Paranoid, with Delusions of Discrimination By Jonathan Rauch
National Journal, July 24, 1999 What is one to make of the Supreme Court's ruling, in May, that schools are liable for student-on-student harassment that is "severe, pervasive, and objectively offensive''? Objectively offensive? Is that like "objectively beautiful''? How is it different from, say, "subjectively offensive''? To fathom such depths, you need a psychiatrist. On a bright summer day recently, I visited Dr. Michael M. Welner in his consulting room on Manhattan's Upper West Side. With its wooden blinds, random vegetation, and heaps of accordion files, the place looks like your great-uncle Eugene's law office. Welner, though, turns out to be 34 years old and alarmingly energetic. One wall is covered with a dozen diplomas and certificates, attesting that he is, among other things, assistant professor of psychiatry at New York University and adjunct professor of law at Duquesne University in Pittsburgh. He treats psychiatric patients in private practice and in a hospital. His specialty, though, is in treating the law. Welner is a forensic psychiatrist: a psychiatrist who advises the legal system. Is a defendant mentally competent for trial? Is a plaintiff faking psychiatric symptoms? Welner, who has founded both a journal for the field and a peer-reviewed consultancy called the Forensic Panel, is one of 400 or so certified forensic psychiatrists whose job is to find out. Nowadays, a lot of his caseload--20 percent to 30 percent--consists of discrimination and harassment lawsuits. Say you sue your employer for sexual or racial harassment. You need to show that the alleged harassment was severe and pervasive and, perhaps, "objectively offensive.'' Moreover, your damages go way up if you can show emotional distress, incapacitating trauma, or other psychological injury. ``That encourages claims of emotional distress,'' says Welner. Welner agreed to talk about the world he sees--provided that, for confidentiality's sake, I agreed to use invented names for the persons involved and to suppress or alter some telltale details. None of those changes materially affects the shape of the cases that follow. Ken Ingram worked at a small company where he was one of comparatively few black salespeople. Ingram was well liked, but he had financial problems, was often late for work, and had trouble meeting his sales quota. A few years ago, someone intercepted an exchange of voice mails in which two employees-- confidentially, they thought--mocked blacks and Black History Month. The hacker then broadcast the voice mails to the company's employees. Both of the voice mailers were fired within the week, but Ingram said the episode had left him angry, depressed, unable to sleep or think clearly. He began gathering evidence, checking what co-workers remembered about this or that, asking to tape-record meetings. Several months later, he filed suit. Because of the racially hostile and abusive conditions at work, he charged, he had been driven into therapy. A psychiatrist told the court that Ingram had developed an adjustment reaction with depression, caused by "his perceived racial discrimination and hostile environment.'' Welner, hired by the defense, examined Ingram, interviewed his co-workers, checked his history. He found a man who, despite great expectations, had not met with great success. He also found a man who tended to displace blame by viewing the world through a racial filter (Ingram blamed police racism for his parking tickets). And Ingram seemed to feel empowered by his lawsuit. When Welner asked him what he wanted, Ingram replied: "To tear down the machine.'' Welner found no psychiatric injury. Indeed, Ingram turned out to have sought no therapy for his alleged psychic injuries until after he filed his lawsuit, and even then he presented no documented symptoms beyond signs of stress. Examining Ingram later on, Welner found no mental or emotional disturbances. Still, Welner expects Ingram's company to settle. "The tilt right now is that defense attorneys are finding that it's very hard to come all the way through a trial unscathed,'' Welner says. ``Most of these cases do settle, even the ones without merit.'' Sheila McCoy worked for a government agency. She had previously filed a discrimination suit against the government, and had received a settlement. She had also received a settlement after filing suit over a car accident. "She had law on the mind,'' says Welner. One day she discovered that a co-worker-- call him Smith--had been hired after her at a higher salary. She made no secret of her resentment. A few weeks later, some other co-workers doctored a memo in a way that poked fun at Smith's qualifications. The joke was aimed at Smith, not at Sheila McCoy, but she misunderstood it and took offense. She filed a discrimination complaint. Five males, she said, ``were involved in the most degrading, humiliating, and overt act of mean-spiritedness'' she had ever encountered. The incident caused her ``severe outrage and mental stress'' and ``has scarred me in some way for life.'' When McCoy returned to work, her colleagues became aware that she was taking notes. A chill fell over the office. Because she had complained that the office's custom of playing the Howard Stern show was an example of pervasive discriminatory harassment, the radio was switched off. In the tense silence, her habit of singing became conspicuous; she was asked to stop, an instruction that she interpreted as a form of retaliation. Then McCoy was reprimanded for confronting Smith. She took sick leave--never to return--and filed suit for a sum in the millions. She claimed that gender harassment (and other varieties of harassment), plus illegal retaliation, had debilitated her with depression, anxiety, and high blood pressure. She had been "damaged and grossly affected by the traumatic incident.'' Examining McCoy and her history, again for the defense, Welner found no such impairments. Her high blood pressure was nothing new. At the same time that her psychologist was finding her too traumatized to work, she was (unbeknownst to him) applying for jobs. The psychologist never referred her to an M.D. for antidepressants or any other medication, which suggested to Welner that "her symptoms did not rise above the severity of an adjustment reaction, or trouble coping with stress.'' After the supposedly devastating joke, she had shown no symptoms of trauma or emotional distress. As for the Howard Stern show, it turned out that McCoy had often listened to it on the way to work, and she would come into the office repeating the jokes. Diagnosis: Sheila McCoy "has been malingering to advance her lawsuit. . . . Given that this lawsuit is the principal area of focus between herself and her therapist, it is my professional opinion that her prognosis will improve once this dispute is completely resolved, regardless of its outcome.'' In another case, Welner has been retained by lawyers for the plaintiff--a woman who quit, angrily, after being suspended for (she was told) her poor performance, or for (she suspected) her pregnancy. Later, when the woman learned that other employees had filed a complaint against her old boss for racism and homophobia, she filed her own suit, saying that the company's action in obliging her to work for such a boss was an attempt to force her to quit. She claimed that the resulting emotional distress was to blame for her miscarriages. Welner hasn't yet finished examining her. He has, however, examined a man who, after being fired, sued for discrimination on grounds of age and ethnicity: He was from Venezuela. That fellow, Welner found, had narcissistic personality disorder--grandiose self-importance and easily wounded pride. What he did not have was a job-related psychiatric injury. The case was thrown out when the man was found to have lied to the employer about his felony record. Real horror stories happen. Nonetheless, a conversation with Welner suggests that a lot of workplace disputes that belong in the sandbox are winding up in the courts. Are plaintiffs in such cases cynical? Greedy? Gold digging? Usually, no. "More often, they're lying to themselves about the reasons for their life's disappointments,'' says Welner. "Someone who is very angry displaces their anger towards, for them, a more psychologically acceptable target.'' Next stop is the lawyer's office, where "they're encouraged to dredge up anything that may or may not be relevant. It cultivates a reinterpretation of the situation.'' Then the adversarial process "feeds into people believing their own polarized position.'' Welner shakes his head. "The courts need to be more psychiatrically sophisticated.'' It isn't true, he says, that words alone--the odd joke or voice mail, say, as opposed to words plus behavior--cause psychiatric injury. "Is there any medical research that shows that words alone cause trauma? No. It's not out there. It is a creation of the law--not of the self.''
Full archive of Jonathan Rauch's National Journal columns (at Reason magazine)
Back to Overlawyered.com articles library / to top page
Reprinted by author's permission. All rights reserved.
Original contents of site © 1999 and other years The Overlawyered Group.
Technical questions: Email Webmaster