IACP
Police Psychological Services Section
Annual
Legal Update
1998
Conference -
Material
compiled by
Wayne
W. Schmidt
• Albert v. Runyon, 1998
• Brown v. Nutter, 45
•
• Executive Order 11478, Amendment of
• Haynes v. Police Bd. of
• Holt v. NW. PA. T.P.C., 694 A.2d 1134, 1997
• Krocka v. Bransfield, 958 F. Supp. 1333 (N.D.Ill).
•
• Palmer v.
• Ralph v. Lucent Technologies 135 F.3d
166 (1st Cir.).
• Reeves v. Johnson, 7 AD Cases 1675 (2d
Cir. 1998).
• Thompson v. Borg-Warner Prot. Serv.,
1996
Handicap Laws &
Abilities Discrimination
Federal court holds that placing an
officer in a special, monitored unit because he uses Prozac violates the
The plaintiff previously had been fired as
an
However, in 1992, he fell down a flight of
stairs while on duty and was rendered unconscious. The CPD learned that he was
taking Prozac, and he was ordered to have his blood tested for presence of the
drug. He was placed in a special unit,
consisting of officers that need monitoring.
When the CPD learns that an officer is
taking psychotropic medication, it mandates a physical exam and a psychological
evaluation, including a fitness for duty evaluation. This officer has experienced long-term
depression, antisocial behavior, fear, anxiety, loss of self-esteem, insomnia,
and an aversion to social contacts. He
has been medically diagnosed as having dysthymia,
impulse control disorder and mixed obsessive-compulsive and paranoid
personality features.
However, the officer filed suit, alleging
that his placement into the “Personnel Concerns Program” constituted a per se
violation of the ADA's prohibition against “limiting, segregating, or
classifying an ... employee in a way that adversely affects the opportunities
or status of such ... employee because of the disability of such ... employee”
because there was no connection between the test and safety concerns. 42 U.S.C. §12112(a), (b)(1).
In two separate decisions, the court
agreed, and said he had “a substantial privacy interest in his bodily integrity”
and that on the facts alleged, his “privacy interests outweigh the City's
safety concerns.”
In a third decision, the officer asked the
court to enjoin the City from conducting an interview on
The court said he had adequate
administrative and appellate remedies to protect his rights. Injunctive relief was denied. Krocka v. Bransfield, 958 F. Supp. 1333, 1997 U.S. Dist. Lexis 3510
{1st decis.}; 969 F. Supp. 1073; 1997 U.S. Dist. Lexis 9289 {2nd decis.}; 1997
U.S. Dist. Lexis 20739 {injunction}(N.D.Ill).
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Federal appeals court requires an employer
to offer part-time work for an employee who suffered a mental breakdown.
The plaintiff experienced major depression
and post- traumatic stress disorder because of the same-gender harassment by
fellow workers. A partial return to
employment was deemed “essential” by his therapist.
The District Court ordered the employer to
provide the plaintiff with part-time work, for a short-term recovery
period. The employer appealed, claiming
that it was un-reasonable to require part-time employment and that the
bargaining agreement provided an exclusive remedy. A three-judge appellate panel disagreed,
noting that the ADA defines “reasonable accommodation” as including “job
restructuring, part-time or modified work schedules, [and] reassignment to a
vacant position...” 42 U.S Code §12111(9).
They also rejected the employer's defense
that the collective bargaining agreement provided an exclusive remedy. The panel said the plaintiff is protected by
state and federal statutes which provide independent and nonnegotiable rights
and remedies. Ralph v. Lucent
Technologies 135 F.3d 166, 1998
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Second Circuit concludes that “panic
disorder” is not a disability under the
Although the trial court found the
termination was based on a “legitimate, nondiscriminatory reason,” the
appellate panel said it was unnecessary to rule on that defense, because she
was not “disabled” under the
In the second case, an airport supervisor
feared being alone or traveling in an automobile, bus or airplane. He was under
psychiatric treatment for panic disorder and agoraphobia.
However, the appellate panel noted that
his impairment did not substantially limit him in the exercise of any of the
major life activities listed in the EEOC regulations. Although
Honesty & Integrity
Testing
Federal Court in
An applicant for a security position
refused to answer questions on a psychological “integrity” screening form,
because he considered some of them to be unlawful. Included were the following:
22. The government has no right to interfere with a person who
chooses to use drugs if it doesn't
hurt anyone.
