Mental Disability Video Program

Panelists

Justin Cummins, an attorney with Miller-O'Brien Cummins. Cummins is vice-chair of the governing council of the Minnesota State Bar Association's labor and employment section. He teaches courses on civil rights law at the University of Minnesota Law School and the William Mitchell College of Law.

Kathleen Hagen, a staff attorney for the Minnesota Disability Law Center, part of Minneapolis Legal Aid, where she advocates for people with disabilities who face discrimination. Hagen was an investigator for the Department of Human Rights from 1981 until 1994.

Sandra Meicher, executive director of the Mental Health Association of Minnesota. In 2004, she was included as one of Minnesota's 100 most influential health care leaders by Minnesota Physician Publishing. Meicher also has a brother who has a serious and persistent mental illness.

Kimberley Peck, director of Rehabilitation Services for the Minnesota Department of Employment and Economic Development. Rehabilitation Services served more than 20,000 people in 2006, 1/3 of them reporting a serious mental illness as their primary disability. Peck is also a licensed social worker.

The program was hosted by freelance journalist Gary Gilson and produced by the Department of Human Rights in collaboration with SPNN. Check SPNN’s web site for the latest airtimes.

Transcript of Show

Introductory comments -- Gary Gilson: I'm Gary Gilson and I'm here to moderate a discussion produced by the Minnesota Department of Human Rights on the topic of mental disability in the workplace. Under two laws, both the Federal Americans with Disabilities Act and the Minnesota Human Rights Act, a person with a mental disability has the same rights as a person with a physical disability, including the right to be free from discrimination and the right to a reasonable accommodation for that disability.

But for people whose disabilities involve a mental rather than a physical impairment, life can be more complicated, and employers and coworkers may also find mental disabilities more challenging to understand and to deal with. One problem is the age-old stigma associated with people who suffer from mental disorders. Whether we're talking about depression, bipolar disorder, anxiety, schizophrenia, or other emotional or mental illnesses, myths, stereotypes, and prejudices abound.

Because stereotypes do persist, employees who suffer from mental disorders often stand in the shadows, afraid to let anyone know, afraid to ask for help. They may not know they have rights under the Americans with Disabilities Act and the Human Rights Act, and employers may also not understand their obligations under these laws.

In this program, we aim to change that. We'll talk about a range of mental disorders and what employees, employers, and society need to do to ensure that our workplaces accommodate people with mental disabilities.

To bring mental disability out of the shadows, we've brought together a panel of experts who work with these issues every day. Now let's get started...

Gilson: Sandra, what are the predominant disabilities that we see with regard to mental illness in the workplace? What are people suffering from? What are other people's experiences of that?

Meicher: We actually see a broad array of different kinds of illnesses reported both by employers and employees. Typically, depression is very well recognized, and there's been more research in the workplace looking at the costs of depression among some fairly larger population groups, bigger employers. But we also see personality disorders, bipolar disorders, and given the goodness of treatment these days, medication and counseling treatment, we see folks with schizophrenia as well and some of the other more unusual kinds of illnesses.

Peck: I think it's important to note, too, Sandra, that there are a lot of people in the workplace who have a mental illness but have not disclosed and, likely, are functioning and working in a very productive, meaningful way without their coworkers or without their employer knowing that they suffer from a mental illness.

Meicher: I think you've brought up a really good point, which is that people don't want to disclose. They're very afraid that they'll be stigmatized.

Hagen: I think it's great if people don't have to disclose. But what I've seen -- as an attorney, I served on a committee once that did a report on the hiring of attorneys with disabilities, and the main thing that we found is that if somebody has a physical disability that shows, shall we say, they may not get hired. But if they do, the accommodation will be worked out because they know in advance. Employers who hire someone who doesn't -- either doesn't disclose that they have a mental illness or becomes ill later, those employees have, sometimes, a more hostile work environment to work with. Maybe employers are saying, "Well, if you" -- they don't anymore say, "If you'd told me that you had a mental illness, I wouldn't have hired you." They know better than that. But still, the issue becomes more of an adversarial one, unfortunately, sometimes. Do you agree with me, Kim?

