Licensing Entities and Mental Health Inquiries Anne Raish Deputy Chief Disability Rights Section

The ADA The ADA prohibits policies or practices that assess an individual’s ability based on generalizations or stereotypes about disability. Congress recognized the need to “combat the false presumptions, generalizations, misperceptions, patronizing attitudes, ignorance, irrational fears and pernicious mythologies” surrounding disability.

The ADA As stated in the ADA, Congress found that “individuals with disabilities continually encounter various forms of discrimination, including … exclusionary qualifications standards and criteria,” 42 U.S.C. § 12101(a)(5), and that discrimination is often based on “stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society.” 42 U.S.C. § 12101(a)(7).

Title II of the ADA “[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132.

Relevant Title II Regulations A public entity may not “administer a licensing or certification program in a manner that subjects qualified individuals with disabilities to discrimination on the basis of a disability.” 28 C.F.R. § 35.130(b)(6). A public entity may not impose or apply “eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program, or activity, unless such criteria can be shown to be necessary” for the provision of the service, program, or activity. 28 C.F.R. § 35.130(b)(8).

Relevant Title II Regulations Policies that “unnecessarily impose requirements or burdens on individuals with disabilities that are not placed on others” are also prohibited. 28 C.F.R. pt. 35, app. B at 673. Legitimate safety requirements necessary for the safe operation of an entity’s programs, services, and activities must be “based on actual risks, not on mere speculation, stereotypes, or generalizations about individuals with disabilities.” 28 C.F.R. § 35.130(h).

Disability-based Inquiries Violate the ADA By inquiring into the existence of MH disabilities, licensing entities act on the basis of impermissible stereotypes. These inquiries start from a presumption that a person’s ability to practice law is likely to be adversely affected by having a diagnosis or having had treatment in the past, even though it may have never affected that person’s judgment, integrity, responsibility or abilities as a professional.

Ellen S. v. FL Bd. of Bar Examiners, et al. Have you ever sought treatment for a nervous, mental or emotional condition, been diagnosed as having such a condition, or ever been prescribed any psychotropic drugs?

Ellen S. v. FL Bd. of Bar Examiners, et al. DOJ amicus brief, June 1994 The inquiries and investigations used by the Florida licensing entity violate the ADA. By unnecessarily targeting for further investigation those individuals who have histories or diagnoses of disabilities and imposing add’l burdens of investigation, the Board is engaging in precisely the kind of impermissible stereotyping that the ADA proscribes.

Clark v. VA Bd. of Bar Examiners Q. “Have you within the past 5 years been treated or counseled for any mental, emotional, or nervous disorder?”

Clark v. VA Bd. of Bar Examiners DOJ amicus brief, Oct. 1994 Asking about an applicant’s history of diagnosis and treatment for MHD inappropriately treats a person’s status as an individual with a disability as if it were indicative of that individual’s future behavior as an attorney. The Board’s purposes are better served by questions focused directly on conduct and behavior.

Clark v. VA Bd. of Bar Examiners After trial, federal court found in favor of plaintiff and enjoined defendant from using the question at issue. The requirement that applicants with MHD must “subject themselves to further inquiry and scrutiny” is an additional burden that discriminates in violation of the ADA. The question does not effectively identify those who are unfit to practice and has a deterrent effect.

NCBE MH Questions Prior to Feb. 2014 Q 25. Within the past five years, have you been diagnosed with or have you been treated for bipolar disorder, schizophrenia, paranoia, or any other psychotic disorder? Q 26A. Do you currently have any condition or impairment (including, but not limited to, substance abuse, alcohol abuse, or a mental, emotional, or nervous disorder or condition) which in any way currently affects, or if untreated could affect, your ability to practice law in a competent and professional manner?

NCBE MH Questions Prior to Feb. 2014 Q 27. Within the past five years, have you ever raised the issue of consumption of drugs or alcohol or the issue of a mental, emotional, nervous, or behavioral disorder or condition as a defense, mitigation, or explanation for your actions in the course of any administrative or judicial proceeding or investigation; any inquiry or other proceeding; or any proposed termination by an educational institution, employer, government agency, professional organization, or licensing authority?

DOJ Letters to VT HRC and LA The questions are unnecessary, overbroad, and burdensome Inquiring about applicants’ MH conditions substitutes legitimate questions about conduct relevant to the fitness to practice with inappropriate questions about a person’s status as a person with a disability

DOJ Letters to VT HRC and LA Questions regarding the conduct of applicants effectively serve the purpose of identifying those who are unfit to practice law Questions focused on mental health treatment or diagnosis do not serve that goal Questions focused on mental health treatment or diagnosis are counterproductive to the interests of state bars

Other Disability-based Burdens also Prohibited by the ADA Additional, unnecessary investigations Additional financial costs Invasion of privacy Restrictions or conditions on licensure