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. …