Gross v. FBL, Supreme Court Age Discrimination Decision

Specifically, the U.S. Supreme Court held that “a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the ‘but-for’ cause of the challenged adverse employment action.”  In addition, “[t]he burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision.”  These companion holdings are likely to make it more difficult for plaintiffs to prove age discrimination claims under the ADEA. 

I.  Background Facts

In 2003, Jake Gross, a 54-year-old, long-term employee of FBL Financial Group, Inc. (“FBL”), was reassigned from the position of claims administration director to claims project coordinator.  As a result of his reassignment, many of Gross’s job responsibilities were assigned to a newly created position filled by another employee, Lisa Kneeskern.  Kneeskern was in her late forties at the time of reassignment and previously had been supervised by Gross.  Although Gross’s compensation was not reduced, he considered his position change and the corresponding diminution in his responsibilities, to be a demotion. 

In 2004, Gross filed suit in the Southern District of Iowa alleging that his reassignment was based, at least in part, on his age, in violation of the ADEA.  FBL claimed in its defense that the decision to reassign Gross was part of a corporate restructuring and his new position was better suited to his skills. 

The District Court’s jury instructions stated, in part, that a verdict must be returned in Gross’s favor if he proved by a preponderance of the evidence that FBL demoted him and his age was a “motivating factor.”  In addition, the jury instructions stated that Gross’s age was a “motivating factor” if it played a part or role in the decision to demote him.  The trial court further instructed the jury that if they found FBL proved by a preponderance of the evidence that it would have demoted Gross regardless of his age, a verdict must be returned in FBL’s favor.  The jury returned a verdict in favor of  Gross.  Despite the fact that only a modest sum was awarded (less than $50,000), FBL appealed. 

On appeal, the Eighth Circuit reversed and remanded, holding that the jury had been incorrectly instructed under the burden-shifting standard established in the Title VII case Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).  (Price Waterhouse, incidentally, is a complicated plurality decision, with a somewhat confusing alignment among the Justices who decided the case, and varying analyses in support of the decision.)  Under the Eighth Circuit’s interpretation of Price Waterhouse, the burden of persuasion shifts to the defendant only upon the plaintiff’s demonstration, by direct evidence, that an illegitimate factor played a substantial role in an adverse employment decision.  Because Gross conceded that he did not present direct evidence of discrimination – evidence that shows a specific link between the alleged discriminatory animus and the challenged decision – the intermediate appellate court held that a mixed-motive instruction was not warranted under the Price Waterhouse rule and the burden of persuasion should have remained with the plaintiff.   

The Supreme Court granted certiorari to decide whether a plaintiff must present direct evidence of discrimination to obtain a mixed-motive instruction in a non-Title VII discrimination case. 

II.  The Supreme Court’s Analysis

In the opinion authored by Justice Thomas, the Court never reached the question on which review was granted, instead focusing on whether the burden of persuasion ever shifts to the defendant in a mixed-motive discrimination claim brought under the ADEA.  (The four dissenting Justices castigated their colleagues for deciding an issue on which certiorari had not been granted, and which had not been briefed by the parties.) 

The Court’s majority held that the burden of persuasion does not shift to the defendant and a plaintiff bringing an ADEA claim must show by a preponderance of the evidence that age was the “but for” cause of the employer’s adverse employment decision.  In addition, the Court found that an employer need not show it would have made the same decision regardless of age, even if the employee produces some evidence that age may have been a contributing factor in the decision.  Thus, the burden-shifting framework applicable in mixed-motive Title VII cases does not apply to age discrimination claims under the ADEA. 

In its decision, the Court explicitly rejected the notion that a plaintiff may establish discrimination by showing that age was simply a “motivating factor.”  Of particular significance to the Court was that, unlike Title VII, the ADEA has not been amended to include “motivating factor” language.  Under the text of the ADEA, it is unlawful for an employer to discriminate against an individual “because of” age.  As interpreted by the Court, “because of” age means that age was the “reason” the employer decided to act.  Therefore, “[t]o establish a disparate-treatment claim under the plain language of the ADEA…a plaintiff must prove that age was the ‘but-for’ cause of the employer’s adverse decision.”

