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Giving Workers the Treatment - If you raise a stink, you go to a shrink!

by Peter Downs

On October 5, 1998, Norm Crosty sent a letter to the labor relationsdepartment at his plant. Crosty, for thirteen years an electrician at Ford Motor Company's Wixom, Michigan, assembly plant, complained that he could not do his job because so many of his bosses were taking the necessary equipment out of the plant to work on their homes or personal businesses.

The next day, the plant director of human resources invoked a Ford program for combating workplace violence to bar Crosty from the factory and ordered him to see a company-paid psychiatrist or lose his job.

A little more than fourteen months later, and 725 miles away, officials at Emory University cited a similar concern about violence to justify using armed guards to escort Dr. James Murtagh off university property when Dr. R. Wayne Alexander, chairman of the department of medicine at Emory, ordered him to see a company-selected psychiatrist or lose his job. Six weeks earlier, Murtagh, a professor of pulmonology at Emory, had filed a false claims suit against the university, alleging that it had misspent millions of dollars in federal grant money. He claimed the university diverted money from research grants in order to pay for salaries and trips for administrators and some staff. The specific allegations were sealed by order of the federal judge.

Crosty and Murtagh don't know each other. It is unlikely their worlds would ever intersect, but they have at least one thing in common. They both are victims of an increasingly popular employer weapon against whistleblowers: the psychiatric reprisal.

Across the United States, companies have seized upon concerns about workplace violence to quash dissent. Hundreds of large corporations have hired psychiatrists and psychologists as consultants to advise them on how to weed out "threatening" employees. They say they are only responding to a 1970 directive from the U.S. Occupational Safety and Health Administration that they maintain a "safe and secure work environment." But by drawing the definition of "threatening" as broadly as possible, they are giving themselves a new club to bang over the heads of workers.

Maria Buffa, a former salaried employee in the personnel department at Ford World Headquarters in Dearborn, Michigan, said she, too, was sent to a psychiatrist after she filed a sexual harassment complaint in February 1999 against a woman co-worker. "You think, maybe I am the problem, else why would they be sending me to a psychiatrist," she said. The psychiatrist Ford selected, Dr. Edward Dorsey of Midwest Health Center, made a report that said the only psychiatric symptom Buffa displayed was anxiety. Dorsey's report said that the referral came from Ford's medical department and was at least in part due to her complaints of sexual harassment. He also noted that the Ford doctor who referred Buffa cited a couple of "incidents": She was seen yelling at someone, and she had shown up at a fitness center "wearing less than the usual amount of clothing for that physical activity."

In April 1999, Buffa's boss fired her "for the good of the company," she recalled being told.

In some cases, a "threatening" employee may just be an ardent union activist.

Take Nancy Schillinger. While a United Auto Workers committeewoman at Ford's St. Paul, Minnesota, assembly plant, she repeatedly lectured her members about standing up for their contract rights. They were the union, she said, and it was up to them to make the company honor the contract. Her own union representative, committeeman Tom Laney, calls her "a real unionist."

In 1999, she returned to a job on the line to practice what she preached. Every time she saw a contract violation, she challenged it. She spent most of the time out of the plant on disciplinary layoffs. She'd file grievances challenging those as violations of the contract, and usually she won. On December 21, 1999, she was placed on medical leave to undergo a psychiatric fitness-for-duty examination, but she was not given a reason for the order,as Labor Notes first reported. Eventually, the local union's building chairman told her the fitness-for-duty exam was ordered because she had so many grievances and disciplinary marks on her record.

Viewing the ordered psychiatric exam as both a fraud and a violation of the UAW-Ford collective bargaining agreement, Schillinger refused to submit to it. On February 4, 2000, she was fired. She complained to the National Labor Relations Board. The board investigator, however, concluded in his report on the matter that the company was justified in requiring a psychiatric examination given Schillinger's confrontational attitude" and "dissident viewpoints."

By this spring, Schillinger's grievance contesting her firing had moved out of the hands of the local union to the international union. There, the servicing representative assigned to handle grievances from her plant withdrew it, in effect accepting her firing. Schillinger claims some local union officials who were her political adversaries were behind the whole thing and merely bumped the grievance up to the international union so that someone insulated from membership action could take the heat for quashing her grievance.

Ford communications manager Ed Miller confirms that the company does have a program against workplace violence, directed by plant human resources directors. "But one of the pieces is that we do not talk about it externally," he says. He won't comment on Schillinger's case, but he does say that he doubts the veracity of Crosty's and Buffa's stories.