Peck: Absolutely. I think that's because of the stigma that still exists around mental illness, but I think what's going to happen, at least what I'm hoping is going to happen from the perspective of Rehabilitation Services is that as the impending labor shortage becomes a very real experience or challenge for employers that they will recognize the importance of identifying individuals that have the skills and abilities to do the job, and they don't start with the notion of, "Well, what difficulties or what problems might this individual present to the workplace?" The fact of the matter is, whether an individual has a disability, whether they have a diagnosed disability or not, everyone comes to the workplace with a set of challenges, with a set of skills and abilities, and I think it behooves the employer to work proactively to understand that full range of human behavior and dimension within human behavior and provide the accommodations for individuals, whether they have a mental health disability, whether they have a physical disability, or whether they don't have a diagnosed disability at all. We all need accommodations, whether it's a chair that is the appropriate height for a desk, whatever it might be, and so I think the more that employers can get away from the mind-set of, "This is a person with a disability. I need to make an accommodation." And rather, "What's the cost of doing business?" And the cost of doing business is providing the level of support and resources that individuals need to be successful in their job. Let's step away from the disability kind of arena altogether.

Cummins: If I may just follow up on that, we've heard a lot of talk about supporting the troops, from Washington, from St. Paul, and elsewhere, and a lot of our troops are coming home with significant mental health issues, and that certainly is manifesting itself in the workplace.

Hagen: And it will more and more.

Meicher: Post-traumatic stress disorder.

Cummins: Exactly. And so that's, to me, an ongoing and increasing challenge that we face.

Peck: Something that I'm pleased to be a part of is -- the direction in Rehabilitation Services and with the Department of Employment and Economic Development is recognizing that in order for us to be successful in assisting individuals with disabilities and securing and maintaining employment, we have a responsibility to identify that the employer is a primary customer of ours. We need to identify what the business needs are and to work with them to help address their needs. And as we understand what their needs are, and we develop a relationship with them, that will provide the opportunity for us to ask what challenges they experience. And oftentimes, what we're finding in our role is, we have our business services specialists out there. They'll say, "Well, I have this employee who's worked with us for many, many years, and because of their age, you know, they are beginning to manifest these kinds of disabilities... And can you help advise us about how we can make those accommodations?" So I think the more that we can strengthen the capacity of the employer to assist the individual -- to embrace, frankly, individuals with disabilities and, certainly, individuals with mental health disabilities -- I think we'll be light-years ahead of where we are now.

Gilson: Justin, when does a disability rise to the level of requiring an accommodation by an employer?

Cummins: Well, speaking legally, you have to establish that the person is "disabled" under the law. And you might think that would be an obvious and easy thing to do, but unfortunately, the way the courts have interpreted the statute -- that is, the Americans with Disabilities Act principally -- it's an increasingly significant challenge to establish that someone is disabled and therefore entitled to an accommodation of some sort. And if I could just give one quick example of that, a case here in St. Paul, I appeared as an amicus on behalf of the National Employment Lawyers Association because the district court granted summary judgment, meaning they threw out the case, saying that the person was not disabled. He was dependent upon a urostomy bag. He had two other significant medical conditions. In other words, he was significantly restricted with respect to urination, defecation, and the court said that he was not -- he was not materially impaired with respect to a major life activity. And that is the answer to the question. How do you establish that someone is disabled? They have to be materially impaired with respect to a major life activity. As far as I know, last time I checked, in order to live, you have to be able to defecate; you have to be able to urinate. But the court -- the district court said that wasn't enough.

Gilson: Well, what about in terms of mental disabilities? Can you give us an example?

Cummins: Well, mental disability was alluded to earlier. Depression, one would think, would be a disability, right? It can significantly impair your ability to perform a number of major life activities: sleeping, eating, walking, talking, potentially, if it's really debilitating. It depends on the degree. But the courts have often said that if it can be treated significantly, then you are not covered under the law. So the challenge for advocates, the challenge for employees is to show, in effect, that you are significantly impaired but not too impaired, because if you're too impaired, then you can't do the job, and the employer doesn't have to accommodate you. So there's this narrow window into which you must fit as an employee. You have to show that you're substantially -- you're significantly restricted in what you can do but not too restricted, because then you're not eligible.

Hagen: It makes it really hard when you're dealing with consumers with various disabilities. I've been involved with employers, but I do a lot more work now with administrative hearings type situations, and what you're trying to do in that situation is point out all the limitations. Now, most of us who have disabilities spend our time trying to tell people what we can do, and so I have to have long talks with clients, and sometimes that doesn't even help. I had one person who had a mental illness, and she needed a great deal of help to do a variety of things, so I'm there saying, "Well, she needs help with this and this and this." And she's saying, "No, I don't." It's very hard to get people to get their head around the fact that -- it really presents very much a catch-22. Most of your life, you want to be as independent as possible. If you want to get help, if you want to get accommodation, if you want to get benefits, you have to be more dependent, and it's very hard to make that work out.

