If you're considering filing an employment discrimination lawsuit, with the help of a law office like Law Office of Faye Riva Cohen, P.C., there are two different ways that your mental state may come into play. Because of this, you want to have a very open and honest discussion with your attorney about any mental problems you've suffered, both past and present, as well as any therapy you've received. Before you proceed with a discrimination lawsuit, this is what you should know.
Your Mental Health May Become An Issue
Under the right circumstances (like being unfairly discriminated against by your employer), almost anyone can expect to feel some emotional distress. However, where many people might feel distressed, others feel distraught or severely damaged in a psychological way. The severity of your distress can put your claim "in controversy."
Another way in which your mental state may be placed "in controversy" is by the nature of the discrimination allegations that you've made. For example, if you allege that your employer fired you when he or she found out that you were having panic attacks, then you would be required to prove to the court that you do, in fact, suffer from a medical condition that is protected under the Americans With Disabilities Act (ADA). Your mental state is "in controversy" because you have to prove that you were diagnosed with a mental condition covered under the ADA in order to establish that your employer discriminated against you.
You can be forced to submit to a mental examination.
Once your mental state is "in controversy" due to the nature of your claim, the defense can request a Rule 35 examination. This is a court-ordered examination by a licensed psychologist or psychiatrist, chosen by the defense. It's important to keep in mind that a Rule 35 mental exam is not designed to help you–it's designed to see if you're exaggerating your claims of emotional distress as a result of the discrimination that you suffered.
That means that you need to discuss any examination with your attorney ahead of time so that you can prepare for various tactics used to hunt out the "truth" (that the defense is hoping to hear). For example, an innocuous sounding, "How are you feeling?" could be the basis for the examiner's declaration that you "felt fine," (and weren't particularly showing emotional distress).
Your private psychological records may be exposed as well.
Depending on the nature of your claim, your private psychological records can also be pulled into evidence. You cannot rely on the protection of doctor-patient confidentiality to keep mental health treatment records out of court if you are pressing a discrimination claim that is either based on an ADA violation over your mental condition or alleges extreme mental distress as a result of some form of discrimination.
This can be disturbing to a lot of people and cause them to reconsider their claims–which may be partially what the defense hopes to achieve. Keep in mind, however, that the questions the defense will be allowed to ask can't go beyond the scope of the trial. If something in your mental health records doesn't have anything to do with the case, it isn't likely to be put into evidence.
It's also possible to ask the court to seal the evidence in a case that involves testimony that's sensitive in nature. Generally speaking, the courts are usually willing to protect the privacy of plaintiffs. Your attorney can help make sure that the information that comes from your psychiatric records doesn't go beyond the courtroom.Share