Psychiatric Annals

PSYCHIATRY IN SEXUAL HARASSMENT 

The Credible Forensic Psychiatric Evaluation in Sexual Harassment Litigation

Robert I Simon, MD

Abstract

Sexual harassment litigation is burgeoning. According to the Equal Employment Opportunity Commission (EEOC), sexual harassment complaints by women almost tripled from 5603 in 1989 to 14 420 in 1994. 1 Of all workplace discrimination cases filed in fiscal year 1994, sex discrimination cases accounted for 30. 7% of the total cases, just behind race discrimination at 33. 5%. 2 Complaints by men of sexual harassment also increased during this time, comprising approximately one tenth as many complaints as by women. Following the sensational Anita Hill-Clarence Thomas hearings in 1991, the number of sexual harassment complaints by women and men nearly doubled.

Forensic psychiatrists are being called on to provide expert consultation and testimony in sexual harassment litigation. Forensic expertise requires a working knowledge by both male and female experts of trauma-victim response behaviors as well as female psychological development and the acculturation processi Moreover, sexual harassment claims tend to be intensely litigated, promoting strident advocacy among the contending parties. These cases often are highly inflammatory, attracting the attention of the news media. Reputations of individuals and corporations are at stake. The potential for substantial monetary awards, including the imposition of punitivo damages, is always present. In Week v. Baker & McKenzie and Greenstein,4 a San Francisco jury ruled that a former partner at the world's largest law firm sexually harassed his secretary. The jury also found that the law firm failed to take reasonable steps to prevent the harassment. Ms. Weeks was awarded $50 000 in compensatory damages and $7.1 million in punitive damages. The punitive damages against the law firm were subsequently reduced to $3.5 million.

LITIGATION BACKGROUND

The 1964 Civil Rights Act under Title VII prohibits discrimination based on sex.3 Although Title VII does not specify a clear prohibition against sexual harassment, courts have interpreted Title VII to include sexual harassment.

In 1980, the EEOC specified that sexual harassment is a violation of Title VII.6 It defined sexual harassment as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature. These behaviors constitute unlawful sexual harassment when (1) submission is made either explicitly or implicitly a term or a condition of an individual's employment, (2) submission to or rejection of such conduct is a basis for employment decisions affecting the individua], and (3) when such conduct interferes with an individual's work performance or creates an intimidating, hostile, or offensive working environment.

Sexual harassment lacks the elements of choice and mutuality of consenting relationships. However, determining the presence of sexual harassment can be difficult. Because most sexual harassment occurs in private, allegations and denials become credibility and swearing contests. How does one distinguish between good-natured kidding and offensive comments'?

Table

Relatively few individuals who claim psychic injury from sexual harassment obtain psychiatric or psychological treatment. Only 12Ci of harassment victims seek professional help.-s The defense attorney may likely emphasize this seeming contradiction. Moreover, the attorney will complain that the claimant who has a legal duty to mitigate his or her damages has not acted responsibiy.36

A major weapon in the defense arsenal is the concept of alternative causation. Every individual must manage a number of Stressors in his or her daily life. The plaintiff' who brings a sexual harassment claim also must contend with multiple life Stressors. Defense counsel may assert that the plaintiff's emotional distress is coming from other life Stressors or, alternatively, other life Stressors are the occasion for filing a sexual harassment claim. For example, anger may be displaced from an abusive partner or spouse. Defense counsel may attack the psychiatric evaluation done by the plaintiff's expert if multiple…

Sexual harassment litigation is burgeoning. According to the Equal Employment Opportunity Commission (EEOC), sexual harassment complaints by women almost tripled from 5603 in 1989 to 14 420 in 1994. 1 Of all workplace discrimination cases filed in fiscal year 1994, sex discrimination cases accounted for 30. 7% of the total cases, just behind race discrimination at 33. 5%. 2 Complaints by men of sexual harassment also increased during this time, comprising approximately one tenth as many complaints as by women. Following the sensational Anita Hill-Clarence Thomas hearings in 1991, the number of sexual harassment complaints by women and men nearly doubled.

Forensic psychiatrists are being called on to provide expert consultation and testimony in sexual harassment litigation. Forensic expertise requires a working knowledge by both male and female experts of trauma-victim response behaviors as well as female psychological development and the acculturation processi Moreover, sexual harassment claims tend to be intensely litigated, promoting strident advocacy among the contending parties. These cases often are highly inflammatory, attracting the attention of the news media. Reputations of individuals and corporations are at stake. The potential for substantial monetary awards, including the imposition of punitivo damages, is always present. In Week v. Baker & McKenzie and Greenstein,4 a San Francisco jury ruled that a former partner at the world's largest law firm sexually harassed his secretary. The jury also found that the law firm failed to take reasonable steps to prevent the harassment. Ms. Weeks was awarded $50 000 in compensatory damages and $7.1 million in punitive damages. The punitive damages against the law firm were subsequently reduced to $3.5 million.

LITIGATION BACKGROUND

The 1964 Civil Rights Act under Title VII prohibits discrimination based on sex.3 Although Title VII does not specify a clear prohibition against sexual harassment, courts have interpreted Title VII to include sexual harassment.

