The Forensic Psychiatric Expert in Post-Daubert Sexual Harassment Proceedings

Harold J. Bursztajn, M.D., Maryam Koupaie, BS, Michele Stephenson, J.D.


In 1980, the United States Merit System Protection Board conducted the first comprehensive national survey of sexual harassment of federal employees and found that 40% of all women and 15% of all men in occupational settings report experiencing sexual harassment. [1] Since the televised senate confirmation hearings focusing on Anita Hill's charges of sexual harassment against Clarence Thomas, there has been a major increase in sexual harassment cases. More recently, the United States Supreme Court unanimously held that Paula Jones' sexual harassment claim against Bill Clinton will be heard during his second term in office. [2] Subsequent developments arising out of Paula Jones' sexual harassment claim have created both a media frenzy and calls for presidential impeachment. It is now safe to predict that as a result of Paula Corbin Jones v. William Jefferson Clinton (Civil Action No. LR-C-94-290), the number of sexual harassment complaints will again rise.

In sexual harassment cases as in other civil actions, attorneys often retain a variety of experts to consult, evaluate claims and if the case goes to trial, to testify. One type of expert often retained by both plaintiffs and defendants is a forensic psychiatrist. As United States District Court Judge Nancy Gertner stated regarding the Jones v. Clinton case, "you can't claim sexual harassment devastated your life and not allow the claim to be tested." [3] By examining, formulating an expert opinion, and testifying, the forensic psychiatrist can play a crucial role in evaluating the cause and extent of emotional injury the plaintiff claims to have suffered.

Coincidentally, there has been an increasing expansion in the judge's role as gatekeeper for admissibility of expert testimony. It is thus also worthwhile for the attorney who expects to present expert testimony in a sexual harassment case to become familiar with the standards for admissibility of such testimony in anticipation of a courtroom atmosphere that will encourage judicial discretion. Such attorney familiarity with the post-Daubert standards for examining forensic expert testimony can enhance the likelihood that the forensic psychiatric expert's testimony will be both admissible and credible to skeptical judges and juries.

Defining Sexual Harassment

Given the potential for misunderstanding, it is worthwhile to restate how the law defines sexual harassment. Title VII of the 1964 Civil Rights Act, amended in 1972, defines sexual harassment as a form of illegal sexual discrimination in employment or in an academic setting. [4] The Equal Employment Opportunity Commission (EEOC) defines sexual harassment as sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature, which are unwelcome and unwanted. [5] It seems as if much work place behavior which is remembered as sexual harassment is never reported to supervisors as such. In 1987, the Merit System Protection Board conducted another study where it found that only 11% of all who say they experience sexual harassment report their harassment to a higher authority and 2.5% of the victims use formal complaint channels. [6]

Sexual harassment can fall into two categories; quid pro quo (this for that) or hostile-environment sexual harassment. In the case of quid pro quo harassment, a supervisor demands sexual activity from a lower echelon employee in exchange for a job benefit such as a promotion or for the avoidance of a detriment such as termination. Hostile environment sexual harassment involves sexually related behavior that creates an intimidating, hostile, or offensive work environment for the employee. [7] The latter form of sexual harassment is both more common and more difficult to prove.

Because both sexes can be victims of either category of sexual harassment, courts may use the reasonable person or reasonable woman legal standard to evaluate claims. In the 1991 decision of Ellison v. Brady, the United States Ninth Circuit Court of Appeals in San Francisco decided a hostile environment sexual harassment claim and held that, in deciding sexual harassment cases where the alleged victim is a woman, the court should use the reasonable woman standard. [8] In Ellison, the employer had responded to plaintiff's harassment claim by counseling the harasser, giving him instructions to leave the plaintiff alone, and transferring him to another location for four months. The court held that the employer had not taken sufficient steps to remedy the situation and that a "sex-blind" reasonable person standard ignored women's experiences and tended to be male-biased rather than "neutral." Other courts have also adopted the reasonable woman standard to female plaintiffs' claims.

The Role of the Post-Daubert Forensic Psychiatric Expert

The 1993 Supreme Court decision, Daubert v. Merrell Dow Pharmaceuticals, Inc. [9], set the legal standard for the admissibility of scientific expert evidence. Daubert was one of many cases in which the manufacturer of the prescription drug Bendectin was sued over birth defects allegedly caused by the drug. A federal district court in the Southern District of New York granted summary judgment for the defendants on the basis of expert testimony which claimed that numerous published studies had not found Bendectin to be a cause of human birth defects. In response, the plaintiffs presented testimony by other well-qualified experts who used various kinds of unpublished research to reach the opposite conclusion. In affirming summary judgment, a U.S. Court of Appeals cited the Frye test, a seventy-year old court ruling, which set forth that, in order to be admissible, the scientific basis for expert testimony must have gained general acceptance in the particular field to which it belongs. [10] In Daubert, the plaintiffs' experts' research, never published or subjected to peer review, did not meet this test.

