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

Georgetown Law Journal, Jan 2006 by Emens, Elizabeth F

1. Employer Animus

Classic animus-based discrimination-an employer's acting on the basis of hostility or dislike towards an employee because of the employee's membership in a protected group-still features prominently in discrimination against people with mental illness.29 Moreover, in contrast to the domains of sex and race, and even physical disability, where overt hostility and dislike have arguably diminished to some extent,30 or at least gone underground by morphing into less conscious forms of discriminatory animus,31 overt animus against people with mental illness is not uncommon.32 And more subtle or implicit negative attitudes also characterize the response to people with mental illness.33

Discrimination based on animus might be thought of as discrimination based on a negative affect or feeling towards the members of the group. Thus, when explicit, the core affective statement is simply, "I don't like crazy people." The speaker might give some further explanation or detail, as long as the basic rationale remains based on a taste or preference.34

Consider, for example, an employer presented with two applicants for the job of computer programmer, Alan and Bridget, who have similar qualifications for the job. The only difference notable to the employer is a six-month interruption, five years ago, in Alan's stellar work record: Following a one-month gap between jobs, this skilled computer specialist was employed as a bookstore clerk for five months, before starting another programming job. When the employer asks Alan why he left programming for that time, Alan explains that he was hospitalized for depression for four weeks, and then worked a flexible schedule at the book store for five months while he settled into a successful regime of medication and therapy. Alan adds that he continues to take medication and has had no problems with depression during the past five years.

Bracketing any predictive concerns an employer might have about Alan's work performance, as well as the question whether such concerns would be valid, we can imagine that this employer might simply prefer to hire Bridget because of animus towards Alan. He might think: "I just don't like crazy people-they make me uncomfortable."35 The employer might hold a particular grudge against the group he calls "crazy" because his family and friends always derided "crazy" people, or because he had a bad experience in the past with someone "crazy," or because he has always worried at some level about his own sanity after he learned of a history of mental illness in his family, or perhaps because he harbors a generalized hostility towards people he considers different or less powerful than himself, such that animus towards people with mental illness is merely one manifestation of a more general bigotry. Whatever the explanation, if the employer acts upon this preference, he is engaging in animus-based discrimination. Because of recent developments in the doctrine surrounding who qualifies as disabled under the ADA, the question of whether Alan would actually be able to assert his claim under the ADA as currently interpreted by the courts is a surprisingly complicated one.36 If, however, we assume that Alan falls within the scope of the Act, the employer's actions would be impermissible discrimination on the basis of disability.