In 1980, the EEOC specified that sexual harassment is a violation of Title VII.6 It defined sexual harassment as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature. These behaviors constitute unlawful sexual harassment when (1) submission is made either explicitly or implicitly a term or a condition of an individual's employment, (2) submission to or rejection of such conduct is a basis for employment decisions affecting the individua], and (3) when such conduct interferes with an individual's work performance or creates an intimidating, hostile, or offensive working environment.

Sexual harassment lacks the elements of choice and mutuality of consenting relationships. However, determining the presence of sexual harassment can be difficult. Because most sexual harassment occurs in private, allegations and denials become credibility and swearing contests. How does one distinguish between good-natured kidding and offensive comments'?

Table

TABLE 1Types of Lawsuits Brought in Sexual Harassment Claims

TABLE 1

Types of Lawsuits Brought in Sexual Harassment Claims

Table

TABLE 2Forensic Psychiatric Functions in Sexual Harassment Litigation

TABLE 2

Forensic Psychiatric Functions in Sexual Harassment Litigation

In 1986, in Meritor Savifigs Bank v. Vinson,7 the court distinguished further between two types of sexual harassment - quid pro quo. where sexual favors are traded for job benefits such as a raise or promotion or to prevent demotion or termination, and the creation of a hostile working environment. The 1991 Civil Rights Act* permitted plaintiffs to obtain compensatory and punitive damages for sexual harassment. Before enactment, successful plaintiffs received only job reestablishment and back pay plus attorney fees. Also in 1991, the court in Ellison v. Brady9 adopted a "reasonable women" standard analysis, determining that a "reasonable person" standard was too heavily biased toward men. In a 1993 landmark sexual harassment case, the United States Supreme Court ruled in Harris v. Forklift System, Inc.10 that sexually harassed employees no longer have to prove that they suffered from psychological injury to collect a damage award. The court concluded that Title VII does not require psychological harm. However, an employee's psychological well-being was relevant to determine whether the plaintiff actually found the environment abusive. In determining damages, psychological harm was a factor to be considered among other relevant factors. No single factor is required. Psychological injury continues to be a prominent element of damages alleged in sexual harassment claims. The court also reinstated the "reasonable person standard" in determining whether the work environment was reasonably perceived as hostile or abusive.

Table 1 lists the types oflegal actions in sexual harassment psychic injury claims. Tort (civil) claims alleging sexual harassment are the most common. Studies show that only \% to 7% of women who are sexually harassed file a complaint or lawsuit.11

FORENSIC PSYCHIATRIC FUNCTIONS

Forensic psychiatrists are retained by either plaintiff or defense attorneys to examine the individual who is claiming psychological injury as a result of sexual harassment in the workplace. Although the psychiatrist may be asked about the credibility of the litigant, determining whether sexual harassment actually occurred must be decided by the trier of fact. When multiple complaints or witnesses come forward, credibility of the litigant is less in question. Because most sexual harassment occurs in private, credibility assessments are difficult.

Using a claimant's psychological symptoms to establish the occurrence of a traumatic event such as sexual harassment relies on the use of syndrome evidence. Generally, it has not found favor with the courts.1- Such testimony often has been judged to invade the fact-finding province of the jury.111 Some courts have expressed concern about psychiatrists abandoning their roles as clinicians and assuming the mantle of investigators in litigation. Syndrome evidence often can be useful in the clinical context, but it is unlikely to be probative in court. Overall testimony may be undermined by syndrome evidence if it appears to the jury or judge that the forensic psychiatrist is over-reaching in order to pursue a litigation agenda.

Forensic psychiatrists often simultaneously perform expert witness and consultant functions for the retaining attorney. In court, however, it is unseemly, if not an outright role conflict, for the forensic psychiatrist to sit at counsel's table while also functioning as an expert witness. The psychiatrist will likely be viewed as lacking objectivity. Table 2 lists the various forensic psychiatric functions.

It is essential that deviant roles be avoided in performing psychiatric evaluations for third parties. It must be clear to the forensic examiner who he or she is serving in order to avoid double agentry. The evaluee needs to be told that no doctor-patient relationship is being created, that confidentiality ordinarily does not exist in third party examinations, who has retained the psychiatrist, and the purpose of the examination. Developing "insider" information in collusion with an employer, conspiring in specious forced fitness -for-duty examinations, conducting forced psychotherapy and hospitalizaron, and participating in a spurious psychiatric diagnosis to stigmatize a claimant alleging sexual harassment are all blatant abuses of psychiatric expertise.11

EXAMINER OBJECTIVITY

The American Academy of Psychiatry and the Law Ethical. Guidelines for the Practice of Forensic Pnychi.al.ty states that the forensic psychiatrist "adheres to the principles of" honesty and striving for objectivity."1" Dr. Bernard Diamond, lf! in his classic article entitled "The Fallacy of the Impartial Expert," states that all experts are biased to some degree because they become advocates whenever they enter the adversarial system. Of course, much depends on how bias is defined and the degree to which it is present. Personal preferences and attitudes may not rise to a level that adversely influences expert opinions. Even the presence of significant bias regarding a certain case may not necessarily prove deleterious, provided the bias is recognized by the expert and striving for objectivity is maintained. Sexual harassment litigation tends to arouse strong emotions and prejudices. Certain biases peculiar to sexual harassment litigation may arise requiring sensitivity on the part of the forensic psychiatrist (Table 3).

