Psychiatric Annals

PSYCHIATRY IN SEXUAL HARASSMENT 

The Use and Misuse of Psychiatry in Sexual Harassment Cases

Carl P Malmquist, MD, MS

Abstract

LEGAL FRAMEWORK

High Probability Cases

A massive change has been underway in the American workplace for approximately 15 years. Those who work in forensic psychiatry have been aware of these changes, but perhaps neither the broader profession nor the public were aware of the degree of change involving claims of sexual harassment until high publicity cases emerged over national television and news programs. The charges of Anita Hill against Supreme Court nominee Clarence Thomas, in front of the Senate Confirmation Committee, produced an atmosphere where many American homes tuned in, similar to any other nationally popular TV program or celebrity crime trial. Most revealing was the confusion about what sexual harassment involved, even in terms of a legal standard. To many, the most frustrating element was that after the conclusion of the hearings, not only were the facts unresolved regarding the allegations, but no understanding of the motives and dynamics of the personalities was ever accomplished. The appropriate role of the psychiatrist in cases involving alleged harassment remains to be addressed.

A year after the Thomas hearings, there were news media releases involving events at the 35th Annual Tailhook Symposium for Navy Flyers. This led to an investigation by the Inspector General of the Department of Defense with a conclusion that 90 assaults took place in an atmosphere of improper and indecent conduct.1 Perhaps continued wide publicity and media coverage about diverse cases contributed to the latest piece of legislation dealing with sexual harassment titled the Civil Rights Act of 1991, which overturned eight previous Supreme Court rulings and amended five civil rights statutes.'' For those who could establish sexual harassment in federal courts, it created compensatory and punitive damages, jury trials, and, relevant to psychiatrists, payment of expert witness fees to the prevailing party as part of attorneys' fees.

Legislative Approaches and Court Decisions

Apart from high publicity cases, the number of sexual harassment cases filed in courts and before the Equal Employment Opportunity Commission (EEOC) continued to increase. The atmosphere is now one in which the general public hears about sexual harassment in the workplace not only by way of peer conversation, but also by way of policies put into effect by private firms and the government, which involve lectures or presentations. Being exposed to these educational approaches in turn leads to more complaints and lawsuits being filed, just as publicity on certain cases does. A frequently heard phrase is "I didn't know I had a lawsuit until I attended the company's program on sexual harassment/'

This is not the piace to trace all of the legal pathways leading to where we now are. A few highlights will develop the necessary background. Title VII of the Civil Rights Act of 1964 was passed to provide equal opportunity for employment possibilities by removing artificial barriers.3 Part of the legislation dealt with sex discrimination. At first, courts did not find causes of action for sexual harassment under the statute, but in the absence of guidance as to what sexual harassment was, or what Congress had intended, during the course of the 1970s, case decisions began to go in different directions. In 1976, a federal district court first held that sexual harassment was to be seen as discriminatory by its interpretation of Title VII.4 Although that opened the door, many specific issues were left undecided, such as whether the behavior had been condoned, by the employer, whether an employer policy was in effect against certain acts, and whether administrative grievance should first be exhausted before commencing a lawsuit.

Within this milieu, the EEOC, whose purpose is to enforce all federal laws…

LEGAL FRAMEWORK

High Probability Cases

A massive change has been underway in the American workplace for approximately 15 years. Those who work in forensic psychiatry have been aware of these changes, but perhaps neither the broader profession nor the public were aware of the degree of change involving claims of sexual harassment until high publicity cases emerged over national television and news programs. The charges of Anita Hill against Supreme Court nominee Clarence Thomas, in front of the Senate Confirmation Committee, produced an atmosphere where many American homes tuned in, similar to any other nationally popular TV program or celebrity crime trial. Most revealing was the confusion about what sexual harassment involved, even in terms of a legal standard. To many, the most frustrating element was that after the conclusion of the hearings, not only were the facts unresolved regarding the allegations, but no understanding of the motives and dynamics of the personalities was ever accomplished. The appropriate role of the psychiatrist in cases involving alleged harassment remains to be addressed.

A year after the Thomas hearings, there were news media releases involving events at the 35th Annual Tailhook Symposium for Navy Flyers. This led to an investigation by the Inspector General of the Department of Defense with a conclusion that 90 assaults took place in an atmosphere of improper and indecent conduct.1 Perhaps continued wide publicity and media coverage about diverse cases contributed to the latest piece of legislation dealing with sexual harassment titled the Civil Rights Act of 1991, which overturned eight previous Supreme Court rulings and amended five civil rights statutes.'' For those who could establish sexual harassment in federal courts, it created compensatory and punitive damages, jury trials, and, relevant to psychiatrists, payment of expert witness fees to the prevailing party as part of attorneys' fees.

