Working to Destigmatize Mental Illness: A Critique of Federal Employment Law
The American federal law’s ability to eliminate general employment discrimination is deficient. 1 Inequities rooted in prejudice—conscious or unconscious 2 —remain pervasive throughout the workplace, unfairly burdening women and minorities, 3 despite federal provisions intended to eradicate discriminatory behavior.4
The federal law has proven particularly inept at ameliorating workplace bias against mental illness.5 The primary federal statute prohibiting disability-based employment discrimination is Title I of the Americans with Disabilities Act of 1990 (ADA), 6 which was modified under the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) to overrule certain judicial interpretations and provide better legal protections for disabled employees.7 However, plaintiffs with psychological disorders remain largely obstructed from satisfying the elements necessary to establish a prima facie case under the ADAAA.8 The burden of proof on employees is especially onerous for those with mental illness,9 and the federal courts have interpreted the law in such a restrictive manner as to practically negate the statute’s protective capacity.10 Though the words of the ADAAA appear to promise bountiful safeguards, 11 the statute’s application in the courts has proven inadequate,12 leaving mentally ill employees with little recourse in the face of fierce societal stigma.13
In this paper, I consider the ways in which the ADAAA expands coverage to those with psychiatric disorders and the reasons why this coverage remains insufficient to protect employees with mental illness. I begin the paper with a discussion of the stigma of mental illness in Part I. In Part II, I examine the ADAAA and changes made by Congress to help individuals with psychological disabilities, and in Part III, I identify the inadequacies of the ADAAA in protecting employees with mental disorders from discrimination. In Part IV, I conduct a literature review of legal scholarship concerning ways to reform mental disability-based antidiscrimination law, and I conclude by endorsing many of the recommendations drawn from legal scholarship, while encouraging an additional, more progressive avenue of reform. Throughout this paper, I use synonymously the terms mental illness, mental disorder, psychiatric disorder, and psychological disability to refer to the broad spectrum of mental health issues included in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5). 14