The gender of the forensic psychiatrist may influence attitudes toward sexual harassment claims. Acculturation differences can contribute to significant bias, if unrecognized and unchecked. Viewing the litigant as a patient is a common bias of forensic psychiatrists with active clinical practices. When retained by the plaintiff, the forensic expert may experience a desire to rescue the litigant who is seen as a victim. Retention by the defense may exacerbate preexisting feelings of anger that sexual harassment claimants are shirking their responsibility and blaming others for their problems. Some psychodynamically trained psychiatrists have had a tendency to view allegations of abuse as solely a fantasy.

The treater-uxaminer dichotomy is another potential source of bias. The treater is a natural ally of the patient. The key therapeutic tasks involve the provisions of empathy, validation, and empowerment. In order to avoid re-victimization in therapy, some have recommended that therapists should assume the harassment has occurred, that the patient has an adequate work history and that if a complaint was filed, some type of retaliation took place.17 Although it is appropriate for the therapist to be an ally of the patient, it is important that a position of relative therapist neutrality be maintained.18 Sexual harassment litigation can become very vituperative, drawing the therapist into making serious boundary violations that harm the patient. The forensic examiner, on the other hand, who has no treatment relationship with the litigant, must, of necessity, withhold judgment until the examination is completed and all other pertinent data are reviewed and evaluated. The forensic expert must guard against a "hired gun" advocacy bias with its attendant loss of honesty and striving for objectivity.

Table

TABLE 3Some Potential Sources of Examiner Bias in Sexual Harassment Litigation

TABLE 3

Some Potential Sources of Examiner Bias in Sexual Harassment Litigation

Research suggests that a history of abuse among therapists is not an uncommon occurrence.1" Forensic experts who have been victims of harassment or have been abused themselves may have difficulty in evaluating a sexual harassment claimant. The forensic expert may either overidentify with the litigant or, if the expert escaped psychological trauma relatively unscathed, may disbelieve or condemn the litigant who is complaining of abuse.

Finally, ideological bias can interfere with the forensic psychiatrist's striving for objectivity. Strongly held conservative or liberal ideologies, particularly regarding the women's rights movement by either male or female experts, may preclude thu forensic psychiatrist from participating in sexual harassment litigation. For example, Feldman-Schorrig-" warns therapists against becoming distracted by "current victimist culture." She underscores the point that a forensic evaluation should not be considered complete without a thorough evaluation of the claimant's history and her or his potential role in the alleged sexual harassment.

THE ADVERSE FORENSIC PSYCHIATRIC EXAMINATION

Maintaining careful boundaries in conducting a forensic psychiatric examination may help contain some of the unique problems arising in the evaluation of sexual abuse cases generally. When examining the claimant for opposing counsel, great distrust may be displayed by the claimant. Often, the examiner is seen as an extension of the defense attorney and the alleged harasser. The first lew minutes of initial contact with the claimant are the most problematic. In one case, the claimant brought her snarling German police dog to the interview. Needless to say, the interview was very difficult to conduct, with a furious, barely cooperative claimant. Only afte]· the judge ordered the dog out of the interview was the dog removed. Extending one's band in a friendly handshake may be seen as harassing by the claimant who alleges unwelcome touching as part, of the sexual harassment claim. In an adverse examination, it is better to take one's cue from the examinee before extending a hand. Conversely, refusing to shake a hand proffered by a claimant is rude and likely to unnecessarily escalate the adversarial nature of the evaluation.

The examination should take place in a neutral setting. Out-of-town examinations in the examiner's hotel room could prove disastrous. Examinations conducted at a neutra] physician's office provide the best venue.

Frequently, third parties request attendance at examinations. The presence of third parties is fraught with difficulties. Sometimes, such "observers" are converted into witnesses that are used against the examiner, usually criticizing the method of examination. Wien the claimant's attorney is present, the claimant's psychological symptoms may appear worse, even if the attorney does not directly interfere with the examination. The attorney's presence highlights the adversarial context of the examination, usually contributing to additional anxiety and a focus on symptomatology by the claimant. The presence of supportive family members and friends may cause the claimant to appear less symptomatic than previously reported. Emotional support can have a very quieting and soothing influence on the claimant. These artifacts produced by extraneous influences on the examinee must be taken into account by the forensic examiner.

Some forensic psychiatrists audio- or videotape the interview to preclude possible accusations of harassment, by the claimant. Usually, examinee and examiner are able to ignore the presence of recording equipment after the first few minutes of the examination. Consent should be obtained from the examinee's attorney as well as from the examinee before recording the interview. Also, consultation with the retaining attorney is prudent before recording an interview.