"We have policies that are very clear," he says, "and we have a hotline for reporting any kind of harassment an employee might have." In the cases of Crosty and Buffa, he adds, "it sounds like they were doing exactly what we want them to do."

As you might expect, the Postal Service, given its reputation for workplace violence, has bought into the psychiatric testing. Last September, Postal Service executives proposed to give line supervisors the right to order emergency psychiatric exams for employees who are argumentative. Unionists say this will jeopardize their ability to represent their members. "We have a lot of union officers and very active union members who spend a lot of time arguing with management and defending their rights under the contract. Under this rule, they could be characterized as people who need psychiatric help," says Steve Albanese, an American Postal Workers Union (APWU) national business agent based in Massachusetts.

Albanese admits there are some people who clearly need help, but he says the Postal Service has so broadened its definition of events that can trigger a mandatory exam that "it is very easy to tie someone up in that psychiatric situation." According to the APWU, "The following is a list of factors that a supervisor can consider when deciding whether or not to send an employee for a fitness-for-duty exam: significant increases in unscheduled absences, increased bathroom use, changes in behavior or work performance after lavatory or lunch breaks, deterioration in personal hygiene and/or cleanliness of the work location, inattention to work duties and progressive deterioration in concentration and memory, [and] threatening behavior. Supervisors can also impose emergency fitness-for-duty exams if an employee becomes argumentative, or shows an unusual interest in news stories or literature dealing with violence."

Even Ford's communications manager thinks the new Postal Service rules go too far. Line supervisors at Ford don't have the power to order anyone to take a psychiatric exam, he explained. "I don't think anyone does," Miller says. "That sounds kind of Stalinist."

The American Postal Workers Union is challenging the unilateral change, which may end up going before an arbitrator. The U.S. Postal Service refused to comment on this story.

A symposium and panel discussion at the American Psychological association's annual convention last August called fitness-for-duty exams a huge growth area for psychologists. An article on the meetings in the association's journal, Monitor on Psychology, noted that even though workplace violence is actually decreasing, more companies are seeking out psychologists to help them put in place programs to prevent violence, "creating a promising new niche for practitioners."

William Foote, a forensic psychologist in Albuquerque, New Mexico, and chairman of the symposium, called workplace violence programs a tremendous and potentially lucrative opportunity for psychologists. Gary VandenBos, executive director of publications and communications at the American Psychological Association, said there is so much business that, even in a town with a population of only 20,000, a psychologist in private practice could devote a day a week to corporate workplace violence consulting. VandenBos is co-editor of Violence on the Job: Identifying Risks and Developing Solutions.

The web site for Michael H. Corcoran, Ph.D. & Associates, Inc., for example, asks: "Will the expert you consult be willing to render an opinion of dangerousness and be willing to put it in writing?" and "Will the expert be willing to do this without interviewing the subject personally?"

Some psychiatrists in the field doubt that any reliable judgment can be made without interviewing the subject. Dr. Renato Alarcon, chief of psychiatric services at the Atlanta Veterans Administration Medical Center, is chairman of the American Psychiatric Association's Committee on the Misuses and Abuse of Psychiatry and Psychiatrists. Speaking for himself, he says it is possible to tell if a worker is likely to become violent on the job, but not with 100 percent accuracy. But, he insists, "it will require more than just one session with the worker, and it will also require information from other sources close to the patient, including relatives, acquaintances in the neighborhood, work, etc." If a psychiatrist is evaluating someone who is already on the job, he says, "one measure to prevent mistakes is to require a second opinion. That would give the individual the option to appeal and have his or her own evaluator."

Unionists are skeptical of the objectivity of the psychiatrists the companies use. "We call them prostitutes, because they will write whatever the Postal Service wants them to," says Shirley McLennan, vice president of APWU Local 4 in Louisville, Kentucky, of the doctors who do fitness-for-duty exams. She says the Postal Service will even bring in doctors from Cincinnati to do fitness-for-duty exams instead of using local Lexington doctors.

Donald Soeken, a former U.S. Public Health Service psychiatric social worker who used to be in charge of giving fitness-for-duty exams, says the psychiatric exams almost always are shams. "The doctor will go into all the areas that could discredit a person," Soeken says. "He'll ask early life questions, late life questions, sexual questions, whatever he wants to ask, and then write it up and give it to the boss or law firm. Any doctor worth his salt will find something wrong, or even make up something, and if you don't answer one of his questions, then you are uncooperative and you can be fired for that, too. What they are trying to do is put a person out on a psychiatric disability. If they succeed, you would never work again in your lifetime."

