- The Washington Times - Sunday, May 19, 2013

As a new edition of the manual of mental disorders used to diagnose psychiatric conditions hits publishers, employers are concerned that the expansion of definitions for some types of disabilities will open them to more lawsuits and complaints of disability discrimination.

The long-awaited revised American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, or DSM-V, was released this weekend, and it could result in more people being classified as having conditions such as post-traumatic stress disorder and social (pragmatic) communication disorder.

That sets employers up for demands for “reasonable accommodation” and potential lawsuits, employers’ lawyers say — an area that already has seen dramatic growth, with the number of lawsuits alleging disability discrimination nearly doubling in five years.

“There’s potential here where every time the psychiatric profession makes changes, there tends to be an increase in diagnoses, and then it has an impact on the number of claims” in courts and equal employment opportunity offices, said James J. McDonald, a lawyer at Fisher & Phillips LLP, which represents employers in discrimination suits.

“It’s going to result in more employees going to their employers and saying ‘I have this diagnosis from my doctor and I need reasonable accommodation.’ It’s one thing to say ‘I need an adjusted work schedule because I take medication,’ another to say ‘I can’t communicate effectively with my co-workers’ or ‘I have neurocognitive disorders and can’t remember things.’ Those are going to pose challenges to employers,” Mr. McDonald said.

Mild neurocognitive disorder, as well as binge eating disorder and premenstrual dysphoric disorder, are among new diagnoses, Mr. McDonald said.

When the psychiatristric professional group makes changes, there can be unintended consequences in courts and human resources offices, where an official diagnosis from a doctor can carry significant weight.

But there is not a straight line between the manual and findings of discrimination, the Equal Employment Opportunity Commission and a lawyer who represents employees said.

“If there is something that is recognized as an impairment that previously wouldn’t have been recognized, that doesn’t mean that the person is either protected or that unlawful discrimination occurred. It’s just a small piece of the puzzle,” said Chris Kuczynski, a lawyer for the EEOC. “There are things in the DSM-IV that wouldn’t necessarily qualify It’s a piece of evidence, its relevant, but not necessarily dispositive.”

Still, there already has been dramatic growth in the number of disability discrimination allegations, and lawmakers repeatedly have expanded the types of disabilities spelled out in legislation.

In recent years, the EEOC drafted a letter warning that some employers could be violating the Americans with Disabilities Act by requiring a high school diploma, explaining that in some cases the requirement “‘screens out’ a person who is unable to graduate because of a learning disability.”

The act applies to businesses with 15 or more employees.

Mr. Kuczynski said that if an employee violates a workplace policy that a nondisabled employee would be fired for, a disabled employee, too, can be fired under the EEOC’s interpretation of the rules. But Mr. McDonald noted that two federal court circuits disagree.

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