A single interview of a sexual harassment claimant may not be enough. Both examinee and examiner can become fatigued by a single marathon interview. The claimant may feel harassed by the length of such an interview. More than one examination may be resisted by opposing counsel or may not be permitted by a judge. Frequent breaks according to the needs of the examinee are appropriate. If more than one interview is permitted, the forensic examiner should hold examinations on successive days to maintain the continuity of the evaluation. It is prudent to begin the forensic examination byasking the examinee about the circumstances of the alleged claim. Beginning with questions about the examinee's past history may be perceived by the examinee as confrontational and adversarial, denying the validity of her or his claim. A comprehensive psychiatric history needs to be obtained at some point during the course of the examination.

Whether the examiner is retained by the plaintiff or defense attorney, it should be obvious that he or she must perform a complete psychiatric evaluation of the examinee. Nevertheless, some forensic reports do not contain any past psychiatric history of the examinee. Tt is as if the life of the examinee began with the litigation. Particularly in sexual harassment litigation, the prior history of the examinee is extremelyimportant in the evaluation of psychic injury claims, as will be discussed later. The longitudinal perspective of child and adolescent development, and psychopalhology is critical in making COITOC t diagnosis and treatment assessments.21

Collateral sources oí' information should be obtained such as work, school, military, medical, psychiatric, and even police records. Because many claimants report subjective psychological symptoms, corro borati on from other sources is essential. Psychological testing can be important in detecting a personality disorder that may not be readily apparent when interviewing time is limited. Indices on psychological testing that measures the veracity of the examinee's psychological claims also may assist in the evaluation of credibility.

CREDIBILITY ASSESSMENT

Forensic psychiatrists frequently are asked to educate the jury about sexual harassment.22 Are there typical behaviors of those who claim sexual harassment? Does it differ for men and women? Is the plaintiff's behavior typical of those who have been harassed? Is distortion present or does the patient suffer from paranoia? What is the significance of the time course of revelations? Are alternative explanations such as poor performance or termination rather than sexual harassment the reason for bringing the claim? Clearly, the assessment of credibility is one oi the central issues in the forensic psychiatric evaluation.

Juries and judges may have difficulty understanding why women remain in a harassing situation. Such questions as "Why didn't she just leave?" are commonplace. Women who have been harassed at work often are unable to leave because of a variety of reasons: economic necessity, a known pattern of retaliation by a supervisor, as well as fear, embarrassment, and feeling alone, powerless, demeaned, and intimidated.23 She may feel that there is much to lose and little to gain. Even if the claimant is unstable, histrionic, or paranoid, he or she still may be a victim of sexual harassment. However, the presence of a personality disorder or psychosis may lead to the distorting and misinterpreting of workplace relationships and events that become the basis of a sexual harassment claim.

Changing details in the description of the sexual harassment may present another credibility conundrum for the examiner. There may be a paper trail of complaints made by the claimant such as letters, informal and formal grievances, reports to unions, administrative reviews, and workers' compensation reports.The fact that details of the alleged sexual harassment change, such as the later addition of further incidents, does not necessarily mean that the claimant is lying. It is typical for women to feel embarrassed and not report all details initially. However, new details of the alleged sexual harassment surfacing only at the time of deposition may signify embellishment and a litigation agenda.22

EVALUATING TRAUMA RESPONSES AND VICTIM BEHAVIORS

The forensic psychiatrist must be knowledgeable about the spectrum of trauma responses and victim behaviors that individuals who have been sexually harassed may display.-1 Generally the initial reaction is of self-doubt and confusion. Guilt usually follows when the victim of harassment wonders if she or he encouraged the harassing behavior. In one case, minimization and denial of the harassment occurred when the claimant who alleged rape by her boss went shopping immediately after the assault. This behavior was used by the defense to try to disprove the allegation of rape. Nevertheless, the fact that a sexually harassed individual, even one who has been raped, carries on her regular activities should not by itself constitute probative evidence that no harassment occurred. Denial and dissociative paralysis are not unusual, particularly in persons who have been victims of child abuse. Moreover, the actual experience of sexual harassment is frightening because the workplace has turned dangerous. Anxiety ensues about one's employment status and fear of sexual assault. Anxiety shifts to depression and self-confidence erodes, leading to feelings of helplessness. The harassed employee begins to devalue her or his job performance.

The turning point occurs when the victims of sexual harassment become angry over the violation of their civil rights and stop blaming themselves. They become disillusioned with individuals, organizations, or instituüons that have failed them. Some form of positive action is taken. The absence of a typical trauma-victim response does not disprove the claimant's allegations of sexual harassment. Many variations and arrests in the typical trauma-victim response can occur, depending on the nature of sexual harassment. However, if a litigant is claiming significant psychological injury, the forensic examiner should expect to find some type of trauma-victim response pattern.

