Personality Disorders in Employment Litigation

The traditional role of the mental health expert in a civil lawsuit alleging emotional injury has been to determine whether such an injury occurred and, if so, what was the cause. In recent years, however, some courts have allowed mental health experts to play an expanded role in employment discrimination and harassment lawsuits. Specifically, these courts have become increasingly willing to consider whether the plaintiff's own prior psychopathology contributed to the genesis of the workplace dispute being litigated. In other words, the plaintiff's psychological problems may have caused the workplace dispute in question, instead of vice versa. These prior problems typically take the form of a personality disorder.

Personality Disorders in the Workplace

Personality disorders often cause conflicts between a plaintiff and their co-workers that lead to claims of victimization by the plaintiff. In this sense, a plaintiff suffering from a personality disorder may not merely be the innocent victim of another's unprovoked wrongdoing. Such a plaintiff's own irritability, perfectionism, manipulation of others or sexually suggestive behavior is often the beginning of a chain of events that ultimately leads to a claim of wrongful termination, harassment or discrimination.

For example, an employee with borderline personality disorder (BPD) may direct sexually suggestive comments or even blatantly seductive conduct toward a supervisor and then angrily accuse the supervisor of sexual harassment should they respond. People with BPD tend to view others (particularly those in positions of authority) in extreme terms as either all good or all bad. Such an employee may idolize their supervisor until their work performance is criticized and then react with rage and accuse their supervisor of misconduct.

In Ramirez v Kelly (1997), the plaintiff and the defendant (who was above the plaintiff in the chain of command) had an ongoing sexual relationship. After the plaintiff found out that the defendant was married, she sued him for sexual harassment, claiming that she was raped and coerced to carry on the sexual relationship. She was diagnosed by the defense psychiatric expert as having BPD. The Table shows how other personality disorders may manifest in the workplace.

Personality disorders are often relevant to a plaintiff's perception of the events that precede litigation. Individuals with personality disorders often interpret events in a distorted fashion. This frequently accounts for the diametrically opposite characterization of the very same event by plaintiff and defendant in so many employment lawsuits, particularly in he said/she said cases where there are no third-party witnesses to help break the credibility impasse.

Employees with personality disorders tend to have relatively good contact with reality. Thus, their accusations of co-worker misconduct, although false, are not obviously bizarre and may sound quite plausible. Often, to the person with BPD, "believing is seeing."

For example, if an employee with BPD presumes that a colleague is thinking in sexual terms, a variety of behaviors can be construed as sexual in nature -- choice of clothing, a smile, an inadvertent touch, a compliment, standing close by, an invitation to lunch, glances or references to other relationships. Similarly, if the employee assumes that others are discriminating against them, this assumption becomes a self-fulfilling prophecy -- discrimination is perceived to be lurking around every corner. Inattention, inadvertent slights, nonspecific discourtesy, lack of personal concern, random acts of preference and other ordinary events may be construed as evidence of discrimination.

Recognition of Personality Disorders by Courts

The courts have begun to recognize the important role that personality disorders play in the genesis of disputes involving alleged workplace harassment and discrimination. In the racial harassment case Lowe v Philadelphia Newspapers, Inc. (1984), the court admitted the testimony of a psychiatrist to show that, because of a personality disorder, the plaintiff was oversensitive to ordinary criticism and perceived it as harassment. The plaintiff had attempted to exclude testimony of defense psychiatrists concerning her personality disorder.

In refusing to block the testimony, the court observed that it was relevant to "whether the alleged harassment claimed by plaintiff is racial and is harassment at all." The court noted that one defense psychiatrist had testified that the plaintiff was overly sensitive and may have overreacted to events on the job. As the Lowe court explained (pp125-26):

Testimony concerning a...plaintiff's mental disorder which causes him or her to perceive criticism as harassment, and to perceive racial slurs where no racial motivation is present, is highly relevant to the question whether plaintiff's perception of racial harassment is correct.

