Disability Law | Health Law and Policy | Law
Center for Law and Philosophy
Center for Gender & Sexuality Law
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 Article 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 those with mental illness, I argue, because of how those with mental illness make them feel, in ways that are intimately bound up with how people with mental illness themselves feel. Mental illness tends to produce what I call "hedonic costs" – an increase in negative emotions or a loss of positive emotions – in people with mental illness. And the hedonic costs of an individual's mental illness may create hedonic costs for nearby others. 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 feelings. Hedonic costs are relevant to various types of discrimination, but particularly 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 cause others to share their negative emotions. For example, spending time around a person with depression – even having a short conversation – typically causes others to feel greater sadness and hostility. And studies indicate that liking someone makes the liker more susceptible to absorbing the other person's emotions. Thus, someone who bears no animus towards people with mental illness, and perhaps cares about or likes certain individuals with mental illness, may for this reason feel an impulse to avoid coworkers and others with mental illness.
Elizabeth F. Emens,
The Sympathetic Discriminator: Mental Illness, Hedonic Costs, and the ADA,
Geo. L. J.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/276