In addition, the Court held that “the plaintiff retains the burden of persuasion” in ADEA cases.  As a result, henceforth ADEA cases will not be governed by the long-followed Price Waterhouse burden-shifting framework.  Rather, the burden of persuasion necessary to establish employer liability is the same in mixed-motive cases as in any other ADEA disparate-treatment action – a plaintiff must prove, by a preponderance of the evidence, that age was the “but for” cause of the challenged employer decision. 

III.  Dissent

A fervent dissent was authored by Justice Stevens and joined by Justices Souter, Ginsburg and Breyer.  In his dissent, Justice Stevens stated that he disagreed “not only with the Court’s interpretation of the statute [ADEA], but also with its decision to engage in unnecessary lawmaking.”  The dissent argued that Price Waterhouse is controlling and it was inappropriate on the part of the Court to “adopt an interpretation of the causation requirement in the ADEA that differs from the established reading of Title VII.”

Unlike the majority, the dissent did not view Congress’ decision to amend Title VII, and not the ADEA, as a rejection of the “motivating factor” test in ADEA cases.  The dissenters also took strong exception to other aspects of the majority opinion that they felt were analytically unsound, indifferent to precedent, and impractical.   

IV.  Case Lessons and Practical Considerations

The Gross decision is instructive on many levels.

First, it illustrates the sharp divisions in the nation’s highest court.  Although the well-written majority and dissenting opinions were not entirely uncivil toward the opposing Justices, they highlight the intense divide on the Court with regard to many employment law issues.  This division likely will be unaltered if Judge Sotomayor is confirmed as the next Justice, replacing Judge Souter.  If President Obama has the opportunity to fill any vacancies from the group of Justices constituting the majority, however, the balance of power on employment cases before the high Court could shift.  

Second, the Gross decision will make it more difficult for plaintiffs to prove a case of age discrimination under the ADEA.  ADEA plaintiffs now need to meet a more exacting “but for” test to prove their claims, and they have the burden of persuasion in all cases, including mixed motive cases.  Some plaintiffs’ counsel may recommend that their clients forego pursuit of federal age claims, relying instead on state court statutory counterparts with a less demanding legal liability standard. 

Third, as a corollary to the preceding point, the decision only applies to the ADEA.  The case does not dictate how state courts will interpret their parallel state law anti-discrimination statutes, some of which track the ADEA’s language and some of which do not.  Although many state courts interpreting state statutes look to the federal courts’ analyses of the federal anti-discrimination statutes for guidance, the federal judicary’s opinions are only “guidance,” nothing more.    

Fourth, the decision invites a legislative response.  Congress previously acted when it felt the courts were imposing too rigid a standard with regard to Title VII.  Indeed, the majority opinion seized on the Congressional modification of Title VII, without a parallel change to the ADEA, as one of the rationales for why a different legal standard was justified.  It will be interesting to see whether Congress elects to reconcile the anti-discrimination statutes by now modifying the ADEA.

Fifth, as the dissent pointed out, the case leaves ambiguous the issue of what legal standards will apply and which party will have the burden of persuasion in situations where discrimination claims are brought under both Title VII and the ADEA.  This context could get rather confusing.  Imagine for example, a judge instructing a jury that with respect to the gender discrimination claim, the legal standard is “motivating factor” and the defendant has the burden of persuasion that it would have taken the adverse action regardless of the plaintiff’s gender, while with regard to the age discrimination claim, the standard is “but for” the plaintiff’s age and the plaintiff has the burden of persuasion.  The jury may have a tough task trying to sort through these conflicting standards (another factor that may contribute to legislative intervention).

Sixth, the decision does not provide the lower courts much guidance with regard to mixed motive age discrimination cases.  While it is now clear that the plaintiff carries the burden of persuasion and that the “but for” test applies to the evaluation of the defendant’s conduct, the mixed motive context remains ambiguous.  For example, if a plaintiff in the protected age group was underperforming, and a company terminated him or her because of the combination of age and sub-par performance (a mixed motive justification for the discharge), has the employee met the “but for” test?  Age alone would not have resulted in discharge and the performance deficiencies alone would not have resulted in discharge.  If the two are combined, has the “but for” test been satisfied? 