Legislative Approaches and Court Decisions

Apart from high publicity cases, the number of sexual harassment cases filed in courts and before the Equal Employment Opportunity Commission (EEOC) continued to increase. The atmosphere is now one in which the general public hears about sexual harassment in the workplace not only by way of peer conversation, but also by way of policies put into effect by private firms and the government, which involve lectures or presentations. Being exposed to these educational approaches in turn leads to more complaints and lawsuits being filed, just as publicity on certain cases does. A frequently heard phrase is "I didn't know I had a lawsuit until I attended the company's program on sexual harassment/'

This is not the piace to trace all of the legal pathways leading to where we now are. A few highlights will develop the necessary background. Title VII of the Civil Rights Act of 1964 was passed to provide equal opportunity for employment possibilities by removing artificial barriers.3 Part of the legislation dealt with sex discrimination. At first, courts did not find causes of action for sexual harassment under the statute, but in the absence of guidance as to what sexual harassment was, or what Congress had intended, during the course of the 1970s, case decisions began to go in different directions. In 1976, a federal district court first held that sexual harassment was to be seen as discriminatory by its interpretation of Title VII.4 Although that opened the door, many specific issues were left undecided, such as whether the behavior had been condoned, by the employer, whether an employer policy was in effect against certain acts, and whether administrative grievance should first be exhausted before commencing a lawsuit.

Within this milieu, the EEOC, whose purpose is to enforce all federal laws prohibiting employment discrimination, entered the arena. The result was that the EEOC began to develop its own guidelines for sexual harassment claims. Although their regulations are administrative interpretations and are not binding, they do offer their interpretation of liability for alleged sexual harassment in the workplace. Hence, although their guidelines do not have the force of law, they are referred to by the United States Supreme Court as entitled to "great deference."5 Over the past two decades, cases arose that elicited many articles and commentaries in legal periodicals. Tn 1986, the United States Supreme Court recognized sexuai harassment as a form of sex discrimination, and that a "hostile environment," as well as quid pro quo situations, come under Title VÌI."

A more recent addition, which amended Title VTI from the 1964 act and other acts, occurred in the form of the Civil Rights Act of 1991. Until then, damages were available only to the victims of intentional racial or ethnic discrimination. The 1991 act extended compensatory and punitive damages to victims of employment discrimination based on sex, religion, and disability, as well as race. Not only Title VII, but also the Americans with Disabilities Act and the Rehabilitation Act of 1973 were called into play.7 This act made recovery of damages easier in federal courts, including payments for psychiatric treatment. Compensatory damages were specified not only in terms of monetary losses, but for "emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other non-pecuniary losses."8

TYPES OF HARASSMENT

From these legislative enactments and the judicial cases that have arisen thereafter, it is usually stated that sexual harassment claims fall into two general categories. The first is the widely known quid pro quo grouping in which employment benefits are offered in response to sexual favors granted by an employee who is in a subordinate position. The second grouping deals with cases alleged to have arisen in the context of a hostile or offensive environment. The latter is what has given rise to debate and litigation as to what situations meet the test for such an environment. The two categories may also be mixed. such as if the demand for a quid pro quo is rejected with the complaint that the work environment later changed, or some type of later discharge of the employee resulted from the rejection, Failures to be promoted or transferred and negative job appraisals are examples of what may be alleged to have occurred subsequent to a refusa! to participate in some sexual proposal.

Difficult cases arise when romantic relationships within the workplace end, and one party then believes that this has led to a lack of subsequent progress in their employment. However, a hostile work environment is not tied to the loss of a specific job benefit. At first, courts were reluctant to take this view, although the EEOC did. It was in this area that psychiatric testimony began to be used in support of the alleged emotional and psychological results as part of the sexual harassment complaint involving workplace conditions. The next extension of cases was into diverse areas of verbal transactions between people in the workplace. The types of complaints vary from verbal sexual propositions to sexual suggestions and innuendoes, and inquiries about one's sexual preferences, with the issue being whether these verbalizations had created a hostile environment.

The outcome of these diverse types of cases, as might be predicted, was uneven. They varied from some courts rejecting a hostile environment theory entirely for such claims, to others adopting a strict liability approach in holding employers absolutely liable for a hostile environment created by supervisory personnel on the basis that the employer knew or should have known about the behavior. ? Ambiguity was also present in determining whether a "hostile environment" existed. One line of thinking argued that such an environment was created if the harassing acts were sufficiently pervasive; another argued that it needed Lo interfere unreasonably with work performance.

