Of Eggshells and Thin-skulls: A consideration of racism-related mental illness impacting Black women

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Abstract

Recent research has indicated that the prevalence of mental disorders is estimated to be higher among Blacks than among Whites, most likely due to the nexus of race and socioeconomic disparity. Blacks are under-represented in in-patient populations and more likely than Whites to use the emergency rooms for mental health treatment. Numerous studies confirm that Blacks drop out of mental health services at a significantly higher rate than Whites and use fewer treatment sessions for mental health issues. Furthermore, Blacks enter mental health treatment at a later, more advanced stage than Whites, under-consume community mental health services of all kinds, are misdiagnosed more often than Whites, and are more often diagnosed with a severe mental illness than Whites. People from diverse ethnic backgrounds often are prevented from receiving adequate mental health treatment due to misdiagnoses and lack of access to the services they need. Factors contributing to this disparity include a general mistrust of medical health professionals, cultural barriers, co-occurring disorders, socioeconomic factors, and primary reliance on family and the religious community during times of distress.

Unfortunately, the traditional institutions of racialized research largely ignore the disparate social and political exposures confronting people of color, such as residential and occupational segregation, racial profiling, tokenism, discrimination, racism, and the consequential physiological and psychological effects flowing from the macro and micro effects of such interactions and intersectionalities. This article explores these issues and proposes civil law legal frameworks for addressing these disparities. In particular, it is suggested that renewed consideration be made of the Thin-skull and Eggshell doctrines in the United States and comparable traditional international doctrine.

Introduction

Just as the law should permeate society, articulating ethical standards of conduct and advancing remedies for the injured, so too society should permeate the law, informing the standards by which members of society are held accountable and by which they are compensated. Such legal osmosis should be the hallmark of a good legal system—one that is not out of touch, nor out of sync, with the reality confronting those subject to the law, seeking the protection of the law, or desirous of a legal remedy. While the legal system should not be vulnerable to every whim, fancy or frivolity found in the contemporary society it serves, so too must the legal system avoid being held slave to the past, especially an ugly past of racialized3 nation-building, raced property, dehumanization and legalized atrocities. A balance must be struck which, recognizing the dirty hands of the law in the injustices of the past, seeks to ensure that the law is no longer used to further inequity and, instead, attempts to unpack and remedy some of the damage effectuated with the complicity of the law. As Chief Justice Lord Coleridge remarked over a century ago, “[t]hough law and morality are not the same, and many things may be immoral which are not necessarily illegal, the absolute divorce of law from morality would be of fatal consequence….”4

This “fatal consequence” is far from certain—it is a fate from which the law can be liberated. Many areas of the law remain under-explored as avenues available to achieve the ends of equal protection before and under the law—these lofty equality-enhancing aspirations are not the exclusive domain of constitutional and civil rights laws. Furthermore, the law is capable of incorporating information beyond its ken—the sciences, whether social or biological, have been incorporated into the law in many respects, including, but not limited to expert testimony or judicial notice. The intersection of tort law, outsider scholarship and critical psychology provides an unlikely site for such an exploration. This location for inquiry is not just an interesting academic machination, but may provide accessible practical consideration for a legal system increasingly beleaguered by constitutional claims and overburdened by administrative law articulations.

This article will reference “critical psychology” and outsider scholarship to inform the Thin-skull and Eggshell personality tort law doctrines.5 I have dubbed critical psychology that sub-category of the discipline that responds to the traditionally assumed universality of experience by recognizing the subjectivity of experience, especially as this psychical experience is impacted and determined by societal factors including race, gender, sexual-orientation, class, culture, religion and the intersection of these identity variables. Hence, critical psychology recognizes and addresses the social and political constructs that impact mental health and disparately affect those relegated to the margins of society.

Outsider jurisprudence makes the personal political by recounting stories and detailing everyday experiences, for the personal is “where our most idealistic and our deadliest politics are lodged.”6 To illustrate this point, outsider scholars have focused on the racism embodied in ostensibly “personal” and “a-political” encounters. By narrating life, outsider scholarship “preserves reference to the world”7 of racism encountered in the everyday rituals of life such as shopping, childcare, working and studying. The outsider narratives about racism in everyday life should strike a chord not only with Black8 readers and people of color, but also with those who have never before contemplated the familiar sites of stores, schools, and workplaces as sites of oppression because everyone has experienced pain, stress, and humiliation on some level in some context. Outsider jurisprudence takes this common reality one step further to reveal the commonality of this experience for people of color, regardless of class, and recognizes the racialized systems at work beneath the surface of these narratives. This common chord, in turn, is not “merely” personal as outsider scholarship “makes political demands”9 on insiders by requiring them to treat members of subordinated groups as citizens, worthy of respect.

The sub-category of critical psychology devoted to the analysis of racism-related mental illness in the form of depression, stress, and daily hassles causing or exacerbating mental illness will be the focus of this article. Critical psychology reveals the plausibility of legally compensable injury that is either caused by or aggravated by discrimination in general, and racism in particular.10, 11 Part one of this article will provide a brief overview of the Thin-skull and Eggshell doctrines in the United States and will reference comparable international doctrine. Part two will highlight some of the critical psychology investigating racism-related mental illness, and include insights and conclusions from outsider jurisprudence as corroborative of the psychological findings. The conclusion will analyze the utility of considering tort law as capable of incorporating the information becoming available in critical psychology and will suggest areas in need of further exploration.

Section snippets

Part one—an overview of the Thin-skulled and Eggshell doctrines

The word of law, whether statutory or judicial, is a subcategory of the underlying social motives and beliefs from which it is born. It is the technical embodiment of attempts to order society according to consensus of ideals. When society loses sight of those ideals and grants obeisance to words alone, law becomes sterile and formalistic; lex is applied without jus and is therefore unjust. The result is compliance with the letter of the law, but not the spirit. Patricia J. Williams.12

Part two—the nexus of critical psychology and outsider jurisprudence

There is thus during this calm period of successful colonization a regular and important mental pathology which is the direct product of oppression. Frantz Fanon.119

Recent research has indicated that the prevalence of mental disorders is estimated to be higher among Blacks than Whites, most likely due to the nexus of race and socioeconomic disparity.120

Part three—conclusion

‘You are saved,’ cried Captain Delano, more and more astonished and pained; ‘you are saved: what has cast such a shadow upon you?’262, 263

Given the increasingly conservative tenor of many American courts, and the challenges posed by the intent to discriminate threshold in Title VII cases, it might be prudent to reconsider traditional doctrine, such as the Thin-skull and Eggshell tort

Acknowledgments

I would like to convey a special thank you to my research assistants Mr. William E. Dailey, Ms. Robyn Hill, and Mr. Piran Farhadieh for their help in this regard. I am particularly grateful to Professor Michele Goodwin of DePaul University, School of Law for encouraging my submission to this journal in the face of my protestations that I was too busy and too “stressed”. I am indebted to the three anonymous peer reviewers for their encouragement of this project and invaluable constructive

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Author has an LL.M from Columbia Law School, USA.

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