Seventh, the majority opinion expressed considerable skepticism about the shifting burden of persuasion in the Title VII mixed motive context, skepticism exacerbated by plurality opinion of the Price Waterhouse case.  Specifically, the Court stated, “[w]hatever the deficiencies of Price Waterhouse in retrospect, it has become evident in the years since that case was decided that its burden-shifting framework is difficult to apply.”  And, “even if Price Waterhouse was doctrinally sound, the problems associated with its application have eliminated any perceivable benefit to extending its framework to ADEA claims.”  Given these observations, there is some doubt that the Title VII mixed motive analysis would have continuing vitality if the issue reached this Court.

Trivia Game

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Roy's Analysis of Quirky Question # 99, Retaliation by Discharging a Charging Party's Fiancee

Retaliation, The Crawford Decision

Background Facts

The factual context of Crawford is relatively simple.  In 2002, the Metropolitan Government of Nashville (“Nashville”) began exploring rumors of sexual harassment by none other than the Metropolitan School District’s Employee Relations Director, Gene Hughes.  As part of that investigation, a human resources officer for Nashville interviewed Vicki Crawford (“Crawford”) and others.  The HR officer asked Crawford whether she had witnessed any “inappropriate behavior” involving Hughes.  Crawford had witnessed such behavior, some of which was directed at her, and she reported on her experiences.  Crawford described various incidents where Hughes had grabbed his crotch and/or made inappropriate comments to her.  Two other employees also reported harassing behaviors by Hughes.

At the conclusion of Nashville’s investigation, Nashville fired Crawford, ostensibly for “embezzlement.”  Nashville also fired the two other individuals who provided information regarding Hughes’ conduct.  Nashville did not take any action against Hughes. 

Crawford filed a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”), complaining of retaliation.  She then filed suit in federal court.  Crawford accused Nashville of violating both Title VII’s “opposition clause” and “participation clause.”  As described by the high court, Title VII’s anti-retaliation provision makes it “an unlawful employment practice for an employer to discriminate against any of his employees . . . [1] because he has opposed any practice made an unlawful employment practice by this subchapter, or [2] because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.”  42 U.S.C. § 2000e-3(a). 

The federal District Court granted summary judgment for Nashville.  The trial court found that opposition clause activity must be linked to the employee’s own complaint, and that the participation clause activity must be linked to a pending EEOC charge.  The Sixth Circuit affirmed the dismissal of Crawford’s lawsuit on essentially the same grounds.  The Supreme Court accepted review of the case to resolve the conflict among the federal circuit courts on these issues. 

The Supreme Court’s Analysis

The Supreme Court’s analysis focused exclusively on the arguments relating to the opposition clause issues.  Because the high court found for Crawford with respect to this clause, it concluded that it was not necessary for it to address Crawford’s arguments under the participation clause. 

The Court began its analysis by noting that because the word “oppose” is not defined in the statute, it should be given its ordinary meaning.  Relying on Webster’s dictionary, the Court cited to the definition, “to resist or antagonize, . . ; to contend against; to confront; resist; withstand.”  The Supreme Court then observed that “[t]he statement Crawford says she gave to [the HR officer] is thus covered by the opposition clause, as an ostensibly disapproving account of sexually obnoxious behavior toward her by a fellow employee, an answer she says antagonized her employer to the point of sacking her on a false pretense.” 

The high court also looked to the EEOC’s Compliance Manual for guidance, as augmented by the EEOC’s amicus brief in support of Crawford.  “‘When an employee communicates to her employer a belief that the employer has engaged in . . . a form of employment discrimination, that communication’ virtually always ‘constitutes the employee’s opposition to that activity.’”  (Citations omitted.) 

The Supreme Court’s analysis also was grounded in common sense, seeking to avoid anomalous results for virtually identical behavior.  “There is, then, no reason to doubt that a person can ‘oppose’ by responding to someone else’s question just as surely as by provoking the discussion, and nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks her a question.” 

Finally, the nation’s high court addressed Nashville’s argument, also supported by amici memoranda, that a rule supporting Crawford’s interpretation of the opposition clause would deter companies from conducting appropriate investigations into wrongful workplace conduct because of the fear that such investigations could lead to potential exposure.  The Court found this argument “unconvincing,” inasmuch as it disregarded the clear message of the Faragher/Ellerth holdings and the affirmative defense those companion cases established for employers.  As the Court stressed, “Employers are thus subject to a strong inducement to ferret out and put a stop to any discriminatory activity in their operations as a way to break the circuit of imputed liability.”  The Court also expressed concerns about the practical consequences of leaving Crawford and similarly situated individuals without a remedy.  In particular, the Court was concerned about the potential chilling effect that allowing retaliation against these individuals would likely create.

