Sympathetic Discriminator: Mental Illness, Hedonic Costs, and the ADA, The

Georgetown Law Journal, Jan 2006 by Emens, Elizabeth F

INTRODUCTION

Social discrimination against people with mental illness is widespread. Treating people differently on the basis of mental illness does not provoke the same moral outrage as that inspired by differential treatment on the basis of race, sex, or even physical disability. Indeed, many people would freely admit preferring someone who does not have a mental illness as a neighbor, dinner party guest, parent, partner, or person in the next seat on the subway. Moreover, more than ten years after the Americans with Disabilities Act1 (the "ADA" or "Act") expressly prohibited private employers from discriminating on the basis of mental, as well as physical, disabilities, most people would still likely prefer not to have a coworker or employee with a mental illness. This Article seeks to understand what lies behind discrimination on the basis of mental illness, and to connect that understanding with a set of disputes about the meaning and scope of the ADA.

People often discriminate against those with mental illness, I argue, because of how those with mental illness make them feel, in ways that are intimately bound up with how people with mental illness themselves feel. Mental illness tends to produce what I call "hedonic costs"-an increase in negative emotions or a loss of positive emotions-in people with mental illness. And the hedonic costs of an individual's mental illness may create hedonic costs for nearby others. For example, an employee with bipolar disorder may behave erratically or express hostility during a manic phase, causing her coworkers to feel frustrated or scared or hostile. Her coworkers may therefore wish to avoid her, in order to avoid these feelings. Hedonic costs are relevant to various types of discrimination, but particularly capture a core reason for discrimination against people with mental illness.

Hedonic costs based on "emotional contagion" form a peculiarly sympathetic and potent basis for discrimination. Emotional contagion is the process by which we absorb the emotions of nearby others through largely unconscious mechanisms. Research on emotional contagion suggests that people with mental illness are likely to cause others to share their negative emotions. For example, spending time around a person with depression-even having a short conversation-typically causes others to feel greater sadness and hostility. And studies indicate that liking someone makes the liker more susceptible to absorbing the other person's emotions. Thus, someone who bears no animus towards people with mental illness, and perhaps cares about or likes certain individuals with mental illness, may for this reason feel an impulse to avoid coworkers and others with mental illness.

Hedonic costs based on emotional contagion defy our intuitions about the potential benefits of fully integrating people with mental illness into the workplace and thus seem to present a peculiarly difficult case for antidiscrimination law. Under the standard ideal of workplace integration-sometimes called the contact hypothesis-integration helps to overcome discriminatory animus by putting members of the disliked group alongside potential discriminators. The hope is that by working side by side with members of the disliked group, a discriminator will overcome his discomfort with and dislike of that group. Emotional contagion suggests limits, however, to the salutary antidiscrimination effects of contact with people with mental illness. Most mental illnesses are defined in part by the mentally ill person's negative emotions; for example, depression is defined at least in part by negative affect, by hedonic costs to the depressed person herself. And the research on emotional contagion indicates that the depressed person's hedonic costs are more likely to be transmitted to coworkers who like her. Thus, even if contact could eliminate the traditional bases for discrimination against people with mental illness-such as animus and stereotyping-there would likely remain a core basis for discrimination in this context: others' desire to avoid absorbing negative emotions that constitute a person's illness.

An understanding of emotional contagion and the hedonic costs of mental illness has important implications for resolving cases brought by plaintiffs with mental illness under the ADA. which expressly protects mental as well as physical disabilities. First, employers must bear the hedonic costs of a plaintiff's mental illness unless those costs prevent the employee from performing the essential functions of the job. Antidiscrimination efforts are not costless, and the ADA, with its explicit accommodation requirement, expressly envisions employers absorbing some costs. Thus, employers may not generally define the essential functions of jobs to include making others feel positive emotion or not making them feel negative emotion. Courts must therefore apply greater scrutiny to claims by employers that a certain job requires affecting others' emotions to be sure that such emotional effects are indeed among the fundamental, rather than the marginal, job duties. Second, a recognition of the role of hedonic costs in mental illness helps resolve a disagreement between circuits over who should bear the greater burden in employer-employee negotiations over possible accommodations for people with mental illness: Because difficulty in negotiating may commonly accompany mental illness, employers should bear the greater burden for facilitating these negotiations, as a form of meta-accommodation of the mental disability. Third, at this moment when the Equal Employment Opportunity Commission's ("EEOC's") most promising interpretation of what it means for a person to be "regarded as" disabled is on shaky doctrinal ground, a better understanding of the mind of the discriminator helps to show why that interpretation is vital to the correct interpretation of the Act. Finally, recognizing the "rational" fear of certain hedonic costs helps to explain why an apparently easy doctrinal question-whether interacting with others is a major life activity for purposes of the definition of disability under the ADA-has been hard for courts, and thus helps to supply the answer: Interacting with others should be considered a major life activity for purposes of defining what counts as a disability under the statute.