [sic] right to deny re-employment to employees terminated for violation of Company rules and regulations. . . . Complainant has provided no evidence to alter the Company's position that Complainant's conduct while employed by [petitioner] makes him ineligible for rehire."
This response, together with evidence that the letters submitted with respondent's employment application may have alerted Bockmiller to the reason for respondent's prior termination, led the EEOC to conclude that petitioner may have "rejected [respondent's] application based on his record of past alcohol and drug use." (EEOC Determination Letter, Nov. 20, 1997). The EEOC thus found that there was "reasonable cause to believe that [respondent] was denied hire to the position of Product Test Specialist because of his disability." The EEOC issued a right-to-sue letter, and respondent subsequently filed this action alleging a violation of the ADA.
Respondent proceeded through discovery on the theory that the company rejected his application because of his record of drug addiction and/or because he was regarded as being a drug addict. In response to petitioner's motion for summary judgment, respondent for the first time argued in the alternative that if the company really did apply a neutral no-rehire policy in his case, petitioner still violated the ADA because such a policy has a disparate impact. The District Court granted petitioner's motion for summary judgment with respect to respondent's disparate-treatment claim. However, the District Court refused to consider respondent's disparate-impact claim because respondent had failed to plead or raise the theory in a timely manner.
The Court of Appeals agreed with the District Court that respondent had failed timely to raise his disparate-impact claim. Hernandez v. Hughes Missile Systems Co., 298 F. 3d 1030, 1037, n. 20. In addressing respondent's disparate-treatment claim, the Court of Appeals proceeded under the familiar burden-shifting approach first adopted by this Court in McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973). First, the Ninth Circuit found that with respect 50*50 to respondent's prima facie case of discrimination, there were genuine issues of material fact regarding whether respondent was qualified for the position for which he sought to be rehired, and whether the reason for petitioner's refusal to rehire him was his past record of drug addiction. The Court of Appeals thus held that with respect to respondent's prima facie case of discrimination, respondent had proffered sufficient evidence to preclude a grant of summary judgment. Because petitioner does not challenge this aspect of the Ninth Circuit's decision, we do not address it here.
The Court of Appeals then moved to the next step of McDonnell Douglas, where the burden shifts to the defendant to provide a legitimate, nondiscriminatory reason for its employment action. 411 U. S., at 802. Here, petitioner contends that Bockmiller applied the neutral policy against rehiring employees previously terminated for violating workplace conduct rules and that this neutral company policy constituted a legitimate and nondiscriminatory reason for its decision not to rehire respondent. The Court of Appeals, although admitting that petitioner's no-rehire rule was lawful on its face, held the policy to be unlawful "as applied to former drug addicts whose only work-related offense was testing positive because of their addiction." 298 F. 3d, at 1036. The Court of Appeals concluded that petitioner's application of a neutral no-rehire policy was not a legitimate, nondiscriminatory reason for rejecting respondent's application: "Maintaining a blanket policy against rehire of all former employees who violated company policy not only screens out persons with a record of addiction who have been successfully rehabilitated, but may well result, as [petitioner] contends it did here, in the staff member who makes the employment decision remaining unaware of the `disability' and thus of the fact that she is committing an unlawful act. . . . Additionally, we hold that a policy that serves to bar the reemployment of a drug addict despite his successful rehabilitation violates the ADA."
In other words, while ostensibly evaluating whether petitioner had proffered a legitimate, nondiscriminatory reason for failing to rehire respondent sufficient to rebut respondent's prima facie showing of disparate treatment, the Court of Appeals held that a neutral no-rehire policy could never suffice in a case where the employee was terminated for illegal drug use, because such a policy has a disparate impact on recovering drug addicts. In so holding, the Court of Appeals erred by conflating the analytical framework for disparate-impact and disparate-treatment claims. Had the Court of Appeals correctly applied the disparate-treatment framework, it would have been obliged to conclude that a neutral no-rehire policy is, by definition, a legitimate, non-discriminatory reason under the ADA. And thus the only remaining question would be whether respondent could produce sufficient evidence from which a jury could conclude that "petitioner's stated reason for respondent's rejection was in fact pretext." McDonnell Douglas, supra, at 804.
