Introduction

Employers who are sued by current and former employees are often surprised by the degree of emotional distress alleged to have been caused by their supposed “outrageous,” “extreme,” “shocking,” and/or “despicable” conduct. Nevertheless, such allegations are made only partly for the sake of hyperbole in discrimination, harassment, and retaliation cases. Certain damages, such as lost wages, must be supported by concrete evidence. However, damages for emotional distress, available for many employment-based claims, are hard to prove and are largely left to a jury’s discretion. The courts instruct jurors to “use [their] judgment to decide a reasonable amount based on the evidence and [their] common sense.”

Perhaps ironically, the courts have made damages for emotional distress the most difficult to challenge, even though they are subjective and often dependent exclusively on the plaintiff’s own testimony. Employers seeking verification of emotional injury via a doctor’s mental examination must overcome significant substantive and procedural hurdles. The California Court of Appeal recently addressed whether an attorney’s presence at an employee’s mental examination was an appropriate safeguard — an issue previously explored by the California Supreme Court.

When May Mental Examinations Be Conducted in California Courts?

The defendant’s right to test a plaintiff’s claim of injury via a mental examination is governed by Code of Civil Procedure Sections 2032.020, 2032.310, and 2032.320, and by case law. In a nutshell, when an employee’s mental condition is “in controversy,” an employer may ask a court to order a psychological examination upon a showing of “good cause.”

“In controversy” does not mean that the plaintiff merely alleges he or she suffered emotional distress as a result of wrongdoing. Rather, the term includes when the plaintiff claims continuing or profound emotional distress as a result of the employer’s alleged conduct.

To demonstrate the required “good cause,” an employer must show that the information sought is relevant and that there are specific facts justifying the examination. The purpose of the good cause requirement is to protect the employee’s privacy.

An employee may avoid a mental examination altogether, however, by declaring that his or her mental suffering is not extraordinary and agreeing not to introduce expert psychiatric testimony at trial.

Vinson v. Superior Court

The California Supreme Court’s opinion in Vinson v. Superior Court illustrates how courts approach employer requests for mental examinations during discovery. Katherine Vinson sued her former employer, the Peralta Community College District (“PCCD”), and her former supervisor. Her lawsuit included claims for sexual harassment, wrongful discharge, and intentional infliction of emotional distress. Vinson alleged that the defendants’ conduct caused her to suffer diminished self esteem, reduced motivation, sleeplessness, loss of appetite, fear, lessened ability to help others, loss of social contacts, anxiety, mental anguish, loss of reputation, and severe emotional distress.

The defendants asked the trial court to order Vinson to undergo a medical and psychological examination. Vinson sought a protective order prohibiting probing into her sexual history, and requested that her attorney be allowed to be present during the examination. The trial court denied Vinson’s requests and ordered the examination to proceed.

The California Supreme Court agreed with the trial court that the examination could proceed. The court reasoned that “[a] party who chooses to allege . . . mental and emotional difficulties can hardly deny his mental state is in controversy.” Vinson, the court noted, had “haled [PCCD and her former supervisor] into court and accused them of causing her various mental and emotional ailments.” The court also noted that good cause for the examination existed because the truth of the various specific manifestations of emotional distress was relevant to Vinson’s case.

On the other hand, the court decided that “[a] simple sexual harassment claim asking compensation for having to endure an oppressive work environment or for wages lost following an unjust dismissal would not normally create a controversy regarding the plaintiff’s mental state.” The court also decided that Vinson had not “implicitly waived her right to privacy in respect to her sexual history and practices.” The defendants, according to the court, failed to explain why exploring Vinson’s sexual history was directly relevant to her sexual harassment claim and necessary to resolving it.

Finally, the court held that the presence of Vinson’s attorney at the examination was not warranted. The court reasoned that Vinson had not demonstrated that the examining doctor “[would] not respect her legitimate rights to privacy or might disobey any court-imposed restrictions.” The court did note, however, that “[i]n light of their broad discretion in discovery matters . . . trial courts retain the power to permit the presence of counsel or to take other prophylactic measures when needed.”

Where Do Federal Courts Stand on Mental Examinations?

Federal courts apply rules similar to California’s. Under the Federal Rules of Civil Procedure, a court “may order a party whose mental or physical condition . . . is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner.” In addition to demonstrating that an employee’s mental condition is in controversy, an employer seeking to compel a mental examination must demonstrate “good cause.”