Complications ensued when there was either a lack of witnesses or directly conflicting testimony about the events. Because most harassment occurred in private, the allegations devolve to assessments of the credibility of the allegations. It often then becomes a matter of recruiting witnesses from each side of the workplace to support or negate the credibility of the claimee.

Frequently, there is debate as to whether the behavior was sexual or not, such as a female's complaint that she was being "picked on" by her male supervisor.10 Issues can arise if sexual harassment occurs when a second iemale develops a romantic relationship with a male supervisor, which is then claimed to have hindered the promotion of the first female. The entire topic of whether the claims arc to be assessed from the perspective of the "reasonable person" occurs because questions arise about a unitary idea of sexual harassment. Not only might there be differences in how men and women perceive it, but also in how diverse groups of women view harassing behavior in the workplace, varying i'rom privileged, white, middle class women to lesbians and women of color.

Nor is there now a need tor psychological harm to have occurred to a claimant as the Supreme Court eventually held in reversing a Circuit Court opinion. Justice O'Connor wrote in Harris ?. ForkHft Systems, Inc. in 1993 that it would suffice for sexual harassment if "the environment would be perceived, and is perceived, as hostile or abusive.1'11 She elaborated that all the circumstances must be looked at to determine whether an environment is "hostile" or "abusive." Among those are the frequency of the conduct, its severity, if it is physically threatening or humiliating or merely an offensive utterance, and whether it unreasonably interferes with an employee's work performance.

Although Justice Scalia concurred in the case, he did so because he knew of no alternative to the course the court was then taking. He did not feel that the word "abusive" provided a clear standard for anyone, nor that clarity was increased by using adverbs such as "objectively." Similarly, he did not believe that referring to a standard of what a "reasonable person's" idea of what abusiveness meant clarified matters. Noting that a number of factors were listed as contributing to abusiveness, it is unknown how much of each would in fact be necessary for sexual harassment. His view was that this was an impossible task. It could also not be known whether a particular single factor could be determinative. The result was seen by him as one where unguided juries would be let loose to decide whether sex-related conduct was egregious enough to warrant an award of damages. He raised a further rhetorical question as to whether juries deciding "negligence" cases are any clearer in those cases than when they vote on what constitutes "abusiveness." The significant distinction pointed out. was that those seeking to recover for negligence were limited to the class of those who had already suffered harm; in contrast, the alleged abusiveness in a sexual harassment case becomes the test of whether legal harm had actually been suffered or not. The result is to open an expansive vista for litigation.

THE CONFUSING ROLE OF PSYCHIATRISTS

A basic question is what all of these intricate legal distinctions have to do with psychiatry (or any other mental health discipline). Two egregious errors occur frequently when psychiatrists are asked to consult in cases when there is an alleged sexual harassment legal case pending. Tfie first is a presumption that they know what sexual harassment is; the second error is to realize that they may not know what sexual harassment means, but presume they must improvise or create what they believe will qualify for a sexual harassment claim based on the behaviors a claimant has made. Words used in the legal system such as abuse or harassment are similar to other words such as oppression, maligned, etc. Sometimes such words are intentionally left vague by legislatures or courts to be worked out over time by way of future case litigation. The problem for the psychiatrist is that these terms are not clearly or easily defined and lack working boundaries except at the extremes. That also contributes to their overuse. Such confusion is witnessed by the use of the phrase "sexual harassment" in diverse contexts - legal, sociological, and political. When a fourth dimension is raised and psychiatrists become involved, it is not surprising that the confusion is multiply compounded.

Psychiatric Dilemmas

To illustrate these problems, consider a legal case where someone is alleging sexual harassment. A psychiatrist, for the plaintiff or defendant, is then retained. The forensic role of the psychiatrist is to come to an independent medical opinion. But what is an opinion to be expressed about? One of the most prevalent mistakes is for the psychiatrist to begin with the assumption that sexual harassment must have taken place and therefore needs to be rebutted or buttressed, depending on who is doing the retaining. Therefore, typical steps are to support or refute the findings with a diagnosis, assess damages more or less by the Global Assessment of Functioning íGAF) Scale, and recommend some treatment if retained by the plaintiff. However, if there is not to be an assumption of sexual harassment, it raises an issue as to what the role of the psychiatrist actually is or should be. In this context of ambiguity, psychiatrists may be misled into thinking that either sexual harassment has been established, or that they are to arrive at such a conclusion, missing the point that sexual harassment is to be a legal finding made by a court or jury at trial. In other words, a trier of fact, not a psychiatrist, is to decide the matter.