The U.S. Supreme Court, having granted certiorari, vacated the judgment and remanded the case for trial on the grounds that the adoption of the Federal Rules of Evidence in 1975 (particularly Rule 702) had superseded the Frye general acceptance test. The Court stated that such a rigid standard would be at odds with the Rules' liberal thrust and their general approach of relaxing the traditional barriers to opinion testimony. [11] However, the Court also rejected the plaintiffs' claim that admissibility under the Federal Rules required only that the expert be qualified and have something relevant to contribute. Instead, the Court concluded, "The Rules - especially Rule 702 - place appropriate limits on the admissibility of purportedly scientific evidence by assigning to the trial judge the task of ensuring that an expert's testimony both rest on a reliable foundation and be relevant to the task at hand." [12] Thus, the court did not directly decide the admissibility of the particular evidence at issue in Daubert, but left that determination to the trial judge.

A further boost for judicial "gatekeeping" of admissible expert testimony was provided by Chief Justice Rehnquist on December 15, 1997, who delivered the opinion for the Supreme Court in the case of General Electric Company v. Joiner. [13] The opinion reemphasized that federal court judges have the responsibility to ensure that all scientific evidence admitted are both relevant and reliable. The message of General Electric Company v. Joiner is that appeals courts will be unlikely to overturn a trial judge's ruling as to admissibility of expert evidence. Thus, today more than ever, the attorney must be prepared to effectively insure the admissibility of the retained expert's opinion.

These decisions' overall emphasis on judicial discretion in considering reliability and relevance has made judges and attorneys scrutinize all expert opinions based on professional knowledge. Specifically, there now is a need for greater emphasis on well founded and reasoned pretrial reports, given the greater likelihood that the admissibility of expert testimony at voir dire will be challenged. Rule 26 of the Federal Rules of Civil Procedure specifies that the expert pretrial report must contain a statement of all of the expert's opinions and their basis, reasons for the opinions, the data or other information considered by the expert witness in forming the opinions, and any exhibits which will be used to summarize or support the expert's opinion. [14] Thus, the reliability of the expert's methods and the relevance of the expert's opinion must be demonstrated through careful and logical presentation of both the opinion and the grounds for the opinion. Post-Daubert, this can only be the case when the forensic psychiatric expert proceeds by conducting a careful forensic psychiatric examination and evaluation.

The reliability of the forensic psychiatrist's method continues to be based on the generally accepted methods of the profession. To be reliable, a forensic psychiatric opinion needs to be arrived at via consideration of an alternative hypothesis. A forensic psychiatric opinion is further strengthened to the extent the expert can refer to peer reviewed clinical literature. Such an expert opinion makes full use of an evidence based medicine approach combined with the psychiatric diagnostic interview, which has a relatively well defined error rate. For example, using the American Psychiatric Association, DSM-IV guidelines for psychiatric diagnosis, the concordance rate between any two board certified psychiatrists making a diagnosis of Post-Traumatic Stress Disorder is as high (80%) as when family doctors diagnose an infectious disease such as a pneumococcal pneumonia. An additional safeguard in measuring reliability is the certification of an expert's proficiency in this methodology by a recognized professional body, the American Board of Medical Specialties, Board of Psychiatry and Neurology.

The relevance of the psychiatric expert's opinion is based on a clear presentation of how the data support the expert's opinion. That such a requirement may be of paramount importance is illustrated by Jones v. MetroWest Medical Inc. This case, though not itself a sexual harassment case, illuminates the need for carefully reasoned medical expert opinions. In Jones, the plaintiff claimed that she was suffering from Multiple Chemical Sensitivity (MCS). The plaintiff proceeded to request from the court that, pursuant to the Americans with Disabilities Act, the defendant be required to provide plaintiff with nurses who would remove all chemicals from their clothing and body before they entered her home. Judge Douglas Woodlock, of the United States District Court in Massachusetts, denied the plaintiff's request. The court ruled that plaintiff had failed to show that a diagnosis of MCS fell within the scope of the Americans with Disabilities Act. In his opinion, Judge Woodlock emphasized that diagnosing MCS would require excluding alternative explanations via a deliberate and measured diagnostic process, which the trial judge noted, only the defense expert had engaged in. This indicated that the plaintiff might be complaining of a condition not covered by the ADA. [15] Subsequent to this finding, and in the face of the likelihood of a court-ordered forensic psychiatric examination, the plaintiff withdrew her case.

Evaluating Sexual Harassment Claims

Emotional distress and pain and suffering are common damage claims in sexual harassment complaints. A psychiatric expert can assist plaintiff and defense counsel in evaluating the validity of these claims. However, in order for such an expert to be most helpful, the attorney should provide the forensic psychiatrist with all available evidence necessary for an objective evaluation of the alleged harm suffered.

