Perceived Disabilities, Social Cognition, and 'Innocent' Mistakes

This Article uses social cognition literature to analyze one form of employment discrimination under the Americans with Disabilities Act of 1990 (ADA"). When enacting the ADA, Congress recognized that discrimination against individuals with disabilities is so pervasive that it impacts more than just those who possess substantially limiting impairments. Therefore, the ADA protects not only individuals who have an actual disability, but also nondisabled individuals who are mistakenly "regarded as" disabled by their employers. This part of the ADA, known as the `perceived disability" prong, pushes antidiscrimination law squarely into the realm of perceptual mistakes. Accordingly, Professor Travis turns to the field of social cognition-particularly research on causal attribution and prediction bias-which studies why, how, and when we misperceive other individuals' capabilities. Through this interdisciplinary approach, Travis concludes that many perceived disabilities are likely to occur as the predictable byproduct of otherwise efficient and typically unconscious cognitive processes, rather than from conscious prejudice or group-based decisionmaking. Travis argues that these misperceptions should not be ignored, as many courts are doing. Nor should these misperceptions be treated the same as prototypic, intentional forms of discrimination, as other courts have done. Instead, Professor Travis suggests conceptualizing this type of employment discrimination as a form of negligence or strict liability with limited remedies, as an alternative to modeling discrimination theory so extensively on concepts of intentional torts. INTRODUCTION Mistakes happen, and happen often, because we are all too human. Mistakes thus join company with death and taxes, those other two life certainties, but with an important difference: For death and taxes, rituals are prescribed and responses are predictable, but when mistakes happen, all bets are off about what judgment will follow. Will the mistake be forgiven, as Pope's "to forgive, divine" ending implies? Or will the actor's mistake be judged culpable to a degree, though mitigated by the mistake? Or will the mistake remit nothing, leaving the actor's culpability lessened not a whit? -Norman J. Finkel & Jennifer L. Groscup1 Employment discrimination takes many more forms than the current models in our antidiscrimination laws explicitly recognize. As new forms of employment discrimination are identified, courts must decide whether or not to apply our existing statutes, which many continue to believe were narrowly constructed to focus primarily on conscious acts of prejudice. Litigants have had more success challenging that notion with respect to Title I of the Americans with Disabilities Act of 1990 (the "ADA"),2 because Congress was relatively clearer about the multifaceted nature of disability discrimination. Legislators openly acknowledged that disability discrimination may result not only from invidious animus, but simply from "unthinking" conduct.3 However, even under the ADA, courts repeatedly face new types of conduct that appear to be "discriminatory" in nature but that do not fit easily within the still rather limited concepts of discrimination that are formally described in the statute. Courts often frame these questions solely as an issue of liability. Judges either decide that an employer's conduct is "close enough" to a prototypic form of discrimination to be treated similarly, thereby triggering full liability, or they decide that the employer's conduct is "too far away" from prototypic discrimination claims to be covered by the statute, thereby resulting in no liability at all. Just as the statutory definitions of discrimination are often too narrow and rigid, so is this judicial liability-focused approach. Framing the issue solely in terms of a liability question is at once both overinclusive and underinclusive, imposing too great a punishment on some forms of discrimination, while leaving other forms completely unchecked. …