A proposal to add binge eating disorder to the American Psychiatric Assn.'s handbook of mental illnesses could provide another avenue for disability lawsuits against employers, some legal experts say.

Even though the American Psychiatric Assn.'s Diagnostic and Statistical Manual of Mental Disorders is not a legal, government-approved document, it could help plaintiff attorneys successfully sue employers for violating the Americans with Disabilities Act, the experts say.

Adding binge eating disorder is among several proposed revisions to the DSM's fifth edition, scheduled for publication in May 2013. They are being presented for public review and written comment until April 20.

The proposed criteria to diagnose binge eating disorder include eating in a “discrete period of time,” such as within a two-hour period, an amount of food that is “definitely larger” than most people would eat in a similar period, and a sense of lack of control over eating during the episode.

The prevalence of binge eating disorder is relatively small.

According to a study published in 2007 that was based on survey data from the Bethesda, Md.-based National Institute of Mental Health, 3.5% of women and 2% of men reported having the condition at some point in their lives.

Jonathan T. Hyman, a partner with Kohrman Jackson & Krantz P.L.L. in Cleveland, said including binge eating in DSM-5 “may lead to more viable claims to the extent that addictions have always been covered by the ADA.” This is particularly true in light of the ADA Amendments Act of 2008, which makes it easier for plaintiffs to sue employers, he said.

Mr. Hyman said the danger is that an employee is terminated and then claims the firing was because of perception of binge eating, “which now is a recognized psychiatric disability.”

Michael W. Fox, a shareholder with law firm Ogletree, Deakins, Nash, Smoak & Stewart P.C. in Austin, Texas, said plaintiff attorneys still would have to meet the legal standard of a disability, “but I think it will give them some credibility.”

Brian T. Ashe, a partner with law firm Seyfarth Shaw L.L.P. in San Francisco, said if binge eating is included in the DSM, plaintiff attorneys would argue to juries that “the best psychiatric minds in the nation have agreed, after exhaustive deliberation, that this is a medical condition that does amount to a recognized psychiatric disorder, and they will use that as a launching pad to say it's a disability in the eyes of the law.”

Diana L. Hoover, a partner with law firm Mayer Brown L.L.P. in Houston, said: “Ultimately, I think there may be more claims that employers have to deal with” by including binge eating in the DSM, but its impact will take “quite a while to work through the (Equal Employment Opportunity Commission), the Department of Labor and the courts.” Any determination would be “fact-specific and case-specific,” she said.

“As a general proposition, people who are obese are not even considered...disabled, nor are they necessarily protected against discrimination because of their obesity,” so it may take time for binge eating “to be considered by the courts as a disability deserving of the protections of the ADA,” Ms. Hoover said.

An employee must show the problem interferes with a major life activity under the ADA, “so they'd have to show it interferes with their ability to work, for example, or their ability to sleep at night because they had to binge,” Ms. Hoover said.

If approved for inclusion in the DSM, employers can avoid problems by trying to accommodate the worker through an interactive process, observers say.

“If an employee claims disability, regardless of how unusual the employer may consider the facts to be, they should take it seriously” and treat the workers with respect, Ms. Hoover said. “I would absolutely do anything I could to respond” to the issue.

Peter J. Petesch, a shareholder with law firm Littler Mendelson P.C. in Washington, said: “Going through the process in good faith insulates an employer from higher damage claims and may ultimately defeat a claim if the employee drops the ball in the process” or unreasonably asks for an indefinite leave of absence as an accommodation.

“One would think the most common accommodation requests would be limited to leaves of absence for treatment for that condition,” which may be covered under the Family Medical Leave Act, he said.

Not everyone agrees the revised DSM is likely to affect employers.

“Disabilities are not measured by whether they are included in the DSM,” said D. Greg Valenza, managing partner with law firm Shaw Valenza L.L.P. in San Francisco. “They're measured by specific legal standards as to whether there's been impairment and substantial limits to major life activities.”

Wendy M. Lazerson, a partner with law firm Bingham McCutchen L.L.P. in East Palo Alto, Calif., agreed. “I think it would be a stretch for any judge to find that somebody's...binge eating is going to rise to the level” of a substantial limit on a major life activity, she said.

Other changes to the DSM proposed by the Arlington, Va.-based APA include a new category of behavioral addictions in which gambling would be the sole disorder. Observers note, however, that gambling is expressly excluded as a disability under the ADA, so it will not affect employers.