Saturday, September 29, 2012
Douglas Hass (Franczet Radelet) has just posted on SSRN his article (presented at the 2012 LEL Colloquium earlier this month in Chicago) Could the American Psychiatric Association Cause You Headaches? The Dangerous Interaction between the DSM-5 and Employment Law. Here's the abstract:
Since its first publication in 1952, the American Psychiatric Association’s Diagnostic and Statistical Manual (DSM) has long served not only as the primary reference for mental health disorders for medical practitioners, but also as a primary authority for the legal community. In May 2013, for the first time in nearly 20 years, the American Psychiatric Association plans to publish an entirely new edition. As proposed, the DSM-5 would significantly expand a number of existing psychological disorders and add several new ones. The new Manual is still a work in progress, published only as proposed diagnostic criteria and assessment instruments on the DSM-5 website. However, the significant proposed revisions to a wide range of mental impairments mean that the legal community’s relationship with the DSM may be forced to change given the implications that changes in the DSM-5 may have for claims under laws like the Americans with Disabilities Act (claims of “disability,” requests for reasonable accommodations), Family Medical Leave Act (definitions of a “serious illness”), the Age Discrimination in Employment Act, and even state statutes and workers compensation laws (whether an illness is work related).
This paper discusses the major role that the DSM standards play for legal practitioners and the danger that overly expansive definitions of mental disorders could pose to employers and employees. First, the paper discusses the history and background of the DSM and its development into a de-facto legal treatise. In Part II, the paper highlights the strengths and weaknesses of the DSM-IV as a legal text. Next, the article explains the dangerous interaction between the ADA Amendments Act and the proposed DSM-5. In Part IV, the article highlights the challenges and difficulties that certain changes — from a proposed “Mild Neurocognitive Disorder” to the inclusion of deviant behavior in the definition of a mental disorder — could cause employers, employees, courts, and even federal agencies in applying employment and disability laws, and the ADA in particular. Finally, to reduce the possible unintended consequences of overly-expansive definitions, Part V summarizes specific approaches that courts, employers, employees, and legal practitioners should rely on to reduce the potential confusion and burdens caused by the impending release of the DSM-5.
Although the ADA and other employment statutes do not incorporate DSM (and indeed often define "disability" inconsistently with each other), as this article illustrates, the new DSM-5 widens even further the gulf between the APA and the ADA.