Starting Anew: The ADA’s Disability with Respect to Episodic Mental Illness
Suffolk University Law School
March 10, 2011
Mississippi Law Journal, Vol. 75, p. 1039, 2006
This article argues that the judicial construction and application of the Americans with Disabilities Act (“ADA”) is too narrow to achieve the broader purpose of the legislation. The ADA requires a claimant to establish that he has a diagnosed disability that negatively impacts what is legally defined as a significant life event. The plaintiff must also establish that the discrimination was causally connected to that disability.
This essay argues that such an interpretation of the ADA fails to recognize overlapping identity variables and ignores the mental health consequences of persistent and racial harassment. Claimants who develop mental illness because of these kinds of discrimination are currently without relief under the ADA. The current requirements of a claimant to disclose her disability to her employer, that the mental illness pre-exist the discrimination, and that the discrimination not be traceable to other more apparent aspects of the claimant’s identity (e.g., sex, race, and ethnicity) creates too great of a burden and increases the possibility of injustice.
This essay argues that an examination of the treatment of the mentally and physically ill should be the essential test for whether discrimination has taken place. Those who discriminate often do not take the time to parse the identity variables of their victim and specify their reasons for discrimination. Discrimination is often based on a sense by the discriminator of “otherness” and such social marginalization is easier the further the victim departs from the norm of heterosexual, white, able-bodied, middle-class man. The ADA should be interpreted in a way that keeps with its broader purpose and allows for determination as to whether the ascription of “otherness” to the claimant by an external observer has had detrimental consequence.
Number of Pages in PDF File: 25Accepted Paper Series
Date posted: March 10, 2011
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