You seem to believe that employers conform to Adam Smith’s ideal of the rational agent acting in an efficient market. And to think that liberals are considered cockeyed optimists! Sally, you are sentimental about employers. The premise of equal opportunity legislation is that employers are sometimes prejudiced or that they operate in discriminatory markets. We have laws requiring equal treatment of women and minorities because the market does not reward worth according to productivity. To a large extent, EEOC regulations regarding mental health address this sort of distortion. In my practice, I see the practical effects of stigma: A good employee suffers a bout of mental illness; the employer is spooked; and the employee is marginalized rather than helped to continue at his or her post.
But rationalizing the marketplace is not society’s only justifiable role in the business world. To have the mentally ill underemployed is inhumane and expensive for the country as a whole. In exchange for what America gives to business, businesses are asked to give a bit back by opening opportunities for the handicapped. The conservative position is that any requirement placed on employers costs jobs. But that premise is false if businesses would otherwise be taxed for a yet more costly result (welfare for the mentally ill) or if the new policy diminishes other market inefficiencies, such as stigma. In general, the conservative argument fails to factor in the benefits of social policies that favor equity.
Much of our disagreement has to do with policy on this level–liberal vs. conservative economic premises. As regards how a new law will be used, for good or ill, I suspect that our perspectives are also colored by our experience as clinicians. Recently, you have worked with drug addicts. Though I started in the public sector, my recent patients tend to suffer mood disorders and to carry health insurance. I value sheltered workshops. But sheltered workshops are irrelevant for the majority of people I treat–people who despite mental illness ought to be in the regular workforce and indeed in its higher echelons. My belief is that most people covered by the ADA share traits with my patients. They are capable, handicapped, and in search of a fair shake.
The ADA does not apply to workers actively using illegal drugs. Otherwise, the law does not distinguish your patients from mine. Nor does it make the finer distinctions we both would prefer, in terms of diagnosis. (Parenthetically, I do think the professions are fairly good at discerning the effects of bipolar disorder.) But public policy is rarely subtle. To use the language of psychotherapy, this law is a “good enough” start; and perhaps it is better than that. The new EEOC guidance is a useful step in refining a humane policy, one to which the culture will “accommodate,” to the benefit of the vast majority of those affected.