Friday, June 16, 2006

Smith on Mental Illness and the ADA

Via Workplaceprof Blog, I came across this new abstract on SSRN: Deirdre M. Smith, The Paradox of Personality: Mental Illness, Employment Discrimination, and the Americans with Disabilities Act (forthcoming 2006 in the George Mason U. Civil Rights Journal). The abstract:

Both medicine and the law devote considerable concern to drawing lines, that is, to classifying and making distinctions. In medicine, such line-drawing occurs when a person is designated healthy or ill, normal or disordered. In the law, such line-drawing determines who does and does not bear legal responsibility for a given situation. This Article reviews the demarcation drawn by psychiatry and the courts between “disfavored personality” and “mental illness,” a dichotomy not based upon empirical science and therefore, wholly susceptible to social construction and implementation. While society may pathologize noxious personalities, thus making them “disabilities,” it is loath to extend disability-based legal protections to people with such personalities. Specifically, the application of the Americans with Disabilities Act (“the ADA”) to persons with “impaired” personalities is regarded by some as improperly removing or excusing their responsibility for their own behavior, while improperly assigning responsibility to the people who must interact with them, notably employers. Thus the invocation of “personality” in disability discrimination claims implicates a collision between societal and psychiatric attitudes towards certain psychological conditions and the law. In the case law developed under the ADA, courts have erred on the side of a restrictive view of the meaning of “mental illness” by employing approaches that ensure that “personality issues” are eliminated from ADA analyses. This trend has swept so broadly, the Article argues, as to render the ADA a limited tool both for remedying past discrimination and for compelling society to examine the place of people of with mental illness in the workplace.


Blogger Danny Haszard said...

Well said,i applaud your blog, mental health consumers are the least capable of self advocacy,my doctors made me take zyprexa for 4 years which was ineffective for my symptoms.I now have a victims support page against Eli Lilly for it's Zyprexa product causing my diabetes.--Daniel Haszard

3:12 PM  
Blogger Alone said...

The problem with the dichotomy described here is not that it is arbitrary, which it is, but that it makes it appear as if one construct is scientifically valid while the other is not. In reality, neither are valid in the sense you are describing.

For example: to identify someone as "having" Antisocial Personality Disorder is merely to describe their behaviors, allow inferences about their history (i.e. epidemiology) and possible predictions about their future. This is exactly what happens when someone is said to "have" Bipolar Disorder. It's merely a description of behaviors, not a reference to specific physical pathology, which science has so far been unable to identify. That's why they are both called "disorders" and not "diseases."

In this sense, we are not even sure the symptoms in bipolar are related to one another, or should linked together. For example, are periods of depression and mania part of one large illness, or two completely different ones?

Many try to counter that there are biological correlates in bipolar (and in antisocial) but there are such correlates in any kind of thought process. Are any of these correlates specific to either disorder and not to anything else? Or is anything absent that is consistently present elsewhere? And even if we found something, so what? For example, say we discover a deficiency in serotonin in depression (which so far has not been found)-- does that make it a disease?

The reason psychiatry, and the law, use the dichotomy is because it is socially useful, not valid a priori. Let us not forget that that is the same reason we have laws.

11:21 AM  

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