Why it matters

Whether the employer's requirement that an employee undertake a mental fitness exam violated the Fair Employment and Housing Act (FEHA) should be decided by a jury, a California federal court has ruled. Several workers complained to the human resources department at a university about the behavior of a professor, alleging she engaged in a verbal altercation and inappropriate interactions with staff members. The HR director placed the professor on a paid suspension and ordered her to undergo a fitness for duty evaluation by the school's psychologist. When she refused, she was terminated and filed suit. Both parties moved for summary judgment and the court denied both. A fitness for duty exam is not simply an investigative tool in an employer's toolbox, the court wrote, and evidence must exist that a business necessity warrants a properly tailored fitness for duty evaluation. Concluding that facts were in dispute about exactly what the HR director knew at the time the exam was ordered, the court said the question of whether the exam was job-related and consistent with business necessity should be decided by a jury.

Detailed discussion

San Francisco State University hired Dr. Linda Ellis in 1987, employing her in its Museum Studies Program as a director and later a professor and senior curator at the museum. The lightly staffed program consists of just one other faculty member and one staff member.

In May 2014, several employees of the University sat down with the school's director of labor relations. Dr. Ellis did not attend the meeting, which lasted about an hour. By the end, the HR director recommended that the University direct Dr. Ellis to undergo a fitness for duty evaluation. The next day, two letters were sent to the professor.

One letter informed her that she had been placed on paid temporary suspension and directed her to undergo a fitness for duty evaluation. The second letter set forth the "strong and compelling evidence" that formed the basis for the suspension and exam. A number of items were listed, including a verbal altercation between Dr. Ellis and the other program faculty member, "unprofessional and inappropriate" interactions with staff members, and negative student feedback about Dr. Ellis.

The professor attempted to refute the allegations via e-mail but was told she needed to undergo the exam. She refused to attend the scheduled evaluation, and after she skipped a second exam, she was terminated. She filed suit in California federal court alleging the fitness for duty evaluation ordered by the University violated the Rehabilitation Act of 1972 and the California Fair Employment and Housing Act (FEHA).

Both parties moved for summary judgment. U.S. District Court Judge Thelton E. Henderson denied both.

The Rehabilitation Act and FEHA impose restrictions on employers requiring employees to undergo fitness for duty evaluations, mandating that the evaluation must be "shown to be job-related and consistent with business necessity." The question of whether the psychological fitness for duty evaluation Dr. Ellis was required to attend satisfied these requirements contained disputed questions of fact, the judge found.

Dr. Ellis argued that the request for an exam was based simply on a desire for expediency and convenience, not an actual business necessity, with the issues cited in the letter from HR minor problems that would necessitate routine performance counseling at most.

The University told the court that Dr. Ellis's effectiveness as a professor was undermined by her behavior and that the evaluation—an investigative tool to determine whether a reasonable accommodation is needed—was the only effective and fair means for the school to determine whether her behavior was due to a medical condition.

"The Court disagrees with Defendant as to the proper function of the fitness for duty examination," Judge Henderson wrote. "Ordering a fitness for duty evaluation is not merely an 'investigative tool' in the University's toolbox, to be wielded any time the University could use additional information about an employee. Rather, to protect employees from stigmatization and discrimination, the University must first have the requisite evidence that a business necessity warrants a properly tailored fitness for duty evaluation."

The key question for the court was: "What did [the HR director] know, and when did he know it?" With the material facts in dispute, the answer was for the jury, the judge said. A collection of e-mails (from students to the other faculty member, between staff members, and between Dr. Ellis and the other faculty member) "demonstrate that Dr. Ellis was engaging in unexpected outbursts and volatile interactions with her two coworkers, and that the behavior was seriously affecting her coworkers' ability to perform their jobs," the court said.

If the HR director was aware of those e-mails at the time he made his decision to order the evaluation, "such evidence would cause a reasonable person in [his] shoes to inquire whether Dr. Ellis was still capable of performing the essential functions of her position, even absent [the HR director] engaging in his own investigation."

However, it was not clear whether the HR director was aware of the e-mails at the meeting when he ordered the exam. "Therefore, it is the duty of the finder of fact, who is able to assess and weigh the credibility of evidence and testimony, to determine what information [the HR director] actually considered in recommending a fitness for duty evaluation for Dr. Ellis, and whether that information was reliable enough to constitute a business necessity," Judge Henderson concluded.

The question of job-relatedness similarly remained unanswered because the examination did not happen, leaving the court unable to determine whether the evaluation would have been tailored to Dr. Ellis's essential job functions.

To read the order in Ellis v. San Francisco State University, click here.