Tuesday, July 20, 2010

Akin Gump: Proxy Psychiatric Examination by an Employer

In late October 1991 my former employer, the D.C. law firm of Akin, Gump, Strauss, Hauer & Feld, terminated me after I lodged a harassment complaint against my supervisor and other personnel.  The firm later alleged that it had reviewed my case with a psychiatrist, who did not examine me personally, and that the physician had advised that I suffered from severe mental illness that might dispose me to commit an act of violence.

Even after 19 years, I still think of logical and legal problems in the employer's actions and allegations.  I recently thought of something new that raises questions about the employer's conduct.

It occurs to me that an employer acting in good faith will be self-motivated to obtain the best possible information before it makes any employment decision.  An employer, perhaps, will have a disincentive to make an employment decision based on anything less than the best possible information.

The best possible information about an employee's mental status will be obtained by having an employee undergo a personal assessment by a psychiatrist.  An employer acting in good faith will be self-motivated to have the employee undergo an examination by an assessing psychiatrist.  An employer will have a disincentive to engage in a psychiatric examination of an employee by proxy because the information derived therefrom will not have the reliability of a personal psychiatric examination.  Assuming that an employer will always be acting in his own self-interest, it follows that if an employer engages in conduct that it has no apparent incentive to  carry out, the real reason for the conduct is being concealed and is based on an improper motive.

In short, it makes no sense for an employer acting in good faith to forgo a personal psychiatric examination of an employee who appears to have mental problems.  

I am a big fan of Judge Judy.  On occasion Judge Judy says to a litigant: "What you are saying makes no sense.  And if something doesn't make sense, it didn't happen."

What Akin Gump is claiming -- that it acted in good faith in conducting an ex parte psychiatric consultation -- makes no sense.  An employer will have no incentive to do that if he is acting in good faith and in his own self-interest.  If it doesn't make any sense, it didn't happen.


Gary Freedman said...

Combine this post with the following facts:

1. The psychiatrist expressly denied talking to Akin Gump;

2. Sheppard Pratt has no record of any contact by Akin Gump; its policy is to keep a record of any contacts with an employer about an employee;

3. The only evidence of the consults is a confidential memo written by an Akin Gump attorney manager; that memo doesn't state the name of the psychiatrist Akin Gump supposedly contacted;

4. Akin Gump cannot recall the name of the person it spoke to at Sheppard Pratt.

Gary Freedman said...

Judith Sheindlin (Judge Judy) enrolled at the Washington College of Law, at American University, where she was the only woman in a class of 126 students. She finished her law school education at New York Law School, where she graduated in 1965. (I think I read that she graduated first in her class.)