A personality disorder was found to be at the root of a sexual harassment claim in Spencer v General Electric Co. (1988). Although the court in that case found a hostile working environment to exist based upon sexual joking and horseplay on the part of the plaintiff's supervisor and co-workers, it rejected the plaintiff's allegations of more serious misconduct, including "more than 100 sexual assaults" by her supervisor, none of which were corroborated by other witnesses. The plaintiff attempted to explain the numerous inconsistencies in her story via testimony from her psychiatrist that the harassing events caused her to develop a posttraumatic stress disorder that impaired her ability to recall details. The court rejected this notion and instead credited the defense psychiatrist's testimony that the plaintiff suffered from histrionic personality disorder (HPD) and that her memory problems resulted from convenient selectivity rather than emotional trauma.

In Sudtelgte v Reno (1994), the court admitted psychiatric testimony in a sexual harassment lawsuit concerning the fact that the plaintiff suffered from paranoid personality disorder (PPD) that adversely affected her ability to get along with supervisors and co-workers and caused her to feel persistently "picked on." The Sudtelgte court held that although the plaintiff may have felt subjectively harassed, it was the result of her abnormal sensitivity caused by her personality disorder, and she could not show that a "reasonable woman" would have been similarly offended. The Sudtelgte court also noted the impact of the plaintiff's personality disorder on her credibility, observing that the plaintiff's "current perceptions of present and past events are grossly unreliable, probably because of her mental illness."

The most recent and dramatic recognition by a court of the role of personality disorders in the genesis of harassment and discrimination claims occurred in Pascouau v Martin Marietta Corporation (1998). In this case, the plaintiff claimed that co-workers called her names and passed gas in her presence. The court concluded, "The conduct that could be described as harassment was not based on gender, but rather on Plaintiff's demonstrated lack of interpersonal skills."

In its discussion of the facts of the case, the court described at some length the plaintiff's pre-existing psychological problems, many of which arose from her dysfunctional childhood. One of the plaintiff's pre-existing conditions was mixed personality disorder with borderline and narcissistic characteristics. The Pascouau court explained its relevance:

The personality disorder is a condition, largely the product of being raised in a dysfunctional home with dysfunctional parents, in which Plaintiff did not learn how to solve problems effectively or to communicate effectively with other people. The disorder leads to the formulation of implausible perceptions and thus different kinds of conclusions about what other people's actions and behavior mean as distinguished from what a reasonable person not subject to such a disorder would perceive them to mean.

Consistent with this disorder, Plaintiff makes judgments that are highly personalized and overly emotional. She sees things in black and white terms rather than shades of gray that permit allowances and generally feels whatever goes wrong is someone else's fault and she had no role in the misadventure. Persons with this disorder take no responsibility for what goes wrong in their lives.

The court credited the testimony of the defense psychiatrist, Dr. Plazak, noting:

When asked if Plaintiff's allegations had any role in the causes of Plaintiff's disorders, Dr. Plazak replied that the situation is reversed in that the disorders are causes of the allegations. The incidents Plaintiff related were characterized by misinterpretations of events and interactions with fellow employees that were far more intense than would be interpreted by a reasonable person.

The court rejected the view of the plaintiff's psychiatrist that all of the plaintiff's emotional difficulties were the result of her experiences in the workplace, noting, "His conclusion dismisses the profuse psychiatric history of the Plaintiff which accounts for the symptoms she had displayed all her life and continued to display even at the time of trial."

Detecting Personality Disorders

Because of its potential importance in an employment lawsuit, a forensic psychiatrist should be especially alert for signs of Axis II pathology. Since the actual mental examination is relatively short and the plaintiff may not be completely forthcoming about all aspects of their life, it is essential that the psychiatrist also review a variety of records which might reveal evidence of Axis II pathology. These include:

records of the plaintiff's treating physician(s) and psychotherapist(s) (including patient questionnaires, billing records and psychological testing materials);records of any prior hospitalizations;records of any prior mental health treatment;records of the plaintiff's primary care physician(s);personnel files from the plaintiff's prior employers;high school and college transcripts and disciplinary records;

court files from prior divorce and child-custody cases; and

any prior criminal records.