Gilson: This narrow window that Justin mentioned -- it's an idea I had never thought of before. And it sounds as if it could lend itself to a sort of gamesmanship on both sides.

Meicher: When an employee calls us, I get what I sometimes call the 4:30 Friday afternoon call, and people who know our organization are very familiar with this call. And it might be a woman who will call, and she'll say, "I've just been told that I've been terminated from my position, and I want to know what are my options." And it may be that it's too late for a formal accommodation, and so when we talk to other employees who call us earlier in the process, we say to them, "It might be a good idea for you to meet with your supervisor and see what can be worked out before you reach that point when you have to go through a formal accommodation process." Maybe let your employer know what some of the challenges are that you're experiencing, that maybe you've had some -- for instance, it might be difficulty with depression, with a teenage child at home, or going through a divorce, and you've gotten into a depression. "What can I do in the workplace that maybe will make my focus a little bit better? Like, maybe I'd like to be moved away from the copy machine or the fax machine." So there may be some less expensive ways for an employer to support an employee even before things get to the point where it's more of a crisis-oriented situation.

Peck: I'd like to add to that. I think another variable is that the medical community, the treatment community, has much work to do, frankly, in embracing the fact that individuals with a serious mental illness can work -- that, in fact, it's clearly demonstrated that work can be therapeutic, if you will, that it can significantly, substantially contribute to a person's recovery. So I remember very vividly a situation that I worked with when I was with the state's employee assistance program where a woman who had been employed in a high-level position in state government for -- I believe it was about 20 years -- and happened to have a diagnosis of bipolar disorder that had been managed very effectively on medication for a significant period of time. Her medical provider -- in this case, her psychiatrist -- was concerned about the potential for liver damage, so took her off the medication without any conversation or discussion of, "As we wean you off these medications..." And as you might imagine, without any conversation, and because this woman had not disclosed, because she really had no reason to disclose, her behavior became quite erratic. Again, she was manifesting the active symptoms of bipolar disorder. This woman lost her job. And even though the employee assistance program was able to advocate for her and get her back into work, I believe that tragedy could have been avoided had the medical provider proactively said, "Okay, we need to make these changes in your treatment regiment. Let's talk about how this might impact your life, how might it impact your personal relationships, and how might it impact your work," and to strategize and plan about the steps that could be taken. So often in my work, I've heard individuals with serious mental illness say, "Well, my social worker, my doctor really doesn't want me to work because of the stress." That's totally contrary to what the research demonstrates. And so that's the message that we are promoting at Rehab Services is, with the appropriate supports and with education to the employer and to the medical community, individuals with serious mental illness can be as productive and contribute in as significant of a way as a person without a serious mental illness.

Gilson: When you talk about people not disclosing that they have a condition, I'm just picturing a small business, and the owner learns that this person has a mental disability and may have the first reaction of saying, "Oh, my goodness, what do I have on my hands here? How am I going to fill this order?" Business pressures must be enormous. Well, how do you deal with this?

Hagen: I would start by saying that the Americans with Disabilities Act is a minimum, not a maximum. Some employers will say, "Do I have to do it under the ADA?" That shouldn't be the question. The question really is, "What would make all your employees productive?" Because many of the things that have to happen or that should happen to accommodate a person with mental illness, particularly, are things that would make the work environment better for everyone. And what I hear is employers saying, "Well, if I did it for that person, I'd have to do it for someone else." And the fact of the matter is, maybe they should. Maybe everybody would work better if the noise level was less, if there were headphones they could put on to cover up the noise, if there was a break room that somebody could go to when they needed a time-out. Just a variety of little things could make a huge difference in an environment.

Peck: Yes, and the example of that, probably overused, are curb cuts. Initially curb cuts were introduced to increase the mobility for individuals that were in wheelchairs. Everyone uses curb cuts. Everyone appreciates curb cuts.

Hagen: Well, the large stalls in bathrooms -- everybody uses those. A person with a disability can't get into one.