Because the litigation is still pending, the psychiatrist for the plaintiff or defendant does not actually know if the legal criteria have been met for sexual harassment or if they ever will be met. The psychiatrist is thus caught in a dilemma. As noted, one solution that frequently occurs in practice is to offer a psychiatric conclusion that sexual harassment has occurred and proceed from there to elaborate all the psychic harm that supposedly has been a causal result. Yet, the psychiatrist has no training or knowledgeable expertise to come to such a conclusion. What may happen is that the psychiatrist falls back on personal or intuitive views and becomes an amateur sociologist. The psychiatrist may get imbued with ideas about, the prevalence and preoccupation of sexual problems in American society, and how these types of conflicts must be operating in the workplace. Perhaps the psychiatrist has become familiar with literature dealing with problems of unequal power relationships in organizations and the complications that can result from sexual liaisons that occur in the workplace. Enigmas occur in the current legal atmosphere that may perplex the psychiatrist, such as lawsuits and liability arising from an unsuccessful outcome of an office romance, but no liability ensuing for a successful romantic outcome in a relationship.

Some psychiatric evaluations may end on the level of offering a quasi-sociological assessment, but then shift into a psychiatric mode in offering conclusions based on relationships in the workplace between individuals with a power differential between them leading to psychological harm. Being trained as a clinician has its own !imitations. It may lead to attempts to deal with the behavior that has emerged in a therapeutic mode. Perhaps the psychiatrist has been told by the attorneys, in response to inquiries, that the United States Supreme Court has said that the "totality of the circumstances'* is to be used as the criterion, and material in the case of Harris u. Fork I i ft Systems, Inc. is cited in that regard. This is very impressive to a psychiatrist.

Diversity of Behaviors

Cases that arise with allegations of sexual harassment are multiple, diverse, complex, and unique to the individua! person. The possibilities that confront the psychiatrist may involve accusations of overt sexually assaultive behaviors even to the point of rape, exchanges of past sexual favors for promotion, refusal of sexual favors followed by a failure to promote, and certain types of unsolicited physical contact and touching !kissing, hugging, patting, stroking, standing too close, etc.). However, many sexual harassment cases do not involve allegations of touching at all, but rather involve a variety of verbal remarks such as allegations of dirty jokes in the workplace, sexual allusions, comments made about the person's body or clothing, not accepting a refusal for a date, unsolicited phone calls, etc. Underlying many of these complaints may be a gender difference in how some females experience their working environment and the people in it, in contrast not only to males but to other females.

Nor is the behavior involved in sexual harassment cases confined to the verbal, non-touching level. A complaint may allege leering behavior, allegations of innuendoes in the way one is being looked at, mouthing movements, hand gestures, or having certain pictures, graffiti, or posters present in the workplace. Further, the accusation may not even directly involve the person bringing the suit, but it can refer to the overall context of employment where a person at work was confined to a certain area and claims not to have been able to Jeave their position. Hence, as a result, the claim is that they have been forced to overhear certain remarks, or witness looks being directed at a third party, although not at themselves.

Given all of these possibilities, the psychiatrist may begin to ponder the how, what, and why of these complaints, the behavioral interactions involved, and the diverse interpretations put on them by the people who work together. Given such a situation, the psychiatrist carrying out a forensic evaluation in sexual harassment cases may make a fallacy of assuming that events all occurred exactly in the manner in which the legal complaint is drafted. This naivete bypasses the realization that complaints, and responses to complaints, are in fact drafted in the form of exaggerations like in any debate. From a background of working with people in clinical contexts, in which psychiatrists, physicians, and other mental health professionals are trained to help people who come to them with their complaints, a legal complaint may be treated similarly. In the absence of training to raise skeptical questions about complaints, many false assumptions may be made.

PROBLEMS IN MAKING A PSYCHIATRIC CASE

A first approximation to shift matters into a context in which the psychiatrist can function as a psychiatrist occurs when it is realized that the types of issues and allegations may be outside the realm of psychiatry. To fit the complaints into a medical framework, the psychiatrist needs to ask whether some of the behaviors in question can somehow fit into a diagnostic framework. Because they are talking about assaultive behavior, unwelcome verbalizations, or things like allusive looks or stares, the process becomes one of shifting the alleged facts into a framework of "trauma." However, to do this means the psychiatrist must not only accept what is alleged as facts, which may or may not be valid, but then begin to think diagnostically so that the behaviors can be translated into some form of "stressor" to make a diagnosis, such as an Adjustment Disorder or Posttraumatic Stress Disorder (PTSD). While other diagnoses may also come into play in sexual harassment cases, PTSD is most useful because its focus on a stressor can easily be translated into a diagnosis and a legal causation model for continued pain and suffering. Hence, PTSD will be taken for a paradigmatic model for discussion.

