An Idaho district court earlier this month denied a tax and accounting services firm’s request that a former employee who filed a discrimination lawsuit undergo a psychosexual examination.
The employee worked for the Idaho Falls firm as a receptionist beginning in 2012. According to her complaint filed in 2019, during her time at the office, she witnessed and experienced a range of inappropriate sexual behavior from the firm’s owner, including sexual conversations, sexual touching and office rumors about him watching pornography in his office (Carbajal v. Hayes Management Services, Inc., No. 4:19-cv-00287 (July 23, 2019)).
The employee found another job in 2017, but was terminated when she announced her two weeks’ notice, according to the complaint. After initially filing charges with the Idaho Human Rights Commission and the U.S. Equal Employment Opportunity Commission in February 2018, she filed a lawsuit alleging sexual harassment, hostile work environment and retaliation violations under Title VII of the Civil Rights Act of 1964.
In litigation proceedings, the employer asked the court to require that the plaintiff undergo a psychosexual evaluation, citing Federal Rule of Civil Procedure 35, through which it may require a party to submit to a mental or physical examination if there is good cause or “controversy” about a party’s mental condition.
“But a psychosexual evaluation is not a run-of-the-mill mental examination allowed under Rule 35,” the judge explained, denying the request. He asserted that the evaluation — which “specifically addresses sexual development, sexual deviancy, sexual history and risk of reoffense as part of a comprehensive evaluation of an offender” — was inappropriate in this case.
In asking to plaintiff “to undergo this highly intrusive and personal evaluation intended to ferret out a convicted sex offender’s future dangerousness,” the defendant’s request “not only demonstrates a gross misapprehension of Title VII law and Rule 35 but borders on being abusive and harassing,” the court stated.
The employer’s request for a psychosexual examination was “hard to conceive,” the court said, but the court may have bestowed upon it the benefit of the doubt in making the request if not for “other inappropriate requests in discovery, including serving [the plaintiff] with an interrogatory asking her to identify each person she has had sexual contact with from January 2012 to August 2017,” the judge said.
In addition to turning down the request, the judge ordered the employer to pay the plaintiff’s attorney fees associated with responding to the motion.