Asking and Telling: How Title II of the ADA Protects against Discrimination by Regulating the Transmission of Stigmatizing Information

The past three and half decades have witnessed a legal battle between state bar licensing boards, which control access to the legal profession, and mental health advocacy groups over the question of questions. Specifically, whether bar applications can ask applicants whether they have in the past sought treatment for or been diagnosed with a mental illness. Boards have claimed that such inquiries are necessary to protect the public from unfit professionals, while advocates counter that that such inquiries violate the Americans with Disabilities Act (ADA) because they have a disparate negative impact on individuals with disabilities. This paper has two principal aims. First, addressing the legal question of whether such inquiries are in fact prohibited by the ADA. Echoing arguments made by advocacy groups and the Department of Justice in amicus briefs and more recently in investigations and enforcement actions, I will argue that they are. Title II of the ADA, the relevant section of the Act, prohibits public entities from adopting eligibility criteria that have a disparate impact on the disabled, unless such criteria are necessary to protect public safety. Though some federal district courts have upheld versions of these inquiries that ask only about certain “severe” mental illnesses, the empirical evidence indicates that even then it is highly unlikely that boards could make any accurate predictions based on the information flushed out by these questions. They are therefore not necessary to protect public safety. And such inquiries discriminate against individuals who have, have had, or are perceived to have mental illnesses, because these questions are burdensome, intrusive, based on stereotypes, and expose disabled applicants to implicit and explicit bias. Questions that focused on past conduct, rather than disabled status, would likely be able to uncover the same relevant information, without posing the same risk of discrimination. Second, the small body of legal scholarship that has focused on licensing for the bar has remained largely within the narrow confines of the question of bar licensing. This paper's purpose in examining this case study is a good deal broader. The particular question of bar licensing and mental health inquiries reflects a larger class of questions over disclosure and stigma. The two-and-a-half decades of legal struggles over licensing, and particularly a 2014 Consent Agreement between Louisiana and the DOJ, offer precedents and models for determining relevancy and balancing interests within the context of screening and stigma. Through a systematic analysis of these models and precedents, I will assemble a general framework of how non-disclosure or the regulation of disclosure can be used to protect individuals from bias and discrimination, while not denying evaluators access to information potentially relevant to public safety. Since in many cases there will need to be some form of balancing between private interests in non-disclosure and public safety or business necessity, this model will provide a wide menu of options for regulating information based on how relevant we think the information is and how great the burdens associated with its disclosure might be. This is a question of controlling and channeling the flow of information, and it is useful to borrow a three-stage model more familiar to privacy law: control of information at point of access, use, and dissemination. This approach also reveals a few general dynamics. First, all else being equal, the more relevant we believe the information to be, the more we believe that restrictions should be placed later on in the final process. Inversely, the greater the risk for discriminatory burdens, the more interventions later in the process may seem insufficient. When a stigmatized status is likely irrelevant to the evaluation, it not only decreases the need to balance, but it also potentially increases the expressive harms of such inquiries, which will be more obviously based on stereotypes than facts. Second, there is also a dynamic interplay between the stages. For example, lower protections against bias and on confidentiality will make the initial disclosures feel more intrusive, and vice-versa.Creating a broader structure for addressing this question will make it possible to bring the question of bar licensing and Title II into conversation with a much broader class of questions: mental health inquiries in medical licensing; inquiries into past substance abuse treatment in public licensing and employment; inquiries into sexual orientation in security clearance interviews; and inquiries into criminal background in housing or employment, to name just a few. At the moment, the approaches to these questions have been disconnected and piecemeal. In an effort to provide greater clarity and consistency, this paper offers a schema portable to other areas of law that, like Title II, require a determination of when disclosure is necessary, as well as a model for regulators or lawmakers seeking to regulate disclosure in the context of stigma. At a time when more and more information is being accumulated and that information is becoming both easier to transmit and more of a commodity, it particularly critical that we establish a consistent framework for deciding when antidiscrimination requires us to place controls on the mandatory disclosure, use, and dissemination of potentially stigmatizing information.