"Paranoid, with Delusions of Discrimination" 

     by Jonathan Rauch, from the National Journal 

     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 

     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." 

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