Disputed and disfavored: Pain, mental illness, and invisible conditions in disability discrimination cases

Abstract

When they sue their employers for disability discrimination, do plaintiffs with some types of conditions fare better than others? This paper analyzes legal outcomes for three types of conditions that are potentially disputed (subject to suspicion and doubt) or disfavored (subject to stigma or judgment): mental illnesses, invisible conditions, and subjectively diagnosed pain conditions. Using logistic regression to analyze over 1,100 judicial opinions in the US federal courts, we find that invisible conditions tend to be disputed and mental illnesses tend to be disfavored. We find the strongest and most consistent disadvantages for subjectively diagnosed pain conditions; plaintiffs with these conditions are significantly less likely to be deemed a person with a disability and to win in court. The disadvantages for plaintiffs with difficult-to-document pain conditions persist even if they are deemed to be persons with disabilities, suggesting that skepticism about these conditions pollutes judges’ overall impression of plaintiffs.