The trauma-victim response symptoms may meet the criteria for a diagnosable psychiatric disorder according to the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (DSM-IV). The most common diagnosis in sexual harassment cases appears to be Adjustment Disorder.-" Other psychiatric disorders frequently diagnosed include Dysthymia, Major Depression, Anxiety Disorders, and Posttraumatic Stress Disorder (PTSD). Psychiatric diagnoses in sexual harassment cases show considerable variation depending on whether the examination is conducted by the plaintiff or defense expert.-6 If the claimant's symptoms do not rise to the level of a diagnosable psychiatric disorder, a diagnosis should not be forced. Describing the symptoms of emotional distress in everyday language should be more than sufficient when informing the trier of fact.

The forensic psychiatrist needs to carefully evaluate all of the significant stress factors operative in the claimant's life. Sexual harassment as well as a host of other factors may influence work performance and termination. Alcohol and drugs may compromise performance when used to handle stress arising from sexual harassment.27

Retaliation commonly occurs after refusing sexual advances or filing grievances. In one study, two thirds of the women were subject Ia retaliation when sexual advances were refused.20 Many women were refused promotions and one quarter were laid off. In 75% of the workers, job performance suffered because they were unable to concentrate. It may be extremely difficult for the forensic psychiatrist to separate the emotional distress of harassment from the emotional distress of retaliation. The work environment may become more hostile after reporting sexual harassment, compounding adverse job performance as well as the physical and mental health effects of the original harassment.

EVALUATING FACTORS INFLUENCING THE SEVERITY OF TRAUMA RESPONSE

The type, degree, and duration of sexual harassment influence the severity of the victim's emotional response. Was the abuse verbal or physical? Was it fondling or intercourse? How long did the abuse continue?

Preexisting Axis I and II mental and personality disorders may exacerbate the trauma response. If prior sexual abuse has occurred, the current sexual harassment may trigger flashbacks and intense memories of the earlier abuse. Preexisting Axis I and II disorders may be exacerbated as well as intensify the trauma response. If a minor psychological stress produces a very strong symptom response, the examiner should consider the possibility of preexisting psychological traumas and disorders.

The presence or absence of emotional support is a very important factor influencing the severity of trauma response. This lesson was learned with Vietnam war veterans and rape victims. Emotional support may lessen significantly the severity of the trauma response. Criticizing, blaming, and rejecting the victim of trauma often markedly exacerbates symptoms.

The presence of concurrent Stressors such as domestic, marital, financial, and health problems may be independent sources of emotional distress that synergize and exacerbate the trauma response. If an individual is being sexually harassed, physical symptoms may develop that need to be distinguished from preexisting medical conditions. For example, in one study, over half of the women sexually harassed experienced nausea, headaches, and fatigue."7 Other studies describe weight loss and an increase in the frequency of respiratory and urinary tract infections. The stress of sexual harassment, may also worsen preexisting medical conditions.

Table

TABLE 4Paradigmatic Plaintiff Strategies in Sexual Harassment Litigation

TABLE 4

Paradigmatic Plaintiff Strategies in Sexual Harassment Litigation

A lawsuit itself is frequently the source of great emotional stress. The law is a blunt instrument. The adversarial process challenges the credibility of the claimant. Sexual harassment litigation is particularly stressful because of the public revelation of embarrassing information. These cases also Lend to arouse a great deal of acrimony that further stresses the litigant. Generally, the defendant is not held responsible for the emotional distress caused by the lawsuit. The forensic psychiatrist may be asked to distinguish harassment stress from the lawsuit stress. This can be a daunting task.

The United States Merit System Protection Study of sexual harassment in the governmental workplace showed that. 47*3· who took formal action found that their situation improved. as On the other hand. 337t felt that the complaint process "made things worse." In the latter group, reliving of the sexual harassment trauma and revictimization wore major reasons for feeling the complaint process failed them.

PSYCHIC INJURY: PLAINTIFF AND DEFENSE STRATEGIES

The forensic psychiatric examiner must perform a thorough evaluation of the sexual harassment claimant whether he or she is retained by the plaintiff or the defense. The findings of a competent psychiatric evaluation may or may not prove useful to the retaining attorney. Legal strategies should not be allowed to influence the evaluation findings of the forensic psychiatrist. It is quite appropriate, on the other hand, to assist counsel in formulating case strategies. An understanding of plaintiff and defense strategies may help the forensic psychiatrist ensure that his or her opinions meet the ethical requirements of "honesty and striving for objectivity."

A paradigmatic plaintiff strategy focuses on the claimant's workplace and the prevalence of sexual harassment (Table 4). The United States Merit System Protection Study in 1981, which was updated in 1988. revealed that 62% of female employees were sexually harassed. ;m Male perpetrators-female victims accounted for 959i of the cases. Twenty percent were sexually assaulted through actual or attempted rape. The survey reported results from 20 314 persons representing 1 862 000 federal employees with a remarkable 85'/? return rate. The finding's were replicated in 1988 and are considered to be valid.