Practical Lessons

There are a number of practical lessons that can be derived from the Crawford decision.

First, employers need to understand the Crawford holding – an employee who describes employment practices prohibited by Title VII in response to a company investigation or inquiry, has engaged in conduct protected by the opposition clause of Title VII’s anti-retaliation provision.

Second, as a result of the bullet-point above, companies should move cautiously and thoughtfully when taking adverse action (e.g., discharge, suspension, reduction in compensation, transfer, diminution in responsibility, etc.) toward an employee who has engaged in conduct within the scope of the statute. 

Third, as in other types of retaliation cases, the closer the temporal proximity between the protected conduct and the adverse action, the easier it will be for the employee to argue that the two events are not just coincidental, but causally related.

Fourth, carefully examine the underlying motivations of a decision-maker who wishes to discharge someone who has just opposed a prohibited employment practice.  Generally, the accused should be isolated from any decision involving adverse action against the accuser.  (In the Crawford case, it is perplexing that Nashville fired the three women who, in response to the City’s inquiries, provided information that their supervisor had engaged in harassing conduct.  The opinion does not reveal whether their supervisor was involved in the firing decision, but if so, that too would be a problematic fact.) 

Fifth, if an employer finds it necessary to take adverse action against someone who has opposed an employment practice proscribed by Title VII, document the decision.  Recognize that it may be years before the justification is presented to a judge or jury.  Ensure that the company is able to articulate clearly and persuasively why it acted as it did.  (In Crawford, for example, Nashville initiated its investigation into the harassment rumor in 2002.  According to the opinion, Crawford was discharged for embezzlement.  Since the case reached the Supreme Court in the context of the appeal of a summary judgment determination on the scope of the statute, no facts are provided regarding the wrongful conduct in which Crawford allegedly engaged.  Now, nearly seven years later, it will be incumbent upon Nashville to explain the basis for its decision to fire Crawford.  If Nashville did not carefully document its decision, this will be a near impossible task.) 

Sixth, although the Supreme Court did not reach the issues surrounding the participation clause, I recommend that companies give that provision an expansive interpretation as well.  The statutory language is broad and, as the Crawford decision illustrates, courts are protective of individuals who even arguably engage in protected conduct.  All of the bullet points set forth above should be considered when determining how to treat an individual who has “participated in any manner in an investigation, proceeding, or hearing,” regardless of the nature of the employee’s involvement. 

Seventh, as the Supreme Court noted, it was deferential to the principles set forth in the EEOC’s Compliance Manual.  This suggests that employers too, in particular the Human Resources or Employee Relations Departments, should familiarize themselves with this Compliance Manual.

Finally, the high court reiterated in Crawford the importance of the Faragher/Ellerth affirmative defense.  Companies should ensure that they have established appropriate policies and effectively implement those policies to ensure they can take advantage of the important defense provided by Faragher/Ellerth.

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Guest Article, Forensic Psychiatric Evaluations of Emotional Distress Claims, Part 2

EVALUATING EMOTIONAL DISTRESS—Part II— A “False Claim”

Case # 2 – False Claim

Background Facts

Bitsy was a 23 year-old single Texas woman who worked in sales for two years for the Southwest division of an advertising agency.  She held this job since graduating from a local college, where she had earned a degree in business.  She reported to the regional manager, Tom, and worked hard at her job.  She was an attractive, outgoing, flirtatious woman, who joked around and socialized outside of work with the largely male sales force and her boss.  At her first annual retreat of the national sales force, alcohol flowed freely as a “Number One in Sales Award” was presented for the best national performer.  Although her sales numbers were high, she did not win the award, much to her disappointment. On her performance review, she was rated “meets expectations” in most categories and “above expectations” in some.  In the section entitled, “Your Personal Goals in the Company,” she usually wrote, “To win the “Number One Award” and be National VP of Sales, and I think I am good enough to do it!” 

