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David Foley's Labor and Employment Law Blog

Saturday, November 12, 2011

Furor Over DSM-V (DSM-5)

Revisions are being made to the American Psychiatric Association's Diagnostic and Statistical Manual (DSM).  The DSM's are the most prominent source of definitions for mental health disorders.  The current manual, the DSM-IV has been in effect since 1994, with relatively minor "text revisions" in 2000.  The new manual, the DSM-V, is still a work in progress, with two drafts released so far.  The proposed changes have been met with considerable push-back from various groups and individuals.  An October 22  open letter challenging the changes has been internet-signed by more than 5600 people.  The debate about the changes is a good thing to keep an eye on because although inclusion of a condition in the DSM-IV has not been completely synonymous with coverage under various employment laws, the courts have often looked to it for guidance.  Among others, the changes in the DSM-V could impact Americans with Disabilities Act claims (is the plaintiff disabled, what is a reasonable accommodation, etc), Family Medical Leave Act claims (does plaintiff suffer from a serious illness) and workers compensation laws (does plaintiff have an illness and was it caused by work).

Here are some snippets from the letter and a couple of thoughts about how the changes they are concerned about might affect ADA claims:
We are also gravely concerned about the introduction of disorder categories that risk misuse in particularly vulnerable populations. For example, Mild Neurocognitive Disorder[5] might be diagnosed in elderly with expected cognitive decline, especially in memory functions.
Older employees are already protected under the Age Discrimination in Employment Act (ADEA). But if older employees with "expected cognitive decline" are classified as disabled under this diagnosis, they get significantly more protection because while employers cannot discriminate on the basis of age, neither are they required to offer any accommodation for age-related problems.  On the other hand, the ADA carries with it a duty to provide a reasonable accommodation for a disability.
 The DSM-5 has proposed to change the Definition of a Mental Disorder such that DSM-IV’s Feature E: “Neither deviant behavior (e.g., political, religious, or sexual) nor conflicts that are primarily between the individual and society are mental disorders unless the deviance or conflict is a symptom of a dysfunction in the individual,”[7] will instead read “[A mental disorder is a behavioral or psychological syndrome or pattern] [t]hat is not primarily a result of social deviance or conflicts with society.”[8] The latter version fails to explicitly state that deviant behavior and primary conflicts between the individual and society are not mental disorders. Instead, the new proposal focuses on whether mental disorder is a “result” of deviance/social conflicts. Taken literally, DSM-5’s version suggests that mental disorder may be the result of these factors so long as they are not “primarily” the cause. In other words, this change will require the clinician to draw on subjective etiological theory to make a judgment about the cause of presenting problems. It will further require the clinician to make a hierarchical decision about the primacy of these causal factors, which will then (partially) determine whether mental disorder is said to be present. Given lack of consensus as to the “primary” causes of mental distress, this proposed change may result in the labeling of sociopolitical deviance as mental disorder.
In most states and localities, political affiliation is not a protected class, i.e., a private employer can make employment decisions based on an employee's political affiliation (as long as political affiliation is not just a proxy for race, sex, religion, age, etc and so long as the policy would not statistically discriminate on the basis of race).  But the open letter seems to suggests that, for instance, ascribing to the sociopolitical philosophy of anarchy could be sufficient to establish a mental health disorder.  In that case, an anarchist could claim that his political beliefs are part of his mental health disorder and thus find protection under the ADA.
The Conditions Proposed by Outside Sources[13] that are under consideration for DSM-5 contain several unsubstantiated and questionable disorder categories. For example, “Apathy Syndrome,” “Internet Addiction Disorder,” and “Parental Alienation Syndrome” have virtually no basis in the empirical literature.
One source defines burn out syndrome apathy syndrome as "a syndrome of primary motivational loss, that is, loss of motivation not attributable to emotional distress, intellectual impairment, or diminished level of consciousness." So, are unmotivated employees going to be getting some ADA protection so long as they can show an ability to perform the core functions of their jobs with a reasonable accommodation? I would think that say, letting an employee listen to the Rocky Soundtrack while working would be a reasonable way to help them overcome apathy.  On the other hand, what if they want to take a few weeks to go to hang out in Nepal? It could get interesting.

The only case that I know of where "internet addiction" was alleged as a disability under the ADA is , but their analysis on whether internet addiction was a qualifying disability was unnecessary due to other grounds for summary judgment.  The term "internet addiction" which began as a hoax obviously stands to gain a lot of credence if it makes its way into the DSM-V.
An internet sex addiction however is not protected under the ADA because of the sexual behavior disorder exceptions (discussed in Pacenza v. IBM Corp).

 I don't think that Parental Alienation Syndrome should really factor into the employment relationship, except maybe in the context of a family run business (a case I would like to read).

Their letter also takes issue with changes to more common ADA disabilities: Attention Deficit Disorder and Generalized Anxiety Disorder.
The reduction in the number of criteria necessary for the diagnosis of Attention Deficit Disorder, a diagnosis that is already subject to epidemiological inflation.      
The reduction in symptomatic duration and the number of necessary criteria for the diagnosis of Generalized Anxiety Disorder.
It will be interesting to see what the final DSM-V looks like and what impact it will have on mental health related claims in labor and employment law.

Thanks to Rick Bales at Workplace Prof Blog, SAM at disabilitylaw.blogspot.com, Eric Goldschein at Business Insider, Martha Zackin at Employment Matters, and Walter Olson both at Overlawyered and later at Cato-at-liberty.org for linking.

Thanks also to a reader in the UK who informed me that I was incorrect in my original post about a recent release of the draft DSM (a second draft was released back in May).  Moreover, the UK reader informed me that they are dropping the Roman Numerals and going with Hindu-Arabic Numerals and so the newest DSM will properly be referred to as the DSM-5.  I am going to break with my policy of neutrality with regard to this issue: I think it's a mistake.

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