Plaintiff strategy requires that the trauma responses and victim behaviors that develop from sexual harassment be explained Lo the trier of fact. The various stages of emotional response following sexual harassment also must be explained. The plaintiffs attorney may use a psychiatric history of preexisting conditions to emphasize the vulnerability of his or her client. Evidence exists that women who have been sexually harassed have an increased incidence of childhood abuso/11 Various studies in North America reveal that approximately 15<# of all girls and ?(7< of all boys by 18 years of age have experienced some form of sexual abuse including rape or incest/'- It is well established that childhood sexual abuse predisposes individuals to the development of psychiatric disorders. The plain tiff's attorney may assert that the sexual harassment exacerbated his or her client's preexisting psychiatric conditions.

The plaintiffs attorney generally favors a single factor causing his or her client's psychological damages. For this reason, Posttrauma tic Stress Disorder (PTSD! that requires a specific traumatic event has found favor in sexual harassment cases brought by plaintiffs. Plaintiffs also prefer to have a psychiatric diagnosis to present to the trier of fact. Forensic experts should not attempt, to force a diagnosis because of any advocacy bias when clinical criteria are not met. Credible treatment undertaken by the plaintiff helps establish the presence of psychological damages.

The plaintiff's attorney emphasizes the compound losses caused by psychic injury as a consequence of sexual harassment. These include the loss of a job or promotion, loss of income, loss of self-esteem, loss of support from coworkers and friends, loss of professional stature, and loss of trust in the plaintiffs own belief system and in other persons. When sexual harassment occurs, the victim may experience the shattering of beliefs such as, for example, that the world is a reasonable, rational place; that a person has contro] over his or her life; that bad things do not happen to good people; and that persons in positions of trust and authority act fairly and justly.33 These life-sustaining, securing beliefs are constantly under revision and subject to the corrective reality of the human condition. It is their sudden shattering that is so psychologically damaging. If, in addition, the plaintiffs attorney finds that retaliation was present, the claim may be made that the original psychic injury was compounded.

The plaintiffs and their attorneys often assert that one of the motives for bringing a lawsuit is to facilitate the healing process. The lawsuit provides the plaintiff with the means of overcoming helplessness, exercising power, and achieving justice. The monetary motivation is for restitution, not financial gain.

The paradigmatic defense strategy in psychic injury litigation focuses on the claimant (Ta bio 5 1. The defense attorney may assei't that women who file sexual harassment claims have an increased incidence of victimization in their history.8'1 Defense counsel also may point out that women with a history of abuse tend to be hypersensitive to sexual cues. The attorney niay claim the hypersensitivity is a derivative of hypervigilance originating from a PTSD secondary to childhood abuse. The defense will likely compare the reactions of two women who are told that their dresses are attractive.'" The woman with no abuse history may feel complimented, while the woman with a history of abuse may consider the statement to be a sexual invitation and become angry. The perception of sexual harassment is measured according to a reasonable person standard as established in Ha.rri.-i r. Fork! i ft Syutems, //ir.10 Defense counsel will argue that hypersensitive women do not meet this standard.

Defense counsel also may borrow the psychodynamic concept of repetition compulsion. In essence, the attorney may state that certain individuals who were abused as children repeat aspects of that abuse in their current lives as a way of trying to master the original trauma. If it appears that the sexual harassment claimant invited sexual attention but then reacted with intense anger, defense counsel may press the theory of repetition compulsion. However, Rule 412 of the Federal Rules of Evidence, with certain exceptions, excludes an alleged victim's sexual history from sexual misconduct proceedings. Thus, the hypersensitivity and repetition compulsion defense strategies may rely on information that is inadmissible.

Another avenue of defense in sexua! harassment cases is emphasizing the presence and influence of personality traits and disorders. Defense counsel will argue that childhood abuse causes personality malformations that produce maladaptive personality traits and disorders. Borderline Personality Disorder (BPDi patients manifest good-bad splitting in their relationships. When an idealized individual, such as a boss or coworker, frustrates the employee who has BPD, idealization turns into denigration. A formerly warm personal interaction may subsequently be perceived as sexually harassing.

The presence of other personality disorders may be advocated in a similar manner. For example, the histrionic employee may be portrayed as seeking attention by being flirtatious and seductive, although not desiring any sexual contact. When she is subsequently responded to in a sexual manner, she may react with surprise and anger. Defense counsel may assert that the sexual harassment claim arose from such distorted perceptions. The attorney may claim that the person with a narcissistic personality generally reacts with rage and revenge to a real or perceived personal slight. On the other hand, the person with an antisocial personality may consciously fabricate the claim of sexual harassment for personal gain.

Table

TABLE 5Paradigmatic Defense Strategies in Sexual Harassment Litigation

TABLE 5

Paradigmatic Defense Strategies in Sexual Harassment Litigation

Relatively few individuals who claim psychic injury from sexual harassment obtain psychiatric or psychological treatment. Only 12Ci of harassment victims seek professional help.-s The defense attorney may likely emphasize this seeming contradiction. Moreover, the attorney will complain that the claimant who has a legal duty to mitigate his or her damages has not acted responsibiy.36

A major weapon in the defense arsenal is the concept of alternative causation. Every individual must manage a number of Stressors in his or her daily life. The plaintiff' who brings a sexual harassment claim also must contend with multiple life Stressors. Defense counsel may assert that the plaintiff's emotional distress is coming from other life Stressors or, alternatively, other life Stressors are the occasion for filing a sexual harassment claim. For example, anger may be displaced from an abusive partner or spouse. Defense counsel may attack the psychiatric evaluation done by the plaintiff's expert if multiple causation is not considered. A thorough psychiatric evaluation of the person alleging sexual harassment must consider the part played by all significant life Stressors impacting on the litigant's claims of psychic injury. Poor work performance may result from sexual harassment or may be due to totally unrelated factors. The defense attorney may seek to establish the latter.

