Public Law & Legal Theory
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.
Elizabeth Emens, "The Sympathetic Discriminator: Mental Illness and the ADA" (University of Chicago Public Law & Legal Theory Working Paper No. 74, 2004).