Thursday, November 05, 2009

Me and E.T. -- A Law School Hypothetical

The late John Edward Mack, M.D. was a highly respected psychiatrist and Professor of Psychiatry at Harvard Medical School. Dr. Mack was the founder of the Department of Psychiatry at Cambridge Hospital.

Dr. Mack investigated the phenonmenon of alien abductions. He interviewed about 200 people who claimed that they had been abducted by extraterrestrial aliens, and concluded that their beliefs could not be explained by any psychiatric disorder. He concluded that the "experiencers," as he called them, were describing actual experiences. Dr. Mack found that there was a uniformity in the actions and characteristics that the experiencers attributed to the alien abductors, which lent credence to the experiencers' reports.

Question: Let us say that in the days before my job termination, Dennis Race, Esq. had spoken with Dr. John Mack at Harvard. Let's say that Dennis Race described me to Dr. Mack. Let's say that Dr. Mack stated to Dennis Race that the qualities I possessed were consistent with the qualities that "experiencers" attributed to extraterrestrial aliens. Dennis Race concluded in good faith, relying on the credentials of Dr. Mack, that I might be an alien, that (as a non-human) I did not enjoy any rights under the law and that Dennis Race formed a good-faith belief that he might lawfully terminate me.

Could the DC Court of Appeals conclude the following about my job termination?

"There is no probable cause to believe that Petitioner's job termination violated the D.C. Human Rights Act of 1977. The employer consulted a psychiatrist who identified Petitioner's qualities as alien-like, and the employer concluded it was lawful to terminate Mr. Freedman. The Department of Human Rights (DHR) did not find that Petitioner was an extraterrestrial alien. Rather, DHR concluded that the law firm was not motivated by a discriminatory animus based on petitioner’s sexual orientation, but rather by concerns raised by a psychiatrist, and this constituted a legitimate business reason for his termination. The Department of Human Rights found that a competent, practicing psychiatrist advised the employer that Mr. Freedman possessed qualities that are consistent with those attributed to aliens, and that the employer, on that basis, made a good-faith, nondiscriminatory determination that Petitioner did not enjoy the rights of a human being. It is not the role of this Court to weight the evidence and substitute its judgment for that of the agency. Moreover, neither DHR nor this Court need “determine whether or not defendant adequately investigated the charges of . . . discrimination’ before discharging plaintiff.” Evans v. Bally’s Health and Tennis, 64 FEP Case. 33, 38 (D.Md. 1994). See also Bradshaw v. Brookdale Hosp. Medical Ctr., 1993 Westlaw 289435 (E.D.N.Y. 1993) (even if defendant’s investigation resulted in an inaccurate determination, plaintiff offers no evidence that defendant acted with discriminatory intent)."

What's wrong with that court determination?


Gary Freedman said...

Does not enjoy the rights of a human being? Isn't that what racists always say?

Gary Freedman said...

People say, "That's a ridiculous hypothetical."

My answer? Cartoon physics is ridiculous!

Gary Freedman said...

Verbatim language of DHR Finding of Fact no. 6 regarding Akin Gump's mental status determination:

"6. Respondent also sought outside professional guidance because of the emotional and psychological nature of Complainant’s allegations and his coworkers responses. Respondent contacted an unnamed counselor from its Employee Assistance Program and an outside psychiatrist. Dr. Gertrude Ticho identified Complainant’s behavior, putting a negative meaning to virtually every event as “ideas of reference” and cautioned that individuals in similar circumstances may become violent. After Respondent’s investigators consulted with Complainant’s supervisor and Respondent’s Management team, Respondent terminated Complainant’s employment."

DHR Initial Determination, 6/30/93

The agency found that Akin Gump's production that it spoke to a psychiatrist who advised I had a psychiatric "disorder" was genuine and credible (under Burdine).

What's the difference between the following two statements:

1. The agency found Freedman had a psychiatric disorder.

2. The agency found that the employer's belief that Freedman had a disorder was genuine and credible and based on a psychiatrist's opinion.

In either case, the agency is affirming that a psychiatrist has opined that I had a psychiatric disorder.

Gary Freedman said...