Another defense strategy is to offer revenge as a reason for bringing the sexual harassment claim. The motive for revengo may arise from being passed over for promotion or being terminated. Particularly in some borderline individuals, the ragt; justifies false allegations/17 Revenge motivos may derive from rejection of a romantic liaison at work, leading to narcissistic injury and fury. Persons who suffer from borderline erotomania may seek revenge after a perceived or real rejection by the object of their romantic attachment.

Defense counsel generally views litigation as an important source of psychological stress for the plaintiff. The adversarial process undercuts the empathy and validation so important to the emotional well-being of the claimant. The public revelation of embarrassing details about the plaintiff is inimical to the healing process. Defense counsel may point out that the plaintiff, in pursuing a sexual harassment claim, is involved in a big stake, high anxiety situation. The credibility and reputation of the claimant is pitied against the credibility and reputation of the defendant, and usually that of the company or corporation as well. The defendant will likely assert that financial gain is a motive for bringing the suit, thus easting doubt on the character of the claimant.

SEXUAL HARASSMENT AND PTSO CLAIMS

In sexual harassaient litigation, the diagnosis of PTSD is made frequently. Unless the stressor criterion of serious threat to life or bodily integrity and the specific symptom criteria contained in DSM-PV are met, the diagnosis of PTSD should not be made. Guidelines for the forensic evaluation of PTSD in litigation are avai}able.:i:!

If rape or other sexual assault takes place in the workplace, the likelihood that the victim will develop PTSD is high. Less than 25<# of individuals exposed to typical traumatic Stressors develop PTSD. :!h Following a rape, the incidence may jump as high as 94f/r.:W

Stretching diagnostic criteria to make the diagnosis of PTSD in seeking a singular causative event is contrary to the ethical requirements of honesty and striving for objectivity. PTSD must not be diagnosed in order to facilitate a legal agenda. Using PTSD as syndrome evidence to "prove" that sexual harassment occurred will likely lack probative value in court. The diagnosis of PTSD also may be driven by politica! and social agendas.41

Forensic examiners should be familiar with the professional literature on PTSD. In a recent study, a 9.2'7c. lifetime prevalence of PTSD was found in the large population studied."8 Thus, a litigant has approximately a 1 in 10 chance of having PTSD from causes other than or in addition to that alleged in the litigation. Moreover, PTSD has a high rate of «!morbidity with a number of other psychiatric disorders, thus requiring a thorough investigation of accompanying disorders and their likely origins.^ Risk factors for the development of PTSD have been identified pointing to the possibility of preexisting psychiatric conditions."'

ASSESSING PSYCHOLOGICAL DAMAGE

In order to determine psychological damage, the assessment of the pre-iiicident and post-incident psychiatric status of the claimant must be determined and compared. Employment, school, police, military, medical, and psychiatric records should be obtained whenever possible. Persons who have known the claimant should be interviewed, when permissible. Ordinarily, only the plaintiff's expert will have this opportunity.

A fundamental distinction needs to be made between diagnosis and damage. Functional impairment is the key to assessing damages in litigation. Diagnosis alone does not equal damage. Some patients with chronic psychosis can function reasonably well. Similarly, patients with PTSD may have residual symptoms for a lifetime but still may be able to carry on their activities of daily living with little or no impairment.

Tangible losses include loss of job, seniority, or promotion. Surveys show 90% of sexual harassment victims suffer a significant degree of emotional stress as a result of the harassment.41 Nevertheless, surveys cannot take the place of careful evaluation for psychological damage in a given individual. Nor should stock approaches be taken in rating the level of stress experienced by individuals alleging sexual harassment. For example, Hamilton et al'1- suggest that sexual harassment should be recognized routinely as a severe or extreme psychosocial stressor on Axis V of DSM-III-R.

Psychic losses may encompass such general feelings as loss of confidence and enthusiasm for ile. Specific aspects of women's psychological functioning may become impaired by sexual harassment. Certain developmental issues may be exacerbated. 4:j For example, accultura ted difficulties in acknowledging and expressing anger that threatens relationships may be heightened. The importance many women place on connectivencss to others can be undermined when sexual harassment occurs or when a claim is brought. The rancor surrounding sexual harassment claims is almost certain to disrupt relationships. For many women, self-esteem is dependent on maintaining personal relationships.4'1 Sexual harassment may confirm, for some women, a learned, devalued status in society.4:i The evoking and expression oí' anger may be experienced as unfeminine, be felt as damaging to self-esteem, and reinforce internali zation of sexual stereotypes and prejudices that denigrate women.

