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.