Examining discrimination claims.

District courts disagree over whether an employer is entitled to conduct a mental examination when an employee files a lawsuit against the company charging employment discrimination and related mental or emotional damages. Recently faced with this issue, district courts in Illinois and New York reached opposite conclusions.

In the context of employment discrimination, Rule 35(a) of the Federal Rules of Civil Procedure provides that when an employee places his or her mental or physical injury "in controversy" by citing it as a basis for damages in a lawsuit, the employer, by showing good cause, may obtain a court order submitting the employee to psychiatric or other testing to determine the existence and extent of the injury. The concern is what type of claims put the plaintiff's mental condition "in controversy" and provide the related "good cause" that triggers the rule.

In a sex discrimination case in the northern district of Illinois, a defendant employer, Lakewood Engineering & Manufacturing Co., sought a court order requiring former employee Linda Usher to undergo a battery of tests with a psychiatrist and a psychologist. (Usher v. Lakewood Engineering & Mfg. Co., 66 Fair Empl. Prac. Cas. BNA 558, N.D. Ill. 1994). Lakewood planned to use the tests to prepare the psychiatrist to testify as an expert witness. Usher moved for a protective order on several bases, including the intrusiveness, inappropriateness, and unreliability of the tests.

The court ruled initially that Usher had definitely put her mental state in controversy in the action, thereby giving Lakewood the opportunity to conduct a mental examination under Federal Rule 35(a). The court ultimately deemed the battery of requested tests too intrusive to be allowed.

In finding good cause for Lakewood's request, the court pointed to Usher's claim of "intangible harms" of a mental or emotional nature as part of her damages. The court also referred to Usher's reference to her four visits to a clinical psychologist after filing a sex discrimination charge against Lakewood and subsequently being fired, as well as her claims of renewed depression stemming from the litigation.

The court then turned to Usher's objections to the specific tests and the distinct issue of whether the method of examination Lakewood planned was appropriate and reliable. The all-day testing was to include the Minnesota Multi-phasic Personality Inventory exam (nearly 570 questions), the Rorschach test, the Thematic Apperception Test (TAT), the Shipley Institute for Living Scale, and the Sixteen Personality Factors Inventory.

Weighing the relevance of the tests against their probative value, and taking into account Usher's information, which suggested the tests were inadequate and invasive, the court granted Usher's protective order. Citing the need to provide "a level playing field" in the "battle of the experts," the court said Lakewood's expert psychiatrist would have the identical opportunity as Usher's expert psychologist to testify on the basis of a clinical evaluation without the disputed tests.

Similarly, in Jansen v. Packaging Corp. of America (66 Fair Empl. Prac. Cas. BNA 556, N.D. Ill. 1994), the same district court judge granted the employer leave to obtain a psychological examination of the plaintiff, who alleged intangible harm as a component of her damages in a claim of sexual harassment and retaliation by a former supervisor. The court found that Jansen had placed her mental condition in controversy and that Packaging had good cause for the examination because her claim of emotional harm covered the time up to, and including, the present day. When a plaintiff claims only past mental suffering, the court said, there may be doubt as to whether current mental examinations are an effective gauge of past mental state.

In deciding to appoint an independent expert for the examination, the court expressly rejected the analysis and conclusion reached in Cody v. Marriott Corp. (103 F.R.D. 421, D. Mass. 1984), which held that requests for psychiatric examinations should not be routinely granted when a plaintiff claims physical and emotional distress as a part of damages.

In contrast, a decision in the northern district of New York relied on Cody v. Marriott and cases following it to deny an employer's request for a mental examination of the person bringing charges the when defending against a claim of racial harassment. The court in Curtis v. Express, Inc. (868 F. Supp. 467, N.D.N.Y. 1994), held that "garden variety" claims for emotional distress, where psychiatric injury or a mental disorder are not alleged, do not trigger the opportunity to seek an examination.

In Curtis v. Express, the employer argued that plaintiff Naima E. Curtis placed her mental condition at issue by seeking compensatory damages for emotional distress and asserting the ongoing nature of that distress. Curtis countered that her emotional distress from the alleged racial harassment had consisted in the past of difficulty in sleeping, loss of appetite, and difficulty concentrating, and that she did not plan to put forth evidence of ongoing emotional distress at trial. She also asserted that she never alleged a psychological disorder.

Noting the conflict over the issue in other jurisdictions, the court held that Rule 35(a) does not routinely dictate a mental examination simply because the plaintiff has claimed psychological or emotional injury arising from employment discrimination.

Recognizing that these determinations are made on a case-by-case basis and that courts have the discretion to deny the request for a mental examination even where good cause is shown. the court noted that in most cases ordering mental examinations has involved either a separate tort claim for emotional distress or an allegation of ongoing severe mental injury. Because Curtis alleged neither a separate tort nor ongoing injury, the court found no basis to order a Rule 35(a) mental examination.

The legal issue of conducting psychological evaluations of employees is still evolving. In light of the current discrepancies in the application of the Rule 35(a) test for mental examinations of plaintiffs, employers should not assume they can legally conduct such examinations. Before considering psychological evaluations in such circumstances employers should consult the current application of the rule in their jurisdiction.

Jennifer R. Pitarrest is an associate with the Washington, D.C. law firm of Arent Fox Kintner Plotkin & Kahn, which specializes in legal issues involving employment, retirement, pension, and health practice.