California Employees, Fitness-for-Duty Psychological Exams, and FEHA Compliance

A recent ruling by a federal District Court in San Francisco provides a useful reminder to both employees and employers of the narrow circumstances in which the employers may demand psychological fitness-for-work examinations without violating the Fair Employment and Housing Act, due in part to the potentially powerful negative impacts of requiring employees to undergo such exams. In the recent case, since the exam in question never actually took place, the court concluded that neither side was entitled to summary judgment, and the issue of the exam demand’s compliance with the FEHA should proceed to trial.

The employee in this case was Linda Ellis, who was a professor in the Museum Studies program at San Francisco State University. In May 2014, several employees of the university attended a meeting that discussed concerns about Ellis’ behavior. These behaviors included instances of alleged unprofessional and inappropriate conduct with various employees. After the meeting, the university’s director of labor relations decided to have Ellis undergo a fitness-for-duty psychological examination.

In response to the letters she received demanding the completion of the psychological exam, Ellis attempted to refute the allegations against her. The university did not consider her information, instead standing by its demand of an exam. Ellis twice no-showed for scheduled exams. After the second occurrence, the university terminated her. After her termination, Ellis sued the university, alleging that it had violated the FEHA and federal law. Specifically, she argued that the FEHA only allows employers to demand psychological fitness exams in certain specific situations and that the facts of her case demonstrated that the university was not permitted under the law to require her to submit to an exam. Both sides then moved for summary judgment.

The FEHA does create limitations on when an employer can order an employee to undergo such an exam. The two key requirements are that the exam is both job-related and “consistent with business necessity.” Ellis, in her case, argued that her exam was neither. The business necessity hurdle is a high one, requiring an employer to show that it possessed “significant evidence that could cause a reasonable person to inquire as to whether an employee is still capable of performing” her duties when it demanded the exam. The professor maintained that her issues on the job were merely interpersonal relations and workflow management issues that, at the most, should have triggered ordinary performance coaching and did not necessitate a psychological exam.

In making her case, the professor contrasted her treatment with another Bay Area professor, John Kao of the University of San Francisco. In that 2014 case, the university fired the professor after he refused to submit to a psychological fitness exam. However, unlike Lewis, Kao was accused of disturbingly and frighteningly hostile behavior, and Kao’s employer, unlike Ellis’ employer, met with the professor and professor’s attorney twice, and considered the employee’s rebuttal evidence. The judge in Ellis’ case acknowledged that the way that USF handled Kao’s case represented “the best practice as far as affording the employee the most opportunity to interact with the process,” but the judge also pointed out that the FEHA has nothing in it that requires an employer to go to the lengths that USF did. “All that is required by the law is ‘significant evidence that could cause a reasonable person to inquire as to whether an employee is still capable of performing his job.’”

The court, however, also rejected SFSU’s characterization of the proper use of the fitness exam option. The law does not allow employers to treat a psychological exam as “merely an investigative tool in the University’s toolbox, to be wielded any time the University could use additional information about an employee.” Instead, the employer, in order to avoid unfairly stigmatizing employees and discriminating, must identify a business necessity (such as the safety of other employees, as was the situation in the Kao case) before ordering an exam and must tailor that exam to the employee’s essential job duties.

In Ellis’ case, the fact that the exam never took place went a long way in leading the judge to reject both sides’ motions for summary judgment. It was nearly impossible, the court stated, to determine whether an exam that never occurred was narrowly tailored to the employee’s job duties, as the FEHA requires. As a result, the issue will proceed forward toward trial.

The law contains clear safeguards that prevent employers from forcing employees to undergo potentially stigmatizing psychological exams unless an employer has a legitimate business necessity for doing so. If you’ve been unfairly forced to undergo a psychological fitness exam or otherwise been a victim of an employer’s violation of the FEHA, contact the skilled Oakland employment attorneys at the Law Offices of Stephen M. Fuerch. We are here to help you defend your rights and pursue all legal options available to you. Contact us through our website or call our office at (925) 463-2575 to schedule your confidential initial consultation today.

More Blog Posts:

California Gas Company’s Psychological Evaluation Demand Was Reasonable in Light of Employee’s Stalking Behavior, Oakland Personal Injury Attorney Blog, Oct. 30, 2015

University Allowed to Require Professor to Submit to Psychological Exam, Oakland Personal Injury Attorney Blog, Nov. 14, 2014

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