Soeken is sometimes called the father of the fight against abusive fitness-for-duty exams. While doing such exams for federal employees at the Public Health Service's outpatient clinic in Washington, D.C., in 1978, he discovered that many of the people sent to him were either whistleblowers or people who had a personality clash with the boss. The employer making the referrals expected him to give them the ammunition to get rid of employees for mental health reasons.

"I only found two people who were serious [psychiatric] cases," he said. Soeken, working with syndicated columnist Jack Anderson and Maryland Congresswoman Gladys Spellman, exposed the abuses of mandatory psychiatric fitness-for-duty exams. This led to an executive order from President Ronald Reagan banning the exams in the executive branch. Between 1945, when President Harry Truman ordered the beginning of mandatory psychiatric fitness-for-duty exams, and 1984, 10,000 federal employees were forced to undergo them, Soeken says.

After leaving the Public Health Service in 1994, Soeken established Integrity International to assist whistleblowers in the private sector. Since then, he has testified as an expert witness in seventy psychiatric reprisal lawsuits. Soeken warns anyone who will listen not to trust the company psychiatrist.

"If you assume the doctor is concerned about your health and well-being, you've made a deadly assumption," he says. "They are looking for any phrase or evidence they can use against you to stereotype you as schizophrenic, paranoid, or delusional."

One part of that search can involve ransacking a worker's past medical records. Postal unionist Albanese represented one worker last year who won an arbitration ruling to return to work after he had been fired for a totally different reason. In order to return to work, he had to pass a fitness-for-duty exam. The Postal Service doctor required that he turn over all of his medical records, even to the extent of requiring that he track down doctors who had treated him as a child.

As it turns out, this worker had received psychiatric care as a teenager some thirty years before. When the company doctor discovered that, he declared the worker unfit for duty, Albanese says, in essence reversing the arbitrator's ruling. Albanese recently took an appeal of that decision to a new arbitrator, who ruled that the Postal Service was within its rights, since there was no guarantee that the problems the employee had as a teenager would not recur.

"If something you say in counseling can be used against you thirty years later, doesn't that destroy the whole point of counseling?" Albanese asks.

Finding the grounds to fire an employee is not the only goal of employer-mandated psychiatric exams, says Tom Devine, legal director for the Government Accountability Project. Often, another goal is to smear and discredit the employee. That, he said, is why psychiatric harassment "is unsurpassed in its ugliness."

In Crosty's case, a notice on the company bulletin board announced he had been expelled from the plant for psychiatric reasons. "It was very demeaning," says Crosty. With the help of an attorney, and after he was cleared by four different psychiatrists, he got his job back, but "I was totally discredited as some kind of kook and wacko," he says.

In Murtagh's case, administrators at Emory "spread a rumor that he could be armed and dangerous, and a terrorist threat," says Devine, whose organization has taken up Murtagh's defense.

In November 2000, a judge put Murtagh under a gag order. By that time, he had already spent $500,000 defending himself against Emory's allegations. Once a highly recruited research scientist from the National Institutes of Health, he acknowledged that whatever the outcome of his legal battles, "I will never get an academic job again. . . . My life and dreams have been uprooted."

Jan Gleason, assistant vice president in Emory's office of communications, said the administration cannot comment on Murtagh's case. She also declined to comment on what procedures the university uses to determine when a mandatory psychiatric examination is warranted, when the administration began using such exams, or how many exams it has ordered. According to an account in the Emory student newspaper, Emory Wheel, in the last three years the administrators ordered five tenured faculty, who were critics of administration policies, to undergo psychiatric examination as a prelude to breaking their tenure and firing them.

Last year, the U.S. Equal Employment Opportunity Commission issued a new rule requiring that an employer be able to demonstrate a business necessity before subjecting an employee to a medical inquiry. One of its last acts was to issue new regulations restricting an employer's right to dig into an employee's medical history. Part of the patient privacy regulations published by the Department of Health and Human Services on December 28, 2000, the rule bans employer access to health information for use in hiring, firing, or making promotions without the voluntary consent of the employee. Albanese interprets that to mean an employer can't fire you for refusing to turn over your health records.

On February 23, the new Secretary of Health and Human Services, TommyThompson, pushed back the effective date of the rule to give the Administration and Congress time to reexamine it. "We're hoping Bush doesn't rescind it," says Albanese.