The Quest for an Explanation

To use the causation model means that the psychiatrist has made a judgment about the events and dispute in a lawsuit, and has then proceeded to a further judgment that the events were severe enough to qualify for a Posttraumatic Stress Disorder diagnosis, i.e., that a causal framework has been established. To do so also requires that the past psychiatric and medical history of the person be made fully available to avoid the problem of false attribution. The past level of emotional functioning of the person throughout his or her lifespan also requires independent assessment.

It is impossible to assess the current role of the psychiatrist in these cases without an awareness of how rapidly their participation has emerged in such proceedings. It is not that the idea of trauma is new because there are historical references to shell shock, combat fatigue. and railway spine, for example. However, since these earlier diagnoses, courts shifted away from the view that compensable damages could only be awarded for physical injuries, or from the requirement that there had at least been physical contact for a resultant emotional response as a basis for nonphysical harm. The legal transition was to the idea of the foreseeable harm of an action.

By 1980, the Diagnostic and Statistical Manual, 3rd edition (DSM-??), produced a formal diagnostic grouping for Posttrau m a tic Stress Disorder, but the criteria changed two more times by 1994 in subsequent editions.1-13 These diagnostic changes were occurring parallel to legal changes in the rules of evidence such that a broader basis for proffered evidence was in process. In turn, this opened the way for a new cottage industry of experts from the mental health fields to testify.14 The expansion continued in court rulings, although the recent Daubert decision by the United States Supreme Court emphasized the need for courts to scrutinize the scientific validity of the principles and methodology used by an expert and not to focus on the persuasiveness of conclusions.15

Diagnostic Validity Problems

Questions continue to arise about the diagnostic validity of certain categories in the DSM. While articles proliferate about Post-traumatic Stress Disorder, they are often difficult to assess due to the shifting criteria employed in subsequent editions of the DSM. In that sense, we have not progressed beyond a face validity for PTSD, meaning it is on the level of first impressions of eli nicians who are simply trying to identify a disorder. Due to the high comorbidity present with the diagnosis of PTSD. we remain distant from being able to attest to the uniqueness of this one diagnostic grouping or to its having a predictive validity.

While this is not the place to pursue an exhaustive critique of the use of the diagnosis of FFSD, it is important, to call attention to some of the difficulties inherent in its use because it is the justification for expert opinion in so many cases of sexual harassment. To begin with, there is a wide variation in individual susceptibility to different stressful life situations. It is elusive to try and understand how a supposedly minor Stressor occurring in the lives of some people is seen as the causal agent, whereas others handle major stressful events without, long-range sequelae. Achieving a satisfactory medical explanation to account, for such individual differences is in itself a challenge to those trying to understand personality development. In a legal setting, the argument is that a more vulnerable person has reacted to the trauma and should be compensated.

Uncertainty about the role of the stressors themselves continues and has been reflected in the changes between DSM-IIl-R and DSM-IV. The DSM-III criterion stated that PTSD could develop after an event that "would be markedly distressing to almost anyone." In DSM-IV, PTSD may result from someone having experienced. confronted, or simply witnessed an event that involved actual or threatened death or serious injury, or a threat to the physical integrity of oneself or others. It is also added that the person had to respond with intense fear, helplessness, or horror. The significance Mes in a shift away from the nature of the Stressor to the reaction of the person. Some have gone so far as to propose omitting the stressor requirement altogether and simply viewing PTSD as a symptom complex without any reference to etiology. Ui The confusion is a byproduct of no one knowing what should be excluded or included as a stressor. Individuals exposed directly to or overhearing profanity could argue that they are reacting with intense fear and horror from their vulnerabilities. The "secondary trauma" grouping may then have lost its boundaries. The result is an increase in the subjectivity of the diagnosis because it is based on reported phenomenology. IT When transposed into the legal arena, such unresolved issues foster lawsuits and gain ardent supporters on both sides due to its ambiguity.