The psychiatrist should also obtain and review transcripts of the depositions of the plaintiff and key defense witnesses prior to conducting the mental examination, in order to place the plaintiff's account into context.

The psychiatrist also should insist upon having sufficient time and latitude to thoroughly explore the plaintiff's background. Sometimes a plaintiff's attorney will attempt to limit the examination to an hour or two or to restrict the examiner's areas of inquiry to the plaintiff's psychological reaction to the events at issue in the lawsuit. This is unacceptable, as it will make the exploration of possible Axis II issues virtually impossible. The psychiatrist should be prepared to give an affidavit to the court explaining why these restrictions are unworkable.

Presentation of Axis II Findings

While an Axis II diagnosis might serve to exculpate the employer in some cases, such a result does not necessarily follow in every employment lawsuit. The specific role played by Axis II pathology should be presented carefully by the psychiatrist in the formulation of the case in deposition or trial testimony. The following are examples of such scenarios.

Plaintiff has a personality disorder that caused them to instigate events of which they now complain. If an employee with BPD or HPD engages in seductive banter or conduct and then complains of sexual harassment when co-workers respond, the personality disorder would be relevant to the defendant's liability, since a plaintiff who welcomes harassing conduct cannot later complain about it.

Plaintiff has a personality disorder that caused them to misinterpret words or actions of co-workers. An employee with BPD may interpret a supervisor's compliment or friendliness as a sexual overture. An employee with PPD may interpret co-workers' inadvertent failure to invite them to lunch as racially discriminatory. In these instances, the allegations of discrimination are a product of the plaintiff's personality disorder, rather than external reality.

Plaintiff has a personality disorder that produced symptoms of emotional distress. An employee with BPD, narcissistic personality disorder or dependent personality disorder (DPD) may suffer great distress as a result of rejection by a significant other outside of work. The reaction may be extreme, including suicidal gestures or requiring psychotropic medication. This would be relevant to damages, as it would provide an alternative explanation (besides the workplace event in question) for the plaintiff's objectively verifiable emotional distress.

Plaintiff has a personality disorder but was nonetheless the subject of unlawful conduct. Sometimes, even though the plaintiff has a personality disorder, they may still be the subject of unlawful treatment and suffer emotional distress unrelated to the personality disorder as a result.

Plaintiff has a personality disorder that exacerbates the emotional distress suffered as the result of illegal conduct. This is an example of an application to Axis II disorders of the "eggshell skull" principle, which holds that a defendant is liable for the extra damage that an especially vulnerable plaintiff suffers. An employee with DPD may become inordinately attached to a supervisor and then be devastated by an unlawful termination, or an employee with BPD may be sexually exploited by an unscrupulous supervisor and then attempt suicide, requiring hospitalization, following the breakup of the affair. The employer would be liable for this additional damage suffered on account of the plaintiff's heightened susceptibility to harm.

References:

References 1. Lowe v Philadelphia Newspapers, Inc., 594 F. Supp. 123 (E.D. Pa. 1984).
2. Pascouau v Martin Marietta Corporation, 994 F. Supp. 1276 (D. Colo. 1998), aff'd in relevant part, 185 F. 3d 874 (10th Cir. 1999) (table).
3. Ramirez v Kelly, 1997 WL 223053 (N.D. Ill. 1997).
4. Spencer v General Electric Co., 697 F. Supp. 204 (E.D. Va. 1988), aff'd, 894 F.2d 651 (4th Cir. 1990).
5. Sudtelgte v Reno, 63 FEP Cases 1257 (W.D. Mo. 1994).