At her second annual retreat, Bitsy’s boss invited the division team for lunch and early cocktails in the hotel bar.  Bitsy and six others (five men, one woman) attended.  They talked about work and their families.  Other than Bitsy, everyone, including Tom, showed pictures of their spouses and children.  Bitsy talked about her current boyfriend, who was “rich and cute.”  After several rounds of Margaritas, the level of banter, including sexual innuendo, increased.  The other woman excused herself, stating that she wanted to go shopping and inviting Bitsy along.  Bitsy declined, preferring to remain “with the boys.”  They continued to drink and banter until about 6 PM, when all of the men except for the manager, departed for the convention meeting, which was starting.  Alone, Bitsy and Tom discussed her goals with the Company and her frustration that she had not won the achievement Award either year.  She also said that in addition to a higher raise, she felt that she was entitled to a promotion to Sales Manager for Texas.  Tom suggested they discuss her thoughts later in the evening after the meeting was over. They sat together at dinner, in which more alcohol flowed.  

After the meeting, Tom suggested that they talk in his suite.  Both were highly intoxicated by that time, Bitsy having consumed five Margaritas and four glasses of wine.  She again discussed her expectations, while Tom listened but said nothing.  She became angry by his lack of response and began to cry.  He put his arm around her, and she cried into his chest.  Tom told her not to worry, that he would “take care of her,” and that “all would work out just fine, although she was “not yet ready” for the promotion she desired.  However, he said that he was confident that she would someday be given the job.  All she had to do was to “keep doing what she was doing,” i.e., working hard.  Reassured, Bitsy told him how relieved she was to work for “such a big, strong, handsome man who will always protect me.”  She asked if he would “always take care of me,” to which he “promised he would.”  They acknowledged a mutual attraction, and Tom brushed her breast, as he dried her tears with a tissue.  After considerable “petting,” they disrobed and began to have sex.  Bitsy later testified that over the course of the night, they engaged intercourse four times and mutual sex twice, and that during the proceedings, Tom had “promised” to approve her promotion when they returned, if she would “keep doing what she was doing,” i.e., performing sex. 

The next day, they returned to work.  Bitsy went to Tom’s office and asked when he would finalize her promotion.  A shocked Tom asked to what she was referring.  Bitsy described the previous evening’s events and his “promise” of a promotion in return for sex.  Tom said that there was no such promise and that, in fact, he had told her that she was not yet ready for the promotion.  The sex, which “both of us enjoyed, had nothing to do with anything.” 

Enraged, Bitsy went to the V.P. of Sales, broke down in tears, and told him about what had happened and the reported promises made.  He called in HR, who launched an investigation after interviewing Bitsy.  As per their usual protocol, HR immediately referred her to an Employee Assistance Program (EAP) counselor, who recommended a medical leave of absence.    

Tom denied issuing promises but acknowledged that there had been consensual sex at the meeting.  He was issued a written warning and given mandatory sexual harassment training.  Bitsy was informed about HR’s determination that although there was a difference of opinion about the sexual activity being consensual and no determination could be made about that, Tom had been given a written warning, additional training, and reminder about the policy against retaliation.  Bitsy asked HR when she would be getting her promotion, but the V.P. of Sales affirmed Tom’s judgment that she was not qualified for such a promotion.  Bitsy sought legal counsel and issued a Complaint of sexual assault, discrimination, quid pro quo sexual harassment, and retaliation.  Her Complaint stated that she had suffered “extreme emotional distress and psychological injury” from the reported events and retaliation.  Her EAP counselor diagnosed PTSD and recommended disability.  They continued counseling on a weekly basis. 

After two years out of the workplace, Bitsy’s attorney stated that because of her ongoing psychological distress from the “sexual assault, harassment, and discrimination,” she was still too “traumatized” to return to any form of work, and her ability to trust men was damaged.  She could not work with men, because such would result in “reminders of the sexual assault and discrimination.”  An additional legal claim of permanent disability due to psychological injury was added.  Her EAP supported her legal claim, noting that in sessions, any discussions of what had happened or the prospect of work resulted in her client’s collapsing into tears and shaking with anxiety and panic.  She said that her client had reported “freaking out” when she saw “big men who looked like Tom and was very frightened that any big man might assault her.”  She described problems sleeping, diminished appetite and weight, low energy, and loss of motivation and self esteem.  The EAP said that she was working hard to keep her client “stable and functional” but was having a hard time because of the stress of litigation.  Bitsy saw her General Practitioner (GP) and complained of headaches, nausea, stomach and throat spasms, chest pain, and back pain whenever she thought of what had happened with Tom.  The GP prescribed Prozac, which Bitsy took briefly but discontinued because of weight gain.  