The comorbidity problem for the diagnosis of PTSD is a problem unto itself for the clinical fields. In cases of sexual harassment, it raises many questions about which diagnosis has occurred at which time and which should be regarded as salient. Because PTSD frequently has such an overlap, some argue that the diverse diagnoses are all due to the same trauma; others argue that they are all due to the same vulnerability to begin with. In practice, there is likely to be a comorbidity with one or more of the following diagnoses present: chronic dysthymia, episodes of major depression, generalized anxiety disorder, panic disorder, or substance use or abuse problems. This does not even touch the comorbidity with some Axis II disorders that may also overlap, such as schizoid, antisocial, and borderline personalities. Somatoform disorder may also occur and be intermixed with physical illnesses, which elicit their own emotional reactions and denials. Interestingly, there does not appear to be an increase in physical illnesses after a psychological trauma, contrary to a view frequently espoused. l>i Confusion has often been present in failing to distinguish somatoform diagnoses from physical illnesses.

When we consider that the diagnosis of PTSD in its current form can also have an acute form existing up to 4 weeks, or a delayed form that can come on with symptoms 6 months after the stressor. and diverse possibilities of symptoms that can wax and wane, the diagnostic situation can be very confusing for legal cases alleging sexual harassment as the trauma. This is particularly so where a legal case may be brought 10 to 20 years after the alleged harassment events.

To complicate matters further, PTSD may overlap with the diagnosis of dissociative disorders. Some clinicians consider I3TSD an expression of a dissociative disorder, and, as such, amnesia may then be present.1'1 Further, there are some empirical findings that earlier traumas, such as physical or sexual ahuse in the developmental years, may have been present.-11 These earlier occurrences may have predisposed the individual to diverse diagnoses with mure chaos then resulting when a later sexual harassment case is filed. The contemporary situation has led one law professor to call on the American Psychiatric Association to develop some guidelines for courts to help define the boundaries of accepted professional knowledge about legally relevant behavior.^1 The hope is to remedy the current situation where matters are decided on a case-by-case basis and are often based on less than the best current research and knowledge.

EXAGGERATED ATTEMPTS TO MAKE A PSYCHIATRIC CASE

Pitfalls for the Psychiatrist

Forensic psychiatrists write scholarly guidelines on what a forensic examination of PTSD claimants should involve,- However, in practice, and considering the increasing number of cases, such high standards may not be met. This is not only because of the limitations in the diagnostic criteria in DSM and their changes with different editions, it is because a variety of other factors also operate. It is important to remember that the nature of the symptomatic complaints is subjective, and only certain functional aspects might be capable of confirmation by an outside assessment. People involved in litigation are presented with an enormous variety of grievances. When this is coupled with the expanded subjectivity of the language for PTSD in DSM-IV, it presents difficulties for psychiatric evaluators. They need to keep in mind that they do not have objective knowledge of what really happened at some previous timi· in the workplace. The complications from comorbidity and the variability in medical records that are made available are further limitations.

In addition, two other significant variables may operate in the misuse of psychiatry in sexual harassment legal cases. Many psychiatrists making assessments in such cases do not customarily work in forensic psychiatry and aro not familiar with how psychiatric issues are handled in the courtroom. Some psychiatrists also may play the complicated role of the treating psychiatrist who later testifies in the case as an expert witness. The nuances and changes in such a role and how the material presented in therapy may not correspond to an objective assessment may be missed.

A second factor intrudes from a different perspective. The psychiatrist consulting on a forensic case may become strongly identified with the claimant. While countertransferenco. may operate in the treatment of cases of individuals who have suffered PTSD. forensic countertransference may also intrude in carrying out forensic assessments.-'1 Some forensic psychiatrists have argued that they should adopt an advocacy role with their cases. However, a distinction is needed. One role is becoming an advocate after a thorough evaluation is completed, taking all the facts assessed and materials reviewed, and then expressing a psychiatric opinion; a second role slants the evaluation process itself into an advocacy process due to a variety of conscious and unconscious intrusions in the ^valuator.

The Distorted Psychiatric Examination

The following material will note how a psychiatric examiner can relatively easily obtain the "right" material to lead to a diagnosis of PTSD in a sexual harassment case. The series of questions arc exaggerated for illustrative purposes, but one encounters reports that, are structured in such a manner. The structuring of questions may be later revealed in the course of independent examinations and in trial testimony itself. Whether this type of assessment takes place consciously or is due to positive countertransference factors is often difficult to determine. It does illustrate the ease with which such distortions may occur. The criteria from DSM-IV for the diagnosis of Posttraumatic Stress Disorder will be used for illustration.

