Liza H. Gold, MD

Psychiatric assessment of emotional injury and emotional damages in sexual harassment litigation:

Ms. Rogers was a 28 year old woman who had worked in a government office for fourteen months as a clerical assistant. She had filed an EEOC claim stating that she had developed PTSD as a result of sexual harassment by her supervisor, Mr. Foster. Ms. Rogers claimed that Mr. Foster had been “eying” her at work for some months and that “everyone in the office” knew that he was “after her.” Ms. Rogers said that Mr. Foster used a new project assignment as an excuse to spend time with her. Mr. Foster insisted that she work extra hours then and go out to dinner with him. She was afraid to refuse these requests because Mr. Foster was her supervisor and might have her fired, although “he had never said so in so many words.”

Ms. Rogers claimed Mr. Foster pressured her to have sex with him when they were alone together. She stated Mr. Foster's behavior went on for “weeks” and that she was very distressed by his advances. The last time they were alone together was in a restaurant after working extra hours on the project. Ms. Rogers reported that on this occasion, Mr. Foster had attempted to “grab” her breasts. Ms. Rogers stated that this last event resulted in so much distress and fear that she had developed PTSD. After this incident, she felt she had no choice but to quit her job. She stated that she was aware that she could have utilized the sexual harassment policy to report Mr. Foster's behavior, but feared retaliation if she filed an internal complaint. She filed the EEOC complaint within a week of her abrupt resignation.

A psychiatrist retained by Ms. Rogers' attorney evaluated Ms. Rogers approximately three weeks after she left her job. He made a diagnosis of “PTSD as a result of sexual harassment.” His opinions were based solely on Ms. Rogers' reports. He found her to be depressed and tearful, and noted that she had “ruminations regarding the harassment” and “flashbacks” of Mr. Foster's attempts to touch her breasts. He noted that Ms. Rogers reported multiple somatic complaints, such as headache and backache, and suicidal thoughts, all related to the stress of her harassment. He stated that she “could not work because of the severity of her symptoms.” He recommended treatment with medication and psychotherapy.

Mr. Foster was astounded when he heard that he was the subject of Ms. Rogers' EEOC complaint for sexual harassment. He stated that he had told all the office staff that he needed some additional administrative support to complete a new project. Ms. Rogers volunteered, even though he had said it might mean working overtime and after hours. Mr. Foster offered to buy Ms. Rogers dinner at a local restaurant as a sign of appreciation on the occasions when they had to work later hours. He stated that this occurred a total of four or five times. Mr. Foster was then unexpectedly transferred to a different project at another office location nearby after only four weeks on the project. Ms. Rogers was assigned another supervisor.

Mr. Foster reported that Ms. Rogers contacted him the week after his transfer and suggested that they continue to meet after work. She said that “things had been going so well between them it would be a shame to stop seeing each other just because he had been transferred.” Mr. Foster was surprised by her call. He told Ms. Rogers that he had enjoyed working with her but was married and not available for any type of social relationship.

Mr. Foster said that Ms. Rogers became very angry and accused him of leading her on. He said he was sorry if he had inadvertently given her this impression. Mr. Foster reported that Ms. Rogers then began ranting that he was just like all the other men who “used” her and then “dumped” her. Mr. Foster had no idea what prompted either Ms. Rogers' suggestion that they “keep seeing each other” or her rage. He felt he had never done anything that might indicate that he was attracted to her and pursuing a social or sexual relationship. Mr. Foster found out later that Ms. Rogers had quit her job the day after this conversation.

A psychiatrist retained by the defense evaluated Ms. Rogers' about one year after she left her job. Ms. Rogers' was working in another clerical position, which she had obtained six weeks after filing her EEOC complaint, and three weeks after her first psychiatric evaluation. She had not sought or received psychiatric treatment during the preceding year. During her interview, Ms. Rogers' insisted that she still had PTSD, although she could not report any specific symptoms. She repeatedly returned to descriptions of how she had been victimized by Mr. Foster, regardless of the question asked. She was overtly hostile towards the examiner when asked any questions that could not be answered by a recitation of the events of her victimization.

Additional sources of information

Coworkers described Ms. Rogers as a “flirt.” They observed that she tended to wear revealing clothing and that she was friendlier toward male coworkers and supervisors. They also found her behavior to be inappropriate at times. For example, on Monday mornings, she would discuss her weekend activities, which typically included how intoxicated she had become and reports about sexual encounters. They also reported that Mr. Foster was a friendly and respected supervisor. They stated that they had not noticed that he had any particular interest in Ms. Rogers.

