July 2, 2013
Since 1952, the American Psychiatric Association’s Diagnostic and Statistical Manual (DSM) has been considered the definitive reference guide for mental health disorders. In May 2013, the APA published its long-awaited fifth edition: the DSM-5. Suffice to say, the new edition promises to have a long-lasting effect on employment practices generally, and disability law in particular.
To say, however, that the DSM-5—which expands significantly the scope of numerous previously recognized disorders and adds several new ones—has not been met with universal approval would be a gross understatement. In fact, writing for PsychologyToday.com, Dr. Allen Frances, the emeritus chairman of the psychiatry department at the Duke University School of Medicine, called the DSM-5 “deeply flawed,” “unsafe,” and “scientifically unsound.”
That’s pretty scathing criticism from any expert, much less the individual who literally spearheaded the task force that prepared the DSM-4.
Much of the criticism appears to be justified. Here’s a brief look at some newly-minted, and now medically diagnosable, disorders:
- Caffeine-Withdrawal Syndrome – fatigue, headache, difficulty focusing, diuresis (frequent urination), muscle twitching, rambling flow of thought and speech, etc., resulting from over-intake of caffeine;
- Mild Neurocognitive Disorder – “minor cognitive decline,” beyond “normal” issues of aging, that “concerns” the individual and requires “greater effort, compensatory strategies, or accommodation” to “maintain independence and perform activities of daily living”;
- Social (Pragmatic) Communication Disorder – a “persistent difficulty with verbal and nonverbal communication that cannot be explained by low cognitive ability” that may cause “inappropriate responses in conversation” and can limit occupational performance;
- Attenuated Psychosis Syndrome – infrequent (perhaps no more than weekly) onset of mild distress and social dysfunction that, in the patient’s subjective judgment, requires psychotherapeutic treatment; and
- Binge Eating Disorder – rapid overconsumption of food at least once a week for three months coupled with lack of control, feelings of distress, embarrassment, and/or guilt.
Has the DSM-5 medicalized the ordinary quirks and travails of everyday life? It certainly appears so, as the definition of Social Communication Disorder sure sounds a lot like poor interpersonal skills, and Caffeine-Withdrawal Syndrome sounds a lot like Wednesday afternoon. Should these really be medically-diagnosable disorders?
Equally noteworthy is the DSM-5’s expansion-by-contraction of previously recognized disorders. For example, gone from the definition of Major Depressive Disorder is the “bereavement” exclusion, such that normal and expected grief associated with the loss of a loved one is now susceptible to a “Major Depression” diagnosis. Also jettisoned from the definition of Mental Disorder is the deviancy exclusion (unless the deviancy is the “primary” cause of the disorder).
Just because a disorder is recognized in the DSM does not mean it automatically meets the definition of “disability” under the ADA (in fact, the EEOC’s interpretive guidance expressly excludes from the definition of “impairment” any “common personality traits such as poor judgment or a quick temper where these are not symptoms of a mental or psychological disorder”). But if “personality traits” become diagnosable disorders, the EEOC’s position will likely change. The ADA Amendments Act of 2008 already has lowered the “disability” bar significantly and employees are typically required to show only that they are limited in their ability to interact with others (a “major life activity” recognized by the ADA). Similarly, just because a disorder is recognized in the DSM does not mean it automatically meets the definition of “disability” for the purpose of an STD/LTD plan, or that it necessarily renders an individual “incapacitated” for purposes of the FMLA or Workers’ Compensation. The DSM is, however, widely accepted and used by insurance carriers as well as physicians for diagnostic and treatment purposes. The new edition therefore threatens to have widespread and long-lasting effects.
Perhaps most significantly, resourceful plaintiffs’ attorneys can now argue that instances of misconduct or poor performance are attributable to a “disorder” as opposed to ordinary characteristics such as incompetence, disobedience, lack of motivation, poor interpersonal skills, etc. Employers are not presently required to accommodate age-related cognitive limitations under either the ADEA or ADA, but recognition of Mild Neurocognitive Disorder could change that. Employers are also not presently required to accommodate or tolerate inappropriate workplace communications, but recognition of Social Communication Disorder could change that too. The manner in which the DSM-5 can be leveraged by the plaintiffs’ bar is limited only by one’s imagination.
Responsive action on the part of employers will depend largely on whether the DSM-5 achieves widespread acceptance in the medical community, as well as the EEOC’s response and the results of early Daubert skirmishes over the admissibility at trial of psychiatric testimony based on the DSM-5.
If you would like to discuss this E-flash, the DSM-5, or you have questions about disability or employment practices generally, please contact Post & Schell, P.C. attorneys Darren M. Creasy and A. James Johnston. Darren can be reached at 215-587-6632 or firstname.lastname@example.org and Jim can be reached at 215-587-1099 or email@example.com.