46. The police and courts are lenient on drug users.
97. The drinking age should be lowered.
100. Marijuana should be legalized.
The applicant sued the security firm,
seeking damages for unlawful discrimination under the
The judge found the test did not violate
the
The statute which the court found
applicable is Cal. Labor Code §1101, which prohibits employment policies that
forbid or prevent employees from engaging in political activity, or policies
that tend to “control or direct the political activities or affiliations of
employees.” Section 1102 prohibits an
employer from attempting to coerce or influence employees from engaging in
political activity.
Expressing doubt on the validity of the
four above questions, the court said that using those for job-screening
purposes could be viewed by the jury as “an attempt to influence employees to
adopt or follow or refrain from adopting or following particular courses or
lines of political activity in violation of Labor Code § 1102.”
The court rejected the firm's motion for
summary judgment because “a reasonable jury could further conclude ... [that
the use of] the survey as a tool to evaluate the suitability of applicants for
hire tends to influence, control or direct the political activities or
affiliations of the applicant pool.” Thompson v. Borg-Warner Protective
Services, 1996
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Research Note: 43 states have laws regulating political
activity in the employment process. Some
states apply to public employees, some to the private sector, and some laws
apply to both. See BNA's IER Manual -
Master Index.
The four challenged questions in the above
case related to the regulation or use of intoxicants and drugs. However, they did not ask whether an
applicant has abused substances or whether he/she would tolerate those who
do. These questions asked about an
applicant's attitudes toward enforcement and legalization.
Mental Illness &
Instability
Federal appeals court declines to
reinstate a mentally ill worker who repeatedly threatened to kill her superior.
A county caseworker made a series of phone
calls from home to the office, accusing her supervisor of harassment. She stated to others an intent to kill her
boss, and repeated the threat directly to her superior. Following her dismissal, she launched an
A three-judge appeals panel determined the
plaintiff has a “disabling mental illness.”
However, the
It would be “unreasonable to demand” the
county “station guards to prevent the mentally disabled employee from getting
out of hand.” Palmer
v.
Psychological Exams &
Standards
A
The state's Employment Relations Cmsn.
held, in a 3-to-0 decision, there was no evidence of an “established policy” that
employees must sign a waiver of their right to sue the psychologist for
professional malpractice. Before a
public employer can require the signing of such a form, it must negotiate the
issue with each bargaining unit affected by the policy.
The city suggested it might not be able to
obtain an evaluation without having a written waiver from the person being
evaluated. The commission responded by
saying that “The fact [a city] might have difficulty finding a psychologist
willing to provide services to [the city] without this waiver has no bearing on
[the city's] obligation to bargain this issue with the union.”
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Appellate court sustains firing of
A
[The appellant's] refusal to obey a direct
order was not justified by his mistaken belief that he should not have to take
a psychological examination. A police
officer does not have the prerogative of actively disobeying an order from a
superior while the officer subjectively determines whether the order is lawful,
valid or reasonable because such a practice would thwart the authority and
respect which is the foundation of the effective and efficient operation of a
police force and destroy the discipline necessarily inherent in a paramilitary
organization such as the police department.
A career public employee must obey and
then file a grievance or lawsuit. Haynes v. Police Bd. of
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Federal court holds, under the FMLA, an
employer cannot require a “fitness for duty” exam of an employee who has been
certified by a physician or psychologist that he/she is able to return to work,
unless the employee's post-leave behavior justifies it.
In this case the worker returned after a
two-month leave for clinical depression -- which she attributed to sex
discrimination and harassment by her male supervisor. 29 U.S. Code §2611(11) and §2612(a)(1)(D)
allows an employee to take FMLA leave “because of a serious health condition
that makes [her] unable to perform the functions of [her] position,” which is
defined as “an illness, injury, impairment, or physical or mental condition
that involves... inpatient care... or continuing treatment by a health care
provider.”
Although her psychologist found her fit
for work, her supervisors declined to accept her psychologist's word and
scheduled a fitness-for-duty exam, including a psychiatric evaluation. When they refused to back down, she sued
under the Family Medical Leave Act, seeking reinstatement without another
psychiatric evaluation.
The court noted that 29
The judge said that “requiring [the
plaintiff] to undergo a psychological examination was not the proper way... to
resolve any legitimate concerns... about the scope or adequacy of a medical
certification.