Meicher: The other thing we would say is, we're a small employer as well. We have nine employees at the Mental Health Association right now, so we pretty much have to walk the walk, talk the talk as well. And we have an insurance coverage plan that covers mental illness related treatments as well as physical treatments. And we look at the win-win situation from the employer perspective. We think in terms of a small employer because we are a small employer, and we think each employee that we bring on board is an investment of probably thousands of dollars of staff time, both in looking at writing up a job description, checking people's credentials against that job description, the interview process, and more importantly, the orientation, the training, the teamwork building when you bring a new person on board, and I encourage a small- or a medium-sized employer to think in terms of, "How do I preserve that investment?" The estimates, a couple of years ago, were that it was about $3,500 to replace an employee. And so what we would say is, an average accommodation is roughly $600, even if it's gone up a little bit with inflation. It may be something that you want to look into in terms of keeping that person productive on your staff so that you don't have that rupture, that tear in your whole team if you can't find an accommodation or something that makes them more productive.

Cummins: What I hear everyone saying is that the notion of having to choose between a reasonable accommodation and productivity or private sector profit is really a false choice -- that what is beneficial to someone who has a disability is, generally speaking, going to be beneficial also for the other employees. And as an advocate, I think that's something that we need to continue to emphasize, that it is really a false choice to say it's either a reasonable accommodation or it's advancing the interests of the employer. It does require an interactive process. It requires that the employer and the employee sit down and try to figure it out. That's something that's very clear, and I think both employees and employers need to come to that process in good faith and make a genuine effort to resolve the problem or the challenge, whatever it might be. And I think in most instances, if the parties come in good faith, that can be done. Now, the question is whether the employer or the employee is coming in good faith.

Peck: I think the challenge particularly for the employee with a serious mental illness to step forward in good faith, as you describe it, relates to the stigma associated with it, the almost reflex response of joining serious mental illness with the potential of violence. They do not go hand in hand, in spite of what the media would like us to believe. And this was stated very eloquently in the Surgeon General's report on mental health is that one of the biggest opportunities and responsibilities, frankly, for our society is to address that stigma so there's a much better understanding of what mental illness is and is not. And then I think once that's in place, then I think employers are in a much better position to really look at employing individuals with disabilities from the perspective of, "Will this help me meet my bottom line? Does this person bring the skills and abilities to do the job?" And whether they have a disability or not becomes nearly insignificant.

Gilson: What about a person who has a mental disability and it manifests itself in alienating the other workers or very hostile behavior that's disruptive? What kind of accommodation is called for in that person's case?

Peck: I guess I would put the question back to you in terms of if an individual is being disruptive, if they're creating a hostile work environment, regardless of whether they might have a disability or not, that behavior needs to be dealt with. And the employer needs to have in place policies that hold individuals accountable for following those policies and behaving in a way that is conducive to getting the job done. I think all of us probably have encountered people who can be rageful or who can say inappropriate things and may not have a diagnosis or a disability. So again, it's not about the disability. It's about the behavior.

Cummins: But we need to be careful that your very important question, that issue, doesn't lead to bias. That is, someone may think, by virtue of working with someone who has a mental disability, that in of itself creates a hostile environment, and we need to be very careful not to facilitate that kind of bias, because that's precisely what the ADA was enacted to prohibit. The key -- at least what the ADA says, what the Minnesota Human Rights Act says -- is that the accommodation must be reasonable. So if what the conduct that's involved here by the employee with a disability would require an accommodation that's unreasonable in terms of administrative costs or hassle, financial impact on the organization, well, then obviously that's not something that the employer needs to undertake. And that employee can be terminated. But the key is reasonableness. And the parties need to sit down and problem solve. That is, in theory, what the parties are to do.

Meicher: And that's what we encourage. When people call us and ask for individual help because they're encountering a situation with their employer, one of the things that we say to them is, "First of all, it's kind of like lawsuits. You don't really want to go there. What you want to do is sit down in good faith and see if there's something that you can work out with this employer that really is win-win, a win for the employer and a win for you. Because if your productivity remains high,"and you're enjoying your work, it's going to be very rewarding for you, and your employer will benefit as well." Because we can't expect employers to have an employee that's not doing the job. Whether you're a small employer or a large employer, that's not going to be fair.

Gilson: What are examples of the kinds of accommodations that have been made?