The distortion may begin by specifically trying to elicit material to make a DSM-IV diagnosis. Questions are directed to whether the person has experienced some type of event that he or she would describe as an actual or threatened death event or one that would have caused serious injury. An elaboration may occur to have the person describe how his or her "physical integrity" was threatened, which allows a lot of leeway. The questioning of a plaintiff might then proceed as follows: "Tell me how you felt your life was in danger in such and such situation at work," or, "it sounds like you thought you were at risk of being seriously injured at that time." Relating to this, other events might be pursued such as asking what feelings the plaintiff would have if someone else in the workplace had their life threatened or their physical integrity endangered. Next, the examiner could then proceed Io ask for more details with a goal of eliciting strong emotions. Questions could be pursued, such as "Were you extremely frightened? Were you horrified at hearing such language? It sounds as though you may have felt helpless at that point and out of control." Such leading questions are used to substantiate meeting initial criteria for the diagnosis.

In shifting to the next criterion, which requires that the event be persistently reexperienced, questions can lead to exaggerated attempts to make such a diagnosis. For example, the examiner may ask, "Do you still have horrible memories about that life-threatening trauma we just talked about?" or. "Tell me about the terrible pictures in your mind that were present when you thought about how X had repeatedly looked at you while at work. Are these images now occurring throughout your day at work? Hnw difficult is it to get rid of them? How many nightmares have you had about these traumas that occurred at work?" One could then elaborate hy questioning how they intrude in the person's life, in their waking hours at work, and outside in their social life. A further expansion could explain what flashbacks are and then suggest to the person that flashbacks are experiences that occur and are related to traumas they have experienced. Details of how flashbacks intrude on their life and frequency of experiencing the flashbacks can be elicited, perhaps trying to establish that there might also have been hallucinations occurring of a threatening type. If one wished to expand the framework further, the questioning could take a form such as "Tell me about all the situations you can think of that remind you of the bad things that occurred to you when you were subjected to the harassment at work." A variation might be "When you see the people at work, does it make you think about all the emotional distress that you suffered?" or "Do these kinds of experiences intrude on your thoughts such as on anniversaries of events that occurred, or when you get together with the people from work and talk about what life was like there?"

With respect to establishing a persistent avoidance and numbing connected with the alleged trauma, a line of questions can be asked such as "How often do you try to block out thoughts about what happened at your job? Do you find yourself frequently avoiding talking about what happened or even thinking about it?" Specifics can be added such as noting avoidances of going back near where the job was, or even near any event or situation that reminds them of it. An expansion is sought by probing for "How many things do you now avoid doing that once were a source of fun or pleasure?" To get at the numbing criterion, a question could be asked such as "Do you feel detached from others and quite different from how you used to be when socializing?" Further elaboration would ask whether many emotions the person could once express are now absent, and get into specifics, such as "How has this loss of emotion impaired your relationship to certain people, such as your spouse, friends, and family?"

It is quite easy to expand on persistent symptoms of increased physiological arousal by running through a list that will often elicit some symptoms in most people. For example. "How bad has your sleep problem been since you quit work?" or "Have people told you recently that you are more irritable or difficult to get along with? How bad has your concentration become? Does it now seem like you are much more 'grumpy' and not relaxed? Do you find yourself being startled by many things around you such as noises that otherwise have never bothered you?"

At the end, one simply concludes by elaborating how all of these events have affected the person's functioning in sociul, occupational, and other areas by specifically listing how it has impaired their functioning with their peer group, in their marriage, or in relationships at work, and how different this has been from their previous functioning.

CONCLUSION

Hopefully, the caricature just produced does not occur too frequently. However, the ease with which such a style of interviewing may occur is frightening when an evaluating psychiatrist takes legal complaints literally or becomes overidentified through countertransference processes when consulting on a legal case. Developments in the changing legal scene with respect to sexual harassment can illustrate how a changing legal climate may affect psychiatric participation. Psychiatrists are to participate to an increasing degree in such cases, and increasing confusion in their roles is possible. The scene parallels one of rapid and probably permanent change in the American workplace with many sociological concomitants.

Given that there may be a threatened "loss of boundaries" for psychiatrists who become involved in these legal cases, are there any recommendations? One group of recommendations regards the forensic process. Forensic evaluations, at least for sexual harassment cases, may need a change in the format in which they are conducted. It has been noted that forensic evaluations for intended use in an adversarial setting may start to get keyed to the phrasing of questions or the tones in an answer. These are very difficult to assess from written reports or in testimony that may occur years after an assessment. Simply having notes or even dictating a report immediately after an evaluation, which is recommended, does not necessarily solve the problem. Perhaps what is needed is videotaping of these evaluations, which would then be made available to all parties.-1 This would seem preferable to the old-fashioned audiotaping that is made available to both parties but which does not pick up many of the interactions or types of interviewing styles illustrated.