In claims brought under Title VII of the Civil Rights Act of 1964 — the federal counterpart to the state Fair Employment and Housing Act — most federal courts apply the factors set forth in Turner v. Imperial Stores to determine whether an employee’s mental condition is in controversy. Under Turner, a plaintiff places her mental condition in controversy when, aside from making a claim of emotional distress, at least one of the following factors is present: (1) a cause of action for intentional or negligent infliction of emotional distress; (2) an allegation of a specific mental or psychiatric injury or disorder; (3) a claim of unusually severe emotional distress; (4) plaintiff’s offer of expert testimony to support a claim of emotional distress; and/or (5) plaintiff’s concession that his or her mental condition is “in controversy” within the meaning of the applicable federal law.

Moreover, an employer must show that it has no other means to discover relevant information to establish good cause.

In practice, many federal courts will not order a mental examination in an employment discrimination matter where an employee alleges nothing beyond “garden variety” emotional distress. One court has defined “garden variety” claims to “include emotional damages for mental anguish, mental distress, emotional pain, anxiety, embarrassment, humiliation, career disruption, and inconvenience foreseeably flowing from defendant’s actions.”

The federal district court’s opinion in Greenhorn v. Marriott International, Inc. illustrates the degree of emotional injuries that must be alleged to justify an examination. The plaintiff there alleged that the defendant’s conduct caused her to sustain lasting and permanent emotional injury in the form of emotional trauma causing insomnia, severe depression, avoidance, withdrawal, suicidal ideation, suspiciousness, social discomfort, low self esteem, and resentfulness. The court found sufficient grounds to grant the employer’s request for a mental exam.

Recent California Case Regarding Presence of Counsel As a Safeguard

As noted above, California courts have broad discretion to fashion mental examination guidelines that are protective of employees’ privacy. Some employees, like Vinson, ask courts to allow their attorneys to be present while they are evaluated. The California Second District Court of Appeal addressed this recurring issue recently in Toyota Motor Sales, U.S.A. v. Braun.

Steven Braun sued his former employer, Toyota Motor Sales, Inc., and his former supervisor, Randall Bauer, for gender discrimination, sexual harassment, and other claims. Braun, in sworn interrogatory responses, noted that he pursued mental health treatment, counseling, and therapy as a result of the alleged harassment. Braun stated that he continued to suffer emotional distress. In response, the defendants asked the trial court to compel Braun to undergo a psychological examination. Braun opposed this request. He alternatively asked the trial court for several accommodations, including that the examination be audio recorded and his attorney be allowed to be present at the examination location to listen in on and monitor it.

Under California law, a plaintiff has the right to audio record a psychological examination. The defendants, however, objected to Braun’s demand that his attorney be allowed to be present. The defendants argued that Braun’s attorney’s presence would interfere with the examination’s validity. They further argued that Braun failed to demonstrate that his lawyer’s presence in an adjoining room was necessary to protect his privacy. The trial court ultimately ordered that Braun be ordered undergo the psychological examination, but allowed his attorney to be present in an adjacent location.

On appeal, the court held that the trial court abused its discretion in permitting Braun’s attorney to attend. The court relied on the California Supreme Court’s 1976 decision in Edwards v. Superior Court. There, the Supreme Court held that an attorney’s presence at a mental examination normally should not be allowed because it “would hinder the establishment of rapport that is so necessary in a psychiatric examination.”

The Court of Appeal in Braun relied on Vinson, in which the California Supreme Court reaffirmed that “the presence of an attorney is not required during a mental examination.” The Braun court noted that Braun failed to show it was necessary for his attorney to be present, particularly given the examination would be audiotaped and that Braun’s attorney would be given a copy. Despite Braun’s assumptions he would face inappropriate questions, “absent evidence to the contrary… it must be presumed that the examiners will act appropriately.”

Conclusion

Both California and federal rules allow for mental examinations as a means of discovery. In the absence of allegations that an employee is experiencing extraordinary, specific, and continuing manifestations of mental distress at the time of his or her lawsuit, however, there will be no examination. When an examination is permitted, courts are able to set guidelines to protect employee privacy. Nevertheless, there are limitations on how far courts are willing to go to protect employees. These limitations include a general unwillingness to allow an employee’s attorney to be present during an examination.