The impact of social communication disorder under the ADA

The American Psychiatric Association (APA) released the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) in May 2013. Among the notable revisions is the creation of social (pragmatic) communication disorder (SCD) as a separate diagnosis.

This article discusses SCD and the impact that its incorporation into the DSM-5 may have on employees who want to bring claims of discrimination or requests for accommodations under the Americans with Disabilities Act (ADA).

What is social (pragmatic) communication disorder?

The DSM-5 provides the following in defining SCD:

1. Persistent difficulties in the social use of verbal and nonverbal communication as manifested by all of the following:
   • Deficits in using communication for social purposes, such as greeting and sharing information, in a manner that is appropriate for social context.
   • Difficulties understanding what is not explicitly stated (e.g., making inferences) and non-literal or ambiguous meaning of language (e.g., idioms, humor, metaphors, multiple meanings that depend on the context for interpretation).
2. The deficits result in functional limitations in effective communication, social participation,
   social relationships, academic achievement or occupational performance, individually or in
   combination.

SCD is a carve-out from autism-spectrum disorders. Similar to children who have Asperger’s disorder, but without the abnormalities of restricted or stereotypical behaviors, children with SCD will have to have been heretofore diagnosed with the catch-all “pervasive developmental disorder not otherwise specified.”

SCD is intended to correct this problem and ensure that such individuals are more accurately diagnosed.
SCD is expected to be commonly diagnosed during childhood, but as with all of the neurodevelopmental
disorders, the condition persists throughout the life span. Undoubtedly, there will be individuals who, for a variety of reasons, will receive their initial diagnosis during adulthood.

While understanding when someone should be diagnosed with SCD is important, it is as important to
understand when SCD should not be diagnosed. SCD diagnosis is a milder variant of autism and Asperger’s
disorders. It is not a social anxiety disorder or a social phobia disorder, as, for example, is a fear of public speaking.

In the employment setting, an individual with SCD may have impaired abilities in understanding or
communicating nuanced or nonliteral information. S/he may be unaware of social or cultural context or
implication and may lack basic skills of communication etiquette. S/he can be socially or culturally
inappropriate or out of place and may be oblivious to subtle suggestions from a supervisor, such as to alter his behavior.

SCD’s impact under the ADA

How does SCD’s inclusion in the DSM-5 impact claims under the Americans with Disabilities Act? Passed in 1990, the ADA was designed to, among other things, “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” The statute provides that a “disability” means “a physical or mental impairment that substantially limits one or more major life activities of such individual.” The Act further defines “major life activity” as “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.”

In March 1997, the Equal Employment Opportunity Commission (EEOC) issued enforcement guidance on
the ADA and psychiatric disabilities. Included therein, the EEOC referenced the DSM as being “relevant for identifying these disorders” that are contemplated by the ADA. As one court stated, “[I]n circumstances of mental impairment, a court may give weight to a diagnosis of mental impairment which is described in the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association” (Baldini v. Postmaster Gen. U.S. Postal Serv.). Various courts of appeals have also referenced the DSM when making a determination regarding whether an individual’s disability is contemplated by the ADA (see, e.g., Holihan v. Lucky Stores, Inc.).

Will SCD inclusion open floodgates to file discrimination claims?

It is likely too early to tell whether the inclusion of SCD in the DSM will open the proverbial floodgates for individuals to file claims of discrimination under the ADA. To make such a claim, an employee will need to be diagnosed as suffering from SCD; will need to demonstrate how SCD impairs a major life activity (e.g., learning, concentrating or communicating); and that, with or without an accommodation, he or she could perform the essential functions of his or her job.

That said, the inclusion of SCD into DSM-5 sends a signal to the courts that SCD is a valid disorder that can cause significant impairment in social and occupational functioning and that may, depending upon the circumstances, serve as the underlying basis for claims under the ADA.

Scott Oswald is the managing principal of The Employment Law Group, P.C. Based out of Washington, D.C., Oswald handles all manner of employment discrimination cases, including those litigated under the Americans with Disabilities Act and the Rehabilitation Act.

Elizabeth Morrison, M.D., DFAPA, has been in the private practice of psychiatry in Chevy Chase, Md., for three decades. She is past president of the Washington Psychiatric Society and currently serves in both elected and appointed positions with the American Psychiatric Association.