In assessing the alleged emotional harm, the expert evaluates issues raised by a variety of emotional and physical responses to stress including Post-Traumatic Stress Disorder (PTSD). [16] Sometimes such claims are buttressed by records of mental health and medical treatment. Assessing responses to trauma begins with taking a pre and post critical incident history, to help differentiate symptoms caused by the incident from coincidental symptoms and signs.

Moreover, there is growing legal and medical recognition that many of the most damaging effects of trauma are not merely emotional but also have a physical, particularly a neuro-psychiatric component. [17] For example, both vulnerability to physical illness and a reduction in the volume of the part of the brain, the hippocampus which is responsible for emotional memory, have been described as medical conditions post serious trauma exposure. Such exposure may also be linked to overactivity of one part of the brain controlling fear (e.g., the amygdala) with underactivity of other important areas in the brain. A forensic psychiatric review and analysis of the medical records and physical conditions that may be stress related (e.g., irritable bowel syndrome) is also an important part in the evaluation of damages potentially caused by sexual harassment. On the other hand, a forensic psychiatric review performed early on can help discover those plaintiffs suffering from such neuropsychiatric conditions (e.g., cocaine induced paranoia) which can offer an alternative explanation to the complainant's perceptions and symptoms.

Whether the alleged sexual harassment is the cause of the injuries claimed by the plaintiff or is merely coincidental is evaluated by considering the plaintiff multidimentionally. In addition to the medical and mental health history, a comprehensive forensic psychiatric evaluation will consider family, developmental, social, and work history. Questions addressed may include differentiating unrelated preexisting symptomatic conditions from "egg shell" skull like vulnerabilities, how extensive the available social support system was, the degree of freedom to escape ongoing trauma (e.g., availability of realistic alternatives to working with the harasser), and whether and how the institutional response to the report of sexual harassment mitigated or aggravated the damages suffered.

At times, to obtain a clearer picture of a plaintiff or the defendant's patterns of adaptation to life, a forensic psychiatrist will conduct a series of psychological tests. Among the most common is the Minnesota Multiphasic Personal Inventory-2 test (MMPI-2), consisting of 567 true or false questions. The examinee's responses can be blindly scored by a protocol-driven computer program. The resulting personality profile can corroborate in the plaintiff a sequelae of sexual harassment such as Post-Traumatic Stress Disorder and rule out invalid claims where the examinee is found to be paranoid, malinger or to exaggerate symptoms.

A comprehensive forensic psychiatric examination will also consider multiple factors which may affect the reasonableness of the plaintiff's claim. [18] In this process, the psychiatric expert can analyze alternative hypotheses, such as whether even if something conventionally trivial has occurred, the "eggshell skull" vulnerable plaintiff theory is nonetheless applicable. [19] By the same token, the expert can evaluate data relevant to a common argument advanced by the defense that the examinee's claim of sexual harassment is the result of the plaintiff's encouraging sexual conduct, or even motivated by rage following the rejection of the plaintiff's overtures in the face of delusional or personality disorder-based erotomania.

Thus, in cases where the accused has perceived power or is a renowned public figure such as President Clinton, a forensic psychiatric examination will be all the more important in determining whether, for example, such an "easy target" is accused by a plaintiff motivated by erotomania, a personality disorder, or by attention seeking. Each condition has to be ruled out in the course of an examination. For example, erotomania, the delusional belief that an admired figure is in love with the examinee, seemed to figure prominently in the motives of ex-president Reagan's assailant, John Hinckley, who hoped that his attack on Reagan would impress his imagined lover, the actress Jody Foster.

In extreme cases, beyond examining the sexual harassment victim, where sexual harassment leads to criminal acts such as eventual sexual assault or even murder, the forensic psychiatrist can provide a psychological autopsy to highlight how the perpetrators' acts were foreseeable, and how supervisory inaction contributed with substantial certainty to the eventual outcome. Such an autopsy, based on psychological profiles of the victim and the perpetrator, and an analysis of the organization's failure to properly act, when the organization knew or should have known of the sexual harassment, can elucidate the nature and extent of the supervisory or organizational contribution to the eventual outcome.

A variety of special circumstances can lead to additional questions which need to be considered in the course of a forensic psychiatric evaluation. For example, while material such as "confessions," as in the Lewinsky-Tripp taped telephone conversations, have to be considered as potentially corroborative it cannot be assumed to be actually corroborative unless the tapes themselves are evaluated as to whether they reflect fact or fantasy. For instance, a fantasy "confession" can be the product of depression or one of the other variety of human conditions which make for vulnerability to suggestion, such as having words put in one's mouth, and misattributing guilt. Such a misattribution is all the more likely when one party to the taped conversation has a self-serving agenda, adopts a hypercritical, self-righteous position, or blurs boundaries to create an impression for future media access motivated use. A pattern of past accusations against the alleged perpetrator can be part of the background for initially interpreting somewhat ambiguous corroborative evidence such as taped casual conversations. However, only a careful evaluation of each individual data set can avoid premature cognitive commitment as to whether a "confession" has a factual basis.

