Could the American Psychiatric Association Cause You Headaches? The Dangerous Interaction between the DSM-5 and Employment Law

Abstract

Since its first publication in 1952, the American Psychiatric Association’s (APA or the “Association”) Diagnostic and Statistical Manual of Mental Disorders (DSM or the “Manual”) has long served as the primary reference for mental health disorders not only for medical practitioners, but also for state and federal courts and government agencies like the Social Security Administration and Veterans Administration. The APA’s fourth edition of the DSM, commonly referred to as the DSM-IV, was first published in 1994, with only relatively minor “text revisions” in 2000. In May 2013, for the first time in nearly twenty years, the APA plans to publish an entirely new edition. As proposed, the DSM-5 (the Association plans to scrap the use of Roman numerals) would significantly expand a number of existing psychological disorders and add several new ones. The DSM-IV, like the editions before it, has long served as a primary authority for the legal community. The new Manual is still a work in progress, published only as proposed diagnostic criteria and assessment instruments on the DSM-5 website. However, the significant proposed revisions to a wide range of mental impairments mean that the legal community’s relationship with the DSM may be forced to change given the implications that changes in the DSM-5 may have for claims under laws like the Americans with Disabilities Act (ADA) (regarding claims of “disability” and requests for reasonable accommodations), Family Medical Leave Act (FMLA) (regarding definitions of a “serious illness”), Age Discrimination in Employment Act (ADEA), and even state statutes and workers compensation laws (regarding whether an illness is work related).

This Article discusses the major role that the DSM standards play for legal practitioners and the danger that overly expansive definitions of mental disorders could pose to employers and employees. Part I discusses the history and background of the DSM and its development into a de-facto legal treatise. Next, Part II highlights the strengths and weaknesses of the DSM-IV as a legal text. Part III then explains the dangerous interaction between the ADA Amendments Act and the proposed DSM-5. In Part IV, the Article highlights the challenges and difficulties that certain changes — from a proposed “Mild Neurocognitive Disorder” to the inclusion of deviant behavior in the definition of a mental disorder — could cause employers, employees, courts, and even federal agencies in applying employment and disability laws, and, with new impairments like Mild Neurocognitive Disorder, the ADA in particular. Finally, to reduce the possible unintended consequences of overly expansive definitions, Part V summarizes specific approaches that courts, employers, employees, and legal practitioners should rely on to reduce the potential confusion and burdens caused by the impending release of the DSM-5. Part VI briefly concludes.

Keywords: DSM-IV, DSM-5, employment, employment law, ADA, ADAAA, disability, mental disorder

JEL Classification: K32, K30, K42, K41, K23, K10