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Psychiatric fitness-for-duty exam can be required so long as employer has objective evidence justifying it, but what does that mean?

June 6th, 2013  |  Joy Waltemath  |  5 Comments

Last month the Eleventh Circuit ruled that it was reasonable under the ADA for Coca Cola to require a psychiatric fitness-for-duty examination for an employee who, for the first time in more than seven years of employment, complained at a meeting with his supervisor that he had suffered from discrimination and harassment because he was from Ghana. He allegedly became agitated during the meeting, banged his hand on the table where they sat, and said that “someone is going to pay for this” (Owusu-Ansah v The Coca-Cola Company, 11th Cir, May 8, 2013).

A workplace “threat.” Things escalated significantly from there. The supervisor, manager, HR, and security considered his statement a threat and got an outside consulting psychologist involved. Although the employee wouldn’t discuss the incident further with HR, a few days later he did talk to the outside psychologist, who found him stressed, agitated, and noted there was a “strong possibility that he was delusional.” Coca Cola immediately put him on paid leave. The psychologist wanted a psychiatrist to evaluate the employee; he agreed, but when he met with the psychiatrist, he wouldn’t discuss the incident (or the workplace) with the psychiatrist either. Consequently, the psychologist recommended a psychiatric fitness-for-duty evaluation to “rule out” a mental condition that could interfere with his safe job performance. Coca Cola told the employee that taking the exam, including taking the MMPI, was a condition of employment before he could return to work: if he didn’t take the exam, he’d lose his job. He eventually took the MMPI exam, scored within normal limits, and returned to work more than four months after he was placed on leave.

Here’s what apparently did not happen. There were no prior incidents showing the employee had a propensity for violence. Coca Cola never asked him for his version of the meeting. It doesn’t appear from the court’s opinion whether Coca Cola ever investigated his allegations of discrimination and harassment. (It’s worth noting that the court made a special point that “this was not a typical summary judgment case.” The employee failed to object to the magistrate’s report of the facts, so the court did not consider all the record evidence but only the magistrate judge’s report.)

“Objective evidence.” In upholding summary judgment for Coca Cola that requiring a psychiatric exam was job-related and consistent with business necessity, the court cited the psychologist’s significant concerns about the employee’s emotional and psychological stability. It also cited the employee’s refusal to speak with HR and the psychiatrist as objective evidence supporting this conclusion. With this kind of “objective evidence,” said the court, the examination was job-related and consistent with business necessity.

The employee tried to rely on an EEOC enforcement guidance that defined a medical exam as being job-related and consistent with business necessity “when an employer has a reasonable belief, based on objective evidence, that (1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.” The court focused primarily on that “objective evidence” requirement. Here, Coca-Cola had the manager’s account of the employee’s conduct, it knew he had refused to talk to the HR manager and psychiatrist, and it had the psychologist’s observations and recommendations. Therefore, it had sufficient objective evidence that the employee had a potentially dangerous mental condition.

No need to prove “direct threat.” That was enough, said the court, rejecting the argument that Coca-Cola also needed evidence that he was a direct threat, a term defined by the ADA as a “significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” The enforcement guidance says a direct threat is required only if the employer does not have objective evidence, stressed the court – and here it determined Coca-Cola had that objective evidence.

Cultural dissonance? I’m not second-guessing the 11th Circuit. But what struck me was the court’s repeated reliance on the fact that the employee refused to talk to HR, refused to talk to the psychiatrist, and was regarded as delusional by the psychologist. In fact, what came to mind was the 1997 book by Anne Fadiman, The Spirit Catches You and You Fall Down, which tells the tragic story of the breathtaking cultural dissonance between a Hmong child with epilepsy and her family, and the American medical and sociological professionals who attempted to treat her. The book is dominated by the miscommunication, mistrust, and misunderstanding that flowed from each culture’s misperception of the other.