Post-Daubert Prognosis

In the last few years the number of sexual harassment claims has risen. In the post-Daubert era it is most likely that the psychiatric expert retained will be a psychiatrist certified not only in General Psychiatry but also in the subspecialty of Forensic Psychiatry, recognized by the American Board of Medical Specialties Board of Psychiatry and Neurology.

In these cases, the expert evaluates the validity of the claims and the scope of damages. Post-Daubert, this means considering alternative hypotheses for symptom presentation. By ruling out malingering, exaggeration, and misattribution of psychiatric symptoms, the forensic psychiatric evaluation can directly provide evidence supporting or refuting the reasonableness of the plaintiff's perceptions, reactions, and alleged damages. This results in the expert's opinion most likely being admissible as expert evidence and effective in educating a skeptical jury. Additionally, when the examination reveals questionable damage claims, the plaintiff's attorney is provided with an early warning system to confront a client who, unbeknownst to the attorney, may be bringing a suit without cause. More subtly, a forensic psychiatric evaluation can also highlight the degree to which organizational response to allegations can control or enable sexual harassment, thereby setting the stage for determining the extent of an employer's liability and damage awards. Finally, in an atmosphere of ambiguity created by accusations, biases, confessions, and denials, a post-Daubert expert forensic psychiatric opinion can add a much welcome tone of objectivity to an emotionally charged process.


  1. Ellisa P. Benedek, Forensic Aspects Of Sexual Harassment: Serving As An Expert Witness, Providing Courtroom Testimony, And Preparing Legal Reports, in Sexual Harassment In The Workplace And Academia 113, 115 (Diane K. Shrier ed., American Psychiatric Press 1991).
  2. Michael Isikoff & Evan Thomas, I Want Him to Admit What He Did, Newsweek, June 9, 1997, at 30.
  3. Edward Felsenthal, An Accuser's Past is Fair Game Once Again in Many Sex Cases, Wall St. J., June 6, 1997, at A8.
  4. 42 U.S.C.A. sec 2000(e) (1981, Supp. 1994).
  5. Equal Employment Opportunities Commission: Guidelines on Discrimination Because of Sex. 45 Fed. Reg. 74676, 74677 (1980).
  6. Id.
  7. Meritor Sav. Bank v. Vinson, 477 U.S. 57, 62 (1986).
  8. Ellison v. Brady, 924 F.2d 872, 878 (9th Cir, 1991).
  9. Daubert v. Merrell Dow Pharm., Inc., 113 S. Ct. 2786, 2790 (1993).
  10. Frye v. United States, 293 F. 1013, 1014 (D.C. Cir 1923).
  11. Daubert, 113 S. Ct. at 2790.
  12. Id.
  13. General Electric Co. v. Joiner, 78 F. 3d 524 (11th Cir. 1996), cert. Granted, 117 S. Ct. 1243, and motion granted, 65 U.S.L.W. 3838 (1997).
  14. Fed R. Civ. P. 26(2)(B).
  15. Mayotte M. Jones v. MetroWest Medical Inc., CA-96-10860-WD.
  16. Harold J. Bursztajn et al., Recognizing Posttraumatic Stress, Patient Care, March 30, 1995.
  17. J. Douglas Bremner et al., MRI-Based Measurement of Hippocampal Volume in Patients with Combat-Related Post Traumatic Stress Disorder, 152 Am. J. of Psychiatry 973 (1995).
  18. Sara Feldman-Schorrig, Factitious Sexual Harassment, 24 Bull. Am. Acad. Psychiatry Law 388 (1996).
  19. Harold J. Bursztajn et al., Medical Choices, Medical Chances: How Patients, Families, and Physicians Can Cope With Uncertainty. Delacorte, 1981;Routledge, 1990.

Biographical Sketch

Harold J. Bursztajn, MD, co-directs the program of Psychiatry and the Law at the Massachusetts Mental Health Center, and is a senior faculty member of Harvard Medical School in Boston, Massachusetts.

Maryam Koupaie, BS, manages the National Law, Medicine, and Psychiatry Consultants in Cambridge, Massachusetts. She is also a student attending Suffolk University Law School in Boston, Massachusetts.

Michele Stephenson, Esq. is a graduate of Columbia University School of Law and former clerk for the Honorable Judge Jack B. Weinstein at the United States District Court, E.D.N.Y. She is currently a litigation associate at Patterson, Belknap, Webb & Tyler, LLP in New York City.