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

Georgetown Law Journal, Jan 2006 by Emens, Elizabeth F

Among the ADA charges filed with the EEOC14 between 1992 and 2003, the most common mental illness is, by far, depression. The breakdown, as a percentage of total ADA charges, is as follows: depression (6.7%), anxiety disorders (2.6%), manic depressive disorder (1.9%), schizophrenia (0.4%), and "other psychological disorders" (3.3%).15 Within the U.S. population more generally, a recent World Health Organization ("WHO") study reported that 26.4% of Americans suffer from mental illness, including alcoholism and substance abuse, within a twelve-month period.16 Similar to the EEOC figures, mood and anxiety disorders were the most prevalent, though with anxiety disorders taking first place in the WHO report (18.2%) and mood disorders, which include depression, taking second (9.6%).17

II. THE MIND OF THE DISCRIMINATOR: TRADITIONAL CATEGORIES

The discriminator against people with mental illness is not much understood or much studied. A key reason for this neglect is, paradoxically, the pervasiveness of discrimination against people with mental illness. A person's being "crazy" or "unbalanced" is generally taken to be an understandable reason not to want the person at one's dinner party, in one's bed, or at the next table at Starbucks. Similarly, many would think it not unreasonable for an employer to prefer a stable employee to an unstable one, or a worker to prefer a mentally well to a mentally ill coworker, even if the ADA makes it legally impermissible for the employer to act on such preferences. The social acceptability of the impulse to discriminate against a person with mental illness thus seems strikingly different from the normative reaction we would expect to an account of an employer's having a generic preference for a white over a black employee.

This puzzle creates the need to think seriously about the mind of the discriminator against people with mental illness. The pervasiveness of the impulse to discriminate in this context calls for an effort to understand it from the inside.18 Those who seek to avoid or exclude people with mental illness are not outliers who can be isolated and criticized. Rather, the pervasiveness of the impulse to discriminate in this context naturalizes the impulse, renders it a form of common sense. It is therefore important to try to understand its nature and origins, to try to root out what will otherwise be its unnoticed applications.

And there are further reasons for focusing on the mind of the discriminator against people with mental illness. First, the ADA expressly recognizes the role of the discriminator in the creation of disability. The statute itself defines, as one form of having a "disability," the status of being "regarded as" disabled by others.19

Second, the current doctrinal debates over the ADA call for such efforts at varied position-taking. To many advocates and scholars, courts' interpretations of the Act over the past thirteen years have narrowed its scope,20 and advocates for people with mental illness have felt that this group has fared particularly badly under the statute.21 The limited empirical work on the question, conducted by Ruth Colker, showed no significant variation in appellate outcomes for plaintiffs suffering from psychological impairments, though the lack of an effect may be attributable to selection bias.22 Colker's work focused principally on the broader question of how ADA plaintiffs fare relative to plaintiffs under other antidiscrimination statutes, and found that ADA plaintiffs fare significantly worse.23 Regardless of whether advocates' frustration is especially justified in the context of mental illness, the courts' response to ADA plaintiffs creates the temptation to approach discussions of current doctrinal questions with a kind of "save the ADA" mindset. To try to overcome some of the polarization in the doctrinal debates, this Article therefore tries to imagine the perspective of the relevant actors in workplace discrimination, including the discriminators, each in turn.24