A defendant asked a plaintiff alleging sexual harassment to undergo a — oh, Dear God, no!!!


In today’s post, I had planned to dispense some wage-and-hour tips for employers seeking to adjust hourly pay rates. And then the employment law gods spoke to me and said, “Eric, this blog is about the clicks, not curing insomnia.”

Ok, then.

Let’s go with this recent federal court decision about an employer that requested a psychosexual evaluation of a plaintiff in a sexual harassment case.

I’ll be frank with you. I’d never heard of a psychosexual evaluation, let alone a party requesting one in a sexual harassment case.

TL;DR: Don’t.

The court described a “psychosexual evaluation” as “an evaluation that specifically addresses sexual development, sexual deviancy, sexual history, and risk of re-offense as part of a comprehensive evaluation of an offender.” In criminal cases, a court may order an offender convicted of a sexual offense, such as rape or sexual abuse of a minor, to submit to a “psychosexual evaluation” before sentencing and incarceration or release on probation to assess whether a convicted defendant may pose a future danger.

So, you can imagine how an Idaho federal judge may have reacted to the defendant’s motion for a court order compelling the plaintiff in a sexual harassment civil lawsuit to undergo a “psychosexual evaluation.”

If you guessed “not well,” that would be an understatement.

Indeed, the court considered the request not only to demonstrate a gross misapprehension of anti-discrimination law and the Federal Rules of Civil Procedure but also almost abusive and harassing.

So, why did the defendant insist that the plaintiff undergo a “psychosexual evaluation”?

A plaintiff pursuing a hostile work environment claim must establish that the defendant’s behavior subjectively offended her. So the court interpreted the defendant’s request for a psychosexual examination of the plaintiff to establish whether she perceived her harasser’s advances and other allegedly harassing conduct as offensive.

That’s a novel approach, one that no court in the history of U.S. jurisprudence had ever countenanced.

So, how does a defendant counter the plaintiff’s assertion that she found particular behavior unwelcome?

By her conduct at work.

For example, did she reciprocate by sending sexually explicit emails or texts to her alleged harasser or otherwise engage in the same type of behavior she complains of?

Notice, I said at work. What a plaintiff does on her own time is generally irrelevant. For example, one court held that a “plaintiff’s choice to pose for a nude magazine outside work hours [was] not material to the issue of whether plaintiff found her employer’s work-related conduct offensive.”

Remember, Title VII’s goal is to rid the workplace of unlawful harassment. The “she was asking for it” defense? Don’t even go there.

And unless you enjoy court-ordered sanctions, don’t consider a “psychosexual evaluation” either.

Conversely, this week’s edition of The Employer Handbook Zoom Office Happy Hour, which returns this Friday, October 28, 2022, at Noon ET, is a must! We’re discussing leave rights and accommodations in hybrid and fully-remote workplaces. Click here (https://bit.ly/HybridRemoteAccommodations) to register.

And, folks, we lucked out with my special guest this week. If you’ve attended any major HR conference involving the Family and Medical Leave Act or the Americans with Disabilities Act, odds are, you’ve seen David Mohl present, and he has blown you away!

David is a labor and employment attorney with extensive law firm and in-house experience, including building and leading the corporate legal functions of Fortune 500 companies. His skill set is diverse, but his wheelhouse is in leave management, focusing on the Americans with Disabilities Act, Family and Medical Leave Act, paid sick leave, and related leave statutes and policies.

David and I will address considerations for evaluating accommodation requests, FMLA compliance and pitfalls, manager responsibilities, and other best practices. We’ll also entertain some audience Q&A without dispensing any legal advice or creating any attorney-client privilege.

Even though this Zoom is intended for companies with hybrid and fully-remote workforces, the rest of you are welcome to attend. You may also pick up a few ADA/FMLA tips for your business.

If you nerd out on this stuff, please join David and me on Friday, October 28, 2022, at Noon ET for the next edition of The Employer Handbook Zoom Office Happy Hour.

“Doing What’s Right – Not Just What’s Legal”
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