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    The Lawletter Blog

    EMPLOYMENT DISCRIMINATION: Employer Can't Force Discrimination Plaintiffs to Submit to Testing of Personalities and Emotional States

    Posted by Gale Burns on Mon, Apr 11, 2011 @ 13:04 PM

    The Lawletter Vol 35 No 6, April 15, 2011

    John Stone, Senior Attorney, National Legal Research Group

    When four employees from New Jersey sued their employer for race discrimination, and especially racial harassment, in violation of the New Jersey Law Against Discrimination ("LAD"), among the types of relief they sought were damages for emotional distress.  McGhee v. Pathmark Stores, No. ATL-L-2459-08 (N.J. Super. Ct. Law Div. Aug. 23, 2010) (unpublished mem.) (motion for leave to appeal denied Oct. 7, 2010).  The "findings and declarations" provision in LAD itself contemplates such relief.  It states that victims of discrimination can suffer a variety of hardships stemming from the discriminatory treatment, including emotional stress, or even severe emotional trauma, and anxiety.  In recognition of these common effects of discrimination in the workplace, the Supreme Court of New Jersey has said that the legislature intended victims of discrimination to obtain redress for mental anguish, embarrassment, and the like without limitation to severe emotional or physical ailments.  In short, to suffer humiliation, embarrassment, and indignity is by definition to suffer emotional distress, and emotional distress actually suffered by the victim of proscribed discrimination is compensable without corroborative proof, permanency of response, or other physical or psychological symptoms rendering the emotional distress severe or substantial.  Tarr v. Ciasulli, 853 A.2d 921, 927 (N.J. 2004).

    When discrimination plaintiffs seek to recover damages for emotional distress, the question may arise, as it did in McGhee, as to the extent to which the defendant employer can delve into the personalities and emotional states of the plaintiffs by means of such devices as court-ordered personality tests or other assessments by experts retained by the employer.  In McGhee, the plaintiffs alleged that their emotional distress, caused by racially discriminatory treatment, was severe and continuing over a long period, and they enlisted the aid of an expert to substantiate such claims.  The employer argued that such  claims necessarily "open the door" to a full inquiry into the mental and emotional conditions of the plaintiffs.

    The defendant further contended that its conducting a searching inquiry would only be fair, since the plaintiffs had minimal prior documented medical histories from health-care providers from which the employer might determine a "base line" for their mental health prior to the alleged discrimination.  Similarly, according to the employer, it had a right to determine whether any of the alleged emotional pain and suffering of the plaintiffs could be attributable to other factors unrelated to the claims brought under the LAD.  In that vein, the defendant pointed out that all four of the plaintiffs had criminal backgrounds, one was facing domestic abuse charges, and two had undergone court-ordered anger management treatment.

    The court in McGhee denied the defendant's motion to order the plaintiffs to submit to mental examinations conducted by experts retained by the defendant, and it similarly denied a motion to reconsider that ruling.  In its view, the proposed examination of the plaintiffs' emotional state was unduly intrusive and unnecessary.  The defendant was still free to use other, less intrusive discovery for its desired purposes, such as obtaining extensive deposition testimony and employment records.  The fact that the plaintiffs had not regularly seen health-care providers concerning their emotional state, rather than unfairly limiting defendant's discovery may simply have substantiated that no psychiatric condition, diagnosis, or treatment was at issue in the case.

    With the backdrop that emotional distress is a recognized and common byproduct of discrimination, the court in McGhee declined to allow the defendant employer to muddy the waters and possibly confuse the jury concerning such a claim by inquiring into and allowing evidence about the plaintiffs' criminal histories or involvement in anger management.  Such an inquiry, like the defendant's proposal that the plaintiffs be made to submit to personality tests, created too large a risk that the jury would be confused and would judge the alleged victims for their general moral turpitude, rather than weighing the evidence as to whether the plaintiffs suffered racial discrimination and its effects.

    Noting that the defendant employer had complained that it should be allowed to meet the plaintiffs' experts with its own expert, the court concluded its memorandum of decision as follows:

    If Defendants [sic] feels disadvantaged by the fact that Plaintiffs have obtained an expert pyschological witness to testify that a typical African Americans [sic] will suffer pain and suffering as a result of allegedly seeing a noose allegedly hanging in the break room, then moving Defendants are welcomed to obtain their own expert contradicting said expert's conclusion.

    McGhee, slip op. at 8.

    Topics: legal research, The Lawletter Vol 35 No 6, John Stone. employment discrimination, LAD, psychological testing, personality testing

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