A recent ruling in a Fair Employment and Housing Act violation case provides beneficial information about when an employer is, and is not, able to demand that an employee undergo a psychological examination. A recent California Court of Appeal ruling went in favor of the employer, since the test was both job-related and necessary for the employer’s business. The court also upheld the employer’s decision not to initiate an interactive process, since the employee did not complete the required steps to trigger that requirement under the FEHA.
The case involved the University of San Francisco and one of its mathematics professors, John Kao. The underlying dispute emerged after the professor’s behavior allegedly took a dramatic turn. After teaching at the university for more than a decade and a half without any interpersonal incident, the professor became the subject of several colleagues’ reports to superiors, claiming that Kao exhibited hostile, aggressive, volatile, and unstable behavior around them while discussing his displeasure with the way the university was going about recruiting a new math professor.
The university retained a forensic psychologist, Norman Reynolds, for the purpose of completing a “fitness for duty” examination of Kao. Kao, through his lawyers, refused to participate in the exam and accused the university of discriminating against him and retaliating against his previous complaints of racial discrimination and harassment. The university proposed a variety of options for working out the dispute, but the professor declined each one, so the university terminated him in February 2009.
Kao sued the university for violations of the FEHA and lost. On appeal, the professor argued that the university had violated the law because the FEHA required the employer to engage in an interactive process before demanding the fitness examination, which the school did not do, and contending that the exam requirement itself violated the law. In the end, the professor’s case was doomed by two elements: his repeatedly arguing that nothing was wrong with him and that the source of the problem was a series of misunderstandings and misperceptions, while attempting to advance his case under a theory of disability discrimination, and the university’s extensive proof supporting its claim that it acted only to ensure a safe workplace for all of its employees.
The law did not require the university initiate an interactive process under the FEHA in Kao’s situation. The interactive process requirement only comes into play if the employee alleged a disability or requested an accommodation for a disability. The professor did neither. The obligation to request an interactive process rests upon the employee unless the employee’s disability is obvious to the employer. The professor could not advance a reasonable claim that his disability was obvious to the school when “he never admitted any disability in the workplace.” The professor also never provided the university the necessary medical documentation required to substantiate a non-obvious disability, which the law demands in order to trigger the interactive process requirement.
The court also determined that the exam requirement was proper. The court pointed out that Kao’s argument, stating that “psychological examination by an employer-chosen doctor cannot be job related and consistent with business necessity unless the employer uses the interactive process,” is sometimes true, just not in his case. The proof in the professor’s case showed that the fitness exam was both job-related and consistent with business necessity. Employment regulations permit a psychological fitness exam to decide if the employee poses a danger to the self or others. The university offered extensive proof that its administrators feared for the safety of Kao and others due to his behavior. Additionally, the school had a business obligation to protect the safety of its workplace, and it believed that safety was potentially in jeopardy given the professor’s unusual behavior.
While the exam in USF’s case was permitted by the law, in other cases employers attempt to use such devices in ways that the law prohibits. For answers to your employment concerns or disputes, consult the Oakland employment law attorneys at the Law Offices of Stephen M. Fuerch. Our employment law attorneys are here to help you protect your rights under both state and federal law. Contact us through our website or call our office at (925) 463-1073 to schedule your confidential initial consultation today.
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