Meicher: We've seen some really interesting ones in some of the surveys that we've done in the past, things like an employee that was dealing with some anxiety, major anxiety, and one corporation, a larger corporation, actually got this individual a cell phone so that he could call a family member when things were getting a little anxious. We've seen another employee, for instance, who was uncomfortable in a room that was without windows and was feeling kind of uncomfortable, she wanted to be able to look out on a vista, was dealing with some issues in her life, so that was another accommodation. The most typical one is an adjustment in hours, especially for an employee that may be taking a medication, maybe makes them groggy in the morning, and we could go through a very long list of different kinds of accommodations, although that's the most typical one.

Hagen: I also think there is an issue that comes from the question you raised. It isn't just the employer, the CEO, if you will, or the immediate supervisor. There has to be an atmosphere of participation with the other workers -- I'll give you an example, it'll make it easier. If you're working in a place where the work is very pressured, there's a certain amount has to be done, has to be done in a certain amount of time, there's always more work than there is time to do it, and somebody with a disability, mental or otherwise, needs time off or can't always be there or needs to work part-time instead of full-time or in some way affects the time that other people are going to have to put in to doing the job because they're not there. That is a very tense situation for an employer because on the one hand, if the employer can accommodate that person, if they can do it without causing a substantial burden or if it's possible to do, and if they feel the employee is productive, they'll probably want to do it. But they have to deal with the anger and the "this person is getting preferential treatment," that other employees may raise, and it's more likely to happen in a kind of job where everybody works under pressure, and nobody's needs are being met.

Gilson: What does the law say that employers are allowed to do and ask and not allowed to do or ask?

Cummins: Well, it depends at what stage. [laughter] That's the classic lawyer answer: "Well, it depends." There are the two principal stages, prior to hire and post-hire.

Gilson: Let's explore those.

Cummins: Well, prior to hire, in general the employer's not allowed to inquire into disability status, whether someone has a mental or a physical disability, but they can, if they've made the decision to hire the person, then they can make an inquiry contingent upon -- that the hiring will be contingent upon confirmation, in effect, that they can perform the essential functions of the job.

Gilson: That's pretty gray, it seems to me.

Hagen: As I understand what EEOC has said, if the disability is visible in any way, or if they think that somebody wouldn't be able to perform the job, they cannot ask, have you had a worker's comp injury before? Have you missed a lot of work because of back trouble? They can't do that. But they can say, "In your job, you'd have to lift 20 pounds at least 5 times a day. Can you do that?" And they can ask those kind of discreet questions. They have to, of course, be sure that actually the job requires what they're asking, but they can do that much.

Cummins: Right. And that kind of gets closer to the line. But the point is, a hiring decision should not be based on disability status. That's what the law says.

Gilson: But suppose somebody who's applying for a job has depression, and the employer doesn't know that but makes a decision to hire the person. Is the employer then allowed to say anything about that -- I don't understand where you draw the line.

Hagen: If the person has depression, and the depression is handled by medicine, then that person may decide not even to disclose that they have a mental illness, and it may never even come up. So then, in that case, an employer wouldn't have to do anything. And I'm sure, Sandra, you've had this same experience. I've had people time and again with mental illness who have been out of a job for a period of years and now are trying to get back to work, and what are they supposed to do on their resume with that time that they weren't working? And, ultimately, an employer -- they'll look at a resume and say, "Whoa, there's this big space of time. What happened here?" Already putting suspicion up. In that case, some people have decided that they would rather disclose then, whether or not they need to, because they can't stand the pressure of, either number one, getting hired and then something happens later, or number two, having someone be very suspicious about them. So, as you said, it's a gray line. This is why the ADA says case by case. Each case has to be decided individually, and there will be certain things that will be brought up or that come up in any given situation. If the person is a very angry person and other people feel unsafe, there is a serious threat defense to hiring someone or keeping someone in a particular job that is a defense to providing an accommodation. But usually it's not that big.

Meicher: I would think what we would do -- and I suspect there may be one or two employees in our small group of nine right now who may have a mental illness. Of course, it is something I don't want to ask that person about directly. I like to look at this in terms of, how is the performance? How is the work going for this specific job? Are the deadlines being met? If we begin to encounter a situation where maybe things aren't coming in on deadline, and we're not accomplishing all the things that we know we need to accomplish that year, it may be the case that you would sit down with that person, as you would any other employee, where there was a performance question. And you might want to say to that employee, "Are things going well?" And I've actually given people kind of a comfortable opportunity to say, "Maybe I need a week or two off," or, "Maybe something is going on that you might want to tell me about." But quite frankly, as an employer, doing a good job with that employee, I don't think I should want to know that diagnosis.

