Employment Issues
Employment issues, including worker's compensation and disability law,
supervisory negligence, workplace discrimination, and wrongful termination
can benefit from a forensic neuropsychiatric evaluation. Such an evaluation
begins with a review and analysis of medical records, depositions and
supporting documents. Initial working hypotheses may be supplemented
by a forensic psychiatric examination of the plaintiff or the insured.
This process can result in the formulation of an expert opinion as to
the validity, nature, and extent of the claims at issue. Areas of interest
include risk factors for misdiagnosis, misattribution, malingering, or
motivation for secondary gain.
Accommodation Claims
Forensic neuropsychiatric evaluation regarding reasonable accommodation
claims and causation of emotional harm is among Dr. Bursztajn's areas
of special forensic interest. In this regard he has been retained by
both plaintiff's and defense counsel, and has advised the judiciary and
psychiatrists in training. Dr. Bursztajn has served as an examining expert
and also as an expert on the methodological reliability of employment-related
forensic opinion formulation by mental health experts (i.e., as an "expert
on experts"). The issue of misattribution of causation in employment-related
cases (e.g., as when the job becomes a passive and convenient focus for
misattribution of causation of deep-rooted problems in a person's life)
is of parallel special interest.
Beginning with his internship at Harvard Medical School at Children's
Hospital in 1978, as acting director of the Metropolitan State Hospital
Concord Unit in 1979, and during the course of his residency in psychiatry
at the Massachusetts Mental Health Center (1979-1982), Dr. Bursztajn
has a special interest in the treatment and forensic evaluation of developmentally
related impairments. These have included communication-related impairments
such as deafness -e.g., evaluating reasonable accommodations making health
care accessible for deaf patients and selecting jobs which, with reasonable
accommodation, could be made suitable for deaf employees. Academically,
Dr. Bursztajn teaches The Harvard Medical School Intensive Diagnostic
Interviewing course for psychiatrists preparing for the American Board
of Psychiatry and Neurology certification examination, with a special
emphasis on learning to observe and report nonverbal communication by
the mentally and developmentally communication-impaired patient.
Right to Privacy
Employment at Will Protection
in NY May Extend to Physicians
Sheila E. Horn, Plaintiff, v. New York Times, Defendant. In Horn, the
New York Supreme Court applied, to an entirely different profession,
the same justification that enabled the Court of Appeals to create the
narrow exception to the employment-at-will doctrine for the legal profession.
The crucial factor in Horn was not the profession itself, but whether
there was an overriding rule or ethical standard that serves to protect
both the employee and innocent third parties. Accordingly, before disciplining
professionals working under ethical or legal standards, employers may
wish to look carefully at the type of discipline or reason for discharge.
Americans with Disabilities Act (ADA)
The Americans with Disabilities Act shields disabled persons from discrimination
in the workplace. Claims of having a protected disability status and
allegations of disability related discrimination in hiring, firing, or
workplace practices must be supportable. A forensic neuropsychiatric
evaluation and investigation into the discrimination claim can help to
determine whether the alleged discrimination actually arose from the
employee's claimed disability.
- Equal Employment Opportunity
Commission. (EEOC) Notice No. 915.002. This notice puts forth
the stand of the Commission on the relationship between the American
with Disabilities Act and state workers' compensation laws.
- The ADA and
Mental Impairment. This chart summarizes the relationship
between mental impairments and the ADA based on the EEOC
Notice No. 915.002.
- Case: Mayotte
M. Jones v. MetroWest Medical, Inc. The plaintiff in this
case claimed that her Multiple Chemical Sensitivity (MCS) was a disability
under ADA; the court ruled that MCS was not under the scope of ADA.
- Case: LC
v OLMSTEAD A complete text of this landmark ADA/Managed
Care case.
- Article: Major
Mental Illness & Violence: Quick Fix vs. Commitment to Care.
- Case: Sutton
and Hinton v. United Air Lines, Inc. The Supreme Court narrowed
the scope of disabilities covered under a major law that protects
disabled people against unfair treatment. For example, the Supreme
Court has ruled that a disability that is reasonably correctable
is not protected under the ADA (e.g., near sightedness and hypertension).
