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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

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.