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.