Coworkers confirmed that Mr. Foster had asked all the administrative staff about their availability and that Ms. Rogers had volunteered to assist him on the project. Ms. Rogers had appeared unusually happy during the four weeks working with Mr. Foster and told coworkers that he would not be able to complete the project without her help. Coworkers were surprised by Ms. Rogers' allegations of sexual harassment against Mr. Foster. He had never been observed or reported to be inappropriate with any female employees and Ms. Rogers had not complained to coworkers about Mr. Foster's behavior. They were also surprised by Ms. Rogers' abrupt and unannounced withdrawal from the workplace.

Ms. Rogers' two performance reviews at the government clerical job, both completed by a manager other than Mr. Foster, indicated that she had difficulty with supervision. When corrected or reprimanded after making an error, she would become angry and blame someone else. Employment documents from other jobs revealed that a previous employer had referred Ms. Rogers to EAP services due to her emotional reactivity. These documents also demonstrated that Ms. Rogers had four clerical jobs in the past six years. She had left each after alleging that she had been treated unfairly. Some of these allegations involved accusations of sexual harassment, although she had never before filed an EEOC complaint.

Personal and medical documents revealed that Ms. Rogers had been divorced twice. She had been arrested once for driving while intoxicated during the previous year. She had presented herself to the local emergency room twice in the previous year, claiming that she had taken overdoses of over the counter medication. Ms. Rogers was intoxicated on both occasions. No overdose could be confirmed, she was asymptomatic, and discharged when sober. Both of these incidents were in response to the loss of a short term intimate relationship. Ms. Rogers had no other documented psychiatric history.

Discussion

The evaluation of a case where there is such a marked disparity of perceptions will often hinge on obtaining third party information and reviewing available documentation. In a “he said, she said” sexual harassment case, third party or documentary sources may provide enough information to support psychiatric opinions regarding injury and causation. These sources of information will not reveal what happened when Mr. Foster and Ms. Rogers were alone together. Nevertheless, they provide other information critical to psychiatric assessment.

Opinions

The psychiatrist concluded that the workplace events were not the cause of Ms. Rogers' emotional problems. Ms. Rogers' clinical presentation three weeks after leaving her job represented a worsening of her underlying personality disorder and/or alcohol abuse, both of which predated the workplace events. Other than alcohol abuse, no other Axis I diagnosis had been present in the preceding year.

The psychiatric expert concluded that Ms. Rogers had diagnoses of borderline and histrionic personality disorder and alcohol abuse. At the time of the psychiatric evaluation, she did not meet the criteria for a diagnosis of an affective or anxiety disorder. Ms. Rogers' functioning, although impaired by her Axis I and Axis II diagnoses, had returned to baseline levels. He also concluded that the first psychiatrist's diagnosis of PTSD was inaccurate. Ms. Rogers did not at that time meet the requisite number of symptom criteria for this disorder, and the alleged traumatic exposure did not meet the definition of a traumatic stressor.

No evidence of emotional injury related to the reported workplace events could be observed one year after the last reported incident. The psychological symptomatology observed during the evaluation could be accounted for by the personality disorder diagnosis. Ms. Rogers' functioning had returned to the levels evident before the reported workplace events. This symptomatic and functional recovery occurred without psychiatric treatment. This clinical pattern is consistent with the natural history of personality disorders, where external events trigger a decompensation and increased symptomatology. When that decompensation does not include the new onset of an Axis I disorder, the individual will often return to baseline within a relatively short period of time.

Ms. Rogers could have experienced sexual harassment by her supervisor. The degree of harassment she described could have caused emotional injury given her preexisting disorders. Whether this in fact occurred is a question for the trier of fact. Psychiatric evaluation should ideally result in an understanding of the plaintiff's perceptions and be able to relate them to the facts in the case. If legal or psychological sexual harassment did not occur, how did Ms. Rogers come to believe otherwise?

Malingering might be one explanation for the discrepancy in accounts and findings. However, cases such as these differ from those of overt malingering because the plaintiff believes in the reality of her perceptions of harassment. Such plaintiffs present their perceptions with conviction, and often believe that others who deny that the harassment occurred are lying to protect themselves or others. By examining the “totality of the circumstances,” the mental health expert can come to an understanding of the psychological dynamics involved in the unfolding of events. This allows examiners to formulate opinions regarding whether the psychological outcome and claimed emotional injury were related to the workplace events in question.

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