On the other hand, the Supreme Court extended the scope of reasonable
accommodations which states have to make for people with mental health
disabilities to include treatment in the least restrictive alternative
available (e.g., group home v. chronic inpatient hospitalization):
- Case: Cleveland
v. Policy Management Systems Corp., (No. 97-1008)
- Article: Doctors Debate
'Chemical Sensitivity' Diagnosis
See Federal Judge commending Dr. Bursztajn's testimony on the
need for a nuanced diagnosis and approach including ruling out
malingering, sick role motivation, misattribution, and treatable
psychiatric conditions in Mayotte
M. Jones v. MetroWest Medical, Inc.
Disability & Workers'
Compensation
Questionable claims of pain or impairment are sometimes presented in
workers' compensation or disability laws. An expert in medical decision
analysis and forensic neuropsychiatry can evaluate the following factors:
that a treating physician maintained established reliability standards
in the diagnostic process; emotional factors that could complicate physical
illness have been addressed; and the ruling out of common psychiatric
mimics of physical illness (e.g., Somatization, Conversion Disorders,
substance abuse, and personality traits such as malingering, exaggeration,
misattribution of pain and impairment).
- Article: When forensic neuropsychiatric expertise is indicated, early retention is best.
- Article: Work
Disability Prevention in the Midst of Major Mental Illness and Life's
Trauma. The individual and social risks of post trauma chronic
work disability can be reduced by structuring clinical services so
as to reduce the treating clinician being burdened by the dual responsibilities
of both being the patient's treating clinician and potential back
to work forensic evaluator. Psychiatric Services, November,
2001.
- Article: Surge
in Bias Cases Punishes Insurers, and Premiums Rise. Many companies,
alarmed by the increasing size of payouts to resolve harassment or
discrimination claims by employees, have bought insurance policies
over the last decade to protect themselves. The New York Times,
January 9, 2002
- Case: Vick
v. Northrop Grumman. Neuropsychiatric autopsy of a suicide
in the context of a workers compensation case.
- Case: Doe
v. Doe. Expert Testimony & Workman's Compensation
- Case: "Doctor
Bolsters Insanity Defense" A jury overcomes prejudice against
the insanity defense. Brattleboro Reformer, Vermont
1999.
- Article: "Genes,
Environment, and Mental Health Wellness" Genetics and Behavior.
- Article: "Health
and Disability Costs of Depressive Illness in a Major U.S. Corporation"
- Disability Law
Blog. A Disability Law Resource
Chronic Pain
Can Employers' Long Term Disability For People With Mental Disabilities
Be Limited?
U.S. Supreme Court last month let stand a federal appeals court decision
allowing health plans to limit long-term disability payments for people
with mental disabilities but not physical disabilities. Parker
v. Metropolitan Life Insurance and Schering-Plough Corp. [Mental
Health Law Reporter, Feb. 1998: Vol. 16 No. 2, p.9.]
Chronic pain can also occur either as a result of a preexisting psychiatric
condition or a complicating psychiatric comorbidity to physical injury.
In the course of litigation, it always need to be forensically evaluated
to rule out misattribution, exaggeration, or secondary gain.
Discrimination
Sexual Discrimination & Harassment
The Supreme Court decisions in Oncale which
focused on "reasonableness" of perception, and employer and
employee response, have expanded the role of a forensic psychiatric consultation
and evaluation in both preventing and responding to sexual harassment
claims.
- Case: Oncale
v. Sundowner Offshore Services, Inc., et al.
- This ruling of the U.S. Supreme Court (March 4, 1998) clarifies
sexual harassment law as it applies to same-sex relationships.
- "Reasonableness Key": "The social context
in which particular behavior occurs [Justice Scalia] is the
key to distinguishing between simple teasing and genuinely
abusive behavior." This distinction can be explored
in the course of forensic psychiatric examination, evaluation,
and opinion formation.
Both true and false allegations of sexual harassment are made in the
workplace. The presence or absence of psychological trauma is not enough
to prove sexual harassment. False memories, desire for attention or revenge,
and later reconsideration of consent can all lead to false allegations.
At the same time, true allegations may not initially be considered credible.
While a treating psychiatrist's goal is to help alleviate the presenting
emotional and psychological pain and trauma without necessarily determining
the facts of the incident, a forensic psychiatrist is trained to objectively
evaluate claims such as that of sexual harassment. Such an evaluation
yields more accurate testimony regarding the grounds on which the claim
of sexual harassment is made, and potential emotional and physical damages.