Because sexual harassment cases are not going to disappear from courtrooms and the revolution in the American workplace is likely to continue, it is important for psychiatrists to delineate their roles carefully. Otherwise, they extend themselves beyond their expertise and pretend to an exactness that is not achievable. Not to exercise such caution will invite increasing public criticism in an already beleaguered profession.

Apart from accurate and thorough diagnostic assessments, a second area of recommendations pertains to psychiatrists being aware in their own workplace environments how the sensitivities of women to male behaviors may vary widely. In their administrative roles, they need to be sensitive to such behaviors and know what policies are in effect in their respective workplaces. However, they are not then functioning as psychiatrists per se. but rather as enlightened administrators or supervisors. It is helpful for them to be aware of the barriers women have faced in the workplace, especially in occupations where few numbers of women have been employed. Gender stereotyping must be avoided in order to appreciate individual differences.-1 Perhaps the major contribution psychiatrists can make in the long run is not through psychiatric evaluations, even good ones, but rather in promoting enlightenment through consulting roles. People may then become more aware of individual sensitivities to intimidation and processes of devaluation, and psychiatry can be less misused.

REFERENCES

1. Department of Defense, Inspector General. Ta il hook 91. Part 2. Events of the .'15Lh Annual Tailhook Symposium; February 1993.

2. Coate A- Sexual Harassment in ihi· Workplace /Law ami Praci i,t. VnI 1. 2nd cd. New York, NY: John WUcy & Sons: 1994.

3. Civil Rights Act of 1964, Title VIl, Section 703(a), 42 US.C. Section 2000. e-2(ai.

4. Williams r. Saxbe. 413 F Supp 654 iDDD 1976).

5. Griggx v Saxbe AJH-C/- t V)1. 401 U.S. 424 1 1971 1.

6. Mentor Savings tìnnh v. Vinstm. 477 l '.S. 57 (1986).

7. Rehabilitative Act of 1973. Section 102(b) CjI1 105 Stai 1073.

6. Civil Rights Act of 199 !.Title V]], Section 19Hl AI ;?? 1 1 1.

9. Horn v Duke Homes. Inc. 755 F 2d G.99 (3d Cir 1973).

10. Turley v. Union Carbide Corporation. 618 F Supp 1438 tS.D.W. Va 19851.

11. Harri v Forflift Systems. Inc, 1 14 S Ct 367 1 1993l.

12. American Psychiatrie Association. Diagnostic and Statistical Man util of Mental Ui sordera. 3rd ec!. rev. Washington. DC: American Psychiatric Association: 19S7.

13. American Psychiatric Association. Diagnostic find Slatistical Manual of Mental Disorders:. 4th ed. Washington. DC: American Psychiatric Association: 1994.

14. Shuman DW. The Diagnostic and Statistical Manual of Mental Disorders in tin* Courts. Bull Am Afiit! Psycliintrv Law. 1989: 17:25-32.

15. Daubert v. Merrel Dow Pharmaeutcials. Inc 113 S Cl 2786(19931.

16. March .!S. What «tnstiUites a Stressor? The 'criterion A" issue. Jn: Davidson JRT. Foa ET. t>ds. Poni Inni ma tic Stress Disorder DSM-IV and Beyond, Washington, DC: American Psychiatric Press. Ine: 1993:37-54.

17. Tomb DA. The phenomenology of post-traumatic stress disorder. Psychiatr Clin North Arn. 1994; 17:237-250.

18. Eberly KE, Engdahl RK. Prevalence of somatic and psychiatric disorders among furnier prisoners of war. Hosp Community Psychiatry. 1991: 42:807-813.

19. Blank AS Jr. Clinical detection, diagnosis, and differential diagnosis of post -trauma lie stress disorder. Psyclnatr Clin North Am. 1994: 17:351-383.

20. Herman JL. Trauma and Recovery. New York, NY: Basic Books: 1992.

21. Shuman DW. Persistent reexperiences in psychiatry and law: current and future trends in postini urna tic stress disorder litigation. In: Simon Rl, ed. Postraumatic Stress Diaortlt-r in Litigation. Washington, DC: American Psychiatrie Press, Ine: 1995:1-1 1.

22. Simon RI. Toward the development of guidelines in the forensic psychiatric examination of posttraumatic stress disorder claimants. In: Simon fil. ed. Postlraumatic Stress Diorder in Litigation. Washington, DC: AniL-rican Psychiatric Press. Ine: 1995::il-84.

23. Wilson JP. Lindy JD. eds. Countertransference in the Treatment of PTSD. New York, NY: Guilford Press: 1994.

24. Deaux K. How basic can you be? The evolution of research on gender stereotypes. Journal of Social Issues. 1995; 51:11-20.

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