Cummins: And just to make that more concrete, imagine an employer saying, "Are you a Christian?" Or, "Are you from such and such country?" These are other prohibited bases for making decisions in the employment context. And you can't imagine that an employer would actually do that. What is being Christian or Muslim or Jew have to do with whether you can do the job? What is being from Somalia or from Laos or from Mexico have to do with whether you can do the job? Nothing. And so that kind of inquiry starts to sound like you're concerned about a protected class under the Minnesota Human Rights Act -- it's the same with disability. Why does the employer care whether someone has a mental health issue or a physical issue unless it has an impact on performance? That's really the only time it should come up.

Peck: If there's something that I can add -- the example that was given here in terms of the gap in a person's work history, the fact of the matter is, for many individuals with serious mental illness, the recurring nature of the symptomology related to their diagnosis is such that, oftentimes, it does impact them such that they need to be away from work for a period of time. So that is the nature of a serious mental illness and, I think, underscores the importance of awareness and understanding on the part of the employer but also the individual employee accessing a full range of supports that are available to him or her to help them figure out, "Okay, what are the steps that I can take to get back to work? What are the strategies that I can use to explain the gap in my work record?" The individual did not choose this mental illness. And so they are struggling as best they possibly can to manage the impact that this illness has had on their life. And fortunately, in Minnesota, there are, I think, ample resources to assist that individual. So I think it's important for us not only to focus on what are the responsibilities or what's the mind-set that we want the employer to have, but to do everything we can to shore up the resources available to individuals with serious mental illness so, again, they can have as much access to employment opportunities as others who don't struggle.

Gilson: Let's say somebody has a mental disability and hasn't disclosed it but goes to her or his physician, and the physician suggests time off from the job. Is the employer entitled to know, when the person leaves because of a medical situation, what the cause was?

Meicher: I don't know that I'd want to know the diagnosis, but what I might want to know is, how long will you be gone? When can we anticipate you'll be back? And as an employer, I might begin to look -- how much coverage do you have available? How much sick leave do you have? If you decide to take a short-term leave, do we, as an organization, have the capability to accommodate that as an agency? And then there might have to be more dialogue.

Peck: And I think from my experience, really, the question isn't, "What's the cause?" but, "Upon your return, will you be able to perform the essential functions of your job?" And also, just what I would be inclined to do is, knowing that an individual was away from work for a period of time because of a medical condition, I would say, "Are there any accommodations that we need to make to ensure your success upon your return?" Because as Sandra said, we've made a significant investment in this individual, and we would much prefer to have that resource, that asset, continue to be working with us on our team as compared to having to start all over again. I would want to emphasize that I don't see that as charity at all. I don't see that as social work at all. I don't see that as being saintly but rather, that's good business practice.

Gilson: But how many employers will be comfortable not knowing the cause of their employee's being absent?

Peck: Frankly, I would suggest that many employers probably don't want to know the cause. Again, what they want to know is, can you do the job?

Hagen: Well, essentially, the employer does have a right under the ADA to ask for medical documentation to back up that you need the time off. And the thing is, where I get involved in that a lot is (with) doctors not wanting people to go to work. I've seen doctors who write this note, "Hi, I'm God. This person can work." [laughter] And of course, they're supposed to look at that and say, "Well, the doctor says, so I have to do what the doctor says." And they don't write enough. So I have to work with employers and sometimes with doctors. If they have a nurse, it works out, because she writes it. But essentially, the doctor has to say enough about why it is that the person can't do the job so that the employer knows what's happening. That might mean saying the person is suffering at this point from depression. This means they are not sleeping at night, they're not eating enough, and so for a period of time, and as much as the doctor can say how long it might be, these are the things the employee can't do without some kind of accommodation.

Gilson: If he or she learns that there's a mental illness involved, is the employer required to keep that confidential from the other employees?

Hagen: Now that's the other thing the ADA says... is that only people who have the need to know should know. If the person's supervisor needs to know what they can't do or can do or why they're off, then that supervisor should know. The only other person that should know is the personnel person, and then the record must be kept separate from their regular employment records so that somebody couldn't go through their record and see, "Oh, yeah, they've been off for mental illness at a particular time." Now, some employers are too small -- the human resources person might be the head of the company. But that's how it's supposed to work. There is supposed to be a separation. Only people who need to know are supposed to know.