"In 1991 the Equal Employment Opportunity Commission (EEOC), the
federal agency that deals with such complaints, handled 6,127 of them
(sexual harassment cases) and settled cases worth $7.7m in damages to
victims. In 1997, it handled 15,889 complaints and won $49.4m for victims." The
Economist, February 14, 1998, p. 25
Among the phenomena noted when there is a valid or even pending accusation
of sexual abuse or harassment against an authority figure, is the me
too phenomena. Under these circumstances individual histories have to
be carefully evaluated to rule out Hystories.
(following a book by that title by Elaine Showalter, Columbia University
Press: New York: 1997). Under these circumstances one has to avoid the
misleading heuristics of "where there is smoke there is fire." If
one accusation is true each accusation must be true and multiple accusations
by friends of one figure are the gold standard for proof (i.e. The Salem
Witchcraft Trials). There are a variety of Personality Traits ranging
from Narcissistic or Borderline to Hysteronic or Dependent which are
risk factors for Me tooitis.
See also:
The cases below bring up issues and questions which an expert can address
in the course of a forensic psychiatric evaluation.
Are there any conditions which may have limited or influenced the reasonableness
of employee perception of harassment in the specific organizational context?
Did the employer take reasonable steps to prevent sexual harassment?
Did the employee take reasonable steps to prevent sexual harassment?
Did the employer take reasonable steps to correct (i. e. post-vention)?
Did the employee take reasonable steps to complain about sexual harassment?
Additional Articles and Cases of interest:
- Case: Kolstad
v. American Dental Association, No. 98-208.
- Article: Traumatic
Memories as Evidence: True or False?
- Article: The Forensic Psychiatric Expert in Post-Daubert Sexual
Harassment Proceedings. Latest developments in sexual harassment
from Meritor
Savings Bank v. Vinson to Jones v. Clinton.
- Equal Employment Opportunity Commission The
home site of the EEOC, this site contains descriptions of various
employment-related issues ranging from disability discrimination
to workplace sexual harassment.
- Article: Supervisory
Negligence Litigation in Context. When harassment, discrimination,
or assaults take place at work, the supervisor can be charged as
a responsible party. This article discusses the litigation of such
cases. At the same time, each claim needs to be carefully forensically
evaluated for an objective determination of whether the attributions
may be motivated by pre-existing psychopathology or a variety of
organizational dynamics
- Case: Davis
v. Monroe
- Case: Davis
v. Darnaby Family physician is sued by plaintiff alleging
sexual misconduct.
- Article: AHA urges review of sexual-harassment policy.
In the wake of two recent U.S. Supreme Court rulings on workplace
sexual harassment, hospitals should review their personnel policies to
ensue compliance, the AHA and the American Society for Healthcare Human
Resources Administration (ASHHRA) warned. The groups issued an advisory
last week, urging hospitals to review their harassment policies in light
of the high court's action, which made clear employers are responsible
for the sexual misconduct of supervisors even if the employers knew nothing
about the situations. The advisory is posted on the AHA Web site at or
call ASHHRA at (312) 422-3982. [American Hospital Association Newsletter,
July 1998]
Genetic Discrimination
- Article: "Ban
Genetic Discrimination" Boston Globe Op-Ed piece by Dr.
Harold J. Bursztajn and Dr. Richard Sobel, that appeared on August
7th, 2000
Recent Supreme Court Decision Highlights
- Case: General
Electric Co. v. Joiner Supreme Court decision on testimony
by scientific experts. Reasonableness of perception as one dimension
of a forensic psychiatric examination.
- Article: Supreme
Court Draws Line on Sexual Harassment
In a unanimous opinion sure to send big ripples throughout American
workplaces, the justices also put new constraints on harassment
suits of all kinds, urging judges to use common sense in deciding
whether to let sexual-harassment cases go forward. 'We have never
held that workplace harassment, even harassment between men and
women, is automatically discrimination,' Justice Antonin Scalia
wrote in a strikingly direct seven-page opinion for the court.
The law doesn't cover ordinary 'intersexual flirtation'; nor
does it apply in the ways men and women routinely interact,'
he added. [Wall Street Journal - Interactive Ed, High Court Says
Harassment Law Applies to Same-Sex Relationships, March 5, 1998.]
Recommended Reading:
- Difference and Pathology: Stereotypes of Sexuality, Race and
Madness. by Sander L. Gilman. Cornell University Press, Ithaca:
1985.
- Hystories by
Elaine Showalter -- book on false accusations and pseudo-illness.
Dr. Bursztajn has an active patient care practice and consults to physicians,
institutions, judges, and plaintiff and defense counsel nationally.