This Court has consistently recognized a distinction between claims of discrimination based on disparate treatment and claims of discrimination based on disparate impact. The Court has said that "`disparate treatment' . . . is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex, or [other protected characteristic]." Teamsters v. United States, 431 U. S. 324, 335, n. 15 (1977). See also Hazen Paper Co. v. Biggins, 507 U. S. 604, 609 (1993) (discussing disparate-treatment claims in the context of the Age Discrimination in Employment Act of 1967). Liability in a disparate-treatment case "depends on whether the protected trait . . . actually motivated the employer's decision." By contrast, disparate-impact claims "involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity." Teamsters, supra, at 335-336, n. 15. Under a disparate-impact theory of discrimination, "a facially neutral employment practice may be deemed [illegally discriminatory] without evidence of 53*53 the employer's subjective intent to discriminate that is required in a `disparate-treatment' case." Wards Cove Packing Co. v. Atonio, 490 U. S. 642, 645-646 (1989), superseded by statute on other grounds, Civil Rights Act of 1991.
Both disparate-treatment and disparate-impact claims are cognizable under the ADA. See 42 U. S. C. § 12112(b) (defining "discriminate" to include "utilizing standards, criteria, or methods of administration . . . that have the effect of discrimination on the basis of disability" and "using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability"). Because "the factual issues, and therefore the character of the evidence presented, differ when the plaintiff claims that a facially neutral employment policy has a discriminatory impact on protected classes," Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248, 252, n. 5 (1981), courts must be careful to distinguish between these theories. Here, respondent did not timely pursue a disparate-impact claim. Rather, the District Court concluded, and the Court of Appeals agreed, that respondent's case was limited to a disparate-treatment theory, that the company refused to rehire respondent because it regarded respondent as being disabled and/or because of respondent's record of a disability.
Petitioner's proffer of its neutral no-rehire policy plainly satisfied its obligation under McDonnell Douglas to provide a legitimate, nondiscriminatory reason for refusing to rehire respondent. Thus, the only relevant question before the Court of Appeals, after petitioner presented a neutral explanation for its decision not to rehire respondent, was whether there was sufficient evidence from which a jury could conclude that petitioner did make its employment decision based on respondent's status as disabled despite petitioner's proffered explanation. Instead, the Court of Appeals concluded that, as a matter of law, a neutral no-rehire policy was not a legitimate, nondiscriminatory reason sufficient to defeat a prima facie case of discrimination. The Court of Appeals did not even attempt, in the remainder of its opinion, to treat this claim as one involving only disparate treatment. Instead, the Court of Appeals observed that petitioner's policy "screens out persons with a record of addiction," and further noted that the company had not raised a business necessity defense, 298 F. 3d, at 1036-1037, and n. 19, factors that pertain to disparate-impact claims but not disparate-treatment claims. See, e.g., Grano v. Department of Development of Columbus, 637 F. 2d 1073, 1081 (CA6 1980) ("In a disparate impact situation . . . the issue is whether a neutral selection device . . . screens out disproportionate numbers of [the protected class]"). By improperly focusing on these factors, the Court of Appeals ignored the fact that petitioner's no-rehire policy is a quintessential legitimate, nondiscriminatory reason for refusing to rehire an employee who was terminated for violating workplace conduct rules. If petitioner did indeed apply a neutral, generally applicable no-rehire policy in rejecting respondent's application, petitioner's decision not to rehire respondent can, in no way, be said to have been motivated by respondent's disability.
