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Mental Illness and the ADA Elizabeth Emens University of Chicago Law School Chicago Unbound Public Law and Legal Theory Working Papers Working Papers 2004 The yS mpathetic Discriminator: Mental Illness and the ADA Elizabeth Emens Follow this and additional works at: https://chicagounbound.uchicago.edu/ public_law_and_legal_theory Part of the Law Commons Chicago Unbound includes both works in progress and final versions of articles. Please be aware that a more recent version of this article may be available on Chicago Unbound, SSRN or elsewhere. Recommended Citation Elizabeth Emens, "The yS mpathetic Discriminator: Mental Illness and the ADA" (University of Chicago Public Law & Legal Theory Working Paper No. 74, 2004). This Working Paper is brought to you for free and open access by the Working Papers at Chicago Unbound. It has been accepted for inclusion in Public Law and Legal Theory Working Papers by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. CHICAGO PUBLIC LAW AND LEGAL THEORY WORKING PAPER NO. 74 THE SYMPATHETIC DISCRIMINATOR: MENTAL ILLNESS AND THE ADA Elizabeth F. Emens THE LAW SCHOOL THE UNIVERSITY OF CHICAGO September 2004 This paper can be downloaded without charge at the Public Law and Legal Theory Working Paper Series: http://www.law.uchicago.edu/academics/publiclaw/index.html and The Social Science Research Network Electronic Paper Collection: http://ssrn.com/abstract_id=590930 Draft 9.10.04 – Please do not cite or quote. The Sympathetic Discriminator: Mental Illness and the ADA (work in progress, forthcoming 2005, Georgetown Law Journal) † Elizabeth F. Emens ABSTRACT Discrimination against people with mental illness occurs in part because of how those with mental illness can make other people feel. A psychotic person may make others feel agitated or afraid, for example, or a depressed person may make others feel sad or frustrated. Thus, a central basis for discrimination in this context is what I call hedonic costs. Hedonic costs are affective or emotional costs: an influx of negative emotion or loss of positive emotion. In addition, the phenomenon of emotional contagion, which is one source of hedonic costs, makes discrimination against people with mental illness peculiarly intractable. Emotional contagion is a largely unconscious process by which we absorb the emotions of nearby others. Research on emotional contagion indicates that people with mental illness are likely to prompt others to absorb their negative emotions, and that emotional contagion increases the more we like someone. Contrary to the much-vaunted contact hypothesis that workplace integration increases liking and decreases discriminatory animus, then, integration of people with mental illness may instead give coworkers and employers more reason to want to avoid people with mental illness. These insights have at least four doctrinal implications. First, the Americans with Disabilities Act (“ADA”) requires employers to bear the hedonic costs imposed on the workplace by employees with mental illness, subject to certain limitations. In particular, employers may not generally define the essential functions of a job to include not inflicting hedonic costs, with the exception of jobs that have the mental state of others as their focus. Second, understanding both the centrality of hedonic costs to mental illness and the mechanism of emotional contagion helps resolve a disagreement between circuits about whether the employer or the employee bears the greater responsibility for effective negotiations about reasonable accommodation of a disability. Third, at a time when the EEOC’s most promising interpretation of what it means for a person to be “regarded as” disabled is on uncertain footing in the courts, an awareness of negative emotional contagion and other hedonic costs of mental illness helps show why that disputed interpretation is in fact vital to implementing the mandate of the ADA. Finally, appreciating the understandable fear of the hedonic costs of mental illness helps explain the difficulty courts have had with the apparently easy doctrinal question of whether interacting with others is a major life activity for purposes of the definition of disability under the ADA, and thus helps supply an answer to that question. † Bigelow Fellow and Lecturer in Law, University of Chicago School of Law, 2003-05. J.D., Yale Law School, 2002. Ph.D., King’s College, University of Cambridge, 2002. I am grateful to participants at the Feminism and Legal Theory Workshop conference on the Subject of Disability at Emory University (Mar. 4-5, 2004) and at the University of Chicago Work-in-Progress Seminar (July 15, 2004), at which I presented earlier versions of this work in progress, and to the following people for their comments on