The American Psychiatric Association has proposed dramatic changes to the Diagnostic and Statistical Manual of Mental Disorders ("DSM"). In a recent Los Angeles Times opinion piece (LA Times), the chairman of the task force that created the DSM-IV warned that, by "recklessly" setting too loose criteria for diagnosing mental disorders, the new proposed DSM-V will "extend the reach of psychiatry dramatically deeper into the ever-shrinking domain of the normal." Normal, but undesirable, behavior will qualify as "mental disorders." The overly expansive DSM-V, combined with concurrent EEOC initiatives and ongoing judicial deference to the EEOC and medical community, may create an ADA litigation perfect storm for employers.

DSM Revisions

The proposed DSM-V will, among other things, create a new category of behavioral addictions, including "gambling" addiction. Internet addiction will also be added to the appendix and considered for future addition. Notably, a diagnosis of gambling (and presumably internet) addiction may be based solely on a person's behavior (e.g., gambles frequently, lies to an employer about gambling, has lost a job due to gambling). Thus, an employee's own choice to spend too much time at work internet gambling -- a behavior that currently would be a legitimate basis for employee discipline -- may soon be grounds for diagnosing the employee with a disability (that may need to be accommodated). Among the DSM-V's other ambiguous categories of "mental disorder" are "binge eating disorder," "minor neurocognitive disorder," and "mixed anxiety depression."

ADAAA Regulations

A priority for the EEOC next year is enforcement of the 2008 ADA Amendments Act ("ADAAA"), according to the agency's recently published Fiscal Year 2011 Congressional Budget Justification. The EEOC anticipates that in 2011 alone, more than 9,000 additional ADA employment charges will be filed. The ADAAA regulations (GT Alert) include an expansive definition of "disability" and provide a framework under which it will be far easier to establish disability discrimination, especially if the condition is defined in the then current DSM.

Judicial Deference

The U.S. Supreme Court has shown significant deference to both the EEOC and the medical community under the ADA. In 2002, in Chevron U.S.A. Inc. v. Echazabal, the Court deferred to an EEOC regulation permitting employers to implement "qualification standards" that disqualify disabled applicants from employment where the job creates a "specifically demonstrated" risk to the applicant's own health or safety. The Court also deferred to doctors. Addressing the question of who should determine how "specifically demonstrated" a risk must be to ensure that a hiring decision is based on the applicant's actual health or safety and not upon "untested and pretextual stereotypes," at least one Justice opined: "let the doctors decide." (pdf).

Conclusion

The interplay between the EEOC's broad ADAAA regulations, the revised DSM-V, and possible judicial deference to doctors and EEOC regulations could create a litigation perfect storm in which the number of employees who, although not suffering from obvious disabilities (but, rather, are simply engaging in undesirable, unproductive behaviors), may claim coverage under the ADA or state analogues. As employment lawyers, we have often defended and won disability cases based on the maxim "discipline the behavior, not the cause." The point of that defense has always been that there is no public policy favoring negative and nonproductive behavior in the workplace, regardless of its causes. Whether claims predicated on the revised DSM become simply a headache or a litigation perfect storm will depend to a large extent on whether courts think the DSM's expansive new definitions are entitled to deference. Employers faced with such claims may well want to keep that old maxim in mind.