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 New York, state, United States
New York, Middle Atlantic state of the United States. It is bordered by Vermont, Massachusetts, Connecticut, and the Atlantic Ocean (E), New Jersey and Pennsylvania (S), Lakes Erie and Ontario and the Canadian province of reached opposite conclusions.
In the context of employment discrimination, Rule 35(a) of the Federal Rules of Civil Procedure The Federal Rules of Civil Procedure (FRCP) are rules governing civil procedure in United States district (federal) courts, that is, court procedures for civil suits. The FRCP are promulgated by the United States Supreme Court pursuant to the Rules Enabling Act, and then approved 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 BNA Bureau of National Affairs, Inc.
BNA Birds of North America
BNA block numbering area (US Census)
BNA British North America
BNA Banco Nacional de Angola (National Bank of Angola) 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 An action brought in court to enforce a particular right. The act or process of bringing a lawsuit in and of itself; a judicial contest; any dispute.
When a person begins a civil lawsuit, the person enters into a process called 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 Rorschach test: see personality; psychological tests. , the Thematic Apperception Test thematic apperception test: see psychological tests. (TAT), the Shipley Institute for Living Scale, and the Sixteen Personality Factors Inventory.
Weighing the relevance of the tests against their probative value probative value n. evidence which is sufficiently useful to prove something important in a trial. However, probative value of proposed evidence must be weighed against prejudice in the minds of jurors toward the opposing party or criminal defendant. , 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 See net neutrality. " 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 clinical evaluation Medtalk An evaluation of whether a Pt has symptoms of a disease, is responding to treatment, or is having adverse reactions to therapy 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 sexual harassment, in law, verbal or physical behavior of a sexual nature, aimed at a particular person or group of people, especially in the workplace or in academic or other institutional settings, that is actionable, as in tort or under equal-opportunity statutes. and retaliation RETALIATION. The act by which a nation or individual treats another in the same manner that the latter has treated them. For example, if a nation should lay a very heavy tariff on American goods, the United States would be justified in return in laying heavy duties on the manufactures and 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 emotional distress n. an increasingly popular basis for a claim of damages in lawsuits for injury due to the negligence or intentional acts of another. Originally damages for emotional distress were only awardable in conjunction with damages for actual physical harm. 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 mental disorder
Any illness with a psychological origin, manifested either in symptoms of emotional distress or in abnormal behaviour. Most mental disorders can be broadly classified as either psychoses or neuroses (see neurosis; psychosis). Psychoses (e.g. 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 A sum of money awarded in a civil action by a court to indemnify a person for the particular loss, detriment, or injury suffered as a result of the unlawful conduct of another. 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 loss of appetite Medtalk Anorexia, see there , 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 Noun 1. psychological disorder - (psychiatry) a psychological disorder of thought or emotion; a more neutral term than mental illness
folie, mental disorder, mental disturbance, disturbance .
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.