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

Georgetown Law Journal, Jan 2006 by Emens, Elizabeth F

Inefficient stereotyping thus means stereotyping that is mistaken or otherwise costly. And we may understand it to include at least three types of prejudice: (1) myths about a group, i.e., the belief that a group's members have a certain characteristic when they do not; (2) exaggerated views of a group's traits, i.e., the belief that a disproportionate number of a group's members-or, more strongly, most or all members-have a certain trait when only a few do; and (3) the use of group-based generalizations that do reflect certain properties of the group but where a less expensive or more accurate classifying device is available.55

A myth, as I am defining it, is a belief about a group that completely fails to track reality, such as the fantasy that Jews have horns.56 If only one person had such a belief, rather than the belief developing through cultural ignorance, that person might herself be deemed delusional. Under such a rigorous definition, myths about people with mental illness are difficult to identify. Mental illnesses are so numerous and variable that at least some individuals with some particular illness are likely to reflect any given stereotype. For instance, even the seemingly more cinematic than real notion that insanity is linked to creative genius can find some exemplars.57 Thus, stereotyping in the context of mental illness would seem to fall largely if not completely into the second or third category described above, exaggerated views of certain traits and inefficient proxies.

The common stereotypes about people with mental illness include the beliefs that they are dangerous,58 unreliable,59 lazy,60 responsible for their illness or otherwise blameworthy,61 faking or exaggerating their condition,62 or childlike and in need of supervision or care.63 Beliefs about these traits are often exaggerations.

For example, some argue that although there is a slightly elevated risk of violence among people with mental illness, outsiders' perceptions of the dangerousness of people with mental illness "grossly exaggerates" the reality.64 (Definitive answers here are, however, elusive.65) If so, then a decision not to hire people with mental illness in order to avoid having violent employees might involve a less accurate proxy for dangerousness-and possibly a more expensive one-than is available. Whether efficient or inefficient, though, to use mental illness as a categorical proxy in this way would be impermissible under the ADA in most circumstances.66

C. RATIONAL DISCRIMINATION

Discriminating between potential employees on the basis of a protected trait may sometimes be efficient. The trait could be an efficient proxy for productivity at the level of group-based distinctions, or an individual applicant could actually reveal anticipated costs associated with the protected trait, such as accommodations. I discuss these points in turn.

1. Statistical Discrimination

Market-rational "statistical" discrimination is the use of protected-class status as an efficient proxy for worker productivity or another relevant end.67 Here the metaphor of the crystal ball, mentioned above, is again helpful.68 A protected-trait classification might be the most cost-effective way to determine worker productivity and thus to set hiring policy, such that an employer who did not know what proxy was being used-e.g., race, age, disability status-would choose to rely on the proxy solely because of accuracy and cost.69