So, I Googled “Ghana business culture.” “Silence is a common way of responding to a question that can’t be answered without causing discomfort or causing a loss of face,” I read. “Silence is a common means of communication.” “They will say nothing rather than make the other person uncomfortable,” stated another site. Over and over I saw references to the importance of not losing face, and the response to a perceived loss of face being “the silence that will fill the room.” Still other websites spoke of Ghanaians’ propensity to communicate indirectly; to speak in “proverbs” or “analogies.”

Viewed through a different cultural lens, perhaps the employee’s alleged statement that “someone is going to pay” was a mere analogy. Perhaps the employee’s refusal to discuss the incident would be more understandable if viewed as his attempt to preserve what must have been a significant “loss of face.”  Perhaps the psychologist and psychiatrist did take into account the employee’s cultural orientation. It may be that the case will be cited for what constitutes objective evidence that an employee has a potentially dangerous mental condition. What I’ll wonder is what might have happened if Coca Cola, a company that deservedly prides itself on its commitment to diversity, had found somebody else from Ghana to talk to this guy.

Responses

  1. E Lew-Smith says:

    June 7th, 2013 at 4:19 pm

    Joy – Thanks for providing a case analysis from a cultural diversity perspective!! More, More!

  2. Kristen C says:

    September 15th, 2014 at 6:09 pm

    Obviously Joy you are not familiar with mental health issues, workplace violence, and running a business. The courts made the right call on this one, surprisingly.

  3. kate says:

    August 15th, 2015 at 10:29 am

    How can an objective choice be made when choosing the psychiatrist who will be evaluating the employee? If a company, say Coke, chose the psychiatrist, they would be a referral source for the doctor. Wouldn’t the doctor be more likely to side with Coke in hopes that Coke would be a significant source of income in the future (with more referrals coming from Coke when they see the doctor provides evaluations that benefit Coke?)

  4. FRANCISCO RUIZ says:

    January 2nd, 2016 at 1:25 am

    hello everyone i used to work for toyota the car manufacture from japan in the city of long beach at the long beach port. i was to by my own co worker that was crazy and that i am bipolar and inneed help. i was told my my co-workers. idid no tph.r. the same people took me h.r. and told them i made them scared and they felt threaten and one person even sayed that i was goimg to hurt there was 6 people that complained. i did not like to say anuthing against my own sister and brother because we are union i was investigated and sent home they called the police on they treated my like criminal i wm so ashame for being silent and i learned my lesson is to speak up and gp to human resource. then sfterr the first iterviewer and the h.r. interviwer i was sent to a ffde i also went to a psychologist my who there nothing wrong with me and he gave me a leter that i am not crazy. i feel that the laws for the worker are not there the laws dont protect us they mostly protect the big corporation that leaves the innocence in complete unsure of what happen. this what i see that the person with the most money and attorneys will laway win against the poor and the blue collar worker that is sad for the people of the united state. you have haerd of that saying RICH GET RICHER THE POORER GO HOMELESS THE CONGRESS LAUGHING. WE THE WORKER NEED TO HELP MAKE NEW LAW FOR THE PROTECTION OF PEOPLE we need strict laws against employer who break the laws. i want to start a patition for fair of laws for the blue collar worker we nrrd new law for us the people.

  5. FRANCISCO RUIZ says:

    January 2nd, 2016 at 1:40 am

    the fit for duty evaultion will alway side with the company they alway will have that 1 doctor they go to do the the dirty to make the person look cerzy or something wrong. TOYOTA the car maker ivestigated me with a forensic psychologist, the psychologist refered me to another docter and he did not out his his name on any of the reports. We need laws toprotect us from that kind of insult to man and people. according to the famouse word that define our laws. WE THE PEOPLE ! the common man that is us we are the people and some where down the line the laws have been over look for the moneybin some pocket
    I AM WRITING A BOOK ABOUT MY EXPERINCE TO WROK FOR TOYOTA.LET GET TEGETHER AND MAKE A DIIFERENCE FOR THE PEOPLE !

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