In March 1997, the Equal Employment Opportunity Commission issued guidelines to help employers comply with the Americans With Disabilities Act as it relates to psychiatric disabilities. Intricate and often baffling, the guidelines do make one thing clear: There is no logical limit to the administrative, financial, and legal obligations of employers. Already, 13 percent of complaints filed under the ADA are for psychiatric disorders, second only to back problems. Given that a psychiatric diagnosis exists for almost any imaginable behavior, this percentage could easily grow.
For a glimpse of the ADA-protected workplace, then, consider this guidance from the EEOC:
* An employer can be found in violation of the ADA for failing to adjust the work hours of an employee whose chronic tardiness results from depression.
* An employee whose "mind wanders frequently" because of an anxiety disorder may be protected under the ADA.
* An employee with "high levels of hostility" toward coworkers may be protected if the hostility is due to a personality disorder.
* An employer may not summarily refuse to hire an individual who has a history of on-the-job violence but instead must determine, from "medical knowledge and/or the best available objective evidence," whether the individual poses a "direct threat."
As these points suggest, the ADA, by placing psychiatric disabilities on the same plane as physical disabilities, has opened a Pandora's box. Unlike physical disorders, which are relatively static conditions independent of the demands of the surrounding environment, psychiatric disorders are dynamic and respond both to personal demands and to the pressures of the workplace. An exacting supervisor cannot affect a blind worker's blindness but very well might affect a depressed subordinate's punctuality.
To identify psychiatric disorders, the ADA relies on the Diagnostic and Statistical Manual of Mental Disorders, 4th edition, published by the American Psychiatric Association. The DSM-IV lists over 300 disorders. Fortunately, Congress had the foresight to exclude a few of them from coverage under the ADA, such as current use of illegal drugs, compulsive gambling, kleptomania, pyromania, and criminal sexual practices such as pedophilia, exhibitionism, and voyeurism. But it did not exclude, for example, personality disorders, acute stress disorder, attention deficit/hyperactivity disorder, intermittent explosive disorder (episodes of violent aggression), caffeine-induced sleep disorder, or nicotine withdrawal.
The DSM-IV's criteria for diagnosing personality disorders include an array of annoying and hostile behaviors: "persistently bears grudges," "shows emotional coldness," "suspiciousness," "deceitfulness," "reckless disregard for the safety of self or others," "consistent irresponsibility," " inappropriate, intense anger," and so on. Since the criteria are subjective (When are emotions "cold"?), personality disorders can easily be over- diagnosed.
But there is an even more fundamental problem. "Personality disorder" is a label applied to a pattern of behavior. There is no evidence that any underlying disorder provokes the behavior. In effect, then, a personality disorder/s the behavior. Thus, the EEOC has essentially decreed that annoying behavior can be a protected disability.
The diagnosis of depression is similarly problematic. Although many believe depression to be a "chemical imbalance," there is no chemical test that helps with the diagnosis. In the end, the diagnosis turns out to be entirely subjective. If you think or feel that you are depressed, there is nothing to keep you from being so labeled.
This is the nub of what makes the EEOC guidelines so troublesome: Psychiatrists cannot reliably differentiate a psychiatric condition from a counterfeit -- they cannot distinguish, for example, depression from laziness. With the EEOC's help, unmotivated employees will soon learn to protect their jobs by taking their health-insurance cards to the nearest mental-health clinic, where they will find psychiatrists with every incentive to make the diagnosis of depression. "Laziness" is not reimbursable, generates no return appointments, and will not be found in the DSM-IV.
To be sure, the EEOC does not automatically equate a psychiatric diagnosis with a psychiatric disability. To rise to the level of a disability under the ADA, a disorder must "substantially limit one or more major life activities." The major life activity, though, can be something as ordinary as learning, thinking, concentrating, speaking, sleeping, interacting with others, or caring for oneself. And "credible testimony from the individual with the disability and his/her family members, friends, or coworkers' may be sufficient to establish the limitation.
It hardly needs underlining, at this point, that these guidelines are an employer's nightmare. What may be less obvious is that they work against the very people they are intended to protect.
