When permitted

In connection with your employment lawsuit, the defense lawyer (i.e., the lawyer representing your former employer) may demand that you submit to a mental health examination. Generally, defense attorneys seek mental examinations for two reasons, both of which are completely unrelated to the stated purpose of the examination (i.e., an evaluation of your mental condition). First, defense attorneys believe that the “threat” of a defense mental examination will scare you into dropping your lawsuit or settling it for far less than it is worth. Second, defense attorneys use the defense mental examination as a discovery vehicle to try to obtain negative information about you that they would otherwise not be permitted to discover.

The rules of evidence provide that a mental examination may be taken (a) pursuant to a court order or an agreement between the parties and (b) only if your mental condition is “in controversy.” In a minority of jurisdictions, the courts interpret “in controversy” broadly, so that simply by alleging emotional distress damages you have placed your mental condition in issue. These courts reason that if you are going to present evidence of emotional distress – even if only “normal” emotional distress – then the defendant-employer has a right to have you examined in order to gather evidence to defend against your claim.

Most courts, however, have rejected this view in favor of a balancing test that looks to see whether you have done more than simply allege mental distress. In these jurisdictions, you would not be subjected to a psychiatric examination merely because you claim to have suffered humiliation, mental anguish, and/or emotional distress as a result of the defendant-employer’s conduct. You would have to allege, in addition, one or more of the following factors: (1) you have asserted a specific cause of action for intentional or negligent infliction of emotional distress; (2) you have alleged a specific mental or psychiatric injury or disorder; (3) you have claimed unusually severe emotional distress; (4) you have offered expert testimony in support of your claim for emotional distress damages; and/or (5) you concede that your mental condition is “in controversy” within the meaning of the rules of evidence.

Still other courts have held that the defendant-employer is not entitled to conduct a defense mental examination if you are claiming past mental distress, but not ongoing mental injuries. In these courts, if you allege past, but not present, pain and suffering, then there is no basis for a mental examination.

If you are concerned about the possibility of a defense mental examination, talk with an experienced employment lawyer. He or she can explain the law in your jurisdiction and review your legal options.