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

Georgetown Law Journal, Jan 2006 by Emens, Elizabeth F

2. Third-Party Animus

Sometimes coworkers or customers harbor animus towards a group and thus give an employer an incentive to behave in discriminatory ways. An employer's capitulation to the animus of coworkers or customers involves animus at one level, but, from the employer's perspective, it can look more like market-rational statistical discrimination, discussed further below. For example, if the employer in the above example personally had nothing against people with mental illness and thus nothing against Alan, and also harbored no doubts about Alan's ability to perform the job as well as Bridget, economic self-interest might still lead the employer to prefer Bridget because of the potential costs of the reaction of customers or coworkers who dislike "crazy" people. If they learned of Alan's depression or history of hospitalization, prejudiced customers or coworkers might punish the employer for hiring Alan by taking their business or skills elsewhere or simply by making friction in and around the workplace that has productivity costs.

Thus, if an employer had a crystal ball that could tell him which applicant would produce the most benefits and least costs from a purely bottom-line perspective, the employer might choose to hire Bridget without knowing about Alan's mental illness.37 The efficient decision would depend on whether the benefits of hiring Alan would ultimately exceed the costs imposed by customers or coworkers. In the hypothetical, Alan and Bridget were equally qualified, so without further information, any amount of costs due to coworker or customer animus would tip the crystal ball result in favor of Bridget.38

An additional factor could be other countervailing tastes, including a customer taste for antidiscrimination, akin to what Mary Anne Case has called a "taste for not being discriminated against."39 In a case involving a grocery bagger with Asperger's syndrome,40 the Eleventh Circuit reversed the district court's grant of summary judgment to the defendant Food World, on the basis that a material issue of fact existed as to whether the plaintiff could carry out the essential functions of the job of utility clerk which the court agreed included not "offending customers."41 Due to his disability, the plaintiff often spoke "more loudly than necessary" and engaged in echolalia, a form of "constant repetitive speech."42 Because the plaintiff's communication and social interaction skills were impaired, he "tend[ed] to make inappropriate comments or ask personal questions of strangers."43 Interestingly, in an opinion concluding that a factual question surrounded whether the plaintiff could do his job, the court noted in the facts section that the store received, in addition to customer complaints about the plaintiff, favorable customer comments on the plaintiff's "attempt to work despite his disability."44 Those who submitted the favorable comments might have had a taste for antidiscrimination efforts and, depending on the strength of that taste, might have positively affected business by increasing their loyalty to this store or by advertising its efforts to friends and others who might share a similar taste.