The Plaintiff’s Medical Expert 

Her attorney retained an expert, whose assistant reviewed only the legal Complaint, interviewed Bitsy for two hours, and administered psychological inventories and tests, including the MMPI-2 and other tests designed for individuals who had experienced a PTSD Criterion A stressor (Criterion A of the DSM-IV diagnostic criteria for PTSD is defined as witnessing, experiencing, or confronting an “event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others.”) The expert also administered other inventories designed to measure a claimant’s “emotional reactions to the harasser.” These non-standardized inventories, which were described in the social science literature, were found to yield highly significant results consistent with PTSD, extreme distress, and sexual trauma. The expert testified Bitsy had PTSD and was functionally disabled, and that her disability was 100% caused by the “sexual assault, harassment, and discrimination.”  No Axis II diagnosis was made. The expert further opined that Bitsy exhibited all of the clinical signs seen in women who suffered psychological damage because of sexual harassment by a male superior who had used the power of his position to “get her alone, intimidate, and sexually assault her.”  The expert further stated that it was common for women, who were “trapped in such a situation,” to be “unable to say no” because of their fear of consequences, including loss of their jobs if they declined the sexual advances. 

The Defendant’s Medical Expert 

The expert retained by the defense conducted psychological testing, which included four general standardized tests: MMPI-2, MCMI-III (a test for Axis II), Rorschach (administered and scored according to the scientifically-validated Comprehensive System of John Exner), and the Structured Interview of Reported Symptoms (a test for feigning or malingering of psychological symptoms).   

A comprehensive psychiatric interview obtained the following history.  She had been a cheerleader and Prom Queen in high school. In the college, she had joined a sorority and began a pattern of heavy alcohol usage at parties and football games.  Occasionally she enjoyed marijuana and had used cocaine while in college.  She described a pattern of engaging in many sexual relationships but discontinuing them after a brief time when they failed to pay sufficient attention to her “needs.” She added that she was looking for the right man “to take care of me.”  

During the two years leave of absence, Bitsy had become involved romantically with several men, moved in with them, and traveled with them to different foreign countries.  She worked out every day and pursued a number of hobbies and interests, including gardening, boating, and roller blading.  She socialized with her social network of female and male friends and continued her former pattern of heavy daily alcohol usage. She had made no efforts to get another job, instead hoping to marry her current boyfriend, who was a successful investment banker, who “took care of” her and gave her “whatever [she] wanted.”  When discussing the reported events leading to her legal complaint, she exhibited rage, cried, and said that she had deserved the promotion and wanted Tom to “pay” for denying it to her, particularly after he had “had his fun.”  She expressed further rage toward the company for “protecting him not me” and vowed to “make a difference in how big companies treat women.”  She added that her goal was “justice” and that “no amount of money in the world could make up for what they did to me.”  She was proud of the extensive media coverage and added that “CNN wants to do a segment on my case.”  She said that thinking about the situation had ruined her career, disrupted her life, and left her with severe physical symptoms.  She felt “too violated” to “think about work.”   

Bitsy’s MMPI-2 showed elevations on the L and F scales, suggesting an unrealistic view of herself as highly virtuous and clinical scale elevations more exaggerated than those seen in psychiatric inpatients.  She produced clinical scale elevations on Scales 1 and 3 (Conversion V pattern) and 4 (Psychopathic Deviate), a pattern often seen in histrionic or Cluster B personalities, who translate psychological conflict into physical symptoms. A substance abuse problem was suggested by her responses.  The clinical scales measuring depression and anxiety were not elevated.  The result was consistent with somatization in a histrionic/Cluster B individual with limited insight and tendencies to act out, especially involving alcohol.  The MCMI-III was consistent with a Narcissistic/ Histrionic personality disorder.   

The Rorschach, owing to the work of John Exner, Ph.D., is now a scientific test widely accepted by the Courts and psychological community.  Unlike other instruments, it is difficult to malinger and is important, as it is arguably the best psychological test for reality testing and perceptual distortion – both problems of a developmental, rather than situational, basis. Along with variables measuring enduring personality characteristics, it also contains variables related to situational stress and affects that are temporary, rather than enduring. The results of the Rorschach should be examined for consistency with behavior as described in the history. 

