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

Georgetown Law Journal, Jan 2006 by Emens, Elizabeth F

These distinctions are easily disputed. The purpose in so defining mental illness is not, however, to name an essential category. Rather, since the focus of the Article is workplace discrimination and the attitudes of the discriminator, the aim is to capture as best as possible the group commonly thought of as the mentally ill. Thus, while I do not intend to endorse the idea of a split between mind and body, or between psychology and physiology, legal and scientific sources indicate that ideas and attitudes about mental illness are sufficiently distinct to warrant separate attention. For example, the ADA specifically mentions both "physical" and "mental" impairments,5 and the DSM-IV-TR is dedicated to the disorders of the mind, even while it explicitly acknowledges the indistinct line between the physical and the mental.6 In addition, the DSM-IV-TR groups together a set of the disorders that my definition excludes, such as substance abuse, delirium, and dementia, and until the most recent edition labeled them "Organic Mental Syndromes and Disorders."7 Moreover, attitudes towards learning disorders such as mental retardation differ from attitudes towards mental illnesses such as psychosis and depression, with the latter group bearing significantly more stigma.8 One reason for some of the differences in attitudes to mental illnesses, as opposed to other mental or physical impairments, may be a belief that mental illnesses are more amorphous and culturally constructed than other kinds of impairments; for the purposes of the Article, however, I bracket the question of whether or to what extent mental illness is culturally constructed.9

A further point of definitional difficulty deserves mention: A person described as having a particular diagnosis of a mental illness may or may not be symptomatic. That is, due to psychotropic medication or ongoing therapy, the person may mitigate his symptoms to such an extent that a new mental health professional, unaware of his history and ongoing treatment, might not diagnose him with the disorder.10 He may nonetheless retain the diagnosis, however, not only for practical reasons such as insurance coverage, but also because he and his clinician may not know for certain whether the symptoms would return if he ceased the medication or the therapy. Going off of psychotropic medication, even under supervision, is a risky endeavor, which may involve symptoms of withdrawal in addition to the risk of relapse and of associated harm to self or others, and for these and other reasons, a patient's desire to end medication is often viewed with skepticism as a countertherapeutic impulse.11 For this reason, many people diagnosed with mental illness, particularly those with a history of serious mental illness, continue to take medication throughout their lives.12 People thus may be no longer symptomatic, or not markedly so, but still be subject to the stigma associated with mental illness if others learn of their present diagnosis or history.13 The next Part, which applies traditional categories of discrimination to the context of mental illness, discusses some points particularly relevant to discrimination against people in this situation. After that, the examples that form the core of the Article focus principally on symptomatic mental illness.