Burris on the ADA and Psychiatric Disabilities

New on SSRN: Scott Burris, Justice Disparities: Does the ADA Enforcement System Treat People with Psychiatric Disabilities Fairly? (Maryland Law Review, forthcoming 2006). The abstract:

1990 Americans with Disabilities Act (ADA) was expected to decrease discrimination against people with disabilities. However, discrimination against people with psychiatric disabilities may exist in the legal system that is charged with implementing the ADA. This study describes and compares the characteristics of people with psychiatric and nonpsychiatric disabilities who filed employment discrimination lawsuits under Title I of the Americans with Disabilities Act (ADA) from 1993 to 2001. The paper examines actual and perceived outcomes of these lawsuits, features of the surrounding legal process, effects of psychiatric disability status on receiving a benefit from litigation, and the predictors of overall satisfaction with the experience of bringing an ADA Title 1 claim.

A national stratified quasi-random sample of N=537 persons filing ADA employment discrimination lawsuits in federal court was interviewed by telephone. Subsamples of n=148 persons with psychiatric disabilities and n=222 persons with nonpsychiatric disabilities were compared. The primary outcome was receiving a benefit from filing an ADA Title I lawsuit, defined as a court ruling in favor of the plaintiff or a settlement between the parties, with the plaintiff's confirmation of having received some benefit. The secondary outcome was the degree of overall satisfaction with the experience of bringing a claim of employment discrimination from the initial charging process through litigation.

The study finds that people with psychiatric disability fared significantly worse in employment discrimination lawsuits than their counterparts with nonpsychiatric disabilities, controlling for other significant predictors of litigation outcome including health status, plaintiff's education, reasons for the lawsuit, and assistance by a lawyer. Plaintiffs with psychiatric disabilities were also significantly less satisfied with the overall process of filing a claim of employment discrimination and bringing a lawsuit under the ADA. The effects of poor outcome on dissatisfaction were mediated by perceived unfairness, lack of voice, and lack of procedural justice in the charge process and litigation.

These disparities are not easily explained by differences in the law, the behavior of employers or lawyers, or the effects of psychiatric illness on perception. Even accounting for the influence of outcome, people with psychiatric disabilities experienced less procedural justice than others. While the disparities are clear, the causes are not. There is no reason to suspect that actors in the legal system - personnel in state agencies, judges, court clerks, lawyers for the defendants, and even lawyers for the plaintiffs - are immune from the stigma of mental illness, but also no reason to jump to the conclusion that the system is rife with "sanism". What should not be doubted is the need for a vigorous response to these findings that ensures that the system that is intended to protect people from discrimination does not discriminate.