Gilson: Sandra, in general, how are employers doing with making the accommodations that are needed?

Meicher: I just saw a recent article that kind of substantiates what we're seeing and hearing from employees who call us. There's almost like a "don't tell" going on in employers right now because of concerns about risk and concerns about cost. If you know what that diagnosis is, you may have concerns about somebody being gone longer or somebody -- especially after the Virginia Tech incident, we had employers that were concerned about risk issues. Perhaps it wasn't warranted. But I think there are some employers out there that don't want to talk about this with their employees.

Gilson: But how are they doing, across the board from large to small, at making the accommodations that the employees need?

Peck: Well, let me respond to that. In my experience, I think that if left to their own devices, employers are likely to struggle with understanding what the accommodation is or what it needs to be. If they have a resource or are able to access some expertise, it can give them some guidance about, "Here's what's happening, and how am I to accommodate this?" Then I think they can do a fine job with that. But again, what that requires is a climate in this work environment that creates comfort and willingness for the parties to sit down together to talk about it. I believe the best resource in terms of understanding what accommodation needs to be made is the individual him or herself. And so if that individual can have the kind of relationship with her employer, that sets the stage for, "I want to talk with you about something I've been struggling with. I have been diagnosed with major depressive disorder, and my physician has given me some medications, and she advises me that it would be helpful for me to reduce my hours for a period of time while I get adjusted to this medication." I mean, imagine that. If there can be that kind of open dialogue with the employer, that could really simplify things immensely. And so I think, again, we have a long way to go to create a culture that supports that. Right now, it's, again, the fear and the trepidation about, "Oh, my heavens, what might happen if we open the door to individuals with mental illness coming into the workplace?" And there's lots of attention paid to the risks and what might it cost in terms of accommodation. I look forward to the day where, again, we can normalize the experience of having people in the workforce representing a broad range of diversity, both in terms of ethnic, cultural, racial diversity, as well as physical and mental health.

Gilson: What is the status of society's understanding of mental illness that is either helping now or is a hindrance to accomplishing what your clients need?

Meicher: People still think of it as rare. And even in the short seven years that I've been at the Association, we've come to recognize that it's not one in five people each year that are going to experience a mental disorder, but it's one in four. So there needs to be more awareness that not only in any given year is one in four of the employees probably going to experience a disorder, but also, the recovery rates are better now. We have better medications. We have better treatment. We know that a combination of medications and talk therapy, as we sometimes call it, can really help a person get along the road towards recovery so that they can get back into the work environment and be productive again. So I think that's a big piece of it, is understanding that it's not going to go away. It's going to be likely that you will deal with employees in your workplace, but there are resources out there in terms of medical treatments that are very effective now.

Cummins: I think another challenge is that there's still a perception that because it's not tangible, like a physical disability, it's not real. Get over it, you know. You're depressed? Have a beer, or smell the roses.

Meicher: Pull yourself up by your bootstraps --

Cummins: Yes, pull yourself up by your bootstraps -- exactly, which is a kind of myth, really, that I think is debilitating for people who are in the position of struggling with a mental health issue. But it also prevents the larger society from understanding more fully and supporting people who are in that position.

Peck: I look at mental health and mental illness as being on the same continuum. You have a continuum of mental health and well-being, and all of us fall someplace on that continuum. It's not a separate place that people with serious mental illness rest. We're all on that same continuum. And so, again, we have to kind of open up our minds and our attitudes and our thinking about, that could be any of us, as Sandra was saying, one in four. And so how do we need to adjust our way of thinking, our way of doing business to embrace everyone on the continuum?

Gilson: I'd like to ask each one of you in a sort of thumbnail answer where your commitment to this kind of work came from and what it is that you're doing that you think shows the greatest result or promise.

Meicher: Part of my commitment comes from having a brother who, about 30 years ago, was diagnosed with paranoid schizophrenia and watching my own family, who, like many people in the audience and many people in our communities at large, didn't understand mental illness, didn't understand that there's a biochemical basis, didn't understand that treatment and interventions were available. And there was a terrible stigma in the family related to this brother, who's my closest sibling. And I think that if there had been organizations like our organization or like the treatment system that's available in Minnesota, his life could have been more rich, and he could have gotten a job. He could have had more productivity in his life. Even if he hadn't worked full-time, he could have enjoyed maybe relationships. Because the same system wasn't available 30 years ago, he spent his life in a way that I think was unnecessary. So my commitment comes from my own family and from other people that I've known and met since then and thinking we can do more if we look at the individual and realize there are resources to be brought to bear.

