Rohan’s journey with mental illness has taken him from Medical School to prison. He is now managing his condition with both medication and therapy. This is a story of recovery and of perseverance. Rohan: I can’t forget to thank Dr. Vivian Chern Shnaidman for going above and beyond for me during this especially difficult time; you’re the proof that there are doctors who truly care about their patients, and for that I am so grateful.
Vivian Chern Shnaidman, MD wrote Forensic Psychiatry: A Lawyer’s Guide, published by Elsevier, to help lawyers understand their psychiatric expert witnesses.
Recently one of Fox News’ television anchors asserted that her boss created a hostile work environment due to unwanted sexual advances. What exactly is a hostile work environment?
Hostile environment/sexual harassment occurs when the plaintiff employee’s work environment is made intolerable by sexual misconduct, or the work environment is permeated with unwelcome discriminatory intimidation, ridicule, and insult, based upon sex, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment. Unwelcome sexual conduct that interferes with job performance or creates an intimidating, hostile, or offensive working environment creates a hostile work environment.
How is a Hostile Work Environment Proven?
The plaintiff need not show that the harasser knew that the conduct was unwelcome, just that it was in fact unwelcome. In other words, the plaintiff doesn’t not have to tell the harasser to stop or notify him that his comments and actions are upsetting.
In order to allege a hostile work environment, it is not necessary to allege any sexual advances whatsoever. Nor does the conduct have to be stamped with explicit signs of overt discrimination, or be explicitly sexual in nature. It just has to relate to sex or be part of a course of conduct tied to evidence of discriminatory intent. Sexually harassing conduct that sufficiently offends, humiliates, distresses or intrudes upon its victims so as to disrupt their emotional tranquility in the workplace, affect their ability to perform their job as usual, or otherwise interfere with and undermine their personal sense or well being, constitutes a sexually hostile environment.
Hostile Work Environment Evaluation
Determining whether a given situation constitutes a hostile environment is a “fact-based inquiry into the severity and pervasiveness of the conduct…the jury looks at all the circumstances supported by credible evidence.” However, a single incident of sexual assault sufficiently alters the conditions of the victim’s employment to create an abusive work environment.
Evaluations of whether a hostile work environment exists are based on 1) the nature of the unwelcome sexual acts (considering that generally touching is more offensive than verbal remarks); 2) the frequency of the offensive encounters; 3) the total number of days over which all of the offensive conduct occurs; and 4) the context in which the sexually harassing conduct occurred.
Dr. Vivian Shnaidman, forensic psychiatric consultant and conference speaker, along with Adam Bierman and Kurt Tazelaar, interviews Dinesh Sharma, well known Harvard social scientist on the dynamics of the 2016 upcoming US election.
These types of evaluations are among my favorite, although saying so out loud is possibly not quite politically correct. Still, I didn’t kill them, so let us consider what types of evaluations I might be asked to perform, and how these evaluations might be utilized in a court of law.
Testamentary Capacity refers to the ability of an individual to make a will under the law. Sometimes I’m asked to evaluate a still living person, for example someone in a nursing home. But although the criteria are the same, it is fairly easy to evaluate someone who alive. I can ask them questions, we can bring witnesses to the party, and people generally have an idea if the person has an idea of the requirements necessary to write a will, which in virtually every jurisdiction in the United States includes only a few elements: the person must know the nature and extent of his bounty, who his natural heirs are, and to whom he or she wishes to leave his estate. While there are some local additions (in New Jersey, the person is supposed to know in what type of business he or she worked), those additions are minimal and beside the point.
These evaluations become really interesting when a person writes a will, dies of natural causes, and then the heirs and non-heirs start to contest the will. Sometimes only one heir does not like the way the will is written — an heir might not like having to wait until a certain age to get her money, or might not like having to share with siblings. Then the heirs can contest the will, and to contest a will, these heirs must hire attorneys.
Attorneys then look for experts. Often the attorneys hire any random doctor whom they can convince to write something stating that the dead person lacked testamentary capacity on the day he or she wrote their will. Smart attorneys, however, hire me.
In rder to really assess testamentary capacity, we have to recreate the person’s mental status examination as it pertains to the requirements for testamentary capacity on the date of the will writing. A three-sentence letter stating that the individual took medications that might impair consciousness is insufficient. I have seen all manner of ridiculousness submitted in lieu of actual psychiatric expert reports. “Because I said so” is not an expert report. “Because I am a doctor and I said so” is not an expert report. Lawyers need to hire experts who know how to read and understand medical records and apply the appropriate legal standards to them, and then communicate their findings in a way the courts can understand. Otherwise the “expert” reports are useless.
In addition to testamentary capacity, there are other cases in which mental status of deceased people has to be recreated. One example is the psychiatric autopsy, when someone committed suicide or otherwise died and there are legal matters that need to be investigated. Sometimes a wrongful death suit requires information not uncovered in any other investigation. Both civil and criminal matters often require the input of a psychiatrist in uncovering the details of someone’s mental status when that person is unavailable for interview. Those details are important. We do not guess. We reconstruct, based on available information. This work is detailed, painstaking, and challenging. And it is not a letter saying “Because I said so.”