"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
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."
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