Bitsy’s Rorschach revealed the following well-entrenched, enduring personality problems, which are of a developmental basis: This is an unconventional, character-disordered woman with considerable hostility and difficulties maintaining emotional control, particularly when stressed.  She has an unusually high Aspirational Ratio, suggesting that her ambitions exceed her emotional resources to cope.  Repeated disappointments are likely when her aspirations fail.  She tends to scan situations hastily and to make decisions based on limited information.  She indicated some additional situational stress that is exceeding her capacities for control, resulting in possible lapses and acting out especially when she is angry.  Problems with distortion of reality are evident, notably over issues evoking her anger. Such distortion is usually associated with impulsive decisions based on poor judgment.   Her understanding of others is likely to be poor, and her relationships are more fantasy than reality based.  She does not anticipate cooperative relations with others.   

Examining the Rorschach variables related to emotions often seen in individuals with PTSD, she is currently constraining negative affect (anger) but is not exhibiting evidence of painful introspection, guilt, depression, hypervigilance, or self-recrimination.  There is no evidence of stress from intrusive ideation often seen in individuals with PTSD.  The Rorschach results were found to be consistent with Bitsy’s behavior as described in her history. 

The Mental Status Examination was negative with the exception of complaints of litigation-related insomnia and somatic symptoms (nausea, stomach upset, headaches, etc).  Her symptoms did not interfere with her ability to travel, do hobbies, and engage in social activities.    

The defense expert diagnosed an Adjustment Disorder, Unspecified, with Somatoform symptoms, Episodic Alcohol Abuse, and an Axis II Narcissistic and Histrionic Personality Disorder. The Adjustment Disorder was caused by the stress of litigation.  The alcohol and personality problems represented pre-existing problems that were unchanged by the disputed events and were ongoing.   Her complaints of reported disability due to severe psychological injury were inconsistent with her own report of good functioning in all areas of life and absence of symptoms except as evoked by the stress of litigation.   The case settled out of court. 

Lessons Learned

Among the many issues raised by his case, the following will be highlighted:  

1. Alcohol usually results in significant impairment in judgment, both by employees and their managers.  When alcohol is involved, it is difficult later to determine the truth of what occurred when workers are together under the influence in ambiguous social settings. 

2. Those in positions of authority risk their jobs as well as legal action when they engage in sexual activity with subordinates.  This case illustrates such a high risk situation, but risk is present, even if consenting adults advise HR and keep their relationship professional at work.  The repercussions on the workplace, which is a highly interpersonally connected and emotionally sensitive place, are usually significant, since traditional roles and the expectations surrounding those roles change when a superior is involved with a subordinate.   

3. Companies are well-advised to have training about boundaries between superiors and subordinates and the potential hazards involved in socializing with coworkers and using alcohol in settings that blend work and social objectives.  

4. When significant problems are discovered, a psychiatric workplace consultation may help to defuse the situation and make referrals if further mental health treatment is indicated. Involvement with such a neutral third party professional may be a useful step for HR to take prior to referral to EAP counselors.  Such counselors can be useful in treating employees but usually lack the necessary training, education, and experience, to diagnose significant clinical and personality disorders.  Further, if asked to testify as expert for their client/  plaintiff, they may find themselves in an ethical bind, not only because they may be called upon to testify against the company that made the referral, but also because of the risk of conflict of interest posed by assuming dual roles.  

5. If there is a significant claim for mental distress and/or disability, it is useful for attorneys for both plaintiff and defense to obtain an Independent Medical (Psychiatric) Examination (IME).  Such an examination is most effective when it involves three parts: (A) Review of legal, medical, mental health, work, and other pertinent records that permit a longitudinal view of the claimant’s functioning in a variety of settings; (B) Psychological testing using standardized instruments that measure general psychological symptoms, personality, and possibly malingering.  This is preferable to tests designed to validate restricted diagnoses that may produce false positives and subjective instruments that feature close-ended questions that risk evoking “yea-saying,” i.e. affirmative responses. (C) Comprehensive psychiatric clinical interview and Mental Status Examination. Following this procedure, opinions obtained to a reasonable degree of medical certainty, about diagnosis and causality can be offered and properly defended in deposition or trial. Consideration of issues of secondary gain and malingering are part of the IME.  

6. The expert should not simultaneously function as the claimant’s treater due to the high risk of conflict of interest.   

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