Last Friday, the American Psychiatric Association (APA) published the fifth edition of what is considered the “bible” for diagnosing mental disorders, the Diagnostic and Statistical Manual of Mental Disorders, or “DSM-5.” While much of the DSM-5 reclassifies already-recognized disorders or fleshes out diagnostic criteria, the APA recognizes several new disorders that could make life even more difficult for employers that are still trying to get their arms around recently-expanded disability discrimination laws.
The ADA Amendments Act of 2008 (ADAAA), which became effective January 1, 2009, significantly broadened the definition of “disability” under the Americans with Disabilities Act of 1990 (ADA). The implementing regulations from the Equal Employment Opportunity Commission (EEOC), published March 25, 2011, raised more questions than it answered regarding what mental impairments constitute a “disability,” and made it easier for individuals to establish coverage under the “regarded as” part of the definition of “disability.” According to the EEOC, “[u]nder the ADAAA, the focus for establishing coverage is on how a person has been treated because of a . . . mental impairment (that is not transitory and minor), rather than on what an employer may have believed about the nature of the person’s impairment.”
Among the new mental disorders now recognized in the DSM-5 are:
- Social (Pragmatic) Communication Disorder, a “persistent difficulty with verbal and nonverbal communication that cannot be explained by low cognitive ability,” is marked by “difficulty in the acquisition and use of spoken and written language as well as problems with inappropriate responses in conversation,” and can limit “occupational performance.”
- Mild Neurocognitive Disorder “goes beyond normal issues of aging” and “describes a level of cognitive decline that requires compensatory strategies and accommodations to help maintain independence and perform activities of daily living.”
Additionally, the DSM-5 has flagged a potentially-new disorder for further psychiatric study, which could find its way into future DSM editions: Internet Use Disorder. Yes, that’s right, Internet Use Disorder. More commonly known as “Internet Addiction Disorder,” this problematic or pathological internet use could be linked to currently-recognized disorders such as depression, and may result in decreased work performance.
So is it time for employers to panic? Not necessarily. According to employment-law blog Law360, Chris Kuczynski, acting associate legal counsel for the EEOC, has stated that he expects most disability-discrimination charges to continue to involve previously-recognized conditions. And the fact is, just because a disorder is recognized in the DSM does not mean it automatically meets the definition of “disability” under the ADA, even under the ADAAA-broadened definition.
But that won’t stop resourceful attorneys from trying out new disability theories based on the DSM-5—inevitably, an employee’s inappropriate workplace comment will be attributed to a newly-diagnosed “social communication disorder.” It certainly will give some employers pause to consider the potential risk for an administrative charge before proceeding. It also makes it that much more important for employers to communicate clear and comprehensive job duties and performance expectations.
Only time will tell whether “Employer DSM-5 Anxiety” finds its way into the DSM-6.