earlier drafts: Ian Ayres, John Bronsteen, Mary Anne Case, Adam Cox, J. Richard Emens, Jeanne Fromer, Jill Hasday, Philip Hamburger, Adam Hickey, Ann Hubbard, Jenia Iontcheva Turner, Sarah Lawsky, J. Georgia Lee, Martha Nussbaum, Eric Posner, Rachel Smith, James Spindler, Geof Stone, Lior Strahilevitz, David Strauss, Cass Sunstein, Beatrice Wolper, Kenji Yoshino. All mistakes are of course my own. Sympathetic Discriminator 2 (work in progress; please do not cite or quote) TABLE OF CONTENTS INTRODUCTION I. PRELIMINARIES A. STATUTORY FRAMEWORK AND MANDATE B. MENTAL ILLNESS: DEFINITIONAL AND STATISTICAL MATTERS II. THE MIND OF THE DISCRIMINATOR: TRADITIONAL CATEGORIES A. ANIMUS-BASED DISCRIMINATION B. INEFFICIENT STEREOTYPING C. RATIONAL DISCRIMINATION D. THE NEXT STEP: A HYBRID FORM III. HEDONIC COSTS AND DISCRIMINATION ON THE BASIS OF MENTAL ILLNESS A. THE DEFINING ROLE OF HEDONIC COSTS IN MENTAL ILLNESS B. THE IMPOSITION OF HEDONIC COSTS ON OTHERS: OVERVIEW C. THE IMPOSITION OF HEDONIC COSTS: THE SPECIAL CASE OF EMOTIONAL CONTAGION D. IMPLICATIONS FOR DISCRIMINATION AGAINST PEOPLE WITH MENTAL ILLNESS IV. DOCTRINAL IMPLICATIONS A. HEDONIC COSTS AND ESSENTIAL FUNCTIONS B. ACCOMMODATING ACCOMMODATION C. REGARDED AS MENTALLY ILL D. INTERACTING WITH OTHERS CONCLUSION Sympathetic Discriminator 3 (work in progress; please do not cite or quote) The Sympathetic Discriminator: Mental Illness and the ADA (work in progress, forthcoming 2005, Georgetown Law Journal) † Elizabeth F. Emens INTRODUCTION Social discrimination against people with mental illness is widespread. Treating people differently on the basis of mental illness does not provoke the same moral outrage as that inspired by differential treatment on the basis of race, sex, or even physical disability. Indeed, many people would freely admit preferring someone who does not have a mental illness as a neighbor, dinner party guest, parent, partner, or person in the next seat on the subway. Moreover, more than ten years after the Americans with Disabilities Act (the “ADA” or “Act”) expressly prohibited private employers from discriminating on the basis of mental, as well as physical, disabilities, most people would still likely prefer not to have a coworker or employee with a mental illness. This paper seeks to understand what lies behind discrimination on the basis of mental illness, and to connect that understanding with a set of disputes about the meaning and scope of the ADA. People often discriminate against people with mental illness, I argue, because of how those with mental illness make them feel. Those with mental illness may create for others what I call hedonic costs, an increase in negative emotions or a loss of positive emotions. For example, an employee with bipolar disorder may behave erratically or express hostility during a manic phase, causing her coworkers to feel frustrated or scared or hostile. Her coworkers may therefore wish to avoid her, in order to avoid these † Bigelow Fellow and Lecturer in Law, University of Chicago School of Law, 2003-05. J.D., Yale Law School, 2002. Ph.D., King’s College, University of Cambridge, 2002. I am grateful to participants at the Feminism and Legal Theory Workshop conference on the Subject of Disability at Emory University (Mar. 4-5, 2004) and at the University of Chicago Work-in-Progress Seminar (July 15, 2004), at which I presented earlier versions of this work in progress, and to the following people for their comments on earlier drafts: Ian Ayres, John Bronsteen, Mary Anne Case, Adam Cox, J. Richard Emens, Jeanne Fromer, Jill Hasday, Philip Hamburger, Adam Hickey, Ann Hubbard, Jenia Iontcheva Turner, Sarah Lawsky, J. Georgia Lee, Martha Nussbaum, Eric Posner, Rachel Smith, James Spindler, Geof Stone, Lior Strahilevitz, David Strauss, Cass Sunstein, Beatrice Wolper, Kenji Yoshino. All mistakes are of course my own. Sympathetic Discriminator 4 (work in progress; please do not cite or quote) feelings. Hedonic costs are relevant to various forms of discrimination, but uniquely capture a core reason for discrimination against people with mental illness. Hedonic costs based on emotional contagion form a peculiarly sympathetic and potent basis for discrimination. Emotional contagion is the process by which we absorb the emotions of nearby others through largely unconscious mechanisms. Research on emotional contagion suggests that people with mental illness are likely to prompt others to share their negative emotions. For example, spending time around a person with depression—even having a short conversation—typically prompts others to feel greater sadness and hostility. And studies indicate that the more an individual likes someone, the more susceptible that individual will be to “catching” the other person’s
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