Not surprisingly, employers are finding creative ways to avoid hiring those with psychiatric diagnoses. And who can fault them? Hiring a person with a personality disorder could mean years of accommodating obnoxious behavior, followed by years of litigation if the employee is dismissed. Some employers are protecting themselves by expressing "concern" for the mental health of job applicants. An individual recently discharged from the military for depression showed me a rejection letter in which a prospective employer claimed that the stresses of the company's work environment were likely to worsen the applicant's mental well-being. In an unregulated job market, this individual would have a better chance of getting hired because employers would incur no special risk by hiring him.
Another unintended consequence of these guidelines is that they can enable disability behavior. Some employees will become "ill" in order to extract accommodations, such as altered work hours or low-stress tasks. Others will remain "disabled" in order to keep accommodations. Of course, this pernicious outcome does not arise with everyone who carries a psychiatric diagnosis; most compensate for any temporary problems in performance during periods when they are symptom-free. Employers have always had a vested interest in accommodating this latter group and have never needed "help" from meddling government agencies.
An unregulated job market, however, is not in the interests of the mental- health industry, whose political influence, I believe, lies behind this latest intrusion of government into the workplace. The mental-health industry has successfully argued that human behavior follows a linear medical model. Aberrant behavior, such as poor work performance, is presumed to be due to an underlying biological or psychological disorder, which, given proper treatment, will correct itself. This paradigm minimizes the role of human agency and individual differences in ability.
The medical model of behavior enjoys widespread support for a number of reasons. First, it appears to have tremendous explanatory power. There is no end to the number of unconscious dynamics and biological factors that can " cause" behavior. And the medical model, like the diagnoses it generates, is non-falsifiable. Who can prove that any given behavior is not caused by an underlying disorder? In this regard, modern psychiatry has not progressed far beyond Freud. If a century ago psychiatrists talked about "incestuous wishes," today they talk about "chemical imbalances," both of which are obscure and theoretical and end in behavioral determinism.
The medical model thrives, also, because society trusts the medical profession and is impressed by psychiatric jargon. Further, support for the medical model is mutually advantageous for the mental-health industry and government. If underlying disorders cause behavior problems, then society needs government to ensure that the "sick" receive treatment and are protected from employers. It should be no surprise that psychiatrists are the medical specialists most in favor of nationalized health care.
The problem with the medical model, of course, is that it does not explain human behavior. Most failing employees either are not qualified for the jobs they hold or have character problems, neither of which situations should be medicalized. The ADA has created a pipeline through which failing employees will pass, attracting diagnoses from the mental-health system and medical statements about work limitations and the need for accommodations, all of which will be purely speculative, though apt to gain the loyalty of the employees. Such arrangements provide little incentive for failing employees to put forth the rigorous effort that successful employment requires.
The EEOC, then, has effectively removed one of society's best "treatments" for workplace performance problems: relentless employer pressure to conform to high standards of productivity, efficiency, and congeniality. Whether clinically depressed or lazy, attention-deficit disordered or bored, personality disordered or misunderstood, everyone benefits from pressure to be productive, efficient, and kind. To paraphrase Samuel Johnson, when a man knows he is about to be fired, it concentrates his mind wonderfully.
An unregulated job market matches employees to jobs for which they are qualified. Under the ADA, employers will often be forced to accommodate unqualified employees whose difficulties are mistakenly diagnosed as mental disorders. There is no level of accommodation, though, that will turn unqualified employees into qualified ones. Sensing this, such employees are likely to experience ongoing stress problems "requiring" more mental-health care and further accommodations.
The EEOC guidelines are part of a larger and more ominous trend in the culture: People are not held responsible for their behavior. In medicalizing workplace performance problems, the EEOC relies on junk medical science and forces employers to assume responsibilities that properly belong to individuals. Should society ever shift responsibility back to individuals, then many with psychiatric "disabilities" will find themselves abruptly cured.
Michael J. Reznicek is a psychiatrist in Omaha, Nebraska.