An employer can ask the employee's
clinician for “clarification” but may not force an employee to submit to a
further examination before allowing him or her to return to work. The court held that “the FMLA does not
contemplate an adversarial investigation into a patient's symptoms and complaints.”
The court said that after an employee has
returned to work, an employer may require a fitness-for-duty examination if the
worker's “post-reinstatement behavior provides a reason for doing so.” Albert v. Runyon, 1998
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Note: A
similar result was reached in a prior decision of the Federal Merit Systems
Protection Board. It held that the Air
Force was unjustified in ordering a civilian employee to a psychiatric
examination before returning to duty from FMLA leave. Harris v. Dept. of Air Force, 62 M.S.P.R. 524/at 528, 1994 MSPB Lexis 660.
Psychic Injuries - Damages
Secretary could recover damages from her
superior for mental anguish after he required her to fake a document. Worker's Comp. laws prevent a recovery
against her employer, however.
Sometimes police officers and supervisors
have demanded that coworkers or subordinates attest to untrue facts in a
report, or assist in the fabrication of evidence. This case involved a subordinate who reported
to her supervisor the fact that a superior required her to assist him in
preparing a faked document.
Following the incident she began to suffer
from uncontrollable crying and hysteria and left work early that day. She was unable to return to work for the next
week, was confined to her bed, suffered nightmares, anxiety attacks, and
uncontrollable crying.
A three-judge appellate panel affirmed the
dismissal of her claims against the employing entity. The injury arose out of and in the course of
her employment. Worker's Compensation
provides an exclusive remedy for her emotional injuries.
However, the trial court erred in
dismissing the suit against her superior.
The underlying misconduct did not further the business of the employer. “Coemployees... are
not immunized from suit by the workers' compensation act for tortious acts which they commit outside the scope of their
employment, which are unrelated to the interest of the employer.”
They said a jury could find that her
superior's conduct was “extreme and outrageous,” and had a “severe and
traumatic effect upon [the plaintiff's] emotional tranquility and her
health. Brown v. Nutter, 45
Transgender Job Rights
A job-training counselor named Richard
changed his name to Kristine, adopted a female identity and began to dress as a
woman. At first Kristine's superiors
directed the staff to treat him/her with “respect” and created a unisex
lavatory. A few weeks later, the jail
warden cited “safety concerns” and barred the counselor from entering the jail,
regardless of which gender Richard/Kristine chose to identify with. The contractual employer discharged him/her
for violating the office dress code.
Richard brought a suit (as Kristine)
against the state, the county, the consulting group
that directly employed him, the warden, county commissioners and many
others. Kristine alleged various
employment-related and human rights violations.
She also sought damages for her emotional distress.
The trial court rejected all claims; the
appellate court affirmed, 5-to-2. The
majority concluded that transsexualism is not a protected right, that gender
dysfunction is not a disability, and that the public officials were immune from
damages. Holt v. NW.
PA. T.P.C., 694 A.2d 1134, 1997
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In this case Tracey became Trevor and was
fired for an allegedly pretextual reason after undergoing sexual reassignment
surgery. He sued the city for violating
the state's disabilities law. The court ruled that transsexualism is not a
physical disability.
However, the judge went on to hold that
gender dysphoria is a recognized mental disorder for job discrimination
purposes, citing the American Psychiatric Association's Diagnostic and
Statistical Manual of Mental Disorders (3d edit., pp. 74-75).
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Research Note: The Supreme Court has stated that a
transsexual is a person who has a “rare psychiatric disorder,” citing APA and
AMA authorities. Farmer
v. Brennan, 511
State courts are not so confined unless
their statutes contain similar language. The Congress inserted the restriction
for political, not psychiatric reasons (to assuage Religious fundamentalists).
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President signs Order creating a uniform
policy prohibiting sexual orientation discrimination in federal employment.
The Order, for the first time, establishes
a national, federal employment policy prohibiting sexual orientation
discrimination. It amends an existing
Executive Order that now prohibits discrimination based on race, color,
religion, sex, national origin, disabilities, or age.
The Executive Order establishes “Administration
Policy” but does not (and cannot) create any new enforcement rights or enlarge
the jurisdiction of the EEOC. The
President called on the Congress to pass the “Employment Non-Discrimination
Act,” which would create and codify enforcement rights for gays and
lesbians. Executive Order 11478,
Amendment of