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

Georgetown Law Journal, Jan 2006 by Emens, Elizabeth F

Such positive feedback is unlikely, however, in the context of mental illness as opposed to other mental, or physical, disabilities. Asperger's, a variant of autism, is not easily categorized,45 but is generally understood as more of a developmental disorder than a mental illness.46 Studies indicate that people blame individuals with mental illnesses more than they blame those whose disorders are understood as more organic, such as mental retardation;47 a similar distinction may be made with regard to Asperger's.

People also distinguish among different mental illnesses, to some extent, in the stigmatizing attributions they make. For example, research suggests that psychosis is more stigmatized than depression.48 Such research seems consistent with mainstream attitudes expressed in the media and the recent popularization of antidepressants such as Prozac. Moreover, though some psychological data suggest that depression does not lie along a simple continuum with nonclinical emotional states,49 depression may arguably be seen at least by lay observers as an extreme version of certain "normal" emotions like sadness.50 Research is needed to understand the extent to which certain mental illnesses are understood to be on a continuum with nonclinical emotions and behaviors, while other mental illnesses are understood to be qualitatively different emotional and behavioral states, and how these perceptions relate to hostility towards people with these conditions.51

B. INEFFICIENT STEREOTYPING

People use stereotypes all the time. In the absence of perfect information, or in the absence of time and energy to process all the available information, people rely on proxies and generalizations.52 A parent may avoid a certain chain of grocery stores because the one in his neighborhood is less than clean. A coach may select players for a junior high school basketball team based on height. A college student might take classes only with professors who wear blue, generalizing from the fact that his two favorite high school teachers often wore blue to the belief that blue clothes predict a dynamic teaching style.

Some stereotypes are more accurate and effective than others, depending on the availability and cost of better information. If the parent generalizing about grocery stores has easy access to a comprehensive report on his city's grocery stores, and the chain he avoids actually has the highest cleanliness ratings around, then his generalization about that particular chain is an irrational stereotype. If the basketball coach is choosing among seventh graders who have no prior experience playing basketball, and she has limited time to choose the players, then height might be the best available proxy for eventual success at junior high basketball. The college student, generalizing from the sartorial habits of two high school teachers, is likely to be disappointed.

A number of measures that employers commonly use to make hiring decisions are proxies for ability and success on the job, including diplomas, grades, prestige of education, and scores on various tests. Sometimes these proxies, although overgeneralizations, are the most cost-effective means of determining the likely job success of individual applicants. This is statistical discrimination, the subject of the next Section.53 But sometimes an employer uses a proxy that is not the most efficient means available of gaining the relevant information. For example, an employer who does not even glance at the typing speeds listed on resumes, and instead chooses all her secretaries from one school on the mistaken impression that that school produces the fastest typists, employs economically irrational stereotyping. Similarly, if an employer assumes that being white is a reliable proxy for the fastest typing speed, when resumes of faster nonwhite typists were crossing her desk unread, then this would also be economically irrational stereotyping. In both cases, we would expect an economically rational employer to behave differently. (Title VII of course prohibits the employer from making hiring decisions on the basis of race, whether or not the proxy is reliable and cost-efficient, whereas no law prohibits the employer from hiring on the basis of an applicant's school, in the absence of other factors.54)