posted on Tuesday, June 27, 2006 4:15 PM
by
Lou Michels
Stressed for Success
Sometimes employers require applicants to undergo psychological evaluations as part of the application process in order to determine their suitability for particular positions. These kinds of tests can open up a Pandora's box of issues when the applicant is also in the process of suing her former employer for employment discrimination and claims emotional distress as part of her damages which, by the way, almost all former employees do as part of their discrimination suit.
A recent case out of the Northern District of Texas, Gaujacq v. Electricite de France International, N.A. Inc., No. 3-06-MC-042-D, shows how such evaluations can become a source of new information for the former employer defending a litigation.
In this case, the plaintiff was fired by a French-owned company and sued claiming discrimination, and emotional distress, among other damages. While the litigation was pending, she was evaluated by a licensed psychologist, who assessed her suitability for employment for another company and also provided her with job coaching. When the former employer found out about the evaluation, it subpoenaed the psychologist, asking for information regarding the plaintiff's suitability for employment, as well as whatever leadership coaching plaintiff received from the psychologist. The psychologist, understandably, objected and moved to quash the subpoena, but the trial court denied the motion.
The court noted that the psychologist was in the capacity of a treating physician not a party to the litigation, and ruled that the psychologist could be deposed regarding interviews, evaluations, or diagnostic tests she performed or administered at the request of the potential employer, as well as any leadership coaching she provided. The court noted that this type of an evaluation was specifically relevant to plaintiff's employment discrimination case because it related directly to any emotional distress she might have suffered, as well as her ability to secure new employment. These types of issues are on target with regard to relevant evidence for damages, and are usually a goldmine for former employers seeking to prove that whatever happened, the effects are not nearly as severe as claimed.
The court did say that if the deposition of the psychologist strayed from medical issues that were not involved directly in the diagnosis of the plaintiff, then the psychologist could ask for expert witness fees; for example, if the defendant asked the psychologist her opinion on certain types of medical conditions. But otherwise, the psychological profile that was developed as part of the application process for the gaining employer may become a powerful weapon in the hands of the previous employer seeking to blunt a claim for damages.