The Court of Appeals rejected petitioner's legitimate, nondiscriminatory reason for refusing to rehire respondent because it "serves to bar the re-employment of a drug addict despite his successful rehabilitation." 298 F. 3d, at 1036-1037. We hold that such an analysis is inapplicable to a disparate-treatment claim. Once respondent had made a prima facie showing of discrimination, the next question for the Court of Appeals was whether petitioner offered a legitimate, nondiscriminatory reason for its actions so as to demonstrate that its actions were not motivated by respondent's disability. To the extent that the Court of Appeals strayed from this task by considering not only discriminatory intent but also discriminatory impact, we vacate its judgment and remand the case for further proceedings consistent with this opinion (googlescholar.com).
Employment Equality
Employment equity acts that have adopted a social model of disability have increasingly converged around three key issues: the need to promote greater employment equity for persons with physical and psychiatric disabilities; the outlawing of occupational discrimination of disabled workers in recruitment, retention and promotion; and the requirement for employers to make reasonable accommodations for disabled employees (Lunt, pp.224).
Employer attitudes play a central role in the success of antidiscrimination legislation, the extent to which disabled people are accepted into occupational life and the extent to which reasonable workplace accommodations are made. Recent research shows that support from employers for equity and workplace accommodations has been poor, and compliance with legislative requirements has been problematic. In the United States, for example, mental disorders are the second most common basis for charges of discrimination and workplace harassment under the Americans with Disabilities Act (Schied, pp.19). Of the 263 disability cases brought to trial in 2004, only 2% of the decisions favored the employee, 74% favored the employer and 24% were unresolved. A total of 54 cases (21%) were brought forward by people with a mental disability. Of these, 76% resulted in employer wins, 24% were unresolved and none favored the employee. Eight cases involved people with substance disorders. Of these, 75% resulted in employer wins, 25% were not resolved and none favored the employee (Albright, pp.513). An inability to convince the court that a mental impairment resulted in a significant disability often precluded a claimant from being able to present a persuasive argument about an employer's discriminatory treatment or failure to provide reasonable accommodations. This was particularly true in cases in which the illness was episodic and the disability intermittent or when symptoms appeared to be well controlled.
When a person with a mental disability loses one of these court proceedings they are likely to spiral into an episode. Thus the feelings of loneliness and despair can cause them to become volatile, and discourage them from looking for employment in the future. It is extremely difficult to find in their favor proving that no matter what the laws state it is in the courts hands.
Conclusion
The research proves that by affording those with disabilities the same opportunities in employment, the employee and employer benefit. The employer can benefit from monetary advances through government incentives and the company can learn that the stigmas aren’t always true. The tax incentives can be put towards such programs as Well-being Projects. The employee will thrive and be accepted into the work force contributing to positive self-esteem and self-worth. Laws that are in place are proven to be effective, but it’s imperative for both parties to become knowledgeable of their rights.

References 1) Albright AL. 2004 Employment Decisions Under the ADA Title 1 Survey Update. Ment Physical Disability Law Rep. 2005 29 513-516. 2) Lunt N. Thornton P. Disability and Employment Towards a Understanding of Discourse and Policy Disability Society. 1994 223-238. 3) Collison, Jessica. Grant, Phillip. Employer Incentives for Hiring Individuals with Disabilities.2003 6-10. 4) Scheid TC. Employment of Individuals with Disabilities Business Responses to the ADA Challenge Behavior Sci Law. 1999 73-91 5) Zhang M. Rast KM. Fortney JC. Smith GR. A Community Study of Depression Treatment and Employment Earnings Psychiatric Serv 1999. 1209-1213. 6) Acde.org/health/riskfact.htm 7) ADA.gov 8) Aspergers.com 9) Census.gov/hhes/www/gqdisabilities.com 10) Dol.gov 11) Eeoc.gov 12) Everythingaddiction.com/publicpolicy/protection-for-employeeswithdrugalcoholproblemsunderada 13) Medscape.com/viewarticles/542517 14) Mentalhealth.com 15) Rjop.com/PDF/WillsVSuperiorCourtofOrangeCounty.pdf