Gilson: And what's the strongest suit that your organization has in this work?

Meicher: I think the strongest thing that we do is look at the individual at the consumer perspective. There's always a family that is going to experience and feel pain and sadness because of the diagnosis in the family. But our focus must be on the individual, because they need to feel that there's somebody on their side and that they can learn and become empowered and take back control of their own lives and still be productive and have lots of choices like we all enjoy.

Hagen: It's interesting, because I am visibly disabled. I'm blind and have been my whole life. And basically, I was able to do a fair amount of things. My parents made sure that I got to do as much as I possibly could, and I had a lot of help and support to get through law school and everything else. And so it worked out for me essentially. So I actually came to -- when I went to work where I am now, at the Minnesota Disability Law Center, I really had more -- that was, like, 13 years ago now, and I've worked at Human Rights before then. But I was more of the idea of, well, if you have a disability, you can become independent, and you can pull yourself up by the bootstraps. So when I first started, I sometimes was fairly impatient with people who didn't accept my solutions to their problems, which were always wise and good, of course. [laughter] And went on and did something else, or else came back after they didn't do it, made a mess, and wanted me to clean it up. And so I was always sort of like "Well, as I told you before," or whatever. And then I was beginning to feel more angry and depressed. And then about eight years ago, my best friend died very suddenly. I'd known her since we were five. And I didn't do anything about it at the time, and so, like, two or three years later, I was in a depression myself. And I now know that I actually do suffer from depression, and I'm on medication for it, and I've had talk therapy and all of that. And I can work just fine now, and I have a much better understanding of where people are when they come in to see us than I did when I first came there.

Peck: I think the best way to answer your question would be to say that public service is coursing through my veins. I started as a social worker in adult protection right out of college and I was blessed to have an adult protection caseload. I was working primarily with individuals, adults with disabilities, and certainly a significant number of those individuals were individuals with serious mental illness. And in my work as a social worker and subsequently in vocational rehabilitation, I came to appreciate the power of work in an individual's recovery. So at this point in time, as the director of the Vocational Rehabilitation Program, my passion really is to make sure that there is a much better understanding of the therapeutic value of work and to be sure that the resources for supported employment, ongoing supports for individuals that require that, are available, because it will be beneficial to Minnesota's economy. It will be beneficial to business and certainly beneficial to the individuals who need those supports. So I absolutely am blessed to have this opportunity, and I'm hoping to shape public policy to recognize that and put the resources where they need to be.

Cummins: I see this really as a civil rights issue. The way that people with mental disabilities, physical disabilities, the way that they're treated, the denial of equal opportunity is a civil rights issue. And my parents were both civil rights activists. They raised me and my brother, who, incidentally, I practice with, in a very diverse neighborhood, and so we grew up with lots of folks from different backgrounds, different experiences, different realities, and that really left an impression on me and made me determined to try to do what I could to make sure that everyone has a chance to make their way in the world as they see fit. And this may sound ironic coming from me as a lawyer, but I actually don't think that, particularly this issue, is best resolved through the courts.

Hagen: Absolutely, said the other lawyer. [laughter]

Cummins: It's engaging with folks as we are right now. It's working with people in the community.

Gilson: Finally, if some employee in Minnesota feels discriminated against on the basis of a mental disability, what does that person do?

Hagen: There are a variety of things they can do. My suggestion would be obviously they can come to the Minnesota Disability Law Center, but my suggestion, before they do that, is that they try to internally work it out first. If they can't, and a lot of people with mental illness feel too threatened to do that, then, if they're getting rehab services, they can go to Kim's office. If they need to find some support, and there are various mental illness organizations that probably the Human Rights Department already has up on their web site that are helpful. But the last resort, as far as I'm concerned, is to go to court. You could file a human rights charge. There are a variety of things you could do.

Peck: If I could just add to that too, I think that many employers have employee assistance programs, and that certainly is a resource that can provide guidance and information about the range of options that might be available to an individual.

Gilson: Well, I want to thank all of you for your commitment and relating your experiences, and I'm sure this evening is going to prove valuable to a lot of people, whether they're employers or employees or family members or even judges.