The forensic examiner should consider using standard methods of assessment. Axis V in DSM-IV, the Global Assessment of Functioning scale, used in combination with the American Medical Association Guide to the Evaluation of Permanent Impairment can help reduce gratuitous evaluations of psychological damage based solely on the examiner's clinical experience. Clinical experience may reflect a thousand experiences with nothing new learned or a thousand different learning experiences, depending on the competence of the forensic examiner. Despite the caveats contained in DSM-IV against its being used in litigation, it is a fact of judicial life that DSM-IV plays a prominent role in litigation. It is important, however, that the forensic examiner not misuse DSM-IV under the pressure of legal advocacy.

EVALUATING TREATMENT AND PROGNOSIS

The forensic examiner cannot predict the effect of future life vicissitudes on the claimant's psychological disorder. A prior histoiy of how psychological distress was managed will likely indicate the manner in which future stress will be handled. A psychologically injured person who seeks help needs to be treated by a therapist who is sensitive to feminine issues and knowledgeable of female psychological development, regardless of the sex of the therapist. It is critically important that sexually abused individuals not be revictimized.

Stress symptoms may be expectable, normal reactions. Although controversy exists, acute stress disorder and PTSD may be appropriate psychological reactions to an overwhelming Stressor.'"5-47 However, if a preexisting psychiatric disorder is present, the individual may react with a prolonged, pathological reaction.

A number of Axis I mental disorders seen in sexually harassed claimants are amenable to treatment. Axis II personality disorders generally take a waxing and waning course that is often very difficult to treat. Traumatic experiences can exacerbate personality disorders. Combined Axis I and Axis II disorders obviously worsen the prognosis and likely will require longer treatment.

Combined treatment approaches are the most effective.24 Group therapy helps validate feelings, develop support, teach new coping skills, and make employment decisions. Individual psychotherapy focuses on the consequences of sexual harassment on the self. It also addresses the adequacy of the patient's coping with and resolution of conflicts triggered by the abuse. Individual therapy can help abuse victims resist the tendency toward self-devaluation. Medications may also be necessary for patients suffering from major psychiatric disorders.

REFERENCES

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3. Rosenblatt EA. Emerging concepts of women's development: implications fur psychotherapy. Psvr/ii'nfr Clitt North Ani. 1995; 18:95-106.

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5. Title VII. Section 703 (a)<2), 42 U.S.C. 5 2000 o - 2(a)

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8. Civil Rights Act of 1991, 42 U.S.C. 5 1981 A.

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26. Long BL. Psychiatric diagnoses in sexual harassment cases. Bull Am Acad Psychiatry Law. 1994; 22:195-203.

27. Shrier DR, Sexual harassment and discrimination: impact on physical and mental health. New Jersey Medicine. 1990; 2:105-107.

28. Crull P. Stress effects of sexual harassment on the job: implications for counseling. Am J Orthopsychiatry. 1982; 52:539-544.

29. L'S Merit Systems Protection Board. Sexual Harassment in fhe Federal Workplace: Is It a Problem? Washington, DC: US Government Printing Office; 1981.

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32. Simon RI. Bad Men Do What Good Men Dream: A Forensic Psychiatrist Illuminates the Darker Side of Psychiatry Behavior. Washington, DC: American Psychiatric Press: 1996.

33. Simon RI. Toward the development of guidelines in the forensic psychiatric examination of Posttraurnatic Stress Disorder claimants. In: Simon Rl, ed. Posti rati m u t i.c Streits Disorder in Litigation: Guidelines for Funmsic Assessment. Washington. DC: American Psychiatric Press; 1995:31-84.

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35. Herman J. Trauma, and Recovery. New York; Basic Books; 1992.

36. Dohmann v. Richard. 282 S.2d 789 (La Ct App 1973).

37. Gutheil TG. Borderline personality disorder, boundary violations. and patient-l ho rapist SPX: niedicoleRal pitfiills. Am J Psychiatry. 1989; 146:597-602.

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41. Chariify DA, Russell RC. An overview of sexual harassment. Am -J Psychiatry. 1994; 151:10-17.

42. Hamilton JA, Alagna SW, Ring LS, Lloyd C. The emotional consequences of gender-based abuse in the workplace: new counseling programs for sexual discriminating. In: Brando M. ed. Women. Power and Therapy. New York, NY: Harington Park Press; 1987.

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44. Miller JB. Toward a New Psychology of Wnmen. Boston, MA: Beacon Press; 1976

45. American Medical Association. Guides to the Evaluation of Permanent Impairment. 4th ed. Chicago, IL: American Medical Association; 1993

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TABLE 1

Types of Lawsuits Brought in Sexual Harassment Claims

TABLE 2

Forensic Psychiatric Functions in Sexual Harassment Litigation

TABLE 3

Some Potential Sources of Examiner Bias in Sexual Harassment Litigation

TABLE 4

Paradigmatic Plaintiff Strategies in Sexual Harassment Litigation

TABLE 5

Paradigmatic Defense Strategies in Sexual Harassment Litigation

10.3928/0048-5713-19960301-08

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